RIGHT TO FREEDOM: Article 19-22

• Originally, the Constitution provided for seven Fundamental Rights under Article 19. The property right was deleted from the list by the 44th Amendment Act, 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 under Article 19. [UPSC 2021]

Article

Subject Matter

Article 19 (1)(a)

Freedom of Speech and Expression 

• • The Supreme Court held that freedom of speech contains the following rights:
    • Right to propagate one’s views as well as the views of others. (Freedom of circulation.)
    • Freedom of the press.
    • Freedom of commercial advertisements.
    • Right against tapping of telephonic conservation.
    • Right to telecast, that is, the government has no monopoly on electronic media.
    • Right against bundh called by a political party or organization.
• Right to know about government activities.

• • Freedom of silence.
  • Right against imposition of pre-censorship on a newspaper.
  • Right to demonstration or picketing but not the right to strike.
  • Right to fly the national flag.
  • Right of voters to know the antecedents of the candidates contesting elections.
  • Right to choose the medium of instruction at the stage of primary school.
  • Right to express gender identity.
  • Right to reply (right to answer the criticism).
  • Right to post information/videos on the internet/ social media.
  • Right of film-makers to exhibit their films.
  • Right to access the internet (right to access to information via the internet)
• Article 19(2): The State can impose reasonable restrictions on the following grounds: 
  • Friendly relations with foreign states (1st CAA, 1951); 
  • Incitement to an offence(1st CAA, 1951); 
  • Public order(1st CAA, 1951); 
  • Sovereignty and integrity of India (16th CAA, 1963); 
  • Defamation; Contempt of court; Security of the state; Decency or morality.

Article 19 (1)(b)

Freedom of Assembly

• Right to hold public meetings, demonstrations and take out processions.
• Permitted only on public land in a peaceful manner and without arms.
• Limitations on Assembly: Does Not Protect Violent, disorderly, riotous assemblies or one that causes a breach of public peace or involves arms.
• Right does not include Right to Strike.
• Article 19(3): It mentions reasonable restrictions on two grounds: Sovereignty and integrity of India and public order, including the maintenance of traffic in the concerned area.
• Section 144 (CrPC): Magistrate can restrain an assembly, meeting or procession involving the risk of obstruction, annoyance, or danger to human life, health or safety or disturbance of public tranquility or riot or any affray – invoked on many instances to tackle Covid19.
• Section 141 (IPC): Assembly of five or more persons becomes unlawful if the objective is:
  • To resist the execution of any law or legal process.
  • To forcibly occupy the property of some person.
  • To commit any mischief or criminal trespass.
  • To force someone to do an illegal act.
  • To threaten govt officials on exercising lawful powers.

Article 19 (1)(c)

Freedom of Association 

• • Right to Form: Political Parties + companies + partnership firms + societies + clubs + organizations + trade unions or any body of persons.
  • Right to Continue: Includes the right to continue with the association.
  • Includes negative right of not to form or join an association or union.
  • Article 19(4): Reasonable restrictions: Sovereignty of India + Integrity of India + Public order + Morality.
  • Right to obtain recognition of association is not a fundamental right.
• Supreme Court held that trade unions have:
• No guaranteed right to effective bargaining.
• Have no right to strike. (It can be controlled by an appropriate industrial law.)
• Have no right to declare a lockout.

Article- 19(1)(d)

Freedom of Movement 

• Objective: Unity of india + promotes national feeling + no parochialism.
• Article 19(5): Reasonable restrictions; Interest of general public + Protection of interests of any STs.
• Supreme Court: The movement of prostitutes can be restricted on grounds of – public health and morals.
• Bombay High Court: Upholds restrictions on movement of persons affected by AIDS
• Article 19: Internal freedom of movement – right to move inside the country.
• Article 21: External freedom of movement – right to move out of the country.

Article- 19(1)(e)

Freedom of Residence 

• Every citizen has the right to reside and settle in any part of the territory of India. (stay temporarily or set up a domicile at any place permanently.)
• Intended to remove internal barriers within the country. (To promote nationalism and avoid narrow-mindedness. )
• Article 19(5): Reasonable restrictions; Interest of general public + Protection of interests of any ST.
• In many parts of the country, the tribals have been permitted to regulate their property rights by their customary rules and laws.
• Supreme Court: Certain areas can be banned for certain kinds of persons like prostitutes and habitual offenders.
• Right to residence and right to movement are complementary to each other.

Article- 19(1)(g)

Freedom of Profession

• • Very Wide: covers all means of earning one’s livelihood
• Article 19(6): The State can impose reasonable restrictions on the exercise of this right in the interest of the general public. The state is empowered to:
• Prescribe professional/ technical qualifications necessary for practising any profession or carrying on any occupation, trade or business;
• Carry on by itself any trade, business, industry or service whether to the exclusion (complete or partial) of citizens or otherwise.
• State is not required to justify its monopoly.

• Regulation of Immoral or Dangerous Professions: This right does not include the Right to carry on a profession or business or trade or occupation that is immoral or dangerous – state can absolutely prohibit these or regulate through licensing.

Article 20

(Protection in respect of conviction for offences)

• No Ex-post-facto Law (imposes penalties retrospectively): No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act nor subjected to a penalty greater than that prescribed by the law in force at the time of the commission of an offence. 
  • The limitation is imposed only with respect to criminal law, not civil laws or tax laws; 
  • It cannot be claimed in case of preventive detention /demanding security from a person.
• No Double Jeopardy: No one shall be prosecuted and punished for the same offence more than once. 
  • Available only on proceedings before a court of law or judicial tribunal (judicial bodies). 
  • Inquiries by Dept. or administrative authorities are exceptions.
• No Self-Incrimination: No person accused of any offence shall be compelled to be a witness against himself (oral and documentary evidence). It only extends to criminal proceedings and not to civil proceedings. It doesn’t extend to: 
  • Compulsory production of material objects,
  • Compulsion to give thumb impression, blood specimen,
  • Compulsory exhibition of body.

Article 21

(protection of life and personal liberty)

Landmark Cases on Article 21

• Gopalan Case (1950):
• Protection under Article 21 is available against arbitrary executive action and not from arbitrary legislative action. Here the SC took a narrow interpretation of Article 21.
• Personal liberty: Only liberty relating to the person or body of an individual.
• Maneka Gandhi Case (1978):

• Introduced ‘due process of law’: Protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action.
• The right to life and personal liberty of a person cannot be deprived by law provided the procedure prescribed by that law is reasonable, fair and just.
• Right to life: Right to live with human dignity.
• Personal liberty: Widest amplitude, and it covers a variety of rights that constitute the personal liberties of a man.
• It is a wider interpretation of Article 21.

• KS Puttaswamy Case (2017):
  • It held that privacy is a natural right that inheres in all-natural persons, and that right may be restricted only by state action if it passes each of three tests:
    • Such state action must have a legislative mandate;
    • It must be pursuing a legitimate state purpose; 
    • It must be proportionate.
• Hadiya Case (2017): The Supreme Court held that “The right to marry a person of one’s choice is integral to Article 21 (right to life and liberty) of the Constitution”. [UPSC 2019]

Rights as part of Article 21:

Article 21A

(inserted by the 86th CAA, 2002)

• This provision makes only elementary education a fundamental right, not higher or professional education.
• In pursuance of Article 21A, the Parliament enacted the Right of Children to free and Compulsory Education (RTE) Act, 2009
• Unni Krishnan Case (1993): The Supreme Court recognized a fundamental right to primary education in the right to life under Article 21.

• Article 22 (1): Confers the rights of a person who is arrested or detained under an ordinary law. These include:
  • Right to be informed of the grounds of arrest;
  • Right to consult and be defended by a legal practitioner;
  • Right to be produced before a magistrate within 24 hours (excluding the journey time);
  • Right to be released after 24 hours unless the magistrate authorizes further detention. 
  • These safeguards are not available to an enemy alien or a person arrested or detained under a preventive detention law.
• Article 22(2): Grants protection to persons who are arrested or detained under a preventive detention law.
  • Available to both citizens as well as aliens.
  • The detention of a person cannot exceed three months unless the advisory board reports sufficient cause for extended detention. The board is to consist of judges of a High Court.
• Extended Preventive Detention: Article 22 also authorizes the Parliament to prescribe circumstances and classes of cases in which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board.
  • Maximum period for which a person can be detained under a preventive detention law; 
  • Procedure to be followed by an advisory board.
• Parliamentary Jurisdiction: Parliament has exclusive authority to make a law of preventive detention with respect to defence, foreign affairs and the security of India.
• Concurrent Legislative Authority: Both Parliament and state legislatures can concurrently make a law of preventive detention for security of state, maintenance of public order, supplies & services essential to community.
• Unique Constitutional Provision: No democratic country in the world has made preventive detention as an integral part of the Constitution as has been done in India.