Preamble

WE, THE PEOPLE OF INDIA,

having solemnly resolved to constitute India
into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC
REPUBLIC
and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and

worship;

EQUALITY of status and of opportunity; and to

promote among them all
FRATERNITY assuring the dignity of the
individual and the unity and integrity of the
Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-

sixth day of November, 1949, do HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.
 Constitution of India :Introduction

India ie. Bharat is a Union of States. It is a Sovereign Socialist Democratic

Republic with a parliamentary system of government. The Republic is
governed in terms of the Constitution of India which was adopted by the
Constituent Assembly on 26th November 1949 and came into force on 26 th
January 1950.

The Constitution provides for a Parliamentary form of government which is

federal in structure with certain unitary features. The constitutional head
of the Executive of the Union is the President. As per Article 79 of the
Constitution of India, the council of the Parliament of the Union consists of
the President and two Houses to be known as the Council of States (Rajya
Sabha) and the House of the People (Lok Sabha). Article 74(1) of the
Constitution provides that there shall be a Council of Ministers with a
Prime Minister as its head to aid and advice the President, who shall
exercise his functions in accordance to the advice. The real executive
power is thus vested in the Council of Ministers with the Prime Minister as
its head.

The Council of Ministers is collectively responsible to the House of the

People (Lok Sabha). Every State has a Legislative Assembly. Certain
States have an upper House called State Legislative Council. Governor is
the Head of a State. There shall be a Governor for each State and the
executive power of the State shall be vested in him. The council of
Ministers with the Chief Minister as its head advises the Governor in the
discharge of the executive functions. The Council of the Ministers of a
state is collectively responsible to the Legislative Assembly of the State.

The Constitution distributes legislative powers between Parliament and

State legislatures as per the lists of entries in the Seventh Schedule to the
Constitution. The residual powers vest in the Parliament. The centrally
administered territories are called Union Territories.

Article 19: Protection of certain rights (Fundamental

Rights)

(1) All citizens shall have the right -

(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) to practice any profession, or to carry on any occupation, trade or
business.

(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 interest of the sovereignty and integrity of India
or public order, reasonable restrictions on 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 interests of the 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-clause (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 sub-clauses either in the interests
of the general public or for the protection of the interests of any Schedule
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.

One of the striking provisions relating to fundamental rights in our

constitution is that the very declaration of the major fundamental rights is
attended with certain limitations specified by the constitution itself. In the
US, the Bills of Rights itself does not contain any such limitations to the
rights of the individuals guaranteed thereby , but in the enforcement of
those rights the courts had to invent doctrines like that of ‘Police power of
the state’ to impose limitations on the rights of the individuals in the
interest of the community at large . But, in article 19 of our constitution
there is a distinct clause attached to each of the rights declared,
containing the limitations or restrictions which maybe imposed by the
state on the exercise of each of the rights so guaranteed.

Article 19(1)(e)

Freedom to reside and settle in any part of the territory of

India which is also subject to reasonable restrictions by the
State in the interest of the general public or for the
protection of the scheduled tribes because certain
safeguards as are envisaged here seem to be justified to
protect indigenous and tribal peoples from exploitation
 and coercion. Article 370 restricts citizens from other
Indian states and Kashmiri women who marry men from
other states from purchasing land or property in Jammu &
Kashmir.

Introduction

According to article 19(1)(e) every citizen of India has a right to reside and
settle in any part of the territory of India. However under clause 5 of
article 19 reasonable restrictions 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.

Objective

The object of the clause is to remove internal barriers within India or any
of its parts. The words “the territory of India” as used in this article
indicate freedom to reside anywhere and in any part of the State of India.
Reasonable restrictions

It is to be noted that the right to reside and right to move freely through
out the country are complementary, often go together. Thus most of the
cases considered under the article 19(1)(d) are relevant to article 19(1)(e)
also. Reasonable restrictions 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. Thus where a prostitute, under the Suppression Of
Immoral Traffic In Women & Girls Act, 1956 was ordered to remove herself
from the limits of the busy city or the restriction was placed on her
movement and residence, it was held to be a reasonable restrictions.
(State of U.P v/s Kaushailiya - AIR 1964, SC 416)

Questions of violation of article 19(1)(d) and article 19(1)(e) have often

arisen in connection with externment orders. In one case , an act which
empowered the government or a District Magistrate to extern persons on
the satisfaction of the externing authority( which was final ) was
challenged as violating article 19(1)(d) and (e) by a

majority of 3 to 2 , the supreme court upheld its validity, as being a

reasonable restriction on the fundamental rights. (Dr. Khare v. State of
Delhi – AIR 1950 SC 27)

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 Foreigner’s Act of 1964 & 1966. A foreigner may be ordered to remove
himself from India. The important case of this point was Ibrahim Wazir
Vs State of Bombay AIR 1954, SC 299, Sec 7 of the influx from
Pakistan (Control) Act, 1946 empowered the central government direct to
removal from India any person including an Indian.Citizen who had
committed or against whom reasonable suspicion existed of having
committed an offence under the act that to enter India without permit or
valid passport. The appellant in the above case came to India without
permit and was arrested and deported to Pakistan under the Instant Act.
The court held the order of removal on the ground that it imposed
unreasonable restrictions upon the fundamental rights of a citizen to
reside and settle in the country.The coming of a citizen to his homeland
even without a permit not to be so grave an offence as to justify his
expulsion from the country.

In the State of M.P v/s Bharat Singh Thakur AIR 1967 SC 1170, sec 3
(1) of the M.P Public Security Act 1979, empowered the state government
to issue an order requiring a person to reside or remain in such a place as
might be specified in the order or to ask him to leave the place and to go
to another place selected by authority in the interest of the security of the
state or public order. The Supreme Court held that sec 31 b, of the act
imposes unreasonable restriction on the right guaranteed by art 19(1)(b)
and therefore void. The act did not give an opportunity to the person
concerned of being heard about the place where he was asked to reside.
The place selected for him might have no residential accommodation and
no means of livelihood. The section did not indicate the extent of the
place, area or it distance from the residence of the person externed.

Likewise the Supreme Court has also upheld S. 27 (1) of the Bombay
Police Act authorizing an order of externment on the ground that the
section imposes a reasonable restriction in public interests. (Gurbachan
Singh v. State Of Bombay- AIR 1952 SC 221).
 However the above cases of externment were held not to apply to an
order under the Central Provinces and Berar Goondas Act, 1946.
Though it was a condition precedent to any action under the act that
the person sought to be proceeded against was a goonda , the act
failed to provide that the District Magistrate should first determine that
the person in question was in fact a goonda. Nor did the act provide
any guidelines in this respect. Moreover the act did not provide for an
opportunity to the person concerned to show that he was not a
goonda. Therefore the Supreme Court held that, however laudable the
object of the act , it was void , and it failed to provide the necessary
safeguards. (State of MP v. Baldev Prasad -AIR 1961 SC 293).

Special Case of Jammu and Kashmir

The provisions of part IV of the constitution of India relating to the
directive principles of the state policy do not apply to the state of Jammu
and Kashmir. The provisions of article 19 are subject to special restrictions
for a period of 25 years. Special rights as regards employment, acquisition
of property and settlement have been conferred on “Permanent residents”
of the state, by inserting a new article 35 A. articles 19 (1)(f) and 312 have
not been omitted so that the fundamental right to property is still
guaranteed in this state.

According to Article 370, every person who is, or is deemed to be a citizen

of India, shall be a permanent resident of the State, if on the 14th of May,
1954 he was a subject of class I or II, or having lawfully acquired
immovable property in the State, he has been ordinarily resident in the
state, for not less than 10 years prior to that date. Any person who, before
the 14th day of 1954 was a State subject of class I or II and who having
migrated after the first day of March 1947 to the territory included in
Pakistan, returns to the State under a permit for resettlement in the State
or for permitting return issued by or under the authority of any law made
by the state legislature will on such return be a permanent resident of the
state. The permanent residents will have all rights guaranteed to them
under the constitution of India.
 A RECENT CASE : RAJ THACKERAY

Mumbai, the financial capital of India, was in the grip of violence & turmoil
during February 2008. All because of a novice politician who was hell-bent
on proving himself as the greatest savior of Maratha pride second only to
the legendary great Shivaji of 17th Century. This politician was Raj
Thackeray, the nephew of Shiv Sena Supremo Bal Thackray, and head of
Maharashtra Navnirman Sena (MNS). Raj had been giving anti- North
Indians statements for quite sometime and ridiculing the festivals of
Northern India (particularly the Chhat festival of Bihar).

Also, Raj Thackeray publically insulted Amar Singh, questioned the

integrity of Amitabh Bacchhan and declared that Amar Singh will not be
allowed to enter into Mumbai. He warned all North Indians to behave
themselves in Mumbai.

Also, wide spread incident of violence between supporters of Raj Thackray

and Samajwadi Party (of Amar Singh ) were reported in Mumbai. Poor taxi
drivers were dragged out of their taxis and were brutally beaten by them,
the stalls of many daily hawkers were thrashed and many poor people
were harassed just for their being an outsider in Mumbai.

The nation was in rage and strong protests against Raj Thackeray started
in the country (especially in North India). In a democratic country like
India, everybody has the right to move freely and earn his livelihood
wherever he wants. Our constitution guarantees this by means of
Fundamental Rights. There are no discrimination on the basis of caste,
creed, religion or any

regional basis. But Mr. Raj appeared to be totally ignorant about our
constitution and its contents.

Due to this violation of the constitutional provisions he was also arrested

since the constitution gives us the right to move and settle in any part of
the country according to article 19(1)(e).
 BIBLIOGRAPHY

1. Dr.Durga Das Basu : Introduction to

the constitution of India

2. www.indiankanoon.org

3. www.wikipedia.com

4. www.hcbom.mah.nic.in

5. Library of J.C. college of law

 CONCLUSION

As regards the fundamental right to reside and settle in any part of the
territory of India, this provision unravels obvious contradiction in the
Constitution of India. On the one hand the Constitution recognizes settling
in any part of the country a fundamental right and, on the other hand, it
not only restrains but totally annuls this right by incorporating Article 370.
There is no provision in the Constitution that empowers any state
institution to annul any of the six fundamental rights of an Indian citizen.
One can imagine the sanctimony of fundamental rights. The Constitution
offers by one hand and withdraws by another the right to freedom of
settling in any part of the country. It is like creating a “no go area” under
martial law administration. Apart from this blatant anomaly, the militant
organizations even today impose on exiled Hindu aspirants the condition
of supporting and joining the “separatist movement” in Kashmir if they
(the Pandits) want to return to their native places. The government in the
State or at the Centre has no strength to warn the separatists that they
will not be allowed the liberty of trivializing the Indian Constitution and
civil liberties of the society. And since the governments have not done so,
the only inference one can draw is that either the government is disposed
to let discrimination and inequality before the law stay put among the
fundamentals of its desk book rule of governance or that it is an out-and-
out accomplice in the transgression of fundamental rights of Indian
citizens.
Scheduled Tribes (Recognition of Forest Rights) Bill 2005

THE HINDU, JULY 1, 2005

EXPULSION is traumatic, dislocation stressful. Displacement under

compulsion is rarely without agony and extensive violation of human
rights. In this country where thousands of square kilometres have been
cleared of impoverished human beings to set up mostly eco-system
damaging infrastructures, uprooting is akin to amputations without
anaesthesia, left untreated, open-fleshed and festering hidden inner
deformities. If the haemorrhaging stops, gangrene sets in. Millions of the
`project-affected' tribals have suffered so. Hence no matter how precious
the cause, responsible citizens cannot but be hostile to the removal of
peoples as if they were dispensable pawns cluttering a chessboard.

In the name of correcting `historic injustice' the proposed law gives forest-
dwelling Scheduled Tribes the right to 2.5 hectares of forestland per
nuclear family "for self cultivation for bona fide livelihood and not for
exclusive commercial use", provided the family undertakes "the
responsibility of protection, conservation and regeneration of forests" and
ensures that no one carries out any "activity that adversely affects the
wildlife, forest and the biodiversity in the area." This onus is thrust on
them invoking their symbiotic relationship with the nature, and their
traditional knowledge of environment conservation. Thus the nodal Tribal
Ministry in partnership with the Environment and Forest Ministry proposes
to re-introduce begaar, a system of slavery the British imposed on forest-
dwellers to tether them as the sahebs' personal coolies and menials and
labour to augment the wood wealth for the colonials to exploit. The
present and all the future generations of forest-dwelling tribals must
henceforth slave for the Ministries and the whole nation.

What was most unsettling is that the Bill seeks to deny the tribals many
freedoms guaranteed by the Constitution — the right against exploitation
(Article 23), right to freedom of expression (the right to choose ideas of life
and living implicit in Article 19(1)(a)), freedom to practise a profession of
one's preference (Art 19(1)(g)) and the freedom to reside and settle in
any part of India (Art 19(1)(e)). The tribals and their future
generations cannot be torn apart from the mainstream and placed in an
archaic world where the Constitutional law does not operate. They have
the fundamental right to reject bondage (to the various Ministries and the
nation), to choose lifestyles and careers, and to move out of the forests to
settle anywhere in the country or emigrate. The Bill's brutal audacity in
taking away choices from the future generations is infuriating. There
should be no compulsion for anyone to carry forward the ancestor's
commitments and live a marginalised existence or to serve the nation full
time, no matter what the personal cost.