Article 19, Constitution of India- The rights and their Restrictions

The freedoms under Article 19 and their restrictions

Personal liberty is considered the primary right in all of the various fundamental rights guaranteed by the Constitution of India.

The entire set of Articles ranging from Article 19 to Article 22 form a very crucial chapter on Personal Liberties by defining and protecting it with the utmost preference and backing of the law.

So, let’s delve into Article 19, the foremost of them all.

Also, I’ll try to keep this as brief as possible :)

The Six Freedoms along with their restrictions:

Article 19 (1) of the Constitution guarantees the citizens of India the following six fundamental freedoms that are not absolute and limited to certain restrictions provided in Article 19 (2) through to Article 19 (6):

a. Freedom of Speech and expression

The right to freedom of speech and expression is indispensable in a democracy.

The Right to Freedom of speech and expression essentially stands for the right to express one’s own opinions and convictions freely by speaking, writing, printing, painting, through pictures, or any other means to convey a narrative.

This right is viewed at:

1. Helping an individual attain self-fulfillment

2. Assisting the discovery of the truth.

3. Strengthening an individual’s participation in decision making

4. Providing a mechanism for establishing a reasonable balance between stability and social change.

Article 19 (1) (a) of the Constitution simply adds that all citizens shall have the right to freedom of speech and expression but will be subject to the restrictions provided under Article 19 (2).

Now, this is a segment that can be a complete article on its own. So, I am not going to delve into much detail about the various dynamics of the interaction between the right {19(1) (a)} and its restrictions {19 (2)}. But, don’t worry, you can find the complete article on this topic, on another NELJ blog- HERE.

b. Freedom of Assembly

The right- Article 19 (1) (b) guarantees all citizens of India the right “to assemble peacefully and without arms”. This fundamental right is inclusive of the right to hold general public meetings and take out processions/movements provided that these assemblies are:

• Peaceful,

• Involve unarmed participants and are;

• Not beyond the reasonable restrictions imposed under Article 19(3).

The restriction - Article 19 (3) states that- nothing stated in Article 19 (1) (b) “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”

This means that in the interest of Sovereignty and public order, the right conferred by Article 19 (1) (b) can be curbed with reasonable restrictions like dispersion of such gathering by using force.

However, an assembly can only be dispersed when it becomes “unlawful”. Section 141 of the Indian Penal Code (IPC) lays down the criteria for when an assembly of five or more persons becomes unlawful:

When the common object of the persons composing the assembly is to-

1. Resist the execution of any law or legal process.

2. Commit any mischief or criminal trespass

3. Obtain possession of any property by force

4. Compel a person to do an illegal act or omission

5. Overawe or prevent any public servant from exercising his lawful powers.

Section 144 of IPC also empowers the Magistrate to restrain an assembly or prevent the gathering of five or more people if, under his estimation, there is a risk of obstruction, annoyance, or injury to any person lawfully employed or danger to human life, health and safety. This is also viewed as preventing the rise of public tranquility, riot, or an affray.

c. Freedom to form Associations or Unions or Co-operative societies

The right- Article 19 (1) (c) of the Constitution of India guarantees all citizens of the country the right “to form associations or Unions or Co-operative societies”.

The right of association pre-supposes organization. An organization is a body of connected people involved either in the same industry, residence, or any other agenda that may require a permanent relationship between all members for the pursuit of a collective goal.

An interesting case law-

In Damyanti v. Union of India, the validity of the Hindi Sahitya Sammelan Act, 1962 was challenged with the fact that it had violated Article 19 (1) (c). The petitioner was an original member of an association which had taken in new members without the prior consent of the original members. The result of this alteration was that the members who had voluntarily made the association now had to interact with new members in whose admission they had no say whatsoever.

The Supreme Court held that the Act had violated the rights of the members to form an association as under Article 19(1) (c) by saying that this right “necessarily implies that the person forming the association has also the right to continue to be associated with the members who are voluntarily admitted in the said association”.

The restriction- Article 19 (4) nothing in Article 19 (1) (c) 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”

This means that the State is empowered to impose reasonable restrictions on this right in the interest of “public order”, “morality”, “sovereignty” and “integrity” of India.

In Haji Mohd. v. District Board, Malda

A teacher requiring prior permission to engage in political activities was considered a reasonable restriction as it was deemed to be aimed at preventing teachers from getting mixed up with political institutions. This was because the profession of teaching is to be considered of primary importance and that a teacher must adhere to the certain terms and disciplines of the said profession.

d. Freedom of movement and (e) Freedom to reside and to settle

The rights- Article 19 (1) (d) of the Constitution guarantees all citizens of India the right “to move freely throughout the territory of India”. This means that any citizen of the country is free to go wherever they like in the Indian Territory without any kind of unreasonable restrictions.

Article 19 (1) (e) of the Constitution gives every citizen the right “to reside and settle in any part of the territory of India”.

The restriction- Article 19 (5) states that nothing in Article 19 (1) (d) and (e) 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”

Most of the cases considered are under sub-clause (d) are also relevant to the sub-clause (e). The reasonable restrictions are imposed either to protect the interests of the general public or the Scheduled Tribes existing in our country.

In State of U.P v. Kaushalya,

A prostitute falling under the Suppression of Immoral Traffic in Women and Girls Act, 1956 was ordered to remove herself from the busy city’s limits i.e. a restriction was placed on her movement and residence. This restriction was held to be reasonable as it was in the interest of her safety.

In Ibrahim Wazir v. the State of Bombay,

Section 7 of the Influx from Pakistan (Control) Act, 1949 had empowered the Central Government to order the expulsion of the appellant, an Indian citizen, who had entered India without a permit or a valid passport. The appellant was then arrested and deported to Pakistan under the said Act. The Supreme Court held that the order of removal passed by the Central Government was invalid on the ground that it had imposed an unreasonable restriction on the fundamental right to move and reside or settle in any place within the Indian Territory.

The arrival of the citizen to his home country without a permit or passport was not a crime that was grave enough to justify his expulsion from the country.

#Fact- The freedom of movement of residence or movement may be suspended or curtailed in case of an emergency in the country.

f. ------------------Repealed by 44th Constitutional Amendment Act, 1978-

Article 19 (1) (f), when it was in existence, guaranteed Indian Citizens the right to acquire, hold and dispose of the property.

This right was subject to reasonable restrictions under the aforementioned Article 19 (5).

The right to freedom of property now merely remains as a Constitutional Right under Article 300 of the Constitution of India.

g. Freedom of Profession, Occupation, Trade or Business

The right- Article 19 (1) (g) guarantees all Indian citizens the right “to practice any profession, or to carry any occupation, trade or business”.

In Hathising Mfg. Co. v Union of India,

The right to close a business was also included within the meaning and interpretation of the right conferred under the above Article.

In Excel Wear v. Union of India, it was understood that any authority that falls within the definition of state (as under Article 12) cannot force a business to keep running if its owners are unwilling to go on. However, the government can impose certain reasonable restrictions usually to ensure filing compliance under other laws that govern that specific business.

The restriction- Article 19 (6) of the Constitution provides that the State under this right can make any law;

1. Imposing reasonable restriction on this right, to be in the “interest of the public”

2. Prescribe professional qualification, technical qualifications to be made necessary to practice those professions that need such qualifications.

3. Enable the State to carry on any trade or business by excluding citizens wholly or partly.

In Sukumar Mukherjee v. State of West Bengal,

The appellant had challenged the validity of the West Bengal State Health Service Act, 1990 on the ground that it had imposed an unreasonable restriction on their right to carry on any business or occupation as under Article 19 (1) (g) by not allowing them to have a private clinic.

All graduating doctors were given an option to join WBMES and WBHS in their state system. Section 9 of the West Bengal State Health Service Act, 1990 restricted the private practice of teacher Doctors i.e. the ones who joined WBMES.

The Court in this case held such restriction to be reasonable and in the interest of public health and that all doctors voluntarily joining the teaching service in the WBMES were bound to live by the rules of such service.

The Final Word on Article 19 and its restrictions:

Most of these rights have been debated, deliberated, and changed throughout the years. The restrictions have caused many legal disputes in our country, most of which turned out to be a farcical attempt at exploiting these fundamental rights guaranteed by the Constitution of India.

In case you want to learn more about this topic and get more elaborated case laws, make sure you note down the references mentioned below and reach out to Casemine for further case laws on the above topics.

I hope, this helps, good luck!