Scope and Limitations on the Freedoms :

(a) Right to freedom of speech and expression

It need not to be mentioned as to how important the freedom of speech and expression in a democracy is. A democratic Government attaches a great importance to this freedom because without freedom of speech and expression the appeal to reason which is the basis of democracy cannot be made. The right to speech and expression includes right to make a good or bad speech and even the right of not to speak. One may express oneself even by signs. The Courts have held that this right includes the freedom of press and right to publish one’s opinion, right to circulation and propagation of one’s ideas, freedom of peaceful demonstration, dramatic performance and cinematography. It may also include any other mode of expression of one’s ideas. The Supreme Court in Cricket Association of Bengal v. Ministry of Information & Broadcasting (Govt. of India), AIR 1995 SC 1236, has held that this freedom includes the right to communicate through any media – print, electronic and audio visual.

The freedom of speech and expression under Article 19(1)(a) means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode. This freedom includes the freedom of press as it partakes of the same basic nature and characteristic (Maneka Gandhi v. Union of India, AIR 1978 S.C. 597). However no special privilege is attached to the press as such, distinct from ordinary citizens. In Romesh Thapar v. State of Punjab, AIR 1950 S.C. 124, it was observed 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 process of popular Government is possible”. Imposition of pre-censorship on publication under clause (2), is violative of freedom of speech and expression.

The right to freedom of speech is infringed not only by a direct ban on the circulation of a publication but also by an action of the Government which would adversely affect the circulation of the paper. The only restrictions which may be imposed on the press are those which clause (2) of Article 19 permits and no other (Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305).

Regarding Commercial advertisements it was held in Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 that they do not fall within the protection of freedom of speech and expression because such advertisements have an element of trade and commerce. A commercial advertisement does not aim at the furtherance of the freedom of speech. Later the perception about advertisement changed and it has been held that commercial speech is a part of freedom of speech and expression guaranteed under Article 19(1)(a) and such speech can also be subjected to reasonable restrictions only under Article 19(2) and not otherwise (Tata Press Ltd. v. MTNL, AIR 1995 SC 2438).

The right to know, ‘receive and impart information’ has been recognized within the right to freedom of speech and expression (S.P. Gupta v. President of India, AIR 1982 SC 149. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. (Secretary, Ministry of I&B, Govt. of India v. Cricket Association of Bengal, (1995) 2 SCC 161)

The right to reply, i.e. the right to get published one’s reply in the same news media in which something is published against or in relation to a person has also been recognised under Article 19(1)(a), particularly when the news media is owned by the State within the meaning of Article 12. It has also been held that a Government circular having no legal sanction violates Article 19(1)(a), if it compels each and every pupil to join in the singing of the National Anthem despite his genuine, conscientious religious objection (Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615). Impliedly the Court has recognised in Article 19(1)(a) the right to remain silent.

Dramatic performance is also a form of speech and expression. In K.A. Abbas v. Union of India, AIR 1971 S.C. 481, the Court held that censorship of films including (pre-censorship) is justified under Article 19(1)(a) and (2) of the Constitution but the restrictions must be reasonable. The right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to be imposed by the latter has also been recognized. (Odyssey Communications (P) Ltd. v. Lokvidayan Sangathan, AIR 1988 SC 1642.

Clause (2) of Article 19 specifies the limits upto which the freedom of speech and expression may be restricted. It enables the Legislature to impose by law reasonable restrictions on the freedom of speech and expression under the following heads:

Permissible Restrictions

(1) Sovereignty and integrity of India.

(2) Security of the State.

(3) Friendly relations with foreign States.

(4) Public Order.

(5) Decency or morality or

(6) Contempt of court.

(7) Defamation or

(8) Incitement to an offence.

Reasonable restrictions under these heads can be imposed only by a duly enacted law and not by the executive action (Express News Papers Pvt. Ltd. v. Union of India, (1986) 1 SCC 133).

Corporations

The Supreme Court, initially expressed the view that a Corporation is not a citizen within the meaning of Article 19 and, therefore, cannot invoke this Article. Subsequently the Supreme Court held that a company is a distinct and separate entity from its shareholders and refused to tear the corporate veil for determing the constitutionality of the legislation by judging its impact on the fundamental rights of the shareholders of the company (TELCO v. State of Bihar, AIR 1965 S.C. 40). But a significant modification is made by the Supreme Court in R.C. Cooper v. Union of India, AIR 1970 S.C. 564 (also called the Bank Nationalisation case). The Supreme Court ruled that the test in determining whether the shareholder’s right is impaired is not formal but is essentially qualitative. If the State action impaired the rights of the shareholders as well as of the company, the Court will not deny itself jurisdiction to grant relief. The shareholders’ rights are equally affected, if the rights of the company are affected (Bennett Coleman & Co., AIR (1973) S.C. 106).

(b) Freedom of assembly

The next right is the right of citizens to assemble peacefully and without arms [Art. 19(1)(b)]. Calling an assembly and putting one’s views before it is also intermixed with the right to speech and expression discussed above, and in a democracy it is of no less importance than speech. However, apart from the fact that the assemblymust be peaceful and without arms, the State is also authorised to impose reasonable restrictions on this right in the interests of:

(i) the sovereignty and integrity of India, or

(ii) public order.

Freedom of assembly is an essential element in a democratic Government. In the words of Chief Justice Waite of the Supreme Court of America, “the very idea of Government, republican in form, implies a right on the part of citizens to meet peaceably for consultation in respect of public affairs”. The purpose of public meetings being the education of the public and the formation of opinion on religious, social, economic and political matters, the right of assembly has a close affinity to that of free speech under Article 19(1)(a).

(c) Freedom of association

The freedom of association includes freedom to hold meeting and to takeout processions without arms. Right to form associations for unions is also guaranteed so that people are free to have the members entertaining similar views [Art. 19(1)(c)]. This right is also, however, subject to reasonable restrictions which the State may impose in the interests of:

(i) the sovereignty and integrity of India, or

(ii) public order, or

(iii) morality.

A question not yet free from doubt is whether the fundamental right to form association also conveys the freedom to deny to form an association. In Tikaramji v. Uttar Pradesh, AIR 1956 SC 676, the Supreme Court observed that assuming the right to form an association “implies a right not to form an association, it does not follow that the negative right must also be regarded as a fundamental right”. However, the High Court of Andhra Pradesh has held, that this right necessarily implies a right not to be a member of an association. Hence, the rules which made it compulsory for all teachers of elementary schools to become members of an association were held to be void as being violative of Article 19(1)(c) (Sitharamachary v. Sr. Dy. Inspector of Schools, AIR 1958 A.P. 78). This view gets support from O.K. Ghosh v. Joseph, AIR 1963 SC 812. It has been held that a right to form associations or unions does not include within its ken as a fundamental right a right to form associations or unions for achieving a particular object or running a particular institution (2004) 1 SCC 712.

(d) Freedom of movement

Right to move freely throughout the territory of India is another right guaranteed under Article 19(1)(d). This right, however, does not extend to travel abroad, and like other rights stated above, it is also subject to the reasonable restrictions which the State may impose:

(i) in the interests of the general public, or

(ii) for the protection of the interests of any scheduled tribe.

A law authorising externment or interment to be valid must fall within the limits of permissible legislation in clause (5), namely restrictions must be reasonable and in the interests of the general public or for the protection of the interests of the Scheduled Tribes.

(e) Freedom of residence

Article 19(1)(e) guarantees to a citizen the right to reside and settle in any part of the territory of India. This right overlaps the right guaranteed by clause (d). This freedom is said to be intended to remove internal barriers within the territory of India to enable every citizen to travel freely and settle down in any part of a State or Union territory. This freedom is also subject to reasonable restrictions in the interests of general public or for the protection of the interests of any Scheduled Tribe under Article 19(5). That apart, citizens can be subjected to reasonable restrictions (Ebrahim v. State of Bom., (1954) SCR 923, 950). Besides this, certain areas may be banned for certain kinds of persons such as prostitutes (State of U.P. v. Kaushaliya, AIR 1964 SC 416, 423).

[(f) Right to acquire, hold and dispose of property – deleted by 44th Amendment in 1978.]

(g) Freedom to trade and occupations

Article 19(1)(g) provides that all citizens shall have the right to practise any profession, or to carry on any occupation, trade or business.

An analysis of the case law reveals that the emphasis of the Courts has been on social control and social policy. However, no hard and fast rules have been laid down by the Court for interpreting this Article. The words ‘trade’, ‘business’, ‘profession’ used in this Article have received a variety of interpretations. The word ‘trade’ has been held to include the occupation of men in buying and selling, barter or commerce, work, especially skilled, thus of the widest scope (Safdarjung Hospital v. K.S. Sethi, AIR 1970 S.C. 1407).

The word ‘business’ is more comprehensive than the word ‘trade’. Each case must be decided according to its own circumstances, applying the common sense principle as to what business is. A profession on the other hand, has been held ordinarily as an occupation requiring intellectual skill, often coupled with manual skill. Like other freedoms discussed above, this freedom is also subject to reasonable restrictions. Article 19(6) provides as under :

Nothing in sub-clause (g) 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 in 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 –

(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, industry or service whether to the exclusion, complete or partial, of citizens or otherwise.

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 authorises legislation which (i) imposes reasonable restrctions on this freedom in the interests of the general public; (ii) prescribes professional or technical qualifications necessary for carrying on any profession, trade or business; and (iii) enables the State to carry on any trade or business to the exclusion of private citizens, wholly or partially.

In order to determine the reasonableness of the restriction, regard must be had to the nature of the business and conditions prevailing in that trade. It is obvious that these factors differ from trade to trade, and no hard and fast rules concerning all trades can be laid down. The word ‘restriction’ used in clause (6) is wide enough to include cases of total prohibition also. Accordingly, even if the effect of a law is the elimination of the dealers from the trade, the law may be valid, provided it satisfies the test of reasonableness or otherwise.

The vital principle which has to kept in mind is that the restrictive law should strike a proper balance between the freedom guaranteed under Article 19(1)(g) and the social control permitted by clause (6) of Article 19. The restriction must not be of an exessive nature beyond what is required in the interests of the public.

However, after the Constitutional (Amendment) Act, 1951, the State can create a monopoly in favour of itself and can compete with private traders. It has been held in Assn. of Registration Plates v. Union of India, (2004) SCC 476 that the State is free to create monopoly in favour of itself. However the entire benefit arising therefrom must ensure to the benefit of the State and should not be used as a clock for conferring private benefit upon a limited class of persons.