This article is written by Nidhi Bajaj, of Guru Nanak Dev University, Punjab. The article presents a brief study of Article 19 of the Constitution of India covering all its dimensions. 

This article has been published by Sneha Mahawar.

Introduction

Article 19(1) of the Constitution of India guarantees six fundamental freedoms to every citizen of India, namely-

  1. Freedom of speech and expression;
  2. Freedom to assemble peacefully and without arms;
  3. Freedom to form associations, unions or co-operative societies;
  4. Freedom to move freely throughout the territory of India;
  5. Freedom to reside and settle in any part of the territory of India, and
  6. Freedom to practice any profession, or to carry on any occupation, trade or business. 

These six fundamental freedoms are the natural and basic freedoms inherent in the status of a citizen. However, these freedoms are not absolute or uncontrolled but are subject to certain reasonable restrictions. In this article, the author will take you through the six fundamental freedoms provided under Article 19 along with the relevant case laws. 

6 fundamental freedoms

Freedom of speech and expression [Article 19(1)(a) and 19(2)]

Article 19(1)(a) guarantees the freedom of speech and expression to all citizens. Freedom of speech and expression is the foundation of a democratic society and is one of the most cherished rights of a citizen. It is the first condition of liberty and plays an important role in forming public opinion. 

Meaning of freedom of speech and expression

Freedom of speech and expression means the right to speak, and the right to express oneself through any medium-by words of mouth, writing, pictures, signs, internet etc. Every citizen has a right to hold an opinion and to be able to express it, including the right to receive and impart information. The expression ‘freedom of speech and expression’ has a wide connotation. It includes the freedom of the propagation of ideas, their publication and circulation.

Scope of freedom of speech and expression

There are various facets of the freedom of speech and expression which have been recognised by the courts. Some of those facets or rights that constitute the freedom of speech and expression are mentioned below:

  1. Freedom of the press: Freedom of the press is perhaps the most important freedom under the right to free speech and expression. Freedom of the press does not find an explicit mention in the Constitution. However, it has been indisputably held to be an important aspect of the freedom of speech and expression and is implied under Article 19(1)(a). Freedom of press means:
  1. There can be no pre-censorship in the press;
  2. No-pre stoppage of publication in newspapers of articles or matters of public importance;
  3. Freedom of circulation;
  4. No excessive taxes on the press, etc.;

However, restrictions can be imposed in the interests of justice, but those restrictions must withstand the test of Article 19(2).

In Bennett Coleman & Co v. Union of India(1972), the Hon’ble Supreme Court held that the freedom of the press embodies the right of the people to free speech and expression. It was held that “Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content.”

In the landmark case of Romesh Thappar v. The State Of Madras(1950), the Supreme Court observed that, “freedom of speech and of the press lay at the founda- tion of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible”. The Court in this case held that the freedom of circulation is as important as the freedom of publication.

  1. Right to know and to obtain information: In the State of U.P. v. Raj Narain (1975), the Supreme Court observed that the right to know is derived from the concept of freedom of speech. The Court further held that the people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. It is a basic postulate of a democracy that every citizen must have a right to know about what the government is doing. It is only when the public is aware of the acts of government that transparency and accountability in governance can prevail. Thus, the right to obtain information and disseminate it is an important fundamental right. In India, we have the Right to Information Act, 2005 which provides for the right of a citizen to secure access to information under the control of public authorities. 
  2. Right to know the antecedents of the candidates at election: In Union of India v. Association For Democratic Reforms (2002), the Hon’ble Supreme Court held that the voters have a fundamental right to know the antecedents of the candidate contesting election including his/her criminal past. 
  3. Right to reply: In LIC v. Prof. Manubhai D. Shah(1992), the Supreme Court ruled that the right to reply, including the right to get that reply published in the same news media in which something was published against or in relation to a citizen, is protected under Article 19(1)(a).
  4. Right to silence: Right to speak includes the right to not speak or the right to remain silent. In Bijoe Emmanuel v. State of Kerala (1986), the Supreme Court upheld the right to silence of three children who were expelled from school because they refused to sing the National Anthem. The Court held that no person can be compelled to sing the National Anthem if he has genuine conscientious objections based on his religious belief. Hence, the right to speak and the right to express includes the right not to express and to be silent.
  5. Right to fly the national flag: In the case of Union of India v. Naveen Jindal (2004), the Supreme Court held that flying the National Flag with respect and dignity is an expression and manifestation of one’s allegiance and feelings and sentiments of pride for the nation and therefore, is a fundamental right protected under Article 19(1)(a). However, the flying of the National Flag cannot be for commercial purposes or otherwise and can be subject to reasonable restrictions.

Reasonable restrictions on the right to free speech and expression 

The right to free speech and expression is not an absolute right and is subject to reasonable restrictions. As per Article 19(2), restrictions can be imposed upon the freedom of speech and expression in the interests of:

  1. sovereignty and integrity of India,
  2. the security of the state, 
  3. friendly relations with foreign states, 
  4. public order, decency or morality, or
  5. in relation to contempt of court, 
  6. defamation, or
  7. incitement to an offence.

Freedom of assembly [Article 19(1)(b) and 19(3)]

The object of holding an assembly or a meeting is the propagation of ideas and to educate the public. Hence, the right to assemble is a necessary corollary of the right to free speech and expression. Article 19(1)(b) provides for the right to assemble peaceably and without arms. This includes the right to hold public meetings, hunger strikes, and the right to take out processions. However, the assembly must be peaceful and without arms. 

It is pertinent to note that there is no right to hold an assembly on government premises or private property belonging to others. 

In Himmat Lal v. Police Commissioner, Bombay (1972), the Supreme Court struck down a rule that empowered the police commissioner to impose a total ban on all public meetings and processions. It was held that the state could only make regulations in aid of the right of assembly of citizens and could impose reasonable restrictions in the interest of public order but no rule could be prescribed prohibiting all meetings or processions altogether. 

Reasonable restrictions on right to freedom of assembly

According to Clause 3 of Article 19, the right to freedom of assembly could be restricted on the following grounds:

  1. In  the interests of the sovereignty and integrity of India, or
  2. In the interests of public order. 

Freedom to form associations, unions or co-operative societies [Article 19(1)(c) and 19(4)] 

Article 19(1)(c) provides for the right to form associations, unions or cooperative societies. An association refers to a group of persons who have come together to achieve a certain objective which may be for the benefit of the members of the welfare of the general public or a  scientific, charitable or any other purpose. 

The right to form associations is considered as the lifeblood of democracy, as without such a right, the political parties critical to the functioning of a democracy cannot be formed. 

The right to form associations and unions includes the right to form companies, societies, trade unions, partnership firms and clubs, etc. The right is not confined to the mere formation of an association but includes its establishment, administration and functioning as well. 

Some of the facets of the right to form associations are as follows: 

  1. The right to form associations means the right to be a member of an association voluntarily. It also includes the right to continue to be or not to continue to be a member of the association.

In Damyanti v. Union of India(1971), the Supreme Court upheld the right of the members of an association to continue the association with its composition as voluntarily agreed upon by the persons forming the association. 

  1. The right to form an association includes the right not to be a member of an association.
  2. The right under Article 19(1)(c) does not prohibit the state from making reservations or nominating weaker sections into the cooperative societies and their managing committees.
  3. No prior restraint can be imposed on the right to form an association.
  4. There is no fundamental right of recognition of the association or union by the government.
  5. The right to form an association includes no right to achieve the objects of the association.

Reasonable restrictions on right to form association

According to Article 19(4), reasonable restrictions can be imposed on the right to form associations, unions and co-operative societies, etc. on the following grounds:

  1. In the interests of the sovereignty and integrity of India, or 
  2. In the interests of public order or morality.

Freedom of movement and residence [Article 19(1)(d), 19(1)(e) and 19(5)]

Article 19(1)(d) and (e) are complementary to each other and confer a right upon the citizens to move freely or/and to reside and settle in any part of the country.  

Freedom of movement

Article 19(1)(d) provides for the right to move freely throughout the territory of India. This means the right to locomotion, i.e., the right to move as per one’s own choice. This right includes the right to use roads and highways. 

In Chambara soy v. Union of India (2007), some unscrupulous elements had blocked the road due to which the petitioner was delayed in taking his ailing son to the hospital and his son died on arrival at the hospital. The Supreme Court held that the right of the petitioner to move freely under Article 19(1)(d) has been violated due to the road blockage. The Court held that the State is liable to pay the compensation for the death of the petitioner’s son due to the inaction on the part of the State authorities in removing the aforesaid blockage. 

Freedom of residence

Article 19(1)(e) states that it is the fundamental right of every citizen to reside and settle in any part of the territory of India. 

In the case of U.P. Avas Evam Vikas Parishad v. Friends Co-op. Housing Society Ltd.(1995), it was held by the Supreme Court that the right to residence under Article 19(1)(e) includes the right to shelter and to construct houses for that purpose. 

Reasonable restrictions on right to freedom of movement and residence

As per Article 19(5), the right to freedom of movement and residence could be restricted on the following grounds:

  1. In the interests of the general public, or 
  2. For the protection of the interests of any Scheduled Tribe.

Freedom of profession, occupation, trade or business [Article 19(1)(g) and 19(6)]

Article 19(1)(g) provides for the fundamental right of the citizens to practice any profession or to carry on any occupation, trade or business. 

Scope: What’s included and what’s not

  1. The right to carry on a business also includes the right to shut down the business.

In Excel Wear v. Union of India (1978), the Supreme Court declared Section 25-O of the Industrial Disputes Act, 1947, which required an employer to take prior permission from the government for closure of his industrial undertaking, as unconstitutional and invalid on the ground that it violated Article 19(1)(g). 

  1. There is no right to hold a particular job of one’s choice. For example, in the case of closure of an establishment, a man who has lost his job cannot say that his fundamental right to carry on an occupation is violated. 
  2. There is no right to carry on any dangerous activity or any antisocial or criminal activity.
  3. No one can claim a right to carry on business with the government.
  4. The right to trade does not include the right of protection from competition in trade. Thus, loss of income on account of competition does not violate the right to trade under Article 19(1)(g).

The Hon’ble Supreme Court in Vishaka v. State of Rajasthan (1997) has observed that the sexual harassment of working women in workplaces violates the fundamental right under Article 19(1)(g). In this case, comprehensive guidelines and binding directions were issued by the court to prevent the incidents of sexual harassment of women at workplaces in both public and private sectors.

Reasonable restrictions on freedom of profession, occupation, trade or business

Article 19(6) provides that the fundamental right under Article 19(1)(g) can be restricted in the following ways:

  1. By imposing reasonable restrictions in the interest of the general public.
  2. By state monopoly: Sub-clause (ii) of Article 19(6) enables the state to make laws for creating state monopolies either partially or completely in respect of any trade or business or industry or service. The right of a citizen to carry on trade is subordinated to the right of the state to create a monopoly in its favour. 

Also, Sub-clause (i) of Article 19(6) empowers the state to lay down, by law, “the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business”. 

In State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat (2005), the Supreme Court has held that the expression ‘in the interest of general public’ in Article 19(6) 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.

Test of Restrictions under Article 19(2) to 19(6)

The restrictions to be imposed on the fundamental freedoms under Article 19(2) to Article 19(6) must satisfy the following tests:

  1. The restriction must be imposed by or under the authority of a law duly enacted by the appropriate legislature. The law authorising the restriction must be reasonable.
  2. The restriction imposed must be for the particular purpose or object envisaged in the specific clauses, i.e., Article 19(2) to 19(6). There has to be a reasonable nexus between the restriction imposed and the objects mentioned in the respective clause.
  3. The restriction must be reasonable. 

Conclusion

In the landmark case of Maneka Gandhi v. Union of India (1978), the Supreme Court said that it is possible that a right does not find express mention in any clause of Article 19(1) and yet it may be covered by some clause of that Article. This is true for freedom of the press is one such important fundamental right which, though not expressly mentioned, is implicit in Article 19(1)(a).

Lastly, it is noteworthy that earlier Article 19(1) provided for seven fundamental freedoms i.e. Clause(f) provided for the freedom to hold and acquire property which was deleted by the Constitution (Forty-Fourth Amendment) Act, 1978.

References

  • Constitution Law of India, Narender Kumar, Tenth Edn.
  • M P Jain Indian Constitutional Law

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