Right to Freedom

1. Protection of Six Rights

Article 19 guarantees to all citizens the six rights. These are:

1. Right to freedom of speech and expression.
2. Right to assemble peaceably and without arms.
3. Right to form associations or unions or co-operative societies.
4. Right to move freely throughout the territory of India.
5. Right to reside and settle in any part of the territory of India.
6. Right to practice any profession or to carry on any occupation, trade or business.

Originally, Article 19 contained seven rights. But, the right to acquire, hold and dispose of property was deleted by the 44th Amendment Act of 1978.
These six rights are protected against only state action and not private individuals. Moreover, these rights are available only to the citizens and to shareholders of a company but not to foreigners or legal persons like companies or corporations, etc.
The State can impose ‘reasonable’ restrictions on the enjoyment of these six rights only on the grounds mentioned in the Article 19 itself and not on any other grounds.
Freedom of Speech and Expression It implies that every citizen has the right to express his views, opinions, belief and convictions freely by word of mouth, writing, printing, picturing or in any other manner. The Supreme Court held that the freedom of speech and expression includes the following:
(a) Right to propagate one’s views as well as views of others.
(b) Freedom of the press.
(c) Freedom of commercial advertisements.
(d) Right against tapping of telephonic conversation.
(e) Right to telecast, that is, government has no monopoly on electronic media.
(f) Right against bundh called by a political party or organisation.
(g) Right to know about government activities.
(h) Freedom of silence.
(i) Right against imposition of pre-censorship on a newspaper.
(j) Right to demonstration or picketing but not right to strike.
The State can impose reasonable restrictions on the exercise of the freedom of speech and expression on the grounds of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence.
Freedom of Assembly Every citizen has the right to assemble peaceably and without arms. It includes the right to hold public meetings, demonstrations and take out processions. This freedom can be exercised only on public land and the assembly must be peaceful and unarmed. This provision does not protect violent, disorderly, riotous assemblies, or one that causes breach of public peace or one that involves arms. This right does not include the right to strike.
The State can impose reasonable restrictions on the exercise of right of assembly on two grounds, namely, sovereignty and integrity of India and public order including the maintenance of traffic in the area concerned.
Under Section 144 of Criminal Procedure Code (1973), a magistrate can restrain an assembly, meeting or procession if there is a risk of obstruction, annoyance or danger to human life, health or safety or a disturbance of the public tranquillity or a riot or any affray.
Under Section 141 of the Indian Penal Code, as assembly of five or more persons becomes unlawful if the object is (a) to resist the execution of any law or legal process; (b) to forcibly occupy the property of some person; (c) to commit any mischief or criminal trespass; (d) to force some person to do an illegal act; and (e) to threaten the government or its officials on exercising lawful powers.
Freedom of Association All citizens have the right to form associations or unions or co-operative societies. It includes the right to form political parties, companies, partnership firms, societies, clubs, organisations, trade unions or any body of persons. It not only includes the right to start an association or union but also to continue with the association or union as such. Further, it covers the negative right of not to form or join an association or union.
Reasonable restrictions can be imposed on the exercise of this right by the State on the grounds of sovereignty and integrity of India, public order and morality. Subject to these restrictions, the citizens have complete liberty to form associations or unions for pursuing lawful objectives and purposes. However, the right to obtain recognition of the association is not a fundamental right.
The Supreme Court held that the trade unions have no guaranteed right to effective bargaining or right to strike or right to declare a lock-out. The right to strike can be controlled by an appropriate industrial law.
Freedom of Movement This freedom entitles every citizen to move freely throughout the territory of the country. He can move freely from one state to another or from one place to another within a state. This right underline the idea that India is one unit so far as the citizens are concerned. Thus, the purpose is to promote national feeling and not parochialism.
The grounds of imposing reasonable restrictions on this freedom are two, namely, the interests of general public and the protection of interests of any scheduled tribe. The entry of outsiders in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation.
The Supreme Court held that the freedom of movement of prostitutes can be restricted on the ground of public health and in the interest of public morals. The Bombay High Court validated the restrictions on the movement of persons affected by AIDS.
The freedom of movement has two dimensions, viz, internal (right to move inside the country) and external (right to move out of the country and right to come back to the country). Article 19 protects only the first dimension. The second dimension is dealt by Article 21 (right to life and personal liberty).
Freedom of Residence Every citizen has the right to reside and settle in any part of the territory of the country. This right has two parts: (a) the right to reside in any part of the country, which means to stay at any place temporarily, and (b) the right to settle in any part of the country, which means to set up a home or domicile at any place permanently.
This right is intended to remove internal barriers within the country or between any of its parts. This promotes nationalism and avoids narrow mindedness.
The State can impose reasonable restrictions on the exercise of this right on two grounds, namely, the interest of general public and the protection of interests of any scheduled tribes. The right of outsiders to reside and settle in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation. In many parts of the country, the tribals have been permitted to regulate their property rights in accordance with their customary rules and laws.
The Supreme Court held that certain areas can be banned for certain kinds of persons like prostitutes and habitual offenders.
From the above, it is clear that the right to residence and the right to movement are overlapping to some extent. Both are complementary to each other.
Freedom of Profession, etc. All citizens are given the right to practise any profession or to carry on any occupation, trade or business. This right is very wide as it covers all the means of earning one’s livelihood.
The State can impose reasonable restrictions on the exercise of this right in the interest of the general public. Further, the State is empowered to:
(a) prescribe professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business; and
(b) carry on by itself any trade, business, industry or service whether to the exclusion (complete or partial) of citizens or otherwise.



Thus, no objection can be made when the State carries on a trade, business, industry or service either as a monopoly (complete or partial) to the exclusion of citizens (all or some only) or in competition with any citizen. The State is not required to justify its monopoly.
This right does not include the right to carry on a profession or business or trade or occupation that is immoral (trafficking in women or children) or dangerous (harmful drugs or explosives, etc,). The State can absolutely prohibit these or regulate them through licencing.
2. Protection in Respect of Conviction for Offences
Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a company or a corporation. It contains three provisions in that direction:
(a) No ex-post-facto law: No person shall be (i) convicted of any offence except for violation of a law in force at the time of the commission of the act, nor (ii) subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act.
(b) No double jeopardy: No person shall be prosecuted and punished for the same offence more than once.
(c) No self-incrimination: No person accused of any offence shall be compelled to be a witness against himself.
An ex-post-facto law is one that imposes penalties retrospectively (retroactively), that is, upon acts already done or which increases the penalties for such acts. The enactment of such a law is prohibited by the first provision of Article 20. However, this limitation is imposed only on criminal laws and not on civil laws or tax laws. In other words, a civil liability or a tax can be imposed retrospectively. Further, this provision prohibits only conviction or sentence under an ex-post-facto criminal law and not the trial thereof. Finally, the protection (immunity) under this provision cannot be claimed in case of preventive detention or demanding security from a person.
The protection against double jeopardy is available only in proceedings before a court of law or a judicial tribunal. In other words, it is not available in proceedings before departmental or administrative authorities as they are not of judicial nature.
Thus, no objection can be made when the State carries on a trade, business, industry or service either as a monopoly (complete or partial) to the exclusion of citizens (all or some only) or in competition with any citizen. The State is not required to justify its monopoly.
This right does not include the right to carry on a profession or business or trade or occupation that is immoral (trafficking in women or children) or dangerous (harmful drugs or explosives, etc,). The State can absolutely prohibit these or regulate them through licencing.
   3. Protection in Respect of Conviction for Offences Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a company or a corporation. It contains three provisions in that direction:

1. No ex-post-facto law: No person shall be (i) convicted of any offence except for violation of a law in force at the time of the commission of the act, nor (ii) subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act.
2. No double jeopardy: No person shall be prosecuted and punished for the same offence more than once.
3. No self-incrimination: No person accused of any offence shall be compelled to be a witness against himself.

An ex-post-facto law is one that imposes penalties retrospectively (retroactively), that is, upon acts already done or which increases the penalties for such acts. The enactment of such a law is prohibited by the first provision of Article 20. However, this limitation is imposed only on criminal laws and not on civil laws or tax laws. In other words, a civil liability or a tax can be imposed retrospectively. Further, this provision prohibits only conviction or sentence under an ex-post-facto criminal law and not the trial thereof. Finally, the protection (immunity) under this provision cannot be claimed in case of preventive detention or demanding security from a person.

The protection against double jeopardy is available only in proceedings before a court of law or a judicial tribunal. In other words, it is not available in proceedings before departmental or administrative authorities as they are not of judicial nature.
it covers a variety of rights that go to constitute the personal liberties of a man.
The Supreme Court has reaffirmed its judgement in the Menaka case in the subsequent cases. It has declared the following rights as part of Article 21:
(1) Right to live with human dignity.
(2) Right to decent environment including pollution free water and air and protection against hazardous industries.
(3) Right to livelihood.
(4) Right to privacy.
(5) Right to shelter.
(6) Right to health.
(7) Right to free education up to 14 years of age.
(8) Right to free legal aid.
(9) Right against solitary confinement.
(10) Right to speedy trial.
(11) Right against handcuffing.
(12) Right against inhuman treatment.
(13) Right against delayed execution.
(14) Right to travel abroad.
(15) Right against bonded labour.
(16) Right against custodial harassment.
(17) Right to emergency medical aid.
(18) Right to timely medical treatment in government hospital.
(19) Right not to be driven out of a state.
(20) Right to fair trial.
(21) Right of prisoner to have necessities of life.
(22) Right of women to be treated with decency and dignity.
(23) Right against public hanging.
(24) Right to hearing.
(25) Right to information.
(26) Right to reputation.
(27) Right of appeal from a judgement of conviction
(28) Right to social security and protection of the family
(29) Right to social and economic justice and empowerment
(30) Right against bar fetters
(31) Right to appropriate life insurance policy
(32) Right to sleep
(33) Right to freedom from noise pollution
(34) Right to electricity
4. Right to Education
Article 21 A declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may determine. Thus, this provision makes only elementary education a Fundamental Right and not higher or professional education.
This provision was added by the 86th Constitutional Amendment Act of 2002. This amendment is a major milestone in the country’s aim to achieve ‘Education for All’. The government described this step as ‘the dawn of the second revolution in the chapter of citizens’ rights’.
Even before this amendment, the Constitution contained a provision for free and compulsory education for children under Article 45 in Part IV. However, being a directive principle, it was not enforceable by the courts. Now, there is scope for judicial intervention in this regard.
This amendment changed the subject matter of Article 45 in directive principles. It now reads—‘The state shall endeavour to provide early childhood care and education for all children until they complete the age of six years.’ It also added a new fundamental duty under Article 51A that reads —‘It shall be the duty of every citizen of India to provide opportunities for education to his child or ward between the age of six and fourteen years’.
In 1993 itself, the Supreme Court recognised a Fundamental Right to primary education in the right to life under Article 21. It held that every child or citizen of this country has a right to free education until he completes the age of 14 years. Thereafter, his right to education is subject to the limits of economic capacity and development of the state. In this judgement, the Court overruled its earlier judgement (1992) which declared that there was a fundamental right to education up to any level including professional education like medicine and engineering.
In pursuance of Article 21A, the Parliament enacted the Right of Children to Free and Compulsory Education (RTE) Act, 2009. This Act seeks to provide that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards. This legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all.12a
5 Protection Against Arrest and Detention
Article 22 grants protection to persons who are arrested or detained. Detention is of two types, namely, punitive and preventive. Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court. Preventive detention, on the other hand, means detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future. Thus, preventive detention is only a precautionary measure and based on suspicion.
The Article 22 has two parts—the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law.
(a) The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law:
(i) Right to be informed of the grounds of arrest.
(ii) Right to consult and be defended by a legal practitioner.
(iii) Right to be produced before a magistrate within 24 hours, excluding the journey time.
(iv) Right to be released after 24 hours unless the magistrate authorises further detention.
These safeguards are not available to an enemy alien or a person arrested or detained under a preventive detention law.
The Supreme Court also ruled that the arrest and detention in the first part of Article 22 do not cover arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax, and deportation of an alien. They apply only to an act of a criminal or quasi-criminal nature or some activity prejudicial to public interest.
(b) The second part of Article 22 grants protection to persons who are arrested or detained under a preventive detention law. This protection is available to both citizens as well as aliens and includes the following:
(i) The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. The board is to consist of judges of a high court.
(ii) The grounds of detention should be communicated to the detenu. However, the facts considered to be against the public interest need not be disclosed.
(iii) The detenu should be afforded an opportunity to make a representation against the detention order.
Article 22 also authorises the Parliament to prescribe (a) the circumstances and the 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; (b) the maximum period for which a person can be detained in any classes of cases under a preventive detention law; and (c) the procedure to be followed by an advisory board in an inquiry.
The 44th Amendment Act of 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months. However, this provision has not yet been brought into force, hence, the original period of three months still continues.
The Constitution has divided the legislative power with regard to preventive detention between the Parliament and the state legislatures. The Parliament has exclusive authority to make a law of preventive detention for reasons connected with defence, foreign affairs and the secu-rity of India. Both the Parliament as well as the state legislatures can concurrently make a law of preventive detention for reasons connected with the security of a state, the maintenance of public order and the maintenance of supplies and services essential to the community.
The preventive detention laws made by the Parliament are:
(a) Preventive Detention Act, 1950. Expired in 1969.
(b) Maintenance of Internal Security Act (MISA), 1971. Repealed in 1978.
(c) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974.
(d) National Security Act (NASA), 1980.
(e) Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act (PBMSECA), 1980.
(f) Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed in 1995.
(g) Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988.
(h) Prevention of Terrorism Act (POTA), 2002. Repealed in 2004.
It is unfortunate to know that no democratic country in the world has made preventive detention as an integral part of the Constitution as has been done in India. It is unknown in USA. It was resorted to in Britain only during first and second world war time. In India, preventive detention existed even during the British rule. For example, the Bengal State Prisoners Regulation of 1818 and the Defence of India Act of 1939 provided for preventive detention.