PROJECT ON CONSTITUTIONAL LAW

OF INDIA – ARCTICLE 19

SUBMITTED BY – REET A SINGH

SECTON-E
ROLL NUMBER - 296/22
SEMESTER-3
B.COM LL.B

SUBMITTED TO- DR. SHRUTI BEDI

UNIVERSITY INSTITUTE OF LEGAL
STUDIES
PANJAB UNIVERSITY
CHANDIGARH
 TABLE OF CONTENTS

SR.NO TITLE PAGE

NO.
1. Introduction 4-5
2. Right to freedom 6
3. FREEDOM OF SPEECH AND EXPRESSION 7-13
(Articles 19(1)(a) & 19(2)

4. FREEDOM OF ASSEMBLY [Articles 14-15

19(1)(b) & 19 (3)]

5, FREEDOM TO FORM ASSOCIATIONS OR 16-18

UNIONS OR CO-OPERATIVE SOCIETIES
[Articles 19(1)(c) &(4)]

6. D. & E. FREEDOM OF MOVEMENT AND 19-20

RESIDENCE
[Articles 19(1)(d), 19(1)(e) & 19(5)]

7. FREEDOM OF PROFESSION, 21-24

OCCUPATION, TRADE AND BUSINESS
[Articles 19(1)(g) & 19 (6)]

8. BIBLIOGRAPY 25

1|Page
 TABLE OF CASES

SR.NO CASE TITLE CITATION

1. MANEKA GANDHI V. UNION OF INDIA AIR 1978 SC 597

2. Secretary, AIR 2007 SC 3098

West Bengal Council of Higher Secondary
Education v. Ayan Das
3. Union of India v. Association For Democratic
Reforms
4. Bijoe Emmanuel v. State of Kerala

5. Communist Party of India v. Bharat Kumar

6. Shreya Singhal v. Union of India,

2|Page
 ACKNOWLEDGEMENT

At the outset, I thank the almighty god for his immense blessings and pray to him
to continue to guide me on the path of my committed calling. I deem it my proud
privilege to express my indebtedness and sincere thanks to all those who helped
in various ways, without their valuable help this project would not have been a
reality. I convey my sincere gratitude to my teacher ‘DR. SHRUTI BEDI’,
University Institute of Legal Studies, Chandigarh; who has chosen me for this
very project on the topic of ‘ARTICLE-19 of THE INDIAN CONSTITUTION’
and also provided me help with knowledge, inspiration and information. It would
not be possible for me to complete this project without her encouragement,
guidance, valuable suggestions and affectionate help. I owe my regards to the
entire faculty of the University Institute of Legal Studies, from where I am
learning the very basics of law and legal language, I would like to thank all my
wonderful friends, I made here who supported me and helped me in every step of
my project making. At last I would thank my parents whose hard work,
determination and good upbringing made me what I am today and inspired me to
do best in every project of my life

3|Page
 INTRODUCTION

Part Ⅲ of the Indian constitution is titled as the “FUNDAMENTAL RIGHTS”

which secures the people of India with certain basic, natural and inalienable
rights. These rights are declared as essential rights in order that “human liberty
may be preserved, human personality developed and an effective social and
democratic life promoted".
In the case of Maneka Gandhi v. Union of India1, it was observed that the
fundamental rights represent the basic values which are cherished by the people
of India and they are calculated to protect the dignity of the individual and create
conditions in which every human being can develop his personality to the fullest
extent. They weave a pattern of guarantees on the basic structure of human rights
and impose negative obligations on the State not to encroach on individual liberty
in its various dimensions.
The framers of the Indian constitution followed the American model in adopting
and incorporating the fundamental rights for the people of the India. The
constitution of, not only, secures the fundamental rights, but also, provides a
speedy and effective remedy for their enforcement.
Part Ⅲ of the constitution is said to contain the Bill of Rights for the
people of India. These rights are similar to the Bill of Rights in the constitution
of U.S. The rights secured are the necessary consequence of the declaration
contained in the Preamble to the Constitution, wherein the People of India
solemnly resolved, to constitute India into a Sovereign, Socialist, Secular,
Democratic Republic and to secure to themselves justice, liberty, equality and
fraternity. They have been said to be the very foundation of the democratic way
of life ushered in this country by the Constitution. These rights have been declared
as sacrosanct, inalienable and inviolable. The minorities regard these rights as
the bedrock of their political existence, while the majority consider them as
guarantee for their way of life.
The Fundamental Rights have not been declared immutable, but these are to be
kept in conformity with the changing socio-economic conditions. For this very
purpose the Constitution of India confers power on the State which is the

1 AIR 1978 SC 597

4|Page
constituent power, the power to amend the Constitution including the power to
amend the Fundamental Rights.
For example, the Constitution’s 1st Amendment, 1951, the 42nd amendment,
1976, 44th Amendment, 1978, amended the provisions relating to Fundamental
Rights.

The Fundamental Rights which are secured by the constitution of India are
grouped as the following: -
1. Right to Equality (Article 14-18)
2. Right to Freedom (Article19-22)
3. Right to Education (Article 21-A)
4. Right against exploitation (Article 23-24)
5. Right to freedom of religion (Article 25-28)
6. Cultural and educational rights (Article 29-30)
7. Right to constitutional remedies (Article 32)

5|Page
 RIGHT TO FREEDOM (Article-19)

Article 19(1) of the Indian constitution states, all citizens shall have the right-
(a) To freedom of speech and expression
(b) To assemble peacefully and without arms
(c) To form associations or unions [or co-operative societies]2
(d) To move freely throughout the territory of India
(e) To reside and settle in any part of the territory of India, [and]3
(f) [***]4
(g) To practise any profession, or to carry on any occupation, trade or business.

Article 19(1) of The Indian Constitution secures freedom only for the citizens of
India. Though, the great and basic freedoms enumerated in Article 19 (1) have
been recognised as the natural rights, inherent in the status of a citizens out none
of these freedoms, is absolute or uncontrolled. Each freedom is liable to be
restricted by laws made or to be made by the State under the respective clauses
(2) to (6) of Article 19.
The restrictions, which may be imposed on the freedoms guaranteed under Article
19(1), must satisfy the following three broad tests -
1. A restriction can be imposed only by or under the authority of a law duly
enacted by appropriate Legislature. Thus, no restriction can be imposed by
executive action alone without the authority of a law to back it up.
2. The restriction must be imposed "in the interests of" or "for the particular
purpose" mentioned in the Clause permitting the imposition of the
restriction on that particular freedom, i.e., there must be a reasonable nexus
between the restriction imposed and the objects enshrined in the respective
Clause. Hence, no restriction can be imposed on the freedoms, on grounds
other than those specified in the respective Clauses
3. The restriction must be reasonable.

2
Ins.by the Constitution (97th Amendment) Act,2011, s.2 (w.e.f. 12-1-2012)
3
Ins.by the Constitution (44th Amendment) Act,1978, s.2 (w.e.f. 20-6-1979)
4
Sub-clause (f) omitted by The Indian Constitution (44 th Amendment) Act,1978. Before omission stood as
under; “(f) to acquire, hold and dispose of property; and”

6|Page
 FREEDOM OF SPEECH AND
EXPRESSION (Articles 19(1)(a) & 19(2)

Article 19 (1)(a) guarantees to all citizens "the right to freedom of speech and
expression”5
Clause (2) of Article 19, at the same time provides: "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.". It may, thus, be stated that the
exercise of the right conferred by Article 19(1)(a) carries "special duties and
responsibilities."
➢ Meaning of Freedom of Speech and Expression
Freedom of speech and expression guaranteed under Article 19(1)(a), means the
right to express one’s opinions or to air grievances by words of mouth, writing,
printing, pictures or in any other manner. When a person is talking on telephone,
he is exercising his right to freedom of speech and expression. It is to express
one’s convictions and opinions or ideas freely, through any communicable
medium or visible representation, such as gesture, signs and the like. It means to
lay what sentiments a free citizen pleases before the public and hence it includes
the freedom to hold opinions without interference and to seek and receive and
impart information and ideas through any media and regardless of frontiers.
➢ Scope and Content of the Freedom
a) Right to know and obtain information
The right to information is indisputably a fundamental right, a facet of
“speech and expression” as contained in Article 19(1)(a). It has been
said that in a government of responsibility like ours, it is elementary that
citizens ought to know what their government is doing. They have the
right to know every public act, everything that is done in a public way,
by their public functionaries. Independent media is a sine qua non to

5
Article 19(a) of the Constitution of India

7|Page
 create awareness. Free media is associated with lower corruption and a
better response from government. It, thus, increases government
responsiveness.

b) Right of the Examinee to have Access to Evaluated Scripts

In Secretary, West Bengal Council of Higher Secondary Education v.
Ayan Das6, the Apex Court ruled that the Courts should not normally direct
the production of answer scripts, to be inspected by the examinees, unless
a case was made out to show that either some questions had not been
evaluated or that the evaluation had been done contrary to the norms fixed
by the examining body.

c) Right of citizens / voters to know about the antecedents of the

candidate at election
Article 19(1)(a) which guarantees the right to speak and express oneself
has been held to include the voter's speech or expression, in case of
elections, in a democracy. It has been said that the voter speaks out or
expresses by casting vote. Explaining that democratic government is a
continual participative operation, and that "a successful democracy
posits an 'aware' citizenry", the Apex Court in Union of India v.
Association For Democratic Reforms7, ruled that voters' right to know
antecedents including criminal past of his candidate contesting election
for M.P. or M.L.A., was fundamental and basic for
survival of democracy.

d) Freedom of Silence - Right not to speak

In Bijoe Emmanuel v. State of Kerala8, the Supreme Court held that
no person could be compelled to sing the National Anthem "if he has
genuine conscientious objections based on his religious belief'. In
this case, three children belonging to Jehovah's Witnesses, were
expelled from the school for refusing to sing the National Anthem
during school prayers. They used to stand up respectfully when the
National Anthem was being sung, but did not join in singing it. The
Kerala High Court upheld their expulsion from the school on the ground
that it was their fundamental duty to sing the National Anthem and that
6 AIR 2007 SC 3098
7 AIR 2002 SC 2112
8 AIR 1987 SC 748

8|Page
 they committed an offence under the Prevention of Insults to National
Honours Act, 1971.
The Supreme Court, however, reversed the decision of the High Court
and observed that they did not commit any offence. It was held that the
expulsion of the children from that school was a violation of their
fundamental right under Article 19(1)(a) which also included freedom
of silence may, thus, be stated that freedom of expression
includes the right not to express.
e) Right to choose medium of instructions
Recently, a Constitution Bench of the Supreme Court, expanding the
scope of the right to freedom of speech and expression, held that the
State could not impose the language considered to be the mother tongue,
as the medium of instruction, in primary schools. The children of
linguistic minorities would be at liberty to choose their medium of
instruction, the Court ruled. However, it was clarified that the State
could impose its Official language as the medium in government,
government-aided and recognised primary schools.
The Court held that private unaided schools, linguistic as well as
religious minority educational institutions would remain outside the
purview of "mother tongue" as medium of instruction.

f) Freedom of the press – Included

Unlike the American Constitution, Article 19(1) does not specifically or
separately provide for liberty of the press. The omission was explained
by Dr. B.R. Ambedkar when he observed9:
The press has no special rights which are not to be given or which are
not to be exercised by the citizen in his individual capacity. The editor
of a press or the manager are merely exercising the right of the
expression, and, therefore, no special mention is necessary of the
freedom of the press.
It is thus settled law that the right to freedom of speech and expression
in Article 19(1)(a) includes the liberty of the press. This liberty has been
held to be one of the great bulwarks of liberty and can never be
restrained but by despotic Government. However, it is the duty of the
media to provide correct information, and not information that is
factually wrong, based on simply unverified information.

9 CAD VII, 980. See also Brij Bhushan v. State of Delhi, AIR 1950 SC 129.

9|Page
 g) No right to call or enforce BANDH, Hartals, blockades
The Supreme Court in Communist Party of India v. Bharat Kumar
10
reiterated with approval the decision of the Kerala High Court in
Bharat Kumar v. State of Kerala, and laid down that there was no right
to call or enforce "bandh" which interfered with the exercise of
fundamental freedoms of other citizens, in addition, to causing national
loss in many ways.
A bandh, the Court said, was, in fact, a curfew declared against the State.
The expression "hartal" is of Indian origin.' It means a temporary
cessation of commercial activity especially as a type of organised
passive resistance. A hartal, unaccompanied by violence or coercion can
be understood to be a legitimate form of protest or signification of
mourning in the wake of a tragedy, national or local. Thus, mere calling
of hartal cannot be held to be objectionable.

h) Right to fly national flag

The right to fly the National Flag freely with respect and dignity, being
an expression and manifestation of one's allegiance and feelings and
sentiments of pride for the Nation, has been held in Naveen Jindal's
case, to be a fundamental right within the meaning of Article 19(1)(a)
but so long as the expression is confined to nationalism, patriotism and
love for motherland. It cannot, therefore, be used for commercial
purpose or otherwise.
i) Right to post information on the internet
A Division Bench of the Supreme Court in Shreya Singhal v. Union of
India, struck down Section 66A of the Information Technology Act,
2002, which empowered the police to arrest persons for posting
offensive information on the Internet, including Social Sites such as
Facebook and I witter, that could cause enmity, hatred, intimidation and
a host of other law and order problems.

➢ Reasonable restriction on FREEDOM OF SPEECH AND

EXPRESSION
The freedom of expression, like all other freedoms under Article 19(1) is
subject to reasonable restrictions. It is ruled that an action tending to violate

10 AIR 1997 Ker 291

10 | P a g e
 another person's right to life guaranteed under Article 21 or putting the
National security in jeopardy, can never be justified by taking the plea of
freedom of speech and expression.5
In the instant case, it was noticed that the Indian T.V. Channels had shown
live, from beginning to end almost non-stop, latest developments on a
minute to minute basis, including the positions and the movements of the
security forces engaged in flushing out the terrorists. This reckless
coverage of the terrorist attack by the channels thus made the task of the
security forces not only exceedingly difficult but also dangerous and risky.

Freedom of speech and expression, it is said, has to be given, a broad

canvass, but it has to have inherent limitations, which are permissible
within the constitutional parameters.

The grounds, in the interest of which restrictions on the freedom, are

permissible under Clause (2) of Article 19, are discussed below—

➢ Security of State
The expression "security of the State" refers to serious and aggravated
forms of public disorder, such as, rebellion, waging war against the State,
insurrection. Endangering the security of a part of the State, would involve
a threat to the security of State. Thus, the security of the State may be
endangered by crimes of violence, intended to overthrow the Government,
waging of war and rebellion against the Government, external aggression,
etc. A speech advocating a change in the system of government cannot be
said to involve a threat to the security of the State, so long as the change
advocated is not unconstitutional. While, speeches or expressions on the
part of the individual which incite or encourage the commission of violent
crimes, such as murder, would endanger the security of the State.
Stating that "the issue of movement of Army troops is not a matter of the
kind which should require public discussion at the cost of defence secrecy
and the security of the Country"

➢ Friendly Relations With Foreign States

This ground was added to Article 19(2) by the Constitution First
Amendment) Act, 1951.

11 | P a g e
 The object behind this provision is to prohibit any unrestrained malicious
propaganda, libels against a foreign State, in the interests of maintaining
friendly relations with them.
Such like laws fall within this expression and are saved by Article 19(2).

➢ Decency or Morality
Restrictions on the freedom of speech and expression can be imposed in
the interests of decency or morality. The purpose is to restricting speeches
and publications which tend to undermine public morals. For instance,
State's directions to desist from holding out any offer to cure illness, etc.,
by conducting prayers are upheld as reasonable restrictions on the
petitioner's right to pray and to perpetuate her ideas as to religion even by
being part of a peaceful assembly, and to move freely for such purpose.
The word "decency" connotes the same as lack of obscenity. The word
"obscenity" is identical with the word "indecency"

➢ Contempt of Court
The right to freedom of speech and expression does not entitle a person to
commit contempt of Court.^ It cannot be held as law that in view of the
constitutional protection of freedom of speech and expression, no one can
be proceeded with for the contempt of Court on the allegation of
scandalising or intending to scandalise the authority of any court.6 The
freedom cannot be equated or confused with a licence to make unfounded
and irresponsible allegations against any institution much less the
judiciary.? The law relating to the contempt of Courts thus imposes
reasonable restrictions on the freedom and is within the ambit of Article
19(2).

➢ Defamation
The freedom of speech and expression cannot be used to transgress the law
relating to defamation. Section 499 of the Indian Penal Code, 1860 defines
the offence of defamation. It means harming someone's reputation by a
false and defamatory statement, without any lawful justification, whether
in the form of spoken words (slander) or written words (libel)." A remark
to be defamatory, has to be published, electronically in print or heard by a
person other than the two people involved. Even truth is not a complete
defence. It needs to be proved that statement was made for public good. It

12 | P a g e
 recognises no distinction between defamatory statement addressed
to the ear or eyes and thus includes both slander and libel. Defamatory
matter put in writing is a libel while in spoken words or gestures, it
amounts to slander.

➢ Incitement to an Offence
This ground was added to Article 19(2) by the Constitution (First
Amendment) Act, 1951. It has been held that "incitement to an offence"
did not refer to "incitement to break a law". Thus, an incitement to a breach
of every civil law is not necessarily contemplated by Article 19(2)
However, the freedom does not include the right to speak either about the
implication or involvement of the accused, in any crime, particularly, in the
sensational crimes, either in the form of opinion/views or agitations.

➢ Sovereignty and Integrity of India

This ground was added to Article 19(2) by the Constitution (Sixteenth
Amendment) Act, 1963. The purpose is to guard the freedom of speech and
expression from being used to assail the sovereignty and territorial
integrity of the country.

13 | P a g e
 FREEDOM OF ASSEMBLY [Articles
19(1)(b) & 19 (3)]

Sub-clause (b) of Clause (1) of Article 19 guarantees to all citizens the right
to assemble peaceably and without arms. Clause (3) of Article 19
empowers the State to impose reasonable restrictions on the right to
assemble, in the interests of, "the sovereignty and integrity of India" or
"public order". The ground "sovereignty and integrity of India" was
inserted by the Constitution (16th Amendment) Act, 1983.

➢ SCOPE OF THE RIGHT TO ASSEMBLE

The "right of assembly" guaranteed by Article 19(1)(b) is a corollary of the
right to freedom of speech and expression" guaranteed under Article
19(1)(a), for, the very purpose of holding an assembly is, to hold
consultations, to express one's views, in respect of public affairs. It
educates the public in the formation of opinion on religious, political,
economic or social problems of the society. Chief Justice Waite of the
Supreme Court of America in United States v. Cruikshank," explained:
the very idea of a government, republican in form, implies a right on the
part of citizens to meet peaceably for consultation in respect of public
affairs.
The right of assembly thus includes the right to hold public meeting and to
take out processions. It also includes the right to hold demonstrations.
Article 19(1)(b) has been held to cover the right to hold hunger strike, so
long as it is assured to be peaceful without arms and not against any
individual or group/community.

➢ Reasonable Restrictions on Freedom of Assembly

The right to hold assembly conferred by Article 19(1)(b) is, however, not
absolute. It is subjected to the following limitations—
(1) the assembly must be peaceful;
(2) it must be unarmed; and
(3) the State may impose reasonable restrictions under Clause (8) Article
19 in the interests of Public Order or Sovereignty and Integrity of India

14 | P a g e
 ➢ Public Order
Restriction must be regulatory and not prohibitive in nature In Himmat
Lal v. Police Commissioner, Bombay11, Section 33(1)(0) of the Bombay
Police Act, 1951, empowered the Police Commissioner to make rules to
regulate assemblies and processions. Under Rule 7, the Commissioner
could put a total ban on all meetings or processions. The petitioner, the
Secretary of All India Students Federation, sought permission to hold a
meeting, which was refused. The Supreme Court struck down Rule 7 as
violative of the right guaranteed under Article 19(1)(b). The Court held that
the State could only make regulations in aid of the right of assembly of
citizens and could impose reasonable restriction in the interest of public
order. However, no rule could be prescribed prohibiting all meetings
or processions.

➢ No Right to Hold Assembly On Private Property

The right to hold assembly does not include the right to hold meetings on
private property belonging to others.
In Railway Board. v. Niranjan Singh, the General Manager, Railways
issued a circular putting a ban on holding of meetings or assemblies on the
railway premises. The petitioner, a railway employee, was removed from
service for addressing a meeting on the railway premises. The Supreme
Court, upheld the circular and held that Article 19(1)(6) did not guarantee
the right to hold meetings on private property belonging to others.

The ground of Sovereignty and Integrity of India" was inserted by the Constitution (16th
11

Amendment) Act, 1963.

15 | P a g e
 FREEDOM TO FORM ASSOCIATIONS OR
UNIONS OR CO-OPERATIVE SOCIETIES
[Articles 19(1)(c) &(4)]

Sub-clause (c) of Clause (1) of Article 19 guarantees to the citizens of India

"the freedom to form associations or unions or cooperative societies".
Article 19(4) provides that the State may impose reasonable restrictions on
the exercise of this freedom in the interests of "public order", "morality" or
the sovereignty and integrity of India".
The ground of "the sovereignty and integrity of India" was inserted in
Article 19(1) by the Constitution (Sixteenth Amendment) Act, 1963.
The right to form association may be said to be a corollary of the right to
free speech contained in Article 19(1)(a). This freedom is as essential to
democracy as the free discussion? or the freedom to meet for consultation
with others.3 It is the very life-blood of democracy, for without freedom of
association, no political parties, so essential for the proper functioning of
parliamentary democracy, can be formed. It is not merely for political
purposes, but also, for the protection of other rights, guaranteed by the
Constitution, that the freedom of assembly, is essential.

➢ SCOPE OF THE RIGHT TO FORM ASSOCIATIONS OR UNIONS

An association means "a collection of persons who have joined together
for a certain object, which may be for the benefit of the members or the
improvement, welfare or advantage of the public or some scientific,
charitable or similar purpose". It is a term of widest connotation. Therefore,
the right to form associations or unions guaranteed by Article 19(1)(c)
includes the right to form companies, societies, partnership firms, trade
unions, clubs, political parties and the like body of persons. There may be
an association or a society, consisting of persons, belonging to a particular
religion, a particular mode of life, a particular persuasion.
The term "form" in Article 19(1)(c) cannot be restricted to only to the
extent of registration of the association/union, but include establishment,
administration and functioning of the same. Right To Be a Member
Voluntarily. The right to form associations means the right voluntarily to
be a member of an association. It includes the right not to be a member or

16 | P a g e
 the right to continue to be or not to continue to be a member of the
association.
In Damyanti v. Union of India, the petitioner was a member of the Hindi
Sahitya Sammelan, a Society, registered under the Societies. Registration
Act, 1860 formed to promote and propagate Hindi language.
Subsequently, Parliament enacted the Hindi Sahitya Sammelan Act, 1962
for regulating the affairs of the Society. The Act changed the composition
of the Society and introduced new members. The Act further provided that
the original members would continue to be the members of the newly
constituted Society. As a result, the members who voluntarily formed the
association were now compelled to act in the association with other
members, in whose admission, they had no say.

➢ Right subjected to Reasonable Restrictions [Article 19(4)]

The right guaranteed under Article 19(1)(c) is not absolute. Article 19(4)
specifically empowers the State to make any law to fetter, abridge or
abrogate the right by imposing reasonable restrictions in the interest of
"public order", "morality" or "the sovereignty and integrity of India". The
Prevention of Terrorism Act, 2002 was enacted, inter alia, to protect
sovereignty and integrity of India from the menace of terrorism. Declaring
any organisation as a terrorist organisation, under the Act, was permissible
under Article 19(4). However, a restriction found to be unreasonable is not
permitted to be imposed.

➢ Right Not To Be a Member of an Association

The right to form association implies the right not to form an association.'
But, it does not follow that the negative right must also be regarded as a
Fundamental Right.

➢ No right to continue in Government Service

In P. Balakothiah v. Union of India, the Supreme Court distinguished
between the right to be a member of an association and the right to continue
in the government service. In the instant case, the services of the appellant
were terminated under the Railway Service (Safeguarding of National
Security) Rules, 1949, Rules, for his being a member of the Communist
Party and a trade unionist. The Supreme Court held that the Order
terminating his services was not in contravention of his right guaranteed

17 | P a g e
 under Article 19(1)(c). The Court said that the appellant, no doubt, had the
fundamental right to form association, but he had no fundamental right to
be continued in the government service. The order of terminating his
service, the Court held, did not prevent him from continuing to be a
member of the Communist Party and a trade unionist.

➢ No Tearing the Veil of the Union/Association

It has been held in Dharam Dutt v. Union of India, that as soon as citizens
had formed a company, the right guaranteed by Article 19(1)(c), would be
said to have been exercised. Once a company is formed, the business which
it carries is the business of the company and not that of the citizens, who
got the company formed.
Therefore, the attempt of the petitioner to claim the benefit of Article
19(1)(g), by placing reliance on the doctrine of lifting the corporate veil,
was rejected by the Court. The Court explained that the effect of confining
Article 19 to citizens as distinguished from persons, was that protection
under Article 19 could be claimed only by citizens and not by
corporations or companies.

18 | P a g e
 D. & E. FREEDOM OF MOVEMENT
AND RESIDENCE
[Articles 19(1)(d), 19(1)(e) & 19(5)]

Freedom of Movement [Article 19(1)(d)] Sub-clause (d) of Clause (1) of Article

19 guarantees to every citizen of India the right "to move freely throughout the
territory of India."
➢ Scope of Article 19(1)(d)
The right to move freely throughout the territory of India means the "right
of locomotion" which connotes the right to move wherever one likes,
whenever one likes, and however one likes. Article 19(1)(d) guarantees
the right to move freely not merely from one State to another State, but
also from one place to another, within the same state

The right is not absolute in the sense that Clause 5 of Article 19 enables the
State to impose reasonable restrictions on the freedom on the following
grounds—
(a) in the interest of general public; or
(b) for the protection of the interests of any Scheduled Tribe.

➢ Right to use Highways Road Blockades

The right to move freely secured under Article 19(1)(d) includes the right
to use roads or highways. Therefore, road blockades, which obstruct free
flow of traffic on roads amount to infringement of the fundamental right to
move freely
In Chambara Soy v. State of Orissa, the petitioner was not allowed to
take his ailing son to the hospital by the unscrupulous elements, hooligans
blocking the road. Holding the State Government negligent in removing
the blockage, the Orissa High Court directed the State to take necessary
steps against persons responsible and to recover cost of damage from
protesters. Rule 498-A of the Andhra Pradesh Motor Vehicles Rules, 1964
and the Notification issued thereunder, made it compulsory for the drivers
of two wheelers to wear helmets. In Ajay Canu v. Union of India, the
19 | P a g e
 Supreme Court upheld Rule 498-A as well as the Notification issued
thereunder as imposing reasonable restriction on the freedom of movement
guaranteed under Article 19(1)(d).

➢ Freedom of Residence [Article 19(1)(e)]

Article 19(1)(e) guarantees to every citizen of India, the right to reside and
settle in any part of the territory of India. This right is subjected to
reasonable restrictions which may be imposed by the State, by law, under
Article 19(5), (1) in the interests of general public; or (2) for the protection
of the interests of any Scheduled Tribe. Articles 19(1)(d) and 19(1)(e) are
Complementary 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.

➢ Reasonable Restrictions
In N.B. Khare v. State of Delhi, the East Punjab Public Safety Act,1949
empowered the District Magistrate or the State Government to pass orders
of externment against any person, on being satisfied that such an order was
necessary to prevent him from acting in any way prejudicial to public
safety or maintenance of public order. The Act was enacted with a view to
meet the situation resulting from the partition of the country and was to
have a limited duration. The Supreme Court held that the Act was not
invalid because the discretion to make an externment order was given to
the Executive, such power could reasonably be conferred in an emergency.
Again, since the Act was to have a limited duration, the Court said, there
was no possibility of an order of externment being made for an
indefinite period.

20 | P a g e
 FREEDOM OF PROFESSION,
OCCUPATION, TRADE AND
BUSINESS [Articles 19(1)(g) & 19 (6)]

Sub-clause (g) of Clause (1) of Article 19 guarantees to every citizen the

right "to practise any profession, or to carry on any occupation, trade or
business".
The right is subjected to the provisions of Clause (6) of Article 19.
Freedom of trade and commerce and freedom of speech and expression,
through the medium of internet is held constitutionally protected under
Articles 19(1)9g) and 19(1)(a), subject, however, to restrictions
under Article 19(6).

➢ Profession, Trade, Business, Occupation-Defined

The term "occupation" means some activity by which a person is occupied
or engaged. It would be an activity of a person undertaken as a means of
livelihood or a mission of life.5 For instance, a journalist has fundamental
right to carry on his or her occupation under Article 19(1)(g).6 It includes
"profession", "trade" or "business". The term "profession" has been
interpreted to mean an occupation requiring the exercise of intellectual
skill, often coupled with manual skill. The term "business" means any
activity involving the production, distribution and consumption of wealth
and the production and availability of material services.' While "trade" is
an activity concerning the sale and purchase of goods. It is an exchange of
any article either by barter or for money or for service rendered. The party
paying consideration in any trade is aware for what he is paying
the consideration.

➢ SCOPE OF ARTICLE 19(1)(g)

Right Not to Start or to Close Down a Business.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. However, like other rights,
the right to close down a business is not an absolute right and can be
restricted, regulated or controlled by the State in the interests of general
public. In Excel Wear v. Union of India, the validity of Sections 25-0 and
25-R of the Industrial Disputes Act, 1947, was challenged. Section 25-0
required an employer to take prior permission from the Government for
21 | P a g e
 closure of his industrial undertaking. The Government could refuse the
permission to close down the business if it was satisfied that the reasons
given by the employer were not adequate and sufficient or that such closure
was prejudicial to the public interest. The Supreme Court held Section 25-
0 as a whole and Section 25-R in so far as it related to the awarding of
punishment for violation of provisions of Section 25-0 as unconstitutional
and invalid for violation of Article 19(1)(g). The Court said that no person
had a right to carry on the business if he could not pay even the minimum
wages to workers .

➢ No Right to Hold a Particular Job of One's Choice

The closure of an establishment in which a workman is for the time being
employed, does not by itself infringe his fundamental right to carry on an
occupation. In Fertilizer Corporation Kamgar Union v. Union of India,' the
Supreme Court held that Article 19(1)(g) did not confer the right to hold a
particular job or to occupy a particular post of one's choice. When the
redundant and/or retired plants and equipments of the factory were sold
and as a consequence, some of the workers were retrenched, the Court said
: "that by itself would not offend the fundamental right of such workers
under Article 19(1)(g)."

➢ No Right to Carry On Business or Trade in Liquor

Whether an activity or business comes within the purview of Article
19(1)(g), should not be determined by applying the standards of morality
obtaining at a particular time in the country. "The standards of morality",
it is said can afford a guidance to impose restrictions, but cannot limit the
scope of the right. In Khoday Distilleries Ltd. v. State of Karnataka, the
Supreme Court summarised the position relating to the right to carry on
trade in liquor. Referring to the rule of res extra-commercium, the Court
said that a citizen had no fundamental right to trade in activities which were
immoral and criminal and in articles or goods which were obnoxious and
injurious to health, safety and welfare of general public. That, the State had
power to prohibit the manufacture, sale, possession, distribution and
consumption of liquors for the reason that it was a dangerous article of
consumption and also because the prohibition contained in the Directive
Principle under Article 47.6 It has been thus, ruled that there was no
fundamental right under Article 19(1)(g) to carry on trade or business in
intoxicating liquors. Further, the State can create monopoly in such
business either in itself or in any agency created for this purpose. However,

22 | P a g e
 the reasonableness of the excise policy of the Government can be looked
into by the Court

➢ Dancing-Not res extra-commercium

Dancing has been held to be not extra-commercium. So held, the Supreme
Court in State of Maharashtra v. Indian Hotel & Restaurants Assn.,' said
that prohibition on dancing in bar, placed by Section 31-A of the Bombay
Police Act, 1951 violated Article 19(1)(g). The Act, 1951 had classified
establishments into prohibited and exempted establishments on the basis
of facilities it provided and on the basis of harm it caused to atmosphere.

➢ Right Against Sexual Harassment of Working Women

In Vishaka v. State of Rajasthan,' a three-Judge Bench of the Supreme
Court, headed by Hon'ble Chief Justice Verma, observed that sexual
harassment of working women in work places would be violation of the
victims', fundamental right under Article 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 binding directions for the prevention
of such incidents. The directions were to be applicable to both public and
private sector.
Reiterating the principles laid down in Vishaka judgment and Convention
on Elimination of All Forms of Discrimination Against Women
(CEDAW) a Division Bench of the Supreme Court in Nisha Priya Bhatia
v. Union of India,' laid down-
the cases of sexual harassment at workplace are not confined to cases of
actual commission of acts of harassment, but also cover situations wherein
employee is subjected to prejudice, hostility, discriminatory attitude and
humiliation, in day to day functioning of the workplace.

➢ Restrictions on the right to carry on trade or business Article 19(6)]

The right to carry on business, etc. is subject to compliance of
constitutional obligations as also limitations provided for in the
Constitution. The right to practise any profession or to carry on any
business or trade guaranteed by Article 19(1)(g) may be restricted in two
ways. Firstly, by reasonable restrictions which might be imposed by State
by law in the interests of general public. Secondly, the State may itself or
through a corporation owned or controlled by it, carry on any trade or
business and thus excluding citizens, completely or partly, from carrying
on such trade or business.

23 | P a g e
 ➢ Reasonable Restrictions in Public Interest
The restrictions which may be imposed under Article 19(6) must satisfy
the following two conditions-
(1) The restrictions must be imposed in the interests of general public,
and
(2) The restrictions must be reasonable.

The expression "in the interests of general public" in Article 19(6) has
been held to be of wide import comprehending public order, public
health, public security, morals, economic welfare of the community and
the objects mentioned in Part IV of the Constitution?

Restriction Must not be Unreasonable or Excessive

It is well-settled that exercise of power by the State in imposing
restrictions is open to judicial review on the touchstone of
proportionality and natural justice principle.3
In Chintaman Rao v. State of M.P., with a view to providing the supply
of adequate labour for agricultural purposes, in bidi manufacturing
areas of the State, the Madhya Pradesh Act, 1948, empowered the
government to prohibit all persons, residing in certain area, from
engaging themselves in the manufacture of bidis, during agricultural
seasons. The Act was held invalid as it imposed unreasonable
restriction on the right to carry on the bidi manufacturing business in
that area, as it was much in excess of the purpose of the Act.5 A law
which confers arbitrary and uncontrolled power on the Executive in
the matters of regulating trade or business, cannot be held to be
reasonable.

Restriction may amount to Total Prohibition

The word "restriction" in Clause (6) of Article 19 may include total
prohibition under certain circumstances,' For instance, where a
business or trade is inherently dangerous.

24 | P a g e
 Bibliography

1. CONSTITUTIONAL LAW OF INDIA – Dr. NARENDRA

KUNMAR
2. THE CONSTITUTION OF INDIA,1950

25 | P a g e