I would like to thank Ms Sunaina for providing me this topic and her valuable guidance without which it would have been difficult to complete the project. I would also like to thank my friends and my seniors who helped me in completing this project.
Mayank Digari ROLL NO-246
TABLE OF CONTENTS
Table of Cases Introduction :- Article 19 of Indian Constitution Restrictions given under Article 19(2) to (6) of Indian Constitution Grounds of restrictions. Freedoms and Restrictions under Article 19 Freedom of speech: Articles 19(1)(a) and 19(2) Restrictions under Article 19(2) Problem of finance and credit in small sector Conclusion Bibliography
TABLE OF CASES
ARTICLE 19 OF INDIAN CONSTITUTION
This project deals with the general questions raised in Art. 19, the rights conferred by Art. 19 to each individual emphasizing on the restrictions to which it is subject.
Right to Freedom.
Art. 19. Protection of certain rights regarding freedom of speech, etc.(1) All citizens shall have the right(a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India (e) to reside and settle in any part of the territory of India;1 (f) [* * *]2
(g) to practice any profession, or to carry on any occupation, trade or business. The freedoms enumerated in Art.19 (1) are those great and basic rights, which are recognized as the natural rights inherent in the status of a citizen. But none of these freedoms is absolute or uncontrolled, for each is liable to be curtailed by laws made or to be made by the state to the extent mentioned in clauses (2) to (6) of Art 19. Clauses (2) to (6) recognize the right of the State to make laws putting reasonable restrictions in the interests of the general public, security of the State, public order, decency, or morality and for other reasons set out in those sub-clauses. The principle on which the power of the State to impose restriction based is that all individual rights of a person are held subject to such reasonable limitations and regulations as may be necessary for the protection of the general welfare. Indeed there has to be a balance between individual rights guaranteed under Art 19(1) and the exigencies of the State which is the custodian of the interests of the general public, public order, decency or morality and of other public interests which may compendiously be described as social interest. The debate has always been on as to what exactly is the definition of ‘reasonable restriction’. The phrase „reasonable restriction connotes that the limitation imposed upon a person in
1 Ins. By Constitution ( Forty- fourth Amendment) Act, 1978, Section.2 (w.e.f. 20-6-1979). 2 Clause (f) on “to acquire, hold and dispose property; and”omitted by Constitution (Forty- fourth Amendment) Act, 1978, Section.2 (w.e.f. 20-6-1979).
enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interest of the public. The word reasonable implies intelligent care and deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness unless it strikes a proper balance between the freedom guaranteed in Art.19 (1)(2) and the social control permitted by cl. (6) of Art. 19, it must be held to be wanting in that quality3
Restrictions given Art.19 (2) to (6)
(2) [4Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the [5sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence]. (3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of [6the sovereignty and integrity of India or] public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of [7sovereignty and integrity of India or] public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (5) Nothing in [8sub-clauses (d) and (e) of the said clause shall effect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of the right conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right
3 Chintaman Rao v. State of M.P., AIR 1951 SC 118. 4 Subs. retrospectively by the Constitution (First Amendment) Act, 1951, S.3, for the original cl. (2) which read: “Nothing in sub-clause (a) of cl (1) shall affect the operation of any existing law in so far as it relates to or prevents the State from making any law relating to libel, slander, defamation, Contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State”. 5 Ins. By the Constitution (Sixteenth Amendment) Act, 1963, S.2. 6 Supra 7 7 Supra 7 8 Infra 11
conferred by the said sub-clause, and, in particular, [9nothing in the said sub-clause shall affect the operation of any existing law insofar as it relates to, or prevent the State from making any law relating to, (i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. Three significant characteristics of clauses 19 (2) to (6) may be noted: (1) The restrictions under them can be imposed only by or under the authority of a law: no restriction can be imposed by executive action alone without there being a law to back it up with.
(2) Each restriction must be reasonable. (3) A restriction must be related to the purposes mentioned in clauses 19 (2) to (6).
Grounds Of Restrictions
Clause (2) of Article 19 contains the grounds on which restrictions on the freedom of speech and expression can be imposed :1) Security of State: Under Article 19(2) reasonable restrictions can be imposed on fredom of speech and expression in the interest of security of State. The term "security of state" refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of State. 2) Friendly relations with foreign states: This ground was added by the constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardise the maintainance of good relations between India, and that state. No similar provision is present in any other Constitution of the world. In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. Interest of friendly relations with foreign States, would not justify the suppression of fair criticism of foreign policy of the
9 Subs. By the Constitution (First Amendment) Act, 1951, S.3, for the original words. “Nothing in the said subclause shall affect the operation of any existing law insofar as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business.”
Government. It is to be noted that member of the commonwealth including Pakistan is not a "foreign state" for the purposes of this Constitution. The result is that freedom of speech and expression cannot be restricted on the ground that the matter is adverse to Pakistan. 3) Public Order: This ground was added by the Constitution (First Amendment) Act10. 'Public order' is an expression of wide connotation and signifies "that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established." Public order is something more than ordinary maintenance of law and order. 'Public order' is synonymous with public peace, safety and tranquility. The test for determining whether an act affects law and order or public order is to see whether the act leads to the disturbances of the current of life of the community so as to amount to a disturbance of the public order or whether it affects merely an individual being the tranquility of the society undisturbed. Anything that disturbs public tranquility or public peace disturbs public order. Thus communal disturbances and strikes promoted with the sole object of causing unrest among workmen are offences against public order. Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety. Thus creating internal disorder or rebellion would affect public order and public safety. But mere criticism of government does not necessarily disturb public order. In its external aspect 'public safety' means protection of the country from foreign aggression. Under public order the State would be entitled to prevent propaganda for a state of war with India. The words 'in the interest of public order' includes not only such utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class of persons is valid because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has the tendency to create public disorder even if in some case those activities may not actually lead to a breach of peace. But there must be reasonable and proper nexus or relationship between the restrictions and the achievements of public order. 4) Decency or morality: The words 'morality or decency' are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place. 5) Contempt of Court: Restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. According to the Section 2 'Contempt of court' may be either 'civil contempt' or 'criminal contempt.'
10 Subs. By the Constitution (First Amendment) Act, 1951
6) Defamation: A statement, which injures a man's reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still uncodified in India and subject to certain exceptions. 7) Incitement to an offence: This ground was also added by the constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit offence. The word 'offence' is defined as any act or omission made punishable by law for the time being in force. 8) Sedition: As understood by English law, sedition embraces all those practices whether by words, or writing which are calculated to disturb the tranquility of the State and lead ignorant person to subvert the government. It should be noted that the sedition is not mentioned in clause (2) of Art. 19 as one of the grounds on which restrictions on freedom of speech and expression may be imposed.
Freedoms and Restrictions under Art. 19
Freedom of Speech: Articles 19(1) (a) and 19(2)
Freedom of speech is the bulwark of democratic government. It is considered to be the mother of all other liberties. Freedom of speech under Art 19(1) (a) includes the right to express one‟s views and opinions at any issue through any medium, e.g., by words of mouth, writing, printing, picture, film, movie, etc. Thus, it includes the freedom of communication and the right to propagate or public opinion. But this right is subject to reasonable restrictions under Art 19(2). The phrase freedom of speech and expression has a broad connotation. The right to paint or sing or dance or to write poetry or literature is also covered by Art 19(1) (a) because the common basic characteristic of all these activities is freedom of speech and expression, right to travel abroad. It also includes the right to receive information, freedom of the press and within certain limits picketing or demonstration may also be regarded as a manifestation of one‟s freedom of speech and expression. As regards Government servants, the judicial view appears to be that a strike by them can be validly prohibited. A Bihar Government prohibited its Governments servants from going on a strike in connection with any matters pertaining to their conditions of service. The rule was challenged. The provision was declared valid as it did not curtail freedom of speech and there was no Fundamental right to strike. Applying the tests of reasonability; Viewing from an objective concept, the restriction on strike from the point of the general public rather than from the point of people on whom the restriction is imposed. The general public opinion being opposing strike as the reasons may be, the restriction on strike is therefore reasonable. Moreover when the people cease to work and go a strike, the general interests of the public involved in their work is also affected. The susceptibility and demands of a section of a society cannot be forced upon on the rest of the society whose sentiments are not the same as that of the strikers. From this point of view the restriction on strike is reasonable. On similar lines “Bandhs” organized by the political parties are also declared unconstitutional. It is not an
exercise of the freedom of speech and expression, because during a “Bandh”, people are not expected to travel, not to carry any trade, no to attend to their work. It cuts down the rights of other individuals and there is also a destruction of public property. Such cannot be an unreasonable restriction as there is a clear destruction of public property leading to social disorder which is not in the interests of the public.
Restrictions under Article 19(2).
The object of all freedoms and restrictions is to reach social order or maintenance of public order. No freedom can be absolute or completely unrestricted. Accordingly, under Art. 19(2), the state may make a law imposing „reasonable restrictions ‟on the exercise of the right to freedom of speech and expression „in the interests of‟, the security of the State, friendly relations with the foreign States, public order, decency, morality, sovereignty and integrity of India, or „in relation to the Contempt of Court, defamation of incitement to an offence‟. Restrictions in Art.19 (2) are all conceived in the national interests or in the interests of the society. The first set of grounds viz, sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order- are all grounds referable to national interest; whereas, the second set of grounds, viz, decency, morality, contempt of court, defamation and incitement to offence are all conceived in the interest of the society. Security of State and Public order. Art. 19(2) uses two concepts; „public order‟ and „security of state‟. The term „public order‟ covers a small riot, an affray, breaches of peace, or acts disturbing public tranquility. But „public order‟ and „public tranquility‟ may not be synonymous. A man playing loud music in his home at night may disturb public tranquility, but not public order. Therefore such acts only the serenity of others may not fall within the term „public order‟. There should be some element of disturbance of peace to bring a matter under „public order‟. An aggravated form of peace which threatens the foundations of, or threatens to overthrow, the state will fall within the scope of the phrase „security of state‟. The expression‟ overthrowing the state‟ is covered by the term „security of the state‟. Therefore making a speech tending to overthrow the state can be made punishable and such a form of restriction is reasonable as it is for preserving social order. Friendly Relations with foreign states. The idea or the object behind imposing restrictions on the freedom of speech in the interests of friendly relations with a foreign country is that persistent and malicious propaganda against a foreign power having friendly relations with India may cause considerable embarrassment to India, and, accordingly, indulging in such propaganda may be prohibited. This restriction clearly strikes a balance between the purpose of the restriction and social order. Incitement to an offence. Freedom of speech does not confer a license to incite people to commit offence. Incitement to serious and aggravated offences, like murder may be punishable as involving the security of the state. Incitement to many other offences is also punishable as affecting public order. But there
may be still other offences like bribery, forgery, cheating, etc., having no public order aspect. So the words „incitement to offence‟. This restriction also prohibits incitement to all those offences which do no disrupt the public order was the debate in the Parliament and was challenged to be unreasonable as offence is a wide term and includes any punishable act under the Indian Penal Code. The Court held in State of Bihar V. Shailabal Devi11, that incitement to murder or other violent crimes would generally endanger the security of the state; hence a restriction against such incitement would be a valid law under Art. 19(2). Decency or Morality The ideas about decency or morality vary from society and time to time depending on the standards of morals in the contemporary society. Selling of obscene books, obscene things to young persons, committing an obscene act or singing an obscene song in the public place were the listed obscene acts under S 292 of IPC. To test the reasonability what we have to see is that whether a class, not an isolated case, into whose hands the book, article, or story falls suffer in their moral outlook or become depraved by reading it might have impure and lecherous thoughts aroused in their minds. The charge of obscenity must therefore be judged from this aspect. “Indecency is not confined to sexual indecency; indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting.”. Administrative Discretion. The general principle is that it is unreasonable to leave absolute and arbitrary discretion to an administrative officer to regulate the freedom of speech and expression. Such kind of restriction is clearly unreasonable, as it does not provide any provisions or further appeals. The discretion to be valid must be exercisable for purposes specified in Art. 19(2) and subject to legislative policy and procedural safeguards. Clear and Present danger test in U.S. as applicable in India. In U.S.A. freedom of speech was originally protected by the doctrine of clear and present danger propounded by Holmes J. in Schnek v. United States12. In that case the Supreme Court of America passed upon the military censorship provisions of the Espionage Act of 1917, which imposed certain limitations upon press and speech. The case involved an appeal from a conviction on a charge of circulating antidraft leaflets among members of the United States armed forces. The Espionage Act made it a felony to attempt to obstruct the enlistment and recruitment services of the United States. Appellant‟s counsel contended that the Espionage Act violated the First Amendment guaranteeing freedom of speech. It was held that the freedom of speech could be abridged if the Government could show that there was a clear and present danger to the State arising from the abuses of that freedom.
AIR 1952 SC 329. (1919) 249 U.S. 47.
Clear and Probable danger test: The test of clear and present danger was abandoned in Dennis v. United States13.In that case the validity of the Alien Registration Act, 1940 was in question. The Statute made it unlawful for any person to advocate, advise or teach the duty, necessity, desirability or propriety of overthrowing or destroying the Government in the United States by force or violence and penalized even a conspiracy to commit such forbidden acts. The petitioners, leading members of the Communist Party, were charged with a conspiracy to form a party for teaching and advocating the overthrow of Government by force. They contended that the statute could not stand the constitutional test of “clear and present danger” and that their conviction by the Court below was therefore, liable to be set aside. The test of clear and present danger was discarded and the test of clear and probable danger has been substituted. Judged by the new test it was held that the impugned statute was constitutional, though it penalized even conspiring to advocate the future overthrow of the State and imminent danger is to be apprehended thereby. The arm of the law has been lengthened thereby. In India: a comparison of the protection afforded to freedom of speech under the Indian and American Constitutions reveals a close identity. Art. 19 (2) as originally drafted seems to be based on the “clear and present danger” test of the United States. After the amendment it has come into line with the “clear and probable danger” test applied in the United States.
Freedom of Assembly. Article 19(b) and (3)
Art.19 (1) (b) guarantees to all citizens of India the right of assembly which includes the right to hold public meetings and to take out processions. The Constitution secures this right to the citizen subject to two limitations: (i) the assembly must be unarmed and (ii) it must be peaceful i.e., it must not be tumultuous or riotous in character. Further, under clause (3) the state may impose reasonable restrictions as may be deemed necessary in the interests of public order or the sovereignty and integrity of India. However it is reasonable to infer that the words „public order‟ in clause (3) is used in the same restricted sense as in clause (2), namely, in the sense, of public peace, safety and tranquility. Therefore any assembly of five or more persons with the object of committing any act mentioned in s 141 of IPC is an unlawful assembly and a restriction on such an assembly is reasonable, keeping in view the public safety, peace and tranquility. The restriction on the holding meetings in Government premises like Railways is also valid or reasonable as the right of assembly cannot be exercised on the property of somebody as they are entitled to enjoy their property like any other private individual. A difficult question that arises here is that when a meeting is itself lawful, and conducted without any intention to commit a breach of the peace, nevertheless, such a meeting may in times of political or sectarian excitement, provoke public disorders. Then in such a situation can the citizen be deprived of his right because its very exercise in a manner perfectly lawful will excite others to a breach of peace. In India, holding of meetings otherwise lawful, may in emergency be prevented, if in the position of an appropriate authority such an action is deemed necessary. If a lawful meeting with a lawful object shows a clear sign of apprehending danger then the police may take such steps that are necessary to prevent a breach of the peace.
(1951) 341 U.S. 494
Freedom of Association: Art.19 (1) (c) and (4)
This Article declares that all citizens shall have the freedom to form associations or unions. Obviously, the right to form an association includes the right to continue it14. It also includes the negative right of not joining associations or unions but it is yet debatable whether this negative right can also be regarded as a fundamental right. A High Court has held that the right to form an association necessarily implies that a person is free t refuse to be a member of an association if he desires, and, therefore, a rule making it compulsory for every teacher to become a member of a government sponsored association at the risk of suffering disciplinary action in case a teacher absents from two consecutive meetings infringes Art. 19 (c). Power to declare Association unlawful: In State of Madras v. V.G.Row15 the Government of Madras declared a society known as People‟s Education society as an unlawful association. Under S 15(2)(b) of the Criminal Law Amendment Act the subjective satisfaction of the government that an association was working for unlawful objects was final. The decision of the government could be reviewed by an Advisory Board but was otherwise final. The Supreme Court held that these provisions were unreasonable as they excluded judicial scrutiny. Any law which restricts a right of an individual and gives no scope for appeal is unreasonable. Therefore the order banning the association was struck down.
Freedom of Movement, Residence 19(1)(d),19(1)(e), 19(f) and 19(5)
This right guarantees to every citizen the right to move „freely‟ throughout the territory of India. The adverb „freely‟ connotes that the freedom to move is without a restriction and is absolute, i.e., to move wherever one likes, whenever one likes, and however one likes, subject to valid law enacted under clause (5). Laws such as wearing of helmet while riding a two-wheeler motor vehicle, which facilitate movement rather than restrict it, do not violate Art. 19(1)(d). Externment or internment orders i.e., requiring a person to leave a certain area or not to enter a certain area would, no doubt, curtail freedom guaranteed in clause (1)(d). Hence, a law authorizing externment or internment to be valid must fall within the tests of reasonability, namely restrictions must be in the interests of public or for the protection of the interest of the Scheduled tribes. An externment order was once challenged on the ground that it was not a reasoned order. The Supreme Court rejected the challenge pointing out that there is a certain brand of lawless elements in society whom it is impossible to bring to book by established methods of judicial trial because the legal evidence essential for conviction is impossible to obtain. For fear of reprisals, witnesses are unwilling to depose in public against such characters. So, in the externment order against such a person, and in the disposal of appeal against that order, the concerned authority is not bound to give reasons or write a reasoned order. The externee is only entitled to be informed of the general nature of the material allegations.16 Since it falls within the interests of general public such a restriction on movement reasonable. However both the substantive and procedural part of the law has to be reasonable before the restrictions can be accepted as
14 15 16
State of Madras v. V.G. Rao, AIR 1951 Mad 147. 1952 S.C.R.957 State of Maharashtra v. Saleem Hasan Khan, AIR 1989 SC 1304: (2989) 2 SCC 316.
reasonable. Further, there must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous before terming him to be a „dangerous character‟ fraught with violence. Likewise, there must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in the place or any part thereof is hazardous to its community and its safety….Natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of Arts. 14,19 and 21 of the Constitution. Mere police apprehension is not enough. Some ground or the other is not adequate. Therefore on the above grounds externment or internment can be regarded as a reasonable restriction. It has been stated earlier that the restrictions must fall within the interests of public and in the protection of Scheduled Tribes. Under these conditions a law can restrict the movement of an individual. An instance of a restriction on free movement imposed in the interests of the general public, on the existing laws of the Official Secrets Act, 1923, a person is denied access to “prohibited places”. A person who approaches, inspects, passes over or is the vicinity of, enters any prohibited place commits an offence under the Act. These restrictions are necessary to preserve the security of the State .The interests of the general public embrace public security, public order and public morality. Similarly, restrictions may be imposed on movement and traveling to prevent or control epidemics, etc. The second ground of restriction is to protect “the interests of scheduled tribes”. It was considered necessary to empower the State to impose restrictions upon the entry of outsiders to the areas inhabited by these tribes. An uncontrolled mixing of the tribes with the people of other sections is likely to produce undesirable effects upon the unsophisticated tribal people.
Freedom of Residence
The purpose of this clause is also to remove internal barriers within the territory of India so as to enable every citizen to travel freely and settle down in any part of a State or Union Territory. This freedom is too, subject to restrictions in the interests of public or for the protection of the interests of Scheduled Tribes. Therefore the test for this freedom is if a restriction is in securing the above interests, it is reasonable. Thus, prostitutes may be restricted to carry on their trade within a specified area and accordingly may be required to reside in or remove from particular area. Similarly restrictions on habitual offenders is also a reasonable restriction. The scope of this freedom was considered by the Supreme Court in Ebrahim Vazir v State of Bombay.17 S.7 of the said Act was intended to control admission into and regulate movements in India of people from Pakistan. An Indian citizen returning to India from Pakistan is requested to produce a permit or a passport, as the case may be, before being allowed to enter the country. If he enters the country without a permit, or a passport, action may be taken under S.7 for his expulsion. An order passed under S.7 was challenged on the ground that the Fundamental Right of the citizen under Art. 19(1), clause (e) “to reside and settle in any part of the territory of India” is hereby infringed. This contention was upheld and S.7 was pronounced to be void. The Supreme Court observed in the above mentioned case: “the Act purports to control admission into and regulate the movement in India of persons
1954 SC 229. Influx from Pakistan (Control) Act XXIII of 1949:
entering from Pakistan, but S.7 oversteps the limits of control and regulation when it provides for removal of a citizen from his own country.
Freedom of Property
Article 19(1)(f) of the Constitution guarantees the fundamental right of the citizens to acquire, hold and dispose of property. However, this sub-clause (f) of the clause (1) of Art.19 has been deleted by the Forty-Fourth Amendment to the Constitution with the effect from June 20, 1979.
Freedom of Trade and Occupation. Art 19(1)(g) and 19(6)
Art.19 (1)(g) of the Constitution guarantees that all citizens have the right to practice any profession or to carry on any occupation or trade or business. The freedom is not uncontrolled, for clause (6) of the Art. imposes reasonable restrictions on this right on the following grounds. Reasonable restrictions in the interests of the general public: Under this the restriction should firstly be in the interests of the public and secondly, the restrictions should be a „reasonable restriction‟. The expression „in the interests of general public‟, the Court has held, “is of wide import comprehending public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the Constitution. A law providing for basic amenities; for the dignity of human labour… is a social welfare measure in the interest of general public.”18 Next, in order to determine the reasonableness of the restriction, regard must be had to the nature of the business and conditions prevailing in that trade. Thus trades in noxious or dangerous goods or trafficking in women may be prohibited altogether and there is nothing unconstitutional in the laws doing so. Bu trades which are not illegal or immoral or injurious to the health and welfare of the public, though may not be altogether suppressed, can be regulated and the evils mitigated in the interests of the general public. There are some activities, which do not come within the ambit of this freedom such as reading in adulterated food or gambling. On the other hand, restrictions which are not permissible with other trades are lawful and reasonable so far as the trade in liquor is concerned, and that is why even the prohibition of the trade in liquor is not only permissible but is also reasonable. The reasons are again, public morality, public interests and harmful and dangerous character of liquor. The Supreme Court decisions illustrating the reasonable restrictions in the interests of the general public may be noted here:
Minicipal Corp. v. Jan Mohd. Usmanbhai, (1986) 3 SCC 20. 31.
(a) In emergency situations, it is necessary in the interests of the public to impose control on the production, supply and distribution of commodities essential to the life of the community. Likewise, the fixation of maximum prices of commodities mentioned in the Essential Commodities Act, 1955 would not be an unreasonable restriction on the freedom of trade, provided that the controlling authority in determining the prices acts on some formula, which is not unreasonable. (b) The Minimum Wages Act, 1948, empowers the State Government to fix minimum rates of wages in regard to workers of each of the industries scheduled therein. The petitioner claimed the Act invalid, being an unreasonable restriction on the freedom to carry on business guaranteed by Art. 19(1)(g) inasmuch as the Act did not define what is minimum wage and made no provision for taking into consideration capacity of the employer to pay. The Court held19 “ In an underdeveloped country which faces the problem of unemployment on a very large scale, it is not unlikely that labour may offer to work even on starvation wages. The policy of the Act is to prevent the employment of such sweated labour in the interests of the general public and so, in prescribing the minimum wage rate the capacity of the employer need not be considered. What is being prescribed are minimum wage rates which a welfare State assumes every employer must pay before he employs labour”. The reasonability is therefore verified as the object and the social control measures are balanced. (c) Section 7 of the Punjab Trade Employments Act, 1949, which directs that the shops and establishments to which it applies shall remain closed one day in a week, is not invalid because the object of the law is to ensure the health and efficiency of the worker who forms an essential part of the community and in whose welfare, therefore, the community is vitally interested. For the same reasons, laws regulating the hours of employment of employees and opening and closing hours of establishments cannot be said to constitute an unreasonable restriction on the right to carry on trade or business.Increase in the number of national festival holidays has also been upheld as reasonable restriction.
Any law which does not strike a proper balance between the freedoms guaranteed and the social control permitted by the clauses in Art. 19 is an unreasonable restriction.20 A prohibition on the fundamental right to carry on occupation, trade or business is not regarded as reasonable if is it imposed not in the interests of the general public but keeping in view the susceptibilities and sentiments of a section of a community.21 A law which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business cannot be held reasonable.22
19 20 21 22
U.Unichoyi V. State of Kerala AIR 1962, SC 12, 17. Chintaman Rao v State of M.P AIR 1951 SC 118. Mohd. Faruk v State of M.P AIR 1958 SC 731. Dwaraka pd. V State of U.P AIR 1954 SC 224.
The whole purpose of the project was to study the restrictions imposed on citizens under article 19 of Indian constitution and to determine the reasonableness of the restrictions imposed on the citizens in Art. 19(1). In the above-explained chapters it was many a times mentioned that the base for ascertaining the reasonableness of a restriction was that it should be in the interests of the general public, which is probably the best test. What then is in the interests of the general public would be the next question. Well, any restriction which to maintain public order, in the sense, public peace, safety, tranquility, public health, morals are in the interests of the public. The restriction on the legislations should lead to these purposes. If the result does not lead to the above-mentioned folds then the restriction is not reasonable. The restrictions that put the rights guaranteed, within the social controls permitted under clauses (2) to (6) are hence reasonable. Every legislation is with a set objective. In achieving those objects the legislations should not arbitrarily invade upon the rights of a citizen. The restriction should look at the set objects that the legislation seeks to achieve and it should establish a close link with such object of the legislation. If the close or proximate effect of the law is that it abridges the fundamental rights of the citizens and if the restriction prevents such abridgment, then the restriction is reasonable. On the other hand, if the restriction goes too far in linking itself with the object of the legislation then such a restriction is unreasonable. Another important test is, if a said provision or a right shows clear signs of danger or even shows an apprehended danger then a restriction on such a law is reasonable.