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CONSTITUTIONAL RESTRAINTS UNDER ARTICLE 19 (By-Kalyani Ravindra Shegaonkar)
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CONSTITUTIONAL RESTRAINTS UNDER ARTICLE 19
Authored By-Kalyani Ravindra Shegaonkar, Research
LL.M 2nd Year (4th Semerster)
Under The Guidance Of Prof. Mayura Ma’am
Introduction
Speech is God?s gift to mankind. Through speech and expression a human
being conveys his thoughts,
sentiments and feeling to others. Freedom of speech and expression is thus a
natural right, which a human being
acquires on birth. It is, therefore, a basic right. The freedom of
speech and expression is regarded as the first condition of liberty. It occupies a preferred and important
position in the hierarchy of the liberty, it is truly said about the freedom of
speech that it is the mother of all
other liberties. Freedom of speech and expression means the right to express ones own convictions and
opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus
includes the expression of one’s
ideas through any
communicable
medium or visible representation, such as, gesture, sighs and the like. 1 In modern time it is widely accepted that the
right to freedom of speech is the essence of free society and it must be safeguarded at all time. The first
principle of a free society is an untrammelled
flow of words in an open forum.
Importance Of Freedom Of Speech And Expression
Freedom of speech
and expression is the bulwark
of democratic government. This freedom is essential
for the proper functioning of the democratic process. The freedom of speech and
expression is
regarded as the first condition of liberty. It occupies a preferred position in
the hierarchy of liberties giving
succour and protection to all other liberties. It has been truly said that it is the mother of all other
liberties.6 In a democracy, freedom of speech and expression open up channels of free discussion of
issues. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic
matters. Freedom of speech and expression, just as equality
clause and the guarantee of life and liberty have been very broadly
construed by the Supreme Court right from the 1950s. It has been variously
described as a “basic human right”,
“a natural right” and the like. The
freedom of speech and
expression
includes liberty to propagate not one?s views only. It also includes the right
o propagate or publish the views of
other people, otherwise this freedom would not include the freedom of the press.
Freedom of
expression has four broad special purposes to serve:
(i)
It helps an individual, to attain self-fulfilment;
(ii)
It assists in the discovery of truth;
(iii) It strengthens the capacity
of and individual in participating in decision making; and
(iv) It provides
a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
All members of society should be able to form their own belief and
communicate them freely to others.8
Freedom of speech and expression has been held to be basic and indivisible for
a democratic polity. It s said to be the cornerstone of functioning of the democracy. It is the foundation of a democratic society. It is essential to the rule of law and liberty
of citizens.
Article-19 Clause 1
Protection of
certain right 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 association or unions
d)
To move freely throughout the territory of India
e)
To reside and settle in any part of the territory of India
f)
Omitted
g)
TO practice any profession, or to carry on any
occupation, trade or business
In Romesh
Thaper v. State of Madras,
Patanjali Sastri, C. J. obersved:
“Freedom of speech
and of the press lay at the foundation of all democratic organisations, for without free political discussion no
public education, so essential for the proper functioning of the process of popular government, is
possible. A freedom of such amplitude might involve
risks of abuse. But the framers of the constitution may well have reflected
with
Madison, who was the leading spirit
in the preparation of the First Amendment
of the Federal Constitution,
what it is better to leave a few of its noxious branches to their luxuriant
growth than by pruning them
away, to injure the vigour of those yielding
proper fruits.”
Constitutional Protection Of “Freedom Of Speech And Expression”
The concept of such freedom is to be able to speak and express ones
thoughts and opinion freely without
censorship. Speech is considered to be one of the most basic faculties of the human nature as it comes naturally to
every person. It is also seen as one of the most fundamental rights essential for a human living. Every person
has the right to freedom of
expression
& speech and this is usually guaranteed by the concerned national
Constitutions.
This right
includes the freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other media of his choice The importance
of free speech as a basic and valuable characteristic of society cannot be underestimated. Freedom of speech serves
a number of functions. One of its
most important functions is that decision-making at all levels is preceded by
discussion
and consideration of a representative range of views. This is very helpful.
Navtej Singh Johar v/s Union of India
The supreme
court of India unanimously held that sec. 377 of the Indian penal code ,1860,
which criminalized “carnal intercourse against the order of nature” was
unconstitutional in so far as it
criminalized consensual sexual conduct between adults of the same sex.
It recognizes
the Freedom of expression of ideas fundamental Right of an individual.
Bijoe Emmanuel
v/s state of kerala,1986
The supreme
court of Indian found that the expulsion of school children for not singing the national
anthem constituted a violation of their right to freedom
of expression. Three school children were expelled form school after
refusing to sing the Indian nation anthem since it was against their
religious faith as Jehovah’s
witnesses.
Supreme court under National
Honors Act 1971 found children
not guilty Hence,
it proved that Right to remain silent is also
included in Freedom of speech and expression.
Brij Bhushan
v/s state of Delhi, 1950
Dr. B.R.AMBEDKAR said that there is no need of making any special provision
or right for freedom
of press.
Because our Article
19 is influenced form the 1st amendment of
constitution of USA – whose
heading says- “Freedom of Speech or The
Press”
Sakal Papers v/s the union of India 1961
It elaborated
the judgement of Previous Brij Bhushan case and said that freedom of Press is the Specie of freedom of Speech and
Expression.
ARTICLE 19 (1) (A)
It is not an Absolute Right
State can
limit them by putting 8 Restrictions on them that are given in Article 19(2).
Reasonable Restrictions
•
Every freedom comes with restrictions, without which
there would be complete chaos in the society. Similarly, Article 19 also provides for ‘reasonable restrictions’ on these freedoms.
•
Therefore, these rights are conditional. The State has the authority
to reasonably limit or takes away these
six rights on the following
grounds –
•
Freedom of Speech
and Expression
1.
Sovereignty and Integrity
of India.
2.
Security of the State.
3.
Friendly relations with foreign States.
4.
Public order.
5.
Decency.
6.
Morality.
7.
Contempt of court.
8.
Defamation.
9.
Incitement to an offense.
Reasonable Restriction (Landmarks Case)
Supreme Court
has given lots of guidelines time to time via case judgement like-
A.K . Gopalan v/s state Madras 1950
?
AK Gopalan was a Communist leader who was imprisoned in
Madras under the Preventive
Detention Law in 1950.
?
He challenged his detention through a writ of Habeas Corpus under Article 32 of the Indian Constitution,
?
He argued that Sections 7, 8, 10, 11, 12, 13, and 14 of the Act violate Articles
13, 19, and 21 of the Indian Constitution, and
thus the Act is ultra vires of the
basic fundamental provisions as
enshrined in the Indian Constitution.
?
The petitioner also raised the issue of the 'procedure defined
by statute' clause in the Indian
Constitution.
Judgment
While
rejecting the petitioner's arguments, the Supreme Court of India contended that Article
22 of the Indian Constitution is a self-contained Code and that he was detained
in accordance with the procedure established by law.
?
The court also held that
if the state takes away a person's liberty in accordance with the procedure established by law, i.e., if the detention was done in accordance with the procedure of law, it cannot be said that
it violates the provisions contained in Articles 14, 19, and 21 of the Indian Constitution.
?
In this case, the Supreme Court took a narrow
interpretation of Article 21 of the Indian Constitution.
?
Using the doctrine
of severability, the Supreme Court declared Section 14 void because it is unconstitutional and
violates fundamental rights.
?
The court upheld the legal procedure principle and
declared that the due process clause
and international
human rights charters apply in Indian courts.
?
Furthermore, the court declared sections
7, 8, 10, 11, 12, and 13 of the constitution to be
intra-virus and thus valid.
?
Finally, the Court determined that the detention was legal, and thus the writ was dismissed.
19(1)(b)- Freedom of Assembly
•
Every citizen has a Fundamental Right to assemble peaceably and without
arms;
•
It is regulated under Article
19(3)
•
State has a power to curtail Article
(1) (B) through
reasonable restrictions of Article 19 (3) –on basic of sovereignty ,
Integrity of India and Public Order .
Assembly will be unlawful
if-
•
If you interfere in any legal process
•
If you trespass criminally
•
To use criminal
force on any public office
•
To use force on a citizen and forcefully make him do any work
•
Forcefully taking possession of some one’s property
Article 19(1)(c)-
To form associations or unions
•
Freedom of Association 19
(1)(c) is regulated by 19(4).
•
State can curtail Fundament right in 19(1)(c) by
putting Reasonable restriction in the interests of the
sovereignty and integrity of India or Public order
or morality.
All India bank Employee’s Association
v/s National Industry Tribunal,1962 case
Right to
strike and right to lockdown are not covered under article 19(1)(c)
Article 19 (1)(d)- to move freely throughout the territory of India
•
Freedom of movement Objective
of this Article was to inject the Feeling of
Nationalism in all citizens.
•
Under this Article 19(1)(d)
citizens of Indian
can move freely
wherever you want within Indian’s
Territory and without
any restrictions.
Article 19(1)(e)- to reside and settle in any part of the territory of India
Freedom of
residence objective Aimed to remove internal Barriers
Article 19 (1)(d) freedom of movement and article 19 (1)(e) always go hand in hand that’s why they have same restrictions given in
article 19(5)
In the interests of the general public or for the protection of the
interest of any scheduled tribe this
right can be restriction.
Article 19(1)(g)- To practice
any profession, or to carry on any occupation, trade
or business
•
Any citizen can practice any of the above there is no
necessity of being form any particular
class or caste
•
The Freedom provide under this article is regulated by
reasonable restrictions given under
article 19(6).
1.
Restrictions
In the
interests of the general public, reasonable restriction are-
•
The
professional or technical qualifications necessary for practicing any
profession or carrying on any
occupation, trade or business, or
•
The state can access
complete or partial monopoly over any business or Trade.
BENEFITS OF ARTICLE 19
The right to information (RTI) emerges as a fundamental right under this
article as the prerequisite for
enjoying the freedom of speech and expression is access to knowledge and information therefore, RTI becomes
a constitutional right and an important aspect
of the right to free
speech and expression. Access to information also help the citizens perform
their fundamental duties mentioned in Article 51( A).
Conclusion
The Right to
Freedom is one of the most important Fundamental Rights under the
Constitution of India. Without freedom, there can’t be any democratic
setup. People will not be able to grow
and develop if they do not have the freedom to do anything. At the same time, providing people with absolute
freedom could be very dangerous. It is important to put restrictions on freedom so that people don’t misuse their
rights and co-exist with others peacefully. The State
thus acts as a source of limiting
the freedom of individuals. Our
Constitution
has very nicely mentioned the freedoms and the grounds on which they can be limited.
This balance of power is necessary.
Article Information
CONSTITUTIONAL RESTRAINTS UNDER ARTICLE 19 (By-Kalyani Ravindra Shegaonkar)
Authors: Kalyani Ravindra Shegaonkar
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/08/08
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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