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constitutional_law:right_to_freedom

Right to freedom

Article 19(1) in The Constitution Of India 1949

  1. All citizens shall have the right
    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. omitted
    7. to practise any profession, or to carry on any occupation, trade or business

Freedom of Speech and Expression

The freedom of speech is regarded as the first condition of liberty. It occupies a preferred and important position in the hierarchy of the liberty, it is truly said about the freedom of speech that it is the mother of all other liberties. Freedom of Speech and expression means the right to express one's own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. In modern time it is widely accepted that the right to freedom of speech is the essence of free society and it must be safeguarded at all time. The first principle of a free society is an untrammeled flow of words in an open forum. Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays significant role in the development of that particular society and ultimately for that state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation.

Freedom of speech is guaranteed not only by the constitution or statutes of various states but also by various international conventions like Universal Declaration of Human Rights , European convention on Human Rights and fundamental freedoms, International Covenant on Civil and Political Rights etc. These declarations expressly talk about protection of freedom of speech and expression.

Why to protect freedom of speech?

Freedom of speech offers human being to express his feelings to other, 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 –

  1. For the discovery of truth by open discussion - According to it, if restrictions on speech are tolerated, society prevents the ascertainment and publication of accurate facts and valuable opinion. That is to say, it assists in the discovery of truth.
  2. Free speech as an aspect of self- fulfillment and development – freedom of speech is an integral aspect of each individual’s right to self-development and self-fulfillment. Restriction on what we are allowed to say and write or to hear and read will hamper our personality and its growth. It helps an individual to attain self-fulfillment.
  3. For expressing belief and political attitudes - freedom of speech provides opportunity to express one’s belief and show political attitudes. It ultimately results in the welfare of the society and state. Thus, freedom of speech provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
  4. For active participation in democracy – democracy is most important feature of today’s world. Freedom of speech is there to protect the right of all citizens to understand political issues so that they can participate in smooth working of democracy. That is to say, freedom of speech strengthens the capacity of an individual in participating in decision-making.

Thus we find that protection of freedom of speech is very much essential. Protection of freedom of speech is important for the discovery of truth by open discussion, for self- fulfillment and development, for expressing belief and political attitudes, and for active participation in democracy. The present study is intended to present the provisions of the American and Indian Constitution which recognize the freedom of speech and expression, the basic fundamental rights of human being. It is also to be examined that what is judicial trend in interpreting the freedom of speech and expression provisions. The study also covers the comparison between the approaches of both countries as far as freedom of speech is concerned.

Freedom of Association

All citizens have the right to form associations and unions. It includes the right to form political parties, companies, partnership firms, societies, clubs, organizations, trade unions etc. It not only includes the right to start an association or union but also to continue with the association or union. Further, it covers the negative right of not to form or join an association or union. The right to obtain recognition of the association is not a fundamental right.

Restrictions on Freedom of Association:

The state can impose reasonable restrictions on the following grounds:

  1. Sovereignty and integrity of India,
  2. Public order and morality

The Supreme Court held that the trade unions have no guaranteed right to effective bargaining or the right to strike or right to declare a lockout. 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. This right underlines the idea that the India is one unit so far as the citizens are concerned. Thus the purpose is to promote national feeling.

Restrictions on Freedom of Movement:

The state can impose reasonable restrictions on the following grounds:

  1. The interests of general public
  2. The protection of interests of any scheduled tribes. The entry of outsiders in tribal areas is restricted to protect the distinctive culture, language, customs and manners of schedule tribes and to safeguard their traditional vocation and properties against exploitation.

Freedom of reside and settle

Every citizen has the right to reside and settle in any part of the territory. This article provides the right to reside any part of the country for a temporary period and to settle in any part of the country, which means to set up a home or domicile at any place permanently.

Restrictions on freedom of Residence:

The state can impose reasonable restrictions on the following grounds:

  1. The interests of general public
  2. The protection of interests of Scheduled Tribes. The right of outsiders to reside and settle in tribal areas is restricted to protect the distinctive culture, language and customs of Scheduled Tribes and to safeguard their traditional vocations and properties against exploitation.

Freedom of trade, occupation & profession

All citizens are given the right to practice 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.

Restrictions on Freedom of Profession:

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:

  1. Prescribe professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business:
  2. 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 citizens. The state is not required to justify its monopoly. In other words if the government decides to start the business of anything and it declares that only government can do this business, then nobody can claim its right to freedom of profession.

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 explosive, etc.). The State can absolutely prohibit these or regulate them through licensing. Reasonable Restrictions

The Fundamental Rights guaranteed by the Constitution of India are not absolute. There are certain restrictions which can be imposed by the state according to the procedure established by law. However, these restrictions must be reasonable and not arbitrary. Article 19 covers these fundamental freedoms as well as the restrictions which can be imposed on these rights. In this paper,all the six freedoms defined in Article 19 and the restrictions are highlighted. Also, all the landmark cases are covered in this paper while dealing with the concept of Reasonable Restrictions. The main focus of this paper is to throw some light on the test to determine the reasonability in the restrictions mentioned in Article 19 of the Constitution of India. Further, in this paper, some light is also thrown as to what constitutes “unreasonable restrictions.”

Other Freedoms

Created on 2020/10/19 23:13 by • Last modified on 2020/11/07 18:32 (external edit)