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Fundamental Rights in Constitution of India - Part - 2 - Right to Freedom

6 types of freedoms are given by Article 19 of Constitution of India to all.

(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) omitted

(g) to practise any profession, or to carry on any occupation, trade or business.

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests ofthe sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests ofthe sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests ofthe sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,- [The following clause was substituted through Constitution (First Amendment) Act, 1951] (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

Right to Expression

Expression means expressing your thoughts and opinion. A person can expres by speaking, writing, drwaing, symbols, video or by any other medium. Sometimes reamining quiet is also a method of expression. For example tying a cloth on your mouth or taking out a silent march with a blak ribbon is also a method of protest. Follwoing rights are included in the right to expression -

1. Freedom of Press- Imporant aspects of this are -
   1. There can be no pre-censorship in Press;
   2. Publication of public importance cannot be stopped before publication;
   3. Freedom of management of Press;
   4. No excessive taxation on Press;

   Supreme Court has said in Romesh Thappar v. The State Of Madras, 1950, which is a landmark case on Freeom of Press that, “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 processes of popular government, is possible”. The Court has held that freedom of circulation of newspapers is as important as freedom of their publicartion.

   Supreme Court has held in Bennett Coleman & Co v. Union of India, 1972, That freedom of press in fundamental to freedom of speech and expression. Court said that - “Both quantitative and qualitative elements are there in freedom of press. Freedom is inherent both in content and circulation. - freedom of the press embodies the right of the people to free speech and expression. It was held that “Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content.

   In the historical case of Menka Gandhi Vs Unionn of India, 1978, Supreme Court said that it is possible that there is no clear mention of this in any clause of Article 19(1) yet it can be covered under it.It is true that freedom of press is an important fundamental right which is not clearly mentioned in the Constitution, but it is inherent in Article (1)(a).

   In spite of the protection of Supreme Court the position of India is falling in Freedom of Press Index. The reason is that the challenges to freedom of press do not come only from censorship imposed by laws. It is possible to purchase the Press by advertisements and other means. Similarly corporates have full control over the Press and freedom fo Press is also compromised due to the relationship between the corporates and the Government. Editors are not able to run any news without the permission of owners. In addition frear of Government Agecies and Sedition laws etc. can also be used to compromise the freedom of Press. Please watch the video of senior Journalist Paranjoy Guha Thakurta on YouTube NewsClickin available under Creative Commons Attribution License (Resuse Allowed).

   Please also watch this video on Sedition Laws and the comments of Supreme Court on it on YouTube channel NewsClickin available under Creative Commons Attribution License (Resuse Alloed).

2. Right to Information - Supreme Court has held in State of Uttar Pradesh Vs Raj Narain, 1975, - Right to information is included in right to expression. The Court further said that people of thi scountry have a right to know about everything done in a public manner by public representatives. It is a basic principle of Democracy that evry citizen should have aright to knwo what is beng done by the Government. When public knows about the actions of the Government, only then transparency and accountability in governance will be possible. Getting information and its dissemination is an important fundamental right. In this context Right to Information Act, 2005 is an important lawm which provides right to informartion to all citizens.
3. Right to information about candidates in elections: Supreme Court has held in Union of India Vs Association for Democratic Reforms, 2002, That electors have a fundamental right to know about the criminal antecedents of the candiadates in an election.
4. Right to reply: In LIC v. Prof. Manubhai D. Shah, 1992, The Supreme Court has held that if anything is published against or about any person, then he has the right to reply under Article 19(1)(a), and the right to get the reply pubished in the same news media is included in it.
5. Right to silence: Right to silence is included in right to speech. In Bijoe Emmanuel v. State of Kerala, 1986, The Supreme Court upheld the right of silence of three children, who were expelled from a school for not singing the National Anthem. The Court said that in case of obejction based on religion of a peerson he cannot be compelled to sing the National Anthem. Right to silence is included in the right to expression.
6. The right to hoist the National Flag: The Supreme Court held in Union of India Vs Naveen Jindal, 2004, that hoisting National flag with honour and dignity is the expression of emotions and loyalty and pride of a person and it is a fundamental right protected by Article 19(1)(a). You will be surprised that before this judgement of the Supreme Court ordinary Indian Citizens did not have the right to hoist the same National Flag in their homes except on National Holidays of 15^th August and 26^th January, for which, freedom fights had sacrificed so much.

Right of Peaceful Assembly -

The purpose of organising a meeting or assembly is to disseminate thoughts and opinions and make people aware. For this reason the right to assembly is essentian for right to free speech and expression. Article 19(1)(b) gives the right to peaceful assembly without arms. The right to organise meetings and taking out processions is included in it. It may be noted that there is no fundamental right to organise meetings on private property of some other person or in government campuses. Supreme Court has held in Himmat Lal Vs Police Commissioner Bombay, 1972, the rule which gave powers to the Plice Commissioner to completely ban all public meetings and processions to be ultra-vires. The Court held that the State could only make rules to regulate the meetings of citizens and impose reasonable restrictions for public order, but rule to completely ban meetings and processions cannot be made.

This video availbel on YouTube channel UN Human Rights on Creative Commons Attribution License (Resuse Allowed) which shows that right to peaceful assemby is also a human right.

Right of Association -

Article 19(1)(c) give right to make associations, union or cooperative societies. The right to make associations is considered to be the lifeline of democracy because without it political parties, which are necessary for the business of democracy cannot be made. The right to make compaies, societies, trade unions, partnership firms and clubs etc. is included in this right. This right is not limited to the constitution of an association, but also inlcudes establishment, administration and working of these associations. The right to make an association includes the right to be a member of an association voluntarily and the right to continue or not continue as a member of association. In Damyanti Vs Union of India, 1971, the Supreme Court has upheld the right of the members of an association to continue it with the same structure for which they had consented. The right to be member of an association includes the right not to be its member. Article 19(1)(c) does not stop the State to give reservations to backward classes or to nominate them in cooperative societies and their management committees. There is no fundmantal right of giving recognitions to any association by the State. The right to make an association does not include the right to achieve its objectives.

Freedom of Movement and Reidsence -

Article 19(1)(d) and (e) are complementary to each other. They give the right to the citizens of the country to freely move and reside anywhere in the territory of India. The right to movement under Article 19(1)(d) includes the right ot free use of roads and highways. In Chambara Soya Vs. Union of India, 2007, the due to delay in taking the sick son of a person to hospital because of road blockage by miscreants, the son dies on reaching the hospital. The Supreme Court held that right of the peitioner under Article 19(1)(d) were violated and hekd the State to be liable to pay compensation to the peitioner for the death of his son. In Uttal Pradesh Awas Evam Vikas Parishad Vs Friends Cooperative society Limited, 1995, The Supreme Court held that the right to shelter and building a house for this puropose are inlcuded in Article 19(1)(e).

Freedom of profession, occupation, trade or business -

The right to close a bsuiness is inlcuded in the right to start a business. In Excelware Vs Union of India, 1978, The Supreme Court held Section 25-O of the Industrial Disputes Act, 1947 to be unconstitutional, because under this previous permission of the Government was necessary before closing a business by the employer. No person has the right to continue in a particular job. When an institution is closed and a person looses his job because of it, this will not be conisdered violation of his fundamental right. There is not right to run any dangerous or criminal activity. There can be no claim of trading with the Government. There is no right of protection from monopolies in trade. Loss due to competition is not a violation of right to trade.

The restriction on freedoms granted under Article 19(2) to Article 19(6) must pass the following tests:

1. The restrictions should have been imposed under the authority of a law made by competent legislature.
2. The law authorising the restrictions should be reasonable.
3. The restrcitions so imposed must be for the purposes and objects given in the specific clauses under Article 19(2) to 19(6).
4. There should be a relations between the restriction imposed and the purposes mentioned in the concerned clauses.
5. The restriction should be reasonable.

In the end it is noteworthy that initially seven freedoms were given under Article 19(1). The freedom to acquire and hold property was given under clause (f), which was removed by the Constitution (forty fourth amendment) Act, 1978.