Right to Freedom

Right to Freedom (Art.19)

Personal Liberty is the most fundamental of fundamental rights. Articles 19 to 22 deal with different aspects of this basic right. Taken together, these four articles form a charter of personal liberties, which provides the backbone of the chapter on Fundamental Rights. Of these, Article 19 is the most important and it may rightly be called the key-article embodying the “basic freedoms” under the Constitution, guaranteed to all citizens. These are the rights:

1) To freedom of speech and expression.

2) To assemble peaceably and without arms.

3) To form associations or unions;

4) To move freely throughout the territory of India;

5) To reside and settle in any part of the territory of India and

6) To practice any profession, or to carry on any occupation, trade or business.

 

It is impossible to exaggerate the importance of these freedoms in any democratic society. Indeed, the very test of a democratic society isthe extent to which these freedoms are enjoyed by the citizens in general. These freedoms as a whole constitute the liberty of the individual.

 

What restrictions are put on the freedom of speech and expression?

 

There are eight restrictions on the freedom of speech and expression. These are in respect of the:

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

Freedom of the Press

There had been much criticism, both within Constituent Assembly and outside, of the omission of a specific reference to freedom of the Press and the failure to guarantee it along with the freedom of speech. The omission was considered a serious lapse on the part of the Drafting Committee by the protagonists of “Free Press” as a separate right. Nevertheless, the Drafting Committee did not think, it necessary to incorporate right of this nature in the chapter of Fundamental Rights.

 

Speaking on behalf of the Committee, Dr. Ambedkar said that the Press was merely another way of expression of an individual or a citizen. The press has no special rights which are not to be given or which are not to be exercised by the citizen in his individual capacity. The editor of a Press or the managers of the Press are all citizens and, therefore, when they choose to write in newspapers, they are merely exercising their right of expression. Therefore, no special mention is necessary of the freedom of the Press. The word “expression” that is used in Article 19(1) (a) in addition to “speech” is comprehensive enough to cover the freedom of Press.

 

Other rights covered under the Right to Freedom (Art.19)

Right to Assemble [Art. 19 (1) (b) and 19 (3)]:

One of the basic protections of free speech is the right of free assembly. In fact, freedom of assembly and freedom of speech go hand in hand. The framers of the Constitution knew that the right to peaceably assemble, public debate and discussion, for political activities and such other purposes was essential to make the freedom of speech and expression real. Hence, the constitutional guarantee to assemble peaceably and without arms. The right to assembly can be restricted only in the interest of public order and the restrictions ought to be reasonable.

 

Right to Form Associations and Unions [Art, 19 (1) (c) and 19(4)]:

The right guaranteed to form association or unions is more or less a charter for all working people in this country. The right to form associations or union can be restricted only in the interest of public order or morality. There can be no association or union for an illegal or conspiratorial purpose. Nor can there be an association to further immorality. The right to form associations or unions however, is not available to every citizen in the same measure. A member of the public services, although he is a citizen cannot claim the right to the extent that a private citizen can. Being a Government servant, he is bound by his service rules and he cannot challenge his service rules on the ground that they stand in his way of fully enjoying the right to form associations.

 

Right to Free Movement and to Residence [Art. 19(1) (d), (e) and 19 (5)]:

The right to move freely throughout the territory of India, to reside and settle in any part of it are guaranteed under sub-clauses (d) and (e) respectively of clause (1) of Article 19. The importance of the freedom of movement and residence cannot be exaggerated. In fact, the enjoyment of the freedoms guaranteed under the other rights depends largely on the freedom of movement unhampered and uncircumscribed. The state’s power to place reasonable restrictions of these freedoms is limited.

 

Freedom of Profession, Occupation, Trade or Business [Art 19 (1) (g) and 19 (6)]:

Article 19 (1) (g) guarantees the freedom to practice any profession or to carry on any occupation, trade or business. A doubt was expressed in the Constituent Assembly whether these were fundamental rights at all. Perhaps the only other Constitutions which have given them the status of fundamental rights are those of Ireland and Switzerland. It seems that the framers of the Indian Constitution had been influenced by the complex social system that prevailed in India, in seeking to guarantee rights such as these. It has been the bane of India’s social life that professions were inherited rather than acquired. A society dominated by Caste, and professions based upon Caste or religion, have little to offer for the building up of a community enlivened by social mobility and dynamism. Such a society is often intolerant to persons who change the traditional professions of their ancestors and is eager to maintain a petrified social order. A constitutional guarantee of the right to take up the profession, calling, trade or business of one’s choice is indeed a significant aid to the building up of a dynamic and democratic society.

 

Protection in Respect of Conviction for Offences (Art-20)

Article 20, affords protection against arbitrary and excessive punishment to any person who commits an offence. There are four such guaranteed protections:

(1) A person can be convicted of an offence only if he has violated a law in force at the time when he is alleged to have committed the offence;

(2) No person can be subjected to greater penalty than what might have been given to him under the law that was prevalent when he committed the offence;

(3) No person can be prosecuted and punished for the same offence more than once.

(4) No person accused of an offence can be compelled to be a witness against himself.

 

Protection of Life and Personal Liberty (Art -21)

Article 21, is one of the shortest in the constitution over which there took place one of the longest and most through going discussions in the Constituent Assembly. It enacts that no person shall be deprived of his life or personal liberty except according to procedure established by law.

 

Article 21, gives protection to life and personal liberty to the extent therein mentioned. It does not recognise the right to life and personal liberty as an absolute right but limits the scope of the right itself. The absolute right is, by the definition in the article, qualified by the risk of its being taken away in accordance with the procedure established by law. It is this circumscribed right which is substantively protected by Article 21, as against the executive as well as the legislature,, for the Constitution has conditioned its deprivation by the necessity for a procedure established by law made by the legislature. While sub-clauses 2 to 6 of Article 19 have put a limit on the fundamental right of a citizen, Article 21 along with Article 22 puts a limit on the power of the State given under Article 246, read with the legislative lists. Under the Constitution, life and personal liberty are balanced by restrictions on the rights of the citizens as laid down in Article 19, and by the checks put upon the State by Article 21 and 22.

 

Right to Education (Art-21 A)

This right was inserted in the list of fundamental rights by the 86th Amendment Act, 2002. It provides that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.

 

Protection against Arrest and Detention (Art – 22)

Article 22 guarantees three rights. First, it guarantees the right of every person who is arrested to be informed of the cause of his arrest, secondly, his right to consult, and to be defended by a lawyer of his choice. Thirdly, every person arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours and shall be kept in continued custody only with his authority. All these rights are without any qualifications and are, therefore, in absolute terms.

 

There are however two exceptions to the universal application of the rights guaranteed under the first two clauses of Article 22. These relate to.

1)Any person who is an enemy alien, or

2)Any person who is arrested or detained under any law providing for preventive detention.

 

India owned freedom from foreign rule as a result of great sacrifices by thousands of patriots. Many of them died in British jails in the course of the struggle for independence, many others spent years of their lives in prison. Naturally, freedom and liberty are gift too precious to all of them who lived to see India free. And they wanted to safe guard these rights and facilitate their enjoyment as best as possible. Against this background it is easy to understand and appreciate the deep rooted feeling against what happened to be personal freedom during the emergency. At the same time, it must be remembered that democratic freedom in India is still too young and tender a plant to be capable of defending itself easily against overt or covert onslaughts that may be directed against it by elements which have no regard either for democratic liberties or orderly progress. Vigilance is still required to protect the country’s hard won freedom and national unity from forces of subversion and violent revolution.

 

Right against Exploitation (Art. 23 & 24)

Article 23 and 24 deal with the right against exploitation. Article 23 which prohibits traffic in human beings and beggar; and similar forms of forced labour. This provision in Indian Constitution is comparable to the Thirteenth Amendment of the American Constitution abolishing slavery or involuntary servitude. At the time of the adoption of the Constitution there was hardly anything like slavery or the widespread practice of forced labour in any part of India. The National Freedom Movement since the twentieth century had been a rallying force against such practices. However, there were many areas of the country where “untouchables” were being exploited in several ways by the higher castes and richer classes.

 

According to Article 24, no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. This Article is now intimately related to a Fundamental Rights as well as Fundamental Duties which call upon the State to enforce Universal Compulsory and Free Primary Education to all children in the country up to the age of 14 years. This comes of the realisation that children should prepare during this period for the task of the future as useful and responsible citizens. Employment of children is an uncivilized and even inhuman practice. It is exploitation. It stunts their growth, corrupts their moral fibre and often drives them to delinquency. Naturally, it must be prohibited and incentives to divert them from employment should be provided.