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(..8..)
FREEDOMS AND SOCIAL CONTROL UNITSf (Art. 19)
QUESTION BANK.
Q. 1. Explain fully the âRight of freedom of speech and expressionâ and reasonable
restrictions thereon.
Q.2. What are the rights conferred by Art. 19 on the citizens of India? What are the
restrictions if any on the exercise of these rights?
Q.3. âEvery citizen has a right to practice any profession or to âcarry any occupation,
trade or businessâ discuss.
Q.4. Discuss the scope of the âfreedom of press under the Constitutionâ. Is the freedom
of the press an absolute one?.
Q.5. Examine the scope of âReasonable Restrictionsâ on the freedom of speech and
expression enshrined in Art. 19 (1) (a) of the Constitution.
Q.6. Discus the nature and scope of the freedom of association and the freedom of
residence guaranteed to the citizens of India.
SHORT NOTE.
1.
Freedom of Speech and press.
Freedom of Speech and expression.
Freedom of Assembly.
2.
3.
4.
5.
Freedom of movement.
Media and press information.
II. SIX FREEDOMS:-.....................................................................................................49
FREEDOMS:- ........................................................................................................50
a) Freedom of Press:- ..........................................................................................51
In Brij Bhushan v. State of Delhi....................................................................51
In Sakal Papers Ltd v. Union of India.............................................................52
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In Prabhu Dutt v. Union of India. ...................................................................54
e) Calling âBundhâ is illegal:-.....................................................................................54
Right of Commercial Advertisement:-..................................................................54
Freedom of Silence:- .............................................................................................54
Right to demonstrate but not to strike:-.................................................................54
B] Grounds of restrictions:- ...........................................................................................54
a) Sovereignty and integrity of India:-.......................................................................54
b) Security of the State:- ............................................................................................54
c) Friendly relations with other state:- .......................................................................55
d) Public order:- .........................................................................................................55
e) Decency and morality:-..........................................................................................55
f) Contempt of Court and House:- .............................................................................56
In Kalpana Mehta v. Uion of India .................................................................56
g) Defamation:- ..........................................................................................................56
h) Incitement to an offence:-......................................................................................56
2. Freedom of Assembly (Art. 19 (1) (b) and (3)):- ...................................................57
3. Freedom to form association:-................................................................................57
4. Freedom of movement. (Art. 19 (1) (d) and (5)):- .................................................57
In Dr. N. B. Khare v. State of Delhi................................................................57
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Commissioner .................................................................................................58
a) Right to start or to close down a business:- ....................................................58
In Excel Wear v. Union of India.....................................................................59
II. Grounds of restrictions:- ............................................................................................59
In the interest of general public:-.......................................................................59
b) Prescribing professional or technical qualification:-..............................................59
c) State trading and Nationalisation:-.........................................................................59
I.
INTRODUCTION:-
Personal liberty is the most important of all fundamental rights. Art. 19 to 22 deals
with different aspects of this basic right of personal liberty. The foremost important among
these are six fundamental rights, in the nature of freedoms guaranteed to the citizens by
Art. 19 Clause (a) to (g) of the Constitution. Initially, Art. 19 guaranteed seven freedoms.
However, the freedom to hold and acquire property under clause (f) was repealed in 1978.
These six freedoms are necessary not only to promote certain rights of the citizens
but also certain democratic values and the oneness and unity of the country.
II.
SIX FREEDOMS:-
Art. 19 (1) guarantees to the citizens of India the following six fundamental
freedoms-
(a) Freedom of Speech and Expression.
(b) Freedom of Assembly.
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(c) Freedom to form Association.
(d) Freedom of movemen.
(e) Freedom to reside and to settle.
(g) Freedom of profession, occupation, trade or business.
However, these six freedoms are not absolute. Any modern State cannot
guarantee absolute individual rights. Each of these rights is liable to be controlled,
curtailed, and regulated to some extent by the laws of the parliament or the state
legislatures. Hence, Cl. (2) to (6) of Art. 19 lays down the grounds and the purposes for
which legislature can impose restrictions on the rights guaranteed by Art. 19 (a) to (g). The
Indian Constitution has attempted to strike a balance between individual liberty and social
control by imposing restrictions. Constitution denotes by imposing restrictions that
collective interest will prevail over individual interest freedoms guaranteed are not
unfettered. The restrictions to be reasonable must satisfy the following tests-
(a) Restriction must be for the purpose mentioned in Cl. 2 to 6 of Art. 19. (Discussed at
appropriate places).
(b) Restriction must be reasonable, i.e. the restriction imposed on a person in the
enjoyment of his right should not be arbitrary or of an excessive nature.
(c) Restriction must be related to the purpose sought to be achieved by law, i.e. there must
be nexus between the purpose sought to be achieved and the restriction imposed.
III.
TO WHOM RIGHT TO FREEDOM AVAILABLE:-
1) Citizens
2) Shareholders of a company
Not for â (i) foreigners, (ii) Corporate companies
FREEDOMS:-
IV.
1.
Freedom of speech and expression (Art. 19 (1) (a) and (2)):-
1 Cl. (f) was omitted by the Constitution 44th Amendment Act, 1978.
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Freedom of speech and expression is indispensable in democracy because,
without free political discussion, no public opinion essential for the proper functioning of
oneâs convictions and opinions freely by word of mouth, writing, printing, pictures or any
other mode. It includes expressing oneâs ideas through any communicable media or visible
representations, e.g. signs, gestures, etc. It also includes freedom of silence.
A] New rights emerged from the âfreedom of speech and expressionâ:-
Several rights are implicit under the freedom of speech and expression. With the
passing of time, the courts regularise the rights. These rights are as follows-
a)
Freedom of the Press:-
In the U.S.A., the First Amendment specifically guarantees the press's right
as a fundamental right. The prime purpose behind creating a new right of the free press is
to create a fourth institution outside the government as an additional check on the
In India, freedom of the press is implied from the freedom of âspeech and
expressionâ guaranteed under Art. 19 (1) (a). Unlike the USA., there is no specific
provision ensuring freedom of the press in India. The word âexpressionâ in Art.19 (1) (a)
connotes the publication of not only oneâs views but also the views of others. This implies
the right to freedom of the press.
According to the Indian Press Commission, âDemocracy can thrive not only under the
vigilant eye of its Legislature but also under the care and guidance of public opinion, and
the press is par excellence, the vehicle through which opinion can become articulateâ.
FactsâThe Chief Commissioner of Delhi issued an order against the printer, publisher,
and editor of an English weekly, directing them to submit for scrutiny in duplicate before
the publication of all communal matters and news and views about Pakistan, including
2 Ramesh Thapper v. State of Madras (AIR 1950 SC 124) By Patanjali Shastri J.
3 Douglus, J of U.S. Supreme Court has observed that âacceptance by Government of a dissident press is a
measure of the maturity of the nationâ.
4 AIR 1950 SC 129.
5
In Printers (Mysore) Ltd. v. Asstt. Commercial Tax Officer (1994) 2 SCC 434) the Supreme Court has
held- that no sales tax can be imposed on sale of newspapers in the country. However, the court clarified
that this does not mean that press is immune either from taxation or from general law relating to industrial
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Court Held- The Court struck down the order and observed that âthe imposing of pre-
censorship of a journal is a restriction on the liberty of the press, which is an essential part
of the freedom of speech and expression declared under Art. 19 (1) (a).
Facts- The Daily Newspapers (Price and Control) Order 1960 fixed the minimum price
and number of pages the newspaper was entitled to publish. The petitioner challenged the
order as unconstitutional on the grounds that it infringed on the liberty of the press.
Petitioners were required to increase the price of their newspapers without increasing the
pages. An increase in price without any increase in the number of pages would reduce the
circulation volume. On the other hand, any decrease in the number of pages would reduce
the column space for news, views or ideas. The order, therefore, acted as a double-edged
knife. It cuts circulation by a price rise or publication or dissemination of news, ideas and
knowledge by restricting column space, consequently decreasing the number of pages. The
State justified the law as a reasonable restriction on the business activities of the press in
the interest of the general public.
Held- The Court struck down the order rejecting the Stateâs argument. It observed that the
right of freedom of speech and expression could not be taken away with the object of
restrictions on a citizen's business activity. Freedom of speech can only be restricted on the
grounds mentioned in clause (2) of Article 19. It cannot be curtailed in the general public's
relations or from the State regulation of condition of service of its employees. The prohibition is upon the
imposition of any restriction to disseminate information and to the circulation of newspaper.
In Express Newspapers v. Union of India (1985) 1 SCC 641. Court Observed, that â it is the primary duty
of the Court to uphold the freedom of press and invalidate all laws or administrative actions which interfere
with it, contrary to the constitutional mandateâ.
In Romesh Thapper v. State of Madras, (AIR 1950 SC 124) Facts- The petitioner was printer,
publisher and editor of a weekly journal in English called âCross Roadâ printed and published in Bombay.
The Government of Madras issued an order prohibiting the entry into or the circulation of the journal in
that State.
The Court Held- that there can be no doubt that freedom of speech and expression includes freedom of
propagation of ideas, and that freedom is ensured by the freedom of circulation. Liberty of circulation is an
essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be
of little value. Restrictions on freedom of speech and expression can only be imposed on grounds mentioned
in Article 19(2) of the Constitution. A law which authorises imposition of restrictions on grounds of âpublic
safetyâ or the âmaintenance of public orderâ falls outside the scope of authorised restrictions under clause
(2) and therefore void and unconstitutional.â
6 AIR 1962 SC 305.
7 In Bennet Colman and Co. v. Union of India (AIR 1973 SC 106).
âLaw Master's Publicationâ
b) Right to Media:-
The right to media is another right implicit under the terms âfreedom of
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speech and expressionâ. At present, electronic media viz, TV, radio, and film are the most
effective means of communication.
In Bhopal Gas Tragedy Documentary Filmâs case.
Facts- Doordarshan refused to telecast a documentary film on the Bhopal gas tragedy
prepared by the petitioner. This film received the âLotus Awardâ as the best non-feature
film in 1987; still, Doordarshan refused to telecast the film on the grounds that the contents
of this film were outdated and not relevant now to the telecast.
Court Held- that âthe print media, radio and the tiny screens play the role of public
education, so vital to the growth of a healthy democracyâ. Hence, the film producer, in this
Supreme Court upheld censorship of films under Art. 19 (1) (a) on the ground that films
have to be treated separately from other forms of art and expressions because a motion
picture can stir emotions more deeply than any other art product. A film can, therefore, be
censored on the grounds mentioned in Art. 19 (1) (a).
c)
Right to know:-
Right to know is another connotation of freedom of speech and expression.
Under the Official Secrets Act, the Government usually denies information regarding
Facts- Due to the shortage of foreign newsprint, by passing Newsprint Control Order, Government applied
quota system to newspapers. Quota was fixed by taking into consideration the actual consumption of
newsprint by a newspaper during the year 1970-71 or 1971-72, whichever was less, was taken as the base.
For dailies with circulation upto 100,000 copies 10 per cent increase in the basic entitlement was to be
granted, but for newspapers with a larger circular, the increase was to be only 3 per cent. Newspapers with
less than 10 pages daily could raise the number of pages by 20 per cent subject to the ceiling of 10. Some
more restrictions were imposed on the user of newsprint. The policy behind this policy was that to curtail
the growth of big newspapers which could not increase the number of pages, page-area or periodicity by
reducing circulation to meet their requirements even within their admissible quota of newsprint.
Supreme Court Held- that the policy is unconstitutional. This policy is the newspaper control policy and
hence, could not be allowed.
8 In Ramesh v. Union of India. (AIR 1988 SC 775)
Facts- a writ petition was filed to restrain the screening of serial âTamasâ on the television on the ground
that it violates Art. 21 and 25 of the Constitution.
Held- Court rejected the petition saying that the serial viewed in its entirety is capable of creating a lasting
impression of the message of peace and co-existence.
9 AIR 1971 SC 481.
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Government documents.
However, the Supreme Court has held in several decisions that freedom of speech and
expression includes the right to know, i.e. to get information.
Supreme Court held- that the right to know is a fundamental right under Art. 19 (1) (a).
Parliament has passed the Freedom of Information Act 2005, approving the right to
information as an important right whereby people can get information from the
government.
d)
Telephone tapping is an invasion of the right to privacy:-
When a person is talking on the telephone, he is exercising his right to
freedom of speech and expression. Hence, telephone tapping violates the right to freedom
e)
Calling âBundhâ is illegal:-
Supreme Court held- that calling for and holding of âBundhâ by a political party or an
organisation is unconstitutional and hence is illegal as it violates the fundamental rights of
the citizens guaranteed by Art. 19 (1) (a) and 21 of the constitution in addition to causing
national loss.
f)
Right of Commercial Advertisement:-
Freedom of Silence:-
g)
Freedom of speech is also introduced as freedom of silence.
Right to demonstrate but not to strike:-
h)
B] Grounds of restrictions:-
Cl. (2) of Art. 19 permits the imposition of reasonable restrictions on the
following grounds. Viz.
a)
Sovereignty and integrity of India:-
Restriction can be placed on freedom of speech if it preaches secession of
any part of the country from the Indian Union or endangers the independence and sovereign
authority of the country.
b)
Security of the State:-
10 AIR 1982 SC 6.
11 Peoples Union for Civil Liberties v. Union of India. (AIR 1997 SC 568).
12 AIR 1998 SC 184.
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Individual rights of speech and expression cannot be allowed if it endangers
the security of the State. Security of the State to be a restriction on freedom of speech and
expression should refer to serious and aggravated forms of public disorder, e.g. rebellion,
waging war against the state. etc.; however, it does not include ordinary breaches of public
c)
Friendly relations with other states:-
Reasonable restrictions may be imposed on freedom of speech and
expression if it affects India's relations with any friendly state. Imposing restrictions on this
ground can stop malicious propaganda against a friendly foreign state.
d)
Anything that disturbs public tranquillity or public peace disturbs public
order. Thus, communal disturbances and strikes promoted with the sole object of causing
unrest among workers are offences against public order.
e)
Decency and morality:-
Restriction can also be imposed on freedom of speech and expression if it
affects âdecency and morality. The English word âobscenityâ is similar to âindecencyâ in
India. A publication is obscene if it tends to produce lascivious thoughts and creates a
lustful desire in the minds of a substantial number of the public into whose hand the book
Held- through dancing forms a part of speech and expression. It will not be possible to hold
that every dancer who wishes to perform on licensed premises of another, if denied, would
violets dancerâs right under Art. 19 (1). Thus, the dance performed by the bar dancer would
13 Romesh Thappar v. State of Madras. (AIR 1950 SC 124).
14 This clause was added to nullify the Supreme Courtâs decision in Romesh Thapparâs Case (Supra note
14), it was Held in that case that âPublic Orderâ was not mentioned as ground to impose restriction on
freedom of speech and expression hence, restriction on this ground cannot be allowed. lkoZtfud lqO;oLFkk
15 R v. Hicklin. An English Case.
16 [AIR 2006 (NOC) 901 (Bom)]
In Ranjit D. Udeshi v. State of Maharashtra.
Facts- In this case a bookseller was an accused. He was prosecuted under S. 292, I.P.C., for selling and
keeping the book, âThe Lady Chatterleyâs Loverâ.
Court Held- accused was convicted. Court observed that âA publication is obscene if it tends to produce
lascivious thoughts and arouses lustful desire in the minds of substantial numbers of that public into
whose hands the book is likely to fall.â
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not fall within the expression of speech and expression. Therefore, the prohibition imposed
on dance bars does not directly interfere with the freedom of speech and expression.
f)
Contempt of Court and House:-
Restriction on the freedom of speech and expression can be imposed if it
amounts to contempt of Court. Contempt of the Court may take various forms, such as
insulting judges, attacking them, commenting on pending proceedings with the view to fair
prejudice trial, obstructions of officers of the Court, and breach of duty by the officer
connected with the Court. Even the subordinate Court can commit to the Superior Court.
In E. M. S. Namboodaripad
v.
Facts- At a press conference, Mr Namboodaripad, former Chief Minister of Kerala,
attacked the judiciary as an instrument of exploitation. He said judges are guided and
dominated by class hatred, prejudices, and interests. The judge instinctively favours the
former when the evidence is evenly balanced between a well-dressed, pot-bellied rich and
an ill-dressed, illiterate person. He remarked that the judiciary works against workers,
peasants, and other working-class sections as a part of the ruling class. The law and the
judiciary system essentially serve the exploiting classes.
Supreme Court upheld his conviction and observed that-
âThe likely effect of his words must be seen, and they have clearly the effect of lowering
the prestige of judges and courts in the eyes of the peopleâ.
In Kalpana Mehta v. Uion of India
(AIR 2018 Supreme Court 2493)
Supreme Court held that freedom of speech and expression protects fair comments on a
report of a Parliamentary Committee. However, when a comment turns into a personal
attack on an individual member of Parliament or House or is made in abusive or vulgar
language tarnishing the image of a member of the House, said comment amounts to
contempt of the House and breach of privilege.
g)
Defamation:-
A statement that injures a manâs reputation amounts to defamation.
Defamation consists in exposing man to hatred, ridicule, or contempt. So, freedom of
speech and expression cannot be allowed to defame another person.
h)
Incitement to an offense:-
17 AIR 1970 SC 2015.
âLaw Master's Publicationâ
Freedom of speech and expression cannot confer a license to incite people to
commit an offence.
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2.
Freedom of Assembly (Art. 19 (1) (b) and (3)):-
Art. 19 (1) (b) guarantees the citizens of India the right to assemble peaceably
and without arms. This right of assembly is implied in the very idea of the democratic
Government. Under Art. 19 (3), however, the State can make any law imposing reasonable
restrictions in the interest of India's public order, sovereignty, and integrity. Freedom of
assembly includes demonstrations, processions, and meetings. , etc. The assembly should
be non-violent and should not cause any breach of public peace.
3.
Freedom to form association:-
Art. 19 (1) (c) guarantees the citizens of India the right to form associations
or unions. However, under Art. 19 (4), the state may impose reasonable restrictions in the
interest of public order, morality, or sovereignty and integrity of India. This right to form
associations is the very lifeblood of democracy; without such a right, political parties
cannot be formed, and therefore, democracy would not run properly.
In Delhi Police Non-Gazetted Karmachari Sangh v. Union of India.
Facts- The validity of a statutory rule which empowered the Government to revoke the
recognition granted to the appellants Delhi Police Non-Gazetted Karmchari Sangh to form
an association was challenged on the ground that it was a violation of Article 19(1)(c) of
the Constitution. It was argued that recognition once granted to the Sangh could not
subsequently be revoked. Recognition carried with it the right to continue the association
as such. To de recognise the association acts against the freedom of association.
The Supreme Court held that the statutory rules regarding recognition and revocation of
association were not violative of Article 19(l)(c) and imposed reasonable restrictions on
the right to form an association.
4.
Freedom of movement. (Art. 19 (1) (d) and (5)):-
Art. 19 (1) (d) guarantees all citizens of India the right âto move freely
throughout the territory of Indiaâ. This right, however, is subject to reasonable restrictions
mentioned in Cl. (5) of Art. 19, i.e., in the interest of the general public or for the protection
of the interest of any tribe. The object behind this provision is to make Indian citizens
national-minded.
Facts- a petition was filed under Art. 32 for writ of habeas corpus against the order of
18 AIR 1950 SC 211.
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externment made by the District Magistrate of Delhi directing the petitioner to remove
himself from and not to return to Delhi for a period of 3 years. The order was made under
section (a) of the East Punjab Public Safety Act, 1949, which empowered the State
Government or District Magistrate to pass the externment orders. The provision as to the
necessity of the order further provides that the satisfaction of the issuing authority is final.
Petitioner challenged the validity of the Act and the order for violating Art. 19 (1) (d). It
was also alleged that the order was minified.
The Court held that the Act was valid and that the restriction imposed was reasonable.
5.
Freedom of residence (Art. 19 (1) (e) and (5)):-
According to Art. 19 (1) (e), every citizen of India has the right âto reside and settle in any
part of the territory of Indiaâ. However, under Cl. (5) of Art. 19, reasonable restrictions
may be imposed on this right by law in the general public's interest or for the protection of
the interest of any Scheduled Tribe. Since Art. 19 (1) (d) provides freedom of movement,
the natural corollary of it is Art. 19 (1) (e), i.e., freedom of residence in any part of India.
Art. 19 (5) imposes reasonable restrictions on these freedoms.
6. Freedom of Profession, Occupation, Trade, or Business (Art. 19 (1) (g):-
I.
Freedom of Profession, Occupation, Trade or Business:-
Art. 19 (1) (g) guarantees to all citizens the right to practice any profession
or to carry on any occupation, trade, or business.
In A.V.I Cable Network v. the State of Bihar (AIR 2018 Pat. 167)
Patna High Court held that an entertainment tax of Rs. 15 per cable connection on the
proprietor of the cable operator does not violate Art. 19 (1) (g).
Facts:- Respondent attached stock of a sugar factory without giving notice.
Held: The attachment of sugar stored by the Provident Fund Commissioner, without notice
to the petitioner for an earlier periodâs dues, was arbitrary; it violates Art 19 (1) (g).
a)
Right to start or to close down a business:-
The right to carry on a business includes the right not to start any business;
if he chooses, he has the right to close it at any time he likes. Thus, the State cannot compel
citizens to do business against his will.
19 2008 (2) All MR 158
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The Supreme Court held that the State cannot refuse permission to close a factory if it
continuously suffers losses. The State cannot compel a factory that does not pay even
minimum wages to its workers to carry on on the grounds of public interest because no sort
of public interest is achieved by its work.
b)
Hawkers right to trade on the pavement of roads:-In Sodan Singh v. New
The Supreme Court, in this far-reaching judgment, has held that hawkers have a
fundamental right to carry on trade on the pavement of roads but are subject to reasonable
restrictions under Art. 19 (6) of the Constitution.
II.
Grounds of restrictions:-
Cl. (6) of Art. 19 authorises the State to impose reasonable restrictions on the right
to carry on a trade, profession, or business on the following grounds.
(a)
In the interest of the general public:-
The expression âin the interest of the general publicâ in Art. 19 (6) is of wide
import in comprehending public order, public health, public security, morals, economic
welfare of the community, and the objects. mentioned in Part IV of the Constitution.
FactsâThe Minimum Wages Act, which empowers the Government to fix minimum
wages for labourers in a particular industry, was challenged on the ground that it violates
Art. 19 (1) (g).
Court Held- that the Act is valid on the ground of imposing reasonable restrictions in the
interest of the âgeneral publicâ.
b)
Prescribing professional or technical qualification:-
The State can prescribe professional or technical qualifications necessary for
practising any profession or carrying on any occupation, trade, or business by making a
law. For example, to practice Advocacy, one should have passed LL.B.; to practice as a
doctor, one should have passed MBBS or other examinations.
c)
State trading and Nationalisation:-
Cl. (6) (ii) enables the State to nationalise any trade or business and carry it
20 AIR 1979 SC 25.
21 AIR 1989 SC 1988.
22 AIR 1955 SC 33.
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23 Inserted by Constitution (1st Amendment) Act, 1951, to nullify the decision of Allahabad High Court in
Motilal v. Uttar Pradesh Government. (AIR 1951 All 257). Court Held- that if the State carried on a
commercial undertaking it could not claim any special treatment and refusal of permit by the State was held
to be in violation of equal protection guaranteed by Art. 14.