Article 19

Article 19 guarantees to every Citizen of India the following six basic, fundamental freedoms-

19(a). Freedom of speech and expression.

19(b).Freedom to assemble peaceably and without arms

19(c). Freedom to form associations or unions or co-operative societies

19(d). Freedom to move freely throughout the territory of India

19(e). Freedom to reside and settle in any part of the territory of India and

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

Who Can Claim Freedoms of Article 19:

• However, in R.C. Cooper vs. Union of India, the Apex Court held that the fundamental rights of the shareholders as citizens, were not lost when they associated to form a company. The Court, thus, ruled that if the action of the State impaired the rights of the Company, thereby affecting the rights of the shareholders, who were citizens of India, the protection of Article 19 would be available to them.
• However, the freedoms of Article 19 cannot be claimed by a foreigner.

Meaning of Freedom of Speech and Expression:

• The freedom of speech and expression, guaranteed under Article 19(1)(a), means the right to speak and to express one’s opinions or to air grievances by words of mouth, writing, printing, pictures or in any other manner. 
• The freedom of expression, thus, includes the of the propagation of ideas, their publication and circulation.

Scope of Article 19 (1):

• Right to know and to obtain information: It has been said that in a Government of responsibility like ours, it is elementary that citizens ought to know what their government is doing. They have ‘the right to know every public act, everything that is done in a public way, by their public functionaries. No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government.
• Right to know the antecedents of candidates at Election: To maintain the purity of elections and in particular to bring transparency in the process of election, the Apex Court directed the Election Commission of India, to call for, on affidavit, by issuing necessary order, in exercise of its power under Article 324, from each candidate seeking election Parliament or a State Legislature, as a necessary part of his nomination paper, information regarding his assets, educational qualifications and criminal past, as well as, present criminal record. The apex court in Union of India v. Association For Democratic Reforms, ruled that voters’ right to know antecedents including criminal past of his candidate contesting election for M.P. or M.L.A is fundamental and basic survival of democracy.
• Freedom of Silence-Right not to speak: In Bijoe Emmanuel v. State of Kerala, the Supreme Court held that no person could be compelled to sing the National Anthem, “if he has genuine conscientious objections based on his religious belief”. In this case three children belonging to Jehovah’s Witnesses, were expelled from the school for refusing to sing the National Anthem during school prayers. They used to stand up respectfully when the National Anthem was being sung, but did not join in singing it. The Kerala High Court upheld their expulsion from the school on the ground that it was their fundamental duty to sing the National Anthem and that they committed an offence under the Prevention of Insults to National Honours Act, 1971.The Supreme Court, however, reversed the decision of the High Court and observed that they did not commit any offence. It was held that the expulsion of the children from that school was a violation of their fundamental right under Article 19(1)(a) which also included freedom of silence. It may, thus, be stated that freedom of expression includes the right not to express.
• Freedom of Press:
  • No Pre-censorship of Press
  • Right of access to source of information
  • Freedom of circulation
  • No Indirect attack on Press
  • Journalist and their source: The Press Council Act, 1978, provides that it should not compel a journalist to disclose the source of any news or information published by the newspaper. However, apex court held that the journalists and publishers had greater responsibility towards the society to safeguard public order, decency and morality. It may, therefore, be understood that if justice demands, scribe may be compelled to reveal the source of their news, The press, though, one of the pillars of a democratic society, should exercise its role, with the fullest sense of responsibility.

However, The Hon’ble Supreme Court observed in Union of India v/s Association for Democratic Reforms, “One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. 

• Right to exhibit Films:

Media and film Industry are regarded to be mediums of communications, and both are deemed to be at the same level of protection as far as fundamental freedoms of expression and speech are concerned.” However, neither of these mediums is absolute, and appropriate limitations can be placed. The cinematograph act 1952, was specifically developed to address this issue in India. The Act establishes a ‘Central Board of Film Certification’ as a regulating agency in India, with the authority to grant certifications to film producers.

• In K.A. Abbas v. Union of India, the constitutionality of censorship under the 1952 Act along with the Rules under it was challenged. But the Supreme Court upheld the constitutionality within the ambit of Article 19(2) and added that films have to be treated separately from other forms of art and expression because a motion picture is ‘able to stir up emotions more deeply than any other product of art’. However, at the same time it cautioned that it should be ‘in the interests of society’
• Rangarajan vs. P. Jagjivan Ram: In this case, the decision of the Madras High Court was challenged for revoking the ‘U-Certificate’ issued to a Tamil film called Ore Oru Gramathile (In One Village). As the film criticized the reservation policy of the Tamil Nadu Government, it was held that the reaction to the film in Tamil Nadu is bound to be volatile[24]. But the Supreme Court overturned the High Court decision while upholding the freedom of speech and expression. In doing so, the Court did acknowledge to have a compromise between the interest of freedom of expression and social interests. 

The Ministry of Information and Broadcasting recently announced the Cinematograph (Amendment) Bill 2021. Recently The Tandav series was targeted and blamed for “misrepresenting” Hindu gods and hurting the religious sentiments which further led to a plethora of FIRs being filed. The present amended bill could be seen as a direct result of this controversy. 

Current provisions of the Act:

• The Central Board of Film Certification (CBFC) grants certification to films if they meet all of the criteria mentioned in section 5 A of the act. 
• The CBFC can reject a film if it is against “the interests of the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence ( Section 5(B)) 
• Section 5B also empowers the union government to issue directions to the authority who grants certificates to the films. Using this power, sometimes the central government gives unreasonable direction. Ex:- Anti social activities should not be shown, dual meaning words should not be used. 

 New provisions added in the Bill: 

• The new provisions include a jail term extending up to three years for piracy, and a fine of not less than ₹3 lakh. 
• The draft amendment bill seeks to vest the union government with revisionary powers to review a film after it has been given a certificate by the CBFC. (Adding subsection to section 6 (1)).
• The categories for classification of films would now include U, or universal, U/A 7+ , U/A 13+, and U/A 16+, besides an A rating for content restricted to adults. This is in line with new IT rules 2021. 
• The draft bill proposes to insert section 6AA which prohibits unauthorised recording. According to Section 6AA, “Notwithstanding any law for the time being in force, no person shall, without the written authorisation of the author, be permitted to us. 

Concerns:

• Government as Super Censor: Revisional powers of Union govt. will effectively make it supreme power over cinema exhibition in the country 
• Freedom of Speech: The encroachment of the central government on creative independence, in mandating what films can be produced and consumed, potentially endangering freedom of expression and weakens the scope of a mature democracy. 
• Increasing Regulatory role of Govt.: The Cinematograph (Amendment Bill) 2021, subsequent restrictions on OTT platforms and the abolishment of the FCAT only add further fuel to the fire. 

• Not a broken system: The Central Board of Film Certification (CBFC) has a robust mechanism for film certification and there is no need to fix something that is not broken. 
• Public Consultation: The government has not provided enough time (only 14 days) for meaningful consultation and the proposed changes ignore suggestions of reports by two committees of experts on CBFC reform. 

Freedom is not Absolute-Subject to Reasonable Restrictions

It has been realised that in any modern State, freedoms cannot be guaranteed in absolute terms and cannot be uncontrolled. For, an organised society is a pre-condition for civil liberties. While, absolute power results in tyranny, absolute freedoms, lead to ruin and anarchy. Patanjali Shastri, J. in A.K. Gopalan vs State of Madras, observed: Man as a rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals.

Article 19 (2) of Indian Constitution empowers the State to instil reasonable restrictions on the following grounds:

• Security of the State
• Friendly Relation with Foreign States
• Public Order
• Decency and morality
• Contempt of court
• Defamation
• Incitement to offence
• Integrity and sovereignty of India

Security of State

In PUCL vs UOI, Petition has been filed by PUCL under Article 32 regarding phone tapping. The validity of Section 5(2) was challenged in this case. Section 5(2) states the essential elements which need to be fulfilled for the application of the Section is in the interest of public safety and any occurrence of public safety. The government has no right to exercise their power in the said Section if any of these two conditions are not fulfilled. Telephone tapping is violating Article 19 (1) of the Indian Constitution, until and unless it comes under the grounds of restrictions under Article 19 (2). 

Sovereignty and Integrity of India

This ground was added to Article 19 (2) by the Constitution (16th Amendment) Act, 1963, as it is the foremost duty to maintain the sovereignty and integrity of India. This imposes a restriction on freedom of speech and expression and does not permit anyone to challenge the sovereignty of India. It restricts everyone from saying something causing threat to the integrity of India.

Friendly relations with Foreign States

A state can impose a restriction on freedom of speech and expression if it affects the friendly relations with other States. It was added to the constitution of India by the 1^st amendment act 1951. It is to be noted that no other constitution in the world has a similar provision in it. 

Public Order

• The Constitution (1st Amendment), Act, 1951 also added this ground to the constitution. This ground was added by the Constitution (First Amendment) Act, 1951, as a sequel to Romesh Thaper case,” wherein the Apex Court rejected the contention that public order was covered by the expression Security of State. The Court held that the concept of “public order” was wider than “security of the State”.
• The test for determining whether an act affects law and order or public order is to see whether the act leads to the disturbance of the current life of the community, or whether the act affects merely an individual, the tranquillity of the society being undisturbed Public order implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life.” It thus includes public safety. Public safety means the safety of the community the external and internal dangers. Thus, creating internal disorder or rebellion would affect public order and public safety. However, mere criticism of the Government or its policy does not, necessarily, disturb public order

Decency and Morality

The words decency and morality are defined in section 292-294 of IPC.. It empowers the government to put certain restrictions on freedom of speech and expression under this. These sections of IPC restrict the distribution or sale of obscene books etc. in public.

Shreya Singhal case:

• Section 66 A gave the government power to arrest and imprison an individual for allegedly “offensive and menacing” online posts, and was passed without discussion in Parliament.
• Section 66A empowered police to make arrests, on the subject whatever they could construe as “offensive” or “menacing” or for the purposes of causing annoyance, inconvenience, etc. It prescribed the punishment for sending messages through a computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail.
• Supreme Court: Every term employed has a hazy connotation, the court ruled. What might offend one person might not offend another. The interpretation was deemed to be subjective as a result. Because 66A violates the right to freedom of speech and expression, the court ruled that the justifications do not cover it for reasonable limitations provided by Article 19. (2). The court ruled that it is constitutionally valid to prohibit access to material for the general public under Section 69A of the IT Act.

Contempt of court: The right to freedom of speech and expressions don’t allow anyone to contempt of court. Reasonable restriction can be imposed on freedom of speech and expression. Contempt of court is defined in section 2 of Contempt of Courts Act, 1971. It covers both civil contempt and criminal contempt as well.

Defamation

Defamation as the meaning of the word suggests is an injury to the reputation of a person resulting from a statement which is false. A man’s reputation is treated as his property and if any person poses damage to property he is liable under the law, similarly, a person injuring the reputation of a person is also liable under the law.

• Defamation is both a criminal (which carries a prison sentence) and a civil offence (punishable through the award of damages) in India. The IPC codifies the criminal law on defamation, whereas defamation is penalised as a civil offence under the law of torts.
• Defamation is defined in Section 499, and the punishment is outlined in section 500. The offence of defamation is defined as any spoken, written, or visual statement about another person designed to damage that person’s reputation. The conduct of any person addressing any public issue or expressing comments on a public performance an example of exceptions to this rule, as well as any imputation of truth required for the public benefit.

Essentials of defamation:

• The statement must be defamatory, and the validity of the statement is determined by how the general public as a whole will perceive the subject of the statement.
• The statement must be about the plaintiff, and it must demonstrate that it is falsely disparaging them
• That assertion must be made public

Why is defamation a crime? 

Reputation is an asset to each and every one. Any damage to such asset can be legally dealt with. Defamation laws have been enacted to prevent person maliciously using their right to freedom of speech and expression. The Indian law has rightly not made any distinction between libel and slander. Otherwise there could have been chances for committing slander and escaping from the laws that there is no written publication of matter.

Why defamation should remain a criminal offence?

Arguments ‘In favor’:

• Anonymity provided by Internet: Since there is no mechanism to censor the Internet from within, online defamation could only be adequately countered by retaining defamation as a criminal offence.
• Article 21: Also, criminalization of defamation is part of the state’s “compelling interest” to protect the right to dignity and good reputation of its citizens.
• Changes have been made from time to time: Sections 499 and 500 have 10 exceptions. These exceptions clearly exclude from its ambit any speech that is truthful, made in good faith and/or is for public good.

Arguments ‘Against’:

• Against the global trend: Many countries worldwide are in favour of treating defamation as a civil wrong, not as a criminal offence. Also, in 2011, the Human Rights Committee of the International Covenant on Civil and Political Rights called upon states to abolish criminal defamation, noting that it intimidates citizens and makes them shy away from exposing wrongdoing.
• Misuse by “Influential”: The misuse of law as an instrument of harassment is also pervasive in India. 
• Often, the prosecutor’s complaint is taken at face value by courts, which send out routine notices for the appearance of defendants without any preliminary examination whether the offending comments or reports come under one of the exceptions spelt out in Section 499. Thus, the process itself becomes the punishment.
• Criminal defamation has a pernicious effect on society: for instance, the state uses it as a means to coerce the media and political opponents into adopting self-censorship and unwarranted self-restraint. The law can also be used by groups or sections claiming to have been hurt or insulted and abuse the process by initiating multiple proceedings in different places.
• Public order concerns taken care by other sections: Defamatory acts that may harm public order are covered by Sections 124, 153 and 153A, and so criminal defamation does not serve any overarching public interest. Even though Section 499 provides safeguards by means of exceptions, the threat of criminal prosecution is in itself unreasonable and excessive.

Incitement to an Offence: This ground was added to Article 19(2) by the Constitution (First Amendment) Act, 1951. It has been held that “incitement to an offence” did not refer to “incitement to break a law”. Thus, an incitement to a breach of every civil law is not necessarily contemplated by Article 19(2). However, the freedom does not include the right to speak either about the implication or involvement of the accused, in any crime, particularly, in the sensational crimes, either in the form of opinion/views or agitations.

Sovereignty and Integrity of India: This ground was added to Article 19(2) by the Constitution (Sixteenth Amendment) Act, 1963. The purpose is to guard the freedom of speech and expression from being used to assail the sovereignty and territorial integrity of the country.

Tests for Restrictions to be Imposed on the Freedoms (Article 19(2) to 19(6)]

“Proportionally test” given in Anuradha Bhasin case:
Facts of the case: The District Magistrate (DM) of Jammu and Kashmir imposed restrictions under section 144 restricting the public gathering and movement apprehending breach of peace and tranquillity in the state. Movements of journalists were restricted and this was challenged under article 19 of Indian Constitution which guarantees freedom of speech and expression and freedom to carry any trade or occupation. Also the legality of shutting down the internet connection and restricting movements in the State of Jammu and Kashmir was challenged in the Hon. Supreme Court of India under article 32 of the Constitution of India.

Legitimate action: It requires the state to show the Court that the basic aim that the restriction seeks to achieve is legitimate.

Least restrictive: The state must demonstrate that it has chosen the least restrictive measure possible to achieve its purported objective.
A rational nexus: The state must establish that there exists a rational nexus between the limitation imposed and its purported aim. 

Technology and doctrine of proportionality
Technology does not have any statutory basis.
Benefits is outweighing the impact or not, cannot be said with certainty.
There should be strong data protection law before implementing this technology.

Freedom of Assembly [Article 19 (1)(b) & 19(3)]

Article 19(1)(b) guarantees to all citizens “right to assemble peaceably and without arms”. Clause (3) of Article 19 powers the State to impose reasonable restrictions on the right to assemble, in the interests of “the sovereignty and integrity of India” or “public order”: The ground “sovereignty and integrity of India” was inserted by the Constitution (16th Amendment) Act, 1963.

Scope of Right to Assembly:

• The “right of assembly” guaranteed by Article 19(1)(b) is a corollary of be right to freedom of speech and expression guaranteed under Article 19(1)(a), for, the very purpose of holding an assembly is, to hold consultations, express one’s views, in respect of public affairs. It educates the public in the formation of opinion on religious, political, economic or social problems the society.
• The right of assembly thus includes the right to hold public meeting and to take out processions. It also includes the right to hold demonstrations. Article 19(1)(b) has been held to cover the right to hold hunger strike, long as it is assured to be peaceful without arms and not against any individual or group/community.

Reasonable Restrictions on Freedom of Assembly

The right to hold assembly conferred by Article 19(1)(b) is, however, not absolute. It is subjected to the following limitations:

• The assembly must be peaceful
• It must be unarmed; and
• The State may impose reasonable restrictions under Clause (3) of Article 19 in the interests of Public Order or Sovereignty and integrity of India.

Freedom to form Association OR Union OR Cooperative Societies [Article 19 (1) © & Article 19 (4)]:

• Sub-clause (c) of Clause (1) of Article 19 guarantees to the citizens of India the freedom to form associations or unions or cooperative societies”. Article 19(4) provides that the State may impose reasonable restrictions on the exercise of this freedom in the interests of “public order”, “morality” or The sovereignty and integrity of India”. The ground of “the sovereignty and integrity of India” was inserted in Article 19(4) by the Constitution (Sixteenth Amendment) Act, 1963
• The right to form association may be said to be a corollary of the right to free speech contained in Article 19(1)(a). This freedom is as essential to democracy as the free discussion” or the freedom to meet for consultation with others.

Scope:

• An association means “a collection of persons who have joined together for a certain object, which may be for the benefit of the members or the improvement, welfare or advantage of the public or some scientific, charitable or similar purpose”. It is a term of widest connotation. 
• Therefore, the right to form associations or unions guaranteed by Article 19(1)(c) includes the right to form companies, societies, partnership firms, trade unions, clubs. political parties and the like body of persons.
• The term “form” in Article 19(1)(c) cannot be restricted to only to the extent of registration of the association/union, but include establishment, administration and functioning of the same.

Freedom Of Movement [Articles 19(1)(d), 19(1)(e) & 19(5)]

Freedom of Movement (Article 19(1)(d)]: Clause (1) (d) of Article 19 guarantees to every citizen of India the right to move freely throughout the territory of India.”

Scope of Article 19(1)(d): The right to move freely throughout the territory of India means the right of locomotion” which connotes the right to move wherever one likes, whenever one likes, and however one likes.

Article 19(1)(d) guarantees the right to move freely not merely from one State to another State, but also from one place to another, within the same State. The right is not absolute in the sense that Clause 5 of Article 19 enables the State to impose reasonable restrictions on the freedom on the following grounds-

• in the interest of general public
• For the protection of the interests of any Scheduled Tribe

Recent Observation: 

• The provisions for providing the power of externment to the concerned executive authorities can be found in many statutes such as The Maharashtra Police Act (MP 1951), Punjab Security of State Act 1953, and Assam Maintenance of Public Order Act 1947, Karnataka Police Act. 
• The pandemic has brought many restrictions in our ordinary life. From restricting our movement via imposed lockdowns to freedom of expression and assembly. Public gatherings, restaurants, malls, etc. were put to close, especially during the early period of the pandemic. 
• Restriction on freedom of movement is put by the order passed by the government under Section 144 of CrPC along with the Epidemic Disease. 

Kharak Singh vs. The State Of U. P. & Others: In this case, unreasonable surveillance and domiciliary visits by police not authorized by any law and thus held to be violative of the right to freedom of movement. The Court observed that even psychological restraint of freedom of movement is violative of this Article. 

Freedom of Residence: Article 19(1)(e) guarantees to every citizen of India, the right to reside and settle in any part of the territory of India. This right is subjected to reasonable restrictions which may be imposed by the State, by law, under Article 19(5), (1) in the interests of general public; or (2) for the protection of the interests of any Scheduled Tribe. 

Articles 19(1)(d) and 19(1)(e) are Complementary: Broadly speaking, the two rights contained in Articles 19(1)(d) and 19(1)(e) are parts of the same right and are complementary and often go together. Most of the cases considered under Article 19(d) are relevant to Article 19(e) also. The two rights are, therefore, discussed together.

Object of Articles 19(1)(d) & 19(1)(e) The object behind the guarantee contained in Articles 19(1)(d) and

19(1)(e) is to make Indian citizens national minded. It is to put an end to petty and parochial considerations. These provisions have thus removed all internal barriers within the territory of India or any of its parts. The right to move freely or to reside and settle in any part of India, thus, underlines the concept that India is one unit so far as the citizens are concerned. These provisions are thus complementary to Article 5 which provides a single citizenship

Freedom Of Profession, Occupation, Trade And Business [Articles 19(1)(g) & 19 (6)] 

Sub-clause (g) of Clause (1) of Article 19 guarantees to every citizen the right “to practise any profession, or to carry on any occupation, trade or business”. The right is subjected to the provisions of Clause (6) of Article 19, 

Profession, Trade, Business, Occupation-Defined:

• The term “occupation” means some activity by which a person is occupied or engaged. It would be an activity of a person undertaken as a means of livelihood or a mission of life. For instance, a journalist has fundamental right to carry on his or her occupation under Article 19(1)(g). It includes “profession”, “trade” or “business”. 
• The term “profession” has been interpreted to mean an occupation requiring the exercise of intellectual skill, often coupled with manual skill. 
• The term “business” means any activity involving the production, distribution and consumption of wealth and the production and availability of material services.
• Trade” is an activity concerning the sale and purchase of goods. 

Scope

No Right to Carry On Business or Trade in Liquor: 

The Court said that citizen had no fundamental right to trade in activities which were immoral and criminal and in articles or goods which were obnoxious and injurious to health, safety and welfare of general public. That, the State had power to prohibit the manufacture, sale, possession, distribution and consumption of liquors for the reason that it was a dangerous article of consumption and also because the prohibition contained in the Directive Principle under Article 47 and it has been ruled that there was no fundamental right under Article 19(1)(g) to carry on trade or business in intoxicating liquors.

Dancing as a Profession:

Supreme Court in State of Maharashtra vs. Indian Hotel & Restaurants Assn.,” said that prohibition on dancing in bar placed by Section 31-A of the Bombay Police Act, 1951 violated Article 19(1)(g) The Act, 1951 had classified establishments into prohibited and exempted establishments on the basis of facilities it provided and on the basis of harm it caused to atmosphere. Classification so made on the basis of such invidious presumption, in the absence of any empirical data, showing that dancing in prohibited establishment necessarily led to depravity and corruption of public morals, was held not justified and, therefore, was struck down as violative of Articles 14&15.