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ARTICLES 19 TO 22 RIGHT TO

FREEDOM

Articles 19 to 22 deal with


different aspects of right to
freedom.

Art19:- Protection of certain


rights regarding freedom of
speech, etc.

Art20:- Protection in respect of


conviction for offences.

Art21:- Protection of life and


personal liberty.
Art 21A:- Right to education.

Art22:- Protection against arrest


and detention in certain cases.

The first and foremost aspect of


personal liberty is article 19
which guarantees six
fundamental freedoms. They are

Art 19 (1) (a): freedom of speech


and expression Vs (2)

(b): freedom of
assembly Vs (3)
(C): freedom to form
associations Vs (4)

(d): freedom of
movement Vs (5)

(e): freedom to reside


and to settle Vs (5)

(f) : right to property


(44Th amendment 1978)

(g): freedom of
profession, occupation, trade or
business. Vs (6)
These six freedoms are not
absolute. Absolute individual
rights cannot be guaranteed by
any modern State. Article 19
clauses (2) to (6) empowers the
State to put reasonable
restrictions on the grounds
mentioned under that Article.

In A.K Gopalan s case J .Patanjali


Shastri observed that man as a
rational being desires to do
many things but in a civil society
his desires have to be controlled,
regulated and reconciled
(consistent) with the exercise of
similar desires by other
individual.

However those restrictions must


be a valid. A restriction to be a
valid must fulfill the following
two conditions.

1. The restrictions must be for


the purposes mentioned in
clause (2) to (6).
2. Such restriction must be
reasonable.

TEST OF RESONABLE
RESTRICTIONS

The Supreme Court has laid


down the following guidelines to
determine the reasonableness of
restriction.

1. It is the court and not the


legislature which has to judge
finally whether a restriction is
reasonable or not.
2. The term reasonable
restriction connotes that the
limitation imposed on a person
in the enjoyment of his right
should not be arbitrary or an
excessive in nature, beyond
what is required in the interest of
the public.

A law which arbitrarily or


excessively invades the right of
a person cannot be said to
contain the quality of
reasonableness and unless it
strikes a proper balance
between the right guaranteed in
Art 19 and the social control.

3. There is no exact standard or


general pattern of
reasonableness that can be laid
down for all cases. Each case is
to be judged on its own merit.

4. The court should consider the


circumstances under which and
the manner in which that
imposition has been authorized.
5. Restriction which is imposed
for securing the objectives laid
down in DPSP may be regarded
as reasonable restriction.

6. The restriction must have


rational relation with the object
which is sought to be achieved
by the statute.

7. Restrictions may also amount


to prohibition under certain
circumstances. For example the
state can prohibit a person to
carry out dangerous traits or
cultivation of narcotic plants or
trafficking women.

The right guaranteed under Art


19 is available only to the
citizens but not to foreigners. A
corporation or a company cannot
claim a right under Art 19
because they are not natural
persons.

But in Bank Nationalization case


and News papers case the
Supreme Court held that
company cannot claim a right
under Art 19 but its share holder
can claim the rights guaranteed
by the Art 19, if by the State
action the rights of the company
as well as rights of the share
holders is impaired. The
fundamental rights of share
holders as citizens are not lost
when they associate to form a
company.

FREEDOM OF SPEECH AND


EXPRESSION Art 19 (1) (a) and
19(2)
MEANING: - Freedom of speech
and expression is the right to
express ones own convictions
(strong belief) and opinions
freely by words of mouth,
writing, printing, pictures or any
other mode. It includes
expression of ones ideas
through any communicable
medium or visible representation
such as gesture, signs, and the
like. It includes publication of
conviction or opinion or ideas
also. Thus freedom of speech
and expression includes freedom
of press.

The freedom of speech and


expression includes the right to
propagate or publish the views
of other people also otherwise
this freedom would not include
the freedom of press. Freedom of
speech and expression is
indispensable in democracy.

RAMESH THAPPER VS STATE


OF MADRAS
In this case J.Patanjali Shastri
observed that freedom of speech
and press lay at the foundation
of all democratic organizations,
for without free political
discussion no public education
so essential for the proper
functioning of the process of
popular government is possible.

The purposes of Art 19(1) (a)

1. It helps an individual to attain


self fulfillment.
2. It assists in the discovery of
truth.

3. It strengthens the capacity of


individual in participating in
decision making.

4. It provides a mechanism by
which it would be possible to
establish a reasonable balance
between stability and social
change. All members of society
should be able to form their own
beliefs and communicate them
freely to others.
RIGHT TO KNOW NEWS AND
INFORMATION

Prabhu Dutt vs Union of


India

The right to know news and


information regarding
administration of the
government is included in the
freedom of press. But this right
is not an absolute right and
restrictions can be imposed on it
in the interest of the society and
the individual from which the
press obtains the information.
They can obtain information
from an individual when he
voluntarily agrees to give such
information.

Right to know about the


antecedents of contestants in
the election

Union of India Vs Association


for Democratic Reforms

Supreme Court held and directed


the Election Commission to issue
a notification making it
compulsory for those who
contest elections to make
available information about their
education, assets, liabilities and
criminal antecedents for the
benefit of voters.

Further it also held that


parliament has no legislative
competence to direct the State
or instrumentalities to disobey
the orders of the court. The
parliament cannot declare that
the law declared by the Supreme
Court is not binding.

Press does not have an


unfettered right

State Vs Charita

Supreme Court held that press


does not have an unfettered
right to interview an under-trial
prisoner in jail. The Court while
granting permission will have to
weigh the competing interest
between the right of the press
and the right of the authorities
prohibiting such interview in the
interest of administration of
justice.

Right to silence

Bijoe Emmanuel Vs State of


Kerala
A person cannot be compelled to
sing the National Anthem, if he
has genuine conscientious
objections based on his religious
faith.

Childrens expulsion from the


school was a violation their
fundamental right under Art
19(1)(a) which also includes the
freedom of silence.

Prevention of Insults to National


Honour Act 1971
New dimension to Art19 (1) (a)
Govt has no monopoly on
electronic media

Secretary, Ministry of I&B Vs


Cricket Association of Bengal

The Supreme Court widened the


scope and extent of the right to
freedom of speech and
expression and held that Govt
has no monopoly on electronic
media and citizen has a right to
telecast and broadcast to the
viewers / listeners through the
electronic media any important
event.

The Govt can impose restrictions


on such a right only on the
grounds specified in Art19 (2).

Commercial Advertisements

Tata Press Ltd Vs Mahanagar


Telephone Nigam Ltd

Suprme Court held commercial


speech is a part of the freedom
speech and expression granted
under Art19 (1)(a) of the
Constitution. It can only be
restricted on the grounds
specified in Art19 (2).

Describing the advertising as the


cornerstone of Indian economic
system, the judges said that low
prices for consumers are
dependent upon mass
production; mass production is
dependent upon volume of
sales; and volume of sales are
dependent upon advertising.

Calling for and holding bundh


CPI Vs Bharat Kumar and
others

Supreme Court held that calling


for and holding bundh by
political party or organization is
unconstitutional and hence is
illegal as it violates the
fundamental rights of the
citizens guaranteed by Arts19
(1)(a) 21 of the Constitution in
addition to causing loss to the
nation.

Territorial extent of freedom


Maneka Gandhi Vs Union of
India

Supreme Court held that there


are no geographical limitations
to Art19 (1)(a) and this freedom
is exercisable not only in India
but outside and if State action
sets up barriers to its citizens
freedom of speech and
expression in any country in the
world, it would be violative of
Art19 (1)(a).
Hamdard Dwakhana Vs
Union of India

Supreme Court held that an


advertisement is no doubt a
form of speech and expression
but every advertisement is not a
matter dealing with the freedom
of speech and expression of
ideas. Advertisement of
prohibited drugs would not fall
within the scope of Art19 (1) (a).

Freedom of the press


Freedom of the press is implicit
in the right to freedom of speech
and expression. It is essential for
political liberty, and proper
functioning of democracy.

The liberty of the press means


liberty to print and publish what
one pleases, without previous
permission. The freedom o f the
press is not confined to news
papers and periodicals. It
includes also pamphlets and
circulars and every sort of
publication which affords a
vehicle of information and
opinion.

Indian Express News Papers Vs


Union of India

The expression freedom of the


press has not been used in Art19
(1) (a) but it is comprehended
within Art19 (1) (a). The purpose
of the press is to advance the
pubic interest by publishing facts
and opinions without which a
democratic electorate cannot
make responsible judgments.
Freedom of the press is the heart
of social and political
intercourse. It is the primary
duty of the courts to uphold the
freedom of the press and
invalidate all laws or
administrative actions which
interfere with it contrary to the
constitutional mandate.

Pre-censorship invalid

Brij Bhushan Vs State of


Delhi
In this case the Chief
Commissioner of Delhi issued an
order against an editor, printer,
publisher of an English weekly
called Organizer directing
them to submit for scrutiny in
duplicate before publication, till
further orders, all communal
matters and news and views
about Pakistan including
photographs and cartoons other
than those derived from official
sources or supplied by the news
agencies.

The Supreme Court struck down


the order and held that the
imposition of censorship on a
journal previous to its
publication would amount to an
infringement of Art19 (1)(a).

Express News Papers Vs


Union of India

A law which imposes pre-


censorship or curtails the
circulation or prevents news
papers from being started was
violative of Art19 (1) (a).

Ramesh Thapper Vs State of


Madras

The petitioner was a printer,


publisher, and editor of a weekly
journal called Cross Roads
printed and published in
Mumbai. The Govt of Madras
prohibited the entry into and
circulation of the journal in that
State.
The Supreme Court held that a
law banning entry and
circulation of journal in a State
was held to be invalid.

Sakal Papers Ltd Vs Union of


India

The Daily News Papers (Price


and Control) Order 1960, which
fixed a minimum price and
number of pages which a news
paper was entitled to publish
was challenged as
unconstitutional.
Government cannot impose prior
restraint on publication of
defamatory material against its
officials.

R.Raja gopal Vs State of


Tamilnadu

In this case the Supreme Court


held that the govt. has no
authority in law to impose a prior
restraint upon publication of
defamatory material against its
officials.
Public authorities who
apprehended that they or their
colleagues may be defamed
couldnt prevent the press from
publication of such material,
could take action for damages
after the publication of such
material if they prove that the
publication was based on falls
facts.

Film censorship valid

K.A.Abbas Vs Union of India


Under the Cinematograph Act
1952 films are divided in to two
categories, i.e U films and A
films. U films are meant for
unrestricted exhibition while A
films can be shown to adults
only.

The petitioner challenged the


validity of this classification and
contended that there were other
forms of speech and expression
besides the films and none of
them were subjected to any prior
restraint in the form of pre-
censorship and claimed equality
of treatment with such other
forms.

Supreme Court held that pre-


censorship of film is justified
under Art19(2) on the ground
that films have to be so treated
separately from other forms of
art and expression because a
motion of picture was able to stir
up the emotions more deeply
than any other product of art.
Hence classification of films was
held to be valid.

Art 19 (2) Grounds of restrictions

1. Security of the state


2. Friendly relation with the
state
3. Public order
4. Decency or morality
5. Contempt of court
6. Defamation
7. Incitement of an offence
8. Sovereignty and integrity of
India.

1. Security of the state


In Ramesh Thappers case the
Supreme Court held that every
public disorder cannot amount to
be regarded as threatening the
security of the state. The term
security of the state refers only
to the serious and aggravated
forms of public disorder such as
rebellion, waging war against the
state, revolution, and not
ordinary breach of public
disorder such as unlawful
assembly.
The actual result of the act is
immaterial. Thus the acts which
may indirectly bring about an
overthrow of the state would
come within the expression.

2. Friendly relation with the


state

The object behind this ground is


to prohibit unrestrained
malicious propaganda against a
foreign friendly state which may
jeopardize the maintenance of
good relations between India
and that state.

But the interests of friendly


relations with foreign State
would not justify the suppression
of fair criticism of foreign policy
of the Govt.

3. Public order

It is something more than


ordinary maintenance of law and
order. Public order is
synonymous with public peace,
safety and tranquility. Anything
that disturbs public tranquility or
public peace is public disorder.

Public order implies absence of


violence and an orderly state of
affairs in which citizens can
peacefully pursue their normal
avocation of life. It includes
public safety. Public safety
means the safety of the
community from the external
and internal dangers. Thus
creating internal disorder or
rebellion would affect public
order and public safety.

Kishori Mohan Vs State of West


Bengal

In this case the Supreme Court


explained the differences
between law and order, public
order and security of State.

The difference can be explained


by three functional concentric
circles, the largest representing
law and order, the next public
order and the smallest the
security of the State. Every
infraction of law must
necessarily affect law and order
but not necessarily public order
and an act may affect public
order but5 not necessarily
security of the state and an act
may fall under the two concepts
affecting public order and
security of the state.

One act may affect an individual


in which case it would affect law
and order while another act
though of similar kind may have
such an impact that it will
disturb even the tempo of the
life of the community in which
case it would be said to affect
public order, the test being the
potentiality of the act in
question.

4. Decency or morality

These words have wider


meaning. The word obscenity of
English Law is identical with the
word indecency under the Indian
Constitution.

Hicklins Rule

R Vs Hicklin

The test of obscenity is whether


the tendency of matter charged
as offence is to deprave and
corrupt those whose minds are
open to such immoral influences
and in to whose hands a
publication of this sort is likely to
fall. Thus 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.

5. Contempt of Court

If freedom of speech and


expression exceeds the
reasonable and fair limit, it
amounts to contempt of court.
Section 2 of Contempt of Court
Act 1971 defines contempt of
Court.

Civil Contempt means willful


disobedience to any judgment,
decree, direction, order, writ or
other process of Court or willful
breach of an undertaking given
to a Court.

Criminal contempt means the


publication (whether by words
spoken or written or by signs or
by visible representation or
otherwise) or any matter or the
doing of any other act
whatsoever, which

a) Scandalizes or tends to
scandalize or lowers or tends
to lower the authority of the
Court
b) Prejudices or interferes or
tends to interfere with the due
course of any judicial
proceeding or
c) Interfere or tends to
interfere with or obstructs or
tends to obstruct the
administration of justice in
any other manner.

The following acts are not


contempt of courts.

a) Innocent publication and


distribution of any matter
b) Publication of fair and
accurate report of judicial
proceeding
c) Fair criticism of judicial act
d) Complaint against Presiding
officers made in good faith
e) Publication of fir
information relating to
proceedings in chambers or in
camera.

6) Defamation

It is a statement which injures a


mans reputation amounts to
defamation.

7) Incitement to an offence

Incitement means encourage.


Offence means any act or
omission made punishable by
any law for the time being in
force.
So incitement to commit to an
offence means encouraging a
person to commit an offence.

Art 19 (1) (b):- Freedom of


Assembly

It guarantees to all citizens a right to


assemble peaceably and without arms. It
includes the right to hold meetings to
take out processions.
But this right is subjected to the
following restrictions.
1. The assembly must be reasonable.
2. It must be unarmed.
Reasonable restrictions which can be
imposed on the following grounds
mentioned under Art 19 (3).
a) the sovereignty and integrity of
India
b) public order
The right to assembly includes
right to hold meetings and to
take out processions. The
assembly must be non-violent
and must not cause any breach
of public peace. If the assembly
becomes unlawful it can be
dispersed by an order of the
authorities. If such assembly
which became an unlawful
doesnt disperse from the
assembly, then it amounts an
offence under Sec151 of I.P.C.

Art 19 (1) (c) Freedom to form


association

It guarantees to all citizens the


right to form associations and
unions. It includes the right to
form companies, societies,
partnership, trade union and
political parties.
It also includes not continuing
with such association, to form,
not to form, to join or not to join
an association or union.

Right of association and Armed


forces

O.K.A.Nair Vs Union of India

The Supreme Court held that the


civilian employees of the
Defence Establishments answer
the description of the members
of the armed forces within the
meaning of the Art33 and not
entitled to form trade unions.

Delhi Police Non-Gazetted


Karmachari Sangh Vs Union of
India

The supreme court held that the


statutory rules regarding
recognition and revocation of
associations were not violative of
Art19 (1) (c) and they impose
reasonable restrictions on the
right to form association under
Art33 and Art 19(4) as the sangh
and its members come within
the ambit of Art33 and thus
stand on a different footing.

Right to form association is a


fundamental right but
recognition of association is not
a fundamental right and
parliament can impose
restrictions on such right.
On the following grounds mentioned
under Art 19(4) the State can impose
restrictions.

a) The sovereignty and integrity of India


or

b) Public order or

c) Morality.

Art 19 (1) (d):- Freedom of


Movement

It guarantees to all citizens a


right to move freely throughout
the territory of India.
It includes not only from one
State to another State but also
from one place to another place
within the State.

On the following grounds


mentioned under Art 19 (5),
restrictions can be imposed.

a) In the interests of the general


public or
b) For the protection of the interests
of any Scheduled Tribe.
The object is to protect the
original tribes which are mostly
settled in Assam. These tribes
have their own culture,
language, customs and
manners. It was considered
necessary to impose restriction
upon the entry of outsiders to
these areas. It was feared that
uncontrolled mixing of the tribes
with the people of other areas
might produce undesirable effect
upon the tribal people.

Demonstration or picketing