Right to Freedom

Article 19

Originally

• Article 19 gave 7 freedoms.
• The 7th (Right to acquire, hold and dispose property) was removed by 44th Amendment (1978).
• Today → only 6 freedoms remain.

Six Rights Guaranteed to Citizens only

1. Freedom of Speech & Expression
2. Freedom of Assembly (peaceful, without arms)
3. Freedom of Association / Unions / Co-operative Societies
4. Freedom of Movement (within India)
5. Freedom of Residence & Settlement
6. Freedom of Profession, Occupation, Trade or Business

👉 Note: These are available only to citizens (not to foreigners or corporations).

👉 They are protected only against State action (not against private individuals).

👉 They are not absolute: can be restricted, but only on grounds mentioned in Article 19 itself.

Freedom of Speech & Expression

• Meaning: Every citizen can express opinions, beliefs, ideas, by word, writing, printing, picturing, or any other manner.
• Judicial expansions: Includes —
  a) Right to propagate one’s own as well as others’ views.
  b) Freedom of press.
  c) Freedom of commercial advertisements.
  d) Right against phone tapping.
  e) Right to telecast (no govt. monopoly over electronic media).
  f) Right against bandh (political parties cannot enforce shutdowns).
  g) Right to information about government activities.
  h) Freedom of silence (refusal to speak is also expression).
  i) Right against pre-censorship of newspapers.
  j) Right to peaceful demonstration/picketing (but not right to strike).
• Reasonable restrictions (grounds under Article 19(2)):
  • Sovereignty & integrity of India
  • Security of the State
  • Friendly relations with foreign States
  • Public order
  • Decency or morality
  • Contempt of court
  • Defamation
  • Incitement to an offence

Freedom of Assembly

• Citizens may assemble peaceably & without arms.
• Includes meetings, demonstrations, processions — but must be peaceful & unarmed.
• Does not include right to strike.
• Restrictions (Article 19(3)):
  • Sovereignty & integrity of India
  • Public order
• Relevant laws:
  • CrPC Section 144: Magistrate can prohibit assemblies to prevent obstruction, riots, danger to life/health.
  • IPC Section 141: Assembly of 5+ persons is unlawful if purpose is resisting law, occupying property, committing mischief/trespass, forcing illegal act, or threatening govt. officials.

Freedom of Association

• Citizens may form associations, unions, co-operatives, political parties, societies, clubs, companies, trade unions etc.
• Includes negative right = right not to join an association.
• Does not include right to recognition of association.
• Restrictions (Article 19(4)):
  • Sovereignty & integrity of India
  • Public order
  • Morality
• Judicial clarification:
  • Trade unions have no fundamental right to effective bargaining or to strike.
  • Right to strike can be regulated by labour laws.

Freedom of Movement

• Citizens may move freely throughout India (state to state, within state).
• Aim: Strengthen unity, nationalism, eliminate parochial barriers.
• Restrictions (Article 19(5)):
  • Interests of general public
  • Protection of interests of Scheduled Tribes (outsiders can be restricted in tribal areas).
• Judicial examples:
  • Movement of prostitutes restricted → valid (public health/morals).
  • Restrictions on AIDS-affected persons → valid (public health).
• Dimensions:
  • Internal (within India) → covered under Article 19.
  • External (leave/return India) → covered under Article 21.

Freedom of Residence & Settlement

• Citizens may reside (stay temporarily) and settle (make home permanently) anywhere in India.
• Purpose: Remove internal barriers; foster unity.
• Restrictions (Article 19(5)):
  • Interest of general public
  • Protection of interests of Scheduled Tribes (outsiders restricted to protect tribal culture, land, customs).
• Judicial examples:
  • Restricting residence of prostitutes or habitual offenders in certain areas → valid.

👉 Note: Rights of movement & residence are complementary & overlapping.

Freedom of Profession, Occupation, Trade or Business

• Citizens can practice any profession or carry on any trade, occupation, business.
• Covers all means of livelihood.
• Restrictions (Article 19(6)):
  • In the interest of general public.
  • State can:
    a) Prescribe professional/technical qualifications (e.g., doctors, lawyers).
    b) Create monopoly in trade/industry/service (complete or partial, to exclusion of citizens).
• Limits:
  • Cannot carry on immoral or dangerous professions (e.g., trafficking, drug trade, explosives).
  • Such activities may be absolutely prohibited or regulated by licence.

👉 In short: Article 19 is the soul of civil liberties in India. It protects free expression, association, movement, settlement, and livelihood, while ensuring that these freedoms do not endanger public order, morality, or national integrity.

Text of Article 19 (As per the Constitution of India)

Protection of certain rights regarding freedom of speech, etc.—

(1) All citizens shall have the right— (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions *(or co-operative societies); (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; #(and) (f) omitted. (g) to practise any profession, or to carry on any occupation, trade or business. (2) [subs. by 1st AA] Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of $(the sovereignty and integrity of India), the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. (3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of $(the sovereignty and integrity of India or] public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of $(the sovereignty and integrity of India or) public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (5) Nothing in **(sub-clauses (d) and (e)) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,— (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business; or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. *Inserted by 97th AA. # Inserted by 44th AA $ Inserted by 16th AA ** Subs. by 44th AA.

Article 20

This Article protects any accused person (citizen, foreigner, or even legal persons like companies). It ensures fairness in criminal law by giving 3 protections:

(a) No Ex-Post-Facto Law

• Meaning: You can’t be punished for an act that was not an offence when you committed it.
• Also, you can’t be given a punishment greater than what was prescribed at the time of offence.
• Example: If drinking alcohol becomes a crime today, you cannot be punished for drinking yesterday.

Exceptions:

• This bar applies only to criminal laws, not civil or tax laws.
  • Example: Parliament may impose a tax retrospectively.
• It prohibits conviction or sentence, but not the trial.
• It doesn’t apply to preventive detention or security demands.

(b) No Double Jeopardy

• Meaning: No person can be prosecuted and punished for the same offence twice.
• Example: If you are punished for theft, you cannot be punished again for the same theft.
• Note: Applies only to judicial proceedings before courts/tribunals, not departmental enquiries.

You can watch this Hollywood movie: Double Jeopardy, to have a feel for this concept.

(c) No Self-Incrimination

• Meaning: An accused cannot be forced to testify against himself.
• Covers both oral and documentary evidence.
• Not covered:
  • Compulsion to give thumb impression, specimen signature, blood samples.
  • Compulsory production of material objects.
• Applies only to criminal proceedings, not civil or administrative ones.

✅ Essence of Article 20: Protects fairness in criminal law — no retrospective punishment, no double trial, and no forced confession.

Text of Article 20 (As per the Constitution of India)

Protection in respect of conviction for offences. —

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself.

Article 21

– Protection of Life and Personal Liberty

Text

👉 “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

• Applies to both citizens and non-citizens.
• Sounds simple, but its interpretation has changed dramatically over time.

Gopalan Case (1950) – Narrow View

• Article 21 protects only against executive action, not legislative action.
• “Procedure established by law” means any law made by legislature → even if unfair or unjust, it was valid.
• “Personal liberty” was given a narrow meaning (only physical freedom).

Menaka Gandhi Case (1978) – Wider View

• Overruled Gopalan.
• Introduced “due process of law” (American concept).
• Now, a law restricting life/liberty must be:
  • Just
  • Fair
  • Reasonable

👉 Thus, protection under Article 21 is available against both executive and legislative action.
👉 “Personal liberty” given widest amplitude — covering variety of rights making life meaningful, dignified, and worth living.

Expansion of Article 21 – Judicial Creativity

Over the years, SC has declared many rights as part of Article 21. These are often asked in UPSC Prelims/Mains.

Some important ones include:

1. Right to live with dignity.
2. Right to pollution-free water & air.
3. Right to livelihood.
4. Right to privacy.
5. Right to shelter.
6. Right to health.
7. Right to free education up to 14 years (later made Art. 21A).
8. Right to free legal aid.
9. Right to speedy trial.
10. Right against handcuffing.
11. Right to fair trial.
12. Right to reputation.
13. Right to sleep.
14. Right to freedom from noise pollution.
15. Right to opportunity.
    …and many more.

👉 In simple words: Article 21 has been transformed into a reservoir of human rights in India.

Article 21A

– Right to Education

What it says

👉 “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may determine.”

• Inserted by 86th Constitutional Amendment Act, 2002.
• Applies only to elementary education (6–14 years), not higher or professional education.

Significance

• Called the “second revolution in citizens’ rights” (first being independence).
• Earlier, free education for children was under Article 45 (Directive Principle) — not enforceable.
• After 2002, it became a justiciable Fundamental Right (courts can enforce it).

Related changes by 86th Amendment

1. Article 45 (DPSP): Now says → State shall provide early childhood care and education up to 6 years.
2. Article 51A (Fundamental Duties): Parents/guardians must provide education to children aged 6–14.

Judicial background

• 1993: SC in Unni Krishnan case → declared primary education up to 14 years as a Fundamental Right under Article 21 (life and liberty).
• But limited it to primary education (not higher/professional).

Implementation

• RTE Act, 2009 → Parliament enacted law to operationalise Article 21A.
  • Ensures free and compulsory full-time elementary education of equitable quality.
  • Applies to formal schools with prescribed norms (teacher-student ratio, infrastructure, quality).
  • Anchored in values of equality, social justice, democracy.

✅ Essence: Article 21A + RTE Act ensure that basic education is a right, not charity.

Article 22

Protection against arrest and detention in certain cases

Article 22 is unique — it deals with two types of detention:

1. Punitive Detention → to punish after conviction.
2. Preventive Detention → to detain without trial, based on suspicion of possible offence.

A. Protection in Ordinary Arrest (Punitive Detention)

For anyone arrested under ordinary law, Article 22 guarantees 4 rights:

1. Right to be informed of the grounds of arrest.
2. Right to consult a lawyer of choice.
3. Right to be produced before a magistrate within 24 hours (excluding journey time).
4. Right not to be detained beyond 24 hours without magistrate’s approval.

Exceptions:

• Not available to enemy aliens.
• Not applicable in preventive detention cases.
• SC clarified: These protections don’t apply to civil arrest, court orders, deportation of aliens, tax arrest, etc.

B. Preventive Detention

Concept

• Detaining a person not for what they did, but for what they might do in near future.
• Based on suspicion, not proof.
• Purpose → precaution, not punishment.

Constitutional safeguards

1. Maximum detention without Advisory Board = 3 months.
   • Advisory Board consists of High Court judges.
   • If Board approves, detention may be extended.
2. Grounds of detention must be communicated to detenu (but not facts against public interest).
3. Detenu must be allowed representation against detention order.

Parliament’s powers

Parliament can:

• Prescribe conditions where detention > 3 months without Advisory Board.
• Fix maximum detention periods.
• Set Advisory Board procedure.

44th Amendment (1978)

• Reduced maximum period from 3 months to 2 months, but never enforced.
• Hence, 3 months still continues.

Division of power

• Parliament alone: Preventive detention for defence, foreign affairs, security of India.
• Parliament + States (concurrent power): Preventive detention for security of state, public order, essential supplies & services.

C. Preventive Detention Laws in India

• Preventive Detention Act, 1950 → expired 1969.
• MISA (1971) → repealed 1978.
• COFEPOSA (1974) – still in force (foreign exchange, smuggling).
• NSA (1980) – still in force.
• PBMSECA (1980) – black-marketing, essential commodities.
• TADA (1985) – repealed 1995.
• PITNDPSA (1988) – narcotics.
• POTA (2002) – repealed 2004.
• UAPA (1967, amended 2004, 2008, 2012, 2019) – terrorism, unlawful activities.

D. Criticism

• India is unique among democracies — preventive detention is built into the Constitution itself.
• Not part of USA Constitution, used in UK only during World Wars.
• But in India → existed since colonial times (e.g., Bengal Regulation, 1818; Defence of India Act, 1939).

Text of Article 22 (As per the Constitution of India)

Protection against arrest and detention in certain cases. —

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply— (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless— (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe— (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).