TEST TO DETERMINE REASONABLE RESTRICTIONS UNDER ARTICLE 19 OF THE CONSTITUTION OF INDIA By: ROMIT RAJA SRIVASTAVA Email: romitrajasrivastava@msn.

com

ROMIT RAJA SRIVASTAVA 2012

Electronic copy available at: http://ssrn.com/abstract=2135681

ABSTRACT

The Fundamental Rights guaranteed by the Constitution of India are not absolute. There are certain restrictions which can be imposed by the state according to the procedure established by law. However, these restrictions must be reasonable and not arbitrary. Article 19 covers these fundamental freedoms as well as the restrictions which can be imposed on these rights. In this paper, all the six freedoms defined in Article 19 and the restrictions are highlighted. Also, all the landmark cases are covered in this paper while dealing with the concept of Reasonable Restrictions. The main focus of this paper is to throw some light on the test to determine the reasonabilility in the restrictions mentioned in Article 19 of the Constitution of India. Further, in this paper, some light is also thrown as to what constitutes unreasonable restrictions.

INTRODUCTION_____________________________________________________________

Personal liberty is the most important of all fundamental rights. Article 19 of the Constitution guarantees to the citizens of India the following six freedoms:-

(1) Freedom of speech and expression (2) Freedom of assembly (3) Freedom to form associations (4) Freedom of movement (5) Freedom to reside and to settle (6) [***]1 (7) Freedom of profession, occupation, trade or business.
1

Cl.(f) was omotted by the Constitution 44th Amendment Act, 1978.

ROMIT RAJA SRIVASTAVA 2012

Electronic copy available at: http://ssrn.com/abstract=2135681

However, the freedoms guaranteed by Article 19(1) are not absolute as no right can be. Each of these rights is liable to be controlled, curtailed and regulated to some extent by laws made by Parliament or the State Legislatures. Accordingly, clauses (2) to (6) of Article 19 lays down the grounds and the purposes for which a legislature can impose reasonable restriction on the rights guaranteed by Article 19. The debate has always been on as to what exactly is the definition of reasonable restriction. The phrase reasonable restriction connotes that the limitation imposed upon a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interest of the public. The word reasonable implies intelligent care and deliberation that is the choice of a course which reason dictates.

Article 19 confers the several freedoms on the citizens of India. A foreigner enjoys no right under Article 19. Article 19 confers certain fundamental rights on the citizens and not on non-citizens of India.2

RESTRICTIONS ON THE RIGHT TO FREEDOM________________________________

The fundamental rights guaranteed under Article 19(1) are not absolute. They are subject to restrictions placed in the subsequent clauses of Article 19. 3 No restrictions by mere executive or departmental instructions can be placed. They would not be a law which the State is entitled to make under the relevant clauses (2) to (6) of Article 19 in order to regulate or curtail

Gilles Pfeiffer v. Union of India, AIR 1996 Mad 322. Babul Parate v. State of Maharashtra, AIR 1961 SC 884 (para 24).

ROMIT RAJA SRIVASTAVA 2012

fundamental rights under Article 19 (1). 4 Clauses (2) to (6) of Article 19 do not require the making of a law solely for the purpose of placing the restrictions mentioned in them. 5 The test of reasonableness mentioned in postulated of the restrictions in clause (2) to (6) of Article 19 should be applied to each individual statute impugned, and no abstract standard or general applicable to all cases. The reasonableness of the restraint would have to be judged by the magnitude of the evil which it is the purpose of the restraint to curb or to eliminate. 6 The expression in the interests of in clauses (2) to (6) of Article 19 makes the ambit of the protection very wide for a law may not have been designed to directly maintain public order or to directly protect the general public against any particular evil and yet it may have been enacted in the interests of public order of the general public, as the case may be. 7 The words public order appearing in clauses (2) and (4) of Article 19 must have the same meaning. In clause (2) public order is virtually synonymous with public peace, safety and tranquility. The denotation of the said words cannot be wider in clause (4). A restriction can be said to be in the interest of public order only if the connection between the restriction and the public order as direct and proximate. Indirect and unreal connection between the public order and restriction would not fall within the purview of the expression in the interest of public order.8 The determination by the Legislature of what constitutes a reasonable restriction is not final or conclusive; it is subject to

Kharak Singh v. State of UP, AIR 1963 SC 1295 (para 5). Babul Parate v. State of Maharashtra, AIR 1961 SC 884 (para 17). Collector of Customs v. Sampathu Chettty, AIR 1963 SC 316 (para 35). Virendra v. State of Punjab, AIR 1957 SC 896 (para 9). Rex v. Basudev, AIR 1950 SC 67.

ROMIT RAJA SRIVASTAVA 2012

supervision by the court.9 The test for ascertaining the reasonableness of the restriction of the rights in Article 19 is of great importance. No abstract standard reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and the urgency of the evil sought to be remedied thereby, the disproportion of the imposition and the prevailing conditions at the time, should all enter into the judicial verdict.10

RESTRICTION UNDER ARTICLE 19 i.e 19(2) to (6)_______________________________

(2)

Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

(3)

Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(4)

Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the

Chintaman Rao v. State of M.P., AIR 1951 SC 118. Harakchand v. Union of India, AIR 1970 SC 1453 (para 15).

10

ROMIT RAJA SRIVASTAVA 2012

interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(5)

Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said subclauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

(6)

Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,-

(i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

The restriction which may be imposed under any of the clauses must be reasonable restriction. The restrictions cannot be arbitrary. Hence a restriction to be constitutionally valid must satisfy the following two tests:

ROMIT RAJA SRIVASTAVA 2012

(i) (ii)

The restriction must be for the purposes mentioned in clauses 2 to 6 of Art. 19. The restriction must be a reasonable restriction.

Some of the principles which the Supreme Court has affirmed in ascertaining the reasonableness of restrictions can be taken into consideration:

1.

Reasonableness demands proper balancing: The phrase reasonable restrictions connotes that the limitation imposed upon a person in the enjoyment of a right should not be arbitrary or of an excessive nature. A legislation arbitrarily invading the right of a person cannot be regarded as reasonable. A restriction to be valid must have a direct and proximate nexus with the object which the legislation seeks to achieve and the restriction must not be in excess of that object i.e., a balance between the freedoms guaranteed under Art. 19(1)(a) to (g) and the social control permitted by clauses (2) to (6) of Art. 19. It is the substance of legislation and not its appearance or form which is to be taken into consideration while assessing its validity. This introduces the principle of

proportionality. This means the court would consider whether the restriction imposed by legislation on the Fundamental Rights are disproportionate to the situation and are not the least restrictive of the choices. It is the direct, ine vitable and the real, not the remote, effect of the legislation on the Fundamental Right which is to considered. 11 A restriction to be reasonable must also be consistent with Art. 14 of the Constitution since the restrictions cannot be arbitrary or excessive.

2.

Reasonableness, both Substantive and Procedural: To determine the reasonableness of the restriction, the Court should also consider the nature of the restriction and procedure

11

Express Newspapers v. Union of India, AIR 1958 SC 578.

ROMIT RAJA SRIVASTAVA 2012

prescribed by the Statute for enforcing the restriction on the individual freedom. Not only substantive, but procedural provisions of a statute also enter into the verdict of its reasonableness. 12 Retrospectivity of a law may be also be a relevant factor although retrospectivity of a law does not make it automatically unreasonable. A statute imposing a restriction with retrospective effect is not prima facie unreasonable, but retrospectivity is an element to be taken into consideration in determining whether the restriction is reasonable or not.

3.

Reasonableness and objective concept: The reasonability of a restriction has to be determined in an objective manner. It should be from the standpoint of the general public and not from the view of the persons upon which the restrictions are imposed or upon abstract considerations. This concept of objectivity prompted the Supreme Court to warn Judges from bringing their own personal predilections in ascertaining the reasonableness of the restrictions.

4.

Reasonableness of restriction and not of law: The Court is called upon to ascertain the reasonableness of the restriction and not of the law which permits the restriction. A law may be reasonable, but the restriction imposed by it on the exercise of freedom may not be reasonable.

5.

Reasonableness and Directive Principles of State Policy: The Directive Priniciples of State Policy are also relevant in considering whether a restriction on a Fundamental Right is reasonable or not. A restriction which generally promotes a Directive Principle is regarded as reasonable. The Supreme Court observed in Kasturi Lal v. State of Jammu &

12

Golak Nath v. State of Punjab, AIR 1967 SC 1643.

ROMIT RAJA SRIVASTAVA 2012

Kashmir, Any action taken by the Government with the view to giving effect to any one or more of the Directive Principles would ordinarily qualify for being regarded as reasonable.

6.

It is the courts and not the Legislature which has to judge finally whether a restriction is reasonable or not. 13

There is no exact standard or general pattern of reasonableness that can be laid down in all cases. Each case is to be judged on its own merit. The standard varies with the nature of the right infringed, the underlying purpose of the restrictions imposed, the extent and the urgency of the evil sought to be remedied, the disproportion, of the imposition, the prevailing condition at the time. These factors have to be taken into consideration for any judicial verdict.

EFFECT V. SUBJECT MATTER TEST__________________________________________

What is the test to determine whether a law violates art.19 (1) or any fundamental right? Legislation or a government action may have a direct effect on a fundamental right although its subject matter may be different. The object o\f the law or executive action is irrelevant when it infringed a fundamental right although its subject-matter may be different. No law or action will expressly say that it violates a right guaranteed. That is why the courts have to protect fundamental rights by considering the scope and provisions of the act and its effect upon the fundamental right. The effect test has been applied by the Supreme Court in Maneka Gandhi v. Union of India AIR 1978 SC 597, and in several other cases. For example, in the R.C. Cooper v.
13

Chintamani Rao v. State of M.P., AIR 1951 SC 118.

ROMIT RAJA SRIVASTAVA 2012

Union of India AIR 1970 SC 564, the Supreme Court has said that it is the direct operation of the act upon the rights which form the real test. However, earlier, in the, A.K. Gopalan v. State of Madras, (1950) SCR 88, the Supreme Court has applied the test of subject matter in order to uphold the validity of the preventive detention act against a challenge under art. 19(1)(a). The effect test gives a greater protection to Fundamental rights. It may, however be noted that in Bennett Coleman v. Union of India, AIR 1973 SC 106, it was held that, Effect test is direct effect on a fundamental right which is determinative. A difference of judicial opinion is possible on the question whether the effect of a provision on a fundamental right is direct or indirect.

FREEDOM OF SPEECH: ARTICLES 19(1)(a) AND 19(2)___________________________

Article 19(1)(a) says that all citizens shall have the right to freedom of speech and expression. But this right is subject to limitations imposed under Article 19(2) which empowers the state to put reasonable restrictions o n the following grounds, e.g., security of the state, friendly relations with foreign states, public order, decency and morality, contempt of court, defamation, incitement to offence and integrity and sovereignty of India.

The freedom of speech and expression does not confer an absolute right to speak and publish, without responsibility, whatever one may choose or an unrestricted or unbridled license that gives immunity for every possible use of language and does not prevent punishments for those who abuse this freedom. 14 Clause (2) of Article 19 specifies the grounds on which the freedom of speech and expression may be restricted. It enables the legislature to impose reasonable restrictions on the right to free speech in the interests of or in relation to the following:
14

Romesh Thappar v. State of Madras, AIR 1950 SC 124

ROMIT RAJA SRIVASTAVA 2012

10

1) Sovereignty and integrity of India. 2) Security of the state. 3) Friendly relations with foreign states. 4) Public Order. 5) Decency and Morality. 6) Contempt of court. 7) Defamation. 8) Incitement to an offence.

Reasonable restrictions under these heads can be imposed only by a duly enacted law and not by an executive action.15 Now we shall consider these heads separately in the above given order 1. Sovereignty and Integrity of India This ground has been by the Constitution (Sixteenth Amendment) Act, 1963. The present amendment is made to guard against the freedom of speech and expression being used to assail the territorial integrity and sovereignty of the Union. Thus, it will be legitimate for the Parliament under this clause to restrict the right of free speech if it preaches secession of any part of the territory of India from the Union. However, what has to be kept in mind is that teh restriction is with respect to the territorial integrity of the Union of India and not with respect to the territorial integrity of the constituent states.16
15

Express Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133; Bijoe Emmanuel v. State of Kerela, (1986)3 SCC 615
16

Article 3 of the Constitution : Formation of new states and alteration of areas, boundaries or names of existing states Parliament may by law (a) Form a new state by separation of territory from any state or by uniting two or more states or parts of states or by uniting any territory to any part of any state; (b) Increase the area of any state;

ROMIT RAJA SRIVASTAVA 2012

11

2. Security of the state The security of the state may well be endangered by the crimes of violence intended to overthrow the government, waging of war and rebellion against the government, external aggression or war, etc. Serious or aggravated forms of public disorder are within the expression security of state. Every public disorder cannot be regarded as threatening the security of the state. In Romesh Thapar case17 the Supreme Court pointed out that the expression does not refer to ordinary breaches of public order which do not involve any danger to the state itself. Incitement to commit violent crimes like murder would endanger the security of the state. Thus, in State of Bihar v. Shailabala Devi18, the law which made the signs, words or visual representations which caused the incitement of violence fall squarely within Article 19(2). After the amendment of the Constitution in 1951 public order was added as a ground for restrictive laws.

3. Friendly relations with foreign states This ground was added by the Constitution (First Amendment) Act of 1951. The State can impose reasonable restrictions on the freedom of speech in the interest of friendly relations with foreign states. The justification is obvious: unrestrained malicious propaganda against a friendly foreign state may jeopardise the maintenance of good relations between India and that state.

(c) Diminish the area of any state; (d) Alter the boundaries of any state; (e) Alter the name of any state.
17

Romesh Thappar v. State of Madras, AIR 1950 SC 124. AIR 1952 SC 329.

18

ROMIT RAJA SRIVASTAVA 2012

12

4. Public Order The preservation of public order is one of the grounds for imposing restrictions on the freedom of speech and expression. This ground did not occur in the Constitution as framed in 1950 but was added later by the First (Amendment) Act, 1951. The expression public order is synonymous with public peace, safety and tranquillity. 19 It signifies the absence of disorder involving breaches of local significance in contradistinction to national upheavals such as revolution, civil strife or war, affecting the security of the state. It may be noticed that clause (2) uses the words in the interests of public order and not for the maintenance of public order. A law may not be designed to directly maintain law and order yet it may be enacted in the interests of public order. Also, not only such utterances as are directly intended to incite disorder, but also those that have the tendency to lead to disorder fall within the expression.20 Thus, a law punishing utterances made with deliberate intention to hurt the religious feelings of any class is valid, because it imposes a restriction on the right to free speech in the interest of public order, since such speech or writing has the tendency to create public disorder even if in some cases such activities may not lead to the breach of peace. 21 In the case of Virendra v. State of

19

Supdt., Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633. Ramji Lal Modi v. State of U.P., AIR 1957 SC 620; Virendra v. State of Punjab, AIR 1957 SC 896. Ramji Lal Modi v. State of U.P., AIR 1957 SC 620.

20

21

ROMIT RAJA SRIVASTAVA 2012

13

Punjab22 certain safeguards which compelled the court to hold restrictions as substantively and procedurally reasonable were:

a) The positive requirement of the existence of satisfaction of the authority as to the necessity for the making of the order for specific purposes mentioned in the Act. b) The discretion was given in the first instance to the State Government to determine the necessity of passing the order. c) The order could remain in force only for two months from its making thereof. d) The aggrieved party was given the right to make representation to the State government which could on consideration thereof rescind, modify or confirm the order. 5. Decency and morality Decency and morality is another ground on which freedom of speech and expression may be reasonably restricted. Decency is same as lack of obscenity. Obscenity becomes a subject of constitutional interest since it illustrates well the clash between the right of individuals to freely express their opinion and the duty of the state to safeguard their morals. It is obvious that the right to freedom of speech and expression cannot be used to deprave and corrupt the community. In Ranjit Udeshi v. State of Maharashtra23 the Supreme Court for the first time was called upon to lay down the test to determine obscenity. The facts were that the appellants, a Bombay bookseller, was prosecuted under Section 292of the Indian Penal Code for selling and for keeping for sale the well known book, Lady Chatterlys Lover written by D.H. Lawrence. The Magistrate held that the book was obscene and sentenced
22

AIR 1957 SC 896. AIR 1976 SC 881.

23

ROMIT RAJA SRIVASTAVA 2012

14

the appellant. The court held that it had the right to restrict the freedom on the grounds of decency and morality.

6. Contempt of Court The constitutional right to freedom of speech does not prevent the courts from punishing for their contempt spoken or printed words or any other expression calculated to have that effect.24 The expression contempt of court is now defined in Section 2 of the Contempt of Courts Act, 1971 as under: a) contempt of court means civil contempt or criminal contempt; b) civil contempt means wilful disobedience to any judgement, decree, direction, order, writ or any other process of a court or wilful breach of an undertaking given to a court; c) criminal contempt means the publication (whether by words spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which i) Scandalizes or tends to scandalize or lowers or tends to lower the authority of any court ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceedings iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

24

L.R. Frey v. R. Prasad, AIR 1958 Punj 377.

ROMIT RAJA SRIVASTAVA 2012

15

7. Defamation: Defamatory matter exposes a person to hatred, ridicule or contempt. The law of defamation is divided into libel and slander. Defamatory matter, if in matter, if in writing, printing or some other permanent medium, is a libel; if in spoken words or gestures, a slander. Right to free speech does not entitle us to violate the rights of others.

8. Incitement to an offence This is also a ground added in 1951. The freedom of speech and expression cannot be used as a licence to incite people to commit an offence. During the debate in the parliament for the inclusion of this clause it was argued that the phrase incitement to violence should be used instead as the word offence has a very wide meaning and can include any act which is punishable under the Indian Penal Code or any other law. However, this suggestion was rejected. In State of Bihar v. Shailabala Devi25 the supreme court held that incitement to murder or any other violent crime would generally endanger the security of the state; hence a restriction against such incitement would be valid law under Article 19(2).

Sedition: Sedition embraces all those practices that, whether by word, deed or action are calculated to disturb the peace and tranquillity of the State and lead innocent people to subvert the government 26. Incitement to violence and public disorder is the gist of the offence. However, criticism of the existing government or system and expression of a desire for a different system altogether is not prohibited. 27

25

AIR 1952 SC 329 R. v. Sullivan, (1968) 11 Cox Cases 55. Nihrendu v. Emperor, AIR 1942 FC 22, 26

26

27

ROMIT RAJA SRIVASTAVA 2012

16

FREEDOM OF ASSEMBLY: ARTICLE 19(1)(b) AND 19(3)_________________________ Article 19 (1) (b) guarantees to all citizens of India right to assemble peaceably and without arms. The right of assembly includes the right to hold meetings and to take out processings. This right is however subject to the following restrictions:

1. The assembly must be peaceable; 2. It must be unarmed; 3. Reasonable restrictions can be imposed under clause 3 of Article 19.

The right of assembly is implied in the very idea of the democratic Government. The right of assembly thus includes right to hold meetings and to take out processions. This right, like other individual rights is not absolute but restrictive. The assembly must be non-violent and must not cause any breach of public peace. If the assembly is disorderly or riotous then it is not protected under Article 19 (1) (b) and reasonable restrictions may be imposed under clause (3) of Article 19 in the interests of sovereignty and integrity of India or public order.

Article 19 (1) (b) saves existing Indian law regulating public meetings in the interest of public order if the restrictions are reasonable. If an assembly becomes unlawful it can be dispersed. Chapter VIII of the Indian Penal Code lays down the conditions when an assembly becomes unlawful. Under Section 141 of the Indian Penal Code, an assembly of five or more persons becomes an unlawful assembly if the common object of the persons composing assembly is:-

(a) To resist the execution of any law or legal process; (b) To commit any mischief or criminal trespass;

ROMIT RAJA SRIVASTAVA 2012

17

(c) Obtaining a possession of any property by force; (d) To compel a person to do what he is not legally bound to do or omit which he is legally entitled to do. (e) To overawe the Government by means of criminal force or show of criminal force or any public servant in the exercise of his lawful powers.

Section 144, Criminal Procedure Code, 1973 empowers the Magistrate to restrain an assembly, meeting or procession if there is a risk of obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety or a disturbance of the public tranquility or a riot or any affray.

A law conferring authority on the magistrate to grant or refuse a license to hold a meeting or a law imposing a restriction that no public procession could be taken out without a license from a Magistrate has been held to be valid. 28

No public meeting for the furtherance or discussion of any subject likely to cause disturbance for the excitement, or for the exhibition or distribution of any writing or printed matter relating to any such subject, shall be held in any such proclaimed area, (a) unless writing notice of the intention to hold such meeting and of the time and place of meeting has been given to the District Magistrate or the Commissioner of Police, as the case may be, atleast three days previously, (b) unless permission to hold such meeting has been obtained in writing from the above officers as the case may be. All the above mentioned statutory provisions impose reasonable restrictions under clause (3) of Article 19 on the right to freedom of assembly.

28

Dasappa v. Dy. Additional Commissioner, AIR 1960 Mys 57.

ROMIT RAJA SRIVASTAVA 2012

18

FREEDOM TO FORM ASSOCIATION: ARTICLE 19(1)(c) AND 19(4)________________

Article 19(1)(c) of the Constitution of India guarantees to all its citizens the right to form associations and unions. Under clause (4) of Article 19, however, the State may by law impose reasonable restrictions in this right in the interest of public order or morality or the sovereignty and integrity of India.

The Criminal Law (Amendment) Act, 1908, as amended by the Madras Act, 1950, provides that if the state government is of opinion that any association interferes with the administration of law or with the maintenance of law and order or that it constitutes a danger to the public peace it may, by notification in the Official Gazette declare such association to be unlawful. Such a notification was to be placed before an advisory board. Representation against such a notification could be made. If the advisory board was of opinion that the association was not unlawful the Government was to cancel the notification.

The validity of the above Act was challenged in the case of State of Madras v. V. G. Rao.29 The Supreme Court held that the restrictions imposed by Section 16(2)(b) of the Act were unreasonable. The test under it was subjective satisfaction of the Government and the factual existence of the grounds was not a justifiable issue. Therefore, the vesting of powers in the Government to impose restriction on this right, without allowing the grounds tested in a judicial enquiry, was a strong element to be taken into consideration in judging the reasonableness of the restrictions on the right to form associations or union.

29

AIR 1952 SC 196.

ROMIT RAJA SRIVASTAVA 2012

19

The right to form union does not carry with it the right to achieve every object. Thus the trade unions have no guaranteed right to an effective bargaining or right to strike or right to declare a lock-out.30

FREEDOM OF MOVEMENT: ARTICLE 19(1)(d) AND 19(5)________________________ Article 19(1) (d) guarantees to all citizens of India the right to move freely thr oughout the territory of India. This right is, however, subject to reasonable restrictions mentioned in clause (5) of Article 19, i.e., in the interest of general public or (2) for the protection of the interest of any Scheduled Tribe.

Article 19(1)(d) of the Constitution guarantees to its citizens a right to go wherever they like in Indian territory without any kind of restriction whatsoever. They can move not merely from one state to another but also from one place to another within the same state. This freedom cannot be curtailed by any law except within the limits prescribed under Article 19(5).

Grounds of Restrictions: The State may under clause (5) of Article 19 impose reasonable restrictions on the freedom of movement on two grounds:-

(1) In the interest of general public; (2) For the protection of the interest of Scheduled Tribes. In State of Uttar Pradesh v. Kaushalya, 31 the Supreme Court has held that the right of movement of prostitutes may be restricted on ground of public health and in the interest of public morals.

30

Raghubar Dayal v. Union of India, AIR 1950 SC 263. AIR 1964 SC 416; Kamala China v. State, AIR 1963 Punj. 36.

31

ROMIT RAJA SRIVASTAVA 2012

20

The right of a citizen to move freely may also be restricted for the protection of the interest of Scheduled Tribes. In Rajneesh Kapoor v. Union of India,32 it has been held that the requirement of wearing helmet is not a restriction on free movement of citizen.

FREEDOM OF RESIDENCE: ARTICLE 19(1)(e) AND 19(5)_________________________ According to Article 19(1) (e) every citizen of India has the right to reside and settle in any part of the territory of India. However, under clause (5) of Article 19 reasonable restriction may be imposed on this right by law in the interest of the general public or for the protection of the interest of any Scheduled tribe.

The rights to reside and right to move freely throughout the country are complementary and often go together. Therefore, most of the cases considered under Article 19 (1) (e) also. This right is subject to reasonable restrictions imposed by law in the interest of general public or for the protection of the interests of any Scheduled Tribes. Thus, where a prostitute, under the Suppression of Immoral Traffic in Women and Girls Act, 1956, was ordered to remove herself from the limits of a busy city or the restriction was placed on her movement and residence, it was held to be a reasonable restriction. 33

The freedom of movement and residence may be curtailed and suspended during an emergency. In the case of a foreigner it can be restricted under the Foreigners Acts of 1964 and 1966. A foreigner may be ordered to remove himself from India. The important case on this
32

Rajneesh Kapoor v. Union of India, AIR 2007 SC 204. State of U.P. v. Kaushalya, AIR 1964 SC 416.

33

ROMIT RAJA SRIVASTAVA 2012

21

point is Ibrahim Wazir v. State of Bombay.34 Section 7 of the Influx from Pakistan (Control) Act, 1946, empowered the Central Government to direct to removal from India of any person including an Indian citizen who had committed or against whom reasonable suspicion existed of having committed an offence under the Act, i.e., to enter India without permit or valid passport.

FREEDOM OF PROFESSION, OCCUPATION, TRADE OR BUSINESS: ARTICLE 19(1)(g) AND 19(6)

Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interest of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract considerations. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved, the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of even a specified individual is reasonable where the interest of the country are concerned or where the business affects the economy of the country.35

A regulation of trade and commerce becomes challengeable under Article 19(1) (g), if it is shown that it directly and proximately interferes in praesenti with the exercise of freedom of
34

AIR 1954 SC 299. Bannari Amman Sugars Ltd. v. CTO, (2005) 1 SCC 625.

35

ROMIT RAJA SRIVASTAVA 2012

22

trade. If the alleged restriction does not directly or proximately interfere with the exercise of freedom of trade, the freedom guaranteed by Article. 19 (1) (g) is not violated. Once it is assumed that the impugned legislation imposes a restriction on the freedom of trade, the burden is on those who support it to show that the restriction imposed is reasonable and in the interests of general public. The burden is on those who seek the protection of Article 19(6) and not on the citizen who challenges the restriction are invalid. The Supreme Court has also emphasized that the greater the restriction, the more the need for strict scrutiny by the Court.36

UNREASONABLE RESTRICTIONS_____________________________________________

Any law which does not strike a proper balance between the freedoms guaranteed and the social control permitted by the clauses in Art. 19 is an unreasonable restriction.

In Chintaman Rao v. State of M.P AIR 1951 SC 118, the Central Provinces and the Berar Regulation of Manufacture of Beedies (Agricultural Purpose) Act of 1948 was questioned as unconstitutional. The Act provided that in the argicultural season no one should engage in the manufacture of Beedies. The object of the legislation was to divert the labour engaged in the manufacture of Beedies to the agricultural sector where there was a dearth of labour. It was held by the Supreme Court that the legislation in question was not a reasonable restriction upon occupational freedom. It was observed that even the persons who could not engage in the hard manual labour necessary in agriculture such as children, the old and the infirm, were also prevented in the legislation from making their livelihood in the manufacture of Beedies. No alternative provision was contemplated for providing them with work during the period of their enforced idleness.
36

Narendra Kumar v. Union of India, AIR 1960 SC 430.

ROMIT RAJA SRIVASTAVA 2012

23

The legislation not only compels those engaged in agricultural work from taking other avocations but also prohibits persons in no connection with agriculture to undertake agricultural operations. The legislature has thus failed to take into account the probable repercussions of the restriction upon the persons affected by it. The restriction was, therefore, held to be unreasonable. The legislation was accordingly struck down as unconstitutional.

A prohibition on the fundamental right to carry on occupation, trade or business is not regarded as reasonable if is it imposed not in the interests of the general public but keeping in view the susceptibilities and sentiments of a section of a community.

In Mohd. Faruk v. State of M.P 1970 AIR SC 93, the M.P Municipal Corporation Act, 1956, made it mandatory upon the Corporation to make adequate provisions for the construction, maintenance and regulation of a slaughter house. Section 432 authorizes the Government to modify or repeal any bye-laws made by the Corporation. Therefore acting under Section 432, the Government by a notification cancelled the bye-laws made by the Jabalpur Municipality relating to bulls and bullocks which prohibited the slaughter of such animals. It was held by the Supreme Court that such notification infringed the fundamental right of the petitioner guaranteed under Art. 19(1)(g) as the power to cancel the bye-laws cannot be exercised in an arbitrary manner. It was observed that the sentiments of a section of a community may be hurt by permitting the slaughter of bulls and bullocks. However, a prohibition imposed on the exercise of a fundamental right to carry on an occupation, trade or business will not be regarded as reasonable, if it is imposed not in the interest of general public but merely to respect the susceptibilities and sentiments of a section of the people whose way of life, belief or thought is not the same as that of the claimant.

ROMIT RAJA SRIVASTAVA 2012

24

A law which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business cannot be held reasonable. This was held in Dwaraka Pd. V. State of U.P. AIR 1954 SC 224, the licensing authority may grant, refuse to grant, renew or refuse to renew a license and may sustain, cancel, revoke or modify any license or any terms thereof granted by him under the Order for reasons to be recorded: provided that every power which is under the Order exercisable by the State Coal Controller or any person authorized by him on his behalf. Section 4(3) of t he U.P Coal Control Order, 1953, was declared void because it gave unrestrained authority to a single individual to grant, withhold or cancel licenses in any way he chooses, and there was nothing in the Order which could ensure a proper execution of the power or operate as a check on the injustice that might result from the improper execution of the same.

Therefore, where power is conferred on the executive to regulate and control the exercise of the freedom conferred by Article 19(1)(g), it is necessary that the law which does so should either lay down the circumstances or grounds on which the power may be exercised. An Act which vests discretionary powers on an executive should also give sufficient guidance in the matter of the exercise of discretionary powers in order to sustain reasonableness of the restriction. However, it is not necessary that such guidance or policy should be expressly and specifically stated. It is enough if such guidance can be found on a fair reading of the Act and other concerning circumstances.

CONCLUSION_____________________________________________________

ROMIT RAJA SRIVASTAVA 2012

25

Any restriction which to maintain public order, in the sense, public peace or safety are in the interests of the general public. But the restrictions should be reasonable. The restrictions that put the rights guaranteed, within the social controls permitted under clauses (2) to (6) are reasonable. The expression used in Art. 19(2) in the interests of give wide amplitude to the permissible law which can be enacted to impose reasonable restrictions on the right guaranteed by Art. 19(1)(a) under one of the heads mentioned in Art. 19 (2). No restriction can be placed by the right to freedom of speech and expression on any ground other than those specified in Art.19 (2).

Every legislation is set with the aim of achieving an objective. In achieving those objects, the legislations should not arbitrarily invade upon the rights of a citizen. The restriction should look at the set objects that the legislation seeks to achieve and it should establish a close link with such object of the legislation. If the close proximate effect of the law is that it abridges the fundamental rights of the citizens and if the restriction prevents such abridgement, then the restriction is reasonable. On the other hand, if the restriction goes too far in linking itself with the object of the legislation then such a restriction is unreasonable. Another important test is, if a said provision or a right shows clear sign of danger or even shows an apprehend danger then a restriction on such a law is reasonable.

BIBLIOGRAPHY______________________________________________________________

CASES cited and referred:

1.

A. K. Gopalan v. State of Madras, (1950) SCR 88.

ROMIT RAJA SRIVASTAVA 2012

26

2. Babul Parate v. State of Maharashtra, AIR 1961 SC 884. 3. Bannari Amman Sugars Ltd. v. CTO, (2005) 1 SCC 625. 4. Bennett Coleman v. Union of India, AIR 1973 SC 106. 5. Bijoe Emmanuel v. State of Kerela, (1986)3 SCC 615. 6. Chintaman Rao v. State of M.P., AIR 1951 SC 118. 7. Collector of Customs v. Sampathu Chettty, AIR 1963 SC 316. 8. Dasappa v. Dy. Additional Commissioner, AIR 1960 Mys 57. 9. Dwaraka Pd. V. State of U.P. AIR 1954 SC 224. 10. Excel Wear v. Union of India, AIR 1979 SC 25. 11. Express Newspapers v. Union of India, AIR 1958 SC 578. 12. Gilles Pfeiffer v. Union of India, AIR 1996 Mad 322. 13. Golak Nath v. State of Punjab, AIR 1967 SC 1643. 14. Harakchand v. Union of India, AIR 1970 SC 1453. 15. Ibrahim Wazir v. State of Bombay, AIR 1954 SC 299. 16. Kamala China v. State, AIR 1963 Punj. 36. 17. Kharak Singh v. State of UP, AIR 1963 SC 1295. 18. L.R. Frey v. R. Prasad, AIR 1958 Punj 377. 19. Maneka Gandhi v. Union of India, AIR 1978 SC 597. 20. Mohd.Faruk v. State of M.P., AIR 1970 SC 93. 21. Nihrendu v. Emperor, AIR 1942 FC 22, 26. 22. R. v. Sullivan, (1968) 11 Cox Cases 55. 23. R.C. Cooper v. Union of India, AIR 1970 SC 564. 24. Rajneesh Kapoor v. Union of India, AIR 2007 SC 204.

ROMIT RAJA SRIVASTAVA 2012

27

25. Ramji Lal Modi v. State of U.P., AIR 1957 SC 620. 26. Ranjit Udeshi v. State of Maharashtra, AIR 1976 SC 881. 27. Rex v. Basudev, AIR 1950 SC 67. 28. Romesh Thappar v. State of Madras, AIR 1950 SC 124. 29. State of Bihar v. Shailabala Devi, AIR 1952 SC 329. 30. State of Madras v. V.G. Rao, AIR 1952 SC 196. 31. State of U.P. v. Kaushalya, AIR 1964 SC 416. 32. Supdt., Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633. 33. Virendra v. State of Punjab, AIR 1957 SC 896.

Primary Source

1. The Constitution of India. Secondary Source

Books:

1. Acharya, P.D.T. Constitutional Law. Lok Sabha Secretariat. New Delhi. 2008. 2. Bakshi, P. M. The Constitution of India. Universal Law Publishing Co. Delhi. (10th ed.). 2010. 3. Dhamija Ashok. Constitution. Wadhwa Nagpur. (1st ed.). 2007. 4. Jain, M.P. Indian Constitutional Law. Lexis Nexis. (6th ed. reprint). 2011. 5. Landmark Judgements. Universal Law Publishing Co. New Delhi (3rd ed.) 2010. 6. Pandey, J.N. The Constitutional Law of India. Central Law Agency. (48th ed.) 2011.

ROMIT RAJA SRIVASTAVA 2012

28

7. Saharay, H.K. The Constitution of India: An Analytical Approach. Eastern Law House. (3rded.). 2002.

Dictionaries: 1. Blacks Law Dictionary. 2. Whartons Law Lexicon.

Citation Book:

1. Blue Book of Citation.

WEBLIOGRAPHY

1. Kafaltiya, A.B. Interpretation of Statutes. (8th ed.) 2010. Universal Law Publishing Co. Available at: http://books.google.co.in/books?id=6paAbw4DKbYC&printsec=frontcover#v=onepage&q &f=false . Retrieved on 3 October 2011. 2. Karthyaeni V.K.(2009). Test of Reasonableness available under Article 19. Available at: http://www.goforthelaw.com/articles/fromlawstu/article48.htm, retrieved on 12 October 2011. 3. Reasonable Restrictions under Article 19. Available at: http://www.scribd.com/doc/39884387/Reasonable-Restrictions-Under-Article-19 . Retrieved on 7 October 2011.

ROMIT RAJA SRIVASTAVA 2012

29

4. Singhvi, L.M. and Swarup Jagdish. Constitution of India. 2006. Modern Law Publishers. Available at: http://books.google.co.in/books?id=zSw9AQAAIAAJ&q=test+to+determine+reasonable+re strictions+under+Article+19&dq=test+to+determine+reasonable+restrictions+under+Article +19&hl=en&ei=OvLITtO1KIqrrAfQ9P29Dg&sa=X&oi=book_result&ct=result&resnum=5 &ved=0CEMQ6AEwBA. Retrieved on 23 October 2011. 5. Tripathi, N.M. (1987). Reasonable Restrictions under Article 19. Available at: http://books.google.co.in/books?id=GdolAAAAMAAJ&q=test+to+determine+reasonable+r estrictions+under+Article+19&dq=test+to+determine+reasonable+restrictions+under+Articl e+19&hl=en&ei=OvLITtO1KIqrrAfQ9P29Dg&sa=X&oi=book_result&ct=result&resnum= 1&ved=0CC4Q6AEwAA. Retrieved on 18 October 2011. 6. www.indiankanoon.com 7. www.legalservicesindia.com 8. www.legalsutra.org 9. www.manupatra.com 10. www.practicallawyer.com

ROMIT RAJA SRIVASTAVA 2012

30