Article 19 Of The Indian Constitution With Case Laws

Tweet Pin LinkedIn Email Facebook

Fundamental Rights were deemed essential to protect the rights and liberties of the people against the encroachment of the power delegated by them to their Government. They are limitations upon all the powers of the government, legislative as well as executive and they are essential for the preservation of Public and Private Rights, notwithstanding the character of political instruments. The rights are regarded as fundamental because they are most essential for the attainment by the individual or his full intellectual, moral, and spiritual status. The declaration of fundamental rights in the Constitution serves as a reminder to the government in power that certain liberties assured to the people by the Constitution are to be respected. The object behind the inclusion of the Charter of Fundamental Rights in the Indian Constitution is to establish ‘a Government of law and not of man’ a governmental system where the tyranny of majority does not oppress the minority. In short, the object is to establish Rule of Law and it would not be wrong to say that the Indian Constitution in this respect goes much ahead than any other Constitution of the world.

Personal liberty is the most important of all Fundamental Rights. Articles 19-22 i.e. Right to Freedom deals with different aspects of this basic right. The foremost amongst these are the six Fundamental Rights in the nature of Freedoms which are guaranteed to the citizens by Article 19 of the constitution.

THE SIX FREEDOMS: Article 19 of the constitution guarantees to the citizens of the India the following six Fundamental freedoms.

Freedom of Speech and Expression.
Freedom of Assembly.
Freedom to form Associations.
Freedom of Movement.
Freedom to reside and to settle.
Right to Property [1]
Freedom of profession, occupation, trade or business.

These ‘six freedoms’ are, however, not absolute. Absolute individual rights cannot be guaranteed by any modern state. Organized society is the precondition of civil liberties. There cannot be any right which is injurious to the community as a whole. If people were given complete and absolute liberty without any social control the result would be ruined, liberty has got to be limited to be effectively possessed. For the liberty of one must not offend the liberty of others.

RIGHT AVAILABLE TO ‘CITIZENS’ ONLY: The rights granted by Article 19 are available only to citizens and not to an alien or a foreigner. A foreigner is not a citizen of India and therefore he cannot claim a right under Article 19. A corporation or a company cannot claim a right under Article 19 because they are not natural persons. ‘Citizen’ under Article 19 means only natural persons and not legal persons, such as corporations or companies.

THE FREEDOM OF SPEECH AND EXPRESSION AS THE FIRST CONDITION OF LIBERTY: It is truly said that the freedom of speech is the mother of all the liberties. It is indispensible for the development of one’s own individuality and for the success of parliamentary democracy. It is said that in a democracy the right to free expression is not only the right of an individual but rather a right of the community to hear and be informed.

The freedom of speech and expression means the right to express one’s conviction and opinions freely by words of mouth, writing, printing, pictures, photographs, cartoons or any other mode. It means freedom of speech and expression is to express one’s convictions and opinions or ideas freely, through any communicable medium or visible representation, such as gesture, signs and the like. It means freely propagate, communicate one’s opinion or views.

Freedom of speech is the bulwark of a democratic Government and it attaches great importance to this freedom because without the freedom of speech appeal to reason, which is the basis of democracy, cannot be made. Freedom of Speech opens up channels of free discussions of issues and plays a crucial role in public opinion on social, political, and economic matters.

Freedom of expression has four broad special purposes to serve:

It helps an individual to attain self-fulfillment
It assists in the discovery of truth
It strengthens the capacity of an individual in participating in decision making
It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
All members of society would be able to form their own beliefs and communicate them freely to others.

SCOPE OF FREEDOM OF SPEECH AND EXPRESSION:

FREEDOM OF PRESS:
Article 19(1) (a) of the Constitution of India guarantees the freedom of Speech and Expression. In

ROMESH THAPPAR VS. STATE OF MADRAS[2], Patanjali Sastri, J., rightly observed that- ‘Freedom of speech and the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government is possible.’

A law banning entry and circulation of the Journal in a state was held to be invalid. The Petitioner was a printer and editor of a weekly journal in English called ‘Cross Road’ printed and published in Bombay.
The Government of Madras, in the exercise of their power under Section 9(1-A) of the Maintenance of Public Order Act, 1949, issued an order prohibiting the entry into or the circulation into the state.
The court said that there can be no doubt that Freedom of Speech and Expression includes Freedom of Propagation of ideas, and that freedom is ensured by the freedom of circulation. Liberty of circulation is essential to freedom as the liberty of publication.
Indeed without circulation, the publication would be of little value. Restrictions on Freedom of Speech and Expression can only be imposed on the grounds mentioned in Article 19(2) of the Constitution.
A law which authorizes the imposition of restrictions on the ground of ‘Public safety’ or the maintenance of ‘Public Order’ falls outside the scope of authorized restrictions under clause (2) and therefore void and unconstitutional.
In INDIAN EXPRESS NEWSPAPER VS. UNION OF INDIA[3], The petitioners, publishers, of daily newspapers and periodicals, challenged the imposition of import duty and the levy of the auxiliary duty on the newsprint on the ground of infringement of the freedom of the press as it imposed a burden beyond the capacity of the industry and also affected the circulation of the newspapers and periodicals.
The court held that the press industry was not free from taxation. Taxes have to be levied because of public services, facilities, and amenities enjoyed by the newsprint industry, the burden of maintaining which falls on the government.
They must contribute a fair and reasonable amount to the public exchequer. As long as such tax is within reasonable limits and does not impede freedom of expression it will not be beyond the limit of Article 19(2).
In BENNET COLEMEN AND CO. VS UNION OF INDIA[4], the validity of the Newsprint control order which fixed the maximum number of pages (10 pages) which a newspaper could publish was challenged as violative of fundamental rights guaranteed in Article 19 (1) (a) and Article 14 of the constitution of India.
The government defended the measures on the ground that it would help small newspapers to grow and to prevent a monopolistic combination of Big newspapers. The court held that the newsprint policy was not a reasonable restriction within the ambit of Article 19(2).
The newsprint policy abridges the petitioner’s right to freedom of Speech and Expression. The newspapers are not allowed their right of circulation. They are not allowed right of pages growth.
The common ownership units’ newspapers cannot bring out newspapers or new editions. The newspapers operating above 10 pages and newspapers operating below 10 pages have been treated equally for assessing the needs and requirements of newspapers which are not their equals.
Freedom of the Press is both qualitative and quantitative. Freedom lies both in circulation and in content. The number of pages, page area, and periodicity, prohibits them to increase the number of pages, page area, and periodicity by reducing circulation.
These Restrictions restrict the newspaper in adjusting their number and circulation.
RIGHT TO REPLY OR ANSWER AGAINST ONE’S VIEWS:
The right to reply, i.e. the right to get published one’s reply in the same news media in which something was published against or about a citizen, was a part of the freedom of Speech and Expression guaranteed under Article- 19(1)(a) of the Constitution of India, in LIFE INSURANCE CORPORATION OF INDIA VS. MANUBHAI D. SHAH[5]
In this case, the respondent, the executive trustee of the Consumer Education & Research Centre (CERC), Ahmedabad, after researching the working of the Life Insurance Corporation Published a study paper ‘Fraud on Policy Holders’- A Shocking story.
The study paper depicted the discriminatory practice adopted by the LIC which affected the interest of a large number of policyholders.
A member of the LIC published a counter in a magazine called ‘YOGAKSHMA’ published by the LIC. The respondent requested the LIC to publish his rejoinder to the said article in the said magazine but his request was not accepted.
The LIC contended that the magazine is a house magazine and not put in the market for sale to the general public. It was meant only for informing its members, staff, and agents about its activities.
The Respondent contended that the refusal to publish his rejoinder in the magazine violated his fundamental right under Article 14 and 19(1)(a) of the Constitution.
The Supreme Court rejected the appeal of LIC. It held that the LIC a ‘state’ within the meaning of Article 12 and therefore it must function in the best interest of the Community. The community is entitled to know whether or not this requirement of the statute is complied with by the LIC in its functioning.

RIGHT TO EXHIBITION OF FLIMS:
In BOBBY ART INTERNATIONAL VS. OM PAL SINGH HOON[6] popularly known as Bandit Queen’s case. The Respondent filed a writ petition in the court for quashing the certificate of the exhibition given to the film “Bandit Queen” and restraining its exhibition in India.
The film “Bandit Queen” is the story of a village child (Phoolan Devi) exposed from an early age to the brutality and lust of men.
The film was presented for certification to the censor board. The examining committee of the board referred it to the revision committee and recommended that the film be granted an ‘A’ certificate subject to certain modifications and cuts.
Aggrieved by the decision an appeal was filed before the Appellate tribunal. The tribunal also granted the film an ‘A’ certificate. The respondent then filed a petition in High Court seeking to squash the certificate granted to the film and restrain its exhibition in India.
The High Court held that the film was obscene and quashed the certificate issued by the Tribunal. Later on, the Tribunal took the view that it would do women some good to see the film and granted an ‘A’ certificate.
The Supreme Court accordingly set aside the judgment of the High Court and restored the order of the Appellate Tribunal.
K.A. ABBAS VS UNION OF INDIA[7], is the first case in which the question of whether prior censorship of films is included in Article 19(2) came for the consideration before the Supreme Court of India.
Under the cinematograph Act, 1952, films are categorized as ‘U’ films and ‘A’ films. ‘U’ films are meant for unrestricted exhibitions, whereas ‘A’ films can be shown to adults only.
The petitioner, unable to get a ‘U’ certificate for his motion film named “Tale of Four Cities”, questioned the validity of the cinematograph Act, 1952 along with the rules made thereunder.
The Supreme Court upheld the validity of the Cinematography Act, 1952, and said that pre-censorship of films was justified under Article 19(2) as imposing a reasonable restriction. The court observed that thus, the films have to be treated separately from other forms of art and expression, because, a motion picture was able to stir up emotions more deeply than any other product of art.
Classifications of films into two categories, i.e. ‘U’ ‘A’ films, were, therefore, held to be valid and a film can be censored on the grounds mentioned under Article 19(2) of the Constitution.
RIGHT TO REMAIN SILENT:
In BIJOE EMMANUEL VS. STATE OF KERALA[8] also known as the National Anthem’s case. Three children belonging to Jehovah’s Witnesses were expelled from the school for refusing to sing the National Anthem during the 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 school on the ground that they committed an offense under the Prevention of Insults to National Honors, 1971. However, the Hon’ble Supreme Court reversed the decision of the Kerala High Court.
The Supreme Court held that no person could be compelled to sing the National Anthem if he/she has a genuine conscientious objection based on his religious belief.
There is no provision of law that obliges anyone to sing the National Anthem nor do we think that it is disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the Singing.
It is true Article 51-A (a) of the Constitution enjoins a duty on every citizen of India ‘to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.’
Proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the Singing. Thus, the expulsion of the children from that school was a violation of their fundamental right under Article 19 (1) (a) of the Constitution which also included Freedom of Silence.
Freedom of Speech and Expression has nothing to do with a person refusing to sing the National Anthem.

COMMERCIAL ADVERTISEMENTS:
Advertisement is undoubtedly a form of speech. But every form of advertisement is not a form of speech and expression of ideas. An advertisement of commercial nature is not protected under Article 19(1) (a) which has an element of trade and commerce. In HAMDARD DWAKHANA VS UNION OF INDIA[9] the validity of the Drug and Magic Remedies (Objectionable Advertisement) Act, which put restrictions on advertisement of drugs in certain cases and prohibited advertisements of drugs having magic qualities for curing disease was challenged on the ground that the restriction on advertisement abridged the Freedom of Speech.
The Supreme Court held that an advertisement is no doubt a form of Speech but every advertisement is not a matter dealing with the freedom of Speech and Expression of Ideas.
In the present case, the advertisement was dealing with commercial and trade and not for propagating ideas.
Advertisement of prohibited drugs would thus not fall within the scope of Article 19 (1) (a).

TELEPHONE TAPPING-INVASION ON RIGHT TO PRIVACY:
In PEOPLE’S UNION FOR CIVIL LIBERTIES VS UNION OF INDIA,[10] the petitioner, the Peoples Union for Civil Liberties a voluntary organization filed a petition under Article.32 of the Constitution by way of public interest litigation highlighting the incidents of telephone tapping in recent years. The petitioner challenged the validity of Section 5(2) of the Indian Telegraph Act, 1885. Section 5(2) permits the interception of messages under the provisions of the said section.
‘Occurrence of any public emergency’ or ‘in the interest of public safety’ are the essential conditions for the application of the provisions of Section 5(2) unless these two conditions are satisfied the Government cannot exercise its power under the said section.
The Court has laid down exhaustive guidelines to regulate the discretion vested in the state under section 5(2) of the Telegraph Act for phone Tapping and interception of other messages to safeguard public interest against the arbitrary and unlawful exercise of power by the Government.
Under the guidelines laid down by the court, an order for telephone tapping can only be issued by the Home Secretary of the Centre and State Governments. The order is subject to review by a high power review committee and the period for telephone tapping cannot exceed two months unless approved by the reviewing authority which can extend it up to six months.
Telephone tapping also violates Article 19(1) (a) unless it comes within grounds of restrictions under Article 19 (2). Freedom means the right to express one’s conviction and opinion freely by words of mouth, writing, printing, picture, or in any other manner.
When a person is talking on the telephone he is exercising his right to freedom of speech and expression, telephone tapping unless it comes within the grounds of restrictions under Article 19(2), would violate Article 19(1) (a) of the constitution.

KANHAIYA KUMAR VS. STATE OF NCT OF DELHI:

On 9^th February, 2016 a program was proposed to be organized under the title ‘Poetry reading- The Country without a Post office’ at Sabarmati Dhaba, Jawaharlal Nehru University.
Since the title of the program did not suggest anything objectionable, permission was granted. When the posters of the said program revealed the topic of the event to be organized that evening, the authorities at JNU acted swiftly by cancelling the permission and communicating the same to the organizers as well as the security staff.
Soon after, an FIR was recorded against the President Kanhaiya Kumar also the petitioner in this case along with six other members involved in the activity.
Referring to the contents of the FIR, the petitioner has claimed that there was no incident of violence after the alleged incident of raising alleged anti-national slogans.
Rather the JNU campus remained peaceful and no disturbance was reported from or within the campus.
The petitioner asserts his Fundamental Rights Guaranteed under Article 19(1)(a) of the constitution of India on the ground that the utterances attributable to him cannot be termed as such he has not committed any offence. The petitioner has agreed to abide by the terms and conditions that may be imposed in case he is ordered to be released on bail.
Mr. Tushar Mehta learned Solicitor General of India for the state has submitted that on 8^th February, 2016 permission was initially brought by a group of students for organizing a cultural evening at Sabarmati Dhaba at JNU Campus which was granted.
The JNU authorities on getting the information that in the guise of cultural functions some anti-national activities were to take place, cancelled the permission and the organizing group was duly informed.
Even after three long years of the incident the case is still pending before the Hon’ble Court and kanhaiya Kumar was released on Interim bail.

[1] Was omitted by constitutional 44^th Amendment Act, 1978

[2] AIR 1950 SC 124

[3] (1985) 1 SCC 641

[4] AIR (1973) SC 106

[5] (1992) 3 SCC 637

[6] (1996) 4 SCC 1

[7] AIR 1971 SC 481

[8] 1986 3 SCC 615

[9] AIR 1960 SC 554

[10] AIR 1997 SC 568