This article has been written by Ms. Damini Chauhan, a student of BBA.LLB (Hons), from United world school of law, Karnavati University, Gandhinagar. This author is a 5th year law student.
The definition of “freedom” is essentially “not to be constrained in any way.” The idea of “freedom” is particularly popular among political philosophers in the west. In his work “Two Concepts of Liberty,” British philosopher Isaiah Berlin introduced the concepts of negative and positive freedom. Negative freedom, according to him, is the capacity to act as one pleases without regard to any restraints from the outside world. Positive freedom, on the other hand, refers to having control over one’s own life and the decisions that are made in it. The distinction between the two is that whereas positive freedom relates to an idea of oneself that is neither constrained or governed by others, negative freedom denotes the freedom to do or not do something.
Thus, freedom encompasses a variety of individual rights such as the freedom of movement, the freedom of speech and expression, the freedom of religion, the freedom to travel, the freedom of employment, the freedom of self-identity, the freedom to own property, etc. The state should lessen its meddling in the business of individuals in order to grant them these rights. It ought to function as a base state. These freedoms are essential liberties that any democratic state offers to its citizens. These liberties have been outlined as fundamental rights in the Constitution even in a democratic nation like India.
WHAT IS THE RIGHT TO FREEDOM
The Indian Constitution defines the right to freedom as the essential liberties guaranteed by Articles 19 to 22. The purpose of these rights is to uphold the values of liberty expressed in the Preamble in newly independent India, to eliminate individual inequities, and to guarantee everyone the right to a life of dignity.
ARTICLE 19 OF THE INDIAN CONSTITUTION
Article 19(1) of the Indian Constitution provides six freedoms to the citizens, namely:
- Freedom of speech and expression (Article 19(1)(a))
- Freedom of assembly (Article 19(1)(b)),
- Freedom of association (Article 19(1)(c)),
- Freedom of movement (Article 19(1)(d)),
- Freedom to residence and settlement (Article 19(1)(e)),
- Freedom of profession, occupation, trade or business (Article 19(1)(g)).
Originally, there were seven liberties, but the 44th Amendment Act of 1978 removed one of them, the “right to acquire, keep, and dispose of property.”
These six liberties are solely available to citizens, or to natural individuals who have the legal status of “citizenship.” It implies that in order to assert rights under Article 19 there must first be a determination of citizenship under Part II of the Constitution. These rights are not available to foreign nationals, juristic entities, registered companies, or organisations.
FREEDOM OF SPEECH AND EXPRESSION: CLAUSE(1)(A)
This freedom gives people the freedom to communicate their ideas, beliefs, and points of view verbally, in writing, on the printed page, through images, or in any other way. It serves as the foundation for a stable, democratic society. But that does not imply that one can say whatever they want. These rights are subject to “reasonable limits.”
This right also encompasses a number of additional freedoms, although they are not officially mentioned:
•Press freedom: This includes the ability to print and publish whatever one wants, within the bounds of acceptable constraints, and without seeking anyone’s permission first. Pre-censorship of any news, article, book, etc. before publication is a violation of Article 19(1). (a). The Supreme Court stated in Romesh Thappar v. State of Madras (1950) that “Freedom of Speech and of the Press lay at the foundation of all democratic organisations, for without free political discussion, no public education, so essential for the proper functioning of the process of Government, is possible.”
•Right to information: The Right to Information Act of 2005 finally recognised the right to know, receive, and share information as a component of freedom of speech and expression.
•Right to silence: This also applies to the ability to keep silent. The Supreme Court ruled in Bijoe Emmanuel v. State of Kerala (1986) that students who chose not to sing the National Anthem did not break any laws because there is no law that can be used to restrict their freedom of speech and expression.
FREEDOM OF ASSEMBLY: CLAUSE(1)(B)
This freedom includes the ability to get together as a group and conduct meetings and processions. These gatherings may have educational as well as political, social, and religious awareness goals. The only requirement was that the gathering’s purpose should not be unlawful; otherwise, it would be considered a “illegal assembly” in violation of Section 141 of the IPC, which states that “an assembly of five or more persons shall be unlawful if its purpose was criminal.”
There are two restrictions on this right to assemble, namely:
The gathering must be nonviolent and without weapons.
In the sake of maintaining the peace, the sovereignty, and the integrity of India, states may also impose some reasonable limits. For instance, under Section 129 of the Code of Criminal Procedure, magistrates and police officials have the authority to prohibit unlawful assembly that could disturb the peace of the community.
In an emergency, the Magistrate may issue orders under Section 144 of the Code of Criminal Procedure, including limiting public gatherings and assemblies.
The Prevention of Seditious Meetings Act, 1911, grants the State Government the authority to designate any location as a “proclaimed area,” meaning that no public gatherings may be held there without giving the Magistrate three days’ notice.
FREEDOM OF ASSOCIATION: CLAUSE(1)(C)
This freedom includes the ability for a person to band together and create an organisation or union with the aim of serving a lawful purpose. However, unless their members have participated in the aforementioned violence or any other troubling behaviour, mere participation in the prohibited organisation does not automatically render its members “criminals.” Political parties, clubs, trade unions, societies, businesses, etc. may be a component of the association. This privilege also extends to the ability to maintain an association and the choice not to join one. However, it does not come with the accompanying right that such an association or union should be able to accomplish its stated goals.
The Supreme Court ruled in S. Ramakrishnan v. District Board (1951) that the government’s order prohibiting municipal teachers from joining a union or association without its prior approval is invalid because it violates a fundamental right outlined in Article 19(1). (c).
In order to protect India’s sovereignty and integrity, as well as the general good of society and morals, clause (4) gives the State the authority to place reasonable limitations on the exercise of freedom of organisation and union.
FREEDOM OF MOVEMENT: CLAUSE(1)(D)
The freedom to move about without any restrictions is a part of this freedom. However, under Clause (5), the State is permitted to limit this right in a fair manner in order to protect the interests of Scheduled Tribes or the general public. To conserve the culture, custom, language, etc. of indigenous tribes living in various parts of the country, such as Assam and the North-East, the state is authorised to put reasonable limitations on the movement of foreigners upon entry into the territory inhabited by tribes.
It was determined that the specific portion that legalises it is illegal in the case of Ebrahim Vazir v. State of Bombay (1952), where the citizen of India was ordered to be deported to Pakistan following his detention because he returned to the nation without a permit. One cannot claim that laws regulating the wearing of helmets when driving infringe freedom of movement. Similar to this, just observing or surveying the offenders to maintain tabs on their movements and activities does not violate their right to freedom of movement.
FREEDOM OF RESIDENCE AND SETTLEMENT: CLAUSE(1)(E)
The ability to move to any location in the nation and establish roots there is an element of this freedom. This right is intended to guarantee individuals’ freedom of movement across the nation without internal restrictions and their ability to establish permanent residence anywhere in the nation.
However, this is subject to reasonable limitations that the State may set to serve the general welfare and safeguard the interests of Scheduled Tribes. As a result, the restriction on habitual criminals’ right to residency was sustained since it was an appropriate restriction in light of everyone’s best interests.
A tribal custom prohibiting Nepalis or any foreigners from residing in that tribal territory without the consent of the Deputy Commissioner was upheld in the case of Dhan Bahadur Ghorti v. State (1952) in order to protect the interests of the tribal people.
FREEDOM OF PROFESSION, OCCUPATION, TRADE OR BUSINESS: CLAUSE(1)(G)
All citizens are guaranteed the freedom to practise any profession, trade, or business. Justice Kuldip Singh defined these four terms as follows in the case of Sodan Singh v. New Delhi Municipal Committee from 1989:
“Profession” refers to an occupation that a person engages in due to their unique qualifications, experience, or skill.
An individual’s “occupation” is any regular work, profession, job, employment, or company that they are involved in.
Trade is the act of purchasing and reselling goods and services. It also refers to any deal or sale, as well as any job or business operated for profit or survival.
Anything that requires a man’s time, attention, or labour in order to make money is considered a “business.”
In the public’s best interest, clause (6) places appropriate limitations on this right and grants the State the power to completely or partially exclude private citizens from any trade or business. Therefore, every industry or trade can be monopolised by the State. The State also has the authority to prohibit trading on public streets or to close down companies. This section gives the State the authority to specify the professional and technical requirements for engaging in any occupation, trade, business, or occupation.
It was determined in the 1997 case of Vishakha v. State of Rajasthan that sexual harassment at work constitutes a breach of the victim’s basic right under Article 19(1). (g). Unni Krishnan v. State of Andhra Pradesh (1993) dealt with the issue of whether “education” could be a trade, business, or profession. It was decided that it could never be one of these. Education is more of a mission and passion than a job, trade, or business, according to Justice Gajendragadkar. Nevertheless, it was eventually determined in the case of TMA Pai Foundation v. State of Karnataka (2002) that education cannot ever be viewed as a trade or business where profit is the motive. However, education will be considered an employment under the definition of the word, which is defined as “a craft, trade, profession, or other way of making a living”.
RESTRICTIONS ON THE FREEDOM OF SPEECH AND EXPRESSION
Reasonable limitations on this freedom are provided in Article 19 Clause (2). The following are some of these limitations:
India’s integrity and sovereignty
The State’s territorial integrity is discussed. The 16th Amendment Act of 1963 added this ground. It was included to impose restrictions on the kinds of speech that might undermine the sovereignty of the country and be harmful to its integrity.
Security of the State
The security of every country is constantly under attack. This ground limits freedom of speech and expression because there have been attempts to topple the current government or encourage violence in the nation, which would endanger the State. Romesh Thappar v. State of Madras (1950), the Court made it clear that it does not just pertain to routine public order violations that do not pose a threat to the State.
Friendly relations with a foreign state
The First Amendment Act of 1951 included this justification for limiting freedom of speech and expression that would endanger the continuation of friendly and cordial ties with other nations. The government monitors any negative propaganda against foreign nations and sets fair limits because international ties are crucial to the economic and social development of any nation. Additionally, it is because of the rule of international law that holds States accountable for any crimes committed by citizens within their borders.
The 1951 First Amendment Act added this ground as well. This guarantees that harmful words and modes of expression cannot disturb the peace, safety, and tranquilly of the nation. With the use of this restriction, the State is able to control public gatherings, outlaw loud noises, punish speech that might cause riot and violence, disturb the peace, or pose a hazard to public safety. The State also passed measures to retaliate against statements that offended religious emotions under this Provision. The sole prerequisite is that there must be a proper connection between the achievement and the restriction imposed; it cannot be too far-fetched. Section 144 of the CrPC was upheld as legitimate in Babulal Parate v. State of Maharashtra (1961) because no arbitrary powers were granted to Magistrate. The magistrate has to state facts before the order and the order can also be challenged.
Decency and morality
This ground forbids any language or expression that is obscene or vulgar, including any art, sculpture, publication, etc. The IPC’s Sections 292 to 296 deal with offences involving obscenity. In the case of Ranjit D. Udeshi v. State of Maharashtra (1964), the court accepted “Hicklin’s standard” to determine the book’s obscenity. This test determines whether those whose brains are susceptible to such immoral influences and into whose hands this publication would fall have a propensity to become corrupt. Courts test morality and vulgarity in different ways. When evaluating the effect on readers’ thoughts, it may not always focus on the exact phrases that are vulgar or insulting but rather the literature as a whole. To determine immorality, courts now use the “Contemporary Community Standard Test.” It asserts that morality varies depending on the setting and the era. Contraception and birth control methods were were viewed as sinful, but today the government supports and encourages their use.
Contempt of court
Section 2 of the 1971 Contempt of Courts Act contained a definition of it. There are two varieties of it: criminal and civil. Criminal contempt is defined as any act or publication that damages the reputation of courts, prejudices or impedes proceedings, or obstructs the administration of justice. Civil contempt is defined as willful disobedience of any order, judgement, etc. of the Court. The court stated in the Namboodiripad case from 1970 that “freedom of speech goes far but not far enough to condone a case of true contempt of court.”
Everyone has a right to respect and good name. Therefore, the State would prohibit any speech or expression that would subject someone to mockery and hostility. Nobody has the right to violate another person’s reputational rights. There are a few exceptions to it, though.
Incitement to an offence
The First Amendment Act of 1951 included this provision to prohibit speech that would cause a breach of the peace or any offence. The Supreme Court ruled in State of Bihar v. Shailabala Devi (1952) that inciting murder or any other violent acts would jeopardise the security of the State and that this ban is therefore appropriate.
Article 20 of the Indian Constitution
Article 20 provides protection to persons in respect of conviction in certain offences. It guarantees mainly three types of protection, namely:
Ex-post facto laws,
Double jeopardy, and
Prohibition of ex-post-facto laws
Ex-post facto laws are those that impose penalty for an action that was legal at the time it was taken but was later deemed illegal. Retrospective criminal legislation is prohibited under Clause (1) of Article 20, meaning that no law can be passed that forbids an act having effect for the past. Therefore, no one may be punished more severely than what could be imposed by the legislation in effect at the time of the offence. It does not forbid the imposition of civil liability; only retroactive criminal legislation is forbidden. Therefore, taxes may be levied later. Disciplinary actions are not covered by this principle either.
According to the ruling in Rattan Lal v. State of Punjab (1964), “considering the scope of ex-post-facto statutes, we must use the rule of beneficent construction as enunciated by the present trend of judicial opinion.” This rule mandates the application of ex-post-facto rules to lessen the penalty. A law that stipulates a minimum punishment or fine upon conviction is not the same as one that imposes a heavier fine or sentence.
Immunity from double jeopardy
According to the legal adage “Nemo debet bis vexari,” no one shall be put in jeopardy twice for the same offence. This principle is stated in the 5th Amendment of the American Constitution, which states that “no person should be liable to being put twice in peril of life or limb for the same offence.” This notion was incorporated not only into the Indian Constitution but also into Section 300 of the Code of Criminal Procedure from 1973 and Section 26 of the General Clauses Act from 1897.
However, the double jeopardy theory used in India is very different from the one used in the United Kingdom and the United States. Whether the accused was found not guilty or guilty in the first trial, the bar still applies in America and Britain to the second prosecution. However, in India, it must be proven that the accused has already been brought before a court and punished for the same offence for which he or she is being brought up again in order to apply the rule set forth in Article 20. Because of this, Article 20 won’t be applied if no punishment is given.
In Leo Roy v. Superintendent District Jail (1957), the judgement was upheld because the punishment was not for the same offences as when the defendant was sentenced under the Sea Customs Act of 1878 and then later convicted under the Indian Penal Code of 1860 for the crime of criminal conspiracy.
Protection against self-incrimination
This sentence states that no one can be forced to testify against themselves.
This clause has three parts, which are:
Someone must have been charged with a crime.
protection from being made to look guilty.
There must be a requirement for someone to testify against himself.
Contrary to the USA, where witnesses are also eligible for this protection, India exclusively offers it to the accused. The term “accused” refers to both the individual who is officially entered into the police log and the suspect in the crime.
Making oral or written declarations revealing certain information pertinent to the case is referred to as “becoming a witness.” These utterances don’t just include confessions; they also include incriminating remarks that could indicate the guilt of the accused. According to the court’s ruling in Nandini Sathpathy v. PL Dani (1978), “answers which have a reasonable tendency significantly to point out the guilt of the accused are incriminatory.” When produced by pressure from the accused’s mouth, pertinent responses that provide a real and obvious connection in the chain of evidence and actually implicate the accused in the crime turn incriminatory and violate Art. 20(3).
“Sub-section (3) of Article 20 does not apply at all to a case where the confession is made without any inducement, threat, or promise,” it was decided in the case of Kalawati v. State of H.P. (1953). Therefore, compulsion is a requirement for this provision’s implementation.
ARTICLE 21 OF THE INDIAN CONSTITUTION
Article 21 declares:
Nobody’s life or personal freedom can be taken away from them unless the legal process is followed.
The most significant fundamental human right guaranteed by Article 21 of the Constitution serves as the foundation for all other legislation in the nation. Justice Subba Rao once used the following when defining its scope:
“By the phrase “life,” something else than merely existing as an animal is indicated. All the limbs and faculties that are used to enjoy life are protected from being deprived of it.
Prior to the entrance of the Maneka Gandhi v. Union of India (1978) case, which expanded its reach and brought about a significant change in the judicial attitude toward the protection of life and liberty of the individual, Article 21 was left inactive. It brought out several ideas to give Article 21 more significance, including:
It demonstrated that protection from severe laws would not be possible under Article 21 as it was understood in the AK Gopalan case (1950). Consequently, the case was dismissed.
It reaffirmed the Gopalan case’s ruling that Articles 14, 19, and 21 are not mutually exclusive. Consequently, all of the conditions of Articles 14, 19, and 21 must be met by any bill passed by the legislature.
Personal rights afforded by Article 19 should not be excluded by reading the term “personal liberty” in Article 21 in a constrained and limiting interpretation.
It redefined the phrase “process established by law,” which now calls on the law to meet the standards of fairness and justice.
Following the Maneka Gandhi case, Article 21 has taken on a “very activist role,” which aids in broadening its scope to include a number of essential rights that aren’t stated expressly in the Constitution.
Extended view of Article 21
The intriguing evolution of rights has been made possible by the new interpretation of Article 21 in Indian law. It is currently referred to be the “heart of the fundamental rights.” Additionally, it has given recognition to a number of DPSPs that were necessary to be recognised as fundamental rights.
Various implied fundamental rights under Article 21:
- Right to livelihood,
- Right against sexual harrassment,
- Right to privacy,
- Right to education,
- Right to health,
- Right to clean environment,
- Right to speedy trial,
- Right to legal aid, Right to go abroad,
- Right against custodial violence, etc.
Article 22 of the Indian Constitution
In order to protect the arrested person’s right against arbitrary detention and arrest by the police, Article 22 offers a number of protections. The legislature is empowered to pass legislation governing preventative detention as well.
Rights of a Person Arrested
A person who has been arrested has the following four rights under paragraphs (1) and (2) of Article 22:
Right to know the reason(s) for an arrest: The accused has the right to know the reason(s) for his arrest as soon as possible after the arrest. This right is given so that there won’t be any misunderstandings and that they can get ready to defend themselves.
Right to legal counsel and representation: The right of the accused to legal counsel and representation of his choosing should not be denied. If for any reason the accused does not appear with counsel, amicus curiae must be made available to him.
The right to appear before a magistrate within 24 hours is guaranteed to every person who is detained or arrested. This requirement excludes travel time. This protection is offered to guarantee that there won’t be any arbitrary or unlawful arrests.
Right not to be held in custody for longer than the specified time: Without the magistrate’s permission, no one may be held in custody for longer than the specified time.
These protections do have some exceptions, though. These protections are offered to:
- a hostile alien
- a subject of a preventive detention statute arrest or detention.
PREVENTIVE DETENTION: WHAT IS IT?
Article 22’s clauses (4) through (7) cover the provisions pertaining to “preventive detention.” The Union and Concurrent list is about it. Meaning that if a dispute develops, core law will take precedence.
Detention to stop someone from doing something is the literal definition of preventive detention. When a person is detained under legal suspicion of committing a wrongdoing, it is done as a precaution. It differs from criminal detention, in which an accused person is held only after specific legal evidence. It is solely predicated on a plausible theory or likelihood that a certain crime has been committed.
The Bengal Regulation Act of 1818 is where it all began, in British India. Preventive detention rules do not apply automatically; instead, legislation must be passed to make them effective. The first law on preventative imprisonment following independence is the Preventive Detention Act of 1950. However, it was only passed for a year and then continued until it expired in 1969. Later, several acts were created to control terrorism, internal security, and other illegal activities, including MISA (Maintenance of Internal Security Act) 1971, COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act) 1974, TADA (Terrorist and Disruptive Activities (Prevention) Act) 1985, and POTA (Prevention of Terrorism Act) 2002, but they have all been repealed.
The National Security Act of 1980, which gives the federal and state governments authority to protect national security and uphold law and order, is the current legislation governing preventative detention. It was argued that the preventive detention law violates Articles 14, 19, and 21 since an arrest and trial are not conducted in a fair and just manner, as they are for other offences. But it is nonetheless recognised as a necessary evil in the Constitution.
Nelson Mandela once cited,
Because living a life that respects and enhances the freedom of others is part of being free, being free means more than simply throwing off one’s bonds.
Therefore, having the right to freedom includes having the freedom from all forms of pressure, including mental and physical ones, in every aspect of one’s life. It also means that one is not constrained by anyone. As we exercise the freedoms guaranteed to us by Articles 19 to 22 of our Constitution, we should keep in mind that one’s rights end where another person’s rights begin. Therefore, there are reasonable limitations to prevent people from using their freedom in an illogical or illegal manner.
- “Introduction to the Constitution of India”, D.D.Basu.
- ” V.N.Shukla’s Constitution of India”, Mahendra Pal Singh.
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