Analysis : Various Freedoms in Constitution of India
Right to Freedom (Article 19)
Personal liberty is the most important part of the all the fundamental rights. Article 19-22 of the constitution of India deal with the different aspects of personal liberty. Article 19 (1) has given the six freedoms to citizens of India as follows:
Freedom of Speech and Expression
Freedom to assemble peaceably and without arms;
Freedom to form associations or unions;
Freedom to move freely throughout the territory of India
Freedom to reside and settle in any part of the territory of India
Freedom to practise any profession, or to carry on any occupation, trade or business.
Please note that before the 44th amendment act, there was one more freedom included in above. It was the right to acquire, hold and dispose of property. By this amendment in 1978, the freedom to acquire, hold and dispose of property was deleted from the part III and was inserted as Article 300A in the Part XII of the Constitution.
Right to Freedom is available to Citizens only
The objective of article 19(1) is to provide protection to the citizens from State action. Then, citizen also means tha natural persons and not legal persons such as companies and municipal bodies. However, supreme court has held that a shareholder does not lose his right to freedom when he joins with others to form a company.
Doctrine of Reasonable Restriction
Freedoms not absolute
The freedoms enumerated in Article 19(1) are the basic rights which are recognized as the natural rights inherent in the status of a citizen. But none of these freedoms is absolute or uncontrolled. Each of them is liable to be curtailed by laws made or to be made by the State.
Via Article 19(2) to Article 19(6), the constitution empowers the state to impose reasonable restrictions on the exercise of the right of these freedoms 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.
Meaning of Reasonable Restriction
By reasonable restriction, it is meant that the limitation imposed on a person in the enjoyment of his right should not be arbitrary or of any excessive nature beyond what is required in the interest of the public. The “Reasonable Restriction” seeks to strike a balance between the individual rights guaranteed by Article 19 (1) and social control permitted by the Article 19(2) to 19(6).
Who decides what is reasonable?
The question of what is reasonable has to be finally decided by the Court not the legislature. The court would see both to the nature of the restriction and procedure prescribed by statute for enforcing the restrictions. The restriction may be total or partial. Total restriction may or may not be in the favour of public. For example total restriction on freedom to speech is disastrous while total prohibition of immoral occupations is in the good of public. Generally, a restriction that is imposed for securing the objectives laid down the directive principles of state policy is regarded as reasonable. For example, a law that imposes restriction on the sale of liquor is valid in view of the article 47.
Freedom of Speech
The freedom of speech means right to express one’s convictions and opinions by Word of Mouth, writing, printing, pictures and cartoons, electronic media and any other mode addressed to the eyes and ears. It also includes the right to propagate or publish views of other people.
Please note that right to freedom of speech also implied freedom of silence. It implies freedom of not to listen and not to be forced to listen. This would imply that a person can decline to read a publication / blog or website and also switch of a radio or television set. But he can not prevent the sound of loudspeakers reaching his ears. He can be forced to hear what he does not want to hear and this is the trespassing of his mind or ear. This leads to some reasonable restrictions on freedom of speech such as:
Restriction on the use of loudspeakers that may cause nuisance
The law which prohibits obscenity
Causing contempt of court by interfering the course of justice
Instigating persons to commit crime
Censorship of films in the public interest
Application of labour laws on press.
Discussion about Various Freedoms
Freedom of Press
Article 19(1) does not expressly mentions the freedom of press. But it is settled law that right to freedom of speech and expression includes the liberty of the press. Press is supposed to guard the public interest by bringing to fore the misdeeds, failings and lapses of the Government and other bodies. Freedom of press includes every sort of information which affords a vehicle of opinion.
Freedom of Speech and Commercial Advertisements
Advertisement is a form of speech. However, every kind of advertisement can not enjoy freedom of speech. Please note that in Tata Press v/s MTNL, Supreme Court held that Commercial speech also enjoys as much protection as much other freedoms but at the same time, commercial advertisements which are deceptive, unfair and misleading could be regulated by the Government. The obnoxious advertisements such as drugs having magic qualities don’t come within the scope of Article 19(1).
Censorship of Films
The censorship of films has been justified on the ground that they are different forms of art and expression because a motion picture is capable of stirring up emotions more deeply. Thus, classification of movies into U and A is justified.
Freedom of Furling the National Flag of India
In the Union of India v/s Navin Jindal (2004) case, the Supreme Court has made the following observations:
Right to fly the national Flag with due respect and dignity is a fundamental right of every citizen and is within the purview of Article 19(1). This right is subject to reasonable restrictions under Article 19(2)
Flag Code although not a law , for the purpose of Article 19(2) it would not restrictively regulate the free exercise of right to fly the National Flag.
Freedom to Assemble
Every citizen has a right to hold public meetings and carry out peaceful demonstrations. Under Article 19(3), reasonable restriction can be imposed on this right in the interest of sovereignty and integrity of India. Right to assembly is a corollary to the freedom of speech because the purpose of holding a assembly is to educate the public. However,
It does not imply that a citizen may hold meeting anywhere including that on other’s properties. The Government has the right to control the time and venue of a meeting.
Religious processions are also protected as processions are considered moving meetings. The religious processions are also further protected by Article 25.
Freedom of Association
Association means a collection of persons who have joined together for a certain object, which may be either for the benefit of members or for the benefit of the society. Reasonable restrictions may be put on such freedom of association. Please note that obtaining recognition and registration of such association is not a fundamental right.
Right to Strike
The article 19(1) does not guarantee a right to right to strike. The Supreme Court further held that the Government servants have no legal or statutory right to go on strike. The Government employees can not hold society to ransom by going to strike. The right to strike also affects other’s rights. For example strike by teacher affects the rights of the students. In the case of conflict of fundamental rights of two , the conflict is resolved by seeing that the exercise of which of them is in the interest of the society.
Freedom of Movement and Residence
The right to move freely through out the territory of India and right to reside and settle in any part of the territory of India stresses on the oneness of India. This is in consonance with the Article 5 which provides single citizenship. The core idea of this right is to remove the barriers within India.
However, this right is also liable to reasonable restrictions. For example, the doing Tadipar of a person for 3 months is held valid by court because the restriction is reasonable. Similarly restriction imposed on prostitutes to carry on their trade within a strict area has also been held valid by the court.
Freedom to Call and Enforce Bandh
No political party has the right to call for a Bandh on the basis that it is the fundamental right to speech and expression. The call to Bandh or its enforcement is basically an express or implied threat to a citizen to not to carry out his normal activity. Thus Bandh violates the fundamental rights of the community as a whole.