Provision Of The Day: Article 19 Of The Constitution Of India, 1950

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Provision

Article 19 of the Constitution of India states,

“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 practise any profession, or to carry on any occupation, trade or business

(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence

(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause

(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause

(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe

(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,

(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.”

 Introduction

Freedom of speech and expression in its essence is regarded as one of the most important rights for establishing true liberty and freedom. Article 19 of the Constitution of India guarantees to all the citizens the right to free speech and expression. This right is not only guaranteed by our Constitution, but it is also mentioned in various international conventions like the Universal Declaration of Human Rights, the European Convention on Human Rights and fundamental freedoms, International Covenant on Civil and Political Rights, etc.

Analysis

Article 19 is available only to citizens and not to non-citizens, and it can be exercised only against the state. Article 19 gives citizens some rights which they may excursive and it gives the state some rights to put reasonable restrictions on the rights of the citizens.

Article 19 (1) (a) is the Right to Freedom of Speech and Expression (FOSE). This provision protects the rights of all citizens to receive information, to express their own ideas freely, and to the right to secrecy of their information and communications. The recent landmark case of Navtej Singh Johar v. Union of India[1] which resulted in the decriminalisation of homosexuality in India was done within the purview of these rights.

In the case of Bijoe Emmanuel v. State of Kerela,[2] the Apex Court ruled that the students who were expelled from their high school for refusing to sing along with the national anthem had not violated the National Honour Act, 1971. The fact that they were of the Jehovah belief which directed them to only participate in religious rituals. The students stood straight in attention during the national anthem and therefore did respect the national anthem. The SC overturned the lower court and HC verdict and stated that they may not be expelled from the school. In doing so the SC protected their right to freedom of speech and expression as under Article 19 (1) (a). This case established that the FOSE includes the right to remain silent.

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The rights to freedom for the press and media are also included in the right to FOSE, and therefore there is no need for a separate statue or legislation protecting the freedom of the press. The Supreme Court in Brij Bhushan v. State of Delhi[3] laid down this principle, that the idea of FOSE has been borrowed from the US Constitution and therefore it represents the principles of the US Constitution, which protects the freedom of the press within this provision of FOSE. The same was reiterated in the case of Sakal Papers v. Union of India[4] wherein the apex court stated that the freedom of the press is a species of FOSE.

The freedom of speech and expression is not an absolute right, and the same can be restricted through one of the eight restrictions as mentioned under Article 19 (2). The eight grounds of reasonable restrictions are as follows:

  1. Sovereignty and Integrity of India;
  2. Security of State;
  3. Friendly relations with the Foreign States;
  4. Public Order;
  5. Decency and Morality;
  6. Contempt of Court;
  7. Defamation; and
  8. Incitement to an Offence.

The Supreme Court has, in a plethora of cases from A. K. Gopalan v. State of Madras[5] to Chintaman Rao v. State of M. P.[6] and Hanif Qureshi v. State of Bihar[7] has given different tests to check whether the restrictions so put are reasonable or not.

Article 19 (1) (b) speaks of the freedom of assembly. It grants the right to all citizens to assemble peacefully and without arms. The reasonable restrictions on Article 19 (1) (b) are put under Article 19 (3) which gives the State the power to protect the Sovereignty, Integrity, and Public Order by curtailing the rights of citizens as under Article 19 (1) (b). There are five grounds that can rule an assembly to be unlawful, these are as follows:

  1. Stopping a legal process;
  2. Criminal Trespass;
  3. Criminal Force;
  4. Use Force to compel an individual to do something against their will;
  5. Taking possession of someone else’s private property.

If an assembly falls within any of the abovementioned five grounds, then the same is categorised as an unlawful assembly. This will attract Section 129 of the CrPC which is used to disperse an unlawful assembly. Failure to disperse under Section 129 of the CrPC shall result in committing an offence under Section 151 of the Indian Penal Code (IPC).

Freedom of Association is mentioned under Article 19 (1)( c) of the constitution, and the reasonable restrictions for the same are mentioned under Article 19 (4) which include Sovereignty, Integrity, Public Order and Morality. Article 19 (1)( c) grants all the citizens the right to form associations and participate in the same. It includes trade unions, partnerships, and companies, et al. In the case of All India Bank Employee’s Association v. NIT,[8] it was held that the right to strike or right to lockout is not covered under Article 19 (1)( c).

To invoke the feeling of nationality and integrity, the right to freedom of movement was introduced under Article 19 (1) (d) of the constitution. It grants all citizens the right to move around freely within the Indian Territory without any restrictions. There are two reasonable restrictions on this right, namely Interest of General Public and the Protection of the Interest of Scheduled Tribes. These restrictions are mentioned under Article 19 (5) of the Constitution.

Article 19 (1)( e) talks about the freedom of residence. It grants all citizens the right to freely reside and settle in any part of the Indian Territory. Article 19 (5) puts two reasonable restrictions on this right, which are the in the Interest of General Public and the Protection of the Interest of Scheduled Tribes. Article 19 (1) (d) and Article 19 (1)( e) are used together and thus have the same reasonable restrictions.

Lastly, Article 19 (1) (g) grants to all citizens the freedom of profession, occupation, trade, or business. It allows all the citizens to practise any profession, occupation, trade, or business irrespective of their caste, religion, belief, gender, et al. the reasonable restrictions on this right are mentioned under Article 19 (6) which states that the State may, in the interest of the general public create reasonable restrictions. For example, one needs to have the technical skills and qualifications before they practise a certain profession that requires said technical skills or qualification.

Conclusion

Article 19 is said to be the backbone of Part III of the constitution of India. It establishes some of the most necessary and basic rights for all citizens and it balances them out by giving the State certain reasonable restrictions which it may exercise to ensure that these rights are not misused.

 

[1] Navtej Singh Johar v. Union of India AIR 2018 SC 4321.

[2] Bijoe Emmanuel v. State of Kerela AIR 1986 SCC 615.

[3] Brij Bhushan v. State of Delhi AIR 1950 SC 129.

[4] Sakal Papers v. Union of India AIR 1962 SC 305.

[5] A. K. Gopalan v. State of Madras Air 1950 SC 27.

[6] Chintaman Rao v. State of M. P. AIR 1951 SC 118.

[7] Hanif Qureshi v. State of Bihar AIR 1958 SC 731.

[8] All India Bank Employee’s Association v. NIT AIR 1962 SC 171.

Dhananjai Shekhawat (LC Content Writer)


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