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 However, the freedom to hold and acquire property under clause (f) was repealed in 1978.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[2].

(b) Freedom of Assembly[3].

(d) Freedom of movement[5].

(e) Freedom to reside and to settle[6].

(f) [***][7].

(g) Freedom of profession, occupation, trade or business[8].

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:-

Citizens
Shareholders of a company

Not for – (i) foreigners, (ii) Corporate companies

IV. FREEDOMS:-

1. Freedom of speech and expression[9] (Art. 19 (1) (a) and (2)):-

Freedom of speech and expression is indispensable in democracy because, without free political discussion, no public opinion essential for the proper functioning of the Government is possible[10]. Freedom of speech and expression means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode. It includes expressing one’s 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 ‘freedom of speech and expression[11]’:-

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[12]:-

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 government’s three official branches, i.e. executive, legislative and judiciary[13].

In India, freedom of the press is implied from the freedom of ‘speech and expression’ guaranteed under Art. 19 (1) (a). Unlike the USA., there is no specific provision ensuring freedom of the press in India. The word ‘expression’ in Art.19 (1) (a) connotes the publication of not only one’s views but also the views of others. This implies the right to freedom of the press.

According to the Indian Press Commission, “Democracy 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 articulate”[14].

In Brij Bhushan v. State of Delhi[15]

Facts—The 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 photographs and cartoons other than those derived from official sources.[16].

Court Held– The Court struck down the order and observed that “the 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).

In Sakal Papers Ltd v. Union of India[17].

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 State’s 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 interest, like the freedom to carry on business[18].

b) Right to Media[19]:-

The right to media is another right implicit under the terms ‘freedom of speech and expression’. At present, electronic media viz, TV, radio, and film are the most effective means of communication.

In Bhopal Gas Tragedy Documentary Film’s case.

Facts– Doordarshan refused to telecast a documentary film on the Bhopal gas tragedy prepared by the petitioner. This film received the “Lotus Award” 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 “the print media, radio and the tiny screens play the role of public education, so vital to the growth of a healthy democracy”. Hence, the film producer, in this case, has a fundamental right under Art. 19 (1) (a) to exhibit his film[20].

However, in K. A. Abbas v. Union of India[21].

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[22]:-

Right to know is another connotation of freedom of speech and expression. Under the Official Secrets Act, the Government usually denies information regarding 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.

In Prabhu Dutt v. Union of India[23].

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 of speech and expression[24].

e) Calling ‘Bundh’ is illegal[25]:-

In Communist Party of India (M) v. Bharat Kumar and others[26].

Supreme Court held– that calling for and holding of ‘Bundh’ 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:-

g) Freedom of Silence:-

Freedom of speech is also introduced as freedom of silence.

h) Right to demonstrate but not to strike:-

B] Grounds of restrictions[27]:-

Cl. (2) of Art. 19 permits the imposition of reasonable restrictions on the following grounds. Viz.

a) Sovereignty and integrity of India[28]:-

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[29]:-

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.[30] etc.; however, it does not include ordinary breaches of public order[31].

c) Friendly relations with other states[32]:-

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 foreign-friendly State.

d) Public order[33]:-

Anything that disturbs public tranquillity or public peace disturbs public order. Thus, communal disturbances and strikes promoted with the sole object of accusing unrest among workers are offences against public order.

e) Decency and morality[34]:-

Restriction can also be imposed on freedom of speech and expression if it affects ‘decency and morality. The English word ‘obscenity[35]’ is similar to ‘indecency’ 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 is likely to fall.[36].

In Indian Hotel and Restaurants Association v/s. State of Maharashtra[37]

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 dancer’s right under Art. 19 (1). Thus, the dance performed by the bar dancer would 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[38] 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. T N. Nambiar[39]

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-

“The 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 people”.

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[40]:-

A statement that injures a man’s 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[41]:-

Freedom of speech and expression cannot confer a license to incite people to commit an offence.

2. Freedom of Assembly[42] (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.[43] , etc. The assembly should be non-violent and should not cause any breach of public peace.

3. Freedom to form association[44]:-

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[45].

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[46]. (Art. 19 (1) (d) and (5)):-

Art. 19 (1) (d) guarantees all citizens of India the right “to move freely throughout the territory of India”. 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[47]. The object behind this provision is to make Indian citizens national-minded.

In Dr N. B. Khare v. the State of Delhi[48]

Facts– a petition was filed under Art. 32 for writ of habeas corpus against the order of 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 “to reside and settle in any part of the territory of India”. 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[49] (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).

In- Vitthal Sahakari Karkhana V. The Assistant Provident Fund Commissioner[50]

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 period’s dues, was arbitrary; it violates Art 19 (1) (g).

a) Right to start or to close down a business[51]:-

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.

In Excel Wear v. Union of India[52].

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[53]:-In Sodan Singh v. New Delhi Municipal Committee[54].

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 ‘in the interest of the general public’ 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.[55] mentioned in Part IV of the Constitution.

In Bijoy Cotton Mills Ltd. V. State of Ajmer[56].

Facts—The 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 ‘general public’.

b) Prescribing professional or technical qualification[57]:-

The State can prescribe professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade, or business by making 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[58]:-

Cl. (6) (ii) enables the State to nationalise any trade or business and carry it on itself to the exclusion of all citizens, wholly or partially.[59].

*****

[1] स्वातंत्र्य व सामाजिक नियंत्रण

[2] भाषण आणि व्यक्त करण्याचे स्वातंत्र्य

[3] एकत्र येण्याचे स्वातंत्र्य

[4] संस्था स्थापन करण्याचे स्वातंत्र्य

[5] संचार स्वातंत्र्य

[6] वास्तव्य आणि स्थायीक होण्याचे स्वातंत्र्य

[7] Cl. (f) was omitted by the Constitution 44^th Amendment Act, 1978.

[8] धंदा, व्यापार, व्यवसाय करण्याचे स्वातंत्र्य

[9] भाषण आणि व्यक्त करण्याचे स्वातंत्र्य

[10] Ramesh Thapper v. State of Madras (AIR 1950 SC 124) By Patanjali Shastri J.

[11] भाषण आणि व्यक्त करण्याचे स्वातंत्र्य

[12] वृत्तपत्र स्वातंत्र्य

[13] Douglus, J of U.S. Supreme Court has observed that “acceptance by Government of a dissident press is a measure of the maturity of the nation”.

[14] लोकषाहीचा उत्कर्श/भरभराट ही फक्त जागृत कायदेमंडळामुळेच नाहीतर लोकमताच्या मार्गदर्षक/रेटयामुळे होऊ षकतो आणि वृत्तपत्र हे लोकमत स्पश्ट करण्याचे उत्कृश्ट साधन आहे.

[15] AIR 1950 SC 129.

[16] 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 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 “ 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 mandate”.

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 “Cross Road” 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 ‘public safety’ or the ‘maintenance of public order’ falls outside the scope of authorised restrictions under clause (2) and therefore void and unconstitutional.”

[17] AIR 1962 SC 305.

[18] In Bennet Colman and Co. v. Union of India (AIR 1973 SC 106).

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.

[19] प्रसारमाध्यम स्वातंत्र्य

[20] In Ramesh v. Union of India. (AIR 1988 SC 775)

Facts- a writ petition was filed to restrain the screening of serial ‘Tamas’ 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.

[21] AIR 1971 SC 481.

[22] माहीतीचा अधिकार

[23] AIR 1982 SC 6.

[24] Peoples Union for Civil Liberties v. Union of India. (AIR 1997 SC 568).

[25] बंद पुकारणे बेकायदेशीर

[26] AIR 1998 SC 184.

[27] भाषण, विचार स्वातंत्र्यावर मर्यादा

[28] Inserted by the Constitution (Sixteenth Amendment) Act, 1963. भारताची अखंडता व सार्वभौमत्व

[29] देशाची सुरक्षितता

[30] बंड देशाच्या विरुध्द युध्द पुकारणे

[31] Romesh Thappar v. State of Madras. (AIR 1950 SC 124).

[32] बंड देशाच्या विरुध्द युध्द पुकारणे

[33] This clause was added to nullify the Supreme Court’s decision in Romesh Thappar’s Case (Supra note 14), it was Held in that case that ‘Public Order’ 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

[34] सभ्यता आणि नैतिकता

[35] अश्लिता

[36] R v. Hicklin. An English Case.

[37] [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, “The Lady Chatterley’s Lover”.

Court Held- accused was convicted. Court observed that “A 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.”

[38] न्यायालयाचा अवमान

[39] AIR 1970 SC 2015.

[40] बदनामी

[41] अपराधासाठी उत्तेजन देणे

[42] एकत्र येण्याचे स्वातंत्र्य

[43] निदर्शने, मिरवणूका, सभा/बैठका

[44] संस्था स्थापन करण्याचे स्वातंत्र्य

[45] (1987) 1 SCC 115.

[46] संचार स्वातंत्र्य

[47] समाजहित, अनुसुचित जमातीच्या हितांचे संरक्षण

[48] AIR 1950 SC 211.

[49] उदयोग, व्यापार, व्यवसाय करण्याचे स्वातंत्र्य

[50] 2008 (2) All MR 158

[51] व्यवसाय चालूबंद करण्याचे स्वातंत्र्य

[52] AIR 1979 SC 25.

[53] फेरीवाल्यांचा फुटपाथवर व्यवसाय करण्याचा अधिकार

[54] AIR 1989 SC 1988.

[55] सार्वजनिक सुव्यवस्था, आरोग्य, सुरक्षितता, नैतिकता, समाजाचे आर्थिक कल्याण इत्यांदी

[56] AIR 1955 SC 33.

[57] व्यावसायिक आणि तांत्रिक पात्रता निष्चित करणे

[58] उद्योग-व्यापाराचे राष्ट्रीयकरण

[59] Inserted by Constitution (1^st 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.