Posted on by

Reasonable Restriction

The preamble of the Indian Constitution provides to the people of India: the liberty of thought, belief, faith, expression, and ownership, etc. I believed that speech is just a god’s gift given to mankind. Freedom of speech and expression is deemed as a natural right, which a human being acquires from birth. It is, therefore, a basic fundamental right. As per Franklyn S. Haiman’s opinion that “the freedom of speech and expression guaranteed under Article 19 the Indian Constitution facilitates more the hearer than the speaker. Free speech is one of the most incumbent fundamental rights in the entire world. In India, the freedom of speech and expression is working as a safeguard under Article 19(1) (a) of the Indian Constitution and it is a part of the basic human right. Even though the expression freedom of the Press has not been specified in Article 19 of the Indian Constitution, but it has been included in one of the guarantees in Article 19(1) (a). This wide interpretation has been done by the able judiciary of our country.

Introduction

It is well clear that the Fundamental Rights guaranteed by the Constitution of India are not absolute. There are certain restrictions that can be imposed by the state government according to the procedure prescribed by law. However, these restrictions must be reasonable and not arbitrary. Article 19 provides fundamental freedoms along with the restrictions which can be imposed on these fundamental rights. It has further clarified that all the six freedoms provided under Article 19 and the restrictions are highlighted. It has always been a debatable issue that what exactly a definition of ‘reasonable restriction’. The expression ‘reasonable restriction implies that certain limitations necessarily imposed upon a person in the enjoyment of their right should not be an excessive nature or arbitrarily. The term “reasonable” denotes deliberation and intelligent care that is the foremost choice of a course which reason dictates. The several freedoms are guaranteed under Article 19 to the citizens of India. Article 19 only confers certain fundamental rights to the citizens of India, but not non-citizens.  However, certain landmark cases are covered in this paper while dealing with the concept of Reasonable Restrictions. This paper mainly focuses to determine certain tests of reasonable restrictions mentioned in Article 19 of the Indian Constitution.”

Grounds on which Fundamental Rights are Restricted

  1. Reasonable Restriction/ Limitation on Fundamental Right: All over the world even the historical deep-rooted democracy there are limitations imposed on the enjoyment of the fundamental right. Article 19 of the Indian constitution says these rights are conditional and subjected to reasonable restriction, such reasonable restriction are stipulated in Article 19 of the Indian Constitution, while for others such limitations are added up either amendment Act or the supreme court’s verdict. For Instances Reasonable Restriction given in Article 19 of the Indian Constitution, are extended to Article 21 as well as in the “Meneka Gandhi Case” verdict by the Supreme Court in 1978, Article 15 and Article 16 of the Indian Constitution have also been amended by the parliament in pursuit of social justice. Why it is important to impose restrictions? Because if a person has absolute powers he/she will misuse such powers guaranteed under the Indian Constitution. So, the constitutional makers need to impose the following restrictions.

There are six types of Fundamental Right are incorporated in Part 3 of the Indian Constitution:-

  1. Right to equality (Art. 14-18):
  2. Right to Freedom 
  3. Right against Exploitation (Articles 23-24):
  4. Right to Freedom of Religion (Articles 25-28):
  5. Rights to minorities (cultural and educational rights) (Articles 29-30):
  6. Right to Constitutional Remedies (Articles 32-35):

Critically Analysis of Article Fundamental Freedom and Reasonable Restriction

The fundamental freedom is guaranteed under Article 19 which can be subjected to reasonable restriction by law. Under Clause (2) to (6) of Article 19 of the Indian Constitution Recognizes the power of the state government to make laws which imposed reasonable restriction for the reason set out for them. Therefore the right guaranteed under ARTICLE 19 is available only to the citizen of India, while the rights guaranteed under ARTICLE 20, 21, and 22 are available to all the citizens.

Article 19(1) of the Indian Constitution imparts:

  • Freedom of Speech and Expression: Freedom of speech and expression guaranteed under ARTICLE 19(1) (a) of the Indian Constitution `provides a right to express and hold one’s opinion and view freely without any apprehension through oral/written/ broadcasting/electronic medium or through the press. The freedom of the press has not specifically defined under the Indian Constitution.  

In Romesh Thapper v/s State of Madras: it \was held by the Madras HC that the freedom of speech and freedom of press laid down the foundation of all the democratic organization, without any political discussion no public education for the proper functioning of the process of the governor.

  • To Assemble Peacefully without Arms: The right to constitute assembly is a very idea of the democratic government. This Article guaranteed all the citizens of India; the right to assembly peaceably without arms. This includes the right to hold meting and take out a procession. The fundamental right is subjected to following reasonable restrictions; the assembly must be peaceful and must not be unlawfully armed.
  • If the assembly becomes unlawful it can be ordered to become dispersed under SECTION 129 of CRPC with the disturbance to the public peace is reasonably apprehended and it becomes an offense not to disburse after a lawful command to disperse such assembly.
  • Under SECTION 141 IPC an assembly of 5 or more persons become an unlawful assembly if a common objective to a person composing that assemble is to resist the execution of the law or legal process; to commit any mischief or criminal trespass or obtaining procession of any property by force or to compel a person to what is not legally bound to do or omit which is legally entitled to and also the government by the means of criminal force or cruel force or any public servant in the exercise of his lawful powers. It is the right to the assembly under 19(1) (b), but it is again along with some reasonable restrictions imposed under Article 19(3).
  • To form Association or Unions: Under ARTICLE 19(1) (c) guarantees to all the citizens the right to form association or union or co-operative societies. It was inserted by the Constitution 93rd Amendment Act, 2011. The right to form an association is deemed as a pre-supposed organization or have a permanent relationship between its member to have a common concern which thus includes the right to form companies, societies, trade union, partnership, and even political parties. The right guaranteed under this Article is not merely the right to form association but also to continue with the association. The Freedom to form association also implies freedom to form, enjoy, and even not to join an association.
  • To Move Freely Throughout the Territory of India: The ARTICLE 19(1) (d) of the Constitution guaranteed to all the citizens of India has a freedom of movement through the territory of India. This right is however subjected to reasonable restriction mentioned in clause 5 of Article 19 i.e. deal with the interest of the general public and secondly for the protection of Schedule tribe interest.

In A.K Gopalan V/s State of Madras: – This case was decided in 1950 by the Supreme court of India, in the context of 19(1) (d) said that the emphasis was not only the right of movement but on the territorial birth of that right that the movement can be carried on throughout India without any barriers either interstate or intrastate. Similarly, in 1950 again In N.B khare v/s State of Delhi: The order made under the east Punjab safety Act of 1949 was challenged by the petitioner as imposing unreasonable restriction on his right to move freely as he was ordered by the State legislature to remove himself immediately from the Delhi district and not return there for 3 months. The Supreme Court of India held that the order was valid as it was necessary at that time to prevent the person from acting in any manner which was prejudicial to public safety or maintenance of public order.

  • To Reside in any Part of the Territory of India: According to ARTICLE 19(1) (e) of the Indian Constitution, states that every citizen of India has a right to reside or settle in any part or territory of India. However, under CLAUSE 5 of ARTICLE 19 of the constitution, reasonable restrictions may be imposed on this right by law in the interest of the general public and also for the protection of the interest of any of the scheduled tribe. The object of this clause id to remove internal barriers within India or any of its parts. It must be noted that right to reside and right to move freely throughout the country  is complementary and go together-

  Thus, where a prostitute under the suppression of immoral trafficking in the women and girl’s Act 1956 was ordered to remove herself from the limits of a busy city the restrictions placed on her movement and residence were held to be reasonable.

  • Freedom of Profession, Occupation, Trade, and Business: It is guaranteed under ARTICLE 19(1) (g) of the Indian Constitution that all citizens shall have the right to practice any profession or to carry on any occupation, business or trade. However, these rights to carry on profession, trade, or business not unqualified, it can be restricted and regulated by the authority of law. Thus the state can under clause 6 of ARTICLE 19 make any law imposing reasonable on this right in the interest of the general public and also fought to prescribe professional or technical and qualification necessary for practicing any profession or carrying any occupation, trade or business.

Thus, the state to carry on trade or business to exclusion of citizens wholly or partially can also be other reasonable restrictions.

What are the Reasonable Restriction Constituting under Article 19 (6): It says reasonableness of restriction has to be tested from both substantive and procedural aspects of the law. To determine the reasonableness of the restriction must be had to the nature of the business and the condition prevailing in the trade. While determining the infringement of the right guaranteed under ARTICLE 19(1) (g) of the Indian constitution says the nature of the right alleged to have been violated the underlying purpose of the restriction imposed on the extent an emergency of the evil sought to be remedied. In the case of “Ramjawaya v.s State of Punjab” it was observed that the government scheme to nationalize school textbooks was held valid under this Article because the private publishers right to print and publish any book they liked and offer the same for sale, was not curtailed.

Along with the Freedom, there are lot many Reasonable Restrictions Guaranteed under Article 19(2) to (6) of the Indian Constitution are as Follows:-

  • Sovereignty and Integrity of India: this restriction was added by the 16 Amendment Act, 1963 and also, on the grounds of public order. Article 19(2) defines 2 concepts; ‘public order’ and ‘security of the state’. The term ‘public order’ covers an affray, small riot, breaches of the peace, or some acts disturbing the public tranquility. But ‘public order’ and ‘public tranquility’ may not be complementary to each other. For Instance, if a man playing loud music in his house at mid-night has disturbed public tranquility, but not public order.
  • Friendly Relations with Foreign States:- The object behind imposing restrictions in the enjoyment of public freedom of speech and expression in the interests of friendly relations with a foreign country is tenacious and malicious propaganda against a foreign power and having friendly relations with India may cause embarrassment to India, and, therefore, involving in such propaganda can be prohibited. This reasonable restriction clearly brings a balance between the purpose of social order and restriction.
  • No Similar Provision is Present in any other Constitution of the World: The foreign Regulation Act, 1932 describes punishments for libel against the foreign dignitaries. However, maintaining a friendly relation with the foreign state would not justify the criticism of the fair foreign policy of the Government. For instance, it must important to note that all the members of the commonwealth, including Pakistan, are not considered as a “foreign state” for the constitution. The result of freedom of speech and expression cannot be restricted on the only grounds that the matter is related to Pakistan.
  • Decency and Morality: the right to form association like other individual freedom is nit unrestrictive. As per Article 19(4) of the Indian Constitution empowers the state to impose reasonable restrictions on the right to freedom of association and Union in the interest of:
  • Public order
  • Morality
  • Sovereignty and Integrity

The Criminal Law Amendment Act, 1908 as amended by the Madras Act, 1950 provided that if the State Government of opinion that any association interferes with the administrations of law or with the maintenance of law and order or that it constitutes a danger to the public peace it may, by notification in the official gazette declare such association as unlawful.

The validity of the above Act was challenged in the case of “State of Madras v/s V.G. Rao (AIR 1952 SC 196): the Supreme Court held that the restriction imposed by Section 16(2) (b) of the Act was unreasonable. The test under which it was subjective satisfaction of the government and the factual existence of the ground was not a justifiable issue. As far as the facts, concerned by madras Government had declared the people’s Education Society in madras an unlawful association

Under the relevant laws, the government could do so, if it thought that the association constitutes a danger to the public peace, or for the reason, that it was interfering with the maintenance of law and public order, or that was its object.

  • Public Order: It is the restriction prescribed under the Indian Constitution to maintain public order. This ground was added by the 1st Constitutional Amendment Act, 1951. Here, the expression of public order is broad and wide connotation and implies that the State of public tranquility prevails among the people of political society as a consequence of internal regulation enforced by the government. The term Public order is more than the ordinary maintenance of law and order. It refers that anything which disturbs public peace shall be punishable under the provisions of IPC.
  • Defamation: – It is important facts that a person will be known by his/her reputation rather than wealth, or anything else. The constitution of India considered defamation as a ground to put reasonable restrictions. Thus, any derogatory statement which injures a man’s reputation amounts to defamation. Here, the defamation consists of exposing a person to ridicule, hatred or contempt. The civil law of defamation is un-codified law in India and subject to a certain exception.
  • Contempt of Court: Judiciary plays an important role. In such circumstances, it becomes an incumbent to respect such an institution and its order. Thus, the reasonable restriction can be imposed freedom of speech and expression, if it exceeds the fair limit and reasonable and it leads to contempt of court. Section 2 defines “Contempt of Court” may be either “Criminal Contempt” or “Civil contempt”. However such contempt of court was amended in 2006.

Incitement of an offense: Freedom of speech does not provide a license to instigate people to commit an offense. Incitement to heinous or aggravated form of offenses, like murder, sedition, affray, riot, etc may be punishable as invoking the security of the state. The Incitement of offenses is also punishable because it affecting public order. But there may be other offenses like forgery, bribery, cheating, etc. This reasonable restriction also prohibits incitement to all those offences which do no disrupt the public order and was challenged to be unreasonable and such offence is a wide term, includes any punishable act under the Indian Penal Code. The Apex Court held in the case of “State of Bihar V. Shailabal Devi” held that incitement to murder or other violent and serious crimes would endanger or threaten the security of the state; hence reasonableness of restriction against such incitement would be deemed as valid under ARTICLE 19(2).

Certain Test on Reasonable Restriction

  1. Reasonableness of Taxes. – In this test, the Constitution draws a distinction between other laws and taxes. Tax laws imposed tax when the restrictions are imposed by other laws. Thereby prima facie, a tax cannot be challenged on the ground of the restriction as one of the freedoms under ARTICLE 19(1) of the Indian Constitution. However, the Court has asked for a precaution in imposing taxes under ARTICLE. 19(1)(a).
  2. Reasonableness and Directive Principles of State Policy {DPSP}. – The Directive Principles of State Policy are also played a vital role in analyzing whether a restriction imposed on a Fundamental Right is reasonable or not. A restriction which generally promotes a Directive Principle of State Policy is beheld as reasonable. In the case of “Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir” the apex court observed thatany action taken by the State Government to give effect to any one or more of the Directive Principles of the State Policy [DPSP] would ordinarily qualify for being regarded as reasonable”.
  3. Reasonableness Includes Total Prohibition. – In a meanwhile, distinct views were expressed on the question whether the term “restrictions” given under ARTICLE 19(2) to (6) of the Constitution included “prohibition”, till that point of time Supreme Court pronounces in an affirmative way in case of “Narendra Kumar v. Union” It was observed by Das Gupta J. that the earlier Supreme Court verdict with the following result: as per the observations of Kania C.J and Das J. in Gopalan that the term ‘restriction’ did not mean “deprivation” were made a conflict between ARTICLE 19(1) (d) and ARTICLE 21 of the Indian Constitution.
  4. Reasonableness of Restriction and not of Law. – As stated in the test,the Court ascertains the reasonableness of the restriction and not of the law which allows the restriction. A law can be reasonable, but the restriction imposed on it, while the exercise of freedom may not be reasonable.
  5.  Reasonableness and Objective Concept. – The reasonable restriction has to be analyzed in an objective manner. It should be based on the standpoint of the interest of the general public and not from the view of the persons to whom the reasonable restrictions are imposed. This concept was initiated by the Supreme Court to warn the Judges from bringing their predilections in ascertaining the reasonableness of the restrictions.
  6. Reasonableness: both Substantive and Procedural – To determine the test of reasonableness of restriction,the Court should also analyze the nature of the restriction and procedure prescribed under the laws or statue for enforcing the restriction on the enjoyment of individual freedom. For example, if the law made for 5 years, the question arises whether such a law is reasonable or not? Being a substantive law is necessary for analyzing under clause (5) of ARTICLE 19. Similarly, if the law prescribed the procedure by which the exercise of the right may be restricted.
  7. Reasonableness Demands Proper Balancing. – The expression “reasonable restrictions” implies that the limitation imposed on a person in the enjoyment of a right should not be excessive and arbitrary. A reasonable restriction considered valid must have a proximate and direct nexus which the legislation seeks to achieve. There must be a balance between the freedoms guaranteed under ARTICLE 19(1) (a) to (g) and the social control permitted by clauses (2) to (6) of ARTICLE. 19 of the Indian Constitution. A restriction must be reasonable and also be consistent with ARTICLE 14 of the Indian Constitution. (Ex.hypothesi) since the restrictions cannot be excessive or arbitrary.

Conclusion

In the open-ended conclusion, the whole purpose of this research was to understand the suitable tests to determine the reasonable restrictions imposed on Indian citizens under Article 19(1) of the Indian Constitution. In the above chapters, it was so many times mentioned that the reasonableness of a restriction in the interests of the general public, which is probably considered the “best test”. Whether the interest of general public would be the next question?

However, any reasonable restriction which is imposed to maintain public order, in the sense, safety, public peace, public health, tranquility, morals are in the interests of the general public. The restrictions imposed on the rights guaranteed, within the social controls under clauses (2) to (6) of ARTICLE 19 are hence reasonable. At last, it must be noted that every legislation is with a set objective.

Questions

  1. Explain the fundamental freedom and reasonable Restriction
  2. What are the certain test which is used to determine the test of reasonable Restriction
  3. What is the reasonable restriction imposed on freedom of speech and Expression guaranteed under Article 19(1) (a) of the Indian Constitution?
  4. What are the landmark judgments on Reasonable Restrictions imposed on Article 19 of the Indian Constitution?
  5. Does freedom of expression have some limits?

References

  1. Inserted by Constitution (Forty- fourth Amendment) Act, 1978, S.2 (w.e.f. 20-6-1979).
  2. Inserted by the Constitution (Sixteenth Amendment) Act, 1963, S.2.
  3. Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106: (1971) 2 SCC 788.
  4. www.leaglservices.com
  5. www.manupatra.com
  6. Express Newspapers v. Union of India, AIR 1958 SC 578.
  7. Golak Nath v. State of Punjab, AIR 1967 SC 1643
  8. Chintamani Rao v. State of M.P., AIR 1951 SC 118.
  9. Romesh Thappar v. State of Madras, AIR 1950 SC 124
  10. State of U.P. v. Kaushalya, AIR 1964 SC 416.
  11. A. K. Gopalan v. State of Madras, (1950) SCR 88.
  12. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
  13. State of Madras v/s V.G. Rao (AIR 1952 SC 196):
  14. Jain, M.P. Indian Constitutional Law. Lexis Nexis. (6th ed. reprint). 2011. 5.
  15. Ramjawaya vc.s state of Punjab AIR 1955 SC 549
  16. Landmark Judgements. Universal Law Publishing Co. New Delhi (3rd ed.) 2010.
  17. Tripathi, N.M. (1987). Reasonable Restrictions under Article 19. Available at: http://books.google.co.in/books?id=GdolAAAAMAAJ&q=test+to+determine+reasonable+restrictions+under+Article+19&dq=test+to+determine+reasonable+restrictions+under+Article+19&hl=en&ei=OvLITtO1KIqrrAfQ9P29Dg&sa=X&oi=book_result&ct=result&resnum= 1&ved=0CC4Q6AEwAA.
  18. Karthyaeni V.K.(2009). Test of Reasonableness available under Article 19. Available at: http://www.goforthelaw.com/articles/fromlawstu/article48.htm.

Published by Sharal Sharma

Leave a Reply

Your email address will not be published. Required fields are marked *