“Man is condemned to be free; because once thrown into the world, he is responsible for everything he does….”
“…..Freedom is what you do with what has been done to you”-Jean Paul Sartre
- Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right— (a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions [or co-operative societies];
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f)( repealed by the constitution 44th amendment Act 1979, with effect from 20.06.1979)
(g) to practise any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.
This article corresponds to :
- i) First and Fourteenth Amendments to the Constitution of USA
- ii) Common Law of England subject to specific statutory laws.
iii)Section 40(6)(1) of Constitution of Eire 1937
iv)18(1) (e) (f) (g) of constitution of Sri Lanka 1972
v)Articles 50 and 51 of Constitution of USSR 1977
vi)Section 298 of Government of India Act 1935
This Article is also co-relatable to some international conventions, including;
- Universal Declaration of Human Rights 1948.
- International Covenant of Civil and Political Rights 1966
- Article 11 of European Convention of Human Rights 1950
- Articles 6 and 12 of International Covenant of Economic, Social and Cultural Rights 1966
Thus in its grand sweep this Article 19 emerges in the constitutional scheme as a citadel of liberty of the citizens of India, while essentially being an embodiment of ‘general thoughts’ on the concept of ‘freedom’ in the socio-political domains of life. These ‘general thoughts’ are tersely referred to as ‘general questions raised by this Article’, by H M Seervai, an eminent scholar of constitutional law, in his magnum opus ‘Constitutional Law of India.’
This Article 19, being an amalgam of rights and restrictions, is self clarificatory to the effect that only ‘rights’ enshrined in the text are fundamental, while the restrictions enumerated in the text of the Article, being not quintessentially part of fundamental status, necessarily have to firmly stand on the touchstone of reasonableness.
The expression ‘reasonable restrictions’ used in this article is akin to the expressions : ‘inherent tendency’ or ‘reasonable tendency’ as used in American constitutional law (Hari Dass v Usha Rani Banik AIR 2007 SC 2688).
Another cognate question : whether the test of reasonableness contemplated in Article 14 and the test of reasonableness related to the restrictions mentioned in this Article are same and similar? Insofar as the inbuilt concept of reasonableness in this Article is concerned, the reasonableness of restrictions has to be weighed against the sacrifice/peril of deprivation of the constitutionally guaranteed liberty to the citizens.
In Surajmal v ITC AIR 1961 Cal 578, Hon’ble Bench held that while under Article 14, the law focuses on reasonable classification having reasonable nexus to the object of law, under Article 19, the Court focuses on the reasonableness and constitutional validity of restrictions imposed on the six guaranteed freedoms to rule out any unnecessary weight of any restriction. Hon’ble Bench in the said case held that if equal standard of reasonableness is introduced in Article 14 and Article 19, it would tantamount to holding that the concept of ‘due process’ of American law also forms the core of Constitution of India, which is certainly contrary to the letter and spirit of Indian Constitution. Thus the test of ‘reasonableness’ in both the Articles 14 and 19 stand on different footing, even though often overlapping, at some logical points.
Regarding the test of reasonableness ingrained in the Article 19 for the purpose of evaluation of the questions of the constitutional validity of the imposed restrictions, the following dicta of Apex Court needs to be borne in mind;
“It is important to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statue impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of value of the judges participating in the decision should play an important part, and the scale of to their interference with legislative judgment in such case can only be directed by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorizing the imposition of the restrictions, considered them to be reasonable” (Chintaman Rao V M.P. AIR 1951 SC 118 )
At the outset, it is proper to clarify that the words ‘Nothing in the sub clause….’ clauses (2) to (6) of article 19. This prefixes are inserted ex majore cautela and are not be read or treated as a ‘legislative device’.
The expression ‘in the interest of….. ’ employed in clauses (2) to (6) of Article 19 also need to be clarified. The expression signifies that preventive exercise of power to impose restriction, on the touchstone of rationality, stands constitutionally recognized. ( Ramji lal Modi v State of UP, AIR 1957 SC 620 )
The expression ‘in the interest of public order.’ has wider meaning than the expression ‘for maintenance of the public order’. Thus legislature can reasonably curb the utterances which have tendency to cause public disorder ( Virendera v State of Punjab AIR 1957 SC 896 ) or to excite religious disaffection ( Ramji lal Modi v State of UP, AIR 1957 SC 620 )
However, the expression ‘public order’ is narrowly construed and all acts which disturb public tranquility are not treated as per se sufficient to impose restrictions.( Madhu limaye v SDM , Mongyr AIR 1971 SC 2486 )
Another vital question of general nature is: Whether the expression ‘reasonable restriction’ includes ‘prohibition’? This question was affirmatively answered by Apex Court in Narendra Kumar vs Union of India 1960 (2) SCR 387. Hon’ble Bench held as under:
“It is reasonable to think that makers of the constitution considered the word restriction to be sufficiently wide to save laws inconsistent with Article 19(1), or taking away the rights conferred by the Article, provided this inconsistency or taking away was reasonable in the interests of different matters mentioned in the clause. There can be no doubt, therefore that they intended the word restriction to include the cases of prohibition also. The contention that the law prohibiting the exercise of fundamental right is in no case saved, cannot therefore be accepted.”
In another important case, RMD Chamarbaugwala v UOI AIR 1957 SC 628- A question was raised by the Court: “ Can legislature of a State contract away its power to establish such regulations as are reasonably necessary ,from time to time, to protect the public morals against evils of lotteries?”
The said question was answered in the negative through the following words of Justice Krishna Iyer;
“We have no hesitation, in our hearts and our heads, to hold that every systematic, profit-oriented activity, however sinister, suppressive or socially diabolic, cannot ipso facto, exalt itself into a trade. Incorporation of Directive Principles ..casting the high duty upon the State to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice-social, economic, and political-shall inform all the institutions of the national life, it is not idle print but command to action. We can never forget, except at our peril, that the Constitution obligates the State to ensure an adequate means of livelihood to its citizens and to see that the health and strength of workers, men and women are not abused, that exploitation, moral and material, shall be extradited… At this point, the legal culture and the public morals of a nation may merge, economic justice and taboo of traumatic trade may meet and jurisprudence may frown upon dark and deadly dealings.”
Article 19(1)(g) or Article 301 do not, within their scope, include the activities which are criminal or permit inclusion of all such dealings as are legally categorized as ‘res extra commercium’ (a thing outside commerce).
The history of amendments relating to this Article also elucidates its reach and scope, while unfolding the objects of each clause of this Article.
Clauses (2) and (6) of Article 19 were amended by Constitution First Amendment Act 1951. The following amendments were brought into effect on 18.06. 1951 retrospectively;
- Addition of new grounds of restrictions upon freedom of speech : friendly relations with foreign states , public order ,incitement to an offence
- The erstwhile ground : ‘tends to overthrow the State’ was deleted
- Words ‘libel’ and ‘slander’ were replaced by the word ‘defamation’
- The expression restriction was inserted to qualify all the grounds
Another amendment in clause (6) of Article 19 freedom of trade, profession was effected and the freedom of trade, profession etc. were qualified by new grounds of restrictions viz. carrying out trade, business industry or service by the State or by a corporation owned or controlled by the State. Thus a citizen cannot claim as a matter of right that such action of the State ousts him from his business etc.
Thereafter through Sixteenth Amendment ( 06.10.1963 ) and Forty Fourth Amendment (30.04.1979 ) , this article was again amended as follows ;
Through 16th Amendment clauses (2) (3) (4) of Article 19 were amended and the ground of maintenance of the sovereignty and integrity of India was included as a ground upon freedom of expression, assembly and association, guaranteed by sub clauses (a) to (c) of clause (1) of this Article.
Forty Fourth Amendment Act 1978 led to omission of sub clause (f) of clause 1 of this Article. Thus the right to property was excluded from the list of fundamental rights.
In Malerkotla v Mohammad Mushtaq AIR 1960 Punjab 18 the court relied upon the Maxim: “it is an everlasting law, that no positive and human law shall be perpetual and a clause which excludes abrogation is not good from its commencement.”
The facts of the said case pertained to challenge of an action of Punjab Municipal committee under section 152 of the Punjab Municipal Act, 1911. The petitioner had converted his house into a brothel and there were multiple complaints against him. A number of persons picked from that house and were prosecuted for carrying out prostitution and other such activities. The municipality of Malerkotla, exercising powers under section 152, evicted them from the premises without providing any alternative accommodation to them. High Court of Punjab, considering the challenge on the anvil of Article 19, reversed the decision of the Sessions Court while holding that Municipal Committee was competent to prohibit the practice of prostitution or keeping of a brothel. The High Court further held that Municipal Committee was under no obligation to provide alternate accommodation.
Another general question is : Whether a corporation is a citizen for the purpose of exercise of rights under Article 19?
In State trading Corporation of India Limited v. CTO,(1963 AIR SC 1811) a nine judge bench with majority of 7:2 held that corporation is not a citizen; therefore, it could not invoke Article 19. In the said case, the question of lifting the corporate veil was not raised before the bench. Thus the decision continues to hold the field for a long spread of time. However, in RC Cooper Vs. union of India AIR 1970 SC 564 (bank nationalization case), Hon’ble Supreme Court decided the rights of 14 nationalized banks under Article 19(1)(f), on the petition of one shareholder, who claimed to be Director of Central Bank of India Limited. But the decision in State Trading Corporation case was not thereby changed. Thus the corporation remains deprived of its recognition as a citizen for the purposes of Article 19.
Dwelling upon the expression ‘clear and present danger’ the following view of Lord Sumner (in Rowman v Secular Society) is relevant ;
“The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. In the presented by meetings or possessions are held lawful which a hundred and fifty years ago would have been deemed seditious, and this is not because the law is weaker or has changed, but because, the times having changed, society is stronger than before. In the present day reasonable men do not apprehend the dissolution or downfall of society because religion is publicly assailed by methods not scandalous. Whether it is possible that in the future irreligious attacks, designed to undermine fundamental institutions of our society, may come to be criminal in themselves, as constituting a public danger, is a matter that does not arise. The fact that opinion grounded on experience has moved one way does not in law preclude the possibility of its moving on fresh experiences in the other; nor does it bind succeeding generations, when conditions have again changed. After all, the question whether a given opinion is a danger to the society is a question of times and is a question of fact. I desire to say nothing that would limit the right of society to protect itself by process of law from the dangers of the movement, whatever that right may be, but only to say that, experience having proved dangers once thought real to be now negligible, and dangers once very possibly imminent to have now passed away, there is nothing in the general rules as to blasphemy and irreligion… which prevents us from varying their application to the particular circumstances of our time in accordance with that experience. And judgments of the Indian Courts show that the approach indicated by the Lord Sumner is best adapted for determining the reasonableness of restrictions.”
Articles 14, 19 and 21 are not exclusive to each other but intrinsically co-related.(Add Secretary Govt of India Valka Subhash Gadla, 1992 Supp(1)SCC 496).
Where Articles 31A , 31 B and 31 C apply, Article 19 is overshadowed and is of no avail.( Srinivasa Raghavchar H. S. v State of karnatka , AIR 1987 SC 1518)
As citizenship itself is not a fundamental right of a person, being subject to legislative competence under Article 11, a person cannot claim infringement of Article 19 consequent upon termination of his citizenship (Izhar Ahmad Khan v UOI, AIR 1962 SC 1052 ).
Article 19 is confined to civil rights in contradistinction with political rights , such as, right to vote ( Ponnuswami NP v Returning Officer AIR 1952 SC 64), right to hold any political office or the privileges of chamber of the legislature(Ananda Nambiar K v Chief Secretary To Govt. of Madras AIR 1966 SC 657 ).
Article 19 covers the domain of natural or common law rights as distinguished from statutory rights, such as right of a lawyer to practice before a court, the right to hold a public office, right to stand as candidate for election to Municipal Body or Legislature etc. Thus rights are available only subject to the restrictions imposed thereon (Jamuna Prasad Mukharia v Lacchi Ram, Air 1954 SC 686 ).
The an unincorporated associations of the citizens cannot be equated with a corporate entity in the context of the claim for invoking Article 19 (All India Bank Employees Association v N I Tribunal, AIR 1962 SC 171.
Article 19 recognizes and guarantees vital and basic rights inherent in the status of free citizen of a free country. Thus right to burn copy of Constitution of India is not protected under this Article . ( Re Nataranjan N.V. AIR 1965 Mad 11).
Besides the aforesaid general questions relating to Article 19, the bunch of individual rights contained in this Article are enumerated in Article19(1) are rights to six (originally seven) freedoms for building a virtuous foundation, through unhindered intellectual self expression and social intercourse, amongst citizens to nurture a progressive, inclusive, productive and positive society.
Instances of unreasonable restrictions in respect of Substantive aspects
Section 3(d) of the Drugs & Magic Remedies (Objectionable Advertisement) Act 1954, provides-“… no person shall take part in any publication of any advertisement referring to any drug which suggested…the use of that drug for- the diagnosis, cure, mitigation treatment or prevention of any venereal disease or any other disease or condition which may be specified in rules made under this Act”
The rule-making power under the Act was given to the Central Government. Held, that the italicized portion conferred uncanalised and uncontrolled power to the Executive to include, by specifying it in the Rules, any disease within the mischief of the Act, and thus imposed an unreasonable restriction upon the freedom of expression. (Hamdard Dawakhana v. UOI, Air 1960 SC 554: 1960 (2) SCR 671)
- Section 8 of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954, which was enacted “to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith, provided—
“Any person authorized by the State Government …. May seize and detain any document, article or thing which such person has reason to believe contains an advertisement which contravenes any of the provisions of this Act….”
Held, that the above provision went far beyond the purposes of the Act and, in the absence of adequate safeguards, constituted an unreasonable restriction on the freedom of expression guaranteed by Article 19(1)(a). (Hamdard Dawakhana v. UOI, Air 1960 SC 554: 1960 (2) SCR 671)
- Rule 4-A of the Bihar Government Servants Conduct Rules, 1956, which prohibits Government servants from participating in any demonstration..with any matter pertaining to his conditions of service has been struck down as an unreasonable restriction on the ground that it is wide enough to include within its prohibition even the demonstrations or expressions of ideas which are peaceful and orderly and may not, accordingly, lead to a breach of public order. (Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166 (1172): 1962 Supp. (3) SCR 369)
- A person detained under the D.I. rules cannot be deprived of his right to publish a book unless the publication itself is prejudicial to the objects of the D.I. Act. (State of Maharashtra v. Pandurang Sanzgiri, Prabhakar, AIR 1966 SC 424: 1966(1) SCR 702)
- An instrumentality of the State (e.g. L.I.C.) cannot refuse to publish scholarly criticism of its policies (LIC v Manubhai D. Shah, Prof., (1992) 3 SCC 637: AIR 1993 SC 171). Similarly, Doordarshan cannot deny access to the screen to a film maker whose film has been acclaimed and received a prestigious award. (LIC v Manubhai D. Shah, Prof., (1992) 3 SCC 637: AIR 1993 SC 171).
Instances of unreasonable restrictions in respect of Procedural Aspects
- Section 20 of the Dramatic Performances Act, 1876, which empowers an executive officer to restrict a dramatic performance on his subjective satisfaction and without giving an opportunity to be heard to the persons going to be affected by the order, constitutes an unreasonable restriction upon the freedom of expression. (Abbas K.A. v UOI, AIR 1971 SC 481: (1970) 2 SCC 780; Rangarajan S. v Jagjivan P., (1989) 2 SCC 574 : 1989 (2) JT 70)
- Section 3(1) of the Punjab Special Powers (Press) Act, 1956, which empowered the State Government to prohibit the bringing into the State of any newspaper, if the Government was satisfied that such action was necessary for the maintenance of communal harmony or public order, has been held to be invalid on the ground that it placed whole matter at the subjective satisfaction of the State Government without even providing for a right of representation to the party affected. ( Virendra v. State of Punjab, AIR 1957 SC 896 : 1958 SCR 308)
Unreasonable restrictions upon freedom of press.
- It would not be legitimate for the state-
- To subject the press to the laws which take away or abridge the freedom of expression or which would curtail circulation and thereby narrow the scope of dissemination of information or fetter its freedom to choose its means of exercising the right or would undermine its independence by driving to seek Government aid. (Express newspapers ltd. v UOI, Air 1958 Sc 578(614): 1959 SCR 12; I.E. Newspapers v UOI, AIR 1986 SC 515 (paras 42ff.) : (1985) 1 SCC 641)
- To single out the Press for laying upon it excessive and prohibitive burdens which would restrict the circulation, (Express newspapers ltd. v UOI, Air 1958 Sc 578(614): 1959 SCR 12; I.E. Newspapers v UOI, AIR 1986 SC 515 (paras 42ff.) : (1985) 1 SCC 641; Bennett Coleman v UOI, AIR 1973 SC 106 (124-25): (1972) 2 SCC 788: Casebook I, pp259-64) impose a penalty on its right to choose the instruments for its exercise or to seek an alternative media (Virendra v. State of Punjab, AIR 1957 Sc 896: 1958 SCR 308; Sher Singh, S v. R.P. Kapur, Air 1968 Punj 217: 1968 Cri. L
- To impose a specific tax upon the Press deliberately calculated to limit the circulation of information. (Express newspapers ltd. v UOI, Air 1958 Sc 578(614): 1959 SCR 12; I.E. Newspapers v UOI, AIR 1986 SC 515 (paras 42ff.) : (1985) 1 SCC 641)
- To require the newspapers either to reduce the number of their pages or to raise their prices, according to a schedule prescribed by the State (Express newspapers ltd. v UOI, Air 1958 Sc 578(614): 1959 SCR 12; I.E. Newspapers v UOI, AIR 1986 SC 515 (paras 42ff.) : (1985) 1 SCC 641), on some ground extraneous to Cl. (2), e.g. the elimination of unfair competition amongst newspapers, (Sakal Papers (P.) ltd v UOI, AIR 1962 Sc 305: 1962 (3) SCR 842; Express Newspapers v UOI , Air 1986 Sc 872 (para 76): (1986) 1 SCC 133), or to fix a manximum page level (Prabha Dutt v UOI , Air 1982 SC 6: (1982) 1 SCC 1)
- On the other hand, it would be open to the State to restrict the commercial activities of a newspaper, in the public interest in so far as that can be done without restricting the freedom of expression or circulation of a newspaper. (Bennett Coleman v UOI, Air 1973 Sc 106 (124-25): (1972) 2 SCC 788 Casebook I, pp. 259-64). Thus the right to publish an advertisement is not a part of the freedom of expression but, if a restraint on advertisement curtails circulation, it would offend Article 19(1)(a). (Bennett Coleman v UOI, Air 1973 Sc 106 (124-25): (1972) 2 SCC 788 Casebook I, pp. 259-64)
- The freedom of expression of the Press cannot be abridged on the ground of conferring benefit upon the public or any section thereof (Bennett Coleman v UOI, Air 1973 Sc 106 (124-25): (1972) 2 SCC 788 Casebook I, pp. 259-64)
“People demand freedom of speech as a compensation for the freedom of thought, which they seldom use.”