Certain positive rights are conferred by the Constitution in order to promote the ideals of liberty held out by the preamble. The foremost amongst these are the six fundamental rights in the nature of ‘Freedom’ which are guaranteed to the citizens by the Constitution of India (Article19). These were popularly known as the seven freedoms under our Constitution. It has already been pointed out that in the original Constitution, there were seven freedoms in Article 19 (1) but that one of them, namely, “the right to acquire, hold and dispose of property” has been omitted by the Constitution 44th amendment act, 1978, leaving only six freedoms in this article. They are –
1. Freedom of speech and expression.
2. Freedom of assembly.
3. Freedom of association.
4. Freedom of movement.
5. Freedom of residents and settlement.
6. Freedom of profession, occupation, trade or business.
The Author will endeavor to explain all these six fundamental freedoms under Article 19.
1. FREEDOM OF SPEECH AND EXPRESSION
Article 19 (1) guarantees to all citizens “the right to freedom of speech and expression”. Freedom of speech and expression has been held to be basic and indivisible for a democratic polity, the citizen’s most cherished and sacred right, the “prized privilege.” It has said to be the cornerstone of functioning of democracy. It is the foundation of a democratic society. It is essential to the rule of law and liberty of citizens. This right 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.
It 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 to freely propagate, communicate or circulate One’s opinion or views. It also means to lay what sentiments, a free citizen pleases, before the public. It thus includes the freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media regardless of frontiers. The phrase 'Speech and expression' is a very wide connotation that naturally presupposes a second party to whom the ideas are expected to be communicated. Freedom of expression thus includes the freedom of propagation of ideas, publication, and circulation.
Scope and content of the freedom
The different facets constituting scope and content of the freedom of speech and expression are discussed below –
A. Right to know and to obtain information
The right of information is indisputably a fundamental right, a facet of speech and expression as contained in Article 19(1) (a). 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. It has also been said that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration.
Needless to say, an independent media is a sine qua non to create awareness. The concept of an open government is said to be the direct emanation from the right to know or the right to acquire information and to disseminate it, which seems to be implicit in the right of free speech and expression guaranteed under Article 19 (1) (a). Further that the citizens have the right to decide by whom and what rules, they shall be governed and they are entitled to call on those who govern on their behalf, to account for their conduct. So said, a citizen, prepared to pay requisite fee, is entitled to ask for the copies of public documents, to the inspection of such documents. To provide for freedom to every citizen to secure access to official information, to promote openness, transparency, and accountability in administration and relation to matters connected therewith or incidental thereto, the freedom of Information Act 2002 has been passed. The Act, provides for furnishing information by the Public Information Officer, on request from the person desirous of obtaining it, On payment of the prescribed fee. The freedom of information act, 2002 was amended in 2005, proving for constitution of information commission at the state level, which is to function, as a quasi-judicial authority.
The freedom of speech and expression, includes the right to educate, to inform, and to entertain and also the right to be educated, informed, and entertained. It also includes the right of the consumer to be apprised of the ingredients of food products, cosmetics, and drugs, so that he may make the right choice as per his beliefs and opinions. But such information can be given to the extent it is available and possible, without affecting the fundamental rights of others. The right of information, like other rights, is held subject to several exemptions/exceptions indicated in broad terms.
It has been agitated that while there is a rationale behind exempting areas like national security, military development, international relations, and the like from the RTI ambit the judiciary has no valid reason to claim such immunity from the public gaze.
B. Right of the examinee to have access to evaluated scripts –
In Secretary, West Bengal Council of Higher Secondary Education vs Ayan Das, the Apex Court ruled that the court should not normally direct the production of answer scripts, to be inspected by the examinees, unless a case was made out to show that either some questions had not been evaluated or that the evaluation had been done contrary to the norms fixed by the examining body. It has been held to be in the public interest that the results of public examinations, when published should have some finality attached to them.
C. Right of the citizens/voters to know the antecedents of the candidates at election
Article 19 (1)(A) which guarantees the right to speak and express oneself has been held to include the voters of speech or expression, in case of elections, in a democracy. It has been said that the voter speaks out or expresses by casting a vote. Explaining the democratic government is a continual participative operation, and that “ a successful democracy posits and the aware citizenry,” the Apex Court in Union of India v. Association for Democratic Reforms, ruled that the voters that right to know antecedents including criminal past of his candidate contesting election for MP or MLA, was fundamental and basic for survival of democracy. Holding that “democracy cannot survive without free and fair elections, without free and fairly informed voters,” the court said that the voter had the right to get material information, concerning a candidate contesting election for a post, which was of utmost importance in the democracy, was implied in the freedom of speech guaranteed by Article 19 (1) (A).
D. Right to reply or answer the criticism against one’s views
In Life Insurance Corporation of India V. Prof. Manubhai D. Shah, the Supreme Court held that the right to reply, that is, the right to get published once reply in the same news media in which something was published against or concerning a citizen, was a part of the freedom of speech and expression guaranteed under Article 19 (1) (A) .
In this case, the respondent, the executive trustee of the Consumer Education and Research Centre, Ahmedabad, after researching the working of the LIC, published a study paper titled “fraud on police holders-a shocking story”. The study paper portrayed the discriminatory practices adopted by the LIC which adversely affected the interest of a large number of policyholders. Shri NC Krishnan, a member of the LIC prepared a counter to the respondent study paper and published the same as an article in the ‘Hindu’ challenging the conclusions related by the respondent in his study paper. The respondent prepared a rejoinder which was published in the same newspaper. The LIC publishes a magazine called "Yogakshma" for informing the members, staff, and agents about its activities. Mr. Krishnan’s article which was in the nature of a counter to the respondents' study paper was also published in this magazine. The respondent thereupon requested the LIC to publish his rejoinder to the said article in its magazine. The LIC refused to accept the request and contended that the magazine was a house magazine and not put in the market for sale to the general public. The Supreme Court upholding, the right of the respondent held that the LIC created under the LIC Act 1956, being a Sate within the meaning of Article 12 must function in the best interest of the community. The community was therefore entitled to know whether or not this requirement of the statute was being satisfied in the functioning of the LIC. Referring to the earlier decisions, the Supreme Court explains the scope of the freedom of speech and expression granted under Article 19 (1) (A) and observed – once it is conceded, and it cannot indeed be disputed that freedom of speech… Includes freedom of circulation… Of ideas, there can be no doubt that the right extends to the citizens being permitted to use the media to answer the criticism leveled against the views propagated by him.
E. Compelled speech
The right to free speech and expression also includes compelled speech, often known as a must-carry provision in a Statute, if it further informed decision making. Therefore, the requirement into the various cinematograph legislations that in each cinema theatre, the exhibitor of films must show a film which maybe educational or scientific, documentary film, or fair and caring news or current events, along with the other films, has been held to not violative of Article 19 (1)( a).
F. 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 beliefs”. 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 offense under the prevention of insults to the National Honour Act, 1971. The Supreme Court, however, reversed the decision of the High Court and observes that they did not commit any offense. It was held that the expulsion of the children from that school was a violation of their fundamental right in Article 19 (1) (A) which also included freedom of silence. It may thus be stated that the freedom of expression includes the right not to express.
G. Freedom of press
Unlike the American constitution, Article 19 (1) does not specifically separately provide for the liberty of the press. This omission was explained by Dr. BR Ambedkar when he observed – “ the press has no special rights which are not to be given or which are not to be expressed by the citizen in his individual capacity. The editor of a press or the manager are merely exercising the right of the expression, and, therefore, no special mention is necessary of the freedom of the press.” It is thus settled law that the right of freedom of speech and expression in Article 19 (1) (A) include the liberty of the press. This liberty has been held to be one of the great Bulwarks of liberty and can never be restrained but by the despotic government. The various aspects of freedom of the press are discussed below-
1. No pre-censorship on press
Liberty of the press as defined by Lord Mansfield consists in – “printing without previous licence, subject to the consequences of the law." The freedom of the press, thus, means the right to print and publish what one pleases, without any previous permission. The imposition of pre-censorship on publication, is therefore violative of the freedom of the press and is justified under clause two of Article 19.
2. No pre-stoppage of publication in newspapers of articles or matter of public importance
In R.Rajagopal V. State of Tamil Nadu, the Supreme Court held that neither the government nor the officials had any authority to impose a prior restraint upon publication of material on the ground that such material was likely to be defamatory of them. The right to publish the life story of a condemned prisoner, insofar as, it appears from the public records, even without his consent or authorization has been held to be included in the freedom of the press guaranteed under Article 19 (1) (A). No prior restraint upon such publications can be imposed. However, the pre-publication ban can be justified in the interest of justice when there is a clear and imminent danger to the administration of fair justice and not otherwise. Therefore, publication or telecast of matrimonial proceedings conducted in court, which are meant to be in camera, has been held to be an invasion of the right of privacy and can be prevented by an injunction granted by the court.
3. Right of access to the source of information
In M. Hasan v. Government of Andhra Pradesh, the Andhra Pradesh High Court held that the future to journalist and videographer seeking an interview with condemned prisoners amounted to a deprivation of citizens fundamental right to freedom of speech and expression under article 19 (1) (a). As far as the exercise of fundamental rights is concerned, the court said, the position of a condemned prisoner was on par with a free citizen. He had a right, the court head, to give his ideas and was entitled to be interviewed or to be televised. The press while interviewing a person, must first obtain his willingness. It has, however, been held that the right to interview the business is not absolute, nor article 19 (1) (A) confers any right to have unrestricted access to means of information.
4. Freedom of circulation
Freedom of speech and expression includes the freedom of propagation of one’s ideas or views and his freedom is ensured by the freedom of circulation. In Romesh Thaper v. State of Madras, the provisional government in exercise of its powers under Section 9 (1 – A) of the Madras Maintenance of Public Order Act, 1949 by an order, imposed a ban upon the entry and circulation of the petitioners' weekly journal crossroads printed and published in Bombay. The majority of the Supreme Court hear the order invalid as violative of the freedom 19(1) (A). The court referred to 2 decisions of the US Supreme Court and quoted with the approval the following passage therefrom – “liberty of circulation is as essential to that freedom as liberty of publication. Indeed, without circulation, the publication would be of little value.” There would be a violation of the liberty of the press not only when there is a direct ban on the circulation on the publication as was the case in Romesh Thapar, but also when some action on the part of the government adversely affects the circulation of the publication.
5. Freedom in the volume of news or views
In Sakal Papers (P) Ltd V. Union of India, the Supreme Court held that the right to propagate his ideas guaranteed in Article 19 (1) (A) extended not merely to the matter which has entitled to circulate but also to the volume of circulation. In this case, in pursuance of the provision of the Newspapers (Price and Page) Act, 1956, the Central Government issued the Daily Newspapers (Price and Page) Order, 1960 which fixed the maximum number of pages that might be published by the newspaper according to the price charged. The order fixed a minimum price and number of pages which a newspaper was entitled to publish the petitioners were required to increase the price of their newspaper if they were increasing the pages. On the other hand, if the petitioners were to reduce the price, they were required to decrease the number of pages. That would have the effect of reducing the column, space for news, views, or ideas. The order was challenged as violative of the freedom of the press since its adoption meant either the reduction in the existing number of pages or raising the price. In either case, there would be a reduction of the volume of circulation of newspapers and therefore, a direct infringement of the liberty of the press. The order thus acted as a double-edged knife. It cut the circulation by a price rise or publication or dissemination of news, ideas, and knowledge by restricting column space what is it going to decrease in the number of pages. The Supreme Court struck down the order and headed to be inoperative since the impugned act and the order placed restraints on the volume of circulation. Again, in Bennett Coleman and Co. V. Union of India, the Supreme Court laid down that the freedom of speech and expression was not only in the volume of circulation but also in the volume of news and views. The Supreme Court struck down the Newsprint Policy as being qualities of Article 19 (1) (A). The Court held that the newspapers should be left free to determine their pages, their circulation, and their new addition within their quota of newsprint which had been fairly fixed.
6. No excessive taxes on the press
In Indian Express Newspapers (Bombay) PVT. Ltd. V. Union of India, The Supreme Court emphasized that the government should be more cautious while leaving taxes on matters concerning the newspaper industry than while leaving taxes on other matters. In this case, the petitioners, who were the editors, printers, and publishers of newspapers, periodical, magazines, etc, challenged the validity of imposition of import duty, on newsprint under the Customs Act, 1962 read with the Customs Tariff Act, 1975 and levy of auxiliary duty under the Finance Act,1981, on Newsprint. The Supreme Court held that the newspaper industry had not been granted exemption from taxation. However, the exercise of power to tax should be subject to scrutiny by the Courts. The imposition of tax like the customs duty on newsprint, the court said, was an imposition of tax on knowledge and would virtually amount to a burden imposed on a man for being literate and for being conscious of his duty as a citizen to inform himself of the world around him.
7. Freedom in Employment of editorial force-but, no immunity from general laws
The freedom of the press includes the freedom of employment or non-employment of the necessary means of exercising the right and therefore any limitation on the choice of employment in the editorial force of a newspaper may undermine the independence of the press.
8. Should the journalist reveal the 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. Justice P.B.Sawant, then, Chairman of the Press Council of India, however, held that the Courts could compel a journalist to disclose the source, if necessary. No law provides a newspaper to withhold relevant information from the Courts.
H. Demonstrations, Picketing, Strikes
Demonstrations or picketing are visible manifestation of one’s ideas and in effect a form of speech and expression. However, to be protected under article 19 (1) (A), the demonstrations or picketing must not be violent and disorderly. Picketing, which does not go beyond the limits of persuasion or inducement and which does not restrain others from doing what they please, would be saved under article 19 (1) (a). The right to go on strike has not been held to be included within the scope and ambit of the freedom of speech and expression. In T.K. Rangarajan V. Government of Tamil Nadu, a division bench of the Supreme Court ruled- “apart from the statutory rights, the government employees cannot claim that they can hold society to ransom by going on strike “. Taking a tough stand on government employees using the strike as a weapon to get the demand is fulfilled, the apex court said that the strike as a weapon had been mostly misused, resulting in chaos and total maladministration. Such an action by the government employees, the court said, affected society as a whole and brought the administration to a grinding halt. As regards the lawyers a Constitution bench of the Apex Court in Harish Uppal v. Union of India, categorically pronounced that the lawyers had no right to go on strike or give a call for boycott, not even a token strike. The court further said-the lawyers who are officers of the court, cannot use the strike as a weapon against the court or the client. It has been held that “the bar is not a private guild like that of Barbers, butchers and candlestick makers, but by bold contrast, A public institution committed to public Justice and Public service." An advocate stands in locoparentis towards the litigants. Concerning them, he occupies a position of trust. Despite the Constitution bench observations in Hari Uppal’s case, the lawyers have been going on strike in various parts of the country. Hearing a plea in NGO common cause. For initiating the contempt of court proceedings against lawyers and their associations for issuing strike calls on trivial issues, a division bench of the apex court on November 27, 2015, said that it was a huge and serious problem, but judicial orders would not perhaps be effective in preventing such disruptions, their Lordships lamented. A full bench of Kerala High Court in S. Sudheer V. Union of India said that hartal/strike cannot be banned by the High Court in the exercise of jurisdiction under Article 226. It is for the legislature to enact the law to regulate these. Near call for hartal/strikes, the court said, could not be held to be the offense.
I. Article 19 (1) (A) recognizes no geographical barriers
In Maneka Gandhi V. Union of India, the Supreme Court laid down by the freedom of speech and expression under article 19 1A had no geographical limitations. The freedom carried with it, the right to gather information as also to speak and express oneself, at home and abroad and to exchange thoughts and ideas with others, not only in India but also outside.
J. Article 19 (1) (A)-trial by media
Open justice which is a facet of freedom of expression, permits fair and accurate Reports of court proceedings to be published. It is held that the media, has a right to know what is happening in courts and to disseminate the information to the public which enhances the public confidence in the transparency of court proceedings. However, fair and accurate reporting of the trial might sometimes give rise to a substantial risk of prejudice, not in the pending trial but later on connected trials. In such cases, it is held the court can be prohibit, temporary the publication of court proceedings which is permissible under article 19(2) read with Article 21.
2. FREEDOM OF ASSEMBLY (ARTICLES 19(1) (B) & 19 (3) )
Article 19 (1) (b) is the repository of the right to assemble. Article 19 (1) (B) guarantees to all citizens of India the right to assemble peacefully and without arms. It also includes holding meetings, demonstrations, and take-out processions. The right subject to reasonable restrictions in the interest of –
I. The sovereignty and integrity of India; and
II. Public order.
3. FREEDOM TO FORM ASSOCIATION (ARTICLE (1) (C) & 19 (4))
Article 19 (1) (C) confers on the citizens' right to form associations or unions or cooperative societies which may include all sorts of associations-political parties, clubs, societies, companies, partnerships, trade unions, or any other organization of citizens. The right to form associations may be regulated, as provided in article 19( 4) by imposing reasonable restrictions in the interest of-
I. The sovereignty and integrity of India; and
II. Public order; and
4. FREEDOM OF MOVEMENT (ARTICLES 19 (1) (D) AND 19 (5))
Article 19 (1) (D) guarantees to all citizens of India the right to –
I. Move inside the country;
II. Move outside the country; and
III. Come back to the country.
The state may under Article 19(5) impose reasonable restrictions on the freedom of movement on two grounds –
I. In the interest of the general public;
II. For the protection of the interest of any Scheduled Tribes.
5. FREEDOM OF RESIDENCE (ARTICLES 19 (1) (E) AND 19 (5) )
Article 19 (1) (E) confers on the citizens the right to reside and settle in any part of the territory of India. This freedom can be subjected to the same restrictions as the freedom of movement because of grounds of restrictions are contained in Article 19 clause five for both freedoms.
6. FREEDOM OF PROFESSION, OCCUPATION, TRADE, OR BUSINESS (ARTICLES 19 (1) (G) AND 19 (6))
Article 19 (1) (G) guarantees the right to practice any profession or to carry any occupation, trade, or business. It uses the four expressions which have similar connotations – are not identical. However, this right is not unqualified. It can be restricted and regulated by the authority of law. The restriction must satisfy the following conditions-
I. In the interest of the general public;
II. Prescribing professional and technical qualifications necessary for practicing any profession or carrying on any occupation, trade, or business;
III. Enabling the state to carry on any trade or business to the exclusion of citizens wholly or partially.
The Supreme Court held that in a democratic form of government voters have the right to know antecedents of candidates for election to Parliament or State Legislature.
All the above-mentioned rights are subject to the test of reasonability, as laid down in clauses (2)- (6) of Article 19. None of these freedoms is absolute as it is liable to be curtailed by laws made or to be made by the State to the extent mentioned in clauses (2)-(6) of Article 19.
1. D. Basu, Introduction to the Constitution of India (Wadhwa, Nagpur, 2011)
2. Dr. M.P. Jain, Indian Constitutional Law (Lexis Nexis, Butterworths, 2002)
3. Narender Kumar, Constitutional Law of India (Allahabad Law Agency, 2020)
4. A.K. Jain, Constitutional Law of India (Ascent Publications, New Delhi , 2018)