This article is written by Pragya Agrahari of Amity Law School, Lucknow. This article provides a detailed analysis of the right of freedom provided by our Constitution.
It has been published by Rachit Garg.
Introduction
The word ‘freedom’ essentially means ‘not to be restricted in any sense’. This concept of ‘freedom’ is very popular among the western political thinkers. One of which is Isaiah Berlin, a British philosopher who gave the idea of negative and positive freedom in his essay, “Two Concepts of Liberty”. He defined negative freedom as freedom from any external constraints and the freedom to do whatever one likes to do without any limitations. Whereas positive freedom refers to self-determination and self-rule over one’s life and life’s decisions. The difference between the two is that negative freedom connotes freedom to do or not to do anything whereas positive freedom refers to the idea of self which is not restricted or controlled by others.
Hence, freedom includes various rights of an individual like the right to movement, right to speech and self-expression, right to religion, right to travel, right of occupation, right of self-identity, right to property, etc. In order to provide these rights to an individual, the state should less interfere in the affairs of an individual. It should act as a minimal state. Every democratic state provides necessary liberty to its individual in the form of these freedoms. Even in a democratic state like India, these freedoms have been provided in the Constitution in the form of fundamental rights.
What is the right to freedom
Right to freedom, according to the Indian Constitution, refers to the fundamental rights given under Article 19 to Article 22. The aim of these rights is to promote the ideals of liberty held by the Preamble in newly independent India, in order to remove inequalities amongst the individuals and to entitle all the individuals to a dignified life.
Article 19 of the Indian Constitution
Article 19(1) of the Indian Constitution provides six freedoms to the citizens, namely:
- Freedom of speech and expression (Article 19(1)(a)),
- Freedom of assembly (Article 19(1)(b)),
- Freedom of association (Article 19(1)(c)),
- Freedom of movement (Article 19(1)(d)),
- Freedom to residence and settlement (Article 19(1)(e)),
- Freedom of profession, occupation, trade or business (Article 19(1)(g)).
Earlier, there were seven freedoms but one of them, namely, ‘right to acquire, hold and dispose of property’ was omitted by the 44th Amendment Act, 1978.
These six freedoms are only available to citizens, that is, only natural persons having the status of ‘citizenship’ under a law. It means the determination of citizenship under Part II of the Constitution is a condition precedent for claiming rights under Article 19. Aliens, foreigners, juristic persons, registered companies, or societies are not entitled to such rights.
Freedom of speech and expression: Clause(1)(a)
This freedom provides individuals liberty to express one’s views, opinions, and beliefs whether oral, in writing, in print form, through pictures or any other mode. It is the bulwark of a healthy and democratic society. But it does not mean that one can express whatever one likes to. There are ‘reasonable restrictions’ on these rights.
Although it is not specifically mentioned, this freedom also includes various other freedoms:
- Freedom of press: It includes freedom to print and publish whatever one likes, subject to reasonable restrictions, and without anyone’s previous sanction. Therefore, pre-censorship on publication of any news, article, book, etc is a violation of Article 19(1)(a). In Romesh Thappar v. State of Madras (1950), Supreme Court observed that “Freedom of Speech and of Press lay at the foundation of all democratic organisations, for without free political discussion, no public education, so essential for the proper functioning of the process of Government, is possible.”
- Right to information: Right to know, receive and impart information was recognised as an aspect of freedom of speech and expression, which was later finally incorporated in the Right to Information Act, 2005.
- Right to remain silent: This also includes the right to not speak or remain silent. In Bijoe Emmanuel v. State of Kerala (1986), SC held that students who did not sing the National Anthem did not commit any offence as there is no law under which their right of speech and expression can be curtailed.
Freedom of assembly: Clause(1)(b)
This freedom includes the right to assemble in a group to take out processions and hold meetings. The purpose of these meetings can be educational or for the purposes of political, social, and religious awareness. The only prerequisite was that the object of the assembly should not be illegal, otherwise, it would fall into the category of the offence of ‘unlawful assembly’ given under Section 141 of IPC, wherein ‘assembly of five or more persons will be unlawful if its object was illegal’.
This freedom of assembly is subject to two limitations, namely:
- The assembly must be unarmed, and
- The assembly must be peaceful.
States may also impose some reasonable restrictions in the interests of public order, sovereignty and integrity of India. For example-
- Under Section 129 of Code of Criminal Procedure, Magistrate and police officers are authorised to dispense unlawful assembly which is susceptible to disturbing the public peace.
- Under Section 144 of Code of Criminal Procedure, the Magistrate is empowered to issue orders in case of an emergency which includes imposing restrictions on public meetings and gatherings.
- Under the Prevention of Seditious Meetings Act, 1911, the State Government is empowered to declare any area as a ‘proclaimed area’, where no public meetings can be organised without 3-days prior notice to the Magistrate.
Freedom of association: Clause(1)(c)
This freedom includes the right of an individual to come together and form an association or union with some common aims or objectives and with a legitimate purpose in mind. But mere membership of the banned organisation does not make its members ‘criminal’ on its own unless their members have been involved in the said violence or any other disturbing behaviour. The association can comprise political parties, clubs, trade unions, societies, companies, etc. This right also includes the right not to join an association and the right to its continuance. But it does not carry the concomitant right that such association or union should be able to achieve its desired objectives.
In the case of S. Ramakrishnan v. District Board (1951), the Supreme Court held the government order which requires municipal teachers not to join an association or union without its previous approval, as invalid as it is violating fundamental right provided in Article 19(1)(c).
Clause(4) empowers the State to impose reasonable restrictions on the exercise of freedom of association/union in the interest of sovereignty and integrity of India, public order and morality.
Freedom of movement: Clause(1)(d)
This freedom includes the right to move without any restriction. But the State is empowered to impose reasonable restrictions on this right under Clause (5) in the interests of the general public or for the protection of the interest of Scheduled Tribes. The state is empowered to impose reasonable restrictions on the movement of outsiders upon entry into the area inhabited by tribes in order to protect the culture, tradition, language, etc. of aboriginal tribes, living in different parts of the country like Assam and the areas belonging to the North-East.
In the case of Ebrahim Vazir v. State of Bombay (1952), where the citizen of India was ordered to be deported to Pakistan after his arrest as he returned to the country without a permit, it was held that the particular section which legalises it, was unconstitutional. Laws such as requiring the wearing of helmets while driving cannot be said to violate freedom of movement. Similarly, mere watching or surveying the offenders for keeping an eye on their movement and their activities is not infringing their right to movement.
Freedom of residence and settlement: Clause(1)(e)
This freedom includes the right of citizens to travel to any part of the country and settle down there. The purpose of this right is to ensure citizens that they can move freely throughout the country without any internal barriers and settle down in any part of the country.
But this is subject to reasonable restrictions, which the State can impose in the interests of the public and the protection of the interests of Scheduled Tribes. Hence, the restriction on the right of residence of habitual offenders was upheld as it was a reasonable restriction in regard to the interest of the general public.
In the case of Dhan Bahadur Ghorti v. State (1952), a custom of a tribal area that does not allow Nepali or any foreigner to stay in that tribal area without the permission of the Deputy Commissioner was upheld to protect the interests of tribal people.
Freedom of profession, occupation, trade or business: Clause(1)(g)
This freedom guarantees all citizens the right to profess any occupation, trade or business. In Sodan Singh v. New Delhi Municipal Committee (1989), Justice Kuldip Singh has defined these four expressions as:
- ‘Profession’ means an occupation carried on by a person by virtue of his personal and specialised qualifications, training or skill.
- ‘Occupation’ means any regular work, profession, job, employment, or business in which an individual is engaged.
- ‘Trade’ means any bargain or sale, any occupation or business carried on for subsistence or profit, it is an act of buying and selling goods and services.
- ‘Business’ includes anything which occupies the time, attention and labour of a man for the purpose of profit.
Clause (6) imposes reasonable restrictions on this right in the interest of the general public and enables the State to carry on any trade or business to the exclusion of private citizens wholly or partially. It means the State can monopolise any business or trade. The State also has the right to close businesses or trade on the public streets. This clause empowers the State to prescribe professional and technical qualifications necessary for carrying out any profession, trade, business or occupation.
In the case of Vishakha v. State of Rajasthan (1997), it was held that sexual harassment at the workplace is a violation of the victim’s fundamental right under Article 19(1)(g). On the question of whether ‘education’ can be trade, business or profession, in the case of Unni Krishnan v. State of Andhra Pradesh (1993), it was held that education can never be a trade, occupation or business. Justice Gajendragadkar held that, “Education in Its true aspect is more a mission and a vocation rather than a profession, trade or business.” But later in the case of TMA Pai Foundation v. State of Karnataka (2002), it was observed that education can never be regarded as a trade or business where profit is the motive. But education will fall within the meaning of the expression ‘occupation’, which is defined as “an activity in which one engages” or “a craft, trade, profession or other means of earning a living“.
Restrictions on the freedom of speech and expression
Clause(2) of Article 19 provides reasonable restrictions applicable to this freedom. These restrictions comprise the following:
Sovereignty and integrity of India
It refers to the territorial integrity of the State. This ground was added by the 16th Amendment Act, 1963. It was added to restrict the kind of speech which can be detrimental to the integrity of the nation and would promote succession from the country undermining its sovereignty.
Security of the State
There is always a continuous threat to the security of any nation. There were attempts to overthrow the present government or incite violence in the country, hence, this ground restricts the freedom of speech and expression which would result in inciting danger to the State. In the case of Romesh Thappar v. State of Madras (1950), the Court clarified that it does not refer to only ordinary breaches of public order which do not involve danger to the State.
Friendly relations with a foreign state
This ground was added by the 1st Amendment Act, 1951 to restrict the freedom of speech and expression that would jeopardise the maintenance of friendly and cordial relations with foreign countries. As these foreign relations are very important for the economic and social development of any country, the government checks any kind of malicious propaganda against foreign countries and imposes reasonable restrictions. Moreover, it is also due to the principle of international law which makes the State responsible for any acts committed by any person within their country.
Public Order
This ground was also added by the 1st Amendment Act, 1951. This ensures peace, safety and tranquillity in the country cannot be disturbed by toxic speeches and ways of expression. By using this restriction, the State can regulate public meetings, prohibit loud noises, punish utterances that would incite riot and violence, breach the peace, and that are threatening, abusive, insulting and endangering public safety. Under this Provision, the State also made laws to punish utterances that hurt religious sentiments. The only requirement is that there should be a proper nexus between the restriction imposed and the achievement, it should not be far-fetched. In Babulal Parate v. State of Maharashtra (1961), Section 144 of CrPC was upheld as valid as there are no arbitrary powers given to Magistrate. The magistrate has to state facts before the order and the order can also be challenged.
Decency and morality
This ground restricts any speech and expression including any painting, sculpture, publication, etc that was obscene and vulgar. Section 292 to 296 of the IPC deals with the offences in relation to obscenity. In Ranjit D. Udeshi v. State of Maharashtra (1964), the Court agreed with ‘Hicklin’s test’ to check the obscenity of the book. This test checks whether there is a tendency to corrupt the people whose minds are open to such immoral influences and into whose hands this publication would fall. Court uses a different approach to test morality and vulgarness. It sometimes looks at the literature as a whole and not at the specific words which are vulgar and offensive to assess the impact on the minds of readers. Nowadays, Courts follow the ‘Contemporary Community Standard Test’ to test immorality. It states that standards of morality differ from place and time. Once, using contraceptives and birth control measures was seen as immoral but now it was encouraged and subsidised by the State.
Contempt of court
It was defined in Section 2 of the Contempt of Courts Act, 1971. It is of two types- civil contempt and criminal contempt. Civil contempt refers to wilful disobedience of any order, judgement, etc. of the Court, whereas, criminal contempt refers to an act or publication of any matter which lowers the image of Courts, prejudices or interferes with proceedings or obstructs the administration of justice. In the Namboodiripad case (1970), it was observed by the Court that, “Freedom of speech goes far but not far enough to condone a case of real contempt of court.”
Defamation
Everyone is entitled to dignity and reputation. Hence, the State would restrict any speech or expression that would expose any person to ridicule and hatred. Nobody has the right to devoid anybody of his/her right of reputation. However, there are certain exceptions to it.
Incitement to an offence
This ground was added by the 1st Amendment Act, 1951 to curtail any speech that would encourage a breach of peace and incite any offence to be committed. In State of Bihar v. Shailabala Devi (1952), the Supreme Court held incitement to murder or any other violent crimes would undermine the security of the State, hence this restriction is valid.
Article 20 of the Indian Constitution
Article 20 provides protection to persons in respect of conviction in certain offences. It guarantees mainly three types of protection, namely:
- Ex-post facto laws,
- Double jeopardy, and
- Self-incrimination.
Prohibition of ex-post-facto laws
Ex-post facto laws are those laws which provide punishment for the act which was lawful when it was done and later declared as an offence. Clause (1) of Article 20 prohibits retrospective criminal legislation, that is, no law can be made prohibiting the act with retrospective effect. Hence, no person shall be subjected to a greater penalty or punishment than that which could be inflicted under the law in force at the time of commission. It only prohibits retrospective criminal legislation and not the imposition of civil liability. Hence, taxes can be imposed retrospectively. This principle also does not apply to disciplinary proceedings.
In Rattan Lal v. State of Punjab (1964), it was held that “considering the scope of ex-post-facto laws we must adopt the rule of beneficial construction as enunciated by the modern trend of judicial opinion”. This rule requires that even ex-post-facto laws be applied to reduce the punishment. The law providing a minimum sentence or fine on conviction is not the same as a law imposing a greater penalty.
Immunity from double jeopardy
The legal maxim ‘Nemo debet bis vexari’ states that no man shall be brought into danger for one and the same offence more than once. Even in the American Constitution, this principle was given in the 5th Amendment which declares “no person shall be subject for the same offence to be put twice in jeopardy of life or limb.” Other than the Indian Constitution, this principle was also imbibed in Section 300 of Code of Criminal Procedure 1973 and Section 26 of General Clauses Act, 1897.
But the Indian principle of double jeopardy is quite different from the principle followed in British and America. In America and Britain, the bar applies to second prosecution irrespective of the result of the first prosecution, whether the accused was acquitted or convicted. But in India, to apply the provision laid down in Article 20, it must be shown that the accused has been prosecuted before Court and punished by it for the same offence for which he/she is prosecuted again. Hence, if there is no punishment awarded, there will be no application of Article 20.
In Leo Roy v. Superintendent District Jail (1957), where a person was punished under Sea Customs Act, 1878 and secondly prosecuted under the Indian Penal Code, 1860 for the offence of criminal conspiracy, the decision was held valid as punishment is not for the same offences.
Protection against self-incrimination
This clause declares that no person can be compelled to be a witness against himself/herself.
Three components of this provision are-
- The person must be accused of any offence.
- Protection against self-incrimination.
- There must be a compulsion to give evidence against himself/herself.
In India, this protection is only available for the accused, unlike in the USA, where it is also available for witnesses. ‘Accused’ is the person who is formally brought into the police diary and also includes suspects of the offence.
‘To be a witness’ means making oral or written statements disclosing some facts relevant to the case. Such statements are not confined to confessions but also cover incriminatory statements which have the potential to reflect the guilt of the accused. In Nandini Sathpathy v. PL Dani (1978), the Court held that “answers which have a reasonable tendency strongly to point out the guilt of the accused are incriminatory. Relevant replies which furnish a real and clear link in the chain of evidence indeed to bind down the accused with the crime become incriminatory and offend Art. 20(3) if elicited by pressure from the mouth of the accused.”
In the case of Kalawati v. State of H.P.(1953), it was held that “sub-section (3) of Article 20 does not apply at all to a case where the confession is made without any inducement, threat or promise.” Hence, compulsion is a necessary element for the application of this provision.
Article 21 of the Indian Constitution
Article 21 states that:
“No person shall be deprived of his life or personal liberty except according to the procedure established by law”.
Article 21 is the most important fundamental human right provided in the Constitution which makes ark for all other laws in the country. Defining its scope, Justice Subba Rao once quoted:
“By the term “life”, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.”
Earlier, Article 21 was laid dormant until the arrival of the case of Maneka Gandhi v. Union of India (1978), which broadened its scope and brought great transformation in the judicial attitude towards the protection of life and liberty of the individuals. It laid a number of propositions to make Article 21 more meaningful-
- It showed that Article 21 as interpreted in the AK Gopalan case (1950) would not be able to provide protection against harsh laws. Hence, the case was overruled.
- It reiterated that Articles 14, 19 and 21 are not mutually exclusive as held in the Gopalan case. Hence, any law made by the legislature should meet all the requirements of Articles 14, 19 and 21.
- The expression ‘personal liberty’ in Article 21 should not be read in a restricted and narrow sense so as to exclude liberties provided in Article 19.
- It reinterpreted the term ‘procedure established by law’, which now requires the law to qualify the requisites of being fair and just.
Article 21 after the case of Maneka Gandhi has assumed a ‘highly activist role’ which helps in expanding its horizons to cover various fundamental rights which are not provided explicitly in the Constitution.
Extended view of Article 21
The new interpretation of Article 21 has provided Indian jurisprudence with fascinating development of rights. It has now become the ‘heart of the fundamental rights’. Moreover, it also has provided recognition to various DPSPs which were essential to be included as fundamental rights.
Various implied fundamental rights under Article 21:
- Right to livelihood,
- Right against sexual harrassment,
- Right to privacy,
- Right to education,
- Right to health,
- Right to clean environment,
- Right to speedy trial,
- Right to legal aid,
- Right to go abroad,
- Right against custodial violence, etc.
Article 22 of the Indian Constitution
Article 22 provides various safeguards for the arrested person to ensure their right against arbitrary arrest and detention by the police. It also authorises the legislature to make laws on preventive detention.
Rights of an arrested person
Under clauses (1) and (2) of the Article 22, four rights have been granted to an arrested person, which is as follows-
- Right to be informed of grounds of arrest: As soon after the arrest, the accused should be informed about the grounds of his arrest. This right is provided so that there will be no confusion and he/she can prepare to defend him/her.
- Right to consult and be represented by a lawyer: The accused should not be denied the right to consult and be defended by the legal representative of his own choice. If for any reason, a lawyer does not appear to represent the accused, he must be provided with amicus curiae.
- Right to be produced before Magistrate within 24 Hours: Every person who is arrested or detained must be produced before the nearest Magistrate within 24 hours excluding the time of journey. This safeguard is provided to ensure that there would be no arbitrary or illegal arrests taking place.
- Right not to be detained beyond the said period: No person shall be detained in custody beyond the said period without the authority of the Magistrate.
However, there are some exceptions to these safeguards. These safeguards are provided to-
- An enemy alien,
- A person arrested or detained under preventive detention law.
What is preventive detention?
Clause (4) to (7) of Article 22 deals with the provisions related to ‘preventive detention’. It is the subject of the Union and Concurrent list. It means if a conflict arises, central law will prevail.
Preventive detention literally means detention to prevent a person from doing something. In law, it is used as a precautionary measure in which a person is detained on suspicion of commission of some prejudicial act. It is not the same as criminal detention where an accused is detained only after certain legal evidence. It is only based upon reasonable suspicion or probability of commission of certain offences.
Its origin can be traced to British India when the Bengal Regulation Act of 1818 was passed. The provisions of preventive detention are not self-executory but it requires legislation to be implemented. Preventive Detention Act, 1950 is the first law on preventive detention post-independence. But it was passed only for one year and extended till its expiration in 1969. Later, various acts including MISA (Maintenance of Internal Security Act) 1971, COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act) 1974, TADA (Terrorist and Disruptive Activities (Prevention) Act) 1985 and POTA (Prevention of Terrorism Act) 2002 were made to check the terrorist activities, internal security and other illegal activities, but they all have been repealed.
The current preventive detention law is the National Security Act, 1980 which confers powers on Central and State governments to safeguard the security of the country and to maintain public order. It was contended that the preventive detention law is violative of Articles 14, 19 and 21 as it does not employ a fair and just procedure of arrest and trial same as in other offences. But it continues in the Constitution as a necessary evil.
Conclusion
Once Nelson Mandela had quoted,
“For to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others.”
Therefore, the right to freedom not only means that one is not bound by anyone, but it also includes freedom from any kind of pressure whether physical or mental, in any facet of one’s life. Also, while enjoying our rights of freedom given by our Constitution from Article 19 to 22, we should not forget that one’s rights end at the moment where other’s rights start. Hence, there are reasonable restrictions to check the irrational and illegitimate use of one’s freedom.
Frequently Asked Questions (FAQs)
1: In which articles of the Constitution, the right to freedom is given?
The right to freedom is given in Article 19 to 22 of the Constitution.
2: What are the six freedoms under Article 19?
- Freedom of speech and expression,
- Freedom of assembly,
- Freedom of association,
- Freedom of movement,
- Freedom to residence and settlement,
- Freedom of profession, occupation, trade or business.
3: What is Article 21?
Article 21 discuss protection of life and personal liberty and states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
4: What are rights given under Article 20?
- Prohibition of ex-post-facto laws,
- Immunity from double jeopardy,
- Protection from self-incrimination.
5: Under which article law of preventive detention is provided?
Article 22 provides for the law of preventive detention.
References
- “Introduction to the Constitution of India”, D.D.Basu.
- ” V.N.Shukla’s Constitution of India”, Mahendra Pal Singh.
- https://lexforti.com/legal-news/reasonable-restrictions-article-19/
- https://indiankanoon.org/
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