Right to Freedom

Freedom of speech offers a human being to express his feelings to others, but this is not the only reason, purpose to protect the freedom of speech. There could be more reasons to protect these essential liberties. There are four important justifications for freedom of speech:

• For the discovery of truth by open discussion.
• Free speech as an aspect of self-fulfillment, and development.
• For expressing belief and political attitudes.
• For active participation in democracy.

Protection of Six Rights (A19)

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

• Right to freedom of speech and expression.
• Right to assemble peaceably and without arms.
• Right to form associations or unions or co-operative societies.
• Right to move freely throughout the territory of India.
• Right to reside and settle in any part of the territory of India.
• 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 the property was deleted by the 44th Amendment Act of 1978. Now, the right to property is only Constitutional Right under Article 300A.

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.

Freedom of Speech and Expression

The Supreme Court held that freedom of speech and expression includes the following:

• Right to propagate one’s views as well as views of others.
• Freedom of silence.
• Freedom of the press.
• Freedom of commercial advertisements.
• Right against tapping of telephonic conversation.
• Right to telecast, that is, the government has no monopoly on electronic media.
• Right to know about government activities.
• Right against bandh called by a political party or organization.
• Right against the imposition of pre-censorship on a newspaper.
• Right to demonstration or picketing but not right to strike.

Restriction:

The State can impose reasonable restrictions on the exercise of the freedom of speech and expression on the following grounds:

• Sovereignty and integrity of India.
• Security of the state.
• Friendly relations with foreign states.
• Public order.
• Decency or morality.
• Contempt of court.
• Defamation.
• 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 right does not include the right to strike.

Restriction:

• Sovereignty and integrity of India and
• Public order including the maintenance of traffic in the area concerned.

Above said restriction can be implemented by the legal procedure under the following two sections:

• Section 144 of CrPC
• Section 141 of IPC

Freedom of Association

It includes the right to form the following type of groupings/associations:

• Political parties
• Companies
• Partnership firms
• Societies and clubs
• Organizations
• Trade unions
• Anybody of persons like trust, NGOs, etc.

It not only includes the right to start an association or union but also to continue with the association or union as such. However, the right to obtain recognition of the association is NOT a fundamental right. It covers the negative right of not to form or join an association or union.

Restrictions:

• Sovereignty and integrity of India,
• Public order and
• Morality.

Freedom of Movement

This freedom entitles every citizen to move freely throughout the territory of the country. The purpose is to promote national feeling and not parochialism. The freedom of movement has two dimensions – internal and external. Article 19 protects only the first dimension i.e., right to move inside the country. The second dimension is dealt with Article 21.

Restriction:

• The interests of the general public and
• The protection of interests of any scheduled tribe.

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.

Freedom of Residence

This right has the following two parts:

• The right to reside in any part of the country, which means to stay at any place temporarily.
• The right to settle in any part of the country, which means to set up a home or domicile at any place permanently.

This promotes nationalism and avoids narrow-mindedness.

Restriction:

• The interest of the general public and
• The protection of interests of any scheduled tribes.

The Supreme Court held that certain areas can be banned for certain kinds of persons like prostitutes and habitual offenders.

Freedom of Profession/Occupation

All citizens are given the right to practice any profession or to carry on any occupation, trade or business. However, the State is empowered to:

• Prescribe professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business; and
• Carry on by itself any trade, business, industry or service whether to the exclusion (complete or partial) of citizens or otherwise.

Restriction:

• In the interest of the general public.

This right does not include the right to carry on a profession or business that is:

• Immoral (trafficking in women or children) or
• Dangerous (harmful drugs or explosives).

Protection in Respect of Conviction for Offences (A20)

Article 20 grants protection against arbitrary and excessive punishment to an accused person. It protects all persons whether citizen or foreigner or the legal person like a company or a corporation. It contains three provisions:

1. Ex-post-facto Law It imposes penalties retrospectively 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. No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act, nor subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act. This limitation is imposed only on criminal laws and not on civil laws or tax laws. Protection under this provision cannot be claimed in case of preventive detention or demanding security from a person.
2. No double jeopardy It is the subjection of an individual to a second trial or punishment for the same offence or crime for which he has already been tried or punished. It is available only in proceedings before a court of law or a judicial tribunal. It is not available in proceedings before departmental or administrative authorities as they are not of judicial nature.
3. No self-incrimination It is the act of implicating or exposing one’s own self to criminal prosecution. The protection against self-incrimination extends to both oral evidence and documentary evidence. It does NOT extend to:
   • Compulsory production of material objects.
   • Compulsion to give thumb impression, specimen signature, blood specimens.
   • Compulsory exhibition of the body.

Further, it extends only to criminal proceedings and not to civil proceedings or proceedings which are not of criminal nature.

Protection of Life and Personal Liberty (A21)

Article 21 declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law.

This right is available to both citizens and non-citizens.

In the famous Gopalan case (1950), the Supreme Court has taken a narrow interpretation of Article 21. But in Menaka case (1978), the Supreme Court overruled its judgement in the Gopalan case by taking a wider interpretation of Article 21. It ruled that the right to life and personal liberty of a person can be deprived by the law provided the procedure prescribed by that law is reasonable, fair, and just. In other words, it has introduced the American expression ‘due process of law’.

It has declared the following rights as part of Article 21:

• Right to live with human dignity.
• Right to the decent environment including pollution-free water and air and protection.
• Right to livelihood.
• Right to privacy.
• Right to shelter.
• Right to health.
• Right to free education up to 14 years of age.
• Right to free legal aid.
• Right against solitary confinement.
• Right to speedy trial.
• Right against handcuffing.
• Right against inhuman treatment.
• Right against delayed execution.
• Right to travel abroad.
• Right against bonded labor.
• Right against custodial harassment.
• Right to emergency medical aid.
• Right to timely medical treatment in the government hospital.
• Right not to be driven out of a state.
• Right to fair trial.
• Right of prisoner to have necessities of life.
• Right of women to be treated with decency and dignity.
• Right against public hanging.
• Right to hearing.
• Right to information.
• Right to reputation.

Due Process of Law (American Constitution)

Due process involves both ‘procedural’ and ‘substantive’ aspects.

• Procedural due process requires fairness in the methods used to deprive a person of life, liberty or property.
• Substantive due process requires valid governmental justification for taking a person’s life, liberty or property.

Due process generally requires fairness in government proceedings. Laws should be applied to persons equally, without discrimination on prohibited grounds, such as gender, nationality, age, etc.

Procedure Established by Law (Indian Constitution)**

The expression ‘procedure established by law’ in the context of deprivation of life and liberty under Article 21 was interpreted in Maneka Gandhi v. Union of India (1978). Judges were agreed that the procedure must be reasonable and fair and not arbitrary. If the procedure was arbitrary, it would violate Article 14 since Article 14 is not consistent with any arbitrary power.

Right to Education (Article 21A)

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.

This provision was added by the 86th Constitutional Amendment Act of 2002. In 1993 itself, the Supreme Court recognized a Fundamental Right to primary education in the right to life under Article 21.

86th Constitutional Amendment Act 2002

• This amendment changed the subject matter of Article 45 in directive principles i.e., ‘The state shall endeavour to provide early childhood care and education for all children until they complete the age of six years.’
• It added a new fundamental duty under Article 51A i.e., ‘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.’

Parliament enacted the Right of Children to Free and Compulsory Education (RTE) Act, 2009.

Protection Against Arrest and Detention (A22)

Article 22 grants protection to persons who are arrested or detained. It has two parts:

1. The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law:
   • Right to be informed of the grounds of arrest.
   • Right to consult and be defended by a legal practitioner.
   • Right to be produced before a magistrate within 24 hours, excluding the journey time.
   • Right to be released after 24 hours unless the magistrate authorizes further detention.

These safeguards are not available to an enemy alien or a person arrested or detained under a preventive detention law. They apply only to an act of a criminal or quasi-criminal nature or some activity prejudicial to the public interest.

2. 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:
   • The detention of a person cannot exceed three months unless an Advisory Board (consist of judges of a High Court) reports sufficient cause for extended detention.
   • The grounds of detention should be communicated to the detenu.
   • The detenu should be afforded an opportunity to make a representation against the detention order.

Powers of Parliament under Article 22

• 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.
• Maximum period for which a person can be detained in any classes of cases under a preventive detention law.
• The procedure to be followed by an Advisory Board in an inquiry.

The Parliament has exclusive authority to make a law of preventive detention for reasons connected with the following:

• Defense
• Foreign affairs.
• Security of India.

Both the Parliament as well as the state legislatures can concurrently make a law of preventive detention for the following:

• Reasons connected with the security of a state,
• Maintenance of public order and
• Maintenance of supplies and services essential to the community.

Preventive Detention

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.

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Subject: Polity

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