Right of Freedom: Article 19 | Constitutional Law - CLAT PG PDF Download

Right to Freedom

• Article 19(1) of the Indian Constitution guarantees citizens six essential freedoms: freedom of 'speech and expression,' 'peaceable assembly,' 'association,' 'free movement,' 'residence,' and 'practising any profession and carrying on any business.'
• These freedoms are crucial for promoting basic rights, democratic values, and the unity of the nation. Article 19 safeguards fundamental rights inherent to individuals.
• The right to 'freedom of speech and expression' under Article 19(1)(a) is broader than just speech and expression. It includes the right to express views and opinions through various mediums like words, writing, printing, pictures, films, etc.
• However, this right is subject to reasonable restrictions as outlined in Article 19(2).

Different Dimensions Of Right To Freedom Of Speech And Expression 

• Right to Silence:  The right to silence is an integral part of the right to freedom of speech and expression. It includes the freedom not to listen and not to be compelled to hear. For instance, the use of loudspeakers to force someone to hear something they do not wish to is not a part of the rights guaranteed by Article 19(1).
• Right to Receive Information:  The right to receive information is encompassed within the freedom of speech and expression. It includes the right to acquire and disseminate information through various media, such as print, electronic, or audio-visual. This right is crucial for promoting freedom of expression and is integral to Article 19(1)(a).

Freedom of the Press

In India, freedom of the press is derived from the right to freedom of speech and expression under Article 19(1)(a) of the Constitution. There is no separate provision for press freedom; it is considered a subset of freedom of expression. Therefore, the press does not have any special privileges beyond those granted to individual citizens.

Key Legal Cases 

• Romesh Thapar v. State of Madras  : The Supreme Court ruled that freedom of speech and press is fundamental to democracy. In this case, the government banned the circulation of an English journal, which the Court found to violate the right to free speech.
• Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer  : The Court reiterated that freedom of the press, while not explicitly stated as a Fundamental Right, is implicit in the right to free speech and expression. The press is considered the fourth estate and its freedom is essential for democracy.

Sakal Papers Case 

• In  Sakal Papers  case, the Supreme Court struck down an Act and a government order that attempted to regulate the number of pages in a newspaper based on its price, control the number of supplements, and dictate the size and area of advertisements.
• The Court ruled that such regulations violated the freedom of the press, which is an essential aspect of the right to free speech and expression.

The  press  has been traditionally seen as the  fourth estate  , playing a crucial role in a democratic society. The extent of press freedom is often used as a measure of a country's democratic health. Despite not being explicitly mentioned as a Fundamental Right, the freedom of the press is a vital component of the broader right to freedom of speech and expression in India.

Censorship of Films 

• In K.A. Abbas v. Union of India  , the Supreme Court upheld the censorship of films under Article 19(1)(a) of the Constitution.
• The Court argued that films evoke  emotions  more powerfully than other forms of art, justifying their separate treatment.
• Censorship of films, therefore, falls within the permissible grounds outlined in Article 19(2).

Telecasting 

• In the case of  Cricket Association  , the Supreme Court addressed the issue of  freedom of telecasting  in relation to Article 19(1)(a) of the Constitution.
• Telecasting, whether audio, visual, or both, is considered a form of  communication  protected under the right to freedom of speech and expression.
• The organization, production, and recording of events in India are aspects of this freedom, with reasonable restrictions allowed under Article 19(2).
• Publication or communication of recorded events through cassettes is also protected, subject to legal restrictions under Article 19(2).
• The right to impart and receive information and ideas without interference is a crucial part of freedom of speech and expression.

Regulatory Powers Over Broadcasting 

• The Indian Constitution prohibits monopolies in both print and electronic media, allowing state monopolies only in specific trades or businesses.
• The government has regulatory powers over broadcasting to ensure public benefit and prevent concentration of frequencies among a few individuals.
• In democratic countries, this regulatory function is typically carried out by an independent autonomous broadcasting authority, free from state control.
• The Supreme Court has emphasized that airwaves are public property and their use must be regulated in the public interest.
• Individuals have the fundamental right to use airwaves for imparting and receiving information, with access to telecasting being subject to public property limitations.
• Broadcasting media should be controlled by the public, not the government, to ensure diverse representation and prevent monopolization of information dissemination.

Freedom of Speech and Expression 

• Freedom of speech and expression includes the right to communicate information and ideas without interference, as well as the right to receive such information.
• The right to telecast a sporting event encompasses the right to educate and inform current and future sports enthusiasts about the game.
• Telecasting activities by organizations like the Board of Cricket Control or the Cricket Association, which operate on a "no profit no loss" basis, are primarily educational and entertaining, falling under Article 19(1)(a).
• The Supreme Court has broadly interpreted Article 19(1)(a) to include broadcasting and telecasting, freeing these activities from government monopolistic control.
• The regulation of airwaves will now be managed by an autonomous body rather than the government, ensuring public interest and preventing monopolization.

Voting 

• Voting in an election is a form of  expression  . A voter has the  freedom  to choose  candidates  based on personal criteria.
• Voters must have access to necessary information to make informed decisions about candidates vying for positions such as  Member of Parliament (MP)  or  Member of Legislative Assembly (MLA)  .

Restrictions under Article 19(2)

Grounds of Restrictions 

While it is essential to uphold and protect the freedom of speech and expression in a democracy, it is equally important to impose certain limitations on this freedom to maintain social order. No freedom can be entirely absolute or without restrictions. Consequently, under Article 19(2) of the Indian Constitution, the state is allowed to enact laws imposing 'reasonable restrictions' on the exercise of the right to freedom of speech and expression in the interests of:

• Security of the State 
• Friendly relations with foreign States 
• Public order 
• Decency 
• Morality 
• Sovereignty and integrity of India 
• Contempt of Court 
• Defamation 
• Incitement to an offence 

The phrase "in the interests of" used in Article 19(2) provides a broad scope for the laws that can be enacted to impose reasonable restrictions on the right guaranteed by Article 19(1)(a) under the specified heads. Restrictions on the right to freedom of speech and expression cannot be imposed on any grounds other than those mentioned in Article 19(2).

The burden of proof lies with the authorities to justify the restrictions imposed. The grounds listed in Article 19(2) are primarily aimed at protecting national interest and societal well-being. The first set of grounds—sovereignty and integrity of India, security of the State, friendly relations with foreign States, and public order—relate to national interest. The second set of grounds—decency, morality, contempt of Court, defamation, and incitement to offence—pertain to societal interests. Some of these grounds for imposing restrictions are elaborated below.

Security of State and Public Order 

Article 19(2) introduces the concepts of 'public order' and 'security of state.' It is important to note that 'public order' is a broader concept than 'security of state.' The Supreme Court has clarified that while both terms exist in Article 19(2), their meanings are distinct. 'Security of state' is specifically and explicitly mentioned, which means that 'public order' cannot encompass 'security of state,' although it may include it in a broader sense. Therefore, in this context, 'public order' is largely synonymous with public peace, safety, and tranquility.

• The term 'public order' includes disturbances such as small riots, affrays, breaches of peace, or any acts that disrupt public tranquility. However, 'public order' and 'public tranquility' are not always interchangeable. For instance, a person playing loud music at night in their home may disturb public tranquility without necessarily infringing on public order. Thus, actions that only disrupt the peace of others without causing a public order issue may not fall under the definition of 'public order.'
• Section 124A of the Indian Penal Code (I.P.C.) penalizes individuals who, through spoken or written words, attempt to incite hatred or contempt towards, or excite disaffection against, the government established by law. During the pre-Independence period, this section was interpreted very broadly, where any attempt to incite negative feelings towards the government was punishable regardless of whether it led to public disorder. However, such a broad interpretation could not be sustained under Article 19(2).
• In the case of Kedar Nath v. State of Bihar, the Supreme Court upheld Section 124A by adopting a restrictive interpretation, limiting its application to activities that were intended or likely to create disorder.

Sovereignty and Integrity of India 

Section 2 of the Criminal Law Amendment Act, 1961, criminalizes the questioning of the "territorial integrity or frontiers of India" in a manner that is prejudicial to the safety or security interests of India.

Friendly Relations with Foreign States 

The rationale behind imposing restrictions on freedom of speech in the interest of maintaining friendly relations with foreign countries is to prevent persistent and malicious propaganda against foreign powers that have friendly relations with India. Such propaganda could cause significant embarrassment to India, and therefore, it may be prohibited. This ground is broad in scope and could potentially support legislation that restricts even legitimate criticism of the foreign policy of the Government of India.

 Incitement to an Offence 

• According to general criminal law principles, incitement and abetment of a crime are punishable. Incitement to serious and aggravated offences, such as murder, may be considered a matter of national security. Incitement to various other offences may be punishable as affecting public order. However, there are certain offences like bribery, forgery, cheating, etc., that do not have a public order aspect, and incitement to these offences could not be punished under the guise of public order. Therefore, Article 19(2) uses the term 'incitement to an offence.'
• The word 'offence' is not explicitly defined in the Constitution, but as per the General Clauses Act, it refers to any act or omission that is punishable by law. This is a broad concept, allowing the Legislature to create offences and make incitement to them punishable. In this way, freedom of speech can be effectively restricted, as any subject can be excluded from public discussion by making it an offence.

 Contempt of Court 

• In a democratic society, freedom of speech and expression is a valuable privilege and an important right of the people. However, it is equally important to maintain the independence and integrity of the judiciary and public trust in the administration of justice. Therefore, it is necessary to strike a balance between these two values.
• The Supreme Court and each High Court have been granted the power to punish contempt under Articles 129 and 215 of the Constitution, respectively. As a result, the freedom of speech and expression guaranteed by Article 19(1)(a) is subject to the provisions of Articles 19(2), 129, and 215.
• Contempt of other courts can be punished by the High Courts under the Contempt of Courts Act, 1952. A challenge to this Act, claiming it imposes an unreasonable restriction on the right under Article 19(1)(a) because it does not define 'contempt of court,' has been rejected. The expression 'contempt of court' has a well-established judicial interpretation.

 Defamation 

• Defamation is both a criminal offense and a civil wrong. According to legal scholar Winfield, defamation involves the publication of a statement that harms a person's reputation and tends to lower them in the estimation of right-thinking members of society or leads people to avoid or shun them. 
• As a criminal offense, defamation is defined in Section 499 of the Indian Penal Code (I.P.C.). The law aims to protect an individual's reputation in the same way it protects their person or property.

Decency or Morality 

Decency and morality are subjective concepts that lack a fixed definition, as societal standards of decency and morality can vary over time and between different communities. The Indian Penal Code (I.P.C.) addresses certain offenses related to decency and morality in Sections 292 to 294. These sections include offenses such as selling obscene books, selling obscene items to minors, committing obscene acts, or singing obscene songs in public places. Section 292 of the I.P.C. has been upheld as valid because the law against obscenity aims to promote public decency and morality.

Freedom to Assemble: Articles 19(1)(b) and 19(3) 

Article 19(1)(b) grants Indian citizens the right to assemble peacefully and without arms. However, Article 19(3) allows the state to impose reasonable restrictions on this right for reasons of public order, sovereignty, and integrity of India.

• There is a connection between Articles 19(1)(a) and 19(1)(b). For instance, demonstrations and processions under Article 19(1)(a) also fall under Article 19(1)(b). The right to strike is not covered by either article.
• Article 19(1)(b) does not give anyone the right to hold meetings on government premises. For example, the Railways can prohibit meetings on their property, whether during or outside office hours. However, the right to hold public meetings on government property, like a park, can be established through usage.
• It is not permissible to give administrative officers unchecked power to regulate the freedom of assembly. A rule banning public meetings on streets without police permission was deemed invalid in the case of  Himmat Lal v. Police Commissioner  .

 Freedom to Form Association: Articles 19(1)(c) and 19(4) 

• Article 19(1)(c) ensures Indian citizens the right to form associations or unions. However, Article 19(4) allows for reasonable restrictions on this right in the interests of public order, morality, or the sovereignty and integrity of India.
• The right to form associations is crucial for democracy, as it enables the formation of political parties essential for the functioning of a democratic government. Therefore, the Constitution protects this right with certain restrictions under Article 19(4).
• The Courts recognize the importance of the right to form associations in a democratic society and generally oppose giving absolute power to the executive to interfere with this Fundamental Right. For example, granting a government official the authority to prohibit the formation of an association without proper safeguards is considered unconstitutional.
• Under the  Unlawful Activities (Prevention) Act, 1967  , the Central Government can declare an association unlawful through official notification. To regulate this power, a tribunal consisting of a sitting High Court Judge is appointed to review such declarations. A notification declaring an association unlawful is not effective until confirmed by the tribunal.
• There is ongoing debate about whether the Fundamental Right to form an association includes the right to refuse to form one. In the case of Tikaramji v. State of Uttar Pradesh, the Supreme Court suggested that while the right to form an association may imply a right not to form one, the negative right may not necessarily be a Fundamental Right.
• A voluntary co-operative society of canegrowers supplying sugarcane to sugar mills did not violate Article 19(1)(c) as membership was optional. Similarly, a government-sponsored association could not compel teachers to join, as it infringed Article 19(1)(c).

 Freedom of Movement and Residence: Articles 19(1)(d), 19(1)(e), and 19(5) 

• Article 19(1)(d) grants every citizen the right to move freely throughout the territory of India. Article 19(1)(e) ensures the right to reside and settle in any part of India. However, Article 19(5) allows the State to impose reasonable restrictions on these rights for the general public interest or the protection of Scheduled Tribes' interests.
• These constitutional provisions emphasize that Indian citizens have the right to go or reside wherever they wish within the country. Citizens can move freely between States or within a State, reinforcing the idea of India as a unified entity for its citizens.
•  Wearing Helmets  A regulation under the  Motor Vehicles Act  mandating helmet use for scooter or motorcycle riders was challenged as a violation of Article 19(1)(d) (freedom of movement). However, the Court upheld the rule, stating it was intended for the rider's safety and public welfare, not to restrict movement. Even if the rule limited movement, it was justified under Article 19(5) as a reasonable restriction for public interest.

Freedom to Carry on Trade and Commerce: Articles 19(1)(g) and 19(6) 

Article 19(1)(g) guarantees all citizens the right to practice any profession or carry on any occupation, trade, or business. However, Article 19(6) allows the state to impose reasonable restrictions on this right in the interest of the general public. The state can also make laws regarding professional or technical qualifications necessary for practicing a profession or carrying on any occupation, trade, or business.

Article 19(6)(ii) enables the state to create partial or complete monopolies in trade, business, industry, or service. The state can engage in trade like any individual for administrative reasons, to address trade-related issues, or to generate profits for the exchequer.

Restrictions on Trade and Commerce 

In various cases, courts have upheld measures impacting trade and commerce, arguing they do not infringe on the concerned Fundamental Right.

• In  Ram Jawaya v. State of Punjab  , the government scheme to nationalize school textbooks was deemed valid under Article 19(1)(g) because it did not restrict private publishers' rights to print and publish freely. The government had the authority to choose textbooks for recognized schools.
• In  Bombay Hawkers' Union v. Bombay Municipal Corporation  , the Supreme Court ruled that hawkers do not have a Fundamental Right under Article 19(1)(g) to conduct trade on public streets. Public streets are for general public use, not for facilitating private trade. However, hawkers should not be entirely denied the right to trade, and the Court directed the establishment of hawking zones with reasonable licensing requirements.
• In  Excel Wear v. Union of India  , a provision requiring government permission for employers to close down a business was declared unconstitutional. The Court emphasized that the right to close a business is part of the right to carry on any business under Article 19(1)(g). While this right can be restricted for public interest, the restrictions in question were deemed unreasonable due to the lack of a review process for government decisions. The Court distinguished between the rights to close and not to start a business, stating they are not equivalent.
• Subsequently, Section 25-N was enacted, stating that employers cannot retrench workers with over a year of service without government consent. If the government does not decide within two months, permission is considered granted.