What Are The Reasonable Restrictions In Purport To Article 19?

Introduction

The right to freedom is one of the fundamental rights assured by the constitution of India. It is very important to understand what this right demands and includes.

Fundamental rights are the basic right of the people. Though the constitution of India guarantees fundamental rights for the citizens, but there are some limitations and restrictions.

The six freedoms under Article 19 are –

1. Freedom of Speech and Expression.
2. Freedom of Assembly.
3. Freedom to form Associations or Unions or Co-operative Societies.
4. Freedom of Movement.
5. Freedom to Reside and to Settle.
6. Freedom of Profession, Occupation, Trade or Business.

Reasonable Restrictions In Purport To Article 19

These six freedoms are not absolute, because if people were given complete and absolute liberty without any social control the result would be ruined.[1]

Reasonable means that which is in accordance with reason and associated with logic, not arbitrariness. It implies intelligent care and deliberation that the reason dictates.

The expression “reasonable restriction” implicates that the restrictions resisted on a person in the enjoyment of the right should not be arbitrary of an inadequate nature beyond what is needed for the interest of the public.

The restriction which can be resisted under any of the clauses should be a reasonable restriction in purport to article 19. The restrictions cannot be arbitrary.

Two tests for the constitutional validity of the restoration

1. The restriction must be for the purposes mentioned in clause 2 to 6 of Article 19.
2. The restriction must be reasonable restriction.

Test of Reasonableness

There is no definite or absolute test to judge the reasonableness of the restriction. The restriction on the rights under Article 19(1) can only be imposed by a ‘Law’ and not the executive or Departmental instructions. The expression “reasonable restrictions” in 19(6) means that the restrictions imposed on a person in the enjoyment of the right should not be arbitrary.

The need for the restriction should be ‘reasonable’ means that it is for the court to determine whether any restriction is reasonable or not. If the court determines that a restriction is not reasonable so that will be declared as void.

Guidelines for determining the reasonableness of restrictions.

1. The court has to judge the restriction is reasonable or not and not by the Legislature or executive.
2. There is a balance between the individual rights guaranteed by Article 19 and social control permitted by clauses (2) to (6) of Article 19. Therefore, the restriction must have a reasonable relation with the object which the legislation seeks to achieve and must never exceed it. “Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19 and the special control permitted by clause (6) of Article 19 it must be wanting in that quality”.[2]
3. There is no exact standard or general pattern of reasonableness that can be laid down for all cases. The cases are judged for its own benefit. The differs with the nature of the right violated, the basic purpose of the restrictions resisted, the expansion and the insistence of the evil sought to be rectified, the imbalance of the application, the prevailing condition at the time. These components are considered for any judicial verdict.[3]
4. The restriction must be reasonable from the substantive as well as procedural standpoint [4]. The court not only considers the duration and extent of the restriction but also the circumstances under which, and the manner in which that imposition has been authorized.
5. A restriction which is imposed for securing the objects and laid down in the Directive Principles of State Policy may be regarded as a reasonable restriction.[5]
6. The court muss determines the reasonableness of a restriction by an objective standard and not by a subjective one.
7. A restriction to be reasonable must have a rational relation with the object which the Legislature seeks to achieve and must not be in excess of that object. [6]

The grounds for which the Legislature can impose restrictions are mentioned in clauses (2) to (6) of Article 19.

8. It is the reasonableness of the restriction which is to be determined by the court and not by the reasonableness of the law.

The mere possibility of the abuse of power by the executive authority is not tested for determining the reasonableness of the restriction. [7]

9. Reasonableness includes total prohibition. Limitations may also amount to a ban under certain conditions. When the restriction comes at the stage of prohibition the court should take special care for satisfying the test of reasonableness. [8]

The general restrictions under Article.19

1. Sovereignty and integrity of India.
2. Security of State.
3. Friendly relations with foreign nations.
4. Public order.
5. Decency and morality.
6. Contempt of court.
7. Incitement to an offence.
8. Defamation

Freedom of speech and expression.

Article 19(1)(a) says that all citizens of India shall have the right to freedom of speech and expression. But this is not absolute freedom. Article 19(2) entitles the State to put ‘reasonable’ restrictions.

Grounds of restrictions.

Article 19(2) contains restrictions on freedom of speech and expression.

1. Sovereignty and integrity of India.

This was added to clause (2) of Article 19 by the Constitution (sixteenth amendment) Act, 1963. The prime duty of the government is to maintain the sovereignty and integrity of the state.

Freedom of speech and expression was restricted for not permitting anyone to challenge sovereignty or to preach something which will result in threat to the integrity of the country.

In India section 124-A of Indian Penal Code defines the offence of sedition i.e.; “Whoever by words either spoken or written, or by signs, or by visible representation or otherwise brings or attempts to bring in to hatred or contempt or excite or attempts to excite disaffection towards the government established by law in India shall be punished.”

Kedar Nath v. State of Bihar. [9]

The court held that the words written or spoken have a tendency or intention of creating public disorder and held the Section 124-A is constitutionally valid.

2. Security of the State

The speeches or expression on the part of an individual which incite to or encourage the commission of violent crimes such as murder are matters which would undermine the security of the State.[10]

Romesh Thapper v. State of Madras[11]

In this case, the court remarked that various levels of offences are there against a ‘public order’. Only serious or aggravated forms of public disorder cause the security of States, e.g.; rebellion, riot, affray, unlawful assembly

3. Friendly relation with foreign state

This ground was added by the Constitution (1st Amendment) Act 1851.

The aim of this provision is to maintain a good relationship between India and Foreign States. Freedom of speech and expression cannot be restricted to commonwealth countries including Pakistan.

4. Public order

This ground was added by the Constitution (1st Amendment) Act 1951.

‘Public order’ is an expression that signifies “that State of tranquility which prevails among the members of political society as a result of internal regulations enforced by the government which they have established.”

Public order is not only for the preservation of law and order but also for the public peace, safety, and tranquillity. Anything that disturbs public tranquility or public peace disturbs public order.[12]

Superintendent, Central Prison v. Ram Manohar Lohia[13]

The Court said that the fundamental right cannot be controlled on such ‘hypothetical and imaginary considerations’. The court said that not to pay tax by an individual does not amount to public order.

5. Decency or morality

Sections 292 to 294 of IPC guarantees the restriction in decency and morality. These sections prohibit the sale or distribution or exhibition of obscene books etc. in public places. But the Indian Penal Code does not lay down any test to determine obscenity.

Ranjit D. Udeshi v. State of Maharashtra[14]

The Supreme Court held that the novel is obscene and the appellant is liable under section 292 of IPC.

6. Contempt of Court

The Contempt of Courts Act, 1971, defines the expression ‘Contempt of Court’ as; According to Section 2,’Contempt of Court’ may be either ‘civil contempt’ or ‘criminal contempt’.

Civil contempt means voluntarily in disciplined to any judgment, decree, direction, order, writ or any other procedure of a court. Criminal contempt signifies the publication like visible representations or any other matters 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; or

iii. Interferes or obstructs or tends to be the administration of justice in some other way.

7. Defamation

It is not only a civil wrong but also a criminal wrong.

8. Incitement to an offence

By the Constitution (1st Amendment) Act of 1951 this ground was added. Freedom of speech and expression cannot confer a license to incite people to commit offence.

The word ‘offence’ used here is not defined in the Constitution; it is defined in the General Clauses Act as meaning Offence is an act or omission punishable by law. The freedom of speech can be effectively restricted as any subject can be prevented from public discussion by making it an offence.

Freedom of Assembly

Article 19(1)(b) guarantees to all citizens of India the right “to assemble peaceably and without arms” The right of assembly includes the right to hold meetings and to take out processions.

The restrictions of this right are:

1. The assembly must be peaceable;
2. It must be unarmed;
3. Reasonable restrictions can be imposed under Clause 3 of Article 19 in the interest of ‘sovereignty and integrity of India’ or ‘public order’.

1. Freedom to form Association

Article 19(1)(c) of the constitution of India guarantees to all citizens of India the right “to form associations or unions or Co-operative Societies”.

Section 19(4) contains reasonable restrictions on this right in the interest of public order or morality or the sovereignty and integrity of India. It saves existing laws in so far as they are not inconsistent with fundamental rights of association.

Haji Mohd. v. District Board, Malda[15]

It was held that a restriction requiring a teacher to take prior permission to engage in political activities is a reasonable restriction. It aim that preventing teachers from getting mixed up with political institutions. The teacher is just a citizen but he has to follow a some terms and discipline of his employment.

2. Freedom of movement

Article 19 (1)(d) guarantees all citizens of India the right “to move freely throughout the territory of India”. The reasonable restrictions under this right are mentioned in 19(5), i.e.,

1. In the interest of the general public or;
2. for the protection of the interest of any Scheduled Tribe.

State of Uttar Pradesh v. Kaushalya.[16]

The Supreme Court held that the freedom of Movement for the prostitutes can be restricted by the interest of public

3. Freedom of Residence

Article 19(1)(e) provides every citizen of India has the right “to reside and settle in any part of the territory of India”.

Article 19 (5) provides reasonable restrictions of this right by law in the interest of the general public or for the protection of the interest of any Scheduled Tribe.

Freedom of Profession, Occupation, Trade or Business

Article 19(1)(g) guarantees that all citizens of India shall have the right “to practice any profession, or to carry on any occupation, trade or business”. Article 19 (6) provides the reasonable restrictions of this right

a)’in the interest of public’,

b) Prescribing professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business,

c) Enabling the State to carry on any trade or business to the exclusion of citizens wholly or partially.

Conclusion

India is a democratic country and the Indian Constitution guarantees some basic rights to all citizens of India and these basic rights are termed as fundamental rights.

Article 19 is one of the prime fundamental right which guarantees freedom to the citizens of India. Article 19 of the constitution provides six fundamental freedoms for the enjoyment of the citizens. But these ‘six freedoms’ are not absolute which is restricted by the Constitution because when they guarantee absolute freedom it can be misused.

Reasonable restrictions are provided for the peaceful living condition of the citizens. For everything restrictions or limitations must be needed if it exceeds the limitation then it would be harmful so restrictions are necessary for the smooth running of the society.

[1] Wills__Constitutional Law and the United States, 477.

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

[3] State of Madras v. V. G. Row, AIR 1952 SC 196

[4] N.B. Khare v. State of Punjab, AIR 1960 SC 211.

[5] State of Gujarat v. Mizapur Moti Kureshi Kasab Jamat, AIR 2006 SC 212; State of Bombay v. F. N. Balsara. AIR 1951 SC 318; Hanif Qureshi v. State of Bihar, AIR 1958 SC 731

[6] Arunachal Nadar v. State of Madras, AIR 1959 SC 300

[7] N. B. Khare v. State of Punjab, AIR 1960 SC 211 (217)

[8] Narendra Kumar v. Union of India. AIR 1960 SC 430

[9] AIR 1962 SC. 955

[10] State of Bihar v. Shailbala Devi, AIR 1952 SC 329

[11] AIR 1950 SC 124

[12] Om Prakash v. Emperor, AIR 1948 Nag 199.

[13] AIR 1960 SC 633.

[14] AIR 1960 SC 633.

[15]  AIR 1958 Cal. 401; See also Hanumanthappa v. Special Officer, District Board, AIR 1960 AP 342.

[16]  AIR 1964 SC 416; Kamala China v. State, AIR 1963 Punj. 36.

This Article is Authored by Megha Ravindran, BBA.LLB( Hons.) Student at Nehru Academy of Law, Lakkidi, Kerala.