Article 19 of the Indian Constitution

Personal liberty is the most important of all fundamental rights. Articles 19 to 22 deal with different aspects of this basic right. The foremost amongst these are six fundamental rights in the nature of freedoms which are guaranteed to the citizens by Article 19 of the Constitution. 

Article 19: Protection of certain rights regarding freedom of speech etc. 

Article 19 (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]; (Inserted by Constitutional (97th Amendment) Act, 2011 ) 

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; 

(f) ( Right to property was omitted by  Constitutional (44th Amendment) Act, 1978 ) 

(g) to practise any profession, or to carry on any occupation, trade or business.

These rights are however, not absolute. 

Case: AK Gopalan 🆚 State of Madras,   1951 SC

Held : SC held that man as a rationale being desires to do many things, but in civil society is desires have to be controlled, regulated and reconciled with the exercise of similer desires by other individuals. 

The restriction which may be imposed under any of the clauses must be reasonable restriction. Hence a restriction to be constitutionally  valid must satisfy the following two test - 

 (i) the restriction must be for the purposes mentioned in clauses 2 to 6 of Article 19;

(ii) the restriction must be reasonable restriction. 

Test of reasonable restriction-

The restriction on the rights under Article 19(1) can only be imposed by a law and not by executive or departmental instructions. However, there is no definite or absolute test to judge the reasonableness of restriction. 

The SC has laid down the following guidelines for determining the reasonableness of restriction -

(1) It is the courts and not the Legislature            which has to judge finally whether a                restriction is reasonable or not. 

(2) The term "reasonable restriction" In                Article 19(6) connotes that the limitation        imposed on a person in the enjoyment of        his right should not be arbitrary or of an        excessive nature beyond what is actually        required in the internet of the public.

(3) There is no exact standard or general              pattern of reasonableness that can be              laid down for all cases. 

(4) The restriction must be reasonable form         the substantive as well as procedural               stand point.  (NB Khare vs State of                Punjab, 1960 SC) 

(5) A restriction which is imposed for                    securing the objects laid down in DPSP 

      May be regarded as reasonable                          restriction ( State of Gujarat vs                        Mirzapur Moti Kureshi Kasab Jmat, 

      2006 SC) 

(6) The court must determine the                            reasonableness of a restriction by

      objective standard and not by subjective 

       one. 

(7) A restriction to be reasonable must have 

      a rational relation with the object which 

     the Legislature seeks to achieve and must 

     not be in excess of that object. 

     ( Arunachal Nadar vs State of Madras, 

     1959 SC) 

(8) It is the reasonableness of the restriction

     Which is to be determine by the court and

     Not the reasonableness of the law. 

(9) Restriction may also amount to                          prohibition under certain circumstances.

Right available to citizens only - 

Case : Louis De Raedt vs Union of india,                  1991 SC

Held - SC held that a foreigner is not a citizen of India and therefore he can't claim a right under Article 19 . 

Case : Tata Engineering  and Locomotive Co. 🆚 State of Bihar, 1965 SC

Held - SC held that 'citizen' under Article 19 mean only natural person and not legal persons, such as corporations for companies. 

Freedom of speech and expression               [Article 19(1)(a) & 19(2)]

Case: Romesh Thapper 🆚 State of Madras, 1950 SC

Held - SC observed that Freedom of Speech and of the 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. 

 

Case : Srinivas vs State of Madras, 1931 Mad

Held-The freedom of speech and expression includes liberty to propagate not one's views only but it also includes the right to propagate or publish the views of other people. 

Four special purposes of Freedom of speech and expression - 

1) It helps an individual to attain self fulfillment ;

2) It assists in discovering of truth ;

3) It strengthen the capacity of an individual in participating in decision making;

4) It provides a mechanism by which it would be possible to establish a reasonable balance balance between stability and social change. 

People's right to know 

Case- Secretary General, Supreme Court of India vs Subhash Chandra Agarwal, 2010 Del

Held- The source of right to information does not emanate from Right to Information Act. It is a right that emerges from constitutional guarantee under Article 19(1)(a) as held by SC in a catena of decisions. The Right to Information Act is not repository of the right to information. Its repository is the constitutional right guaranteed under Article 19(1)(a).

Right of voters to know about their candidates : A fundamental right

Case: Union of India 🆚 Association for Democratic Rights, 2002 SC

SC directed the Election Commission of India 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 benefits of voters. Parliament amended the Electoral Law (Representation of People) Act and negatived the Court's judgement and Election Commission's notification. 

Held: SC held that the amended Electoral Reforms Law passed by Parliament is unconstitutional as being violative of citizen's right to know umder Article 19(1)(a) of the Constitution. 

Denial to interview condemned prisoners

Case: M Hasan 🆚 Government of Andhra Pradesh 

The jail authorities did not give permission to a journalist and videographer to interview the prisoners in jail who had been sentenced to death. 

Held: SC held that the refusal to give permission amounts to deprivation to a citizen's fundamental right to freedom of speech and expression. Every citizen has right to propagate his ideas and views on many aspects of prisoners' life through available media without any fear or favour as long as they stand the test of reasonable restrictions. 

New dimension to freedom of speech and expression 

Case: Secretary, Ministry of I&B 🆚 Cricket Association of Bengal, 1995 SC

Doordarshan refused the other TV to telecast the cricket match. The CAB filed a writ petition and requested the Court to issue a direction for telecasting the matches in India and also provide signals to foreign TV for telecasting the matches to foreign viewers. 

Held: The Court directed the Doordarsha to provide all the facilities for the telecasting the matches by the agency appointed by CAB.

Territorial extent of Freedom 

Case: Maneka Gandhi 🆚 Union of India, 1978 SC

Held:SC held that there is no geographical limitation to freedom of speech and expression and it carries with it the right to gather information and also to speak andd express oneself at home and abroad and to exchange thoughts and ideas with others not only in India but also outside.

Freedom of Press 

Case: Printers (Mysore) Ltd. 🆚 Assistant Commercial Tax Officer, 1994 SC

Held: SC held that though freedom of press is not expressly guaranteed as a fundamental right but it is inflicted in freedom of speech and expression. Sc further held that no sales tax can be imposed on sale of newspaper in the country, though newspapers are not immune from all taxes.

Case: Ramesh Thapar 🆚 State of Madras, 1950 SC

Held: SC held that a law banning the entry and circulation of journal in a state was held to be invalid.

Case: Bennet Coleman and Company 🆚 Union of India, 1973 SC

The validity of the newsprint contract order which fixed the maximum number of pages in newspaper, was challenged.

Held: Court held the newsprint policy is not reasonable restriction within the ambit of Article 19(2).

Pre-censorship case

Case: Brij Bhushan 🆚 State of Delhi, 1950 SC

Commissioner of Delhi issued an order against your the printer, publisher etc. called the organiser, directing them to submit for scrutiny in duplicate before publications till further orders. 

Held: The Court struck down the order. The imposition of pre-censorship of a journal is a restriction on the liberty of the press.

Commercial Advertisements 

Case: Hamdard Davakhana 🆚 Union of India, 1960 SC

Validity of Drugs and Magic Remedies (Objectionable Advertisement) Act was challenged. 

Held: The Supreme Court held that an advertisement is definitely a form of speech. It may amount to expression of idea and propagation of human thoughts. Thus, it fall within the trapping of Article 19(1)(a). However, court further held that "commercial advertisement" having an element of trade and commerce which tends to promote business doesn't come in ambit of Article 19(1)(a). It is because such commercial advertisements do not promote the idea of social, political and economic thoughts.

Bandh

Case: Communist Party of India(M) 🆚 Bharat Kumar and Others, 1998 

Held: Kerala High Court held that calling and holding of "Bandh" by political party or organization is unconstitutional and is hence illegal as it violates the Fundamental Rights of the citizens guaranteed guaranteed by Article 19(1)(a) and 21 of the Constitution in addition addition to to causing national loss.

Film Censorship 

Case: KA Abbas 🆚 Union of India, 1971 SC

The first case in which the question whether prior censorship of films is included in Article 19(2) cause for the consideration of the SC of India. 

Held: The Court held that censorship of films including pre-censorship was constitutionally valid in India as it was reasonable restriction within the ambit of Article 19(2).

Strike

Case: OK Ghose 🆚 EX Joseph 1963 SC

Held:SC geld that there is no fundamental right to resort to strike. Right to strike is not included wuthin the ambit of freedom of speech.

Case: TR Rangarajan 🆚 Government of Tamil Nadu, 2003 SC

Held: Government servant has no right to go on strike, neither moral nor statutory.

Freedom of speech includes right to silence 

Case: Bijoe Emmanuel 🆚 State of Kerala, 1986 SC

The three children belonging to Jehorah's were expelled from the school for refusing to sing the National Anthem. 

Held: SC held that the children did not commit any offence under the Prevention of Insults of National Honour Act, 1971, because they stood up respectfully when the National Anthem was being sung. The children's expulsion from the school was a violation of their fundamental right under Article on 19(1)(a) which also include the freedom of silence.

Right to express gender identity 

Case:National Legal Services Authority 🆚 Union of India, 2014 SC

Held: SC held that a transgender has freedom to express one's chosen gender identity through various ways and means by way of expression, speech, mannerism, clothing etc. values of privacy, self- identity, autonomy and personal integrity are fundamental rights guaranteed to the members of the transgender community under Article 19(1)(a) and the state is bound to protect and recognize those rights. 

Article 19(2) Reasonable restrictions on freedom of speech and expression 

Article 19(2) empowers the State to put reasonable restrictions on the following grounds in Article 19(1)(a)-

• Security of the State
• Friendly relations with foreign State 
• Public order
• Decency 
• Morality 
• Contempt of court 
• Defamation 
• Incitement to offence
• Integrity and sovereignity of India. 

Difference between Law and Order, Public Order and Security of State

Case: Kishori Mohan 🆚 State of West Bengal, 1972 SC

Held: The SC differentiated between three  concepts : law and order, public order, security of State amd held- the difference between these concepts, can be explained by three functional concentric circles, the largest representing law and order, the next public order and the smallest, the security of state. 

Article 19(1)(b) & 19(3)- Freedom of Assembly 

Article 19(1)(b) guarantees to all citizens of India "right to assembly peaceably and without arms". The right of assembly includes the right to hold meetings and to take out processions. This right is however subject to the following restrictions - 

1.) The assembly must be peaceable;

2.) It must be unarmed;

3.) Reasonable restrictions can be imposed under clause 3 of Article 19.

If the assembly is disorderly or riotous, it is not protected under Article 19(1)(b) and reasonable restrictions may be imposed under clause 3 of Article 19 in the interests of 'sovereignity and integrity of India' or 'public order'. 

Freedom to form association [Article 19(1)(c) & 19(4)]

Article 19(1)(c) of Indian Constitution guarantees to all its citizens the "right to form association or union or co-operative societies". Under Article 19(4),the State may by law impose reasonable restrictions on this right in the interest of public order or morality or the sovereignty of India.

Case: Surya Pal Singh 🆚 State of UP, 1951

Held: The Court held that the freedom to form association implies also the freedom to form or not to form, to join or not to join, an association or union.

Right to form association and Armed forces 

Case: OKA Nair vs Union of India, 1976 SC

An important question arose whether civilian employees designated as 'non combatants' such as cooks, barbers, mechanics, tailirs etc. attached to the Defence Establishments have a right to form associations or unions. 

Held: SC held that the civilian employee of the Defence establishments answer the description of the members of the armed forces within the meaning of Article 33 and therefore, were not entitled to form trade unions. 

Freedom of Movement [Article 19(1)(d) & Article 19(5)]

Article 19(1)(d) guarantees to all citizens of India the "right to move freely throughout the territory of India". This right is, however, subject to reasonable restrictions mentioned in clause (5) of Article 199 i.e.

i) in the interest of general public ;

ii) for the protection of interest of any Scheduled Tribe. 

Case: Ajay Canu 🆚 Union of India, 1988 SC

Held: SC held that the requirement of wearing helmet is not a restriction on free movement of citizens. The paramount objective of wearing helmet is to save life. 

Freedom of residence [Article 19(1)(e) & Article 19(5)]

According to Article 19(1)(e), every citizen of India has the "right to reside and settle in any part of territory of India". However, under clause (5) of Article 19 reasonable restrictions by law on following grounds of can be imposed:

i) in the interest of the general public, or

ii) for the protection of the interest of any Scheduled Tribe. 

Case: State of UP 🆚 Kashalya, 1964 SC

A prostitute, under the Suppression of Immoral Traffic in Women and Girls Act, 1956, was ordered to remove herself from thhe limits of a busy city or the restriction was placed on her movement and residence.

Held: It was held to be a reasonable restriction.

Article 19(1)(g) & 19(6) Freedom of Profession, Occupation, Trade or Business 

Article 19(1)(g) guarantees that every citizen of India shall have "right to practise any profession, or to carry on any occupation, trade or business". However, the right to carry on a profession, trade or business is not unqualified. It can be restricted by and registered by authority of law. Under clause (6) of Article 19!the State can make any law-

a) imposing reasonable restriction on this right in interest of public ;

b) prescribing profession or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business;

c) enabling the State to carry on any trade or business to the exclusion of citizens wholly or partially. 

Right to carry on business includes the right time to close the business - 

Case: Excel Wear 🆚 Union of India, 1979 SC

The petitioner "Excel Wear" was a registered firm. Due to serious labour trouble, the factory was running intova recurring loss. The petitioner finding it almost impossible to carry on business of the factory, served a notice on the State government for prior approval for its closure. The Government refused approval in the public interest. 

Held: The SC held that the refusal not to close down business, even if he can't pay, is not a reasonable restriction in the public interest within the meaning of Article 19(6) of the Constitution. 

Case: Om Prakash 🆚 State of UP, 2004 SC

Held: Prohibition on sale of eggs within municipal limits of Rishikesh is reasonable umder clause (6) of Article 19 in the interest of general public. 

                              - Anjali Singh & 

                                Deepak Kumar 

                         (University of Allahabad)