Constitution of India 2022 Article 19

ARTICLE 19
Right to Freedom - Article 19.
Protection of certain rights 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 associations or unions or co-operative societies
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) right to property (44th amendment, 1978)
(g) to practise any profession, or to carry on any occupation, trade or
business
Article 19 sub clause 1 gives rights to citizens only
Sub clause 2-6 gives states power to impose reasonable restrictions

FREEDOM OF SPEECH AND EXPRESSION - 19(1)(a)

Grounds for Reasonable restrictions [19(2)]
1. Interests of sovereignty and integrity of India. (Added by 16th Amendment,
1963)
2. Security of the state;
3. Friendly relations with foreign states; (Added by 1st Amendment, 1951)
4. Public order; (Added by 1st Amendment, 1951)
5. Decency or morality;
Hicklin Test was used as test for obscenity in Ranjit D Udeshi v. State of
Maharashtra (1965)
Hicklin test was rejected later and Community Standard Test was used in
Aveek Sarkar v. State of West Bengal (2014)
Community Standard Test : only the material which arouses
lustful feelings for an average man is obscene.
6. Contempt of court;
7. Defamation;
8. Incitement to an offence;

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Constitution of India 2022 Article 19

Freedom of Speech includes freedom of Silence

- Bijoe Emmanuel v. State of Kerala (National Anthem Case) (1986)
Issue was that three school children belonging to a sect (Jehovah’s witness)
worshipped only Jehovah (the creator) and refused to sing the national anthem
“Jana Gana Mana” because singing Jana Gana Mana was against the tenets of
their religious faith which did not allow them to sing the national anthem.
These children stood up respectfully in silence daily for the national anthem
but refused to sing because of their honest belief. The headmistress of the
school under the instruction of the Dy. Inspector of Schools expelled the
students.
The Supreme Court held that the action of the headmistress as violative of
their freedom of religion. The fundamental rights guaranteed under Article
19(1)(a) and Article 25(1) was held as infringed. Court further held that there is
no provision of law which compels or obligates anyone to sing the national
anthem, it is also not disrespectful if a person respectfully stands but does not
sing the national anthem.

Freedom of the press is a part of the Freedom of Speech and

Expression and covered under Article 19(1)(a)
Freedom of Press = an absence of statutory and administrative control on
dissemination of information, ideas, knowledge and thoughts.

Brij Bhushan and Anr. v. State of Delhi (1950)

This case relates to pre-censorship of media. In 1950, Bhushan had
argued for a regulatory body for media content, the Supreme Court
bench led by the Chief Justice of India has clarified that neither the
judiciary, nor the executive could have oversight of media content.
Courts can be approached only after telecast or publication, by parties
who may feel injured. Intervention in the absence of a complaint would
amount to impugning Article 19 of the Constitution

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Constitution of India 2022 Article 19

Romesh Thapper v. State of Madras (1950)

Mr. Thapar was a well-known communist and was very sceptical of the
policies of the then Prime Minister Pt. Jawaharlal Nehru. He published a
few articles in his weekly magazine called Crossroads that expressed his
scepticism. This Magazine was banned by Govt. of Madras by an order.
The order was issued under Section 9(1-A) of the Madras Maintenance
of Public Order Act, 1949 which empowered the government to prohibit
the circulation, sale or distribution of the journal in certain parts of the
province of Madras for the purpose of ensuring ‘public safety’ or
preserving ‘public order.’
This order was challenged in the court, the Court ruled that it was clear
that the impugned order passed was in violation of Article 19(1)(a). After
applying the rule of severability to Section 9(1-A) of the impugned Act, it
was held to be void under Article 13(1) of the Constitution and thus ultra
vires as it was inconsistent with the provisions of Part III of the
Constitution.
(After this decision parliament added ‘public order’ in Section
19(2) as reasonable restriction)

Sakal papers v. Union of India (1961)

Daily Newspapers (Price and Page) Order, 1960, which fixed the number
of pages and size which a newspaper could publish at a price was held to
be violative of freedom of press and not a reasonable restriction under
the Article 19(2). Similar ruling was also given in Bennet Coleman and
Co. v. Union of India (1973)

Prabhu Datt v. Union of India (1982)

Right to know news and information regarding administration of the
government is included in the freedom of press.
(Later Right to Information (RTI) Act, 2005 was enacted for providing
information about government administration to maintain transparency)

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Constitution of India 2022 Article 19

R.Rajgopal v. State of Tamil Nadu (Auto Shankar Case) (1994)

Prior restraint on publishing against freedom of press
Auto Shankar was a prisoner who was convicted of death penalty for six
murders, he wrote his autobiography in jail which was soon to be
published in petitioner’s magazine ‘Nakheeran’
In the autobiography a close nexus was depicted between Auto Shankar
and various IAS, IPS and other officers who were against the publication
of the autobiography on the grounds that it was defamatory. They used
various means including third degree and torture to stop the publishing
of the autobiography.
Court held that the state and the officials cannot impose prior restraint
of publication, if they have proof that it is defamatory, they can file a
petition after the publication and seek appropriate remedy.

Commercial Advertisement part of freedom of speech?

Hamdard Dawakhana v Union of India (1960)
Court said the sale of prohibited drugs was not in the interest of the
general public and as such "could not be a speech" within the meaning
of freedom of speech and expression under Article 19(1) (a) of the
Constitution. In this case freedom of speech was limited to only
expression of ideas and commercial advertisements were put out of the
ambit of freedom of speech.

Tata Press v. MTNL (1995)

MTNL’S monopoly on printing telephone directories under the Indian
Telegraph Act, was successfully challenged by Tata’s Yellow Pages.
It was contended that it is the public’s right to receive information by
way of advertising implicit in the concept of “free speech and
expression” guaranteed under Article 19(1)A of the Constitution. In
taking a holistic approach to the issue, Justice Kuldip Singh described the
free flow of commercial information as “the cornerstone of our
economic system. Low prices for consumers are dependent on mass
production (which) is dependent on volume sales (which) is dependent
on advertising.”

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Constitution of India 2022 Article 19

Telephone tapping is invasion of right to privacy

- PUCL v. Union of India (1997)
Section 5(2) of Indian Telegraph Act, 1885 was challenged which permits the
interception of messages, Court held that “Occurrence of any public
emergency” or “in the interest of public safety” is the sine qua non (essential
condition) of the application of the provisions of Section 5(2). Unless the
telephone is tapped on these 2 grounds or any of the grounds mentioned in
Art. 19(2) it will be violation of Art 19(1)(a)

Right to Strike not within the ambit of Freedom of speech

- O.K. Ghose v. E.X. Joseph (1963)

Right to protest is fundamental right

- Mazdoor Kisan Shakti Sangathan v. Union of India (2018)

Calling of ‘Bundh’ illegal and unconstitutional because it violates

the rights of citizens under Article 19(1)(a) and Article 21
-Communist Party of India(M) v. Bharat Kumar and others (1998)

Sexual Content in ambit of Freedom of Speech?

There cannot be Blanket Ban on Sexually exploitative material (Ajay Goswami v.
Union of India (1994)) similarly court held that the naked scenes in Bandit Queen
movie are not of a sexual nature, when the woman is stripped and paraded in the
village in a scene in the movie, the scene does not intend to arouse lust in the movies
watcher’s mind, it brings sympathy for the character, Nakedness doesn’t always
arouses baser instincts. (Bobby Art International v. Om pal singh Hoon
(Bandit Queen Case)(1996))

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Constitution of India 2022 Article 19

FREEDOM OF ASSEMBLY - 19(1) (b)

Grounds for Reasonable restriction [19(3)] are Public order and
Maintenance of sovereignty and integrity of India.
The Assembly under 19(1)(b) should be peaceful and without arms.
Section 141 of IPC defines what an unlawful assembly is.

FREEDOM OF ASSOCIATION - 19(1)(c)

Grounds for reasonable restriction in 19(4)
1. Interests of the sovereignty and integrity of India
2. Public order
3. Morality

19(1)(c) guarantees freedom to form associations and co-operative

societies.
The part with co operative societies was added by the 97th amendment
together with PART IX-B of constitution that talks about co-operative
societies.
Cooperative Societies- An autonomous association of persons united
voluntarily to meet their common economic, social, and cultural needs and
aspirations through a jointly-owned and democratically-controlled enterprise.
Best examples are dairy, fish farmers, weavers and artisans and tribal co-
operatives.

The right to form association also includes right to not be part of an

association
Damayanti v. Union of India (1971)
Right to form association implies that the person forming the
association have also the right to continue to be associated
with only those whom they voluntarily admit in the association.

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Constitution of India 2022 Article 19

FREEDOM OF MOVEMENT (d) AND RESIDENCE (e)

19(1)(d) and 19(1)(e)
Grounds for Reasonable restriction in 19(5)
1. Interests of the general public
2. For the protection of the interests of any scheduled tribe

State of U.P V. Kaushalya (1988)

Right of movement of prostitutes may be restricted on ground of
public health and in the interest of public morality.

In Ajay Canu v. Union of India (1988) and Rajneesh Kapoor v Union

of India(2007) it was held that rule of wearing helmet is reasonable
restriction on freedom of movement because the paramount
objective is saving the life of citizen

FREEDOM TO OWN PROPERTY

44th Amendment, 1978 – 19(1)(f) And Article 31 (Right to Property)
removed from constitution and Article 300A – Right to property added.
Article 300A. Persons not to be deprived of property save by
authority of law. - No person shall be deprived of his property save
by authority of law.
After this Right to property is a constitutional right but not a fundamental
right.

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Constitution of India 2022 Article 19

FREEDOM OF PROFESSION, OCCUPATION TRADE OR

BUSINESS - 19(1)(g)
Grounds for Reasonable restriction in 19(6)
1. In the interests of the general public
2. State prescribed qualifications for carrying on any profession or technical
occupation.
3. State-run trade, business, industry, or service that excludes the participation of
citizens or others either completely or partially

Right to carry on business includes right to close the business?

This may sound absurd, anyone can close their business when they
want, right? No
Excel Wear v. Union of India (1979)
A registered firm applied to the government for approval for its closure
because it was incurring heavy losses. The govt refused approval in the
public interest and the govt was able to do so because of Section 25-O
and 25-R of Industrial Disputes Act, which require an employer to take
permission from the government for closure of an industrial
undertaking. The employer has to give a 3-month notice before closing
down and even after that govt can refuse to give permission to do so if
the ‘reasons are not adequate or sufficient’ or when such closure is
‘prejudicial to the public interest ‘

Education covered under Article 19(1)(g)?

In Unni Krishnan v. State of A.P.(1993) it was held that right to establish
an educational institution and imparting education is not a commercial
activity, such activity is neither a trade or business nor it can be a
profession within the meaning of 19(1)(g) because Trade or business is
done with a profit motive and education has never been a commerce
activity in this country, Later in P.A. Inamdar v. State of Maharashtra
(2005) it was said that ‘education’ can be an occupation in 19(1)(g) but
it cannot be equated with trade or business.

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 Constitution of India 2022 Article 19

Whether trade or business in Liquor in ambit of 19(1)(g)

Khoday Distilleries Ltd. v. State of Karnataka (1995)
Supreme court held that a citizen does not have a fundamental right to
trade or business in activities which are immoral and criminal and in
articles or goods which are obnoxious and injurious to health, safety and
welfare of citizens. A state has power to prohibit the manufacture, sale,
possession, distribution and consumption of alcohol both because it is
dangeroud to health and also because of the DPSP Article 47 (except
when it is used in medicinal purposes)

Hawkers have right to trade on pavement of roads but with

reasonable restrictions.
- Sodan Singh v. New Delhi municipal Corporation (1989)

State Lotteries are not Trade or business but gambling

B.R. Enterprises v. State of U.P. (1999)
Difference between gambling and trade is that gambling inherently
contains a chance with no skill and trade contains skill with no chance.
Ban on Gambling including State lotteries constitutional.

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