Article 19 - Students
Article 19 - Students
(e) to reside and settle in any part of the territory of India; and
(f) omitted
Reasonable Restriction
Art. 19 (2) to (6) provide for reasonable restrictions on the freedoms enshrined under Art. 19
(a) to (g):
(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. The Eight grounds of restriction which are mentioned in clause (2) of Article 19 are:
Security of the State means the absence of serious and aggravated forms of public
disorder, as distinguished from ordinary breach of „public safety‟ or „public order‟
which may not involve any danger to the State itself. Thus, security of the State is endangered
by crimes of violence intended to overthrow the Government
Friendly Relations with Foreign States‟ the object of this exception to the freedom of
speech and expression is to prevent libels against foreign States in the interests of maintaining
friendly relations with them.
“Public order” this ground was added by the Constitution (1st Amendment) Act, 1951, in
order to meet the situation arising from the Supreme Court‟s decision in Romesh Thapper‟s
case. In this case, it was held that ordinary or local breaches of public order were no
grounds for imposing restriction on the freedom of speech and expression guaranteed by the
Constitution.
“Decency and Morality” the words “morality and decency” are words of wide meaning. The
word “obscenity” of English law is identical with the word “indecency” under the
Indian Constitution. The test of obscenity is “whether the tendency of matter charged as
obscene is to deprave and corrupt those whose minds are open to such immoral influences”
and into those hands a publication of this sort is likely to fall.Thus a publication is obscene
if it tends to produce lascivious thoughts and arouses lustful desire in the minds of
substantial numbers of that public into whose hands the book is likely to fall. This test was
laid down in an English case of R. v. Hicklin.
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 and morality.
Contempt of Court in the exercise of his right of freedom of speech and expression, nobody
can be allowed to interfere with the due course of justice or to lower the lower the prestige or
authority of the court, even in the garb of criticising a judgment.
Incitement to an offence: Offence means any act or omission made punishable by the law for
the time being in force. Incitement to an offence, however, is to be determined by the Court
with reference to the facts and circumstances of each case.
Art. 19 (2) reasonable restrictions w.r.t. Freedom of speech and expression – Sovereignty and
integrity of India, security of state, friendly relationship with foreign states, public order,
decency and morality, contempt of court, defamation, incitement to commit offences
Art 19(3) refers to reasonable restrictions regarding right to assemble peaceably and without
arms Art.19(2) – sovereignty and integrity of India, public order.
Art. 19(4) refers to reasonable restrictions w.r.t. Art. 19(c) – Sovereignty and integrity of
India, Public order and morality
Art. 19 (5) refers to reasonable restrictions w.r.t. Art.19(d) and (e) – general public or
protection of scheduled tribe.
Art. 19(6) refers to reasonable restrictions w.r.t. Art.19(g) – general public, qualifications and
state monopoly.: (6) Nothing in sub clause (g) of the said clause shall affect the operation of
any existing law in so far as it imposes, or prevent the State from making any law imposing,
in the interests of the general public, reasonable restrictions on the exercise of the right
conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect
the operation of any existing law in so far as it relates to, or prevent the State from making
any law relating to,
(i) the professional or technical qualifications necessary for practising any profession or
carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any
trade, business, industry or service, whether to the exclusion, complete or partial, of citizens
or otherwise
The power or right to express one’s opinions without censorship, restraint, or legal penalty is
known as Freedom of Speech. Unhindered flow of words in an open forum is the essence of
free society and needs to be safeguarded at all times. One’s opinions may, therefore, be
expressed by words of mouth, in writing, printing, pictures, or any other mode. This freedom
includes a person’s right to propagate or publish the views of other people.
Freedom of speech and expression of the press lays at the foundation of all democratic
organizations, for without free political discussion no public education, so essential for the
proper functioning of the popular government is possible
The offence of sedition, in India, is defined under Section 124-A of the Indian Penal Code as,
“whoever by words either spoken or written, or by signs, or by visible representation or
otherwise brings into hatred or contempt or excite or attempts to excite disaffection towards
the government established by law in India shall be punished”.
When it is left to me to decide whether we should have a government without news papers
or news papers without government , I should not hesitate to a moment to prefer the latter
– Thomas Jefferson
In Brij Bhushan V. State of Delhi, (1950) an order issued under East Punjab Safety Act,
directing the editor and publisher of a newspaper “to submit for scrutiny, in duplicate, before
publication ,till further orders, all communal matters and news and views about Pakistan,
including photographs and cartoons”, was struck down by the Supreme Court observing,
there can be little doubt that the imposition of pre-censorship on a journal is a restriction on
the liberty of the press which is an essential part of the freedom of speech and expression
declared by Art. 19(1)(a).
In Romesh Thappar V. State of Madras,(1950) the notification banning the entry into or
circulation, sale, or distribution in the State of Madras or any part of it of the newspaper
entitled ‘Crossroads’ published at Bombay was held invalid because, “without liberty of
circulation, the publication would be of little value”. Madras maintenance of public order act
1950
In Express Newspapers v. Union of India, A.I.R. 1958 S.C. 578, the Supreme Court has
observed that there can be no doubt that liberty of the press is an essential part of the freedom
of speech and expression guaranteed by article 19 (1) (a). The press has the right of free
propagation and free circulation without any previous restraint on publication. All such laws
which impose pre-censorship, curtail circulation, restrict choice of employing the editorial
force, prevent newspapers from being started, or undermine the freedom of the press by
driving it to seek government aid to survive, will fall within the mischief of article 19 (1) (a)
Freedom of Silence- National Anthem Case, Bijoe Emmanuel v. State of Kerala 1986 3
SC 615
Freedom of speech also includes the right to silence. In a case, three children belonging to
Jehovah’s witnesses were expelled from the school for refusing to sing the national anthem,
although they stood respectfully when the same was being sung. They challenged the validity
of their expulsion before the Kerala High Court which upheld the expulsion as valid and on
the ground that it was their fundamental duty to sing the national anthem. On appeal, the
Supreme Court held that the students did not commit any offence under the Prevention of
Insults to National Honour Act, 1971. Also, there was no law under which their fundamental
right under Article 19(1) (a) could be curtailed.
Accordingly, it was held that the children’s expulsion from the school was a violation of their
fundamental right under Article 19(1) (a), which also includes the freedom of silence.
In Maneka Gandhi v. Union of India,1992 the Union of India contended that the
fundamental rights guaranteed by the Constitution were available only not be protected
by the State? The Supreme Court rejected these contentions and held that the right to
freedom of speech and expression has no geographical limitations. Freedom of speech and
expression carries with it the right to gather information as also to speak and express oneself
at home and abroad and to exchange thoughts and ideas with others not only in India but also
outside.
Sahara India Real Estate Corporation Ltd. And Others V. Securities And Exchange
Board Of India And Another, 2012
In the present case the respondents the Security Exchange Board of India (SEBI) had passed
an order against the appellants Sahara India (Sahara) on 18.10.2011 directing them to refund
certain amounts which were invested with them under certain Optionally Fully Convertible
Bonds (OFCD). An appeal before the Supreme Court was filed challenging the SEBI order.
During the pendency of the appeal the Supreme Court passed an order directing Sahara to
submit in detail the manner in which they intended to secure their liability to the OFCD
holders to SEBI. In pursuant to the court orders negotiations took place between Sahara and
SEBI to determine the sufficiency of the security to be provided for the purpose of meeting
the liability. On 7.02.2012 the counsel for Sahara sent a personal letter to the counsel of SEBI
stating the details of the security. This information submitted by Sahara were subsequently
flashed by a television news channel on its news coverage a day prior to the date of hearing
before the Supreme Court. On the date of hearing Shri Fali . S. Nariman, senior counsel for
the Sahara expressed his anguish before the court for the breach of confidentiality by SEBI
for disclosing the confidential business information to media personnel which were submitted
by the company for the sole purpose of acting as a security for their financial liabilities, but
SEBI had strongly denied that the alleged disclosure of information had taken place at their
instance. However, the Supreme Court took note of the gravity of this incident and requested
both parties to make an application to the Court for the purpose of laying down important
guidelines relating to Sections 2, 3 and 4 of the Contempt of Court Act 1971, that is, right of
the press to make fair and accurate reporting of matters which were sub judice in nature but
were matters of great public importance and concern, right of individuals to protect their
privacy and restrain the publication of their personal and business communications by third
parties, and the duty of the court to ensure proper administration of justice by preventing all
interferences and obstructions. On the application of Sahara, which was supported by SEBI,
guidelines were requested to be issued by the Court relating the legality of public disclosure
of documents which were part of court proceedings and the manner and extent to which the
print and electronic media could give publicity to such documents.
Postponement Orders were issued by court- Postponement of reporting of, by judicial order -
(1) Purpose of postponement, held, is fair and dispassionate judicial consideration untainted
by media hype - (2) Parameters for passing postponement order, held, are (i) real and
substantial risk of prejudice to fairness of the trial or to the proper administration of justice,
(ii) necessity, and (iii) proportionality - Order of postponement will only be appropriate in
cases where the balancing test i.e. Public right to know through media is to be balanced with
litigating party's right to have coolminded judicial verdict, otherwise favours postponement
of publication for a limited period
In Shreya Singhal v. Union of India (AIR 2015 SC 1523 ), the Supreme Court held that
provisions of Section 66A of the Information Technology Act, 2000 which prescribes
punishment for sending offensive messages online are in its entirety violative of Article 19
(1) (a) of the Constitution and are not saved under Article 19(2) of the Constitution
4. (1) The Deputy Commissioner may, by general order which shall extend to such villages as
he may specify, prohibit the manufacture of bidis during the agricultural season.
(2) No person residing in a village specified in such order shall during the agricultural season
engage himself in the manufacture of bidis, and no manufacturer shall during the said season
employ any person for the manufacture of bidis."
The statute in substance and effect suspends altogether the right mentioned in article 19 (1)
(g) during the agricultural seasons and such suspension may lead to such dislocation of the
industry as to prove its ultimate ruin. The object of the statute is to provide measures for the
supply of adequate labour for agricultural purposes in bidi manufacturing areas of the
Province and it could well be achieved by legislation restraining the employment of
agricultural labour in the manufacture of bidis during the agricultural season. Even in point of
time a restriction may well have been reasonable if it amounted to a regulation of the hours of
work in the business. Such legislation though it would limit the field for recruiting persons
for the manufacture of bidis and regulate the hours of the working of the industry, would not
have amounted to a complete stoppage of the business of manufacture and might well have
been within the ambit of clause(6). The effect of the provisions of the Act, however, has no
reasonable relation to the object in view but is so drastic in scope that it goes much in excess
of that object. Not only are the provisions of the statute in excess of the requirements of the
case but the language employed prohibits a manufacturer of bidis from employing any person
m his business, no matter wherever that person may be residing. In other words, a
manufacturer of bidis residing in this area cannot import labour from neighbouring places in
the district or province or from outside the province. Such a prohibition on the face of it is of
an arbitrary nature inasmuch as it has no relation whatsoever to the object which the
legislation seeks to achieve and as such cannot be said to be a reasonable restriction on the
exercise of the right. Further the statute seeks to prohibit all persons residing in the notified
villages during the agricultural season from engaging themselves in the manufacture of bidis.
It cannot be denied that there would be a number of infirm and disabled persons, a number of
children, old women and petty shop keepers residing in these villages who are incapable of
being used for agricultural labour. All such persons are prohibited by law from engaging
themselves in the manufacture of bidis; and are thus being deprived of earning their
livelihood.
The result therefore is that the orders issued by the Deputy Commissioner on 13th June 1950
and 26th September 1950 are void, inoperative and ineffective. We therefore direct the
respondents not to enforce the provisions contained in section 4 of the Act against the
petitioners in any manner whatsoever. The petitioners will have their costs of these
proceedings in the two petitions.
In a 1958 case, Mohd. Hanif Qureshi v. State of Bihar (1958) the Supreme Court of
India was called upon to decide whether the cattle slaughter laws of Bihar, Uttar Pradesh, and
Madhya Pradesh infringed on the fundamental rights of the petitioners guaranteed under
articles 14, 19(1)(g) and 25 of India’s Constitution. The petitioners were members of the
Muslim Quraishi Community who were mainly engaged in the butchers trade.The Court
found that the “country is in short supply of milch cattle, breeding bulls and working
bullocks” and therefore a “total ban on the slaughter of these which are essential to the
national economy for the supply of milk, agricultural working power and manure” is a
reasonable restriction to impose in the interests of the general public. The Court also held that
“a total ban on the slaughter of cows of all ages and calves of cows and calves of she-
buffaloes, male and female” is reasonable and in “consonance with the directive principles
laid down in Art. 48.” However, the Court held that a total ban on the slaughter of “useless
cattle,” which “involves a wasteful drain on the nation’s cattle feed which is itself in short
supply and which would deprive the useful cattle of much needed nourishment, cannot be
justified as being in the interests of the general public.” Therefore, the Court held that a total
ban on the slaughter of bulls, bullocks and she-buffaloes after they had ceased to be useful
was invalid under the Constitution. In response to this decision, certain amendments were
made to the cattle slaughter laws of Bihar, Uttar Pradesh, and Madhya Pradesh, which
allowed the slaughter of bulls, bullocks and she-buffaloes on the issuance of a fit for
slaughter certificate only if they were above the age of 20 or 25 and if they were
“permanently unfit” or “useless.”
The Court also held that restrictions on the slaughter of cattle did not infringe on the
petitioners’ freedom to practice their religion under article 25 since it had not been
established that the sacrifice of cows on the religious holiday of Bakr-Eid is of an obligatory
or essential part of the Islamic religion as opposed to being optional.
In 2005, however, in State Of Gujarat vs Mirzapur Moti Kureshi Kassab, (2005) a seven-
judge constitutional bench of the Supreme Court partially overturned the long line of its own
precedents it had established since 1958 in Mohd. Hanif Qureshi. The Court upheld an
amendment to the Bombay Animal Preservation Act, 1954, the effect of which was to impose
a total ban on the slaughter of bulls and bullocks of any age (previously there was only a
partial ban on the slaughter of bulls and bullocks that were under the age of 16 years).
The Court argued that environmental principles and dutie s in articles 48-A and 51-A(g) of
the Constitution, which were introduced in 1976, were not available to the bench in Mohd.
Hanif Qureshi. A cow does not lose its protection if it ceases to perform its particular
function or reaches a certain age. The Court goes on to state that this argument is “further
strengthened by Article 51A(g) of the Constitution” which introduces the fundamental duty
that the “State and every citizen of India must have compassion for living creatures. Here the
Court made reference to changes in the factual situation in the country to justify the law. The
Court held that:
1. Fodder shortage is no longer a problem and that cow’s progeny can be “fed and maintained
without causing any wasteful drain on the feed requisite for active milch, breeding and
draught cattle.”
2. The limitation imposed on the right contained in article 19 should not be characterized as a
total prohibition since only a part of the petitioner’s business is affected in that they are “not
prohibited from slaughtering animals other than the cattle belonging to the cow progeny.”
3. Food security was a greater concern in the past but this is no longer the case; and
4. Bulls and bullocks remain useful past a certain age, since urine and dung are tremendously
useful for the production of manure and biogas, particularly as renewable sources of energy.
RIGHT TO INTERNET ACCESS IS A FUNDAMENTAL RIGHT UNDER 19-1(a)
The telephone and the internet are means of expression because a person talking on the phone
or communicating through the internet exercises his right to freedom of speech and
expression.
Kerala - the most literate state in India, has declared Internet access as a basic right for every
citizen just like food, education and water. The state budget has unveiled a project, which
aims to provide internet connections free of cost to 20 lakh poor families and at subsidised
rates to others. In Faheema Shirin v State of Kerala (2019) it was held ‘Right to Internet
Access’ as a fundamental right. The Court declared that the right to have access to Internet
becomes the part of right to education as well as right to privacy under Article 21 of the
Constitution of India. Faheema Shirin, an 18-year-old BA student, the court set aside Shirin’s
expulsion and hostel rules which denied Internet access to women students at night.
While this is a step in the right direction, the United Nations recommends that every country
should make access to internet a Fundamental human right as well. Basic human rights are
separate from Fundamental rights, which are granted by the Indian constitution. Today,
professional practice, trade and businesses are to a large extent internet-based. Online
business is burgeoning: tickets for airlines, train journeys, cinema and music shows, museum
visits, taxis, doctor visits, hotels. Therefore freedom of trade and commerce through medium
of internet is also constitutionally protected under Article 19 (1)(g). The restrictions imposed
by the government upon any fundamental right should be in consonance with the mandate of
Article 19(2) to (6) and it must stand the test of proportionality because reasonableness
demands proportionality. A law or executive order which curtails any of the fundamental
rights without appropriate justification will be classified as disproportionate. In order to
balance the right to access to the internet and restrictions to be imposed, the Court adopted
the line that access to the internet should be the norm and deviations could be allowed in the
interest of public order and safety provided they are temporary, proportionate and justified by
reasons which are spelt out clearly and are reviewed periodically. Indefinite suspension of net
services is impermissible according to the Supreme Court. Temporary Suspension of
Telecom Services (Public Emergency or Public Service) Rules, 2017, framed under Section 7
of the Indian Telegraph Act, 1885, provide for suspension of telecom services and
consequently the suspension of internet services in India.
Indian constitution makes the right to freedom of speech and expression a fundamental right
for all citizens. It has been listed in Article 19 (1)(a) of the Constitution. The Supreme Court
has on many occasions expanded the scope of the right to freedom of speech and expression.
The latest expansion makes the constitutional provision keep pace with innovation of
technology. Internet is the primary source of information to millions of Indian citizens. A
non-citizen can avail the same benefits but cannot claim it as her fundamental right.
The Supreme Court said repetitive Section 144 orders were an abuse of power. The
prohibitory orders issued under Section 144, CrPC, cannot be used indefinitely to suppress
freedom of
speech and expression. Such orders can't be used to suppress legitimate expression, and their
use needs to be justified by concerns of immediate violence, it said.The right to access
Internet is a fundamental right under Article 19 of the Constitution, and total shutdowns are
"drastic" measures that should be considered only when "absolutely necessary", the Supreme
Court said.
"We declare that the freedom of speech and expression and the freedom to practice any
profession or carry on any trade, business or occupation over the medium of internet enjoys
constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon
such fundamental rights should be in consonance with the mandate under Article 19 (2) and
(6) of the Constitution, inclusive of the test of proportionality."----