RIGHT TO FREEDOM

(ARTICLE 19)

SUBMITTED TO: SUBMITTED BY:

Mrs. Shruti
B.com LLB 202/17
4th Semester
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Mrs. Shruti

who gave me the golden opportunity to do this wonderful project on the topic
Union Legislature, which also helped me in doing a lot of Research and i came to
know about so many new things I am really thankful to them.
Secondly i would also like to thank my parents and friends who helped me a lot in
finalizing this project within the limited time frame.
Shubkarmanpreet Kaur.
 TABLE OF CONTENTS

1. Acknowledgement
2. Table of cases
3. Abstract
4. Right to Freedom
5. Reasonable Restrictions
6. Freedom of speech and expressions
 Meaning
 The Right to fly National Flag and sing National Anthem
 Right to Silence
 Right to receive information
 Freedom of press in democracy
 Commercial advertisement
 Picketing, demonstration and strike
 Telephone tapping
 Television and censorship of films
 Trial by media
 Voting
7. Grounds of restriction
8. Freedom to Assemble
9. Freedom to form Association
 Recognition of association
 Concomitant of association
 Freedom of association versus Service
 Composition of association
 Right not to form association
 Government service
 Morality
10. Freedom of movement and residence
 Foreigners
 Restricting movements to maintain order
 Wearing helmets
 Externment
 Outcome : Police surveillance and Right to privacy
11. Freedom to carry on trade and occupation
 TABLE OF CASES

1. Ajay Goswami v. UOI

2. All India Employees Ass. v. The national Industrial Tribunal
3. Anand Patwardhan v.. UOI
4. Babulal Paraate v. State of Maharashtra
5. Balm Lai v. State of Maharashtra
6. Bennett Coleman v. UOI
7. Bharat Kumar k. Palicha v. State of Kerala
8. Brij Bhushan v. State of Delhi
9. Damyante Naranga v. UOI
10. Delhi Police Non Gazatted Karmachari Sangh v. UOI
11. Excel wear v. UOI
12. George Kurian v. State of Kerala
13. Hamdard Dawakhana v. UOI
14. Harshanker v. Deputy Excise and Taxation
15. Himat Lal k. Shah v. Commisoner of Police
16. Indian Express Newspaper v. UOI
17. Indira Jaising v. UOI
18. Indirect Tax Practitioner Assn. v. R.K Jain
19. James Martin v. State of Kerala
20. Jamaat-e-Islami Hind v. UOI
21. K.A Abbas v UOI
22. Kharak Singh v. State of Uttar Pradesh
23. Maneka Gandhi v. UOI
24. Moulana Mufti Syed Md. Noorur v. State of West Bengal
25. M.Hasan v. State of Andhra Pradesh
26. M.H Devendrappa v. Karnatka State Small Industries Development Corpn.
27. M.P Lohia v. State of West Bengal
28. Naveen Jindal v. UOI
29. O.K. Ghosh v. E.x. Joseph
30. Pandharnath Sridhar Ranjnekar v. Dy. Commr. of Police
31. Raghubar Dayal v. UOI
32. Railway Board v. Niranjan Singh
33. Rajendra Sail v. M.P. High Court Bar Association
34. Ramlila Maidaan Case
35. Romesh Thapar v. State of Madras
36. Sakal Papers (P) Ltd. V. UOI
37. Smt. Prabha Dutt V. UOI
38. Shayam Bihari Tiwari v. State of Uttar Pradesh
39. Sitaramcharaya v. Dy, Inspector of School
40. S.M. Kala v. University of Rajashtan
41. State of Madras v. V.G. Row
42. Tata Press Ltd. V. Mahanagar Telephone Nigam Ltd.
43. The Proper Channel v. Managing Director
44. T.M.A Pai Foundation v. State of Karnataka
45. UOI v. Association for Democratic Reforms
46. UP. Shramik Maha Sangh v. State of Uttar Pradesh
47. Usha Uthup v. West Bengal
48. Unni Krishna v. State of Andhra Pradesh
49. Vishaka v. State of Rajasthan
 ABSTRACT

Article 19: 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;

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

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

(f) Omitted

(g) To practice 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 practicing 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.1

A. RIGHT TO FREEDOM

The word ‘freedom’ in Article 19 of the Constitution means absence of control by the State. In
all matters specified in Article 19(1) , the citizen has liberty to choose, subject only to restriction
in Article 19(2) to (6).

Clauses (6) to (g) of Article 19(1) guarantees the following seven fundamental freedoms to the
citizens of India and these freedoms are not available to the non-citizens.

a) Freedom of Speech and Expression;

b) Freedom to assemble
c) Freedom to form Association or Unions;
d) Freedom of movement throughout the territory of India;
e) Freedom of residence and settlement in any part of the territory of India;
f) Freedom to acquire, hold and dispose of property (right to property is no
more/fundamental right); and
g) Freedom of profession, occupation, trade or business.

These various freedoms are necessary not only to promote certain basic rights of the citizens but
also certain basic rights of the citizen but also democratic values in and oneness and unit of, the
country. Article 19 guarantees some of the basic, valued and natural rights inherent in a person.2

Foreigners:
A foreigner enjoys no rights under Article 19, Article 19 confers certain Fundamental Rights on
the citizen and not on the non-citizen of India.

A foreigner can thus claim no right “to reside and settle in India”, as mentioned in Article 19(1)
(e).The Government thus has an unrestricted right to expel a foreigner. As regard the rights to be
heard, there is no hard and fast rule about the manner in which a person concerned has to be
given such an opportunity.

1
Article 19, available at: https://indiankanoon.org/doc/1218090/ (Visited on March 05,2019)
2
D.J. De, Constitution law of India 652 (Asia Law House, Hyderabad, 2 nd edition).
A foreigner does however; enjoy the Fundamental Right to life and personal liberty under Article
21. According to tenor of the language of Article 21, it is not only available to citizen of this
country but also to a person who may not be a citizen of a India. Even those who come to India
merely as tourists or in any other capacity are entitled to the protection of their lives under
Article 21.3

FREEDOMS NOT ABSOLUTE – SUBJECT TO REASONABLE

RESTRICTIONS
Reasonable restrictions mean intelligent care and discussion that the restriction is not beyond
what is required for public interest. It should not be arbitrary and excessive. Further, the
restriction can only be imposed by law and not by executive or departmental decision.

Test of reasonable restrictions – Spanning several cases, SC has laid down the following
guidelines:

1. It is the courts and not the legislature that decide whether the law is reasonable or not
2. Reasonable means that the law is not arbitrary and the restriction is not beyond that is
required in public interest.
3. There is no fixed standard for reasonableness. Each case must be decided on its own
merits.
4. The restriction must be reasonable from substantive as well as procedural stand point.
5. Restriction imposed due to implementation of Directive principles may deemed to be
reasonable
6. The test of reasonability must be objective in the sense that it does not matter what a
judge or court thinks what is reasonable but what a normal person would think.
7. The restriction must have a relation to the object what is sought through the law and must
not be excessive.
8. It is the reasonableness of the restriction that a count has to determine and not the
reasonableness of the law itself.
9. Restriction may amount to prohibition.4

3
MP Jain, Indian Constitutional law 1052 (Lexis Nexis, 8Th edition)
4
Narender Kumar, Constitutional law of India 261 (Allahabad Law Agency, Faridabad, 10 th edition)
 FREEDOM OF SPEECH AND EXPRESSION

ARTICLES 19(1) (A) & 19(2)

“Speech and expression”-meaning:- Freedom of Speech and expression means the right to
express one’s own convictions and opinions freely by words of mouth , writing, printing,
pictures or any other mode. It thus includes the expression of one’s idea through any
communicable medium or visible representation, such as gesture, signs, and the like. Thus, the
freedom of publication and press is also covered under Freedom of Speech. The freedom of
speech and expression includes liberty to propagate not only one’s view only. It also includes the
right to propagate or publish the views of other people ; otherwise this freedom would not
include the freedom of press.

We have two cases where the phrase “speech and Expression” as appearing in the Article 19(1)
(a) of the constitution was interpreted..

Usha Uthup v. West Bengal5

In this case, the singer was not permitted by the state to perform at the Theatre under the
management and control of the state. Here, the Court held that the refusal by the State was
violation of the fundamental right under article 19(1)(a) as the expression “speech and
expression” includes the right to sing.

Maneka Gandhi v. Union of India6

In this case, Supreme Court held that the expression has a broad connotation and the right to
print or dance or sign or write poetry or literature are covered by Article 19(1)(a).7

Freedom of Expression has four broad special purposes to serve:

1. It helps an individual to attain self-fulfillment.

2. It assists in the discovery of truth.
3. It strengthens 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
between stability and social change.

5
Usha Uthup v. West Bengal, AIR 1984 Cal 268.
6
Maneka Gandhi v. UOI, AIR 1978 SC 1451
7
Supra note 2 at 654
 5. All members of society would be able to form their own beliefs and communicate them
freely to others.

THE RIGHT TO FLY NATIONAL FLAG AND SING NATIONAL ANTHEM

The right to fly the flag id regulated by Emblems and Name (Prevention of Improper Use) Act,
1950 and Prevention of Insults to National Honour Act, 1971.

National Anthem, National Flag and National Song are secular symbols of the nationhood. They
represent the supreme collective expression of commitment and loyalty to the nation as well as
patriotism for the country. If the unity and integrity of India is to be perceived in diverse
situations, the feeling of loyalty, commitment and patriotism can be judged not only by giving
effect to constitutionalism but also on their secular symbols.8

Right to fly National Flag freely with respect and dignity is a fundamental right of a citizen
within the meaning of Article 19(1)(a) of the constitution of India being an expression and
manifestation of his allegiance and feelings and sentiments of pride for the nation. The
fundamental right to fly the National Flag is not an absolute right but a qualified one being
subject to reasonable restrictions under clause 2 of Article 19 of the constitution of India.9

Naveen Jindal v. UOI 200410

In this case, Supreme Court rightly held that the flying the national flag is a symbol of free
expressions under Article 19(1)(a) of the constitution but like any other fundamental freedom is
subject to restrictions. The right is not unfettered, unsubscribed, unrestricted and uncanalised
one. 11

Is it mandatory to stand up for National anthem?

It is not mandatory to stand up for national anthem, anytime. Article 51A of the Indian
constitution says that it is the fundamental duty of all citizens to respect the National Flag and
the National Anthem. But that section of the constitution is not legally enforceable. So it is an
advisory not law.  

In reality there are no laws that say that we must respect our Flag and Anthem but there is a law
that says that we must not disrespect them. The law is Prevention of Insults to National Honour
Act, 1971. It's a small act, only two pages long. The only thing that says about the National
8
Supra note 3 at 1058
9
Right to fly National Flag, available at:http://www.lawyersclubindia.com/judiciary/RIGHT-TO-FLY-NATIONAL-
FLAG-178.asp (Visited on 05 march,2019)
10
Naveen Jindal v. UOI, (2004) 2 SCC 510
11
Fundamental rights, available at:
http://14.139.60.114:8080/jspui/bitstream/123456789/4000/1/005_2004_Constitutional%20Law-I
%20%28Fundamental%20Rights%29.pdf ( Visited on 08 march, 2019
Anthem is that you should not knowingly prevent others from singing it or cause disruption
when others are singing it.

RIGHT TO SILENCE

The right to speech implies the right to silence. It implies freedom, not to listen and not be forced
to listen. The right comprehends the freedom to be free from what one desires to be free from. A
loudspeaker forces a person to hear what he wishes not to hear. The use of loudspeaker may be
incidental to the exercise of the right but, its use is not the matter of right or part of the rights
guaranteed by Article 19(1).12

Moulana Mufti Syed Mohammed Noorur Rehman Barkati V. State of West Bengal13
The Calcutta High Court has held in this case, as under: “Accordingly, it cannot be said that for
giving Azaans the applicants should be allowed to use microphones in the early hours of the day
and that is before 6 o’clock in the morning. Azaan is definitely an integral and essential part of
the Muslim religion, but use of microphones is certainly not an integral part of Azaan.”
The law on noise pollution: Rule 5 of the Noise Pollution (Regulation and Control) Rules, 2000
under the Environment (Protection) Act, 1986 read: Restrictions on the use of
loudspeakers/public address system:

1. A loudspeaker or a public address system shall not be used except after obtaining written
permission from the authority.
2. A loudspeaker or a public address system shall not be used at night (between 10.00 p.m.
to 6.00 a.m.) except in closed premises for communication within, e.g. auditoria,
conference rooms, community and banquet halls.
3. Notwithstanding anything contained in sub-rule (2), the State Government may, subject
to such terms and conditions as are necessary to reduce noise pollution, permit use of
loudspeakers or public address systems during night hours (between 10.00 p.m. to 12.00
midnight) on or during any cultural or religious occasion of a limited duration not
exceeding 15 days in all during a calendar year.”

The lawyer’s opinion

The courts have held that while Azaan is definitely an integral and essential part of the Muslim
religion, use of microphones is not an integral part of it. It is apparent that a citizen whose
fundamental right to sleep peacefully is disturbed, has the right to complain. This issue, in my
limited knowledge, is less about religion and more about mutual respect and civic sense. Even on
Diwali, restrictions have been placed as it has adverse effects on the state of noise (and air)
pollution. The same standard should be adopted for all other religious and cultural expressions.14
12
Supra note 3 at 1062
13
Moulana Mufti Syed Md. Noorur … V. State of West Bengal, AIR 1999 Cal 15
14
Loud Speaker in Religious places, available at : https://www.hindustantimes.com/delhi-news/whatlawsays-is-it-
legal-to-use-loudspeakers-in-religious-places/story-wWmUwoQL4KQZndgSzh9O9N.html (visited on march
RIGHT TO RECEIVE INFORMATION

It includes the right to communicate it through any available media whether print or electronic or
visual such as advertisement, move, article, or speech etc. This freedom includes the freedom to
communicate or circulate one’s opinion without interference to as large a population in the
country, as well as abroad, as is possible to reach 15

The Right to information is indisputably a fundamental right. It is a facet of “right to speech and
expression” as provided in art 19(1) (a). Right to know has increased the efficiency of decision
making process. It has set a transparency and determines accountability in the working of public
department. Reduction in corruption in public department is due to the implementation of Right
to Information Act, 2005.

The phenomena of right to information gained momentum when Article 19 of the universal
declaration of human right was adopted in 1948 ensuring, “everyone has the right to freedom of
opinion and expression.” This right includes freedom to hold opinions without interference and
to seek, receive and impart information and ideas through any media and regardless of
frontiers.16

Is RTI Fundamental Right / Constitutional Right / Legal Right:

1. RTI is a Fundamental Right (FR) guaranteed under Part 3, Article 19(1)(a) of the
Constitution of India.

2. Further it is a Constitutional Right (CR), as all FR are constitutional rights but not vice
versa. Example: Article 300A - Right to Property is a CR but not FR. It was once a FR
under Article 19(1)(f) which was omitted by 44th Constitutional Amendment Act
1978.

3. Going further it is a Legal Right (LR) as all CR are LR but not vice versa. Example:
Right to Vote is a LR under Section 62(1) of Representation of People Act 1951 but
not CR.

So Right To Information is a Fundamental Right, a Constitutional Right and a Legal Right. RTI
act 2005 is merely a statutorily sanctioned procedure to exercise FR to Information under Article
19(1) (a).17

The right to know has, however, not yet extended to the extent of invalidating Section 5 of the
Official Secrets Act, 1923 which prohibits disclosure of certain official documents. Even, Right
08,2019)
15
Supra note 3 at 1062
16
Right to receive information, available at: http://www.legalservicesindia.com/article/1743/Right-to-Know-
Constitutional-Prospective.html (visited on March 9,2019)
17
Right to information, available at: https://www.quora.com/Is-RTI-a-constitutional-right-or-a-legal-right (visited
on March 09,2019)
to Information Act-2005, which specially talks about peoples’ right to ask information from
Government official, prohibits discloser of certain documents under u/s 8 of the Act. These
exceptions are generally the grounds of reasonable restrictions over freedom of speech and
expression under Article 19(1) of Constitution of India. One can conclude that ‘right to
information is nothing but one small limb of right of speech and expression.

Voters Have Right to Know About their Candidates:

In a landmark judgment in,

Union of India v. Association for Democratic Reforms18

Three judge bench held that the amended Electoral Reforms Law passed by Parliament is
unconstitutional as being volatile of citizen’s right to know under Art. 19(1)(g)19

Article 19(1)(a) is not absolute and is restricted by reasonable restrictions under Article 19(2)
and is restricted by reasonable restrictions under Article(19)(2) and is further limited by Right to
Privacy under Article 21 ( though Right to Privacy is not so absolute).

A reasonable restriction on the exercise of right to know or right to information is always

permissible in the interest of security of the State. Generally, the exemptions/exceptions under
the laws referred to in Article 19(2) entitled the Government to withhold information relating to
following matters:

i. International relations;
ii. National security (including defence) and public safety;
iii. Investigation , detection and prevention of crime;
iv. Internal deliberations of the Government;
v. Information received in confidence from a source outside the government;
vi. Information, which if disclosed, would violate the privacy of the individual;
vii. Information of an economic nature, (including trade secrets) which if disclosed,
would confer an unfair advantage on some persons or concern, or subject some
person or Government to an unfair disadvantage;
viii. Information which is subject to a claim a legal professional privilege, example:
communication between a legal adviser and the client; between physician and
patient;
ix. Information about scientific discoveries.

FREEDOM OF THE PRESS IN DEMOCRACY:

It is the primary duty of all the national courts to uphold the freedom of the press and invalidate
all laws and administrative actions which interfere with such freedoms against constitutional
18
UOI v. Association for Democratic Reforms, AIR 2001 Delhi 126, 2000 (57) DRJ 82
19
Voters right, available at: https://www.lawctopus.com/academike/freedom-of-speech-and-expression/ (visited
on march 10, 2019)
mandate, observed the Supreme Court in Indian Express Newspaper Vs. Union of India20 While
highlighting the importance of the freedom of the press in a democracy. To arrest the
malpractices of interfering with the free flow of information, the democratic constitution all over
the world provided guarantee of freedom of speech and expression underlying the circumstances
under which restrictions are imposed.

The press is the medium of social, public and political intercourse; and is the means of
expression of opinion, a means of communication of facts of public life. It is an educator of the
people, the electorate and all persons generally. It is the fourth estate of the State. There is no
separate mention of the freedom of the press, but it is held to be included in the larger freedom of
speech and expression. The freedom of the press is separately mentioned in the American
Constitution. Under our constitution it has been held to be implicitly guaranteed as a part of the
freedom of speech and expression in terms of Article 19 (1) (a).

The democratic credentials of a State are judged today by the extent of the freedom the press
enjoys in that State. Freedom of thought and expression, and the freedom of the press are not
only valuable freedoms in themselves but are basic to a democratic form of government.

Imposition of pre-censorship on a newspaper, or prohibiting it from publishing its own views

or those of its correspondents on a burning topic of the day, constitutes an encroachment on the
freedom of speech and expression.

In Brij Bhushan v. State of Delhi 21in pursuance of Sec. 7(1)(c) of the East Punjab Public Safety
Act, 1949 as extended to the province of Delhi, the Chief Commissioner of Delhi issued an order
against the petitioner, the printer, publisher and editor of a English weekly ‘The
Organizer’ published from Delhi, directing them to submit, for scrutiny in duplicate, before
publication till further order, all communal matters and news and views about Pakistan including
photographs and cartoons other that those derived from official sources. The majority of the
Supreme Court struck down the order as violative of Article 19(1)(a).

Also, freedom to circulate is included in freedom of press, as a publication is of little value

without circulation. In the case, Romesh Thaper v. State of Madras 22 the Provincial
Government in exercise of its powers under Sec. 9 (1-A) of the Madras Maintenance of Public
Order Act, 1949, by an order, imposed a ban upon the entry and circulation of the petitioner’s
weekly journal “Cross Roads” printed and published in Bombay. Majority of the Supreme
Court held the order as invalid as violation Art. 19(1)(a).

20
Indian Express Newspaper v. UOI, 1986 AIR 515, 1985 SCR (2) 287
21
Brij Bhushan v. State of Delhi, 1950 AIR 129, 1950 SCR 605
22
Ramesh Thaper V. State of Madras, 1950 AIR 124, 1950 SCR 594
In Sakal Papers (P) Ltd. v. Union of India,23the Supreme Court held that the right to propagate
ideas guaranteed in Art. 19(1)(a) extended not merely to the matter which a person was entitled
to circulate but also to the volume of circulation. In this case, in the pursuance of the provision
of the Newspapers (Price and Page) Act, 1956, the Central Government issued the Daily
Newspapers (Price and Page) Order, 1960 which fixed the maximum number of pages that
might be published by the newspaper according to the price charged. The order fixed a minimum
price and number of pages which a newspaper was entitled to publish. The petitioners were
required to increase the price of their newspaper if they were increasing the pages. On the other
hand, if the petitioners were to reduce the price, they were required to decrease the number of
pages.

The order was challenged as violative of the freedom of press, since its adoption meant either the
reduction in the existing number of pages or raising the price. This amounted to directed
infringement of the liberty of the press. The Supreme Court struck down the order.

Another case was that of Bennett Coleman v. Union of India24. India imported newsprint from
foreign countries. Because of the shortage of foreign exchange, quantity of newsprint was not
adequate to meet all requirements. Some restrictions, therefore, became necessary on the
consumption of newsprint. Accordingly, a system of newsprint quota for newspapers was
evolved. A few more restrictions concerning number of pages and entitlement, etc., were also
imposed. The dominant direction of the policy was to curtail the growth of big newspapers which
could not increase the number of pages, page area or periodicity. The newsprint policy was
challenged in the Supreme Court.

By a majority, the Supreme Court declared the policy unconstitutional. While the government
could evolve a policy of allotting newsprint on a fair and equitable basis, the government could
not, in the garb of regulating the distribution of newsprint, control the growth and circulation of
newspapers.

In Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India25 several newspapers filed
writ petitions challenging the constitutional validity of the notifications issued by the Centre
imposing from March 1, 1981, specified rates of customs duty and auxiliary duty on newsprint
imported by different categories of newspapers. The levy was challenged in the Supreme Court.
The main plea of the petitioners was that the impugned levy of duty on imported newsprint was
excessive and had the direct effect of crippling the freedom of speech and expression and the
carrying on of the business of publishing newspapers as it had led to an increase in the price of
newspapers resulting in reduction of their circulation. The Supreme Court accepted the plea of

23
Sakal Papers V. Union of India AIR 1962 SC 305
24
Bennett Coleman V. UOI, 1973 AIR 106, 1973 SCR (2) 757
25
Indian Express Newspaper v. UOI, 1986 AIR 515, 1985 SCR (2) 287
the newspapers and said that the government must be more cautious while levying taxes on
matters concerning newspaper industry than while levying taxes on other matters.

In Smt. Prabha Dutt v. Union of India26 the question was whether prisoners condemned to death
could be interviewed. It was held that the newspaper reporters can interview the prisoners
condemned to death if they are willing to be interviewed. Unless, in a given case there are
weighty reasons for denying the opportunity to interview. The reasons for denying the interview
should be recorded in writing.

In M. Hasan v. State of Andhra Pradesh,27 the Andhra Pradesh High Court has held that denial
of permission to a press reporter to interview a willing condemned prisoner on a ground not
falling within Art. 19(2) is not valid. “Any such denial is deprivation of a citizen’s fundamental
right of freedom of speech and expression”. Convicts are not wholly denuded of their
fundamental rights.

Further, the Press Council Act, 1978 provides that a journalist should not be compelled to
disclose the source of any news or information published by the newspaper. But the Division
Bench in  Re: Harijai Singh has held that if justice demands, scribe may be compelled to reveal
the source of their news. In this contempt case against the editors of the Tribune and the Punjab
Kesari, the contemnors, while tendering apology, revealed the source of their news item.28

COMMERCIAL ADVERTISEMENT:

The court held that commercial speech (advertisement) is a part of the freedom of speech and
expression. The court however made it clear that the government could regulate the commercial
advertisements, which are deceptive, unfair, misleading and untruthful. Examined from another
angle the Court said that the public at large has a right to receive the "Commercial Speech". Art.
19(1)(a) of the constitution not only guaranteed freedom of speech and expression, it also
protects the right of an individual to listen, read, and receive the said speech.

In  Hamdard Dawakhana v. Union of India29 the Supreme Court considered the question that
how far are advertisements protected under Art. 19(1)(a). In this case, Parliament enacted an Act
with a view to control advertisements of drugs in certain cases. The Act was challenged on the
ground that restrictions on advertisements was a direct abridgment of the freedom of expression.
The Court stated that an advertisement, no doubt, is a form of speech, but its true character is to
be determined by the object which it seeks to promote.

26
Pabha Dutt v. UOI, 1982 AIR, 6 1982 SCR (1)1184
27
M.Hasan v. State of Andhra Pradesh, AIR 1998 AP 35, 1997 (6) ALT 209
28
Freedom of press, available at: https://lawschoolnotes.wordpress.com/2017/03/27/freedom-of-press-under-
article-19-1-a-of-the-constitution/ (visited on March 11,2019)
29
Hamdard dawakhana V. UOI, 1960 AIR 554, 1960 SCR (2) 671
An advertisement promoting drugs and commodities, the sale of which is not in public interest,
could not be regarded as propagating any idea and, as such, could not claim the protection of Art.
19(1)(a). An advertisement meant to further business falls within the concept of trade and
commerce and cannot be regarded as a part of freedom of speech.

However, in Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India30 differing from
the Hamdard Dawakhana ruling, the Supreme Court observed that all commercial
advertisements cannot be denied the protection of Art. 19(1) (a) of the Constitution merely
because they are issued by businessmen. Advertising pays large portion of the costs of supplying
the public with newspapers.

Reading Hamdard Dawakhana and Indian Express together, the Supreme Court has concluded

in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd.31, that ‘commercial speech’ cannot be
denied the protection of Art. 19 (1)(a) merely because the same is issued by businessmen. It is a
part of freedom of speech and the public at large has a right to receive the ‘commercial speech’.

PICKETING, DEMONSTRATION AND STRIKE:

Within certain limits, picketing and demonstration may be regarded as the manifestation of one’s
freedom of speech and expression. “Peaceful picketing is free speech. Non-violent acts are like
words” or non-demonstration is a non-violent act of persuasion.

As regards Government servants, the judicial view appears to be that while banning
demonstrations by them is not valid, a strike by them can be validly prohibited. A rule made by
the Bihar Government prohibited Government servants from participating in any demonstration
or strike in connection with any matter pertaining to their condition of service. The rule was
challenged. The Supreme Court said that a Government servant does not, by accepting
government service, lose his Fundamental Rights under Article 19A demonstration, held the
Court, is a visible manifestation of the feelings or sentiments of an individual or a group. It is
thus a communication of one’s ideas to other’s and is in effect a form of speech and expression,
because speech need not be vocal since signs made by the dumb person would also be a form of
speech and expression. Accordingly certain forms of demonstration would fall under Article
19(1)(a).32

BANDH

In a landmark decision in Bharat Kumar K Palicha v State of Kerala,33, a full bench of Kerala
High Court has declared “Bandhs” organized by political parties from time to time as
30
Indian Express Newspaper v. UOI, 1986 AIR 515, 1985 SCR (2) 287
31
Tata Press v. MTNL; AIR 1995 SC 2438
32
Supra note 3 at 1075
33
Bharat Kumar K. Palicha Vs. State Of Kerala AIR 1997 Ker 291
unconstitutional being violative of the fundamental rihts of the people . The court refused to
accept it as an exercise of the freedom of speech and expression by the concerned party calling
for the Bandh. When a Bandh is called, people are expected not to travel , not to carry on their
trade, not to attend their work. A threat is held out either expressly or impliedly that any attempt
to go against the call for a bandh may result into in physical injury.

A call for bandh is clearly different from a call for general strike or hartal. There is destruction of
public property during a bandh. Accordingly High Court has directed that a call for a bandh by
any association, organization or political party and enforcing of that call by it, is illegal and
unconstitutional34

Bharat Bandh: Know your rights and duties during Hartal:

The Supreme Court and High Courts have made it very clear through various judgments that
Hartal or Bandhs (or whatever name it is called) should not infringe anyone’s fundamental
rights. Some of the pertinent observations made by the Supreme Court and High Courts
regarding Bandhs are:

1997: Kerala High Court bans Bandh

Calling for a bandh by any association, organisation or political party and the enforcing of that
call by it is illegal and unconstitutional. We direct the State and its officials, including the law
enforcement agencies, to do all that is necessary to give effect to this declaration. Bharat Kumar
K. Palicha Vs. State Of Kerala AIR 1997 Ker 291

1997: Supreme Court confirmed Kerala HC Judgment:

In The Communist Party Of India (M) vs. Bharat Kumar the Supreme Court has confirmed the
Kerala HC Judgment. The Bench held as follows:

"There cannot be any doubt that the fundamental rights of the people as a whole cannot be
subservient to the claim of fundamental right of a n individual or only a section of the people.
it is on the basis of this distinction that the High Court has rightly concluded that there cannot be
any right to call or enforce a "Bandh" which interferes with the exercise of the fundamental
freedoms of other citizens, in addition to causing national loss in many ways. We may also add
that the reasoning given by the High Court, particularly those in paragraphs 12, 13 and 17 for the
ultimate conclusion and directions in paragraph 18 is correct with which we are in agreement.
We may also observe that the High Court has drawn a very appropriate distinction between a
"Bandh" on the hand and a call for general strike or "Hartal" on the other. We are in agreement
with the view taken by the High Court".
34
Ibid.
2004: SC holds that there is no right to cause inconvenience in the name of Hartal

In the name of Hartal or Bandh or strike, no person has any right to cause inconvenience to any
other person or to cause in any manner a threat or apprehension of risk to life, liberty, property of
any citizen or destruction of life and property, and the least any Government or public
property. James Martin v. State of Kerala (2004 (1) KLT 513 (SC)). 35

2004: Kerala HC says Hartal should not obstruct others’ fundamental rights A Full Bench
observed:

 But whatever name it is called, whether general strike, Hartal or any other name, nobody can
create a Bandh-like situation or obstruct the fundamental rights of others….Those who call for
‘Hartal’ or strikes by whatever reason must make it clear in their call that nobody will be
compelled to participate in the ‘Hartal’ or strikes, that traffic will not be obstructed and those
who are willing may go for work and that fundamental right of others to move about will not be
affected. They must also instruct their supporters to see that no coercion or force is used for
compelling others to participate in the strike or ‘Hartal’. (Kerala High Court: George Kurian vs.
State Of Kerala 2004 (2) KLT 758) 36

2008: Kerala HC calls for appropriate legislation to curb Hartal

The High Court observed in The Proper Channel vs. Managing Director, KSRTC37:

“It is therefore necessary that the Government should step in and provide a simple and easy
method to any person, including statutory Corporations like KSRTC or a private individual, to
claim compensation for any loss they may suffer on account of such `forced Hartals'.
Appropriate legislation should be enacted granting suo motu powers to a competent authority to
call for claims, assessment of compensation, recovery etc. Unless such measures are taken, the
menace of `forced Hartals’ cannot be curbed.”

From the reading of the above judgments it is very clear that there is no right for organizations to
call Hartal/strikes. Instead, it is the right of an individual to get assurance from such
organizations that call for Hartal/strikes that he will not be stopped from travelling or working
despite the Hartal. On any day, a citizen of India has the right –

 To move freely
 to work in his/her workplace
 to complain to the police if he/she is stopped from travelling, and
 To sue the concerned for loss he/she suffers due to Hartal/strikes.

Meanwhile, the organizations that call for Hartal should follow the dicta laid in the judgments of
the Supreme Court and the High Court. They are duty bound to: 

35
James Martin v. State of Kerala [2004(1)KLT 513 (SC)]
36
George Kurian V. State of Kerala 2004(2) KLT 758)
37
The proper channel v. Managing Director,KSRTC
  Make it clear in their call that nobody will be compelled to participate in the ‘hartals’ or
strikes
 Make it clear that traffic will not be obstructed
 Make it clear that those who are willing, may go for work
 Make it clear that the fundamental right of others to move about will not be affected, and
 Instruct their supporters to see that no coercion or force is used for compelling others to
participate in the strike or ‘Hartal’.38

TELEPHONE TAPPING

The freedom of speech and expression mean the right to express one’s convictions and opinions
freely by word of mouth , writing, printing, picture, or in any other manner.

When a person is talking on telephone, he is excersing his right to freedom of speech and
expression. Telephone tapping, accordingly infracts Article 19(1)(a) unless it falls within the
ground of restrictions falling under article 19(2).

The Court also treated it as an aspect of privacy and invoked Article 21 against the telephone
tapping.

TELEVISION AND CENSORSHIP OF FILMS:

Television plays a very important and significant role in modern life. Many people obtain the
bulk of their information on matters of contemporary interest from the broadcasting medium.

In Anand Patwardhan v. Union of India39, the petitioner produced a documentary on violence

and terrorism in Punjab. The film received a ‘U’ certificate from the board of film censors.
Nevertheless the Doordarshan refused to telecast the film. The Bombay High Court ruled that the
refusal to telecast amounted to violation of the petitioner’s right under article 19(1)(a). It also
amounted to violation of the right of the people under Art. 19(1)(a) to be informed about the
situation in Punjab. Accordingly, the court directed Doordarshan to exhibit the film.

In Indira Jaising v. Union of India40, during the course of recording of the interview of the
petitioner for a T.V. programme pertaining to ‘Law relating to Women’ on an interview of
Doordarshan itself, she made critical remarks about a Bill which was then pending before
Parliament as being violative of women’s right to equality. When the programme was telecast,
her views on the Bill were deleted. The petitioner in a writ petition asserted that this amounted to
censorship of her views by the television authorities as her views were against the views of the
ruling party. The Doordarshan authorities justified the deletion on the basis that it only amounted
to editing and not censorship. The High Court ruled in favor of the petitioner.

38
Bharat Bandh, available at: https://www.livelaw.in/bharat-bandh-know-rights-duties-hartal/ (visited on march
11,2019
39
Anand Patwardhan v. Union of India, 1997 (3) Bom.CR 438
40
Indira jaising v. UOI
In K.A. Abbas v. Union of India 41the constitutionality of films as a media of expression and its
censorship came up before the Supreme Court. The petitioner, unable to get ‘U’ certificate for
his film ‘Tale of four cities” questioned the validity of the Cinematograph Act 1952 along with
the rules made there under. The 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 expression
because a motion picture is able to stir up emotions more deeply than any other product of art. A
film can therefore be censored on the grounds mentioned in Art. 19(2).

In Ajay Goswami v. Union of India42, a writ petition was filed to ensure that minors are not
exposed to sexually oriented material being published in certain newspapers without the consent
of parents or guardians. It was held that the incidence of shielding minors should not be such that
the adult population is made to see and read what is fit for children. The court held that there
should be no suppression of speech and expression supposedly to protect children from harmful
material. The court stated that there were already sufficient safeguards available in terms of
various legislations, norms, rules and regulations to protect society in general under Press
Council Act and IPC.43

TRIAL BY MEDIA

Interference with administration of justice is neither a permissible freedom nor an unreasonable

restriction. In the case of M. P. Lohia v. State of West Bengal44, AIR 2005 SC 790, relating to
suicide by wife due to her harassment for dowry, an application for grant of anticipatory bail was
rejected by Courts below. When special leave petition from such rejection was pending before
Supreme Court, an article appeared in a magazine based on an interview of the family of the
deceased, giving their version of the tragedy and extensively quoting the father of the deceased
as to his version of the case which could all be materials that may be used in the forthcoming
trial. The Supreme Court took the view that such articles appearing in the media would certainly
interfere with the administration of justice and deprecated such practice and cautioned the
publisher, editor and the journalist who were responsible for the said article against indulging in
such trial by media when the issue was sub judice.

In Rajendra Sail v. M. P. High Court Bar Association, 45 it was held that while the media can,
in the public interest, resort to reasonable criticism of a judicial act or the judgment of a Court
for public good or report any such statements, it should refrain from casting scurrilous aspersions
on, or impute improper motives or personal bias to the judge. Nor should they scandalize the
Court or the judiciary as a whole, or make personal allegations of lack of ability or integrity
against a judge. The judgments of Courts are public documents and can be commented upon,
analyzed and criticized, but it has to be in a dignified manner without attributing motives.

VOTING

41
K.A. Abbas v. UOI, AIR 1971
42
Ajay Goswami v. UOI, (2007) 1 SCC 143
43
Freedom of Press, available at: https://lawschoolnotes.wordpress.com/2017/03/27/freedom-of-press-under-
article-19-1-a-of-the-constitution/ ( Visited on March 13,2019
44
M.P. Lohia v. State of West Bengal, AIR 2005 SC 790
45
Rajendra Sail v. M. P. High Court Bar Association, AIR 2005 SC 2473
Voting at an election is a form of expression. A citizen as a voter is the master of his vote. He
must have necessary information so that he can intelligently decide in favour of a candidate who
satisfies his criterion of being elected as an MP or MLA.46

RESTRICTIONS UNDER ARTICLE 19(2)

Grounds of restrictions

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so

also it is necessary to place some restrictions on this freedom for the maintenance of social order,
because no freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2)
of the Constitution of India, the State may make a law imposing “reasonable restrictions” on the
exercise of the right to freedom of speech and expression “in the interest of” the public on the
following grounds: Clause (2) of Article 19 of Indian constitution contains the grounds on which
restrictions on the freedom of speech and expression can be imposed:-

1. Security of State: Security of state is of vital importance and a government must have
power to impose restriction on the activity affecting it. Under Article 19(2) reasonable
restrictions can be imposed on freedom of speech and expression in the interest of
security of State. However the term “security” is very crucial one. The term “security of
state” refers only to serious and aggravated forms of public order e.g. rebellion, waging
war against the State, insurrection and not ordinary breaches of public order and public
safety, e.g. unlawful assembly, riot, affray. Thus speeches or expression on the part of an
individual, which incite to or encourage the commission of violent crimes, such as,
murder are matters, which would undermine the security of State.

2. Friendly relations with foreign states: In the present global world, a country has to
maintain good and friendly relationship with other countries. Something which has
potential to affect such relationship should be checked by government. Keeping this thing
in mind, this ground was added by the constitution (First Amendment) Act, 1951. The
object behind the provision is to prohibit unrestrained malicious propaganda against a
foreign friendly state, which may jeopardize the maintenance of good relations between
India, and that state.

3. No similar provision is present in any other Constitution of the world: In India, the
Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens
against foreign dignitaries. Interest of friendly relations with foreign States, would not
justify the suppression of fair criticism of foreign policy of the Government. However it
is interesting to note that member of the commonwealth including Pakistan is not a
“foreign state” for the purposes of this Constitution. The result is that freedom of speech
and expression cannot be restricted on the ground that the matter is adverse to Pakistan.
46
Supra note 3 at 1084
4. Public Order: Next restriction prescribed by constitution is to maintain public order.
This ground was added by the Constitution (First Amendment) Act. ‘Public order’ is an
expression of wide connotation and signifies “that state of tranquility which prevails
among the members of political society as a result of internal regulations enforced by the
Government which they have established.

Here it is pertinent to look into meaning of the word “Public order. Public order 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 disturbs public order. Thus communal disturbances and strikes
promoted with the sole object of accusing unrest among workmen are offences against
public order. Public order thus implies absence of violence and an orderly state of affairs
in which citizens can peacefully pursue their normal avocation of life. Public order also
includes public safety. Thus creating internal disorder or rebellion would affect public
order and public safety. But mere criticism of government does not necessarily disturb
public order.

The words ‘in the interest of public order’ includes not only such utterances as are
directly intended to lead to disorder but also those that have the tendency to lead to
disorder. Thus a law punishing utterances made with the deliberate intention to hurt the
religious feelings of any class of persons is valid because it imposes a restriction on the
right of free speech in the interest of public order since such speech or writing has the
tendency to create public disorder even if in some case those activities may not actually
lead to a breach of peace. But there must be reasonable and proper nexus or relationship
between the restrictions and the achievements of public order.

5. Decency or morality: The way to express something or to say something should be

decent one. It should not affect the morality of the society adversely. Our constitution has
taken care of this view and inserted decency and morality as a ground. The words
‘morality or decency’ are words of wide meaning. Sections 292 to 294 of the Indian
Penal Code provide instances of restrictions on the freedom of speech and expression in
the interest of decency or morality. These sections prohibit the sale or distribution or
exhibition of obscene words, etc. in public places. No fix standard is laid down till now
as to what is moral and indecent. The standard of morality varies from time to time and
from place to place

6. Contempt of Court: In a democratic country Judiciary plays very important role. In such
situation it becomes essential to respect such institution and its order. Thus, restriction on
the freedom of speech and expression can be imposed if it exceeds the reasonable and fair
limit and amounts to contempt of court. According to the Section 2 ‘Contempt of court’
may be either ‘civil contempt’ or ‘criminal contempt.’ But now, Indian contempt law was
amended in 2006 to make “truth” a defence. However, even after such amendment a
 person can be punished for the statement unless they were made in public interest. Again
in Indirect Tax Practitioners Assn. vs R.K.Jain47, it was held by court that, “Truth based
on the facts should be allowed as a valid defence if courts are asked to decide contempt
proceedings relating to contempt proceeding relating to a speech or an editorial or
article”. The qualification is that such defence should not cover-up to escape from the
consequences of a deliberate effort to scandalize the court.

7. Defamation: Ones’ freedom, be it of any type, must not affect the reputation or status
another person. A person is known by his reputation more than his wealth or anything
else. Constitution considers it as ground to put restriction on freedom of speech.
Basically, a statement, which injures a man’s reputation, amounts to defamation.
Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in
relating to defamation is still uncodified in India and subject to certain exceptions.

8. Incitement to an offence: This ground was also added by the constitution (First
Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a
right to incite people to commit offence. The word ‘offence’ is defined as any act or
omission made punishable by law for the time being in force.

9. Sovereignty and integrity of India- To maintain sovereignty and integrity of a state is

prime duty of government. Taking into it into account, freedom of speech and expression
can be restricted so as not to permit any one to challenge sovereignty or to permit any one
to preach something which will result in threat to integrity of the country.

From above analysis, it is evident that Grounds contained in Article 19(2) show that they are all
concerned with the national interest or in the interest of the society. The first set of grounds i.e.
the sovereignty and integrity of India, the security of the State, friendly relations with foreign
States and public order are all grounds referable to national interest, whereas, the second set of
grounds i.e. decency, morality, contempt of court, defamation and incitement to an offence are
all concerned with the interest of the society.48

FREEDOM TO ASSEMBLE

ARTCLE 19(1)(B) AND ARTICLE 19(3)

47
Indirect Tax Practitioners Assn. vs R.K.Jain, AIT-2010-340-SC
48
Grounds of Restriction, available at: https://www.lawctopus.com/academike/freedom-of-speech-and-
expression/ ( visited on March 12,2019)
Article 19 (1) (b) provides that all citizens have the right to assemble peaceably and without
arms. The right to assemble includes right to hold meetings and to take out processions. This
right, like other Individual rights is not absolute but restrictive.

The assembly must be non-violent and must not cause any breach of public peace. If the
assembly is disorderly or riotous, then it is not protected under Article 19 (1) (b) and reasonable
restrictions can be imposed under clause (3) of Article 19 in the Interests of sovereignty and
Integrity of India or public order.

Test of unlawfulness of an assembly

Article 19 (1) (b) saves existing Indian law regulating public meetings in the interests of public
order if the restrictions are reasonable. Under Section 141 of Indian Penal Code, an assembly of
five or more persons becomes unlawful assembly if the common object of the persons
composing assembly is:

a) To resist the execution of any law or legal process,

b) To commit any mischief or criminal trespass,
c) Obtaining possession of any property by force.
d) To compel a person to do what he is not legally bound to do or omit what he is legally
entitled to do,
e) To overawe the Government by means of criminal force or show of criminal force or any
public servant in the exercise of his lawful powers.

In this way the provisions relating to unlawful assemblies In the Indian Penal Code and Criminal
Procedure Code impose restrictions on the freedom of assembly which is treated as reasonable
restriction under clause (3) of Article 19.

The right of assembly is thus subject to following restrictions:

(a) The assembly must be peaceful.

(b) It must be unarmed.

(c) Subject to restrictions in the interests of public order.

In Balm Lai v. State of Maharashtra49. It has been held that Section 144 of Criminal Procedure
Code which prohibits the holding of meetings is not volatile of freedom of assembly. Under this
section meetings can be banned and any assembly of more than five persons can be declared
unlawful and then ordered to be dispersed.

49
Balm Lai v. State of Maharashtra, AIR 1961 S.C. 884 .
Meetings in government places: this could be well understood by a case judgment in Railway
Board vs. Niranjan singh50. The question arose that whether anyone could hold meetings in
government premises or not even though the person is government employ?

The Court held that is it true that the freedoms guaranteed under our constitutions are very
valuable freedoms and this court would resist abridging the ambit of those freedoms except to
the extent permitted by the Constitution. The fact that the citizens of this country have freedom
of speech, freedom to assemble peaceably and freedom to form-associations or unions does not
mean that they can exercise those freedoms in whatever place they please. The exercise of those
freedoms will come to end as soon as the ‘right of some-one else to hold his property intervenes.
Such a limitation is inherent in the exercise of those ‘rights. The validity of that limitation is not
judged by the tests prescribed by sub-articles (2) and (3) of Article 19. In other words the
contents of the freedoms guaranteed under clause (a), (b) and (c), the only freedoms with which
we are concerned in this appeal, do not include the right to exercise of his right under clause (d)
and (e) of Article 19(1) could move about freely in a public-office or even reside there unless
there exists some law imposing reasonable restrictions on the exercise of those rights.”

Absolute ban on public meetings: In India citizens have right to hold meetings in public streets
before the constitution, subject to control of appropriate authority regarding the time and place of
the meeting and considerations of public order. In Himat Lal vs. Police Commissioner 51 Case
the held that the State cannot by law abridge or take away the right of assembly by prohibiting
assembly on every public street or public place. The state can only make regulations in aid of the
right of assembly of each citizen and can only impose reasonable restrictions in the interest of
public order. If the right to hold public meetings flows from Article 19 (1) (b) and Article 19(1)
(d) it is obvious that the state cannot impose unreasonable restrictions. It must be, kept in in
mind that Article 19(1)(b) , read with Article 13, and protects citizen against State action. It has
nothing to do with the right to assemble on private streets or property without the consent of the
owners or occupiers of the private property

The Court in Babulal Parate v. State of Maharashtra 52, rightly observed: “The right of citizens
to take out processions or to hold public meetings flows from right in Article 19(1)(b) to
assemble peaceable and without arms and the right to move anywhere in the territory of India.

Can the State restrict a Citizens right to protest?

50
Railway Board vs. Niranjan Singh, 1969 AIR 966, 1969 SCR (3) 548
51
Himat Lal K. Shah vs. Commissioner Of Police, 1973 AIR 87, 1973 SCR (2) 266
52
Babulal Parate vs State Of Maharashtra, 1961 AIR 884, 1961 SCR (3) 423
The question that arises in most of the cases relating to Article 19(1)(b) is that can the state
restrict a person’s right to protest? In a landmark judgment given by the Supreme Court on the
incident that took place on the midnight of 4-5th June, 2011 at Ramlila Maidan, Delhi where
Baba Ramdev and his supporters were carrying on a protest against corruption and black money.
Their protest was against the government who failed in taking effective steps to curb the menace
of black money and corruption in India. The apex court has held that the protest was peaceful.
Satyagraha which is beyond the concept of ‘passive resistance’ forms the essence of democracy.
Saytagraha is not aggression but non-violence and its force lay in truth and the ability to struggle
for it. Supreme Court in this judgment has upheld the right to peaceful protest as a Constitutional
right and the right to assemble and demonstrate by holding dharnas is the basic features of an
effective democratic system. People in a democracy have a right to raise their voices against the
decisions and unreasonable actions of the government or to express their opinion on any subject
of national importance. The government is obliged to respect and encourage the exercise of such
rights. However, recently political powers have resorted to the use of police powers to stop the
people from exercising their constitutional right of peaceful assembly. In this case also, police
powers were used to dictate that the size of the protest must be small and not very large. Also,
section 144 of the CrPC was unlawfully imposed. In this regard, the Supreme Court observed
that the decision to forcibly evict people sleeping at the Ramlila Maidan at midnight of 4-5th June
2011 taken by either the police independently or on consultation with the Ministry of Home
Affairs was arbitrary, abuse of power and improper. It was an invasion of legal protections
available to the people present there. Thus the restriction was unwarrantedly executed and
showed the might of the State.

However, after these observations this judgment took a strange turn and said that it is the
obligation of every protestor to obey every lawful order. Neither the imposition of section 144
nor the withdrawal of permission or the forceful eviction of the protestors were lawful so why
should the protestors have had accepted such an order? A protestor who organizes a peaceful
protest within his constitutional rights is equally entitled not to accept an illegal order denying
his right to protest. He should not run the risk of being punished if the order is held to be
unlawful. But what the judgment hints at is that every time a person’s fundamental right to
protest is intercepted by the State, he must immediately accept those orders or he would have to
suffer the punishment.

But, a citizen cannot be compelled to relinquish is fundamental right just because the State
decides to restrict his right to protest. The judgment upheld the right to protest as a fundamental
right of speech and assembly but it presented a highly doubtful proposition by saying that once
the right to protest is denied the protestor must accept this denial or run the risk of contributory
negligence to the police oppression. This part of the judgment needs to be extensively discussed
and debated upon to find out its flaws and should probably be reconsidered.

FREEDOM TO FORM ASSOCIATION

ARTICLES 19(1)(C) AND 19(4)

(A) ARTICLE 19 (1) (c):

Article 19 (1) (c) guarantees to the citizens of India the right to form association or unions
and under Article 19 (4), reasonable restrictions in the interest of sovereignty and integrity of
India or public order or morality may be imposed on this right by law.

The right to form association is of very essence in a democratic country. Without such a
right, political parties cannot be formed, and without such parties a democratic form of
government especially that of the parliamentary type, cannot be run properly and recognizing
the importance of the right of forming association in a democratic society, the Courts have
denied the vesting of absolute discretion in the executive to interfere with this fundamental
right, without proper safeguards.

State of Madras v. V. G. Row53 A law empowered the State Government to declare an

association unlawful on the ground that such association constituted a danger to the public
peace, or interfered with the maintenance of public order, or the administration of law. The
Government notification had to specify the grounds for making the order and fix a reasonable
period to make a representation against the order. The Government had to place the
notification and the representation against it before an advisory board. If the board, after
considering the material, found that there was no sufficient cause for declaring the
Association unlawful, the government was bound to cancel the order.

The Supreme Court declared the provision to be unconstitutional. The Court emphasized that
curtailing the right to form association was fraught with serious potential reactions in
religious, political and economic fields. Therefore, the vesting of power in the government to
impose restrictions on this right without having the grounds tested in a judicial inquiry was a
strong element to be taken into consideration in judging the reasonableness of the

53
State of Madras v. V. G. Row, AIR 1952 SC 196
 restrictions. The existence of a summary and largely one sided review by an advisory board
was no substitute for a judicial inquiry.

Recognition of Association:

U. P. Shramik Maha Sangh v. State of Uttar Pradesh54

A rule provided that a union could not represent the parties in an industrial dispute unless it
had been approved by the Labour Commissioner for this purpose. The application for
approval could be made only two years after its formation and the Labour Commissioner
had absolute discretion to accept or reject the application. These conditions for recognition
were held to contravene Art.19 (1) (c) i.e. right to association.

O. K. Ghosh v. E. X. Joseph55

In this case the Supreme Court invalidated a rule which provided that no government servant
could join or continue to be a member of any services association which the government did
not recognize or in respect of which recognition has been refused or withdrawn by it. The
Court held that the rule imposed a restriction on the undoubted right of a government servant
under Art.19 (1) (c). The rule in question was neither reasonable nor in the interest of “public
order” under Art 19 (4). The restriction was such as to make the right guaranteed under 19
(1) (c) illusory since the government could refuse or withdraw recognition on considerations
which might not have any direct or reasonable connection with discipline or efficiency of
government servants or public order.

Raghubar Dayal v. Union of India56

Here the Court was called upon to consider the question whether the freedom of association
implies or involves a guaranteed right of recognition. The Court held that right to form
association is a fundamental right, but recognition of such an association is not a fundamental
right. It is to be noted here that recognition of an association is not a fundamental right, and
conditions can be imposed for recognition, but the conditions for recognition can be verified
in the light of reasonableness of the restrictions in order to find out whether these conditions
contravenes right to form association.

54
Uttar Pradeshiya Shramik Maha ... vs State Of Uttar Pradesh, AIR 1960 All 45, (1960) ILLJ 745 All
55
O. K. Ghosh And Another vs E. X. Joseph, 1963 AIR 812, 1963 SCR Supl. (1) 789
56
Raghubar Dayal Jai Prakash vs UOI, 1962 AIR 263, 1962 SCR (3) 547
 CONCOMITANT RIGHTS OF AN ASSOCIATION At times a question arises whether
the right to form association also involve a guarantee that an association shall have the
concomitant right to achieve its objectives for which it has been formed.

All India Bank Employees’ Ass. V. The National Industrial Tribunal,57 The Court has
ruled that the right under Art. 19 (1) (c) extends only to the formation of an association or
union and insofar as the activities of the association or union are concerned, or as regards the
steps which the union might take to achieve its object, they are subject to such laws as may
be framed and such laws cannot be tested under Art.19 (4).

The concomitant rights of the members of association does not form part of Fundamental
Right and that’s why the Court has held in cases like Kameshwar Prasad, A.I.B.E. that right
to strike is not a fundamental right.

FREEDOM OF ASSOCIATION VERSUS ‘SERVICE’

M. H. Devendrappa v. Karnataka State Small Industries Development Corpn.58

The Court held that what it has to consider is the reasonableness of service rules which
curtail certain kinds of activities amongst government servants in the interest of efficiency
and discipline in order that they may discharge their public duties as government servants in
a proper manner without undermining the prestige or efficiency of organization. The Court
further said that a proper balancing of interests of an individual as a citizen and the right of
the State to frame a code of conduct for its employees in the interest of proper functioning of
the State is required.

Thus Devendrappa ruling reduces the harshness of the Balakotaiah ruling. Balakotaiah
suggested that a government servant cannot exercise any freedom under Art. 19 and he can
enjoy his freedom only if he gives up his service. But Devendrappa ruling states that
government servant can enjoy his freedom subject to proper functioning of the State.

COMPOSITION OF AN ASSOCIATION:

Damyanti Naranga v. Union of India59

57
All India Bank Employees vs National Industrial Tribunal &, 1962 AIR 171, 1962 SCR (3) 269
58
M. H. Devendrappa v. Karnataka State Small Industries Development Corpn, SC 1998
59
Damyanti Naranga v. Union of India, AIR 1971
 The apex court held the citizen’s freedom to form an association includes his right to
become a member of an association already existing, right to continue to manage and
organize an association already formed, right to formulate and implement the lawful
objectives of such association.

THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967

The Act authorizes the Central Government to declare by notification in official gazette an
association as unlawful on certain grounds mentioned in S. 2(f) of the Act. To keep control
over the government power, provision has been made for the appointment of a tribunal
consisting of a sitting High Court Judge. A notification declaring an association unlawful is
not to be effective until it is confirmed by the tribunal. The tribunal is to decide whether or
not there is sufficient cause for declaring the association unlawful. The mechanism of a
tribunal is incorporated into the law as a consequence of what the Supreme Court has stated
earlier in V. G. Row.

Jamaat-e-Islami Hind v. Union of India, 1955 60 At the time of demolition of Babri

Mosque at Ayodhya, the Government of India issued notifications under the Act on
December 10, 1992, declaring the following bodies as unlawful for two years: Vishwa Hindu
Parishad (VHP); Rashtriya Swayam Sevak Sangh (RSS); Bajrang Dal; Islamik Sevak Sangh
and Jamat-e-Islami Hind. The tribunal appointed under the Act upheld the ban against the
VHP, but quashed the same against RSS and Bajrang Dal.

The ban against the Jamat-e-Islami was upheld by the tribunal, but, on appeal, from the
tribunal decision, the Supreme Court quashed the order. The ban against the VHP came to an
end on December 9, 1994. Again, on January 14, 1995, the Government of India declared
VHP as unlawful. This ban was quashed by the tribunal.

Right not to form association:

The question whether the associational freedom not to join an association, or union was
raised in

S.M. Kala Vs University of Rajasthan

60
Jamaat-E-Islami Hind vs Union Of India, 1995 SCC (1) 428, JT 1995 (1) 31
 is left open to be considered at some appropriate moment in future. His associational freedom
protects the right of a person not to become a member, if he does not want to join it, or
voluntarily to cease or to resign its membership. Right to form associations and union is
guaranteed so that the people can form a group of  people having the similar view, In
Sitaramacharya v. Dy, Inspector of School61, it was held that this right necessarily implies a
right not to be a member of an association. Thus, no one can be compelled to become
member of an association.

Government Servants:

Delhi Police Non-Gazetted Karmachari Sangh v. Union of India62

The fundamental rights guaranteed by Art. 19(1)(c) can be claimed by the government
servants and the government servant do not lose their rights by joining in the government
service. But when, the association consists of the members of the Police Force who by virtue
of the fact alone stand on a different footing from other associations. The Constitution of
India has laid down limitations on such associations from exercising rights under Art 19(1)
(c). The members of the Police Association come within the ambit of Art. 33 of the
Constitution and the provisions of the Act or the rules taking away or abridging the freedom
of association have been made strictly in conformity with Art. 33 and Art.19 (4) specifically
empowering the State to make any law.

Morality : The term ‘morality’ in Article 19(4) is to be given a broad connotation as

meaning not merely ‘sexual morality’ but ‘Public morality’ as well in the wider sense as
understood by the people as a whole.

FREEDOM OF MOVEMENT AND RESIDENCE:

ARTICLES 19(1)(d), 19(1)(e) AND 19(5)

Article 19(1)(d) and (e) of the Indian Constitution guarantees to every citizen of India right to
move freely throughout the territory of India and to reside and settle in any Part of the of the
Territory of India. This right is subject to reasonable restrictions imposed by law in the
interest of the general public or for the protection of the interests of any Scheduled Tribes.

ARTICLE 19(1) (D) AND 19(1) (E) ARE COMPLEMENTARY

61
Sitaramacharya v. Dy, Inspector of School, AIR 1958 A.P.78
62
Delhi Police Non-Gazetted Karmachari Sangh v. Union of India 1987 1 SCC 115
Broadly speaking the two rights contained in articles 19(1) (d) and 19(1) (e) are parts of the
same right and are complementary and often go together. Most of the cases considered under
article 19(d) are relevant to article 19(e) also. The two rights are therefore discussed together.

Foreigners:
Article 19(1) (d) applies only to the citizens and not to foreigners. Accordingly fundamental
right of a foreigner is confined to article 21 guaranteeing his life and liberty. He cannot claim
the right to reside and settle in the country as guaranteed by art 19(1) (e). The government of
India thus has the power to expel foreigners from India.

Restricting movement to maintain public order:

The Punjab Akalis threatened to hold a demonstration in Delhi on the occasion of the
inauguration of Asian games. To frustrate such demonstration, the governments of
Haryana and Uttar Pradesh took stringent measures, such as, barricading highways, resorting
to seizure and arrests, intercepting movement of Akalis across the border on to Delhi.

These steps were challenged through a writ petition in the Supreme Court. The Supreme
Court laid down some general norms as to how the police should behave in such a situation.
The police are entitled to impose reasonable restraints on the physical movement of the
members of the public in order to protect public property and avoid needless in convenience
to other citizens in their lawful pursuits. But all such restraints on personal liberty have to
commensurate with the object which furnishes their justification. The sanctity of person and
privacy has to be maintained at all costs and ought not to be violated in the name of
maintenance of law and order.

Wearing helmets:
A rule was made under the Motor Vehicles Act requiring compulsory wearing of helmet by a
person driving a scooter or a motor cycle. The rule was challenged as infringing the free
movement of the driver of a two wheeler guaranteed under Article 19(1)(d), but the court
refused to accept the argument . The Court maintained that the rule has been framed for the
benefit and welfare of safe journey by, a person driving a two wheeler vehicle. The rule was
made to prevent accidents not to curtail freedom of movement. Even if it be assumed that the
rule does put some restriction on the freedom of movement, it is justifiable under Article
19(5) as a reasonable restriction in the interest of general public.

Externment:
 Article 19(1) (d) and Article 19(1) (e) have been invoked frequently to challenge the validity
of an externment order served by the executive on a citizen requiring him to leave a state or a
district. Such an order prima facie curtails the freedoms guaranteed by these articles, and
therefore the courts are entitled to test whether the order and the law under which it has been
made is reasonable within article 19(5). The reasonableness of restrictions can be judicially
determined in any given case in accordance with the regulation of the citizen’s freedom and
the procedural requirements of the official conduct in the matter. Where a person was
directed to remove himself from the Greater Bombay area, and settle at a place specified in
the externment order, because the activities of that person in the greater Bombay were
causing alarm and it was reasonably believed that he was about to be engaged in commission
of certain offences, the externment order was held to be reasonable both in the sense of
expulsion from the Greater Bombay, and fixation of a place of residence as held in
Pandharnath Sridhar Rangnekar Vs Dy. Commr. of Police.63

Kharak Singh V. State of UP 64, In this case, Supreme Court Held that the right to move
freely throughout the territory of India means the right of locomotion which connotes the
right to move wherever one likes, and however one likes.

OUTCOME
Police surveillance: The court ruled that no aspect of police surveillance fell within the
scope of art 19(1) (d). Against the validity of shadowing of the suspect’s movement, it was
argued that if a person suspected that his movements were being watched by the police, it
would induce him a psychological inhibition against movement and this would infringe
Article 19(1)(d).

Right to Privacy:
An interesting question considered by the Court in these cases is whether there is in India a
fundamental right to privacy.
In the Kharak Singh Case, the Supreme Court ruled definitively the th ‘right to privacy’ was
not a guaranteed right in India. The right to privacy is however, absolute, and reasonable
restrictions can be placed there on in public interest under Article 19(5).

FREEDOM TO CARRY ON TRADE AND OCCUPATION

63
Pandharinath Shridhar Rangnekar vs Dy. Commr. Of Police, 1973 AIR 630, 1973 SCC (1) 372
64
Kharak Singh V. State of UP AIR 1963 SC 1295
 Constitutional Article 19(1) (g) guarantees to every citizen the right "to practice any
profession, or to carry on any occupation, trade and business."

The right secured by Article 19(1) (g) is subjected to any law made or to be made by the state
for the following purpose -

1) Any law imposing reasonable restrictions in the interest of the General public.
2) Any law prescribing professional or technical qualifications necessary for practicing any
profession or carrying on any occupation, trade or business.
3) Any law authorizing the carrying on by the State, or by 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.

The right to carry on a business includes the right not to start any business or if he chooses,
he has the right to close it down at any time he likes. Thus the state cannot compel a citizen
to carry on business against his will. A citizen cannot insist upon the government or any
other individual for doing business with him. However like rights, the right to close down a
business is not an absolute right and can be restricted, regulated, and controlled by the state
in the interests of general public. Thus the right to close down a business cannot be equated
or placed at per as high as the right not to start and carry on business. If a person does not
start a business at all, he cannot be compelled to start it. But if he was started and has been
carrying on business, his right to close it down may be restricted by imposing reasonable
restrictions. Betting and Gambling have been held to be not trade and so fall outside the
preview of Article 19(1)(g) .65

Exception to the freedom of trade-intoxicants or drugs-the apex court in Harshanker Vs.

Deputy Excuse &Taxation66 Commissioner said that trade is and include occupation of
buying and selling, barter or such skilled work as of goldsmith commission agent etc. The
citizen cannot be prevented from carrying on any trade or profession, except on ground of
unlawful character of the trade, or else, that it is extra commercium. He does not possess
freedom to carry on trade, for instance, in intoxicants or drugs.

There can be no trade in crime. It is as per the will of the person to do or to continue some
business, but this right carry on any trade or profession also includes his right to discontinue
65
Freedom to carry on trade and occupation, available at: https://www.srdlawnotes.com/2015/11/freedom-of-
profession-occupation-trade.html (visited on March 15,2019)
66
Harshanker Vs Deputy Excuse &Taxation, AIR 1975 SC 1121
 the business, or close down the business, trade or profession as in Excel Wear Vs. union of
India 67

Right against Sexual Harassment of Working Women

In Vishaka Vs State of Rajasthan68, the Supreme Court observed that sexual harassment of
working women at working places would be violation of the victim, fundamental rights under
art 19(1)(g). In this case a, social worker was brutally gang raped in a village of Rajasthan.
The court took a serious note of the matter and issued certain guidelines for the prevention of
such incidents.

No Right Against Competitions

Article 19(1)(g) does not guarantees protection from competition in trade. Therefore, the
loss of income on account of competition in trade does not infringe the right to trade under
art 19(1)(g). In Shyam Bihari Tewari Vs State of U.P 69, the Supreme court held that a
cinema owner had no locus standi to challenge, the establishment and grant in aid, for new
cinema hall.

Right to impart education and establish educational institutions

The Supreme Court in Unni Krishna vs state of A.P70 commonly known as capitation fee
case observed that activity of establishing an educational institutional institution could
neither a trade or business nor could it be a profession within the meaning of art 19(1)(g).

The above decision of Supreme Court was overruled by T.M.A Pai Foundation Vs State of
Karnataka 71where the court Held that:-

Education used to be charity or philanthropy in good old times. Gradually it became an

'occupation'. Some of the Judicial dicta go on to hold it as an 'industry'. Whether, to receive
education, is a fundamental right or not has been debated for quite some time. But it is settled
that establishing and administering of an educational institution for imparting knowledge to
the students is an occupation, protected by

Article 19(1)(g) and additionally by Article 26(a), if there is no element of profit generation.

67
Excel Wear Vs union of India (AIR 1925 SC25)
68
Vishaka Vs State of Rajasthan, AIR 1997 SC 3011
69
Shyam Bihari Tewari Vs State of U.P, AIR 1994
70
Unni Krishna vs state of A.P, AIR 1993 SC 2178
71
T.M.A Pai Foundation Vs State of Karnataka, AIR 2003 SC 355
As of now, imparting education has come to be a means of livelihood for some professionals
and a mission in life for some altruists.

It is submitted that taking over the right to regulate admission and fee structure of unaided
professional institutions is not a 'reasonable restriction' within the meaning of Article 19(6) of
the Constitution.
Restrictions on the right to carry on trade or business art 19(6)
 Reasonable restrictions in public interest.
 Restriction must not be unreasonable or excessive.
 Restriction may amount to total prohibition.
 State trading and state monopoly in a trade or business.

BIBLOGRAPHY

 Prof. Jain MP, Indian Constitutional Law, 8th Edition, Wadhwa and company Nagpur
publishers, New Delhi.
 Prof. Narender Kumar, Constitutional Law of India, 7th edition, Allahabad Law
Agency, Haryana.
 Prof. MC kagzi , the Constitution of India , 6th edition, vol-2, India Law House, New
Delhi.
 The Constitution of India –Bare Act, Universal law Publisher, New Delhi.
 Datar P Arvind , Commentry on the Constitution of India , vol -1, 2nd edition,
Wadhwa and company, Nagpur Law Publishers.
 De DJ, The Constitution of India, vol-1, 3rd edition, Asia Law House, Hyderabad.

WEBLIOGRAPHY

 www.indiankanoor.org
 www.supremecortofindia.nic.in
 www.legalhelp.com
 www.legalservicesindia.com
 www.lawschoolnotes.wordpress.com
 www.lawctopus.com
 www.livelaw.in
 www.hindustantimes.com