RIGHT TO FREEDOM UNDER ARTICLE 19 OF THE CONSTITUTION OF INDIA AND NEW CHALLENGES
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Nov 24, 2023
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About This Presentation
RIGHT TO FREEDOM UNDER ARTICLE 19 OF THE CONSTITUTION OF INDIA AND NEW CHALLENGES
Slide Content
1. INTRODUCTION
The origin of Fundamental Rights, which are also known as Natural Rights Human Rights,
Basic Rights, or Inalienable Rights, is based on the theory of Natural Law. The idea that
people have certain rights, which cannot be taken away, began with the theory of Natural
Law. This theory states that natural order exists in the universe because all things are created
by Nature or God. Everything has its own qualities and is subject to the rules of Nature to
achieve its full potential.
The fundamental rights were included in the constitution because they were considered
essential for the development of the personality of every individual and to preserve human
dignity. The Fundamental Rights are enshrined in Part III of the Constitution from Articles
12 to 35. The framers of the Constitution derived the inspiration for Fundamental Rights
from the Constitution of the USA (i.e., the Bill of Rights).
Part III of the Constitution is rightly described as the Magna Carta of India. It contains a
very long and comprehensive list of ‘justiciable’ Fundamental Rights. The Fundamental
Rights in our Constitution are more elaborate than those found in the Constitution of any
other country in the world, including the USA. All people, irrespective of race, religion,
caste, or sex, have been given the right to move the Supreme Court and the High Courts for
the enforcement of their fundamental rights. The Fundamental Rights are named so because
they are guaranteed and protected by the Constitution, which is the fundamental law of the
land. They are ‘fundamental’ also in the sense that they are essential for the all-around
development (material, intellectual, moral, and spiritual) of the individuals.
Originally, the Constitution provided for seven Fundamental Rights. These are;
1. Right to equality (Articles 14–18)
2. Right to freedom (Articles 19–22)
3. Right against exploitation (Articles 23–24)
4. Right to freedom of religion (Articles 25–28)
5. Cultural and educational rights (Articles 29–30)
6. Right to property (Article 31)
7. Right to constitutional remedies (Article 32).
The origin of Fundamental Rights, which are also known as Natural Rights Human Rights,
Basic Rights, or Inalienable Rights, is based on the theory of Natural Law. The idea that
people have certain rights, which cannot be taken away, began with the theory of Natural
Law. This theory states that natural order exists in the universe because all things are created
by Nature or God. Everything has its own qualities and is subject to the rules of Nature to
achieve its full potential.
The fundamental rights were included in the constitution because they were considered
essential for the development of the personality of every individual and to preserve human
dignity. The Fundamental Rights are enshrined in Part III of the Constitution from Articles
12 to 35. The framers of the Constitution derived the inspiration for Fundamental Rights
from the Constitution of the USA (i.e., the Bill of Rights).
Part III of the Constitution is rightly described as the Magna Carta of India. It contains a
very long and comprehensive list of ‘justiciable’ Fundamental Rights. The Fundamental
Rights in our Constitution are more elaborate than those found in the Constitution of any
other country in the world, including the USA. All people, irrespective of race, religion,
caste, or sex, have been given the right to move the Supreme Court and the High Courts for
the enforcement of their fundamental rights. The Fundamental Rights are named so because
they are guaranteed and protected by the Constitution, which is the fundamental law of the
land. They are ‘fundamental’ also in the sense that they are essential for the all-around
development (material, intellectual, moral, and spiritual) of the individuals.
Originally, the Constitution provided for seven Fundamental Rights. These are;
1. Right to equality (Articles 14–18)
2. Right to freedom (Articles 19–22)
3. Right against exploitation (Articles 23–24)
4. Right to freedom of religion (Articles 25–28)
5. Cultural and educational rights (Articles 29–30)
6. Right to property (Article 31)
7. Right to constitutional remedies (Article 32).
However, the right to property was deleted from the list of Fundamental Rights by the 44th
Amendment Act, of 1978. It is made a legal right under Article 300-A in Part XII of the
Constitution. So, at present, there are only six Fundamental Rights.
Basic Rights stand for the fundamental ideals that the Indian people uphold. They are
designed to safeguard each person’s dignity and provide environments that allow each
person to express their unique personality to the maximum. The State is required under the
Fundamental Rights to refrain from interfering with individual liberty in all of its forms.
So, the Constitution’s enumeration of fundamental rights acts as a reminder to the
government in charge to uphold such rights and a boundary on the scope of state action.
The Charter of Human Rights adopted by the United Nations Organization has given the
idea of Basic Rights a more tangible and universal texture.
1
Another purpose behind the inclusion of the chapter on Fundamental Rights in the
Constitution is to establish “a government of law and not of man”, that is, a governmental
system where the ruler cannot oppress the ruled by encroaching on citizens’ basic rights
and liberties. The Basic Rights are given sanctity by being included in the Constitution;
thus, the authorities dare not so readily violate them. A parliamentary style of governance
allows for easy passage of bills since the people who form the government are also the
leaders of the majority party in the legislature. Hence, in the absence of a constitutional
provision limiting the power of the state by stating fundamental rights, the risk of an
infringement on a citizen’s right to privacy cannot be completely eliminated. As a
consequence, it has become more common for contemporary democratic nations’
constitutions to include provisions for fundamental rights.
2
The “right to freedom” category includes Article 21, which states that “no individual shall
be deprived of his life or personal liberty unless according to procedure established by law.”
But what is “life” or “personal liberty” is not defined by the Constitution anywhere.
1
Shivangi Singh, Evolution and Development of Fundamental Rights (Unpublished Thesis, Amity University)
2
Dr. Durga Das Basu, Introduction to the Constitution of India 82 (LexisNexis, Gurgaon, 21st edn., 2013).
Amendment Act, of 1978. It is made a legal right under Article 300-A in Part XII of the
Constitution. So, at present, there are only six Fundamental Rights.
Basic Rights stand for the fundamental ideals that the Indian people uphold. They are
designed to safeguard each person’s dignity and provide environments that allow each
person to express their unique personality to the maximum. The State is required under the
Fundamental Rights to refrain from interfering with individual liberty in all of its forms.
So, the Constitution’s enumeration of fundamental rights acts as a reminder to the
government in charge to uphold such rights and a boundary on the scope of state action.
The Charter of Human Rights adopted by the United Nations Organization has given the
idea of Basic Rights a more tangible and universal texture.
1
Another purpose behind the inclusion of the chapter on Fundamental Rights in the
Constitution is to establish “a government of law and not of man”, that is, a governmental
system where the ruler cannot oppress the ruled by encroaching on citizens’ basic rights
and liberties. The Basic Rights are given sanctity by being included in the Constitution;
thus, the authorities dare not so readily violate them. A parliamentary style of governance
allows for easy passage of bills since the people who form the government are also the
leaders of the majority party in the legislature. Hence, in the absence of a constitutional
provision limiting the power of the state by stating fundamental rights, the risk of an
infringement on a citizen’s right to privacy cannot be completely eliminated. As a
consequence, it has become more common for contemporary democratic nations’
constitutions to include provisions for fundamental rights.
2
The “right to freedom” category includes Article 21, which states that “no individual shall
be deprived of his life or personal liberty unless according to procedure established by law.”
But what is “life” or “personal liberty” is not defined by the Constitution anywhere.
1
Shivangi Singh, Evolution and Development of Fundamental Rights (Unpublished Thesis, Amity University)
2
Dr. Durga Das Basu, Introduction to the Constitution of India 82 (LexisNexis, Gurgaon, 21st edn., 2013).
1.1. SALIENT FEATURES OF FUNDAMENT AL RIGHTS
The following characteristics define the Basic Rights protected by the Constitution:
1) Some of them are solely accessible to Indian people, while others are open to
everyone, including residents of other countries and legal entities like
corporations and enterprises.
2) They are qualified rather than absolute. They are subject to reasonable
constraints from the state. The courts, however, will determine whether or not
these limits are reasonable. As a result, they find a balance between social
control and individual liberty, or between the rights of the individual and those
of society as a whole.
3) With a few exceptions, such as those against the State’s action and the action
of private persons, the majority of them are accessible against the State’s
arbitrary action. There are no constitutional remedies available when private
persons infringe the rights that are protected exclusively against State action,
only conventional legal remedies.
4) Although some of them are beneficial and provide people certain benefits,
others are bad and restrict the state’s ability to act.
5) They are justiciable, which enables people to ask the courts to enforce them if
and when they are broken.
6) The Supreme Court protects and guarantees them. As a result, the party that
feels wronged may proceed straight to the Supreme Court rather than having to
file an appeal against the high courts’ decision.
7) They are neither eternal nor sacred. The only way for the Parliament to limit or
abolish them is via a constitutional amendment act, not through a regular act.
Moreover, this may be done without altering the Constitution’s “basic
structure.”
8) They can be suspended during the operation of a National Emergency except
the rights guaranteed by Articles 20 and 21. Further, the six rights guaranteed
by Article 19 can be suspended only when an emergency is declared on the
grounds of war or external aggression (i.e., external emergency) and not on the
ground of armed rebellion (i.e., internal emergency)
The following characteristics define the Basic Rights protected by the Constitution:
1) Some of them are solely accessible to Indian people, while others are open to
everyone, including residents of other countries and legal entities like
corporations and enterprises.
2) They are qualified rather than absolute. They are subject to reasonable
constraints from the state. The courts, however, will determine whether or not
these limits are reasonable. As a result, they find a balance between social
control and individual liberty, or between the rights of the individual and those
of society as a whole.
3) With a few exceptions, such as those against the State’s action and the action
of private persons, the majority of them are accessible against the State’s
arbitrary action. There are no constitutional remedies available when private
persons infringe the rights that are protected exclusively against State action,
only conventional legal remedies.
4) Although some of them are beneficial and provide people certain benefits,
others are bad and restrict the state’s ability to act.
5) They are justiciable, which enables people to ask the courts to enforce them if
and when they are broken.
6) The Supreme Court protects and guarantees them. As a result, the party that
feels wronged may proceed straight to the Supreme Court rather than having to
file an appeal against the high courts’ decision.
7) They are neither eternal nor sacred. The only way for the Parliament to limit or
abolish them is via a constitutional amendment act, not through a regular act.
Moreover, this may be done without altering the Constitution’s “basic
structure.”
8) They can be suspended during the operation of a National Emergency except
the rights guaranteed by Articles 20 and 21. Further, the six rights guaranteed
by Article 19 can be suspended only when an emergency is declared on the
grounds of war or external aggression (i.e., external emergency) and not on the
ground of armed rebellion (i.e., internal emergency)
9) Articles 31A (saving laws relating to the purchase of estates, etc.), 31B
(validating certain acts and regulations contained in the 9th Schedule), and 31C
(saving laws relating to the application of certain directive principles) place
restrictions on their application.
10) The Parliament may limit or revoke their applicability to members of the armed
forces, paramilitary forces, police, intelligence agencies, and similar services
(Article 33).
11) Its use may be limited while martial law is in effect everywhere. To restore
order, martial law is “military rule” implemented under unusual circumstances
(Article 34). It is distinct from declaring a state of emergency.
12) Although some of them may be enforced based on a law created to give them
effect, the majority of them are directly enforceable (self-executory). In order
to ensure consistency throughout the nation, only the Parliament and not state
legislatures may pass such legislation (Article 35).
1.2. FUNDAMENTAL RIGHTS UNDER INDIAN CONSTITUTION
FUNDAMENTAL
RIGHTS
ARTICLES PROVISIONS
RIGHT TO
EQUALITY
14 Equality Before Law
15 Prohibition of Discrimination
16 Equality of Opportunity in Public Employment
17 Abolition of untouchability
18 Abolition of Titles
RIGHT TO
FREEDOM
19
Protection of 6 Rights
i. The right to free speech and expression;
ii. The right to peaceful assembly without the
use of force;
iii. The right to form associations, unions, or
cooperative societies.
iv. The freedom to roam around without
restriction on Indian soil.
(validating certain acts and regulations contained in the 9th Schedule), and 31C
(saving laws relating to the application of certain directive principles) place
restrictions on their application.
10) The Parliament may limit or revoke their applicability to members of the armed
forces, paramilitary forces, police, intelligence agencies, and similar services
(Article 33).
11) Its use may be limited while martial law is in effect everywhere. To restore
order, martial law is “military rule” implemented under unusual circumstances
(Article 34). It is distinct from declaring a state of emergency.
12) Although some of them may be enforced based on a law created to give them
effect, the majority of them are directly enforceable (self-executory). In order
to ensure consistency throughout the nation, only the Parliament and not state
legislatures may pass such legislation (Article 35).
1.2. FUNDAMENTAL RIGHTS UNDER INDIAN CONSTITUTION
FUNDAMENTAL
RIGHTS
ARTICLES PROVISIONS
RIGHT TO
EQUALITY
14 Equality Before Law
15 Prohibition of Discrimination
16 Equality of Opportunity in Public Employment
17 Abolition of untouchability
18 Abolition of Titles
RIGHT TO
FREEDOM
19
Protection of 6 Rights
i. The right to free speech and expression;
ii. The right to peaceful assembly without the
use of force;
iii. The right to form associations, unions, or
cooperative societies.
iv. The freedom to roam around without
restriction on Indian soil.
v. The right to practice any profession and the
freedom to engage in any occupation, trade,
or business in any location within Indian
territory.
20 Protection in Respect of Conviction for Offences
21 Protection of Life and Personal Liberty
21-A Right to Education
22 Protection Against Arrest and Detention
RIGHT AGAINST
EXPLOITATION
23
Prohibition of Human Trafficking and Forced
Labor
24 Prohibition of Child Labor
RIGHT TO
FREEDOM OF
RELIGION
25
Freedom of Conscience, Profession, Practice, and
Propagation
26 Freedom to Manage Religious Affairs
27
Freedom from Taxation for the Promotion of a
Religion
28 Freedom from Attending Religious Instruction
EDUCATIONAL
AND CULTURAL
RIGHTS
29 Protection of Interests of Minorities
30
Right of Minorities to Establish and Administer
Educational Institutions
RIGHT TO
CONSTITUTIONAL
REMEDIES
32
Right to use five writs as remedies for enforcing
one’s fundamental rights:
i. Habeas Corpus: Used to order the release
of someone wrongfully incarcerated.
ii. To order a public authority to carry out its
duties, use a Mandamus.
iii. Quo Warranto: To order someone to leave
a position they are incorrectly supposed to
be in.
iv. Prohibition: Preventing a lower court from
continuing with a matter.
freedom to engage in any occupation, trade,
or business in any location within Indian
territory.
20 Protection in Respect of Conviction for Offences
21 Protection of Life and Personal Liberty
21-A Right to Education
22 Protection Against Arrest and Detention
RIGHT AGAINST
EXPLOITATION
23
Prohibition of Human Trafficking and Forced
Labor
24 Prohibition of Child Labor
RIGHT TO
FREEDOM OF
RELIGION
25
Freedom of Conscience, Profession, Practice, and
Propagation
26 Freedom to Manage Religious Affairs
27
Freedom from Taxation for the Promotion of a
Religion
28 Freedom from Attending Religious Instruction
EDUCATIONAL
AND CULTURAL
RIGHTS
29 Protection of Interests of Minorities
30
Right of Minorities to Establish and Administer
Educational Institutions
RIGHT TO
CONSTITUTIONAL
REMEDIES
32
Right to use five writs as remedies for enforcing
one’s fundamental rights:
i. Habeas Corpus: Used to order the release
of someone wrongfully incarcerated.
ii. To order a public authority to carry out its
duties, use a Mandamus.
iii. Quo Warranto: To order someone to leave
a position they are incorrectly supposed to
be in.
iv. Prohibition: Preventing a lower court from
continuing with a matter.
v. Certiorari is the higher court’s ability to
take an ongoing case from a lower court
and put it before itself.
33
Provides the Parliament with the authority to limit
or abolish the fundamental rights of “Members of
the Armed Forces, paramilitary forces, police
forces, intelligence agencies, and analogous
forces”
34
Provides for the restrictions on fundamental rights
while martial law (military rule) is in force
35
Empowers the Parliament to make laws on
Fundamental Rights
Fundamental rights are essential for everyone’s moral and intellectual growth. The
growth of a person requires the protection of fundamental rights. Several important
basic rights have been included in the Indian constitution in the post-independence
period. Each individual in India is given distinct legal rights under the Constitution. A
brief analysis on the six fundamental rights is provided as under;
1.2.1. Right to Equality (Art. 14 to 18)
The equal legal rights of all people are fully protected by the right to equality.
Discrimination based on caste, creed, religion, place of birth, race, or sexual
orientation is categorically prohibited under the right to equality. It guarantees
that everyone has an equal opportunity to work for the government and forbids
it from treating anybody unfairly at work because of their religion, caste, race,
gender, ancestry, place of birth, place of residence, or any other of these
considerations.
Articles 14 through 18 define equality before the law. The Constitution
guarantees equality before the law and ensures that everyone is treated fairly.
Citizens cannot be treated differently by the state because of their caste, race,
religion, gender, or place of birth. To attain equality, this is necessary.
take an ongoing case from a lower court
and put it before itself.
33
Provides the Parliament with the authority to limit
or abolish the fundamental rights of “Members of
the Armed Forces, paramilitary forces, police
forces, intelligence agencies, and analogous
forces”
34
Provides for the restrictions on fundamental rights
while martial law (military rule) is in force
35
Empowers the Parliament to make laws on
Fundamental Rights
Fundamental rights are essential for everyone’s moral and intellectual growth. The
growth of a person requires the protection of fundamental rights. Several important
basic rights have been included in the Indian constitution in the post-independence
period. Each individual in India is given distinct legal rights under the Constitution. A
brief analysis on the six fundamental rights is provided as under;
1.2.1. Right to Equality (Art. 14 to 18)
The equal legal rights of all people are fully protected by the right to equality.
Discrimination based on caste, creed, religion, place of birth, race, or sexual
orientation is categorically prohibited under the right to equality. It guarantees
that everyone has an equal opportunity to work for the government and forbids
it from treating anybody unfairly at work because of their religion, caste, race,
gender, ancestry, place of birth, place of residence, or any other of these
considerations.
Articles 14 through 18 define equality before the law. The Constitution
guarantees equality before the law and ensures that everyone is treated fairly.
Citizens cannot be treated differently by the state because of their caste, race,
religion, gender, or place of birth. To attain equality, this is necessary.
1.2.2. Right to Freedom (Art. 19 to 22)
It is sometimes referred to as the right to liberty. Every person’s most treasured
dream is to be free. The freedom of speech, of expression, of assembly without
the use of force, of travel across the whole area of our country, of organisation,
of the practise of any profession, and of residence throughout the country are
only a few of the rights that are protected by the right to freedom. These rights,
however, are subject to several limitations.
1.2.3. Right against Exploitation (Art. 23-24)
Many sorts of exploitation have taken place as a result of the historical
hierarchical structure of Indian society. Understanding that being exploited is
comparable to, if not worse than, being mistreated is crucial. This basic right is
crucial in ensuring that no person is subjected to any type of forced labour. No
one may be coerced to labour against their will, even if money is provided. The
Indian constitution forbids any kind of forced labour. Work that is done for less
than the required minimum wage is considered forced labour. Also included as
a constitutional infraction in the document is human trafficking. People may not
be purchased or sold for unlawful or immoral purposes. This sentence also states
that the “bound labour” in question is unlawful.
1.2.4. Righty to Freedom of Religion (Art. 25 to 28)
Every religion that one chooses to practice is fully free. The Constitution refers
to India as a “secular state” due to the country’s multireligious population,
which includes adherents of many other faiths as well as Hindus, Christians,
and Sikhs. It suggests that India does not have a “national” or “state” religion.
However, it gives citizens total freedom to follow whatever religion they desire
and to worship whomever they like. Nonetheless, this shouldn’t interfere with
another person’s religious practises or beliefs. This flexibility is also available
to visitors.
1.2.5. Cultural & Educational Rights (Art. 29-30)
According to cultural and educational rights, every member of society has the
right to keep their original language or script. While considering Indian culture,
its variety immediately springs to mind. Our Constitution holds that diversity is
It is sometimes referred to as the right to liberty. Every person’s most treasured
dream is to be free. The freedom of speech, of expression, of assembly without
the use of force, of travel across the whole area of our country, of organisation,
of the practise of any profession, and of residence throughout the country are
only a few of the rights that are protected by the right to freedom. These rights,
however, are subject to several limitations.
1.2.3. Right against Exploitation (Art. 23-24)
Many sorts of exploitation have taken place as a result of the historical
hierarchical structure of Indian society. Understanding that being exploited is
comparable to, if not worse than, being mistreated is crucial. This basic right is
crucial in ensuring that no person is subjected to any type of forced labour. No
one may be coerced to labour against their will, even if money is provided. The
Indian constitution forbids any kind of forced labour. Work that is done for less
than the required minimum wage is considered forced labour. Also included as
a constitutional infraction in the document is human trafficking. People may not
be purchased or sold for unlawful or immoral purposes. This sentence also states
that the “bound labour” in question is unlawful.
1.2.4. Righty to Freedom of Religion (Art. 25 to 28)
Every religion that one chooses to practice is fully free. The Constitution refers
to India as a “secular state” due to the country’s multireligious population,
which includes adherents of many other faiths as well as Hindus, Christians,
and Sikhs. It suggests that India does not have a “national” or “state” religion.
However, it gives citizens total freedom to follow whatever religion they desire
and to worship whomever they like. Nonetheless, this shouldn’t interfere with
another person’s religious practises or beliefs. This flexibility is also available
to visitors.
1.2.5. Cultural & Educational Rights (Art. 29-30)
According to cultural and educational rights, every member of society has the
right to keep their original language or script. While considering Indian culture,
its variety immediately springs to mind. Our Constitution holds that diversity is
our strength in a country with such a varied population. So, one of minorities’
essential rights is the freedom to maintain their culture. The term “minority”
refers to ethnic or religious groups that are indigenous to a certain region of the
country and who adhere to the same language or faith. It is also permissible for
minority linguistic and religious groups to create their own educational
institutions. They will be able to preserve and develop their own culture as a
result.
1.2.6. Right to Constitutional Remedies (Art. 32-35)
In India, a person may approachcthe Supreme Court in order to have their basic
rights respected. According to Articles 32 and 226 of the Constitution, the
Supreme Court and the High Court are both safeguarded against abuse of this
prerogative. It is referred to as the right to a constitutional remedy. According
to this Article, the Supreme Court and the high courts have the power to impose
basic rights. The rights may also be expanded by regional courts. The court-
martial is not covered by this safety measure, however, since it is governed by
military law.
essential rights is the freedom to maintain their culture. The term “minority”
refers to ethnic or religious groups that are indigenous to a certain region of the
country and who adhere to the same language or faith. It is also permissible for
minority linguistic and religious groups to create their own educational
institutions. They will be able to preserve and develop their own culture as a
result.
1.2.6. Right to Constitutional Remedies (Art. 32-35)
In India, a person may approachcthe Supreme Court in order to have their basic
rights respected. According to Articles 32 and 226 of the Constitution, the
Supreme Court and the High Court are both safeguarded against abuse of this
prerogative. It is referred to as the right to a constitutional remedy. According
to this Article, the Supreme Court and the high courts have the power to impose
basic rights. The rights may also be expanded by regional courts. The court-
martial is not covered by this safety measure, however, since it is governed by
military law.
2. EVOLUTION OF FUNDAMENTAL RIGHTS IN INDIA
The written Magna Carta, which was granted to the English people by King John in the
early years of 1215, guaranteed them their historical privileges. This was the first document
to safeguard people’s liberty. After this, in 1689, the English people’s fundamental
freedoms and rights were consolidated in the form of the Bill of Rights. The Magna Carta
of India, which is section III of the constitution, protects fundamental rights.
India’s development of fundamental human rights protected by the constitution was
influenced by historical precedents like France’s Declaration of the Rights of Man, the
United States Bill of Rights, and England’s Bill of Rights.
The Rowlatt Act passed in 1919, granted the British government and police a wide range
of authority. They permitted the indefinite detention and arrest of people, warrantless
searches and seizures, limits on public meetings, and a heavy hand in the control of the
media. The widespread resistance to this action ultimately sparked nationwide acts of
nonviolent civil disobedience to demand the protection of civil liberties and limits on
governmental authority. The independence of Ireland and the creation of the Irish
constitution had a significant impact on Indians, who aspired to freedom and had their own
government. The Irish constitution’s guiding principles of state policy were also seen
favorably by the Indian populace as a model for how to effectively address complex social
and economic issues across a large and varied country.
In 1928, the Nehru Commission composed of representatives of Indian political parties
proposed constitutional reforms for India that apart from calling for dominion status for
India and elections under universal suffrage, would guarantee rights deemed fundamental,
representation for religious and ethnic minorities, and limit the powers of the government.
In 1931, the Indian National Congress (the largest Indian political party of the time)
adopted resolutions committing itself to the defense of fundamental civil rights, as well as
socio-economic rights such as the minimum wage and the abolition of untouchability
and serfdom. Committing themselves to socialism in 1936, the Congress leaders took
examples from the constitution of the erstwhile USSR, which inspired the fundamental
duties of citizens as a means of collective patriotic responsibility for national interests and
challenges.
The written Magna Carta, which was granted to the English people by King John in the
early years of 1215, guaranteed them their historical privileges. This was the first document
to safeguard people’s liberty. After this, in 1689, the English people’s fundamental
freedoms and rights were consolidated in the form of the Bill of Rights. The Magna Carta
of India, which is section III of the constitution, protects fundamental rights.
India’s development of fundamental human rights protected by the constitution was
influenced by historical precedents like France’s Declaration of the Rights of Man, the
United States Bill of Rights, and England’s Bill of Rights.
The Rowlatt Act passed in 1919, granted the British government and police a wide range
of authority. They permitted the indefinite detention and arrest of people, warrantless
searches and seizures, limits on public meetings, and a heavy hand in the control of the
media. The widespread resistance to this action ultimately sparked nationwide acts of
nonviolent civil disobedience to demand the protection of civil liberties and limits on
governmental authority. The independence of Ireland and the creation of the Irish
constitution had a significant impact on Indians, who aspired to freedom and had their own
government. The Irish constitution’s guiding principles of state policy were also seen
favorably by the Indian populace as a model for how to effectively address complex social
and economic issues across a large and varied country.
In 1928, the Nehru Commission composed of representatives of Indian political parties
proposed constitutional reforms for India that apart from calling for dominion status for
India and elections under universal suffrage, would guarantee rights deemed fundamental,
representation for religious and ethnic minorities, and limit the powers of the government.
In 1931, the Indian National Congress (the largest Indian political party of the time)
adopted resolutions committing itself to the defense of fundamental civil rights, as well as
socio-economic rights such as the minimum wage and the abolition of untouchability
and serfdom. Committing themselves to socialism in 1936, the Congress leaders took
examples from the constitution of the erstwhile USSR, which inspired the fundamental
duties of citizens as a means of collective patriotic responsibility for national interests and
challenges.
While the Constitution was being written, our framers of the Constitution had to consider
the changing world and foresee how our nation would adapt by allowing for civil rights
that might meet their demands. To make this feasible, the fundamental rights subcommittee,
led by J.B. Kripalani, and the drafting committee, led by Dr. B.R. Ambedkar, began the
difficult work of determining the requirements of Indian citizens in light of the challenging
circumstances of division.
When India obtained independence on 15 August 1947, the task of developing a
constitution for the nation was undertaken by the Constituent Assembly of India, composed
of elected representatives under the presidency of Rajendra Prasad. While members of
Congress were composed of a large majority, Congress leaders appointed persons from
diverse political backgrounds to the responsibilities of developing the constitution and
national laws. Notably, Bhimrao Ramji Ambedkar became the chairperson of the drafting
committee, while Jawaharlal Nehru and Sardar Vallabhbhai Patel became chairpersons of
committees and sub-committees responsible for different subjects. A notable development
during that period having a significant effect on the Indian constitution took place on 10
December 1948 when the United Nations General Assembly adopted the Universal
Declaration of Human Rights and called upon all member states to adopt these rights in
their respective constitutions. The Fundamental Rights were included in the 1
st
Draft
Constitution (February 1948), the 2
nd
Draft Constitution (17
th
October 1948), and the 3
rd
and final Draft Constitution (26
th
November 1949), being prepared by the Drafting
Committee.
Fundamental rights serve as the cornerstone of India’s democratic system and secularism.
They provide the necessary circumstances for a person’s physical and moral safety,
promoting social fairness and equality. They also stand up for the rights of people of color
and other marginalized groups in society. Individual liberty is also protected by
fundamental rights. These rights create the rule of law, which keeps the power of the
government from being unchecked.
Over the years, various Judicial Precedents have added strength to the Fundamental Rights
in India. It is considered to be the basic structure of the Constitution.
3
3
Keshavananda Bharati Vs. State of Kerala, AIR 1973 SC 1461
the changing world and foresee how our nation would adapt by allowing for civil rights
that might meet their demands. To make this feasible, the fundamental rights subcommittee,
led by J.B. Kripalani, and the drafting committee, led by Dr. B.R. Ambedkar, began the
difficult work of determining the requirements of Indian citizens in light of the challenging
circumstances of division.
When India obtained independence on 15 August 1947, the task of developing a
constitution for the nation was undertaken by the Constituent Assembly of India, composed
of elected representatives under the presidency of Rajendra Prasad. While members of
Congress were composed of a large majority, Congress leaders appointed persons from
diverse political backgrounds to the responsibilities of developing the constitution and
national laws. Notably, Bhimrao Ramji Ambedkar became the chairperson of the drafting
committee, while Jawaharlal Nehru and Sardar Vallabhbhai Patel became chairpersons of
committees and sub-committees responsible for different subjects. A notable development
during that period having a significant effect on the Indian constitution took place on 10
December 1948 when the United Nations General Assembly adopted the Universal
Declaration of Human Rights and called upon all member states to adopt these rights in
their respective constitutions. The Fundamental Rights were included in the 1
st
Draft
Constitution (February 1948), the 2
nd
Draft Constitution (17
th
October 1948), and the 3
rd
and final Draft Constitution (26
th
November 1949), being prepared by the Drafting
Committee.
Fundamental rights serve as the cornerstone of India’s democratic system and secularism.
They provide the necessary circumstances for a person’s physical and moral safety,
promoting social fairness and equality. They also stand up for the rights of people of color
and other marginalized groups in society. Individual liberty is also protected by
fundamental rights. These rights create the rule of law, which keeps the power of the
government from being unchecked.
Over the years, various Judicial Precedents have added strength to the Fundamental Rights
in India. It is considered to be the basic structure of the Constitution.
3
3
Keshavananda Bharati Vs. State of Kerala, AIR 1973 SC 1461
3. RIGHT TO FREEDOM UNDER INDIAN CONSTITUTION
The definition of “freedom” is simply “not to be constrained in any way.” The idea of
“freedom” is particularly popular among political philosophers in the West. In his work
“Two Ideas of Liberty,” British philosopher Isaiah Berlin introduced the concepts of
negative and positive freedom. Negative freedom, according to him, is the capacity to act
as one pleases without regard to any restraints from the outside world. Positive freedom,
on the other hand, refers to having control over one’s own life and the choices that are made
in it. The distinction between the two is that whereas positive freedom relates to a notion
of oneself that is neither constrained nor governed by others, negative freedom denotes the
freedom to do or not do something.
Hence, freedom encompasses a variety of individual rights such as freedom of movement,
freedom of speech and expression, freedom of religion, the freedom to travel, freedom of
employment, freedom of self-identity, freedom to own property, etc. The state should lessen
its meddling in the business of individuals in order to provide them with these rights. It
ought to function as a base state. These freedoms are essential liberties that any democratic
state offers to its citizens. These liberties have been outlined as essential rights in the
Constitution even in a democratic nation like India.
4
The right to freedom, according to the Indian Constitution, refers to the fundamental rights
given under Article 19 to Article 22. The aim of these rights is to promote the ideals of
liberty held by the Preamble in newly independent India, in order to remove inequalities
amongst individuals and to entitle all individuals to a dignified life. Right to Freedom
comprises the following rights;
19 Protection of certain rights regarding freedom of speech etc.
20 Protection in Respect of Conviction for Offences
21 Protection of Life and Personal Liberty
21-A Right to Education
22 Protection Against Arrest and Detention
In this assignment, I am constraining my discussion with regard to Art. 19 of the
Constitution of India, and that shall be my area of analysis and studies.
4
Right to Freedom, available at: https://blog.ipleaders.in/what-is-the-right-to-freedom/ (Visited on April 2,
2023)
The definition of “freedom” is simply “not to be constrained in any way.” The idea of
“freedom” is particularly popular among political philosophers in the West. In his work
“Two Ideas of Liberty,” British philosopher Isaiah Berlin introduced the concepts of
negative and positive freedom. Negative freedom, according to him, is the capacity to act
as one pleases without regard to any restraints from the outside world. Positive freedom,
on the other hand, refers to having control over one’s own life and the choices that are made
in it. The distinction between the two is that whereas positive freedom relates to a notion
of oneself that is neither constrained nor governed by others, negative freedom denotes the
freedom to do or not do something.
Hence, freedom encompasses a variety of individual rights such as freedom of movement,
freedom of speech and expression, freedom of religion, the freedom to travel, freedom of
employment, freedom of self-identity, freedom to own property, etc. The state should lessen
its meddling in the business of individuals in order to provide them with these rights. It
ought to function as a base state. These freedoms are essential liberties that any democratic
state offers to its citizens. These liberties have been outlined as essential rights in the
Constitution even in a democratic nation like India.
4
The right to freedom, according to the Indian Constitution, refers to the fundamental rights
given under Article 19 to Article 22. The aim of these rights is to promote the ideals of
liberty held by the Preamble in newly independent India, in order to remove inequalities
amongst individuals and to entitle all individuals to a dignified life. Right to Freedom
comprises the following rights;
19 Protection of certain rights regarding freedom of speech etc.
20 Protection in Respect of Conviction for Offences
21 Protection of Life and Personal Liberty
21-A Right to Education
22 Protection Against Arrest and Detention
In this assignment, I am constraining my discussion with regard to Art. 19 of the
Constitution of India, and that shall be my area of analysis and studies.
4
Right to Freedom, available at: https://blog.ipleaders.in/what-is-the-right-to-freedom/ (Visited on April 2,
2023)
3.1. BIRTH OF FREEDOM OF SPEECH UNDER THE INDIAN
CONSTITUTION
Indian freedoms were completely at risk during the colonial period. The mass Indian
population’s freedom of speech and expression was really restricted by the horrors
committed by the British Empire. The British used all legal means at their disposal to
stifle Indians’ freedom of expression, from the Sedition laws they put on them in 1870
through Section 295A of the Hate Speech Law, in an effort to quell the revolutionary
emotions that were driving the population towards an independent uprising. The very
basic freedom of speech and expression that people had previously been denied was
also made possible by the Prevention of Seditious Meeting Act, 1907, which forbade
open debates and the formation of unions. The concept of free speech was also adapted
by the authors and architects of the Indian Constitution from the democratic principles
enshrined in the US Constitution. The American Constitution places a high value on
freedom of speech and expression.
3.2. ARTICLE 19 OF THE CONSTITUTION OF INDIA
Article 19 (1) of the Constitution, guarantees certain fundamental rights, subject to the
power of the State to impose restrictions on the exercise of those rights. The Article
was thus intended to protect these rights against State action other than in the legitimate
exercise of its power to regulate private rights in the public interest.
3.2.1. Freedom of Speech and Expression:
Expression is a matter of liberty and right. The liberty of thought and the right
to know are the sources of expression. Free Speech is the live wire of
democracy. Freedom of expression is integral to the expansion and fulfillment
of individual personality. Freedom of expression is more essential in a
democratic setup of a State where people are Sovereign rulers. Iver Jennings
said, without freedom of speech, the appeal to reason which is the basis of
democracy cannot be made.
CONSTITUTION
Indian freedoms were completely at risk during the colonial period. The mass Indian
population’s freedom of speech and expression was really restricted by the horrors
committed by the British Empire. The British used all legal means at their disposal to
stifle Indians’ freedom of expression, from the Sedition laws they put on them in 1870
through Section 295A of the Hate Speech Law, in an effort to quell the revolutionary
emotions that were driving the population towards an independent uprising. The very
basic freedom of speech and expression that people had previously been denied was
also made possible by the Prevention of Seditious Meeting Act, 1907, which forbade
open debates and the formation of unions. The concept of free speech was also adapted
by the authors and architects of the Indian Constitution from the democratic principles
enshrined in the US Constitution. The American Constitution places a high value on
freedom of speech and expression.
3.2. ARTICLE 19 OF THE CONSTITUTION OF INDIA
Article 19 (1) of the Constitution, guarantees certain fundamental rights, subject to the
power of the State to impose restrictions on the exercise of those rights. The Article
was thus intended to protect these rights against State action other than in the legitimate
exercise of its power to regulate private rights in the public interest.
3.2.1. Freedom of Speech and Expression:
Expression is a matter of liberty and right. The liberty of thought and the right
to know are the sources of expression. Free Speech is the live wire of
democracy. Freedom of expression is integral to the expansion and fulfillment
of individual personality. Freedom of expression is more essential in a
democratic setup of a State where people are Sovereign rulers. Iver Jennings
said, without freedom of speech, the appeal to reason which is the basis of
democracy cannot be made.
According to Justice Krishna Iyer, “This freedom is essential because the
censorial power lies in the people over and against the Government and not in
the Government over and against the people.”
Freedom of speech and expression is required to fulfill the following objectives:
a) To discover the truth
b) Non-self-fulfillment
c) Democratic value
d) To ensure pluralism
In order to create India a sovereign, democratic, socialist, secular, and
republican nation, the people of India gave themselves the Constitution of India.
Freedom of speech and expression, which is the mother of all rights, holds a
special position in our democratic society. Securing LIBERTY OF THOUGHT
AND EXPRESSION to all people is one of the major goals of the Indian
Constitution, as stated in the Preamble. A fundamental human right is the
freedom of expression. It is the expression and actual implementation of
individual thinking freedom. No matter the kind of government, freedom of
speech is mentioned in many constitutions.
In Bennett Coleman & Co. v. Union of India
5
, the Supreme Court held that
newspapers should be left free to determine their pages and their circulation.
This case arose out of a constitutional challenge to the validity of the Newspaper
(Price & Page) Act, of 1956 which empowered the Government to regulate the
allocation of space for advertisement matters. The court held that the
curtailment of advertisements would fall foul of Article 19(1)(a), since it would
have a direct impact on the circulation of newspapers. The court held that any
restriction leading to a loss of advertising revenue would affect circulation and
thereby impinge on the freedom of speech.
5
1973 AIR 106
censorial power lies in the people over and against the Government and not in
the Government over and against the people.”
Freedom of speech and expression is required to fulfill the following objectives:
a) To discover the truth
b) Non-self-fulfillment
c) Democratic value
d) To ensure pluralism
In order to create India a sovereign, democratic, socialist, secular, and
republican nation, the people of India gave themselves the Constitution of India.
Freedom of speech and expression, which is the mother of all rights, holds a
special position in our democratic society. Securing LIBERTY OF THOUGHT
AND EXPRESSION to all people is one of the major goals of the Indian
Constitution, as stated in the Preamble. A fundamental human right is the
freedom of expression. It is the expression and actual implementation of
individual thinking freedom. No matter the kind of government, freedom of
speech is mentioned in many constitutions.
In Bennett Coleman & Co. v. Union of India
5
, the Supreme Court held that
newspapers should be left free to determine their pages and their circulation.
This case arose out of a constitutional challenge to the validity of the Newspaper
(Price & Page) Act, of 1956 which empowered the Government to regulate the
allocation of space for advertisement matters. The court held that the
curtailment of advertisements would fall foul of Article 19(1)(a), since it would
have a direct impact on the circulation of newspapers. The court held that any
restriction leading to a loss of advertising revenue would affect circulation and
thereby impinge on the freedom of speech.
5
1973 AIR 106
In Indian Express Newspapers v. Union of India
6
, a challenge to the imposition
of customs duty on the import of newsprint was allowed and the impugned levy
was struck down. The Supreme Court held that the expression of freedom of the
press though not expressly used in Article 19 was comprehended within Article
19(1)(a) and meant freedom from interference from an authority that would
have the effect of interference with the content & the circulation of newspapers.
In Secretary, Ministry of Information and Broadcasting v. Cricket
Association, Bengal
7
, the Supreme Court held that broadcasting is a means of
communication and a medium of speech and expression within the framework
of Article 19(1)(a). This case involved the rights of a cricket association to grant
telecast rights to an agency of its choice. It was held that the right to entertain
and to be entertained, in this case, through the broadcasting media are an integral
part of the freedom under Article 19(l)(a).
The Indian Constitution’s Article 19 (1)(a) provides “the right to freedom of
speech and expression” to all of its inhabitants, including the media. In addition,
clause (2) of Article 19 states that nothing in sub-clause (a) of clause (1) shall
affect the operation of any current law or preclude the State from enacting new
legislation insofar as such legislation places reasonable limitations on the
exercise of the right conferred by the said sub-clause in the interest of:
a) Sovereignty and Integrity of India.
b) The state’s security.
c) Goodwill towards other countries.
d) Law and order.
e) Morality or decency.
f) Disrespect for the law.
g) Defamation.
h) Provocation of an offense.
6
1986 AIR 515
7
1995 AIR 1236
6
, a challenge to the imposition
of customs duty on the import of newsprint was allowed and the impugned levy
was struck down. The Supreme Court held that the expression of freedom of the
press though not expressly used in Article 19 was comprehended within Article
19(1)(a) and meant freedom from interference from an authority that would
have the effect of interference with the content & the circulation of newspapers.
In Secretary, Ministry of Information and Broadcasting v. Cricket
Association, Bengal
7
, the Supreme Court held that broadcasting is a means of
communication and a medium of speech and expression within the framework
of Article 19(1)(a). This case involved the rights of a cricket association to grant
telecast rights to an agency of its choice. It was held that the right to entertain
and to be entertained, in this case, through the broadcasting media are an integral
part of the freedom under Article 19(l)(a).
The Indian Constitution’s Article 19 (1)(a) provides “the right to freedom of
speech and expression” to all of its inhabitants, including the media. In addition,
clause (2) of Article 19 states that nothing in sub-clause (a) of clause (1) shall
affect the operation of any current law or preclude the State from enacting new
legislation insofar as such legislation places reasonable limitations on the
exercise of the right conferred by the said sub-clause in the interest of:
a) Sovereignty and Integrity of India.
b) The state’s security.
c) Goodwill towards other countries.
d) Law and order.
e) Morality or decency.
f) Disrespect for the law.
g) Defamation.
h) Provocation of an offense.
6
1986 AIR 515
7
1995 AIR 1236
3.2.2. Freedom to Assemble:
As it is made possible and constrained by the confluence of the criminal process
code and the constitutional text, the right to assemble is of particular relevance
within the field of constitutional law. While the Constitution recognizes it as a
right, procedural rules drastically impede this freedom by giving the
government the ability to control its expression and forcibly restrict its use. This
rather paradoxical strategy reflects the colonial history and the Indian State’s
unquestioned embrace of the majority of the 1872 Code of Criminal Procedure’s
provisions. It is regrettable that contemporary India is carrying on this tradition
in terms of rights for association and assembly. In Himat Lal K. Shah v.
Commissioner of Police
8
, the Supreme Court evaluated whether the petitioners’
Article 19 (1) rights were infringed by the requirement that prior written
permission from the policeise obtained before conducting a public assembly on
a public thoroughfare. Here, the regulation in issue gave the Commissioner or a
representative of her the authority to deny authorization for the meeting.
Chief Justice Sikri, writing for the majority, differentiated between a legislative
provision allowing the control of behavior in assemblies and processions and a
rule allowing the rejection of permission to organize public gatherings on public
roadways without prescribing rules for the officer in charge. The necessity for
previous authorization did not bother him, in his opinion “The right that arises
from Article 19(1)(b) does not include the freedom to have a meeting whenever
and whenever. It is a right that is subject to regulation.” He revoked the officer’s
arbitrary authority granted by the police commissioner.
In Kameshwar Prasad v. State of Bihar
9
, an ordinance that prohibited
government workers from participating in any kind of protest was reviewed.
The court finds that a government employee’s basic rights were not violated and
that Article 19 (1) (b) is violated by the provision that forbids both orderly and
disruptive protests. The Court did not object to the idea that the rights or
freedoms of government workers as a group may be restricted. “By accepting
8
(1973) 1 SCC 227
9
1962 AIR 1166
As it is made possible and constrained by the confluence of the criminal process
code and the constitutional text, the right to assemble is of particular relevance
within the field of constitutional law. While the Constitution recognizes it as a
right, procedural rules drastically impede this freedom by giving the
government the ability to control its expression and forcibly restrict its use. This
rather paradoxical strategy reflects the colonial history and the Indian State’s
unquestioned embrace of the majority of the 1872 Code of Criminal Procedure’s
provisions. It is regrettable that contemporary India is carrying on this tradition
in terms of rights for association and assembly. In Himat Lal K. Shah v.
Commissioner of Police
8
, the Supreme Court evaluated whether the petitioners’
Article 19 (1) rights were infringed by the requirement that prior written
permission from the policeise obtained before conducting a public assembly on
a public thoroughfare. Here, the regulation in issue gave the Commissioner or a
representative of her the authority to deny authorization for the meeting.
Chief Justice Sikri, writing for the majority, differentiated between a legislative
provision allowing the control of behavior in assemblies and processions and a
rule allowing the rejection of permission to organize public gatherings on public
roadways without prescribing rules for the officer in charge. The necessity for
previous authorization did not bother him, in his opinion “The right that arises
from Article 19(1)(b) does not include the freedom to have a meeting whenever
and whenever. It is a right that is subject to regulation.” He revoked the officer’s
arbitrary authority granted by the police commissioner.
In Kameshwar Prasad v. State of Bihar
9
, an ordinance that prohibited
government workers from participating in any kind of protest was reviewed.
The court finds that a government employee’s basic rights were not violated and
that Article 19 (1) (b) is violated by the provision that forbids both orderly and
disruptive protests. The Court did not object to the idea that the rights or
freedoms of government workers as a group may be restricted. “By accepting
8
(1973) 1 SCC 227
9
1962 AIR 1166
the contention that the freedoms guaranteed by Part Ill, and in particular those
in Article 19(1)(a), apply to the servants of Government, we should not be taken
to imply that in relation to this class of citizens, the responsibility arising from
the official position would not by itself impose some limitations on the exercise
of their rights as citizens,” the apex court writes.
Restrictions on the freedom of assembly:
Nothing in the right to assemble peacefully shall affect the operation of any
existing law insofar as it imposes or prevents the State from enacting any law
imposing reasonable restrictions on the exercise of that right in the interests of
the sovereignty and integrity of India or public order, according to Article 19(3)
of the Constitution. Once the Constitution was adopted, limits relating to
sovereignty and integrity were introduced.
3.2.3. Freedom of Association
The freedom “to organize associations and unions or cooperative organizations”
is guaranteed to all Indian citizens under Article 19(1)(c) of the Indian
Constitution. In accordance with Article 19 clause (4), the state may pass laws
that place reasonable limitations on this right for the purpose of maintaining
public morality, public order, or India’s sovereignty and integrity. The extent of
the freedom to organize groups, unions, or cooperative societies is quite broad
and includes all types of associations, such as political parties, clubs, societies,
businesses, organizations, trade unions, etc.
The ability to organize a union should not imply that the unions have a
guaranteed right to successful collective bargaining or the right to go on strike
either in connection with or independent of collective bargaining. Several
industrial laws, such as the Industrial Dispute Act or the Trade Unions Act, may
govern or restrict the right to strike or call a lockout.
Right to form association does not carry the right to recognition
Right to form association does not carry the right to strike,
Right to form association does not carry the right to inform rival union
in Article 19(1)(a), apply to the servants of Government, we should not be taken
to imply that in relation to this class of citizens, the responsibility arising from
the official position would not by itself impose some limitations on the exercise
of their rights as citizens,” the apex court writes.
Restrictions on the freedom of assembly:
Nothing in the right to assemble peacefully shall affect the operation of any
existing law insofar as it imposes or prevents the State from enacting any law
imposing reasonable restrictions on the exercise of that right in the interests of
the sovereignty and integrity of India or public order, according to Article 19(3)
of the Constitution. Once the Constitution was adopted, limits relating to
sovereignty and integrity were introduced.
3.2.3. Freedom of Association
The freedom “to organize associations and unions or cooperative organizations”
is guaranteed to all Indian citizens under Article 19(1)(c) of the Indian
Constitution. In accordance with Article 19 clause (4), the state may pass laws
that place reasonable limitations on this right for the purpose of maintaining
public morality, public order, or India’s sovereignty and integrity. The extent of
the freedom to organize groups, unions, or cooperative societies is quite broad
and includes all types of associations, such as political parties, clubs, societies,
businesses, organizations, trade unions, etc.
The ability to organize a union should not imply that the unions have a
guaranteed right to successful collective bargaining or the right to go on strike
either in connection with or independent of collective bargaining. Several
industrial laws, such as the Industrial Dispute Act or the Trade Unions Act, may
govern or restrict the right to strike or call a lockout.
Right to form association does not carry the right to recognition
Right to form association does not carry the right to strike,
Right to form association does not carry the right to inform rival union
Restrictions on the Freedom of Association
The right of association like other individual freedom is not unrestricted. Clause
(4) of Article 19 empowers the State to impose reasonable restrictions on the
right of freedom of association and union in the interest of “public order” or
“morality” or “sovereignty or integrity” of India. It saves existing laws so far as
they are not inconsistent with the fundamental right of association.
3.2.4. Freedom to Move Freely throughout the Territory of India
All Indian citizens have the freedom to “travel freely across the territory of
India,” according to Article 19(1)(d). This right is still subject to the reasonable
limitations listed in Article 19’s paragraph (5), namely those necessary to
preserve the interests of any Scheduled Tribe or the general public. The freedom
to travel unrestrictedly across Indian territory is guaranteed to its residents under
Article 19(1)(d) of the Constitution. They are able to migrate within the same
State as well as from one State to another. Any legislation cannot restrict this
freedom unless it does so within the restrictions outlined in Article 19. (5). The
whole region is one entity as far as the residents are concerned, which is what
the Constitution emphasizes. Hence, the goal was to instill in Indian residents a
sense of nationalism rather than a petty, local mindset.
Reasonable Restrictions:
The State may under clause (5) of Article 19 impose reasonable restriction on
the freedom of movement on two grounds;
a) In the interests of the general public
b) For the protection of the interest of Scheduled Tribes.
3.2.5. Freedom to Reside and Settle in any parts of the Territory of India
Every Indian citizen has the right “to stay and settle in any portion of the
territory of India,” as stated in Article 19(1)(e). Nevertheless, in accordance with
Article 19’s paragraph (5), this right may be subject to legal restrictions that are
reasonable and necessary for the preservation of any Scheduled Tribe’s interests
or the general welfare.
The right of association like other individual freedom is not unrestricted. Clause
(4) of Article 19 empowers the State to impose reasonable restrictions on the
right of freedom of association and union in the interest of “public order” or
“morality” or “sovereignty or integrity” of India. It saves existing laws so far as
they are not inconsistent with the fundamental right of association.
3.2.4. Freedom to Move Freely throughout the Territory of India
All Indian citizens have the freedom to “travel freely across the territory of
India,” according to Article 19(1)(d). This right is still subject to the reasonable
limitations listed in Article 19’s paragraph (5), namely those necessary to
preserve the interests of any Scheduled Tribe or the general public. The freedom
to travel unrestrictedly across Indian territory is guaranteed to its residents under
Article 19(1)(d) of the Constitution. They are able to migrate within the same
State as well as from one State to another. Any legislation cannot restrict this
freedom unless it does so within the restrictions outlined in Article 19. (5). The
whole region is one entity as far as the residents are concerned, which is what
the Constitution emphasizes. Hence, the goal was to instill in Indian residents a
sense of nationalism rather than a petty, local mindset.
Reasonable Restrictions:
The State may under clause (5) of Article 19 impose reasonable restriction on
the freedom of movement on two grounds;
a) In the interests of the general public
b) For the protection of the interest of Scheduled Tribes.
3.2.5. Freedom to Reside and Settle in any parts of the Territory of India
Every Indian citizen has the right “to stay and settle in any portion of the
territory of India,” as stated in Article 19(1)(e). Nevertheless, in accordance with
Article 19’s paragraph (5), this right may be subject to legal restrictions that are
reasonable and necessary for the preservation of any Scheduled Tribe’s interests
or the general welfare.
Eliminating internal obstacles inside India or any of its portions is the goal of
the clause. As used in this Article, the phrase “the territory of India” denotes the
freedom to live anywhere and in any region of the Indian State. ·
It should be mentioned that the freedom to roam about the nation and the right
to live there are complimentary and often coexist. As a result, the majority of
the instances examined under Article 19(1)(d) also pertain to Article 19(l)(e).
This privilege is subject to legal limitations that are fair and necessary to
safeguard the interests of the general public or any Scheduled Tribes. So, it was
seen to be a fair limitation when a prostitute was told to leave the boundaries of
a big city or had her mobility and residency restricted under the Suppression of
Immoral Trade in Women and Girls Act, of 1956.
3.2.6. Freedom to Practice any Profession, or to carry on any occupation, trade,
or business
The freedom to practice any profession or to engage in any employment, trade
or business is guaranteed to all citizens under Article 19(1)(g) of the Indian
Constitution, subject to Art.19(6), which lists the kind of restrictions the state
may place on the aforementioned right of the people. The ability to conduct any
specific form of business of one’s choosing is granted to all people by Article
19(1), subclause (g). But, this does not give someone the right to engage in
behavior that is criminal in the eyes of the law or to hold a certain job or occupy
a particular position of their choosing. Moreover, Art. 19(1)(g) does not imply
that conditions be established by the state or other statutory authority in order
to increase the profitability of any trade or to attract clients to the company or
businessman. Moreover, a person who occupies a location illegally cannot claim
a fundamental right to operate a company there because a citizen cannot use a
fundamental right to justify an illegal conduct or to prevent a statutory authority
from legitimately carrying out its statutory duties.
The Supreme Court has affirmed socially controlled laws in a number of
instances in light of directive principles, taking into consideration the regulated
and planned economy, and the operations of private businesses have been
greatly constrained. But, under Article 19(6), the state is not prohibited from
the clause. As used in this Article, the phrase “the territory of India” denotes the
freedom to live anywhere and in any region of the Indian State. ·
It should be mentioned that the freedom to roam about the nation and the right
to live there are complimentary and often coexist. As a result, the majority of
the instances examined under Article 19(1)(d) also pertain to Article 19(l)(e).
This privilege is subject to legal limitations that are fair and necessary to
safeguard the interests of the general public or any Scheduled Tribes. So, it was
seen to be a fair limitation when a prostitute was told to leave the boundaries of
a big city or had her mobility and residency restricted under the Suppression of
Immoral Trade in Women and Girls Act, of 1956.
3.2.6. Freedom to Practice any Profession, or to carry on any occupation, trade,
or business
The freedom to practice any profession or to engage in any employment, trade
or business is guaranteed to all citizens under Article 19(1)(g) of the Indian
Constitution, subject to Art.19(6), which lists the kind of restrictions the state
may place on the aforementioned right of the people. The ability to conduct any
specific form of business of one’s choosing is granted to all people by Article
19(1), subclause (g). But, this does not give someone the right to engage in
behavior that is criminal in the eyes of the law or to hold a certain job or occupy
a particular position of their choosing. Moreover, Art. 19(1)(g) does not imply
that conditions be established by the state or other statutory authority in order
to increase the profitability of any trade or to attract clients to the company or
businessman. Moreover, a person who occupies a location illegally cannot claim
a fundamental right to operate a company there because a citizen cannot use a
fundamental right to justify an illegal conduct or to prevent a statutory authority
from legitimately carrying out its statutory duties.
The Supreme Court has affirmed socially controlled laws in a number of
instances in light of directive principles, taking into consideration the regulated
and planned economy, and the operations of private businesses have been
greatly constrained. But, under Article 19(6), the state is not prohibited from
passing legislation restricting the enjoyment of the basic right in a reasonable
manner for the benefit of the general populace. For one to practice a profession,
there must be legislation governing technical or professional credentials. Article
19 will provide protection for laws that establish professional qualifications (6).
Nothing in Subclause(g) of Clause (1) of Article 19 shall hinder the State’s
ability to conduct any trade, business, industry, or service, whether it be to the
total or partial exclusion of citizens or otherwise if it is not in the interest of the
general public, according to Article 19(6)(ii). If the State is not engaged in
commerce, Article 19(6)(ii) will not apply.
3.3. AN ANALYSIS OF HATE SPEECH
Hate speech originated in America in the early 1990s as a result of an odd civil
marriage of the left and right. Tipper Gore and Lynne Cheney started lobbying for
government censorship of everything they considered disagreeable in an effort to ban
the right to Free Speech of dissidents. They shared a political worldview that was
opposed to the other’s. Hate speech was created in this patriotic manner.
The phrase “hate speech” is often used in daily speech to refer generally to unpleasant
discourse that targets a group or an individual based on intrinsic traits, such as race,
religion, or gender, harming communal peace. International human rights legislation
does not have a single definition of hate speech since the topic is still highly debatable,
especially in light of how it pertains to free expression, non-discrimination, and
equality.
3.3.1. International Perspective of Hate Speech
In terms of international human rights legislation, the concept of hate speech is
still fiercely debated, particularly in light of how it pertains to equality, non-
discrimination, and freedom of expression. As a consequence, there is no
definition of hate speech under these laws.
10
10
Hate Speech, available at: https://www.legalserviceindia.com/legal/article-9495-analysis-on-hate-
speech.html (Visited on April 2, 2023)
manner for the benefit of the general populace. For one to practice a profession,
there must be legislation governing technical or professional credentials. Article
19 will provide protection for laws that establish professional qualifications (6).
Nothing in Subclause(g) of Clause (1) of Article 19 shall hinder the State’s
ability to conduct any trade, business, industry, or service, whether it be to the
total or partial exclusion of citizens or otherwise if it is not in the interest of the
general public, according to Article 19(6)(ii). If the State is not engaged in
commerce, Article 19(6)(ii) will not apply.
3.3. AN ANALYSIS OF HATE SPEECH
Hate speech originated in America in the early 1990s as a result of an odd civil
marriage of the left and right. Tipper Gore and Lynne Cheney started lobbying for
government censorship of everything they considered disagreeable in an effort to ban
the right to Free Speech of dissidents. They shared a political worldview that was
opposed to the other’s. Hate speech was created in this patriotic manner.
The phrase “hate speech” is often used in daily speech to refer generally to unpleasant
discourse that targets a group or an individual based on intrinsic traits, such as race,
religion, or gender, harming communal peace. International human rights legislation
does not have a single definition of hate speech since the topic is still highly debatable,
especially in light of how it pertains to free expression, non-discrimination, and
equality.
3.3.1. International Perspective of Hate Speech
In terms of international human rights legislation, the concept of hate speech is
still fiercely debated, particularly in light of how it pertains to equality, non-
discrimination, and freedom of expression. As a consequence, there is no
definition of hate speech under these laws.
10
10
Hate Speech, available at: https://www.legalserviceindia.com/legal/article-9495-analysis-on-hate-
speech.html (Visited on April 2, 2023)
The UN Strategy and Plan of Action on Hate Speech seeks to provide a
comprehensive framework for the UN system to address the issue on a global
scale. Hate speech is defined as any speech, writing, or behavior that disparages
or utilizes derogatory words to refer to an individual or a group of individuals
based on who they are, such as based on their religion, origins, nation, race,
color, birth, gender, or another identifiable trait.
3.3.2. Indian Perspective of Hate Speech
Article 19(1)(a) of the Indian Constitution guarantees the right to freedom of
speech and expression. Notwithstanding this, the Constitution’s Article 19(2)
permits reasonable restrictions on free speech. where such restrictions are
required to safeguard India’s integrity, security, friendly relations with other
nations, preservation of the rule of law, and morality, or in situations involving
contempt for the court, defamation, or solicitation to commit an offense.
11
The diversity of religions, ethnicities, cultures, etc in India makes it essential to
ensure that religious, racial, and ethnic tolerance prevails. The significance of
this can be seen in various sections of the IPC, which prohibit and punish hate
crimes. Some of the important sections of IPC, which are attracted in response
to hate speech, such as S. 153A, S. 153B, S. 295A AND S. 505(2)
The laws listed below, in addition to the Indian Penal Code, contained
provisions addressing hate speech: Under the 1951 Representation of the
People Act, a person who has been found guilty of violating their right to free
speech and expression is unable to run for office.
It is forbidden to advocate for untouchability by words (spoken or written),
signs, or other outward expressions under the Protection of the Civil Rights Act
of 1955.
11
Ibid
comprehensive framework for the UN system to address the issue on a global
scale. Hate speech is defined as any speech, writing, or behavior that disparages
or utilizes derogatory words to refer to an individual or a group of individuals
based on who they are, such as based on their religion, origins, nation, race,
color, birth, gender, or another identifiable trait.
3.3.2. Indian Perspective of Hate Speech
Article 19(1)(a) of the Indian Constitution guarantees the right to freedom of
speech and expression. Notwithstanding this, the Constitution’s Article 19(2)
permits reasonable restrictions on free speech. where such restrictions are
required to safeguard India’s integrity, security, friendly relations with other
nations, preservation of the rule of law, and morality, or in situations involving
contempt for the court, defamation, or solicitation to commit an offense.
11
The diversity of religions, ethnicities, cultures, etc in India makes it essential to
ensure that religious, racial, and ethnic tolerance prevails. The significance of
this can be seen in various sections of the IPC, which prohibit and punish hate
crimes. Some of the important sections of IPC, which are attracted in response
to hate speech, such as S. 153A, S. 153B, S. 295A AND S. 505(2)
The laws listed below, in addition to the Indian Penal Code, contained
provisions addressing hate speech: Under the 1951 Representation of the
People Act, a person who has been found guilty of violating their right to free
speech and expression is unable to run for office.
It is forbidden to advocate for untouchability by words (spoken or written),
signs, or other outward expressions under the Protection of the Civil Rights Act
of 1955.
11
Ibid
The Religious Institutions (Prevention of Misuse) Act of 1988 forbids stirring
up animosity or other hostile attitudes between various religious, racial, and
linguistic, or groups, classes, or tribes.
The Cinematograph Act of 1952 and the Cable Television Network Regulation
Act of 1995 both address the prevention and regulation of the online transfer of
any data meant to incite hatred.
the Supreme Court discussed the effects of hate speech on society as a whole in
Babu Rao Patel v. State of Delhi
12
. Pravasi Bhalai Sangathan v. Union of
India
13
is another recent Supreme Court decision (2014). These are instances
where the Supreme Court has not applied Article 19(1)(a) to hate speech.
Tehseen S. Poonawalla v. Union of India
14
, Kodungallur Film Society v.
Union of India
15
, and Amish Devgan v. Union of India
16
are three recent
rulings regarding hate speech by the Indian Supreme Court (2018). (2020). The
Amish Devgan ruling draws a distinct distinction between hate speech and hate
crimes. It has excellent doctrine and a strong legal foundation. In a nutshell, hate
speech is dangerous to democracy, pluralism, and a society based on
constitutional principles, particularly when it transgresses values outlined in the
Preamble of the Constitution, such equality, dignity, fraternity, and liberty.
3.4. THE NEED FOR THE PROTECTION OF FREEDOM OF
SPEECH IN INDIA
India, the second-most populated nation in the world and the biggest democracy in the
world have a very strong need to safeguard its people’s right to free speech and
expression. As India is a secular nation with a wide range of linguistic, religious, caste,
12
1980 AIR 763
13
AIR 2014 SC 1591
14
(2018) 9 SCC 501
15
2018 (5) KHC 297 (SC)
16
(2021) 1 SCC 1
up animosity or other hostile attitudes between various religious, racial, and
linguistic, or groups, classes, or tribes.
The Cinematograph Act of 1952 and the Cable Television Network Regulation
Act of 1995 both address the prevention and regulation of the online transfer of
any data meant to incite hatred.
the Supreme Court discussed the effects of hate speech on society as a whole in
Babu Rao Patel v. State of Delhi
12
. Pravasi Bhalai Sangathan v. Union of
India
13
is another recent Supreme Court decision (2014). These are instances
where the Supreme Court has not applied Article 19(1)(a) to hate speech.
Tehseen S. Poonawalla v. Union of India
14
, Kodungallur Film Society v.
Union of India
15
, and Amish Devgan v. Union of India
16
are three recent
rulings regarding hate speech by the Indian Supreme Court (2018). (2020). The
Amish Devgan ruling draws a distinct distinction between hate speech and hate
crimes. It has excellent doctrine and a strong legal foundation. In a nutshell, hate
speech is dangerous to democracy, pluralism, and a society based on
constitutional principles, particularly when it transgresses values outlined in the
Preamble of the Constitution, such equality, dignity, fraternity, and liberty.
3.4. THE NEED FOR THE PROTECTION OF FREEDOM OF
SPEECH IN INDIA
India, the second-most populated nation in the world and the biggest democracy in the
world have a very strong need to safeguard its people’s right to free speech and
expression. As India is a secular nation with a wide range of linguistic, religious, caste,
12
1980 AIR 763
13
AIR 2014 SC 1591
14
(2018) 9 SCC 501
15
2018 (5) KHC 297 (SC)
16
(2021) 1 SCC 1
and creed groups, freedom of expression is essentially a delicate and fundamental right
that is provided to its residents. The need to defend free expression is shown by:
i. Active engagement in democracy: Since it aids in sound decision-making,
freedom of expression enables people to actively participate in the efficient
running and operation of democracy.
ii. Expression of views and attitudes: In a nation where there are citizens of many
religions, castes, and creeds, freedom of speech facilitates the appropriate
expression of diverse opinions and attitudes.
iii. Development and self-fulfillment: The effective, unrestricted interchange of
ideas and views promotes civic health and yields substantial personal
satisfaction.
iv. Open conversations: are crucial to the operation of democracy and its other
political institutions because they serve to uncover the truth and promote wise
and healthy decision-making.
Time and again, judicial precedents serve to reiterate the importance of the
freedom of speech which is one of most quintessential fundamental right
enshrined under Part III of the Constitution of India.
3.5. LEGAL REMEDIES FOR VIOLATION OF FREEDOM OF
SPEECH
In the event that article 19 (1) (a) is violated, the right to petition the Supreme Court
for the enforcing of one’s freedom of speech and expression is another fundamental
right under article 32 of the Constitution, which deals with remedies for the
enforcement of rights conferred under part III of the Constitution. Even the High
Courts have been granted the same authority as the Supreme Court under Article 226
to make decrees and writs in order to uphold the people’ basic freedom to speech and
expression. Hence, any aggrieved person may approach these courts which are
considered to be the guardian of the Constitution. Public Interest Litigation can also be
filed.
17
17
M. Laxmikanth, Indian Polity for Civil Services Examinations 7.1 (Tata McGraw Hill, New Delhi, 3rd edn., 2010).
that is provided to its residents. The need to defend free expression is shown by:
i. Active engagement in democracy: Since it aids in sound decision-making,
freedom of expression enables people to actively participate in the efficient
running and operation of democracy.
ii. Expression of views and attitudes: In a nation where there are citizens of many
religions, castes, and creeds, freedom of speech facilitates the appropriate
expression of diverse opinions and attitudes.
iii. Development and self-fulfillment: The effective, unrestricted interchange of
ideas and views promotes civic health and yields substantial personal
satisfaction.
iv. Open conversations: are crucial to the operation of democracy and its other
political institutions because they serve to uncover the truth and promote wise
and healthy decision-making.
Time and again, judicial precedents serve to reiterate the importance of the
freedom of speech which is one of most quintessential fundamental right
enshrined under Part III of the Constitution of India.
3.5. LEGAL REMEDIES FOR VIOLATION OF FREEDOM OF
SPEECH
In the event that article 19 (1) (a) is violated, the right to petition the Supreme Court
for the enforcing of one’s freedom of speech and expression is another fundamental
right under article 32 of the Constitution, which deals with remedies for the
enforcement of rights conferred under part III of the Constitution. Even the High
Courts have been granted the same authority as the Supreme Court under Article 226
to make decrees and writs in order to uphold the people’ basic freedom to speech and
expression. Hence, any aggrieved person may approach these courts which are
considered to be the guardian of the Constitution. Public Interest Litigation can also be
filed.
17
17
M. Laxmikanth, Indian Polity for Civil Services Examinations 7.1 (Tata McGraw Hill, New Delhi, 3rd edn., 2010).
4. NEW CHALLENGES TO FREEDOM OF SPEECH AND
EXPRESSION
The modern regime is challenging and altering the underlying presumptions of the
preceding period. Will countries be required to embrace more forms of expression than
their own Constitutions permit? Should we rethink our ideas of extraterritoriality,
jurisdiction, and sovereignty? How can we arrive at a formulation that functions across a
medium that is not constrained by territoriality and boundaries while balancing sovereign
constitutional positions on topics like freedom of expression, free speech, political
jurisdiction, and state capacity and intervention? They are challenging the established laws,
standards, forms of communication, and trade and business. Now the problem will be to
figure out how a country may apply its own laws without restricting the liberties enjoyed
by people of other nations. I am taking through some growing challenges in the field of
Freedom of Expression as under;
4.1. INTERNET REGULATION AND FREEDOM OF EXPRESSION
The internet reflects the diversity of human opinion. National and geographical borders
are irrelevant in Internet communication. One of their main characteristics is their
worldwide nature, which some analysts believe makes it hard for them to be effectively
regulated by the government. Internet content regulation initiatives by one nation may
have an impact on other nations’ rights to free expression, notably in the US, where
such rights are guaranteed. Conflict may also arise as a result of the differing rulings
made by courts in other nations, particularly when one nation refuses to enforce the
decision made by a court in another. The internet is as diverse as human thought.
18
4.2. RIGHT TO PRIVACY AND FREEDOM OF EXPRESSION
The right to privacy must always be maintained and only be restricted when necessary.
There is no such national privacy policy in India, and the country’s privacy regulations
are insufficient to safeguard residents from eavesdropping. Although not specifically
mentioned as a basic right, privacy is a crucial aspect of Articles 19 and 21. India lacks
laws addressing the right to privacy, especially in electronic communications, despite
discussions about a shoddy pending privacy bill from 2011, while the Supreme Court
18
ACLU v. Reno, 521 U.S. 844 (1996)
EXPRESSION
The modern regime is challenging and altering the underlying presumptions of the
preceding period. Will countries be required to embrace more forms of expression than
their own Constitutions permit? Should we rethink our ideas of extraterritoriality,
jurisdiction, and sovereignty? How can we arrive at a formulation that functions across a
medium that is not constrained by territoriality and boundaries while balancing sovereign
constitutional positions on topics like freedom of expression, free speech, political
jurisdiction, and state capacity and intervention? They are challenging the established laws,
standards, forms of communication, and trade and business. Now the problem will be to
figure out how a country may apply its own laws without restricting the liberties enjoyed
by people of other nations. I am taking through some growing challenges in the field of
Freedom of Expression as under;
4.1. INTERNET REGULATION AND FREEDOM OF EXPRESSION
The internet reflects the diversity of human opinion. National and geographical borders
are irrelevant in Internet communication. One of their main characteristics is their
worldwide nature, which some analysts believe makes it hard for them to be effectively
regulated by the government. Internet content regulation initiatives by one nation may
have an impact on other nations’ rights to free expression, notably in the US, where
such rights are guaranteed. Conflict may also arise as a result of the differing rulings
made by courts in other nations, particularly when one nation refuses to enforce the
decision made by a court in another. The internet is as diverse as human thought.
18
4.2. RIGHT TO PRIVACY AND FREEDOM OF EXPRESSION
The right to privacy must always be maintained and only be restricted when necessary.
There is no such national privacy policy in India, and the country’s privacy regulations
are insufficient to safeguard residents from eavesdropping. Although not specifically
mentioned as a basic right, privacy is a crucial aspect of Articles 19 and 21. India lacks
laws addressing the right to privacy, especially in electronic communications, despite
discussions about a shoddy pending privacy bill from 2011, while the Supreme Court
18
ACLU v. Reno, 521 U.S. 844 (1996)
has recognized a limited right to privacy over time. The right to privacy has been
construed by the Indian Supreme Court to be included in Article 21 of the Indian
Constitution, which states that no person may have his life or liberty taken away from
him unless by law. The whole legal system has come under fire for giving Statewide
censorship powers and permitting the use of contemporary technologies for
monitoring.
4.3. COPYRIGHT LAW AND FREEDOM OF EXPRESSION
There are several potential areas of conflict between copyright and freedom of speech
that have hitherto gone unnoticed. Since copyrighted material is significant to people
in a particular cultural context, its replication could be necessary for exercising one’s
right to free speech. The ability to articulate emotions, ideas, and views is unique to
creators. Their creations could integrate into a culture and pick up meanings and
allusions that are hard to communicate in other contexts. This would increase the
likelihood of copyright and freedom of speech clashing in more ways than previously
thought.
19
4.4. INTERNATIONAL MEASURES TAKEN TO OVERCOME THE
CHALLENGES
International treaties guarantee the right to freedom of speech, but the definition of this
right and the methods for defending it vary widely across nations. A number of organic
documents, including the African Charter on Human and Peoples’ Rights (ACHPR)
20
,
the American Convention on Human Rights (ACHR)
21
, the European Convention for
Human Rights (ECHR)
22
, and the International Covenant on Civil and Political Rights
(ICCPR)
23
of the United Nations, provide protection for free expression on a
fundamental level.
19
Dr. Sreenivasulu N.S. and Somashekarappa “Freedom of Speech & Expression and the Issues of Intellectual
Property and Copyright”, available at:
http://manupatra.com/roundup/370/Articles/Freedom%20of%20Speech.pdf ( Visited on April 2, 2023).
20
Article 9 of the ACHPR
21
Article 13 of the ACHR
22
Article 10 of ECHR
23
Article 19 of the ICCPR
construed by the Indian Supreme Court to be included in Article 21 of the Indian
Constitution, which states that no person may have his life or liberty taken away from
him unless by law. The whole legal system has come under fire for giving Statewide
censorship powers and permitting the use of contemporary technologies for
monitoring.
4.3. COPYRIGHT LAW AND FREEDOM OF EXPRESSION
There are several potential areas of conflict between copyright and freedom of speech
that have hitherto gone unnoticed. Since copyrighted material is significant to people
in a particular cultural context, its replication could be necessary for exercising one’s
right to free speech. The ability to articulate emotions, ideas, and views is unique to
creators. Their creations could integrate into a culture and pick up meanings and
allusions that are hard to communicate in other contexts. This would increase the
likelihood of copyright and freedom of speech clashing in more ways than previously
thought.
19
4.4. INTERNATIONAL MEASURES TAKEN TO OVERCOME THE
CHALLENGES
International treaties guarantee the right to freedom of speech, but the definition of this
right and the methods for defending it vary widely across nations. A number of organic
documents, including the African Charter on Human and Peoples’ Rights (ACHPR)
20
,
the American Convention on Human Rights (ACHR)
21
, the European Convention for
Human Rights (ECHR)
22
, and the International Covenant on Civil and Political Rights
(ICCPR)
23
of the United Nations, provide protection for free expression on a
fundamental level.
19
Dr. Sreenivasulu N.S. and Somashekarappa “Freedom of Speech & Expression and the Issues of Intellectual
Property and Copyright”, available at:
http://manupatra.com/roundup/370/Articles/Freedom%20of%20Speech.pdf ( Visited on April 2, 2023).
20
Article 9 of the ACHPR
21
Article 13 of the ACHR
22
Article 10 of ECHR
23
Article 19 of the ICCPR
5. JUDICIAL DECISIONS ON FREEDOM OF SPEECH AND
EXPRESSION
Indian Judiciary is at all times active in interpreting the Constitution of India to the growing
needs, demands, and observed challenges. In the light of Judicial interpretation, the courts
have constantly observed remarkable findings meeting the ends of justice. Some of them
are illustrated here in this study;
5.1. Hamdard Dawakhana vs Union of India
24
This case was related to the advertisement of prohibited drugs and commodities. The
product sold by the petitioners was said to have self-medicating values which were
advertised to the general public as well. The petitioners in the case alleged that they
were experiencing difficulty to advertise their product as many objections were raised
against their advertisements.
The Supreme Court in this case held that an obnoxious advertisement cannot come
within the scope of Article 19(1)(a). Advertisement of prohibited drugs would,
therefore, not fall within the scope of Article 19(1)(a).
5.2. Romesh Thappar vs State of Madras
25
In this case, the petitioner used to publish and circulate a newspaper named
“crossroads” which used to review and criticize the schemes and activities of the
government of Madras. The government of Madras banned the entry and circulation
of this newspaper in the state by the restriction of public safety grounds.
The supreme court in this case said that the right of circulation of the newspaper lies
solely with the establishment i.e., the company of the newspaper and the state of
Madras cannot interfere with the same. The ground of Public safety under Article 19(2)
is not a reasonable restriction and hence a ban on entry and circulation of the newspaper
by the state of Madras cannot be imposed under Article 19(2).
24
SCR 1960 (2) 671
25
1950 AIR 124
EXPRESSION
Indian Judiciary is at all times active in interpreting the Constitution of India to the growing
needs, demands, and observed challenges. In the light of Judicial interpretation, the courts
have constantly observed remarkable findings meeting the ends of justice. Some of them
are illustrated here in this study;
5.1. Hamdard Dawakhana vs Union of India
24
This case was related to the advertisement of prohibited drugs and commodities. The
product sold by the petitioners was said to have self-medicating values which were
advertised to the general public as well. The petitioners in the case alleged that they
were experiencing difficulty to advertise their product as many objections were raised
against their advertisements.
The Supreme Court in this case held that an obnoxious advertisement cannot come
within the scope of Article 19(1)(a). Advertisement of prohibited drugs would,
therefore, not fall within the scope of Article 19(1)(a).
5.2. Romesh Thappar vs State of Madras
25
In this case, the petitioner used to publish and circulate a newspaper named
“crossroads” which used to review and criticize the schemes and activities of the
government of Madras. The government of Madras banned the entry and circulation
of this newspaper in the state by the restriction of public safety grounds.
The supreme court in this case said that the right of circulation of the newspaper lies
solely with the establishment i.e., the company of the newspaper and the state of
Madras cannot interfere with the same. The ground of Public safety under Article 19(2)
is not a reasonable restriction and hence a ban on entry and circulation of the newspaper
by the state of Madras cannot be imposed under Article 19(2).
24
SCR 1960 (2) 671
25
1950 AIR 124
5.3. Prabha Dutt vs Union of India
26
The petitioner, Smt Prabha Dutt Chief reported of Hindustan Times filed a petition
under Article 32 of the Indian Constitution asking for a writ directing the respondent,
the superintendent of Tihar Jail, to allow her to interview the two convicts named Billa
and Ranga who are charged with death sentence for an offence under Section 302 of
the Indian Penal Code and the petitions filled by them to the President of India for
communication of the sentence are reported to have been rejected by the President
recently.
The Supreme Court in this case directed the Superintendent of the Tihar Jail to allow
the representatives of a few newspapers to interview two death sentence convicts under
Article 19(1)(a) as “the right under Article 19(1)(a) is not an absolute right, nor indeed
does it confer any right on the press to have an unrestricted access to means of
information”.
5.4. K.A. Abbas vs Union of India
27
The issue of censorship of films under Article 19(2) was mentioned in this case in front
of the Supreme Court of India. This was done under the Cinematograph Act, 1952 to
protect the viewers. The petitioner’s film got an “A” certificate instead of “U”
certificate and hence, the petitioner challenged the censorship in court. He said that it
was a clear violation of his fundamental right i.e., freedom of speech and expression.
It was held by the court that “it had been almost universally recognized that motion
pictures must be treated differently from other forms of art and expression, because a
motion picture’s instant appeal both to the sight and to hear, and because a motion
picture had become more true to life than even the theatre or any other form of artistic
representation. Its effect, particularly on children and immature adolescents was
great.” Hence the court upheld the censorship of the film and the case was dismissed.
26
1982 AIR 6
27
1971 AIR 481
26
The petitioner, Smt Prabha Dutt Chief reported of Hindustan Times filed a petition
under Article 32 of the Indian Constitution asking for a writ directing the respondent,
the superintendent of Tihar Jail, to allow her to interview the two convicts named Billa
and Ranga who are charged with death sentence for an offence under Section 302 of
the Indian Penal Code and the petitions filled by them to the President of India for
communication of the sentence are reported to have been rejected by the President
recently.
The Supreme Court in this case directed the Superintendent of the Tihar Jail to allow
the representatives of a few newspapers to interview two death sentence convicts under
Article 19(1)(a) as “the right under Article 19(1)(a) is not an absolute right, nor indeed
does it confer any right on the press to have an unrestricted access to means of
information”.
5.4. K.A. Abbas vs Union of India
27
The issue of censorship of films under Article 19(2) was mentioned in this case in front
of the Supreme Court of India. This was done under the Cinematograph Act, 1952 to
protect the viewers. The petitioner’s film got an “A” certificate instead of “U”
certificate and hence, the petitioner challenged the censorship in court. He said that it
was a clear violation of his fundamental right i.e., freedom of speech and expression.
It was held by the court that “it had been almost universally recognized that motion
pictures must be treated differently from other forms of art and expression, because a
motion picture’s instant appeal both to the sight and to hear, and because a motion
picture had become more true to life than even the theatre or any other form of artistic
representation. Its effect, particularly on children and immature adolescents was
great.” Hence the court upheld the censorship of the film and the case was dismissed.
26
1982 AIR 6
27
1971 AIR 481
5.5. People’s Union for Civil Liberties vs Union of India
28
The validity of Section 33B of the Representation of People Act, 1951 was challenged
by the People’s Union of Civil Liberties. Section 33B provided that an electoral
candidate is not bound to disclose any information apart from that required. In Union
of India v. Association for Democratic Reforms, the Supreme Court of India
recognized that the right to know about electoral candidates is well within the ambit of
right to information available under the right to freedom of speech and expression
described in Article 19(1)(a) of the Indian Constitution. Furthermore, it stated that
information about the criminal background of candidates, assets, and liabilities of
candidates and their family members, and educational qualifications of candidates
should be available to the voters as a part of the rights.
It was held by the Hon’ble Supreme Court that Telephone tapping, therefore, violates
Article 19(1) (a) unless it comes within the grounds of reasonable restrictions under
Article 19(2).
5.6. Emmanuel vs State of Kerala
29
Three students were expelled from their school in 1985 for not singing the national
anthem of India. After they were expelled from school, their father filed a writ petition
in the High Court of Kerala stating that the expulsion was a direct violation of their
fundamental right which is Freedom of speech and expression and freedom of religion
which is protected by the Indian Constitution under Articles 19 and 25. The court
dismissed the case and stated that “no words or thoughts in the national anthem was
capable of offending religious convictions”. Under Article 136 of the Constitution of
India, their father later filed a special leave petition in the Supreme Court of India.
The Supreme Court held that the expulsion of school children merely for not singing
the national anthem was a direct violation of their right to freedom of expression.
28
AIR 1997 SC 568
29
1987 AIR 748
28
The validity of Section 33B of the Representation of People Act, 1951 was challenged
by the People’s Union of Civil Liberties. Section 33B provided that an electoral
candidate is not bound to disclose any information apart from that required. In Union
of India v. Association for Democratic Reforms, the Supreme Court of India
recognized that the right to know about electoral candidates is well within the ambit of
right to information available under the right to freedom of speech and expression
described in Article 19(1)(a) of the Indian Constitution. Furthermore, it stated that
information about the criminal background of candidates, assets, and liabilities of
candidates and their family members, and educational qualifications of candidates
should be available to the voters as a part of the rights.
It was held by the Hon’ble Supreme Court that Telephone tapping, therefore, violates
Article 19(1) (a) unless it comes within the grounds of reasonable restrictions under
Article 19(2).
5.6. Emmanuel vs State of Kerala
29
Three students were expelled from their school in 1985 for not singing the national
anthem of India. After they were expelled from school, their father filed a writ petition
in the High Court of Kerala stating that the expulsion was a direct violation of their
fundamental right which is Freedom of speech and expression and freedom of religion
which is protected by the Indian Constitution under Articles 19 and 25. The court
dismissed the case and stated that “no words or thoughts in the national anthem was
capable of offending religious convictions”. Under Article 136 of the Constitution of
India, their father later filed a special leave petition in the Supreme Court of India.
The Supreme Court held that the expulsion of school children merely for not singing
the national anthem was a direct violation of their right to freedom of expression.
28
AIR 1997 SC 568
29
1987 AIR 748
5.7. Sakal Papers Pvt. Lmt. vs Union of India
30
The constitutional validity of the Newspaper Act, 1956 is being challenged by the
petitioners of the case which are a private newspaper company, its shareholders, and
the two readers. The newspaper act empowers the central government to regulate the
cost of newspapers with respect to the number of pages and the allocation of space for
advertisements. The company also challenges the Daily Newspaper Order, 1960 under
the Newspaper Act which was passed by the government to start such regulations. The
act and order regulated the prices a publisher could charge for the newspaper and hence
the petitions argued that both the Newspaper Act and the Newspaper Order violated
the freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian
Constitution.
The court in this matter held that the laws mentioned by the petitioners i.e., Increasing
advertisement prices would either result in an increase in the cost of the newspapers or
would result in the reduced number of pages which would be the dissemination of ideas
which indeed is a fundamental aspect of the right to freedom of speech and expression.
The court held that the right to freedom of speech cannot be taken away from a
company with the sole objective of restricting business and hence the Newspaper Act
and Newspaper Order were said to be unconstitutional by the Supreme Court of India.
5.8. R. Rajagopal vs State of Tamil Nadu
31
A prisoner named Auto Shankar, who was held for murder and was sentenced to life
imprisonment and death sentence, wrote an autobiography when he was imprisoned.
The book discussed his personal life and his relationship with many senior police
officials, a lot of whom have been said to be involved with him in many illegal acts.
Before his death sentence, he handed over the book to his wife after informing the
prison officials of the same and the wife gave the book to the petitioners i.e., the editor,
the associate editor, the printer, and the publication of a Tamil Magazine, for its
publication. The IGP, when he got to know about the book, wrote to the publisher
stating that the contents of the book were false and untrue, that the book was
defamatory in nature, and that strict legal action will be taken against them if they
30
1962 AIR 305
31
1995 AIR 264
30
The constitutional validity of the Newspaper Act, 1956 is being challenged by the
petitioners of the case which are a private newspaper company, its shareholders, and
the two readers. The newspaper act empowers the central government to regulate the
cost of newspapers with respect to the number of pages and the allocation of space for
advertisements. The company also challenges the Daily Newspaper Order, 1960 under
the Newspaper Act which was passed by the government to start such regulations. The
act and order regulated the prices a publisher could charge for the newspaper and hence
the petitions argued that both the Newspaper Act and the Newspaper Order violated
the freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian
Constitution.
The court in this matter held that the laws mentioned by the petitioners i.e., Increasing
advertisement prices would either result in an increase in the cost of the newspapers or
would result in the reduced number of pages which would be the dissemination of ideas
which indeed is a fundamental aspect of the right to freedom of speech and expression.
The court held that the right to freedom of speech cannot be taken away from a
company with the sole objective of restricting business and hence the Newspaper Act
and Newspaper Order were said to be unconstitutional by the Supreme Court of India.
5.8. R. Rajagopal vs State of Tamil Nadu
31
A prisoner named Auto Shankar, who was held for murder and was sentenced to life
imprisonment and death sentence, wrote an autobiography when he was imprisoned.
The book discussed his personal life and his relationship with many senior police
officials, a lot of whom have been said to be involved with him in many illegal acts.
Before his death sentence, he handed over the book to his wife after informing the
prison officials of the same and the wife gave the book to the petitioners i.e., the editor,
the associate editor, the printer, and the publication of a Tamil Magazine, for its
publication. The IGP, when he got to know about the book, wrote to the publisher
stating that the contents of the book were false and untrue, that the book was
defamatory in nature, and that strict legal action will be taken against them if they
30
1962 AIR 305
31
1995 AIR 264
proceed with publishing the book. The Tamil Magazine editor filed a petition against
the IGP to prevent him from violating their and the prisoner’s right to freedom of
speech and expression.
The Supreme Court in this case held that the magazine had the right to publish the
autobiography written by the prisoner, without his consent or authorization. It held that
the state cannot prevent the publication but may sue the plaintiff for defamation after
the article is published, but they had no right to stop the petitioners from publishing
the book. It held that every person has the right to publish his/her autobiography
because of his/her fundamental rights under Article 19 of the Indian Constitution and
hence, the case was in favor of the petitioners.
the IGP to prevent him from violating their and the prisoner’s right to freedom of
speech and expression.
The Supreme Court in this case held that the magazine had the right to publish the
autobiography written by the prisoner, without his consent or authorization. It held that
the state cannot prevent the publication but may sue the plaintiff for defamation after
the article is published, but they had no right to stop the petitioners from publishing
the book. It held that every person has the right to publish his/her autobiography
because of his/her fundamental rights under Article 19 of the Indian Constitution and
hence, the case was in favor of the petitioners.
6. CONCLUSION
The fundamental rights guaranteed by the Indian Constitution serve as a guarantee that as
long as democracy prevails and everyone in India is guaranteed the preservation of their
fundamental rights. These civic freedoms have precedence over all other laws of the
country. The full development of the people and the country depends on fundamental rights.
The earliest written guarantee of these basic rights is found in the Magna Carta. While
these rights cannot be established, they do exist in the natural world. These rights have been
outlined in several nations’ bills of rights and other legal texts. As they interfere with the
ability to live a normal life, these rights cannot be taken away from any human being.
Citizens in democracies must thus take precautions to prevent the infringement of their
rights. In contemporary liberal democracies, freedom of speech and expression is often seen
as a fundamental and universal idea. In making its ruling on freedom of speech, the
Supreme Court of India benefited greatly from the rulings of foreign courts, particularly
those in the US, UK, and Europe. A global rule of law on free speech that goes beyond the
minimum level imposed by the most important human rights agreements that are almost
universally ratified may not be conceivable. Now, the “age of information” is a reality, and
electronic media is a major source of power.
Thus, to conclude, Fundamental Rights are considered to be the backbone of the Indian
Constitution. It is the protector of Democratic values in society. However, the Constitution
also provides for riders to each of the rights enshrined in it. It is imperative for us to
understand that rights always follow duties hence, it is high time for us to take responsibility
along with the fundamental rights gifted to us by the framers of the Constitution.
The Right to Freedom of Speech and Expression as provided under Art. 19 of the
Constitution of India though witnessed remarkable developments since its inception has
confronted the growing challenges and new trends in the society. Our Judiciary is
=constantly addressing the issues posed before it from time to time meeting the ends of
justice and equity. However, the new laws laid down by the Courts should not act as a paper
tiger rather they should see the light of day serving the cause of the people.
The fundamental rights guaranteed by the Indian Constitution serve as a guarantee that as
long as democracy prevails and everyone in India is guaranteed the preservation of their
fundamental rights. These civic freedoms have precedence over all other laws of the
country. The full development of the people and the country depends on fundamental rights.
The earliest written guarantee of these basic rights is found in the Magna Carta. While
these rights cannot be established, they do exist in the natural world. These rights have been
outlined in several nations’ bills of rights and other legal texts. As they interfere with the
ability to live a normal life, these rights cannot be taken away from any human being.
Citizens in democracies must thus take precautions to prevent the infringement of their
rights. In contemporary liberal democracies, freedom of speech and expression is often seen
as a fundamental and universal idea. In making its ruling on freedom of speech, the
Supreme Court of India benefited greatly from the rulings of foreign courts, particularly
those in the US, UK, and Europe. A global rule of law on free speech that goes beyond the
minimum level imposed by the most important human rights agreements that are almost
universally ratified may not be conceivable. Now, the “age of information” is a reality, and
electronic media is a major source of power.
Thus, to conclude, Fundamental Rights are considered to be the backbone of the Indian
Constitution. It is the protector of Democratic values in society. However, the Constitution
also provides for riders to each of the rights enshrined in it. It is imperative for us to
understand that rights always follow duties hence, it is high time for us to take responsibility
along with the fundamental rights gifted to us by the framers of the Constitution.
The Right to Freedom of Speech and Expression as provided under Art. 19 of the
Constitution of India though witnessed remarkable developments since its inception has
confronted the growing challenges and new trends in the society. Our Judiciary is
=constantly addressing the issues posed before it from time to time meeting the ends of
justice and equity. However, the new laws laid down by the Courts should not act as a paper
tiger rather they should see the light of day serving the cause of the people.
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