This article has been written by Sarthak Mittal. This article aims to cover all the reasonable restrictions related to the fundamental rights provided in the Constitution of India. The article delves into the rationale behind the inception of these reasonable restrictions and also discusses the extent and scope of such restrictions. This article also expounds upon the various amendments made to such reasonable restrictions.
It has been published by Rachit Garg.
Table of Contents
James Madison, popularly known as the father of the U.S. Constitution, rightly pointed out that, “If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself.” In the spirit of the given statement, it can be observed that our Indian Constitution is a special document that defines relations between the state and its citizens. The Constitution provides for fundamental rights, which are restrictions on the state. The state has to not only respect but also protect the fundamental rights of citizens. Further, these fundamental rights are curbed by some reasonable restrictions so that, the balance in society is not distorted by the unreasonable acts committed under the garb of such fundamental rights.
Why are reasonable restrictions needed
The Constitution of India,1950 embodies all the fundamental rights in Part III. The said part of the Constitution, through Article 19, confers six rights on Indian citizens, which form the edifice of a democratic nation. These six rights are, namely:
- Right to freedom of speech and expression
- Right to assemble peacefully and without arms
- Right to form associations, unions or co-operative societies
- Right to move freely throughout the territory of India
- Right to reside and settle in any part of the territory of India
- Right to practice any profession or to carry out any occupation, trade or business.
All of these rights are embodied in widely worded provisions, thus it is imperative to impose reasonable restrictions to avoid misuse of the given provisions. Thereby, clauses (2) to (6) provide for various grounds on the basis of which these rights can be restricted. Apart from the various grounds, all the given clauses also provide that the restrictions that are to be imposed should be ‘reasonable’. If reasonable restrictions are not imposed, these rights could be used wrongly. It is pertinent to note that the word ‘reasonable’ preceding the word ‘restriction’ means that the restrictions have the guiding force of logic and not arbitrariness. The word ‘reasonable’ in itself ensures that the restrictions should not be of an excessive nature so as to harm the public interest. Each restriction given under Article 19 is backed by sound reasoning arising out of legislative deliberations.
What are reasonable restrictions in the Indian Constitution
In the Indian Constitution, the word ‘reasonable restrictions’ appears only in Article 19. The expression ‘reasonable restriction’ has not been defined anywhere in the Constitution. Further, in the case of State of Madras v. V.G. Row (1952), the Supreme Court held that the expression ‘reasonable restriction’ can not be reduced to a specific definition nor can a cut-and-dried test be developed to answer whether a restriction is reasonable or not. The test would vary from law to law.
How can fundamental freedoms be restricted
If we carefully peruse Article 19, we can observe that the freedoms given in Article 19 can only be restricted by law. The given law can be an existing law or it can be a new law legislated by the state. The word ‘existing law’ has been defined in Article 366(10) of the Indian Constitution as a law, ordinance, bylaws, rules, or regulations passed or made before the commencement of the Constitution. Thus, restrictions can also be imposed by any of the laws that came into force before January 26, 1950. The restriction can also be imposed by a law passed by the State Legislature, Parliament, or through any ordinance promulgated by the Governor or the President. The constitutionality of restrictions can be judged on the basis of Article 19.
Only the laws that pass the test of reasonableness will continue to be valid. It is pertinent to note that a mere executive act would not be sufficient to restrict the fundamental rights of citizens. The Supreme Court made it clear in the case of Union of India v. Naveen Jindal (2004), that it is only a legislative act that can curb the rights conferred upon a citizen. The court held that the Flag Code of India, 2002 was neither made by a competent authority nor supported by a legislative act; thereby, it was found to be incapable of restricting an Indian citizen’s right to hoist the national flag, which is protected under the right to freedom of speech and expression embodied under Article 19(1)(a).
The rights provided under Article 19 can be restricted on the basis of the grounds embodied in Clauses (2) to (6). In the case of Dharam Dutt v. Union of India (2004), the Supreme Court held that the grounds to restrict the rights under clause (2) to clause (6) differ from one another; this is an indication of the fact that the rights given under clause (1) stand on different pedestals and that each right is based on varying dimensions and philosophies.
Reasonable restrictions on the right to freedom of speech and expression
Article 19(2) provides for the various grounds on the basis of which the right to freedom of speech and expression embodied in Article 19(1)(a) can be restricted. These grounds are as follows:-
The security of the state
The clause prohibits the use of the right to freedom of speech and expression to be exploited by citizens, to incite violence and heinous crimes, which can create circumstances of internal or external aggression. It aims to prohibit all such speeches or expressions, which, if allowed, can result in shaking the foundation of the state, overthrowing the government, waging war, or any other kind of rebellion against the government. In the case of Romesh Thappar v. State of Madras (1950), the order passed by the government of Madras under Section 9(1A) of the Madras Maintenance of Public Order Act, 1949, was challenged by the petitioner. The order prohibited the circulation, sale, and distribution of the journal ‘Crossroads’ on the grounds of maintaining public order and securing public safety. In the said journal, the petitioner used to express his opinions through weekly articles criticising government policies. The petitioner contended that the order infringed on his freedom of speech and expression. The Supreme Court held that Section 9(1A) of the Madras Maintenance of Public Order Act was not protected by Article 19(2) as there is a fine distinction between “public order” and “security of the state”, the latter standing on a higher footing, and thereby, the court held the provision to be unconstitutional to that extent. It is pertinent to note that the words “public order” were also added in Article 19(2) through the Constitution (1st Amendment) Act, 1951.
Friendly relations with foreign states
The said ground was added by the Constitution (1st Amendment) Act, 1951. It is imperative to understand that, as per the recognised principles of international law, the state is seen to be responsible for the acts of its citizens if such acts are detrimental to another state. As per the given principle, various modern systems of law embody provisions that punish libel or slander against the head of a foreign state. The state, on the basis of the given ground, restrains the propaganda of any citizen to jeopardise the state’s friendly relations with another state. In India, the Official Secrets Act, 1923 provides for various restrictions on the given ground.
As discussed above, the said ground was added by the Constitution (1st Amendment) Act, 1951. The said ground was added as an after-effect of the Romesh Thappar case. In the case of Superintendent, Central Prison v. Ram Manohar Lohia (1960), the constitutional bench of the Supreme Court discussed the ambit of the phrase “public order”. The court held that the phrase “public order” has a very wide connotation. The court observed that public order is a basic need of an organised society as it enables the citizens to peacefully pursue their normal activities of life. The court relied on the Hon’ble Justice Patanjali Sastri’s opinion in the case of Romesh Thappar and held that in India, public disorder can be categorised under two heads, one being the aggravated forms of public disorder that can endanger the security of the state, and the second being minor kinds of breaches that are purely of local significance.
The court further held that all the grounds mentioned under Article 19(2) can be brought under the general head of ‘public order’ if the phrase is construed in its most comprehensive sense. However, the legislators used the phrase “public order” on various grounds, knowing that they overlap so that the phrase can be construed in a limited sense. The phrase “public order” can be seen as synonymous with the words public peace, safety, and tranquillity. The court also observed that all the grounds are further limited by the words “reasonable” and “in the interest of” used in Article 19(2), wherein the word “reasonable” ensures that the restriction has a reasonable relation to the object that the legislation seeks to achieve and prevents the restriction from being excessive. The words “in the interest of” make it necessary that the restriction be based on a particular ground mentioned under Article 19(2). The restrictions on the grounds of public order can prohibit any speech or expression which can cause a menace to public order and tranquillity, riots, or loud and raucous noise. In the case of P.A. Jacob v. the Superintendent of Police Kottayam (1993), the Kerala High Court held that the freedom of speech and expression does not include the use of loudspeakers or sound amplifiers.
Further, in the case of Babulal Parate v. State of Maharashtra (1961), Section 144 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) was challenged before the Supreme Court to the extent that an order was passed under it to restrict the freedom of speech and expression. The given provision falls under the chapter providing provisions for “maintenance of public order and tranquillity” whereby the provision enables the appropriate executive magistrate to pass a written order directing a person or persons to abstain from doing certain acts. The given order is given when the magistrate is of the opinion that such direction is likely to prevent obstruction, annoyance, or injury to public tranquillity, or that it may prevent a riot or an affray. The given provision was challenged on the grounds that it was an unreasonable restriction under Article 19(2) because the order under Section 144 was passed on the mere apprehension of public order being disturbed. The court held that anticipatory actions taken to prevent disorder will fall within the ambit of the protection provided under Article 19(2). Later, in the case of State of Bihar v. Kamla Kant Misra (1969), it was observed by the Apex Court that the order passed under Section 144(6) of the CrPC can extend the life of an order passed by the magistrate beyond a period of two months. The court held that such an order would be an unreasonable restriction on the freedom of speech and expression.
Decency or morality
Decency can be construed as a lack of obscenity. The restriction on the grounds of decency and morality is primarily based on striking a balance between an individual’s right to express himself and the state’s duty to protect morals. The word “morality” or “morals” can not be defined as it is a concept that changes with the passage of time. The basic rationale behind such restrictions is to prevent the right to freedom of speech and expression from being exploited to deprave and corrupt the community. Thereby, the state can suppress and even punish such actions that promote indecent and obscene material. Sections 292 to 294 of the Indian Penal Code, 1860 penalise a person for selling, hiring, distributing, importing, exporting, or conveying any obscene material like a book, pamphlet, paper, writing, drawing, painting, representation, song, figure, or any other object.
Further, the Indecent Representation of Women (Prohibition) Act, 1986 was passed by the government to prohibit and punish the circulation of any obscene or indecent material relating to women. In the case of Ranjit D. Udeshi v. State of Maharashtra (1965), the Supreme Court held that Section 292 of the Indian Penal Code is constitutional as it is protected under Article 19(2) of the Indian Constitution. The court observed that the given provision will fall within the ground of ‘decency or morality’ given under Article 19(2). In the given case, the court followed the Hicklin Test to determine whether a specific material is obscene or not. As per the given test, it is to be seen in whose hands such material falls and whether the given material has the potential to deprave and corrupt the minds of the receiver or not.
In the latter case of S. Khushboo v. Kanniammal (2010), the Apex Court moved away from the Hicklin test and held that when literature is alleged to be obscene, the specific words or pieces of the literature are not to be magnified to find the said obscenity. Rather, the court should see the literature as a whole and then assess its impact on the minds of the readers. If the overall effect of such literature is not the corruption of the mind, it cannot be called obscene. The court also made a distinction between vulgarity and obscenity. The court held that the mere use of a few vulgar words did not make the entire literature obscene. The court held that “vulgarity” is said to arise from a feeling of disgust or aversion; however, it does not deprave the morals of any person, whereas “obscenity” should be adjudged on the basis of the contemporaneous community standards that reflect the tolerance of an average, reasonable person.
Contempt of court
Contempt of court is another reasonable restriction imposed on the fundamental right to freedom of speech and expression. The rationale behind contempt actions is not to protect the judges from scrutiny by the public; rather, it is to preserve the authority of the judicial mechanism. In the case of Ambard vs. Attorney General for Trinidad and Tobago (1936), it was observed by the privy council that even judges are open to public criticism, and if a reasonable argument is put forth against any judicial act alleging such act to be against public policy or contrary to law, the court will have no power to initiate the contempt proceedings. In the case of M.R. Parashar v. Farooq Abdullah (1984), then Chief Justice Y.V. Chandrachud held that courts must be reluctant to initiate contempt proceedings; they should be initiated only in cases where it becomes necessary to uphold the rule of law. It was also held that in cases of contempt proceedings, judges also act as prosecutors to punish the person accused of contempt, and in no case should the proceedings give the impression that the judges are acting in their own defence through such proceedings.
In India, Articles 129 and 215 of the Constitution of India empower the Supreme Court and the High Courts to punish for their contempt, whereas, it is the Contempt of Courts Act, 1971 which defines the powers of the High Court to punish for contempt of a subordinate court. Section 2(a) of the Contempt of Courts Act categorises contempt as civil and criminal contempt. Section 2(b) defines civil contempt as wilful disobedience of any order of the court, and Section 2(c) defines criminal contempt as any kind of publication that scandalises or lowers the authority of the court, prejudices or interferes with the judicial proceedings or administration of justice. In the case of E.M. Sankaran Namboodripad v. T. Narayannan Nambiar (1970), the Supreme Court upheld the court’s power to punish for contempt and held that Articles 129 and 215 are not subject to Article 19(1)(a).
The right to freedom of speech and expression can not be used to diminish a person’s reputation or credit in the opinion of others. The act of defamation is a tort as well as an offence under Section 499 of the Indian Penal Code, 1860. If a person is found guilty of defamation, he can be held liable for the punishment of simple imprisonment for up to a period of two years under Section 500 of the Indian Penal Code. In the case of Subramanian Swamy v. Union of India (2016), the Supreme Court held that, by virtue of Article 21, every person has a right to live with dignity, which also extends protection to his reputation. It was further held that nobody has the right to denigrate others.
Incitement of an offence
The following ground was added by the Constitution (1st Amendment) Act, 1951. During the Parliamentary debates, the proposal of using the word “violence” instead of the word “offence” was moved. The reasoning behind the given proposal was that the word “offence” has a very wide meaning and can include all the acts punishable under the Indian Penal Code and other special and local laws. However, the given proposal was rejected, and the word “offence” was incepted in Article 19(2). Chapter V of the Indian Penal Code provides various provisions that define and penalise the abetment of an offence. Instigation has been provided as one of the modes through which a person can be abetted. Thereby, no person can use his right to freedom of speech and expression to incite another person to commit an offence. It is pertinent to note that Section 109 of the Indian Penal Code does not differentiate between the person committing the offence and the person abetting the offence while making a person liable for the punishment of an abetted offence. The restrictions on the given ground were upheld in the case of State of Bihar v. Shailabala Devi (1952).
Sovereignty and integrity of India
The following ground was added by the Constitution (Sixteenth Amendment) Act, 1963. The given ground was added to prohibit any material that may be used to assail the territorial integrity and sovereignty of India. “Territorial Integrity” herein refers to the Territorial demarcation of India as a whole and not the demarcation of states. The Constitution itself provides for a mechanism to change the territorial demarcation of the constituent states under Article 3 of the Constitution. The word “sovereignty” herein means that India should be bound by law made by its own Parliament.
Reasonable restrictions on the right to assemble peaceably and without arms
The right to assembly embodied under Article 19(1)(b) includes the right to hold meetings and take out processions. Article 19(1)(b) itself imposes two restrictions, namely, to assemble ‘unarmed’ and for the processions and assemblies to be ‘peaceful’. Article 19(3) of the Indian Constitution further provides that the state can legislate laws to impose reasonable restrictions on the given right. Article 19(3) also provides that the given restrictions can only be in the interest of public order or the sovereignty and integrity of India. The Indian Constitution allows peaceful meetings that are for discussing public affairs or for purposes of education or leisure. The freedom to hold these kinds of meetings forms a bulwark of real democracy. However, the Constitution prohibits riotous or disorderly assemblies under Article 19(3). The Supreme Court in the case of Babulal Parate v. State of Maharashtra (1961) held that public order has to be maintained in advance, and thereby, even anticipatory actions can be taken to obviate the circumstances of any disorderly conduct.
Laws imposing reasonable restrictions on the right to assemble peaceably
The grounds of “public order” and “sovereignty and integrity of India” have to be construed in the same sense as done in Article 19(2). Further, it is imperative to note that the state has legislated various laws through which the given restrictions can be imposed. Provisions like Section 141 of the Indian Penal Code define unlawful assembly. Further, in the case of Mahendra Bahadur Singh v. State (1953), the Madhya Pradesh High Court held that, unlike the US constitution, the Indian Constitution does not confer upon its citizens the right to bear arms; thus, the Arms Act, 1959 which imposes restrictions on the bearing of arms, does not violate the right to assembly. Further, the state government has been empowered to declare the whole state or any part of it as a proclaimed area under the Seditious Meetings Act, 1911.
Further, police authorities have been conferred with the power to issue licenses defining the conditions under which assemblies or processions are to take place under Section 30 of the Police Act, 1861. The purpose of the given provision is to prevent the disturbance of public peace and tranquillity. The provision also empowers the police authorities to disperse the assembly if it violates any of the conditions imposed by the licence. Furthermore, the executive magistrates have been empowered to issue orders under Section 144 of the Code of Criminal Procedure, 1973, to impose restrictions on the holding of public meetings. The order under Section 144 is given when the magistrate is of the opinion that such direction is likely to prevent obstruction, annoyance, or injury to public tranquillity, or that it may prevent a riot or an affray.
Section 129 of the same Code empowers the police authorities and executive magistrate to disperse any unlawful assembly or any assembly of five or more persons who are likely to cause disturbance to the public peace. The given provision also allows the authorities to use reasonable force to disperse the assembly. The given provision is to be read with Section 151 of the Indian Penal Code, which makes the non-dispersal of the assembly after a lawful command to do so an offence punishable with imprisonment up to a period of six months, a fine, or both.
It is pertinent to note that the right to take out processions is implicit in the right to assemble. In the case of Saiyid Manzur Hassan V. Saiyid Mohammed Zaman (1925), it was held by the privy council that there exists a right to take out religious processions even when such processions are along the highways. However, such processions should be subject to the restrictions imposed by the state, and the usage of public highways should not be affected. The Supreme Court in the case of Rakesh Vaishnav v. Union of India (2021), held that the farmers protesting against the three controversial Farm bills near the Delhi Highways have the right to protest, but they cannot block the roads for public usage. The court in the given case reiterated that the right to protest is a fundamental right, but it has to be exercised subject to public order. The court held that there can be no impediment to the exercise of the given right as long as it is non-violent and does not cause damage to the lives and properties of other citizens.
Reasonable restrictions on the right to form associations, unions or co-operative societies
The right to form associations embodied in Article 19(1)(c) has a very wide scope as it guarantees the freedom to form various organisations for the citizens of India. It provides that an individual can form organisations like political parties, clubs, societies, companies, organisations, partnerships, trade unions, and any other body wherein individuals come together due to common and shared interests. In the case of All India Bank Employees Association v. National Industrial Tribunal (1962), it was held by the Supreme Court that the right to form an organisation is protected under Article 19(1)(c) irrespective of whether the objective of the organisation is achieved by it or not. For example, trade unions are generally made to take advantage of collective bargaining; if a trade union is made and the said trade union fails to reap the benefits of collective bargaining in the respective industry, the trade union can not be asked to cease its operations.
It is pertinent to note that the given right to form associations, unions, or co-operative societies is not absolute, and the same can be restricted through the imposition of reasonable restrictions on the grounds provided in Article 19(4). In the case of Dharam Dutt v. Union of India (2004), it was held by the Supreme Court that any restriction on the formation and continuation of any organization under Article 19(1)(c) will be judged on the anvil of the grounds provided under Article 19(4). The restrictions under Article 19(4) can be initiated in the interest of the sovereignty and integrity of India, public order, or morality.
The grounds are to be construed in a similar sense as was done in the previous provisions. In the case of O.K. Ghosh v. E.X. Joseph (1963), the Supreme Court expressly held that the phrase “public order” used in Article 19(4) has the same colour as in Article 19(2), which makes the phrase synonymous with public peace, safety, and tranquillity. In the case of D.A.V. College v. State of Punjab (1971), the restriction imposed by the state to get the educational institution mandatorily registered with a university was challenged on the grounds that it infringed the right conferred by Article 19(1)(c). It was held by the Supreme Court that Article 19(4) can impose reasonable restrictions on the formation as well as on the continuation of the organisation, and thereby, the restriction imposed by the state was upheld.
In the recent case of Central PWD Engineers Association and Anr. v. Union of India and Ors. (2023), the division bench of the Delhi High Court held that government servants cannot be excluded from the protections granted by Part III of the Indian Constitution. The duties that they may discharge might involve certain restrictions on freedoms provided under Article 19. However, by virtue of Article 19(1)(c), even government employees have the right to form associations, unions, or co-operative societies. The court held that the right to form such organizations is a fundamental right; however, the right to get them recognised by the government is not protected under Article 19(1)(c). In the case of S. Ramakrishnaiah v. District Board, Nellore (1952), the Madras High Court held the restriction imposed by the government on the municipal teachers to not join any union to be unreasonable. In the case of P. Balakotaiah v. Union of India (1958), the Supreme Court laid down an obiter dictum that even government servants can enjoy the rights embodied in Article 19(1)(c).
Reasonable restrictions on the right of movement and right to settle
It is Article 19(1)(d) that confers upon an Indian citizen the right to move freely throughout the territory of India. The given right overlaps with the right to settle and reside anywhere in India provided by Article 19(1)(e) of the Constitution. Article 19(5) provides grounds on the basis of which reasonable restrictions can be imposed on the rights provided in clauses (d) and (e). The following rights, not being absolute, can be restricted in the interest of the general public and for the protection of any scheduled tribes. It is imperative to encourage the ideas of fraternity, unity, and integrity of the nation as provided by the Preamble of the Indian Constitution.
Externment and internment orders
The orders passed by the state to prohibit a person from residing or entering a specific place are called ‘externment orders’. On the other hand, orders passed by the state prohibiting a person from leaving a particular place are called internment orders. It is apparent from the nature of the orders that they curtail the rights embodied in clauses (d) and (e) of Article 19 thereby, such kinds of orders are to be passed on the basis of the grounds provided in Article 19(5). The Supreme Court upheld the constitutional validity of the externment order in the case of N.B. Khare v. State of Delhi (1950). Further, In the case of State of Madhya Pradesh v. Baldeo Prasad (1961), it was held by the Supreme Court that if an enactment empowers the state to impose externment orders, it is also necessary for the given enactment to provide reasonable condition precedents for the exercise of the said power.
In the recent case of Deepak S/o Laxman Dongre v. State of Maharashtra (2022), the division bench of the Supreme Court held that the state is empowered to pass orders imposing reasonable restrictions on the exercise of rights conferred by clause (d) of Article 19. An order of externment passed under Section 56 of the Maharashtra Police Act, 1951 is an extraordinary measure that prohibits a person from entering a particular area. The order clearly infringes Article 19(1)(d); thereby, the order must stand the test of reasonableness. The court observed that orders of such kinds prevent the person from staying in his own house with his family members during the period for which the order is in force. This order, in a practical sense, has the effect of depriving a person of livelihood; thereby, the power to pass such orders should be used sparingly in only extraordinary cases.
Reasonable restrictions imposed in the interest of the general public
In the case of Ebrahim Vazir Mavat v. State of Bombay (1954), the constitutionality of Section 7 of the Influx from Pakistan (Control) Act, 1949 was challenged before the Supreme Court. The given provision empowered the Central Government of India to remove any person from India if such a person has committed or is suspected of having committed any offence under the given Act. The court held that the given provision is unconstitutional as it imposes an unreasonable restriction on the freedoms embodied in clauses (d) and (e) of Article 19(1). The court opined that the law subjected the citizens to an extreme penalty by virtually forfeiting their citizenship due to a breach of permit regulations provided in the Act or on the basis of mere suspicion. The court held that the penalty imposed by the provision cannot be justified on the ground that it imposes a reasonable restriction.
In the case of the State of Uttar Pradesh v. Kaushaliya (1964), it was held by the court that a person practising prostitution can be restricted from moving to protect the public from the harmful effects of prostitution. Further, in the case of Ajay Canu v. Union of India (1988), the Supreme Court held that the restriction to wear a crash protection helmet is not violative of the right embodied in Article 19(1)(d) as it is a reasonable restriction in the interest of the general public. In the case of Kharak Singh v. State of Uttar Pradesh (1963), The court expounded upon the rights of a habitual offender and held that watching and shadowing such a person to keep track of his movements and activities is reasonable under Article 19(5).
Restriction for protection of the interests of the scheduled tribes
Indigenous people have unique cultures and ways of relating to people and the environment. These indigenous people have sought recognition for their identities, ways of life, and rights to traditional lands, territories, and natural resources. India voted in favour of the United Nations Declaration on the Rights of Indigenous People. The given vote was based on the condition that, after independence, all Indians would be considered indigenous. Therefore, like in other countries, India does not have the concept of indigenous people. However, in the 2011 census, India recognised 705 tribal groups. The given groups are highly concentrated in various belts of the northeast part of India and in Rajasthan and West Bengal. These communities were recognised as Scheduled Tribes under Article 342(2) of the Indian Constitution. The Constitution provides for various safeguards to protect Scheduled Tribes. One of the safeguards is that the state can impose reasonable restrictions on any citizen from settling, residing, or moving through places that are the native lands of such Scheduled Tribes. These safeguards are incepted to protect the distinct culture, language, manners, and customs of these tribes.
Reasonable restrictions on the right to trade and occupation
Article 19(1)(g) of the Indian Constitution confers on the citizens of India the right to practice any profession or to carry out any occupation, trade, or business of their own choosing. In the case of Sodan Singh v. New Delhi Municipal Committee (1989), the Supreme Court clarified the expressions ‘profession’, ‘occupation’, ‘trade’ and ‘business’ used in Article 19(1)(g) are distinct from each other. The court held that the word ‘profession’ is used when the person earns his living by virtue of his personal and specialised qualifications, training, or skill. Whereas, the expression ‘trade’ is used when a person is engaged in activities of bargaining or sale for profit. The word ‘trade’ includes the buying, selling, and exchange of both goods and services. The word ‘business’ on the other hand, is used when a person is engaged in economic activity which requires the attention of labour to derive profit from capital invested. The word ‘occupation’ is the widest of all, which includes within it any regular work, profession, job, principal activity, employment, business, or calling in which the person is engaged.
The given freedom is not absolute and can be curtailed reasonably under Article 19(6) in the interest of the general public. Further, sub-clause (1) of Article 19(6) provides that the state can prescribe certain specific professional and technical qualifications for carrying on a particular trade, profession, or trade. It is also imperative to understand that India, being a mixed economy, reflects both socialistic and capitalistic characteristics. Thereby, sub-clause (2) of Article 19(6) enables the state to carry on certain trade, business, industry, or service by itself or through a state-owned corporation. The provision also provides that such operations being carried out by the state can be of partial or complete exclusion to the citizens.
Restrictions in the interest of the general public
It is imperative to understand that the restrictions imposed on Article 19(1)(g) have to go through two tests. Firstly, the restriction should be reasonable, and secondly, the restriction should be in the interest of the general public. The expression “ in the interest of the general public” was deliberated upon in the case of the Municipal Corporation of the City of Ahmedabad v. Jan Mohammed Usmanbhai (1986), wherein the Supreme Court held that the expression has to be construed in a wider sense. The court held that the expression can include within it restrictions for the preservation of public order, public health, public security, morality, and the economic welfare of the community. The court further held that restrictions can also be imposed on Article 19(1)(g) to achieve any of the objectives enshrined under Part IV of the Indian Constitution. The court also observed that for the restriction to be reasonable it will have to be varied according to the nature and existing circumstances of the occupation to which it is to be applied.
In the case of State of Gujarat v. Vora Saiyedbhai Kadarbhai (1995), the Supreme Court held that the activity of money-lending is entitled to be protected under Article 19(1)(g) however, the court observed that unscrupulous money-lending to economically weaker sections is reprehensible. Thereby, the court upheld the Gujarat Rural Debtors Relief Act, 1976 the aim of which was to ameliorate the position of rural people stuck in a debt trap. The court observed that the given Act was a reasonable restriction under Article 19(6).
The court also passed the Essential Commodities Act, 1955 in furtherance of Article 19(6). The given act empowers the central government to control the production, supply and distribution of essential commodities. The phrase “in the interest of the general public” empowers the state to impose restrictions to protect the citizens from economic exploitation at the time of the scarcity of essential commodities by the people involved in the trade of such commodities. These kinds of restrictions can even be anticipatory in nature.
In the case of U. Unichoyi v. State of Kerala (1962), the Supreme Court upheld the constitutionality of the Minimum Wages Act, 1948. The Court observed that the policy behind the Act was to protect the interests of sweated labour. The Court also held that even though the citizens have a fundamental right to carry on business, the restriction to provide minimum wages to the labour is a reasonable restriction protected under Article 19(5), and thereby, it is to be mandatorily followed. The minimum wages are not only for clothing the workers with the bare essentials but also for preserving their efficiency.
The requirement of procuring a licence before starting a particular business or trade is also considered a reasonable restriction, and the terms on which such a licence is granted can be tested on the anvil of Article 19(6). In the case of Diwan Sugar and General Mills Pvt. Ltd. v. Union of India (1959), the Supreme Court upheld the requirement of a licence to conduct the business of essential commodities under the Essential Supplies (Temporary Powers) Act, 1946 which was later replaced by the Essential Commodities Act, 1955. However, in the case of R.M. Seshadri v. District Magistrate, Tanjore (1954), the Supreme Court declared the condition in the licence regulating the length of an approved film is unreasonable under Article 19(6). The Court held that the conditions, which are worded widely, are bound to operate harshly and thereby be regarded as unreasonable.
It is pertinent to note that taxes are very distinct from the requirement of licences, as the purpose of taxes is to raise revenue whereas the purpose of licences is to regulate business and trade. The imposition of taxes, irrespective of their excessiveness or otherwise, can not be challenged on the basis of Article 19(1)(g) and Article 19(6). This proposition of law has been affirmed by the Supreme Court in the case of Express Hotels Pvt. Ltd. v. State of Gujarat (1989). However, in the case of Mohd. Yasin v. Town Area Committee (1952), the court held that paying taxes can not be a pre-requisite for carrying on business. Thereby, the state can not prohibit a person from exercising his right under Article 19(1)(g) due to his default in paying taxes.
The proverb ‘excess of everything is bad’ confines wisdom for all ages. It has been observed time and again how the excess of rights in the hands of citizens is exploited unreasonably by a few to harm the society for whose protection these rights were incepted in the first place. Therefore, reasonable restrictions are essential to prohibit any unscrupulous use of such rights.
The word ‘reasonable’ under clause (2) to (6) of Article 19 has broadened the ambit of judicial review for the laws brought by the legislature in furtherance of the reasonable restrictions that are to be imposed on the fundamental rights provided under Article 19. However, all these reasonable restrictions have to be examined by the courts in light of the purpose of the legislation through which they are imposed and the effect they have on fundamental rights. Indian citizens are fortunate to have had their forefathers give them such a wide set of fundamental rights, but the citizens do have a duty to use them responsibly. This responsibility of the citizens is not owed to any government, to any magnate, or to a politician, but only to the ideas and purposes enshrined in the Constitution.
Frequently Asked Questions (FAQs)
On whom does the burden of proof lie to prove the reasonableness of restrictions?
In the case of Mohd. Faruk v. State of Madhya Pradesh (1969), it was held by the Supreme Court that once the petitioner has successfully proved that the law made by the state is invading the freedom embodied in Article 19(1), the burden of proof lies on the state to prove that the invasion is only to a reasonable extent. In the case of Nawabkhan Abbaskhan v. State of Gujarat (1974), it was held by the Supreme Court that as the restrictions grow stringent the burden of proof on the state will also grow heavier. Apart from this the simple rule of evidence also applies in such cases whereby, proving a positive is easier than proving a negative thereby, the courts require the parties to prove the reasonableness and not to prove the unreasonableness.
What are the restrictions provided under Article 304(b)?
Clause (b) of Article 304 provides that the State legislature can impose ‘reasonable restrictions’ on the freedom of trade, commerce and intercourse on the grounds of ‘public interest’. However, any amendment or Bill passed under Article 304(b) requires the assent of the President. The given provision can be seen as an extension of Article 19(6) and similar to the Parliament’s power embodied in Article 302. However, obtaining the assent of the President is not a pre-requisite in Article 302.
Why is the ground of sedition not provided in Article 19(2)?
In India, “Sedition” is an offence by virtue of Section 124A of the Indian Penal Code, 1860. In the case of Kedar Nath Singh v. State of Bihar (1962), the constitutional validity of Section 124A was upheld by the constitutional bench of the Supreme Court. The court in the given case heavily relied on the definition of ‘sedition’ held by the court in the case of Niharendu Dutt v. Emperor (1942). The gist of the offence of sedition was thus provided as words written or spoken that had a tendency or intention of creating public disorder or disturbance in law and order. The ground of “public order” given under Article 19(2) is broad enough to include restrictions of sedition within it.
The court also observed that the word ‘sedition’ was removed from the draft Article 19(1) by the framers of the Constitution, which showed that they never intended to regard disaffection or bad feelings towards the government as a justifying ground to restrict the freedom of speech and expression, unless the speech or expression of such a nature had the tendency to overthrow the government.
Are educational institutions protected under Article 19(1)(g) of the Indian Constitution?
Earlier there existed a dichotomy of opinions on the issue of imparting education being a business, trade or occupation. In the case of Unnikrishnan, J.P. v. State of Andhra Pradesh (1993), the Supreme Court held that educational institutions are not for profit-making purposes and so are, not generally protected under Article 19(1)(g). In the later case of T.M.A. Pai Foundation v. State of Karnataka (2002), the courts held that the word ‘occupation’ in Article 19(1)(g) is wide enough to include the activity of imparting education within it. The same court after a year held in the case of Islamic Academy of Education v. State of Karnataka (2005), that educational institutions can not be allowed to be used for profiteering and directed the appointment of state-specific committees to regulate fee structure and admission process of the private universities.
It was in the same year, when the court in the case of P.A. Inamdar v. State of Maharashtra (2005), held that educational institutions can be set up for both profit-making and charitable purposes. The court clarified that educational institutions for profit-making purposes will be protected under Article 19(1)(g). The court further held that unaided non-minority educational institutions can be regulated under Article 19(6) to prevent profiteering and for the selection of non-meritorious candidates.
Are immoral occupations granted protection under Article 19(1)(g)?
In the case of Krishna Kumar Narula v. State of Jammu and Kashmir (1967), the Supreme Court negated the popular contention of excluding immoral occupations from the ambit of Article 19(1)(g). The court further held that the ambit of protection granted by such an imperative fundamental right can not be based on the prevailing standards of morals. The concept of morality can act as a guiding force whilst imposing restrictions however, it can not be used to limit the scope of a fundamental right. In the case of State of Bombay v. R.M.D. Chamarbaugwala (1957), the Supreme Court further clarified that morality can not decide the ambit of expressions like ‘occupation’, ‘trade’, ‘business’ or ‘profession’. The court further held that by the morals prevailing in society, we can single out some activities that would not fall within the ambit of these expressions. Such activities can be gambling or adulterating of food.
The given interpretation was adopted by the Supreme Court and applied in the case of Har Shankar v. Excise and Tax Commissioner (1975), where the business of liquor was also held to be an immoral activity which is out of the purview of Article 19(1)(g). It is pertinent to note that the liquor trade even though legal is always treated by the state on a different footing which is reasonable due to the harmful effects of intoxication. The state has deliberately monopolized the liquor trade by granting a limited number of licenses to control the supply which is reasonable.
- V.N Shukla’s Constitution of India (13th edition)
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