Reasonable Restrictions under Article 19 of Indian Constitution

Introduction:

Article 19 of the Constitution of India provides for six freedoms, viz.

• Freedom of speech and expression;
• To assemble peaceable and without arms;
• To form associations or unions [or co-operative societies][1]
• To move freely throughout the territory of India;
• To reside and settle in any part of the territory of India;
• [***][2]
• To practice any profession, or to carry on any occupation, trade or business.

However, it is notable that no right is absolute and every right is subject to some reasonable restrictions. Similarly, the reasonable restrictions can impose upon the freedoms guaranteed under Article 19(1)(a) to Article 19(1)(g).

REASONABLE RESTRICTIONS

It is difficult to define the term “reasonable”.[3] There is no definite test to determine what constitutes reasonable restrictions. Whether the restrictions imposed are reasonable or not depend upon the merits of each case. This decision lies within the consideration for the fact of facts of each case.[4]

Article 19(2) to (6) provides for the restrictions that impose to curtail the freedoms specified in Article 19(1)(a) to 19(1)(g).

The Supreme Court has examined the reasonableness of restrictions on the following grounds:

1. Restrictions imposed should not be arbitrary: The imposition of restrictions on the freedom, according to the observation of the Supreme Court, should not arbitrate, excess or go beyond the requirement of public interest.[5]
2. No abstract or general pattern can be laid down to determine reasonableness: No abstract or general pattern can lie down to determine the reasonableness of the restrictions. Laying down of the universal application of the principle can’t happen; the same will vary from case to case depending upon the changing conditions.
3. Reasonableness demands proper balancing: The term reasonableness connotes the absence of arbitrariness. The restriction of freedom of an individual based on any arbitrary legislation fails as reasonable. Proper balancing becomes mandatory between the restrictions imposed and the achievement of object by such restriction.
4. Reasonable of restrictions and not of law: The Court decides on the reasonableness of restrictions and not of the law which permits restrictions on the freedom.
5. Directive Principles to be kept in mind: While considering the reasonableness of the restrictions, the Court has to keep in mind the Directive Principles of State Policy. Generally, the restrictions which promotes Directive Principle are reasonable.

EFFECT v. SUBJECT TEST

Whether it is the test to determine the reasonableness of restrictions? Whether the Court look into the Subject-matter of the legislation or the effect of the legislation in determining whether the law violates Article 19(1).

In A.K. Gopalan v. State of Madras,[6] the Supreme Court applied the subject-matter test to uphold the validity of Preventive Detention Act.

However, in Bennett Coleman v. UOI,[7] the Supreme Court applied the ‘direct effect’ test. Observation held that the legislation may have a direct effect on the rights of the individual although the subject matter of the law may be different. It is the effect of the legislation on the Fundamental Right rather than the subject-matter which must be taken into account by the Courts while deciding the reasonableness of restrictions.

Application of ‘effect test’ has happened in several other cases like Maneka Gandhi v. UOI[8] and R.C. Cooper v. UOI.[9]

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

Article 19(1)(a) of the Constitution provides that every person has the “freedom of speech and expression”; however, the right is not absolute (2) provides for the reasonable restrictions following the imposition of which curtailment of the freedom of speech and expression can happen. Article 19(2) enables the legislature to impose reasonable restrictions on the following grounds:

• Sovereignty and Integrity of India
• Security of the State
• Friendly relations with foreign states
• Public Order
• Decency and Morality
• Contempt of Court
• Defamation
• Incitement of an Offence

Now, let us understand these grounds in detail in the above-given order:

• Sovereignty and Integrity of India: The ground was inserted to the Constitution by Sixteenth Amendment Act, 1963. Thus, with the insertion of the ground, the state gains power to curtail the freedom of speech and expression if it becomes prejudicial to the Sovereignty and Integrity of India.
• Security of the State: Security of states implies the aggravated form of disturbance of peace which threatens the very foundations of the state, or which threatens to overthrow the state.[10] It is, however, notable that it is not every public disorder which can be regarded as threatening the security of the state. The ordinary breaches of public order which do not endanger the state itself can’t regard themselves as a threat to the security of the state.[11]
• Friendly relations with foreign states: The state if empowered to impose reasonable restrictions on the freedom of speech and expression in the interest of friendly relations with foreign states. The reason behind imposing the ground is that persistent and malicious propaganda against a foreign state which has friendly relations with India may cause considerable embarrassment to India, and, thus, restriction on such propaganda is reasonable.
• Public Order: The term ‘public order’ used in Article 19(2) has a wider import that ‘security of the state”. It is synonymous to public peace, safety and tranquillity.[12] It is notable that the imposition of restriction is in the interest of the public order only if there exists the proximate and direct nexus between the restriction imposed and public order. If there is no such proximate and direct nexus, the restriction is unreasonable.[13]
• Decency and Morality: It’s another ground on which freedom of speech and expression is under curtail. They are abstract terms and vary from society to society and time to time. Decency means the absence of obscenity. The test of obscenity is whether the tendency of the matter charged as obscene is to deprave and corrupt whose minds are open to such immoral influences, and into whose hands a publication of this sort is likely to fall.
• Contempt of Court: Article 19(1)(a) does not permit any individual to commit contempt of court, and moreover, if he does so, the Courts have the power to punish for the contempt. The idea behind is that the authority of the Courts remains maintained. Thus, the Supreme Court confers with the power to punish for its Contempt under Article 129, and High Courts under Article 215.
• Defamation: This is another ground of restriction on Freedom of speech and expression.  A person while exercising his freedom of speech and expression cannot defame anyone. Defamation means publication of a statement which tends to lower the reputation of a person in the eyes of right-thinking members of the society. Every person has the reputation and dignity of his own, and the other person cannot be given the right to lower it under the grab of the ‘freedom of speech and expression’.
• Incitement of an Offence: Freedom of speech and expression cannot be used by the people to incite others to commit an offence. Say for example, a person while inciting the other for committing murder cannot plead that he has exercised his freedom of speech and expression, because commission of murder is an offence.

FREEDOM TO ASSEMBLE: ARTICLES 19(1)(b) AND 19(3)

Freedom to assemble peacefully without arms is guaranteed by Article 19(1)(b) of the Constitution. However, the same curtailed by the state in the interests of public order, and sovereignty and integrity of India. It is to noted that Article 19(1)(b) do not permit to hold the assembly in the government premises. And hence, the government can validly prohibit such meetings at the government premises.

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

Article 19(1)(c) of the Constitution guarantees to the citizens of India to form associations or unions or co-operative societies. However, reasonable restrictions can be imposed by the state in the interests of public order, morality, or sovereignty and integrity of India.

FREEDOM OF MOVEMENT AND RESIDENCE: ARTICLE 19(1)(d), 19(1)(e) AND 19(5)

Article 19(1)(d) guarantees every citizen the right to move freely throughout the territory of India. Article 19(1)(e) of the Constitution guarantees every citizen the right to settle and reside in any part of India. However, reasonable restrictions can be imposed by the State on two grounds viz.

• In the interest of the general public
• For the protection of the interests of any Scheduled Tribe

The articles are discussed together because they are in many cases affected simultaneously. The freedom of movement and residence can also be curtailed and suspended during an emergency.

FREEDOM TO CARRY ON TRADE AND COMMERCE: ARTICLE 19(1)(g) and 19(6)

Article 19(1)(g) of the Constitution guarantees the citizens of India the freedom to practise or to carry on any occupation, trade or business. However, under Article 19(5) the state can impose reasonable restrictions in the interests of the general public. The state is also not prevented from making-

• A law relating to the profession or technical qualification necessary for practising a profession or carrying on any occupation, trade or business; or
• A law relating to the carrying on by the state, or by a corporation owned and controlled by it, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

CONCLUSION

The restrictions imposed on the Fundamental Rights should be reasonable and the government can not be vested with absolute power to restrict the Fundamental Right arbitrarily. The restrictions provided in Articles 19(2) to 19(6) are the reasonable restrictions and the state is empowered to curtail the Fundamental Rights in the circumstances mentioned under Articles 19(2) to 19(6). While deciding whether the restriction is reasonable or not, the Court has to consider the facts of each case, and no straight jacket formula can be laid down to determine what constitutes an unreasonable restriction.

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[1] Inserted by the Constitution (Ninety-seventh Amendment) Act 2011, sec. 2 (w.e.f. 15-2-2012).

[2] Omitted by the Constitution (Forty-fourth Amendment) Act, 1978.

[3] Gujrat Water Supply v. Unique Electro (Gujrat) (P), AIR 1989 SC 973.

[4] State of Madras v. VG Row, AIR 1952 SC 196.

[5] MRF Limited v. Inspector Kerala Government, AIR 1999 SC 188.

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

[7] Bennett Coleman v. UOI, AIR 1973 SC 106.

[8] Maneka Gandhi v. UOI, AIR 1978 SC 597.

[9] R.C. Cooper v. UOI, AIR 1970 SC 564.

[10] Santokh Singh v. Delhi Administration, AIR 1966 SC 1387.

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

[12] OK Ghosh v. EX Joseph, AIR 1962 SC 812.

[13] Ibid.