Article 19: Freedom of Speech

Article 19 - Freedom of Speech

• Article 19 protects certain rights, especially regarding freedom of speech
• Article 19 (1) grants all citizens the right to freedom of speech and expression
• Also guarantees the right to assemble peaceably and without arms
• Guarantees the right to form associations or unions
• Enshrines the right to move freely throughout India
• Enshrines the right to reside and settle in any part of India
• The right to practise any profession, or to carry on any occupation, trade or business is stipulated
• The right to acquire, hold and dispose of property was omitted by the 44th CAA in 1978
• Article 19 is referred to as a set of democratic rights
• Applies only to citizens and shareholders of a company
• It does not extend to foreigners or legal entities like companies or corporations
• None of the freedoms provided are absolute
• Protection is offered only against state action, not private individuals
• The second largest number of implicit rights are implied under the constitution
• The State can impose reasonable restrictions to these rights
• Reasonable Restrictions (RR) can be imposed only by the Legislature, not by Executive order alone
• The SC/HC can examine the validity of any Reasonable Restriction
• Restrictions can be imposed only for the grounds explicitly mentioned
• Freedom of speech and expression allows every citizen the right to express their views, opinions, beliefs, and convictions freely
• The expression of one's self can be through word of mouth, writing, printing, picturing, or in any other manner
• This freedom includes the right to propagate personal views as well as the views of others
• Freedom of the press was argued in the Sakaal paper v/s Union of India case 1962
• The right to have access to information is included, marking the Right to Information as a Fundamental Right
• The right to reject during elections, as argued in PUCL Vs UOI 2013, guarantees NOTA
• The right to dissent, and freedom of commercial advertisements are also included
• Citizens have the right against the tapping of telephonic conversations
• Citizens have the right to telecast, signifying no government monopoly on electronic media
• Citizens have the right against bundhs called by a political party or organisation
• Citizens have the right to know about government activities
• Freedom of silence and the right against imposition of pre-censorship on a newspaper are fundamental rights
• Demonstrations or picketing are allowed, but the right to strike is not
• Note: Rights remain available even while traveling abroad
• The State can impose reasonable restrictions based on a maximum number of grounds
• In the interests of the sovereignty and integrity of India, as added by the 16th CAA in 1963
• Restrictions can be placed in concern for the of security of the State
• Restrictions can be placed to maintain friendly relations with foreign States
• Restrictions can be placed in concern for public order, decency or morality
• Restrictions can be placed in relation to contempt of court, defamation, and incitement to an offense

Article 19 (1) (B) - Freedom of Assembly

• Every citizen has the right to assemble peaceably and without arms
• Freedom can be exercised only on public land and the assembly must be peaceful and unarmed
• The State can impose reasonable restrictions in concern to sovereignty and integrity of India, as added by the 16th CAA, 1963
• The State can impose reasonable restrictions in concern to public order
• Under Section 144 of the Criminal Procedure Code of 1973, a magistrate can restrain an assembly, meeting or procession if there is a risk of obstruction
• The magistrate can restrain an assembly if there is a risk of annoyance or danger to human life, health or safety or a disturbance of the public tranquility or a riot or any affray
• Under Section 141 of the Indian Penal Code, an assembly of five or more persons becomes unlawful if the object is to resist the execution of any law or legal process
• An assembly becomes unlawful if it intends to forcibly occupy the property of some person
• An assembly becomes unlawful if it intends to commit any mischief or criminal trespass
• An assembly becomes unlawful if it intends to force some person to do an illegal act
• An assembly becomes unlawful if it intends to threaten the government or its officials on exercising lawful powers

Article 19 (1) (C) - Freedom of Association

• All citizens have the right to form associations or unions or cooperative societies
• This includes not only the right to start an association or union but also to continue with the association or union as such
• Further, it covers the negative right of not to form or join an association or union
• The Supreme Court held that trade unions have no guaranteed right to effective bargaining or right to strike or the right to declare a lockout
• Grounds for Reasonable Restrictions include concerns about sovereignty and integrity of India
• Grounds for Reasonable Restrictions include concerns about public order and morality

Article 19 (1) (d) - Freedom of Movement

• Every citizen has the right to move freely throughout the territory of the country
• Grounds for Reasonable Restrictions include concerns for the interests of the general public and the protection of interests of any scheduled tribe
• Freedom of movement has two dimensions
• Internal movement refers to the right to move inside the country and is covered by Article 19
• External movement refers to the right to move out of the country and the right to come back to the country and is covered by Article 21

Article 19 (1) (e) - Freedom of Residence

• Every citizen has the right to reside and settle in any part of the territory of the country
• Grounds for Reasonable Restrictions include concerns for the interests of the general public and the protection of interests of any scheduled tribe

Article 19 (1) (g) - Freedom of Profession

• All citizens are given the right to practise any profession or to carry on any occupation, trade or business
• The State can impose reasonable restrictions on the exercise of this right in the interest of the general public
• The State is empowered to prescribe professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business
• Empowered to carry on by itself any trade, business, industry or service whether to the exclusion (complete or partial) of citizens or otherwise
• Note: Does not include the right to carry on a profession or business or trade or occupation that is immoral or dangerous
• The State can absolutely prohibit immoral or dangerous professions, businesses, trades or occupations or regulate them through licensing

Article 20 - Protection for Offences

• No person can be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence
• No one can be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence, this means no ex-post-facto law
• No person can be prosecuted and punished for the same offence more than once, this is known as no double jeopardy
• No person accused of any offence can be compelled to be a witness against himself - This is known as no self-incrimination
• No ex-post-facto law implies that civil liability or a tax can be imposed retrospectively
• It prohibits only conviction or sentence under an ex-post-facto criminal law and not the trial
• Protection cannot be claimed in the case of preventive detention or demanding security from a person
• Double jeopardy protection applies only in proceedings before a court of law or a judicial tribunal
• Protection is not available in proceedings before departmental or administrative authorities as they are not of judicial nature
• No self-incrimination protections extends to both oral and documentary evidence
• Self-incrimination does not extend to the the compulsory production of material objects
• Self-incrimination does not extend to compulsion to give thumb impression, specimen signature, blood specimens
• Self-incrimination does not extend to compulsory exhibition of the body
• Protections extends only to criminal proceedings and not to civil proceedings or proceedings which are not of criminal nature

Article 21 - Protection of Life and Liberty

• No person can be deprived of his life or personal liberty except according to procedure established by law
• This right is available to both citizens and non-citizens

Doctrine of PEL

• The Doctrine of PEL originated under English Constitution
• The existence of any law that authorizes the state to deprive an individual of their life and personal liberty applies
• Whether the legislature that enacted the law had the competence to enact such law applies
• Whether the procedure prescribed by the law in depriving an individual of his life or personal liberty have been followed properly by the state applies

Doctrine of DPL

• The Doctrine of DPL originated under the American Constitution
• Courts will also examine the law in question from the broader angle of inherent goodness of law by applying the principle of Natural Justice
• If the courts finds the law to be arbitrary or oppressive, it will declare the law to be unconstitutional and void
• The Indian constitution under article 21 explicitly provides for only the PEL but SC in Menaka Gandhi V/s UOI case 1978 held that the principle of natural justice are inherently found in article 21
• Article 21 includes the doctrine of DPL in itself

Principle of Natural Justice

• No person can be punished without being heard
• No man shall be a judge of his own case
• An authority cannot act bonafide without any bias
• According to the SC, the Principles of Natural Justice are not incorporated but are inherent principles of the Constitution, found in Articles 14 and 21

Article 21 & Landmark Cases

• In the Gopalan Case of 1950, protections under Article 21 are available only against arbitrary executive action and not from arbitrary legislative action
• In the Gopalan Case of 1950, the State can deprive the right to life and personal liberty of a person based on a law, or Procedure established by law
• In the Gopalan Case of 1950, 'Personal liberty' means only liberty relating to the person or body of the individual
• In the Menaka Case of 1978 Article 21 was given wider interpretation
• In the Menaka Case of 1978 the right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just aka Due process of law
• In the Menaka Case of 1978 protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action
• In the Menaka Case of 1978 affirmed that Article 21 is not merely confined to animal existence or survival but it includes within its ambit the right to live with human dignity
• The Menaka Case of 1978 affirmed that all aspects of life should go to making a man’s life meaningful, complete and worth living
• In the Common Cause v. Union of India of 2018, affirmed that every individual has the right to die with dignity, and includes dignified procedure of death
• Right to Choose was argued in the Supreme Court in the Hadiya Case in 2018
• Right to Choose entails that a person's right to choose a religion and marry is an intrinsic part of a person’s meaningful existence
• The Right to Privacy means the right to be left alone or freedom from intrusion or disturbance in one’s private life or private affairs
• Justice K. S. Puttaswamy argued the Right to Privacy vs the Union of India in 2017
• The Right to privacy is an intrinsic part of life and liberty under Article 21
• The Right to privacy is not an absolute right and is to be decided on a case to case basis

Article 21 (A) - Right to Education

• The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine
• It was Introduced by the 86th CAA in 2002
• The Right to Education is not an absolute right and is not automatically enforceable

Article 22 - Protection against Arrest and Detention

• Article 22 grants protections to persons who are arrested or detained
• Punitive detention is to punish a person for an offence committed after trial and conviction in a court
• Preventive detention means detention of a person without trial and conviction by a court
• Article 22 has two parts- the first part deals with cases of ordinary law and the second part deals with cases of preventive detention law
• The first part of Article 22 confers rights on a person who is arrested or detained under ordinary law, they have the right to be informed of the grounds of arrest
• If arrested or detained under ordinary law, a person has the right to consult and be defended by a legal practitioner
• If arrested or detained under ordinary law, a person has the right to be produced before a magistrate within 24 hours including the journey time
• If arrested or detained under ordinary law, a person has the right to be released after 24 hours unless the magistrate authorizes further detention
• Rights are not available to an enemy alien or a person arrested or detained under a preventive detention law
• Rights do not cover arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax, and deportation of an alien
• The rights apply only to an act of a criminal or quasi-criminal nature or some activity prejudicial to public interest
• The second part of Article 22 grants protections to persons who are arrested or detained under a preventive detention law
• Protections are available to both citizens as well as aliens
• The detention of the person cannot exceed three months unless the advisory board reports sufficient cause for extended detention
• The advisory board for extended detention is to consist of judges of a high court
• The grounds of detention should be communicated to the detenu, but the facts considered to be against the public interest need not be disclosed
• The detenu should be afforded an opportunity to make representation against the detention order
• Article 22 also authorises the Parliament to prescribe the circumstances and the classes of cases in which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board
• This also authorises the Parliament to prescribe the maximum period for which a person can be detained in any classes of cases under a preventive detention law, and the procedure to be followed by an advisory board in an inquiry
• The 44th CAA, 1978 reduced the period of detention without obtaining the opinion of an advisory board from three to two months, but this provision has not yet been brought into force
• The original period of three months still continues
• The Parliament has exclusive authority to make a law of preventive detention for reasons connected with defence, foreign affairs and the security of India
• Both the Parliament as well as the state legislatures can concurrently make a law of preventive detention for reasons connected with the security of a state, the maintenance of public order and the maintenance of supplies and services essential to the community