Right to Freedom

Right to Six Democratic Freedoms (Art. 19). Article 19 of the Constitution the citizens of India the following six fundamental freedoms:

a)Freedom of Speech and Expression.
b)Freedom to assemble peacefully and without arms.
c)Freedom to form Association.
d)Freedom of Movement.
e)Freedom of Residence and Settlement.
f)Freedom of Profession, Occupation, Trade or Business

 

The freedoms enumerated in Art. 19(1) are those 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 and each is liable to be curtailed by laws made or to be made by the State putting reasonable restrictions in the interests of the general public security of the State, sovereignty and integrity of India, public order, decency, morality, friendly relations with foreign States, protection of interest of any Scheduled Tribes, etc. A law restricting the exercise of any of the six freedoms guaranteed by clause (1) of Article 19 to be constitutionally valid, must satisfy two conditions namely:

  1. the restrictions must be for the particular purpose mentioned in the Constitution permitting the imposition of the restriction on the particular right; and
  2. he restriction must be a reasonable restriction.

It should be clear that the reasonable restrictions are imposed by Parliament but it is subject to judicial review by the Supreme Court.

Freedom of Speech and Expression [Art. 19(1 )(a)].

Right to FreedomFreedom of Speech and Expression is indispensable in a democracy. It means the right to express one’s own conviction and opinion freely by words of mouth, writing, printing, pictures or any other mode. It includes the expression of one’s ideas through any communicable medium or visible representation such as gestures, banners, signs and the like. It further includes the liberty to propagate not only one’s own views, but also right to propagate or publish the views of other people. The freedom of speech and expression thus includes the freedom of the press as well. The Constitution, nowhere, mentions in explicit term the freedom of the press. But it is implicit in the freedom of speech and expression. The freedom of the press is considered essential to political liberty and proper functioning of democracy. However, the Press does not enjoy any special privilege in India and their status is the same as that of an ordinary citizen under Art. 19 (1)(a). They are also subject to – forms of taxation, laws regulating to industrial relations, regulation of the conditions of service of the employees and defamation, contempt of House and Courts. There are no geographical limitation, as the Supreme Court has observed, to freedom of speech and expression guaranteed under Art. 19(1) and this freedom is exercisable not only in India but also outside India and if State action sets up barrier to its citizens on the exercise of this freedom in any country in the world, it would violate the freedom of speech and expression.

Freedom of Assembly [Art. 19(1)(b)]. Article 19(1)(b) guarantees to all citizens of India right to assemble peacefully and without arms. This right is, however, subject to the following restrictions:

  • The assembly must be peaceable.
  • It must be unarmed.
  • Reasonable restrictions can be imposed.

The right of assembly is implied in the very idea of democratic Government. The right of assembly thus includes right to hold meetings and to take out processions. This right, like other individual rights, is not absolute but restricted. The assembly must be non-violent and must not cause any breach of public peace. If the assembly is disorderly or riotous then it is not protected under Art. 19(1)(b) and reasonable restrictions may be imposed under clause (3) of Art. 19.

 

Freedom to form Association [Art. 19(1)(c)].

Article 19(1)(c) guarantees to all citizens freedom to form associations. Like other freedoms, this freedom is also not absolute. Art. 19(4) permits the State to impose reasonable restrictions in the interest of the sovereignty and integrity of India or public order or morality. The right guaranteed under Art. 19(1)(c) is not merely to form association but also to continue with the association as such. The freedom to form association implies also the freedom to form or not to form, to join or not to join an association or union. But it should be noted that freedom to form association does not confer a fundamental right to strike.

 

Right of Association and Armed Forces.

The Constitution empowers the Parliament, under Art. 33 to modify the rights conferred by Part III of the Constitution in their application to members of the Armed Forces or other forces engaged with the maintenance of public order. Exercising this power, Parliament has banned the formation of trade unions to the members of the Armed Forces, Police etc. This ban, according to the Supreme Court, can be made applicable even to civilians who are working in such establishments.

 

Freedom of Movement [Art 19(1)(d)].

Article 19 (1)(d) guarantees to citizens the right to move freely throughout the territory of India. A citizen can move freely from one state to another or from one place to another within a state, subject the reasonable restrictions on this freedom imposed by the state on grounds of the interests of general public and the protection of the interest of any schedule tribe.

The freedom of movement has two dimensions viz. internal (right to move inside the country) and external (right to move out of the country and right to come back to the country). Article 19 protects only the first dimension while the second dimension is dealt by right to life and personal liberty guaranteed by article 21.

 

Freedom of Residence [Article 19)1 )(e)].

Article 19(1)(e) guarantees to citizens the right to reside and settle in any part of the territory of India. Right to reside in any part of the country means to stay at any place temporarily. Right to settle in any part of the country means to set up a home or domicile at any place permanently. This right is intended to remove internal barriers within the country or between any of its parts and promotes nationalism. However, the state can impose reasonable restrictions on the exercise of his right on grounds of the interest of general public and the protection of interest of any scheduled tribe.

 

Freedom of Trade and Occupation [Art. 19(1)(g)].

Article 19(1)(g) of the Constitution guarantees that all citizens have the right to practice any profession or to carry on any occupation or trade or business. The freedom is not uncontrolled, for clause (6) of the Article authorizes legislation which (i) imposes reasonable restrictions on this right in the interests of the general public; (ii) prescribe professional or technical qualifications necessary for carrying on any profession, trade or business to the exclusion of private citizens, wholly or partially. The right to carry on a business would include the right to close down or relinquish or sell the business.

Protection in respect of conviction for offences. Art. 20 guarantees to individuals – citizens and non-citizens – protections against conviction for offences prohibiting (i) retrospective criminal legislation (ii) double jeopardy or punishment for the same offence more than once, and (iii) compulsion to give self-incriminating evidence. Through this Article the Constitution has provided safeguards to the rights of persons accused of crimes. The significance of this Article lies in the fact that 44th Amendment Act has provided that it cannot be suspended even during an emergency by an order of the President under Art. 359.

  • Retrospective Criminal legislation or Ex-post facto law.

Clause 1 of the Article 20 explains that no person shall be convicted of any offense except for violation of law in force at the time of the commission of the act charged as offense, nor be subject to a penalty greater than that which might have been inflicted under the law in force or effect at the time of the commission of the offense. Thus the legislature is prohibited to make criminal laws having retrospective effect. The protection against retrospective criminal legislation provides immunity to the person liable for being convicted under it, though the immunity cannot be claimed against preventive detention. Again, the protection granted under article 20(1) would not cover trial.

  • Double Jeopardy.

The doctrine of Double Jeopardy is incorporated under clause 2  of the Article 20 which explains that no person shall be prosecuted and punished for the same offense more than once. The protection granted under clause 2 of Article 20 is attracted only in respect of the punishment inflicted by a court of law or judicial tribunal. It, however, does not immunize a person from proceedings which are not before a court of law. Therefore, a government servant prosecuted and convicted by a court of law can be punished under departmental proceedings for the same offence. Likewise, a person punished departmentally may be prosecuted in a court of law. Again, since the operation of Article 20(2) is confined to indictment before a criminal court, it does not ban proceedings before a civil court for disobedience of an injunction along with criminal proceedings.

  • Prohibition against self-incrimination.

Clause 3 of Art. 20 lays down that no person accused of any offense shall be compelled to be a witness against himself. Under the frame of criminal jurisprudence, a person is presumed to be innocent and it is for the prosecution to establish his guilt. Again, a person accused of an offense need not make any statement against his will.

Protection of life and personal liberty. Article 21 states that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 21 as interpreted by the Supreme Court in its earlier decisions, was intended to be a limitation upon the powers of the Executive but not the Legislature and only safeguarded the individual against arbitrary or illegal action on the part of the Executive. But in the Maneka Gandhi vs. Union of India case (1978), the Court by giving a liberal interpretation to Art. 21 overruled its earlier decisions and held that Art. 21 safeguards the individual against arbitrary or illegal action not only on the part of the Executive but also on the Legislature. Any law made by the Legislature imposing restrictions on personal liberty of individuals should not be arbitrary, unfair or unreasonable. Such a law is subject to the judicial review of the Courts. The Supreme Court through its different judgment’s and rulings has widened the scope and ambit of Art. 21 and thereby making meaningful changes in the context of protection of life and personal liberties. As a result of the liberal interpretation of this Article, many inferred composite rights have come to be included under the personal liberties of citizens like Right to live with dignity, Right to primary education upto the age of 14 years, Right to health of workers, Right to speedy trial for under trials, Right against cruel punishment and Right to shelter etc.

Again, one must remember that personal freedom granted under Art. 19 and personal liberties mentioned under Art. 21 should not be read separately. Both of them supplement and complement each other. The expression personal liberty under Art. 21 includes also the freedoms provided under Art. 19. Both overlap each other.

Protection against arrest and detention. Article 22 provides procedural safeguards against arbitrary arrest and detention. Art. 22 states that (a) No persons who is arrested shall be detained in custody without being informed of the grounds for such arrest; (b) every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of arrest; and (c) no such person shall be detained in custody beyond the said period without the authority of a magistrate.

The above safeguards are not, however, available to (a) an enemy alien, (b) a person arrested or detained under a law providing for preventive detention.

Preventive Detention and Art. 22.

Preventive detention means detention of a person without trial. It is different from ordinary or punitive detention. The object of punitive detention is to punish a person for what he has done. Preventive detention differs from punitive detention both in respect of its purpose and its justification. The object of preventive detention is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it. In preventive detention no offense is proved nor any charge is formulated. Further, the justification of such a detention is suspicion or reasonable probability of the impending commission of a pre-judicial act

The Constitution authorises the Legislature to make laws providing for preventive detention. Parliament as well us some of the State Legislatures have enacted laws providing for preventive detention for reasons connected with the security of the State, foreign affairs, maintenance of public order, maintenance of supplies and services essential to the community etc. Some of the preventive detention acts enacted by Parliament are Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) 1974, National Security Act, 1980, Terrorist and Disruptive (Prevention) Act 1990, etc. However, a preventive detention must satisfy the following conditions set out in Art. 22 (4) as amended by the 44th Amendment Act, 1978:

i) The Government is entitled to detain an individual under preventive detention only for two months. If it seeks to detain the arrested person tor more than two months, it must obtain a report from an Advisory Board that will examine the papers submitted by the Government and by the accused, as to whether the detention is justified.

ii) The person so detained shall, as soon as possible, may he informed of the grounds of his detention excepting facts which the detaining authority considers to be against] the public interest to disclose

iii) The person detained must have the earliest opportunity of making a representation against the order of detention.

However, in case of violation of any of the conditions laid down in Art. 22 by any law or an order of detention, the law or an order both are liable to be invalidated by the court and the detained person shall forthwith be set free. Parliament is empowered to prescribe, by law, the maximum period for which a person may be detained under a law of preventive detention.

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