ARTICLE 19: RIGHT TO FREEDOM
Clause (a) to (g) of Article 19(1) guarantee to the citizens of India six freedoms, viz., of ‘speech and expression’, ‘peaceable assembly’ ‘association’, ‘free movement’, ‘residence’, and ‘practicing any profession and carrying on any business’.
These various freedoms are necessary not only to promote certain basic rights of the citizens but also certain democratic values in, and the oneness and unity of, the country.
Art. 19 guarantee some of the basic, values in, and the oneness and unity of, the country. Art. 19 guarantee some of the basic, valued and natural rights inherent in a person.
The freedom given under Article 19 could only be restricted on the grounds mentioned in the article itself.
Grounds of Restriction
- Security of State and Public order – Public order means public peace, safety and tranquility.
- Sovereignty and integrity of India – This is the restriction which legitimizes the law of sedition. Was added by 16th Amendment Act based on the recommendations made by the Committee on National Integration and Regionalism. Targets individuals or organizations
- promoting secessionist tendencies or ideas of disintegration.
- Friendly relations with foreign states
- Incitement to an offence
- Contempt of Courts
- Decency or morality
Constitution (First Amendment) Act, 1951
Added ‘public order’, ‘friendly relations with foreign states’ and ‘incitement to an offence’ as grounds for restriction.
Nehru introduced these for the following reasons:-
The moral problem posed by irresponsible journalism.
Limitations imposed by Art. 19(2) serve a twofold purpose, viz.,
on the one hand, they specify that these freedoms are not absolute;
on the other hand, they put a limitation on the power of the legislature to restrict these freedoms.
Three significant characteristics of clause 19(2) are:
The restrictions under this clause can be imposed only by or under the authority of law; no restriction can be imposed by executive action alone without there being a law to back it up.
Each restriction must be reasonable.
A restriction must be related to the purposes mentioned in Sec. 19(2).
- There is thus a double test to adjudge the validity of a restriction:
- Whether it is reasonable; andWhether it is for a purpose mentioned in the clause under which the restriction is being imposed?
Test for Reasonableness:
It is difficult to give an exact definition to the word reasonable. There is no definite test to adjudge reasonableness of a restriction. However, the Courts have laid down a few broad propositions in this respect.
Sovereignty and Integrity of India:
This ground has been added as a ground of restriction on the freedom of speech and expression by the Sixteenth Amendment of the Constitution, with effect from 6th October, 1963. The object was to enable the state to control crisis for secession and the like from organizations such as the DravidaKazhagam in the South and the Plebiscite Front in Kashmir and activities in pursuance thereof which might not possibly be brought within the fold of the expression ‘security of the state’.
“Security of State” is a much wider expression and includes economic security also.
Freedom of Press- Caselaws
Brij Bhusan v State of Delhi (1950)
Direction was issued under Section 7(1)(c) of the East Punjab Public Safety Act to editor and publishers to submit for scrutiny in duplicate all communal matters, news and views about Pakistan.
This was struck down as violation of Article 19(1)(a) as imposing unreasonable restriction not justified under 19(2).
Provided freedom from pre-censorship on publication
Romesh Thapar v Madras (1950)
Petitioner contended that banning of his journal ‘Crossroads’ in Madras is violative of the fundamental right granted under Article 19(1)(a).
Court held that order is outside the purview of Article 19(2) and cannot be sustained.Provided the right to liberty of circulation.
Sakal Papers v Union of India (1962)
Order was passed, fixing number of pages and size which a newspaper could publish at a price.
The court held that restriction not justified by the grounds under 19(2). The effect was to reduce circulation or volume of newspaper.
Express Newspaper v. Union of India
The validity of Working Journalists Act was challenged which was enacted to regulate conditions of services (such as number of working hours, number of leaves, fixation of wages, etc) of persons employed in newspaper industry.
Act was challenged on the ground that it will adversely affect the economic conditions of newspaper and consequentially will affect their circulation and thus was violation of Article 19(1)(a).
The court held that the press was not immune from laws of general application or ordinary forms of taxation, or law of industrial relation. Therefore, the court upheld the constitutionality of the act.
Secretary Ministry of Information and Broadcasting v Cricket Association of West Bengal (1995) AIR WAVES Case
Petitioner wanted to telecast cricket matches organized by it through frequency not owned or controlled by government of India but owned by a foreign satellite agency.
Petitioner sought permission from Doordarshan to uplink the signals created by its own camera and the earth station. Doordarshan rejected the permission on the ground that it enjoys monopoly by virtue of Telegraph Act 1885 and that frequencies available in India are in limited number.
Board argued that game of cricket provided entertainment to public and was a form of speech and expression under 19 (1) (a) which included a right to telecast the matches and broadcast it to the public.
The Court held that Freedom of speech and expression includes the right to acquire information and to disseminate the same. The right to communicate therefore means right to communicate through any media that is available whether print or electronic or audio-visual such as advertisements, articles, speech etc. it includes freedom to communicate and circulate one’s views.
The right to freedom of speech and expression includes right to educate, right to inform, and to entertain and also right to be educated, informed and entertained. The former is the right of the telecaster and the latter the right of the viewers.
The right to impart and receive information is a species of the right to freedom of speech and expression. A citizen has a right to use the best means of imparting and receiving information.
Right to Commercial Speech
Petitioner wanted to publish a telephone directory. Respondent claimed exclusive right to publish telephone directory under Telegraphs Act 1885.
The Court held that commercial advertisement is a form of speech and expression as they disseminate information through advertisement.
Since the restriction was not part of Article 19(2) it cannot be sustained.
KA Abbas v Union of India
Petitioner’s movie ‘A Tale of Four cities’ was denied U (Universal) certificate for its screening. Petitioner dissatisfied from the rating challenged the validity of Cinematograph Act itself on the ground of violation of Article 19(1).
The Central government will grant authority to competent persons who can impose restriction. And the board appointed should draw a line and put reasonable restrictions. And also classification according to age groups and their suitability for unrestricted exhibition is considered as valid in the interests of public morality and thus won’t offend freedom of speech and expression.
The Court held that pre-censorship is justified because it is done in the interest of the society thus restriction is fine if it is reasonable but if it isn’t and goes outside the purview of Article 19(2) then the abuse of power can be questioned.
Right to Know
Union of India v. Association for Democratic Reforms Right to Know
Every voter has a right to know the antecedents of the candidates at election. Right to know is included in 19(1)(a).
Right to remain silent
Bijoe Emmanuel v State of Kerala (1986)
Three students belonging to Jehovah Witness refused to sing the anthem on basis of their religious affiliation but stood respectfully while the national anthem was being sung.
Court held that they had not insulted the national anthem and the government circular cannot violate article 19(1)(a), which includes in itself the right to remain silent.
Right to Demonstration
Kameshwar Prasad v State of Bihar (1962)
Court held that demonstration being visible representation of ideas would be protected as a form of speech provided they are not violent and disorderly.
OK Ghosh v Ex Joseph (1963)
Article 19(1) (a) included a right to demonstration provided it is not violent or disorderly.
Freedom to Form Association or Union
Jamaat-E-Islami Hind v. Union of India
The Central government imposed a ban on Jamaat e Islam under the unlawful activities prevention act.
The court held that there should be a sufficient cause for declaring the association unlawful. The procedure to be followed is that when the central government declares any association unconstitutional it should approach the tribunal and when the tribunal looks into it and confirms then it becomes unconstitutional.
Also if the Central government thinks it is not credible to give or disclose information to the public as it will disturb the public peace then it shouldn’t but the tribunal can look into the information and see if it is correct and then can declare it unconstitutional.
Test of Reasonability
O. K. Ghosh v. Ex. Joseph – The restriction imposed should be reasonable and be rationally proximate and in nexus with public interest.
Virendra v. State of Punjab – Absence of provision for review makes the provisions unreasonable.
Municipal Corporation of Thecity v. Jan Mohd. Usmanbhai –The reasonableness should be determined in an objective manner and from the angle of the general public’s interest and not from the viewpoint of the person upon whom the restriction are imposed.
right to move freely throughout the territory of India
Article 19(1)(d) and (e) of the Indian Constitution guarantees to every citizen of India right to move freely throughout the territory of India and to reside and settle in any Part of the of the Territory of India.
This right is subject to reasonable restrictions imposed by law in the interest of the general public or for the protection of the interests of any Scheduled Tribes.
Freedom of Movement Article 19(1)(d):
Article 19(1)(d) of The Indian Constitution guarantees to all Citizens of India the Right “to move freely throughout the territory of India.” This Right is, however subject to reasonable restrictions mentioned under Article 19(5).
Clause (5) of Article 19 empowers the State to impose reasonable restrictions in the interest of general public or for the protection of the interest of any Scheduled Tribe.
Grounds of Restrictions:
According to clause (5) of Article 19 of Indian Constitution State may impose reasonable restrictions on the Freedom of movement on two grounds:
1) In the Interest of General Public 2) For the Protection of Scheduled Tribes
i) Kharak Singh V. State of UP AIR 1963 SC 1295, In this case, Supreme Court Held that the right to move freely throughout the territory of India means the right of locomotion which connotes the right to move wherever one likes, and however one likes.
ii) State of Uttar Pradesh Vs. Kaushalya AIR 1964 SC 416 In this Case Supreme court held that the right of movement of prostitutes may be restricted on ground of Public Health and in the interest of Public Morals.
Freedom of Resident Article 19(1)(e)
Article 19(1)(e) of the Indian Constitution guarantees to every citizen of India, the right “to reside and settle in any part of the territory of India”. This right is subjected reasonable restrictions which may be imposed by the State, by law under clause (5) of Article 19, in the interest of the general public or for the protection of the interest of any Scheduled Tribe.
It is to be noted that the right to reside [under Article 19(1)(e)] and right to move [under Article 19(1)(d)] freely throughout the Country are complementary and often go together. Most of the Cases considered under Article 19(1)(d) are relevant to Article 19(1)(e) also. The two rights, therefore, discussed together.
The Freedom of Movement and Residence apply only to citizens of India and not the Foreigners. A foreigner cannot claim the right to reside and settle in the country as guaranteed by Article, Article 19(1)(e). The Government of India has The Power to expel foreigners from India.
NaShivar vs State of Madhya Pradesh AIR 1975 SC 360, Supreme Court held that there was no fundamental right to carry on trade in liquor because of the reason of public morality public interest and harmful and dangerous character of liquor.
State of Andhra Pradesh vs Macdowell AIR 1996 SC 1627, court held that even if trade in intoxicating liquor fall within the scope of article 19(1) G the state could still imposer severe restrictions or even prohibition. on the trade in intoxicating liquor.