+ab'lal arate . -tate of /aharashtra +ri +h'san 6s -tate of elhi 71$5") am*anti 8arang 6s 0nion of 9ndia :cel wear 6s 0nion of 9ndia 71$#$ - 25) :press newspaper 6s 0nion of 9ndia 71$(%) ;amdard awakhana 6s 0nion of 9ndia ;ari -ingh 8agra < rs. 6s 6s ,apil -ibal < rs ;arshaker 6s ep't* :c'se < Taation commissioner A9R 1$#5 - 1121 ;imat lal 6s olice commission case 9ndian epress newspaper 6s 0nion of 9ndia A9R 1$%2 - 3"5 9ndian epress newspaper 6s 6s 09 the co'rt held that 7A9R 1$(% - 515) 9ndian :press 8ewspapers pt ltd 6s 'nion of 9ndia 71$(5 9ndirect Ta ractitioners Assn. 6s R.,. =ain ,. ,rishnam'rthi 6s 0nion of 9ndia ,.A. Abbas 6s 0nion of 9ndia ,harak -ingh 6s The -tate of 0. . < thers on 1( ecember 1$%2 New York York Time Vs Sullivan Sullivan 376 US 254. 254. andharnath -ridhar Rangnekar 6s *. ommr. of olice.71$#3) Railwa* +oard 6s 8iranan -ingh A9R 71$%$) - $%%) Rangaraan 6s . =agian Ram 71$($)2 - 5#4 Romesh Thaper 6s -tate of /adras A9R 1$5" - -./. ,ala 6s 0niersit* of Raasthan -akal papers 6s 0nion of 9ndia 9 ndia A9R 1$(% -itaramachar*a . * 9nspector of -chool -tate of madras 6s 6.& Row T./.A T./.A ai fo'ndation 6s -tate of ,arnataka 7A9R 2""3 - 355) TATA ress ltd 6s /T8>7A9R 1$$5 - 243() 0nni ,rishnan 6s -tate of A.. A.. 7A9R 1$$3 - 21#( 6ishakha 6ishakha 6s state of Raasthan 7A9R 1$$# - 3"11) -h*am +ihari Tiwari 6s -tate of 0.. 0.. 71$$4)
ABSTACT Protection of certain rights regarding Freedom of Speech !AT"CLE19#
1$. rotection of certain rights regarding freedom of speech etc 71) All citi?ens shall hae the right 7a) to freedom of speech and epression@
4 7b) to assemble peaceabl* and witho't arms@ 7c) to form associations or 'nions@ 7d) to moe freel* thro'gho't the territor* of 9ndia@ 7e) to reside and settle in an* part of the territor* of 9ndia@ and 7g) to 7g) to practise an* profession or to carr* on an* occ'pation trade or b'siness 72) 8othing 72) 8othing in s'b cla'se 7a) of cla'se 7 1 ) shall affect the operation of an* eisting law or preent the -tate from making an* law in so far as s'ch law imposes reasonable restrictions re strictions on the eercise of the right conferred b* the said s'b cla'se in the interests of the soereignt* and integrit* of 9ndia the sec'rit* of the -tate friendl* relations relations with foreign -tates p'blic order decenc* or moralit* or in relation to contempt of co'rt defamation or incitement to an offence 73) 8othing 73) 8othing in s'b cla'se 7b) of the said cla'se shall affect the operation of an* eisting law in so far as it imposes or preent the -tate from making an* law imposing in the interests of the soereignt* and integrit* of 9ndia or p'blic order reasonable restrictions on the eercise of the right conferred b* the said s'b cla'se 74) 8othing 74) 8othing in s'b cla'se 7c) of the said cla'se shall affect the operation of an* eisting law in so far as it imposes or preent the -tate from making an* law imposing in the interests of the soereignt* and integrit* of 9ndia or p'blic p'blic order or moralit* moralit* reasonable reasonable restrictions restrictions on the eercise of the right conferred b* the said s'b cla'se 75) 8othing 75) 8othing in s'b cla'ses 7d) and 7e) of the said cla'se shall affect the operation of an* eisting law in so far as it imposes or preent the -tate from making an* law imposing reasonable restrictions on the eercise of an* of the rights conferred b* the said s'b cla'ses either in the interests of the general p'blic or for the protection of the interests of an* -ched'led Tribe 7%) 8othing 7%) 8othing in s'b cla'se 7g) of the said cla'se shall affect the operation of an* eisting law in so far as it imposes or preent the -tate from making an* law imposing in the interests of the general p'blic reasonable restrictions on the eercise of the right conferred b* the said s'b cla'se and in partic'lar nothing in the said s'b cla'se shall affect the operation of an* eisting law in so far as it relates to or preent the -tate from making an* law relating to !i# the professional or technical 'alifications necessar* for practising an* profession or carr*ing carr*ing on an* occ'pation occ'pation trade or b'siness b'siness or !ii# the carr*ing on b* the -tate or b* a corporation owned or controlled b* the -tate of an* trade b'siness ind'str* or serice whether to the ecl'sion complete or partial of citi?ens or otherwise .
FEE$O%S NOT ABSOL&TE ' S&B(ECT TO EASONABLE EST"CT"ONS Reasonable restriction means intelligent care and disc'ssion that the restriction is not be*ond what is re'ired for p'blic interest. 9t sho'ld not be arbitrar* and ecessie. F'rther the restriction can onl* be imposed b* law and not b* eec'tie or departmental decision. Test of reasona)le restrictions !-panning seeral cases - has laid down the following g'idelines B
5 1. 9t is the co'rts co'rts and not the legisla legislat'r t'ree that will decide decide whethe whetherr a law is reasonab reasonable le or not. 2. Reasonable Reasonable means means that the law law is not arbitrar* arbitrar* and and the restriction restriction is not be*ond be*ond what what is re'ired in p'blic interest. The time and d'ration of the restriction cannot be 'nlimited. 3. There is no fied fied standard standard for reasona reasonableness bleness.. :ach case case m'st be decided decided on its its own merits. 4. The restrict restriction ion m'st m'st be reasona reasonable ble from s'bsta s'bstantia ntiati tiee as well as proced proced'ral 'ral stand stand point. 5. Restrictions Restrictions imposed imposed d'e d'e to implementatio implementation n of irectie irectie rinciples rinciples ma* deemed deemed to be be reasonable. %. The test test of reasonabilit reasonabilit* * m'st be obectie obectie in the sense sense that it does does not matter what what a ='dge or o'rt thinks what is reasonable b't what a normal reasonable person wo'ld think. #. The restric restrictio tion n m'st hae a relation relation to the obect obect that is so'ght so'ght thro'gh thro'gh the law and m'st not be ecessie. (. 9t is the reasonabl reasonablene eness ss of the restricti restriction on that a co'nt co'nt has to determi determine ne and not the reasonableness of the law itself. $. Restric Restrictio tion n ma* amo'n amo'ntt to prohib prohibiti ition. on.
FEE$O% OF SPEEC* AN$ E+PESS"ON AT"CLES 19!1# !A# , 19!-#
%eaning and scope Article 1$71) 7a) of 9ndian onstit'tion sa*s that all citi?ens hae the right to freedom of speech and epressionFreedom of speech and epression is the most basic of all freedoms granted to the citi?ens of 9ndia. = atanali -hastri has said in the case of omesh Thaper s State of %adras 1 that freedom of speech and that of the press la* at the fo'ndation of a democratic societ* for witho't free political disc'ssions no p'blic ed'cation is possible which which is so import important ant for the proper proper f'ncti f'nctioni oning ng of the got. got. Freedo Freedom m of -peech and epression means the right to epress oneCs own conictions and opinions freel* b* words of mo'th writing printing pict'res or an* other mode. 9t th's incl'des the epression of oneCs 1 A9R 1$5" - 124
% idea thro'gh an* comm'nicable medi'm or isible representation s'ch as gest're signs and the like. Freedom of speech wo'ld amo'nt to nothing if it were not possible to propagate the ideas. Th's the freedom of p'blication and press is also coered 'nder freedom of speech. Free propagation of ideas is the necessar* obectie and this ma* be done on the platform or thro'gh the press. This propagation of ideas is sec'red b* freedom of circ'lation. >ibert* of circ' circ'lat latio ion n is essen essenti tial al to that that freed freedom om as the the libe libert* rt* of p'bl p'blica icatio tion. n. 9nde 9ndeed ed with witho' o'tt circ'lation the p'blication wo'ld be of little al'e. The freedom of speech and epression incl'des libert* to propagate not oneCs iews onl*. 9t also incl'des the right to propagate or p'blish the iews of other people@ otherwise this freedom wo'ld not incl'de the freedom of press. Freedom of exression exression !as four "road "road se#ial uroses $o serveB serveB 1) 9t helps helps an indiid'al indiid'al to attain attain self!f'lfillm self!f'lfillment. ent. 2) 9t assist assistss in the the disco discoer* er* of tr'th tr'th.. 3) 9t strengthens strengthens the capacit* capacit* of an indiid indiid'al 'al in participati participating ng in decision!ma decision!making. king. 4) 9t proides proides a mechanism mechanism b* which it it wo'ld be possible possible to establish establish a reasonab reasonable le balance between stabilit* and social change. 5) All members members of societ* societ* wo'ld wo'ld be able able to form their their own beliefs beliefs and and comm'nicate comm'nicate them freel* to others. 9n s'm the f'ndamental principle inoled here is the peopleCs right to know. Freedom of speech and epression sho'ld therefore receie genero's s'pport from all those who beliee in the participation of people in the administration. 9t is on acco'nt of this special interest which which socie societ* t* has has in the the freed freedom om of spee speech ch and and epr epress essio ion n that that the the appr approa oach ch of the the &oe &oern rnme ment nt sho' sho'ld ld be more more ca'tio ca'tio's 's whil whilee le* le*in ing g tae taess on matte matters rs of conce concern rnin ing g newspaper ind'str* than while le*ing taes on other matters. :plaining the scope of freedom of speech and epression -'preme o'rt has said that the words Dfreedom of speech and epressionD m'st be broadl* constr'cted to incl'de the freedom to circ'late oneCs iews b* words of mo'th or in writing or thro'gh a'diois'al instr'mentalities. 9t therefore incl'des the the righ rightt to prop propag agat atee oneC oneCss iew iewss thro thro'g 'gh h the the prin printt medi mediaa or thro thro'g 'gh h an* an* othe other r comm'n comm'nicat ication ion channe channell e.g. e.g. the radio radio and the teleisi teleision. on. :er* :er* citi?en citi?en of this this co'ntr* co'ntr* therefo therefore re has the right right to air his or their their iews iews thro'gh thro'gh the printi printing ng and or the electronic media media s'bect s'bect of co'rse co'rse to permis permissibl siblee restrict restriction ionss impose imposed d 'nder 'nder Articl Articlee 1$72)o 1$72)off the onstit'tion. Freedom to air oneCs iew is the lifeline of an* democratic instit'tion and an* attempt to stifle s'ffocate or gag this right wo'ld so'nd a death knell to democrac* and wo'ld help 'sher in a'tocrac* or dictatorship. The modern comm'nication medi'ms adance p'blic interest b* informing the p'blic of the eents and deelopment that hae taken place and thereb* ed'cating the oters a role considered significant for the ibrant f'nctioning of a democrac*. Therefore in an* set'p more so in a democratic set'p like o'rs dissemination of news and iews for pop'lar cons'mption is a m'st and an* attempt to den* the same m'st be frowne frowned d 'pon 'pon 'nless 'nless it falls falls within within the mischie mischieff of Article Article 1$72) of the onstit't onstit'tion ion.. The ario's comm'nication channels are great p're*ors of news and iews and make
# considerable impact on the minds of readers and iewers and o'r known to mo'ld p'blic opinio opinion n on itals itals iss'es iss'es of nation national al import importanc ance. e. The The freedo freedom m of speech speech and epress epression ion incl'des freedom of circ'lation and propagation of ideas and therefore the right etends to the citi?en to 'se the media to answer the criticism leeled against the iews propagated b* him. :er* free citi?en has 'ndo'bted right to la* what sentiments he pleases. This freedom m'st howeer be eercised with circ'mspection and care m'st be taken not to trench on the rights of other citi?ens or to eopardise p'blic interest. NE/ $"%ENS"ONS OF FEE$O% OF SPEEC* AN$ E+PESS"ON
s cope 0oernment has no monopol2 on electronic electronic media B The -'preme o'rt widened the scope and etent of the right to freedom of speech and epression and held that the goernment has no monopol* on electronic media and a citi?en has 'nder Art. 1$71)7a) a right to telecast and broadcast to the iewersElisteners thro'gh electronic media te leision and radio an* important eent. The goernment goernment can impose impose restrictions restrictions on s'ch a right onl* on gro'nds gro'nds specified in cla'se 72) of Art. 1$ and not on an* other gro'nd. A citi?en has f'ndamental right to 'se the best means of imparting and receiing comm'nication and as s'ch hae an access to telecasting for the p'rpose. Commercial Adertisements AdertisementsB The co'rt held that commercial speech 7adertisement) is a part of the freedom of speech and epression. The co'rt howeer made it clear that the goernm goernment ent co'ld co'ld reg'la reg'late te the commer commercial cial aderti adertisem sement ents s which which are decept deceptie ie 'nfair 'nfair misleading and 'ntr'thf'l. :amined from another angle the o'rt said that the p'blic at large has a right to receie the Dommercial -peechD. Art. 1$71)7a) of the constit'tion not onl* g'aranteed freedom of speech and epression it also protects the right of an indiid'al to listen read and receie the said speech. Telephone Tapping Telephone Tapping B 9nasion on right to priac* B Telephone tapping iolates Art. 1$71)7a) 'nless it comes within gro'nds of restriction res triction 'nder Art. 1$72). 0nder the g'idelines laid down b* the o'rt the ;ome -ecretar* of the center and state goernments can onl* iss'e an order for telephone tapping. The order is s'bect to reiew b* a higher power reiew committee and the period for telephone tapping cannot eceed two months 'nless approed b* the reiew a'thorit*.
T!e freedom of see#! and exression #an "e s$udied s $udied under $wo !eads% &' Free Freedo dom m of re ress ss 2' (i)! (i)!$$ $o $o inf infor orma ma$i $ion on FEE$O% OF PESS "N $E%OCAC3 G 9t is the primar* d't* of all the national co'rts to 'phold the freedom of the press and inalidate all laws and administratie actions which interfere with s'ch freedoms against constit'tional mandateH obsered the -'preme o'rt in "ndian e4press ne5spaper s &nion of "ndia -6 Ihile highlighting the importance
2 A9R 1$%2 - 3"5
( of the freedom of the press in a democrac*. To arrest the malpractices of interfering with the free flow of information information the democratic constit'tion constit'tion all oer the world proided g'arantee g'arantee of freedom freedom of speech and epression 'nderl*ing 'nderl*ing the circ'mstances circ'mstances 'nder which restrictions restrictions are imposed. Freedom Freedom of press in India and U.S.A U.S.A – there is no proision in the constit'tion of 9ndia proiding g'arantee for the freedom of the press b't the -'preme o'rt in Sa7al papers s &nion of "ndia8 widel* interpreted the scope of art. 1$71)7a) to incl'de within its fold the freedom of the press which is regarded as a Jspecies of which freedom of epression is a gen'sH. Th's in 9ndia the freedom of press flows from the freedom of speech and epression and eno* no higher priilege than the freedom of speech and epression.
+'t the first amendment to the constit'tion of the 0-A protected the freedom of the press and in the 0-A the press f'nctions as a watch!dog oerseeing generall* the f'nctions of the eec'ti eec'tie e legislat' legislat're re and the 'dici 'diciar* ar* and to critici? critici?ee the ab'se of the power b* the goernmental agencies New agencies New York York Time Time Vs Sullivan 376 US 254. 254. the 9ndian onstit'tion does not 'se the epression Jfreedom of Freedom of Circulation – the pressK in art 1$ b't it is incl'ded in one of g'arantees in art 1$71)7a) of the constit'tion. E4press Ne5spaper Ne5spaperss pt ltd s nion of "ndia :!19;<# ='stice 6enkatar 6enkataramiah amiah in "ndian E4press obsered that the freedom of press is one of the items aro'nd which the greatest and betterest of consti constit'ti t'tion onal al str'gg str'ggles les hae hae been been waged waged an all co'ntr co'ntries ies where where liberal liberal consti constit'ti t'tion on preails. The effect effect of art 2$ on the freedom freedom of press press was anal*s anal*sed ed b* the ape co'rt co'rt in E4press < ne5spaper s s &nion of "ndia ! where two earlier decisions of the co'rt in omesh Thaper s state of %adras6 and Bri= Bhsan s State of $elhi > where the goernment tried to p't a ban on the circ'lation of newspaper . The co'rt while interpreting the scope of art 1$71)7a) 1$71)7a) of the constit't constit'tion ion held that Gthe freedom freedom of speech speech and epression epression incl'des incl'des freedom freedom of propagation of ideas which freedom was ens'red b* the freedom of circ'lation and that the libert* of press consisted in allowing to preio's restraint 'pon the p'blication. 9t was f'rther obser obsere ed d that that the the f'nd f'ndam amen ental tal freed freedom om of spee speech ch and and epr epress essio ion n ensh enshri rine ned d in o'r o'r constit'tion was based on the proision to the First Amendment of the constit'tion of 0-A. Also there wo'ld be iolation of the libert * of press not onl* when there is a direct ban on the circ'lation of a p'blication b't also when some action on the part of the goernment adersel* affects the p'blicationH. 3 A9R 1$(% 4 A9R1$(5 5 A9R 1$(% % A9R 1$5"
$ Right to Privacy –publication of autobiography of a condemned prisonerprior prisonerprior restraint the 'estion concerning the freedom of press is a is the right of the citi?en and the scope of prior restraint b* the goernment and the parameters of the right of the press to critici?e critici ?e was considered considered b* the -'preme o'rt in S. angara=an s P. (ag=ian am ?. the Facts of the case case were were that that the the petit petitio ione ners rs who who were were the the p'bl p'blish isher erss of a Tamil mil week weekl* l* maga maga?i ?ine ne approached the -'preme o'rt to restrain the goernment from interfering with their right of p'blication of the a'tobiograph* of the condemned person A'to -ankar. The -'preme o'rt *eld that the goernment or their officials hae no right to impose prior restraint 'pon the p'blication on the apprehension that the* ma* be defamed. defamed. The o'rt reasoned that G right to priac* is implicit in the right to life and libert * g'aranteed 'nder art 21 of the constit'tion. 9t is a right to be let alone. A citi?en has a right to safeg'ard priac* of his own his famil* marriage procreation motherhood child bearing and ed'cation amongst other matters and none can p'blish an*thing witho't his consent. +'t once the matter becomes part of p'blic record incl'ding the co'rtKs record the p'blication of the same wo'ld not iolate the right the right to priac* and it becomes a legitimate s'bect for comments b* the press and media.H
;oweer in the interest of decenc* an eception m'st be cared o't to this r'le. Right of press intervie! and photograph of undertrial prisoners conditions the press is entitled to eercise the freedom of speech and epression b* p'blishing a matter which does not inade the rights of other citi?ens and which does not iolate the soereignt* and integrit* of 9ndia the sec'rit* of state p'blic order decenc* and moralit*. The press m'st obtain the willingness of person so'ght to be interiewed and so!called right of press which is obtained on the basis of the permission wo'ld be s'bected to prohibitions from =ail /an'al. Should the "ournalist "ournalist reveal its source sourcethe ress o'ncil Act1$#( proides that it sho'ld not force a o'rnalist to reeal its so'rce. +'t the elhi ;igh o'rt in a case against The ioneer said that if the co'rt considered necessar* in the interest of 'stice the co'rt co'ld direct the o'rnalist to disclose its so'rce of information. "0*T TO "NFO%AT"ON Freedom of speech – right of voters# antecedents of candidates@ candidates @ the fo'ndation of a health* democrac* is to hae well!informed citi?ens!oters. The reason to hae right of information with regard to the antecedents of the candidate is that oter can 'dge and decide in whose fao'r he sho'ld cast his ote. 9t is oterKs discretion whether to ote in fao'r of an illiterate or literate candidate. 9t is his choice whether to elect a candidate against whom criminal cases for serio's or non!serio's charges were filed b't is ac'itted or discharged . For the first time the right to know abo't the candidate standing for election has been bro'ght within the sweep of article 1$71) 7a). There is no do'bt that b* doing so a new a new dimension has been gien dictated b* the need to improe and and refine the political process of election.
# A9R 1$($ - 5#4
1" The -'prem -'premee o'rt o'rt in Association for $emocratic eforms Case ; has *eld that article 1$71) 7a) which proides for freedom of speech and epression wo'ld coer in its fold right of the oter to know specified antecedents of a candidate who is contesting elections. Also Also in . rishnamrthi s &nion of "ndia 9 the nat're of Right to ote and contest elections !was *eld that it does not hae the stat's of f'ndamental rights ! The* are in the nat're nat're of legal legal rights rights which which can be control controlled led thro'g thro'gh h legisla legislati tiee means means ! onstit onstit'ti 'tion on empowers the :lection ommission to prepare electoral rolls for identif*ing the eligible oters in elections for >ok -abha and 6idhan -abha ! Right to ote is not an inherent right and cannot be claimed in an abstract sense !1$51 Act incl'des gro'nds that render persons ineligible from contesting elections. Th's there is no inherent right to contest elections since there are eplicit legislatie controls oer the same ! Representation of the eople Act 1$51. Th's it is a stat'tor* right. CO%%EC"AL A$ET"SE%ENTS "NCL&$E$
9n *amdard $a5a7hana s &nion of "ndia 16 it was held that *#ommer#ial adver$isemen$s+ were not incl'ded within the concept of freedom of speech and epression. 9n "ndian e4press ne5spaper s &O" 11 the cort held that all commercial adertisements co'ld not denied the protection of art 1$71)7a) merel* beca'se the* were iss'ed b* a b'sinessmen. Th's eplaining the effect of the combined reading of both the aboe cases the -'preme o'rt in TATA Press ltd s %TNL 1- *eld that Jcommercial speech co'ld not be denied the protection of art 1$71)7a) merel* beca'se beca 'se the* were iss'ed is s'ed b* b'sinessmen. 9n a democratic de mocratic societ* it was obsered that free flow of commercial information was indispensible. Pre censorship censorship of films – .A. A))as s &nion of "ndia18 Facts The petitioner made a doc'mentar* film called DA Tale of Fo'r itiesD which attempted to portra* the contrast between the life of the rich and the poor in the fo'r principal cities of the! co'ntr*. The film incl'ded certain shots of the red light district in +omba*.
11 Altho'gh the petitioner applied to the +oard of Film ensors for a L0C ertificate for 'nrestricted 'nrestricted ehibition ehibition of the film he was granted a certificate certificate onl* for ehibition ehibition restricted to ad'lts. n an appeal made to it b* the petitioner the entral &oernment iss'ed a direction on ='l* 3 1$%$ that a L'C ertificate ma* be granted proided certain specified c'ts were were made made in the the film film.. The The peti petitio tione nerr ther thereaf eafte terr fiel field d the the pres presen entt peti petitio tion n seeki seeking ng a declaration that the proisions of art 11 of the inematograph Act 1$52 together with the r'les prescribed b* the entral &oernment on Febr'ar* % 1$%" in the eercise of its powers 'nder s. 5!+ of the Act were 'n! constit'tional and oid@ he f'rther pra*ed that the direction dated ='l* 3 1$%$ sho'ld be 'ashed. The petitioner claimed that his f'ndamental tight of free speech and epression was denied b* the order of the entral &oernment and that he was entitled to a C0C ertificate for the film as of right. *eld 7i) ensorship of films incl'ding prior restraint is 'stified 'nder the onstit'tion.
9t has been almost 'niersall* recognised that the treatment of motion pict'res m'st be different from that of other forms of art and epression. The motion pict're is able to stir 'p emotions more deepl* than an* other prod'ct of art. 9ts effect partic'larl* on children and adolescents is er* great since their immat'rit* makes them more willingl* s'spend their disbelief than mat're men and women. The* also remember the action in the pict're and tr* to em'lat em'latee orE imitate imitate what what the* the* hae hae seen. seen. There Therefore fore classif classificat ication ion of films films into into two categories of C0C films and CAC films is a reasonable classification. 9t is also for this reason that motion pict're m'st be regarded differentl* from other forms of speech and epression. A person reading a book or other writing or hearing a speech or iewing a painting or sc'lpt're s c'lpt're is not so deepl* stirred as b* seeing a motion pict're. Therefore the treatment of the latter on a different footing is also a alid classification.H 0O&N$S OF EST"CT"ONS
9t is necessar* to maintain and presere freedom of speech and epression in a democrac* so also it is necessar* to place some restrictions on this freedom for the maintenance of social order beca'se no freedom can be absol'te or completel* 'nrestricted. Accordingl* 'nder Article 1$72) of the onstit'tion of 9ndia the -tate ma* make a law imposing Greasonable restrictionsH on the eercise of the right to freedom of speech and epression Gin the interest ofHi the p'blic on the following gro'ndsB la'se 72) of Article 1$ of 9ndian constit'tion contains the gro'nds on which restrictions on the freedom of speech and epression can be imposed 1) Secrit2 reasonable restrictions restrictions can be imposed imposed on fredom Secrit2 of of State B 0nder Article 1$72) reasonable of speech and epression in the interest of sec'rit* of -tate. The term Dsec'rit* of stateD refers onl* to serio's and aggraated forms of p'blic order e.g. rebellion waging war against the -tate ins'rrection and not ordinar* breaches of p'blic order and p'blic safet* e.g. 'nlawf'l assembl* riot affra*. Th's speeches or epression on the part of an indiid'al which incite to or enco'rage the commission of iolent crimes s'ch as m'rder are matters which wo'ld 'ndermine the sec'rit* of -tate.
12 2) Friendl2 relations 5ith foreign states B This gro'nd was added b* the constit'tion 7First Amendment) Act 1$51. The obect behind the proision is to prohibit 'nrestrained malicio's propaganda against a foreign friendl* state which ma* eopardise the maintenance of good relat relatio ions ns betw betwee een n 9ndi 9ndia a and and that that state state.. 8o simila similarr pro proisi ision on is prese present nt in an* othe other r onsti onstit't t'tion ion of the world world.. 9n 9ndia 9ndia the Foreig Foreign n Relatio Relations ns Act Act 7M99 of 1$32) 1$32) proid proides es p'nishment for libel b* 9ndian citi?ens against foreign dignitaries. 9nterest of friendl* relations with foreign -tates wo'ld not 'stif* the s'ppression of fair criticism of foreign polic* of the &oernment. 9t is to be noted that member of the commonwealth incl'ding akistan is not a Dforeign stateD for the p'rposes of this onstit'tion. The res'lt is that freedom of speech and epression cannot be restricted on the gro'nd that the matter is aderse to akistan. 3) P)lic OrderB This gro'nd was added b* the onstit'tion 7First Amendment) Act. C'blic orderC is an epression of wide connotation and signifies Dthat state of tran'ilit* which preails among the members of political societ* as a res'lt of internal reg'lations enforced b* the &oernment which the* hae established.D 'blic order is something more than ordinar* maintenance of law and order. C'blic orderC is s*non*mo's with p'blic peace safet* and tran'ilit*. The test for determining whether an act affects law and order or p'blic order is to see whether the act leads to the dist'rbances dist'rbances of the c'rrent of life of the comm'nit* so as to amo'nt amo'nt to a dist'rbance of the p'blic p'blic order or whether it affects merel* an indiid'al indiid'al being the tran'ilit* of the societ* 'ndist'rbed. An*thing that dist'rbs p'blic tran'ilit* or p'blic peace dist'rbs p'blic order. Th's comm'nal dist'rbances and strikes promoted with the sole obect of ca'sing 'nrest among workmen are offences against p'blic order. 'blic order th's implies absence of iolence and an orderl* state of affairs in which citi?ens can peacef'll* p'rs'e their normal aocation of life. lif e. 'blic order also als o incl'des p'blic safet*. saf et*. Th's creating internal disorder or rebellion wo'ld affect p'blic order and p'blic safet*. +'t mere criticism of goernment does not necessaril* dist'rb p'blic order. 9n its eternal aspect Cp'blic safet*C means protection of the co'ntr* from foreign aggression. 0nder p'blic order the -tate wo'ld been titled to preent propaganda for a state of war with 9ndia. 9 ndia. The words Cin the interest in terest of p'blic orderC incl'des not onl* s'ch 'tterances 'tteranc es as are directl* intended to lead to disorder b't also those that hae the tendenc* to lead to disorder. Th's a law p'nishing 'tterances made with the deliberate intention to h'rt the religio's feelings of an* class of persons is alid beca'se it imposes a restriction on the right of fr ee speech in the interest of p'blic order since s'ch speech or writing has the tendenc* tendenc* to create p'blic disorder disorder een if in some case those actiities ma* not act'all* lead to a breach of peace. +'t there m'st be reasonable and proper ne's or relationship between the restrictions and the achieements of p'blic order. 4) $ecenc2 $ecenc2 or moralit2 moralit2B The words Cmoralit* or decenc*C are words of wide meaning. -ections 2$2 to 2$4 of the 9ndian enal ode proide instances of restrictions on the freedom of speech and epression in the interest of decenc* or moralit*. These sections prohibit the sale or distrib'tion or ehibition of obscene words etc. in p'blic places. 8o fi standard is laid down till now as to what is moral and indecent. The standard of moralit* aries from time to time and from place to place.
13 5) Contempt of Cort B Restriction on the freedom of speech and epression can be imposed if it eceeds the reasonable and fair limit and amo'nts to contempt of co'rt. According to the -ection 2 Contempt of co'rtC ma* be either Cciil contemptC or Ccriminal contempt.C 9n a democratic co'ntr* ='diciar* pla*s er* important role. 9n s'ch sit'ation it becomes essential to respect s'ch instit'tion and its order. Th's restriction on the freedom of speech and epr epress essio ion n can be impo imposed sed if it ecee eceeds ds the the reaso reasona nabl blee and and fair fair limit limit and and amo' amo'nt ntss to contempt of co'rt. According to the -ection 2 Contempt of co'rtC ma* be either Cciil contemptC or Ccriminal contempt.C +'t now 9ndian contempt law was amended in 2""% to make Gtr'thH a defence. defence. ;oweer een after s'ch amendment amendment a person can be p'nished p'nished for the statement 'nless the* were made in p'blic p'blic interest. Again Again in "ndirect Ta4 Practitioners Assn. s .. (ain 1: it was held b* co'rt that GTr'th based on the facts sho'ld be allowed as a alid defence if co'rts are asked to decide contempt proceedings relating to contempt proceeding relating to a speech or an editorial or articleH. The 'alification is that s'ch defenc defencee sho'ld sho'ld not coer! coer!'p 'p to escape escape from from the conse conse'en 'ences ces of a deliber deliberate ate effort effort to scandali?e the co'rt. Also in a recent 'dgement in a case *ari Singh Singh Nagra Nagra , Ors. s apil Si)al , Ors. 1< Facts of case 9n a -o'enir p'blished b* a literar* gro'pEAssociation of law*ers practicing in -'preme o'rt ario's messages articles poems etc. were contrib'ted b* members of the +ar and the ;onCble ='dges. Respondent a -enior Adocate also sent a message to be p'blished in the -o'enir which epressed concern abo't the plight of 'nior members of the +ar and abo't the falling standards of legal fraternit*. The message was neither released to the press nor was the -o'enir made aailable for sale. 9t was circ'lated onl* to its members and other members of the +ar. Thereafter when respondent 8o. 1 filed his nomination for cont contest estin ing g the the post post of resi reside dent nt of -'pr -'prem emee o'r o'rtt +ar +ar Associ ssociati ation on a news news item item was was p'blished in the -'nda* -'nda* Times of 9ndia dail* wherein certain ecerpts of the message were reported reported which s'ggested s'ggested that the senior adocate adocate made frontal attack on the 'diciar* 'diciar*.. etitioner the practicing law*ers of 'nab and ;ar*ana ;igh o'rt filed criminal contempt of co'rt 'nder Article 215 of the onstit'tion of 9ndia against the three respondents alleging that that one one respo respond nden entt ente entered red into into a cons conspi pirac rac* * with with othe otherr two two resp respon onda dant ntss to brin bring g administration of 'stice into disrespect which amo'nted to deliberate interference in the administration of 'stice.
'dicial s*stem or the 'dges 'dges which hampers hampers the *eld !GAn* criticism abo't the 'dicial administratio administration n of 'stice or brings administratio administration n of 'stice into ridic'le m'st be preented. preented. The contempt of co'rt proceedings arise o't of that attempt. 8ational interest re'ires that all criticisms of the 'diciar* m'st be strictl* rational and sober and proceed from the highest moties witho't being colo'red b* an* partisan spirit or tactics. There is no manner of do'bt that that freedo freedom m of epres epressio sion n as contem contempla plated ted b* Articl Articlee 1$71)7 1$71)7a) a) of the onsti onstit't t'tion ion is aailable to the ress and to critici?e a 'dgment fairl* albeit fiercel* is no crime b't a 14 2"1" 6> ( - 2(1 15 A9R 2"1"
14 necessar* right. A fair and reasonable criticism of a 'dgment which is a p'blic doc'ment or which is a p'blic act of a ='dge concerned with administration of 'stice wo'ld not constit'te contempt. 9n fact s'ch fair and reasonable criticism m'st be enco'raged beca'se after all no one m'ch less ='dges can claim infallibilit*. The /essage eamined the eils preailing in the 'dicial s*stem and was written with an obect to achiee maintenance of p'rit* in the administration of 'stice.H
%) $efamation@ efamationB nesK freedom be it of an* t*pe m'st not affect the rep'tation or stat's another person. A person is known b* his rep'tation more than his wealth or an* thing else. onstit'tion considers it as gro'nd to p't restriction on freedom of speech. +asicall* a statement which in'res a manCs rep'tation amo'nts to defamation. efamation consists in eposing a man to hatred ridic'le or contempt. The ciil law in relating to defamation is still 'ncodified in 9ndia and s'bect to certain eceptions. "ncitemen mentt to an offenc offencee B This #) "ncite This gro' gro'nd nd was was also also adde added d b* the the cons constit tit't 'tio ion n 7Fir 7First st Amendment) Act 1$51. bio'sl* freedom of speech and epression cannot confer a right to incite people to commit offence. The word CoffenceC is defined as an* act or omission made p'nishable b* law for the time being in force. () Soereignt2 and integrit2 of "ndia ! To maintain soereignt* and integrit* of a state is prime d't* of goernment. Taking into it into acco'nt freedom of speech and epression can c an be restricted so as not to permit an* one to challenge soereignt* or to permit an* one to preach something which will res'lt in threat to integrit* of the co'ntr*. $) Sedition@ As 'nderstood b* :nglish law sedition embraces all those practices whether b* words or writing which are calc'lated to dist'rb the tran'ilit* of the -tate and lead ignorant person to s'bert the goernment. 9t sho'ld be noted that the sedition is not mentioned in cla'se 72) of Art. 1$ as one of the gro'nds on which restrictions on freedom of speech and epression ma* be imposed. FEE$O% TO ASSE%BLE AT 19!1# !B#
Art 1$71) 7b) g'arantees g'arantees to the citi?ens of 9ndia the right to assemble assemble peaceabl* peaceabl* and witho't arms. arms. 0nde 0nderr art.1 art.1$7 $71) 1)73 73) ) howe howee er r the the state state can can make make an* law law impo imposi sing ng reaso reasona nabl blee restrictions on the eercise of this right in the interest of p'blic order and soereignt* and integrit* of 9ndia. To some some etent there is common gro'nd between art 1$71) 7a) and art1$ 71) 7b). For eample demonstrations processions and meetings considered c onsidered 'nder art 1$71) 7a) also fall 'nder art 1$71) 7b) for a demonstration also amo'nts to an assembl* and therefore the same principles appl* 'nder both articles. The right to strike is not aailable 'nder either of these articles. (es$ri#$ions on freedom of assem"l, 1) Assembl* Assembl* sho'ld sho'ld not be be iolent iolent b't peacef'l. peacef'l. 2) 9t sho sho'l 'ld d be wit witho ho't 't arm armss
15 3) The p'bl p'blic ic order order has has to be be maintain maintained. ed. $eetings in government places ' this co'ld be well 'nderstood b* a case 'dgement in ail5a2 Board s Niran=an Singh 1>. The N'estion arose that whether an*one co'ld hold meetings in goernment premises or not een tho'gh the person is goernment emplo*O
The cort held that it is tr'e that the freedoms g'aranteed 'nder o'r onstit'tion are er* al'able freedoms and this o'rt wo'ld resist abridging the ambit of those freedoms ecept to the etent permitted permitted b* the onstit'tio onstit'tion. n. The fact that the citi?ens citi?ens of this co'ntr* hae hae freedom of speech freedom to assemble peaceabl* and freedom to form ! associations or 'nions does not mean that the* can eercise those those freedoms in whateer place the* please. The eercise of those freedoms will come to an end as soon as the Cright of some!one else to hold his propert* propert* interenes. interenes. -'ch a limitation limitation is inherent in the eercise eercise of those Crights. The alidit* of that limitation is not to be 'dged b* the tests prescribed b* -'b!Arts. 72) And 73) of Art. 1$. 9n other words the contents of the freedoms g'aranteed 'nder cls. 7a) 7b) and 7c) the onl* freedoms freedoms with which we are concerned concerned in this appeal do not incl'de incl'de the right to eercise them in the properties properties belonging belonging to others a citi?en of this co'ntr* in the eercise of his right 'nder cls. 7d) And 7e) of Art. 1$71) co'ld moe abo't freel* freel* in a p'bl p'blic ic!o !off ffice ice or een een resid residee ther theree 'nle 'nless ss there there eis eists ts some some law law impo imposi sing ng reasonable restrictions on the eercise of those rights.H Absolute ban on public meetings – in 9ndia citi?ens had a right to hold meetings in p'blic streets before the constit'tion s'bect to the control of appropriate a'thorit* regarding the time and place of the meeting and considerations considerations of p'blic p'blic order. 9n *imat lal s Police 1? commission case the co'rt held that the -tate cannot b* law abridge or take awa* the right of assembl* b* prohibiting assembl* on eer* 'blic -treet or p'blic place. The -tate can onl* make reg'lations in aid of the right of assembl* of each citi?en and can onl* impose reasonable restrictions in the interest of p'blic order. 9f the right to hold p'blic meetings flows from Art.1$ 71) 7b) and Art. 1$71) 7d) it is obio's that the -tate cannot impose 'nreasonable restrictions. 9t m'st be kept in mind that Art.1$ 71) 7b) read with Art.13 and protects citi?ens against -tate action. 9t has nothing to do with the right to assemble on priate streets or propert* witho't the consent of the owners or occ'piers of the priate propert*.
This o'rt in Ba)lal Parate . State of %aharashtra 2 rightl* obseredB DThe right of citi?ens to take o't processions or to hold p'blic meetings flows from right in Art. 1$71) 7b) to assemble peaceabl* and witho't arms and the right to moe an*where in the territor* of 9ndia.D FEE$O% TO FO% ASSOC"AT"ON@ AT 19!1# !C# AN$ 19!:#
1% A9R 1$%$ - $%% 1# A9R 1$#3
1% An association means Ga collection of persons who hae oined together for a certain obect which ma* be for the benefit of the members or the improement welfare or adantage of the memb members ers or the the impr impro oem emen ent t welfa welfare re or ada adant ntag agee of the the p'bl p'blic ic or some some scien scienti tific fic charita charitable ble or simila similarr p'rpos p'rposeH. eH. Artic Article le 1$71)7 1$71)7c) c) incl'd incl'des es the right right to form form compan companies ies societies partnership firms trade 'nions cl'bs political parties and the like bod* of persons. This freedom implies that seeral indiid'als can get together and form ol'ntar* admit in the association with common aims legitimate p'rpose and a comm'nit* of interests. The person who form the association hae the associational right to contin'e with the member with those other whom the* ol'ntaril* admit an association. An* state action directed to highack association b* taking it oer introd'cing officials in the management bod* of association association trading o't the member or restricting restricting the committees committees and bodies bodies constit'tio constit'tion n in accordance with the constit'tion of the association. Association of which citi?ens ma* be members members ma* be social academic creational creational religio's religio's c'lt'ral or professional professional ocational ocational or political. These ma* incl'de associations for of c'lt'ral actiities. Recognising the importance of the right of forming associations in a democratic societ* the co'rts co'rts hae not fao'red the esting of absol'te discretion in the eec'tie eec'tie to interfere interfere with this f'ndamental right. A discretion ested in a goernment official to prohibit formation of an association witho't proper safeg'ards has been held to be 'nconstit'tional. From $ime $o $ime $!e Sureme -our$ !as alwa,s "een $r,in) $o #larif, $!e ex$en$ of ri)!$ $o form asso#ia$ion easona)leness 19!:#
the -'pr -'prem emee o'r o'rtt decl declar ared ed the the pro prois isio ion n to be Stat Statee of madr madras as s .0 o5 o5 1; the 'nconstit'tional for the test to be declaring an association 'nlawf'l was Js'bectieK and the fact'al eistence of the gro'nds was not 'stifiable. The co'rt emphasi?ed that c'rtailing the right to form association was fra'ght with serio's potential reactions in religio's political and economic fields. Therefore the esting of power in the goernment to impose restriction on this right witho't consideration in 'dging the reasonableness of the restrictions. The eistence of a s'mmar* and largel* one!sided reiew b* an adisor* board was no s'bstit'te for a 'dicial in'ir*. %em)ership of an association "n $am2anti Narang s &nion of "ndia 19 the ape co'rt held the citi?enKs freedom to form an association incl'des his right to become a member of an association alread* eisting right to contin'e to manage and organise an association alread* formed right to form'late and implement the lawf'l obecties of s'ch association. Freedom not to =oin an association
1( A9R 1$52 - 1$% 1$ A9R 1$#1
1# The 'estion whether the associational freedom not to oin an association or 'nion was rais raised ed in S.%. S.%. ala ala s &nier &niersit sit2 2 of a=as a=astha than n is left open to be considered at some appropriate moment in f't're. ;is associational freedom protects the right of a person not to become a member if he does not want to oin it or ol'ntaril* to cease or to resign its membership. Right to form associations and 'nion is g'aranteed so that the people can form a gro'p of Sitaramachar2a . $26 "nspector of Schoo Schoo -l6 it was people haing the similar iew 9n Sitaramachar2a held that this right necessaril* implies a right not to be a member member of an association. Th's no one can be compelled to become member of an association. T!e freedom under $!e su"#lause /#' of #lause /&' of ar$i#le &0 is su"1e#$ #er$ain reasona"le res$ri#$ions under $!e law w!i#! ma, "e imosed in in$eres$ of% 1 2 3
-oe -oere reig ignt nt* * and and inte integr grit* it* of 9nd 9ndia ia@@ 'blic or order@ /oralit*
The reasonableness of restrictions is determined b* a direct ne's between the demands of social control cond'cie cond'cie to p'blic p'blic interests interests and the imposed restrictions. restrictions. 9t can be 'diciall* 'diciall* determined in the contet of each indiid'al case after taking into consideration both the s'bstantie and proced'ral aspects of the proposed stat'tor* restrictions. The goernment serants ma* be forbidden from becoming from becoming members of or otherwise being associated with an* political part* or a like organisation. The officers and man of the armed and sec'rit* forces and police force incl'ding the non ga?etted members of the police organi organisati sation on are not free free to form form or to member memberss of an* associat association ionE'n E'nion ionE E societ* societ* or instit'tion 'nless permitted b* a law E police reg'lation framed 'nder legal a'thorisation. 8or an* association of their can seek or can appl* registration 'nder the Trade 0nion Act 1$2%. +'t the right to association remains citi?enKs basic right altho'gh its reach does not etend to the priileges of incorporated bodies of citi?ensB The ;indi -ahit*a -ammelan! Rastrabhasa rachar -amiti ases. LA/ OF CONSP"AC3 CONSP"AC 3 AN$ &NLA/F&L &NLA/F&L ASSOC"AT"ON
The act of forming an association is lawf'l 'nless it constit'tes a crime or tort of conspirac*. The tort of conspirac* consists in a combination for the p'rpose of damaging the plaintiffKs interests in trade or otherwise. The tortio's cond'ct of one of the defendants can be attrib'ted to all of them. A combination of traders in a trade to ward off free lawf'l competition with a rial trader or of the trade 'nion officers to get a non!'nion emplo*ee dismissed b* the emplo*er and the like constit'tes a tortio's conspirac*. An 'nlawf'l association is one which enco'rages aids or aims at 'nlawf'l p'rposes abets commission of acts of iolence intimidation or immoralit*. An association otherwise lawf'l ceases to be lawf'l. 2" A9R 1$5( A.. #(
9nhered in his stat's of citi?enship the citi?enKs right to moe freel* thro'gho't the territor* of 9ndia is an important aspect of his freedom. The freedom of locomotion g'arantees him in general right of free moement which is an aspect of his personal libert* altho'gh a specific and limited part of it. 9t sec'res to hi the right and priilege to go to an* place within the co'ntr* across all states and inter! state barriers. A citi?en needs no passport and no isa while traelling inside the co'ntr*. Art 1$71) 7d) g'arantees g'arantees to eer* citi?en the right to moe freel* thro'gho't thro'gho't the territor* of 9ndia. Art 1$71)7e) g'arantees to a citi?en the right to reside and settle in an* part of 9ndia.1$75) howeer the state ma* impose restrictions on these rights b* law in the interests of general p'blic or for the protection of the interests of an* -ched'led Tribe. AT"CLE 19!1# !$# AN$ 19!1# !E# AE CO%PLE%ENTA3
+roadl* speaking the two rights contained in articles 1$71) 7d) and 1$71) 7e) are parts of the same right and are complementar* and often go together. /ost of the cases considered 'nder article 1$7d) are releant to article 1$7e) also. The two rights are therefore disc'ssed together. FOE"0NES
Art 1$71) 7d) applies onl* to the citi?ens and not to foreigners. Accordingl* the f'ndamental right of a foreigner is confined to art 21 g'aranteeing his life and libert*. ;e cannot claim the right to reside and settle in the co'ntr* as g'aranteed b* art 1$71) 7e). The goernment of 9ndia th's has the power to epel foreigners from 9ndia. estricting moement to maintain p)lic order
The 'nab Akalis threatened to hold a demonstration in elhi on the occasion of the ina'g'ration of Asian games. To fr'strate s'ch demonstration the goernments of ;ar*ana and 0ttar 0ttar rades radesh h took took stringe stringent nt meas're meas'res s s'ch s'ch as barrica barricadin ding g highwa highwa*s *s resorti resorting ng to sei?'re and arrests intercepting moement of Akalis across the border on to elhi. These steps were challenged thro'gh a writ petition in the -'preme o'rt. The -'preme o'rt laid down some general norms as to how the police sho'ld behae in s'ch a sit'ation. The police police is entitle entitled d to impose impose reasona reasonable ble restrai restraints nts on the ph*sical ph*sical moemen moementt of the members members of the p'blic p'blic in order to protect protect p'blic p'blic propert* propert* and aoid needless needless inconenience inconenience to other citi?ens in their lawf'l p'rs'its. +'t all s'ch restraints on personal libert* hae to commens'rate with the obect which f'rnishes their 'stification. The sanctit* of person and priac* has to be maintained at all costs and o'ght not to be iolated in the name of maintenance of law and order. E4ternment
1$ Art 1$71) 7d) and art 1$71) 7e) hae been inoked fre'entl* to challenge the alidit* of an eternment order sered b* the eec'tie on a citi?en re'iring him to leae a state or a district. -'ch an order prima facie c'rtails the freedoms g'aranteed b* these articles and therefore the co'rts are entitled to test whether the order and the law 'nder which it has been made is reasonable within article 1$75). The reasonableness of restrictions can be 'diciall* determined in an* gien case in accordance with the reg'lation of the citi?enKs freedom and the proced'ral re'irements of the official cond'ct in the matter. Ihere a person was directed to remoe himself from the &reater +omba* area and settle at a place specified in the eternment order beca'se the actiities of that person in the greater +omba* were ca'sing alarm and it was reasonabl* belieed that he was abo't to be engaged in commission of certain certain offenc offences es the etern eternmen mentt order order was held to be reason reasonabl ablee both both in the sense of ep' ep'ls lsio ion n from from the the &reat &reater er +omb +omba* a* and and fia fiati tion on of a plac placee of resid residen ence ce as held held in Pandharnath Sridhar angne7ar s $2. Commr. of Police -1. hara7 Singh s The State of &. P. , Others -- on 1; $ecem)er6 19>FACTSThe petitioner was challenged in a dacoit* case b't was released is there was no eidence eidence against him. The police opened opened a histor* histor* sheet against against him. ;e was p't 'nder s'r! eillance !is defined in Reg'lation 23% of the 0. . olice Reg'lations. -'reillance inoles secret picketing of the ho'se or approaches to the ho'ses of the s'spects domiciliar* isits at night periodical en'iries b* officers not below the rank of -'b!9nspector into rep'te habits association income epenses and occ'pation the reporting b* constables and cha'kidars of moements and absences from home the erification of moements and absences b* means of in'ir* slips and the collection and record on a histor* sheet of all information bearing on cond'ct.
The petitioner filed a writ petition 'nder Art. 32 in which he challenged the constit'tional alidit* of hapter MM of 0. . olice Reg'lations in which Reg'lation 23% also occ'rs. *EL$!GArt. 1$ 71) 7d) the DfreedomD here g'aranteed is a right Dto moe freel*D thro'gho't the territor* of 9ndia. mitting as immaterial for the present p'rpose the last words defining the geographical area of the g'aranteed moement we agree that the right to DCmoeD denotes nothing more than a right of locomotion and that in the contet the aderb DCfreel*D wo'ld onl* connote that the freedom to moe is witho't restriction and is absol'te i. e. to moe whereer one likes wheneer one likes and howeer one likes s'bect to an* alid law enacted or made 'nder cl. 5. 9t is manifest that b* the knock at the door or b* the man being ro'sed from his sleep his locomotion is not impeded or pre'diced in an* manner. >earned o'nsel s'ggested that the knowledge or apprehension that the police were on the watch for the moements of the s'spect might ind'ce a ps*chological inhibition against his moements b't as alread* pointed o't we are 'nable to accept the arg'ment that tha t for this reason reas on there is an impairment of the DCfreeD moement g'aranteed b* s'b!cl. 7d). The freedom g'aranteed b*
21 A9R 1$#3 22 A9R 1$%2
2" Art. 1$ 71) 7d) has reference to something tangible and ph*sical rather and not to the imponderable.H The The right right to moe moe abo' abo'tt bein being g ecl ecl'd 'ded ed its its narr narrow owes estt inte interp rpret retati ation on wo'l wo'ld d be that that it comp compreh rehen ends ds noth nothin ing g more more than than freed freedom om from from ph*s ph*sic ical al restra restrain intt or freed freedom om from from conf confine ineme ment nt with within in the the bo'n bo'nds ds of a priso prison@ n@ in othe otherr word words s freed freedom om from from arres arrestt and and detention from false imprisonment or wrongf'l confinement or locomotion.H O&TCO%E Police srieillance The co'rt r'led that no aspect of police s'reillance fell within the scope of art 1$71) 7d). Against Against the alidit* of shadowing of the s'spectKs s'spectKs moement moement it was arg'ed that if a person s'spected that his moements were being watched b* the police it wo'ld ind'ce him a ps*chological inhibition against moement and this this wo'ld infringe art 1$71) 7d). ight to priac2 An interesting 'estion considered b* the co'rt in these cases is whether there is in 9ndia a f'ndamental right to priac*. 9n this case the ape co'rt r'led that the right to priac* is not a g'aranteed right in 9ndia. The right to priac* is howeer not absol'te and reasonable restrictions can be placed thereon in p'blic interest 'nder art 1$71) 75). A.. 0opalan s The State Of %adras. -8
>aw relating to preentie detention!!Ihether infringes F'ndamental Right as to freedom of moement. FactsThe petitioner who was detained 'nder the reentie etention Act 7Act 96 of 1$5") applied 'nder Art. 32 of the onstit'tion for a writ of habeas corp's and for his release from detention on the gro'nd that the said Act contraened the proisions of Arts. 13 1$ 21 and 22 of the onstit'tion and was conse'entl* 'ltra rites and that his detention was therefore illegal. *eld ! Ihateer be the precise scope of Art. Art. 1$ 71) 7d) and Art.1$75 Art.1$75)) the proisions proisions of Art. 1$75) do not appl* to a law relating to preentie detention inasm'ch as Cthere is a special self!contained proision in Art. 22 reg'lating it. Tho'gh on moement is nothing denial of personal libert* *et it has nothing to do with the preentie detention. 9t is an independent and and s'bs s'bstan tanti tiee and and speci specific fic righ right. t. 9t is eer eerci cisab sable le when when he is free free from from 'nla 'nlawf' wf'll confinement and detention. Ihen 'nder preentie detention he loses the s'b!strat'm for its eercise. Article 1$ of the onstit'tion has no application to a law which relates directl* to preentie detention een tho'gh as a res'lt of an order of detention the rights referred refer red to in s'b!cls. 7a) to 7e) and 7g) in general and s'b!cl. 7d) in partic'lar of cl. 71) of Art. 1$ ma* be restricted or abridged@ and the constit'tional alidit* of a law relating to s'ch detention cannot therefore be 'dged in the light of the test prescribed in el. 75) of the said Article.
23 A9R 1$5" - 2#
21 FEE$O% TO CA3 ON TA$E AN$ OCC&PAT"ON AT 19!1# !0# AN$ AT 19!># FEE$O% 6 TA$E AN$ OCC&PA OCC&PAT"ON ' $EF"NE$ the term Jo##ua$ion+ Jo##ua$ion+ means means some actiit* b* which a person is occ'pied occ'pied or engaged. 9t wo'ld be an actiit* of a person 'ndertaken as a means of lielihood or a mission of life. For instance a o'rnalist has f'nd f'ndam ament ental al righ rightt to carr* carr* on his his or her her occ' occ'pa pati tion on 'nde 'nderr art 1$71 1$71)7 )7g) g).. 9t incl' incl'de dess J rofession+ rofession+ *$rade+ or *"usiness+. The *"usiness+. The term J rofession+ has has been interpreted to mean an occ'pation re'iring the eercise of intellect'al skill often co'pled with man'al skill. The term J"usiness+ J"usiness+ means means an* actiit* inoling the prod'ction distrib'tions and cons'mption of wealth and prod'ction and aailabilit* of material serices. Ihile J $rade+ is an actiit* concerning the sale and p'rchase of goods. 9t is an echange of an* article either b* barter or for mone* or for serice rendered. The part* pa*ing consideration in an* trade is aware for what he is pa*ing the consideration. E4ception to the freedom freedom of tradeinto4icants tradeinto4icants or drgs the ape co'rt in *arshan7er s $ept2 E4cse ,Ta4ation Commissioner -: said that Gtrade is and incl'de occ'pation of b'*ing and selling barter or s'ch skilled work as of goldsmithKs commission agent etc. The citi?en cannot be preented from carr*ing on an* trade or profession ecept on gro'nd of 'nlawf'l 'nlawf'l character character of the trade or else that it is etra commerci'm commerci'm.. ;e does not possess possess freedom to carr* on trade for instance in intoicants or dr'gsH.
There can be no trade in crime. 9t is as per the will of the person to do or to contin'e some b'siness b't this right carr* on an* trade or profession also incl'des his right to discontin'e the b'siness or close down the b'siness trade or profession as in E4cel /ear s nion of "ndia !A" 19-< SC-<# ight ight Again Against st Se4al Se4al *arass *arassmen mentt of /or7in or7ing g /omen ' 9n isha isha7a 7a s State State of -< -'preme o'rt o'rt obser obsered ed that that se'al se'al harassm harassment ent of workin working g women women at a=asthan the -'preme working places wo'ld be iolation of the ictimKs f'ndamental rights 'nder art 1$71)7g). 9n this case a social worker was br'tall* gang raped in a illage of raasthan. The co'rt took a serio's note of the matter and iss'ed certain g'idelines for the preention of s'ch incidents. No igh ightt Again gainst st Compe Competi titi tion onss ' art 1$71)7 1$71)7g) g) does does not g'aran g'arantees tees protect protection ion from from competition competition in trade. Therefore the loss of income on acco'nt acco'nt of competition competition in trade does not infringe the right to trade 'nder art 1$71)7g). 9n Sh2am Bihari Te5ari s State of &.P ->.6 the the s'pr s'prem emee co'r co'rtt held held that that a cine cinema ma owne ownerr had had no loc' loc'ss stan standi di to chal challe leng nge e the the establishment and grant in aid for new cinema hall.
22 ight to impart edcation and esta)lish edcational instittions ' the -'preme co'rt in nni rishna s state of A.P -? commonl* known as capitation fee case obsered that actiit* of establishing an ed'cational instit'tional instit'tion co'ld neither a trade or b'siness nor co'ld it be a profession within the meaning of art 1$71)7g).
The aboe decision of -'preme o'rt was oerr'led b* T.%.A Pai Fondation s State of arnata7a-; where the co'rt held thatB! G:d'cation G:d'cation 'sed to be charit* charit* or philanthrop* philanthrop* in good good old times. &rad'all* &rad'all* it became an Cocc'pationC. -ome of the ='dicial dicta go on to hold it as an Cind'str*C. Ihether Ihether to receie ed'cation ed'cation is a f'ndamenta f'ndamentall right or or not has has been debated debated for for 'ite some some time. +'t it is settled settled that that establi establishi shing ng and adminis administeri tering ng of an ed'cati ed'cationa onall instit instit'ti 'tion on for imparti imparting ng knowledge to the st'dents is an occ'pation protected b* Article 1$71)7g) and additionall* b* Article 2%7a) if there there is no element of profit generation. As of now imparting ed'cation has come come to be a means means of lielihoo lielihood d for some professi professiona onals ls and a mission mission in life for some some altr'ists. 9t is s'bmitted that taking oer the right to reg'late admission and fee str'ct're of 'naided professional instit'tions is not a Creasonable Creas onable restrictionC within the meaning of Article 1$7%) of the onstit'tion. estrictions on the right to carr2 on trade or )siness art 19!>#
Reasonable restrictions in p'blic interest. Restriction m'st not be 'nreasonable or ecessie. Restriction ma* amo'nt to total prohibition. -tate trading and state monopol* in a trade or b'siness.
2# A9R 1$$3 - 21#( 2( A9R 2""3 - 355
23
Bibliography 1# rof. =ain /. 9ndian constit'tional law 5 th edition Iadhwa and compan* 8agp'r p'blishers 8ew elhi. -# rof. 8arender ,'mar onstit'tional >aw of 9ndia # th edition Allahabad >aw agenc* ;ar*ana. 8# rof. /.. ,ag?i The onstit'tion of 9ndia % th edition 6ol!2 9ndia >aw ;o'se 8ew elhi. :# The onstit'tion of 9ndia! +are Act 'niersal law p'blishers 8ew elhi. <# atar Arind ommentr* on the onstit'tion of 9ndia ol!1 2 nd edition wadhwa and compan* 8agp'r law p'blishers. ># e = the onstit'tion of 9ndia ol!1 3 rd edition Asia law ho'se ;*derabad.
