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Submitted by Aadesh Agarkar

Introduction

ARTICLE 19

TEST OF REASONABLE RESTRICTION

RIGHT AVAILABLE TO CITIZENS ONLY

1)Freedom of speech and expression

2)Freedom of assembly

3)Freedom to form association

4)Freedom of movement

5)Freedom to reside and settle

6)Freedom of occupation, trade, business or profession.

INTRODUCTION

Personal liberty is most important of all fundamental rights. Article 19 to 22 deals with the different aspect of this basic right. Article 19 to 22 provides the backbone of the chapter on fundamental rights. The foremost among these are the 6 fundamental rights in the nature of freedom which are guaranteed to the citizen by art 19 of the Constitution.

ARTICLE 19

The article 19 of the constitution guarantees the citizen following 6 fundamental freedoms
1)Freedom of speech and expression
2)Freedom of assembly
3)freedom to form association
4)freedom of movement
5)Freedom to reside and settle
6)freedom of occupation, trade, business or profession.

These 6 freedom are however not absolute. There cannot be any right which is injurious to the community as a whole. Therefore, liberty has got to be limited. For liberty of one must not offend the liberty of other.
Patanjali Shastri .J in AK GOPALAN case observed man as a rational being desire to do many things, but in civil society his desire has to be controlled, regulated and reconciled with the exercise of a similar desire of another individual. The rights guaranteed under article 19 has some restriction imposed by the constitution and confers upon the state a power to impose by law reasonable restriction as necessary in the larger interest of the community. The restriction on these freedoms is provided in clause 2 to 6 of article 19 of the constitution.

TEST OF REASONABLE RESTRICTION

The restrictions under art 19(1) can be only imposed by law and not by the executive or departmental instructions. The restriction should strike a proper balance between the rights guaranteed under art 19(1) and social control in art 19(6). It is on the judiciary to decide whether any particular restriction is reasonable or not. The word reasonable is subject to the supervision of the Supreme court. However there is no particular test to judge the reasonableness of the restriction but each case is the judge on its own merits.

Following are the guidelines laid by Supreme court for determining the reasonableness of restriction-
1)The restriction must have a reasonable relation to the object which the legislation seek to achieve and must never exceed it.
2)The degree of reasonableness varies with the nature of rights infringed, the underlying purpose of the restriction imposed, the extent and urgency, disproportion of the imposition, the prevailing condition at the time.
3)The restriction must be reasonable from the substantive as well as the procedural standpoint. The court should consider not only duration and extent but also circumstances of the restriction under which it is imposed
4)A restriction which is imposed for securing the object and laid down in the directive principle of state policy may be regarded as reasonable restrictions
5)The court must determine the reasonableness of restrictions by the objective standard and not by a subjective standard. The question is not if the court feels the restrictions as reasonable but where a normal prudent man would regard the restriction reasonable.
6)The restriction also amounts to the prohibition under certain circumstances, thus, law depriving a citizen of his fundamental rights if it prohibits him to carry out dangerous trade such as cultivating dangerous narcotics plants.

RIGHT AVAILABLE TO CITIZENS ONLY

The rights guaranteed under art 19(1) are only available to citizens and not to an alien or foreigner. A corporation or a company cannot claim a right under art 19 because they are not natural persons, but now there appears a change in the judicial attitude on this point.
In BANK NATIONALISATION case and the NEWSPAPERS case, the court held that though a company cannot claim a right under art 19, but the shareholder of the Company can claim the right under art 19.

A] FREEDOM OF SPEECH AND EXPRESSION Article 19(1)(a) and 19(2)

freedom of speech is indispensable in a democracy. In ROMESH THAPPER V. STATE OF MADRAS Patanjali Sastri rightly observed- freedom of speech and press lay at the foundation of all democratic organisation, for without free political discussion no public education, so essential for the purpose of functioning of the process of popular government, is possible.

Meaning and scope

Freedom of speech and expression means right to express one's own conviction and opinion freely by word of mouth, writing, printing, picture or any other mode. The freedom of expression includes liberty to propagate not one's view only. It also includes the right to propagate or publish the view of other people, otherwise, this freedom would not include the freedom of the press.

Freedom of speech and expression has four broad special purpose to serve-
1)it helps an individual to attain self-fulfillment.
2)it assists in the discovery of truth
3)it strengthens the capacity of an individual in participating in decision making and
4)it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.

In PRABHU DATTA V.UNION OF INDIA

The Supreme court held that the right to know the news and information regarding administration of the government is included in the freedom of press. But this right is not absolute and restriction can be imposed on it in the interest of the society and the individual from which the press obtain the information. In this case, the court directed the Superintendent of the Tihar jail to permit the newspaper to interview Ranga and Billa, the two chief death sentence convict under article 19 (1)(a)as they were willing to interview. The jail authority had refused the permission to the newspaper representative to interview the convict.

NEW DIMENSION TO FREEDOM OF SPEECH AND EXPRESSION

In the historic judgement in SECRETARY, MINISTRY OF I & B V. CRICKET ASSOCIATION OF BENGAL

The Supreme court has considerably widened the scope and extent of the right to freedom of speech and expression and held that the government has no monopoly on electronic media and a citizen has under art 19(1)(a), a right to telecast and broadcast the viewer/listeners through electronic media on Television and radio any important event and directed the government to set up an independent autonomous broadcasting authority which will free the Doordarshan and Akashvani from the shackles of the government control.

B] FREEDOM OF ASSEMBLY (ARTICLE 19(1)(B) AND 19(3))

Article 19(1)(b) guarantees to all citizen of India to assemble peacefully and without arms. The right to assembly means right to hold meetings and to take out procession. The right is, however, subject to certain restriction under art 19(3) in the interest of sovereignty and integrity of India. The assembly must be peaceful and must not cause any breach of public peace.

Unlawful assembly

If the assembly becomes unlawful it can be dispersed. Chapter 8 of IPC lays down the conditions if the assembly becomes unlawfull. U/sec 141 of IPC an assembly of 5 or more becomes unlawful if the common objective of persons composing the assembly is,
1)To resist the execution of any law or any legal process.
2)To commit any mischief or criminal trespass.
3)To obtaining possession of any property by force.
4)To compel a person to omit to which he is legally bound to do.
5)To overawe the Government by means of criminal force.

Other provision to curb unlawful assembly like sec 129 of CrPC which may order such any assembly to be dispersed if the disturbances to the public peace are reasonable apprehended.

C] FREEDOM TO FORM ASSOCIATION (art 19(1)(c) and 19(4))

The constitution guarantees to the citizen to form an association, unions, Co-operative society under art 19(1)(c). Under clause (4) of 19, the constitution imposes reasonable restrictions in the interest of public order or morality. The organisation is an association between its members in matters of common concern. It thus includes the right to form companies, society, partnership, trade union and political parties.

Right of association and Armed forces

In O.K.A NAIR V. UNION OF INDIA

An important question arose when the civilian employees designated as non-combatants such as cooks, lasker, barber, mechanics, boot-maker, tailors etc. attached to Defence Establishment have a right to form associations or union. The appellant was the member of civil employees union in the various centre of defence Establishment. The commandant declared their Union as unlawful association. They challenged the impugned action was in violations of their fundamental right to form association under art 19(1)(c). They contended that they are governed by Civil service Rules and, therefore, they could not be called as member of armed force within the view of art 33 of the constitution. The Supreme court rejected the contention of appellant and held that the civilian employee of Defence Establishment answers the description of the member of armed force within the meaning of art 33 of the constitutions

Restriction on Freedom of association

In STATE OF MADRAS V. V.G RAO

The validity of criminal amendment act of 1950 provided any association or union interferes in the administration of law or with maintenance of constituting danger public peace, the association or union is declared unlawful by notification in the official Gazette; was challenged The Supreme Court held that the restriction imposed by sec 16(2)(b) of the act were unreasonable. The test under it was subjective satisfaction of the Government and the factual existence of the ground was not justiciable issue.

D] FREEDOM OF MOVEMENT ( 19(1)(d) and 19(5) )

This right guarantees to all citizen of India the freedom of movement freely throughout the territory of India subject to reasonable restriction under clause 5 of art 19.

Ground Of Restrictions

The state may impose reasonable restriction under clause 5 of Article 19 on Freedom of Movement two grounds-
1)In the interest of general public
2)For the protection of Schedule Tribes

The right to move freely throughout India is restricted to protect Schedule Tribes which are mostly settled in Assam. These tribes have their own culture, language, customs and manners. It was considered necessary to impose restriction on the entry of outsiders to these areas. It was feared that the mixing of Tribes with people of another area might produce an undesirable effect upon the tribal people.

In RAJNEESH KAPOOR V. UNION OF INDIA

It has been held the requirement of wearing of a helmet is not a restriction on free movement of citizens. The paramount objective of wearing a helmet is to save a life.

E] FREEDOM OF RESIDENCE (article 19(1)(e) and 19(5) )

This article gives the right to the citizen to reside and settle anywhere in India subject to reasonable restriction mentioned in clause 5 of article 19. The object of this clause is to remove internal barriers within India or any of its parts. The word "the territory of India" as use this article indicates freedom to reside anywhere and in any part of the state of India. Right to reside and right to move freely are complementary to each other. Therefore, most of the cases consider under art 19(1)(d) and art 19(1)(e) are relevant to each other.

In IBRAHIM WAZIR V. SATE OF BOMBAY

In this case the appellant came to India without permit and was deported back to Pakistan under sec 7 of Pakistan Control Act of 1946 empower the Central Government to direct removal of person from India including an Indian citizen against whom reasonable suspicion existed of having committed an offence to enter India without permit and passport. The court held that the order of removal is invalid on the ground that it impose unreasonable restriction on the fundamental rights of citizen to reside and settle in India. The coming of citizen to his homeland even without permit not to be so grave as to justify his expulsion from the country.

G] FREEDOM OF OCCUPATION,PROFESSION,TRADE OR BUSINESS ( article 19(1)(g) and article 19(6) )

Article 19(1)(g) guarantees all the citizen the right to practice any profession or to carry on any occupation, trade or business. However, it is restricted to reasonable restriction under article 19(6). 1)in interest of public 2)prescribing professional or technical qualifications necessary for practising any profession. 3)enabling the state to carry on any trade or business to the exclusion of citizen wholly or partially.

Submitted by Aadesh Agarkar

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