Right to Freedom (Article 19-22)
These rights are enjoyed only by citizens. It confers six democratic rights as they are deemed essential for the healthy functioning of a democracy. Originally the constitution included 7 Democratic Rights. By 44th Amendment Act 1978, the Right to property was removed from the list. These rights are enjoyed by the citizen, but they are not absolute rights and each of them is liable to be curtailed by the State.
The Six Fundamental Freedom can be curtailed by putting following restrictions:
(i) In the interest of sovereignty and integrity of India.
(ii) In the maintenance of public order, morality and decency.
(iii) In maintenance of friendly relations with Foreign State.
(iv) In the interest of the promotion of well being of the backward section of citizens and also the weaker sections of Society.
(v) In the interest of any Scheduled Tribe.
Article 19(1) (a) (Freedom of Speech and Expression)
Freedom of Speech and expression means the right to express one’s own convictions and opinion freely.
(i) The word “freely” means the freedom of a citizen to express his views and opinion in any conceivable means including by words of mouth, writing, printing, pictures, banners, signs and even by way of silence.
(ii) The Supreme Court held that the participation in sports is an expression of one’s self and thus, it is a form of freedom of speech.
(iii) In Jindal Vs Union of India 2004 case, Supreme Court held that hoisting the National Flag by citizens is a form of freedom of speech and expression. However, the freedom of speech does not mean that other individuals are under obligation to listen to other’s opinion.
(iv) It also means the right of a citizen to express other’s opinion. The constitution nowhere, mentions in explicit term the freedom of Press. It is an inferred right implicit under Article 19(1) (a).
(v) The right to Freedom of Speech and opinion is meaningless when other’s are prevented from listening or knowing (access to information). So, in this sense, this also means the right to have access to other’s views and opinions. It is for this interpretation that the Right to Information (RTI) as a fundamental right emerges under Article 19(1) (a).
(vi) It also means the right to have political dissent, the right to have political opinion of your own. It also means the right to have your own party. The Supreme Court ruled that Freedom of Speech is an inalienable adjunct to the Right to Life (Article 21). These are not two separate rights but related rights.
The Supreme Court has observed that there are no geographical limitation to freedom of speech and expression guaranteed under Article 19(1) (a) and this freedom is exercisable not only in India but also outside India and if State action sets up barrier to its citizens on the exercise of this expression in any country in the world, it would violate the freedom of Speech and expression.
Article 19(1) (b) (Freedom of Assembly)
It guarantees to all citizens the right to assemble peacefully and without arms. It is a corollary of Article 19(1) (a). This right is not absolute but restricted. The assembly must be non-violent and must not cause any breach of public peace. If the assembly is disorderly or riotous then it is not protected under Article 19(1) (b) and reasonable restrictions may be imposed under article 19(3).
Article 19(1) (c) (Freedom to Form Association)
It guarantees the right to form associations. It includes the association of any kind- political, social or cultural. Further, it also means the right to join or not to join any association or right to continue or not to continue with the association.
(1) It gives rise to the right to form Trade Unions. It is a fundamental right of workers to form trade unions.
(2) The Supreme Court conferred that the Constitution does not recognizes the right to strike. It is a legal right but the strike must follow some rules. Workers can strike only after giving due notice.
(3) In CPM Vs Bharat Kumar 1998 Case the Supreme Court stated that Bandh is illegal. Bandh (A general Stike) is illegal because it carries an element of aggression or compulsion. The compulsion of shutting down offices, shops and disturbance to public transport system, therefore violate a fundamental Right of citizen (Right to Freedom of movement). Moreover, bandh prevents the workers to earn their daily bread; therefore it violates the Right to Livelihood. It also violates the right to Freedom of Speech and expression.
(4) The Supreme Court held that the Hartal is not illegal. Because there is not any form of coercion involved not disturb normal life criticism.
(5) ESMA (Essential Services Maintenance Act)- The citizens involved in delivery of essential services cannot go on strike (Telecommunication, Administration etc.).
Right to form Association under Armed Forces Article 33 of the Constitution empowers the Parliament to pass a law restricting the right to form political association to:
(a) The members of the Armed Forces.
(b) The members of the Forces charged with or
(c) Persons employed in any bureau or other organization established by the State for purposes of intelligence or counter intelligence, or
(d) Persons employed in or connection with the telecommunication system.
Example: Police Forces (Restriction of Rights) Act, 1966, thus they do not have the right to form trade unions and hence not to go on strike.
Article 19(1) (d) (Freedom of Movement)
It guarantees to citizens the right to move freely throughout the territory of India. The word ‘throughout’ means no part of the country can be made inaccessible to the people of India. The word freely means where ever one likes and however one likes. But these rights can be restricted on the ground of Security, Public order or for protecting the interests of the Scheduled Tribes.
Article 19(1) (e) (Freedom of Residence)
It is a corollary of Article 19(1)(d). It provides that the right to reside and settle down throughout the territory of India. This right is subject to certain reasonable restriction in the areas like the Scheduled areas or border areas.
Article 19(1) (g) (Freedom of Trade and Occupation)
It guarantees all citizens the right to choose any profession, occupation, trade or business. This right can be restricted by the State under Article 19(6) which includes:
(i) Imposing reasonable restrictions in the interest of general public.
(ii) Prescribe professional or technical qualifications necessary for carrying on any profession, trade or business to the exclusion of private citizens, wholly or partially.
First Amendment Act, 1951 – The right to freedom of Trade and occupation can be restricted by the State in law, in public interest whereby the state can take over a business or trade either completely or partially.
Article 20 - Protection in respect of conviction for offences
Article 20 deals with protection in respect of conviction for certain form of offences. It is available to all individuals (citizens and non-citizens). It contains three kinds of protection to individual against the State:-
(1) Retrospective Criminal Legislation (Ex-Post facto Criminal Legislation)
Article 20(1) state that no person shall be convicted of any offence except for the violation of a law in force at the time of the commission of the offence.
(i) This means that an individual can be punished for the commission of an act only if the said act had been declared by a law as an offence at the time of commission of an offence.
(ii) An act which was originally a non-criminal act cannot be made into a criminal offence subsequent and the individual is punished for that.
(iii) Therefore Article 20(1) prohibits the State from enacting ex-post facto criminal legislation. It means a criminal legislation cannot be given a retrospection effect.
(iv) The immunity cannot be claimed against Preventive Detention. Again the protection does not cover trial.
(v) Further Article 20(1) says that no person shall be subjected to a punishment greater than what is prescribed in law for the commission of an offence.
(2) Double Jeopardy
Article 20(2) states that no person shall be prosecuted and punished for the same offence more than once. Thus Article 20(2) prohibits double jeopardy. Under The doctrine of double jeopardy- a person can be punished only for the punishment of an offence at one time. However, it applies only to in the case of judicial body. It does not apply for the punishment given by a non-judicial body. Therefore, a civil servant prosecuted and convicted by a court of law can be punished under departmental proceedings for the same offence.
Likewise a person punished departmentally may be prosecuted in a court of law. Again, since the operation of Article 20(2) is confined to indictment before a criminal court, it does not ban proceedings before a civil court for disobedience of an injunction along with criminal proceeding.
(3) Article 20(3) – Prohibition against self-Incrimination
No person who is accused under any offence shall be compelled by the State to be a witness against himself. This clause applies only in cases where confusion is made to a police officer whether voluntarily or under compulsion.
Under the frame of criminal jurisprudence, a person is presumed to be innocent and it is for the prosecution to establish his guilt. A person accused of an offence need not make any statement against his will. If an accused makes a confession voluntarily before the Judicial Magistrate then it will be allowed as evidence in a court of law.
Article 21 - Protection of life and personal Liberty
It states that no person shall be deprived of his life or personal liberty by the State except according to the procedure established by law. It is article 21 that has undergone the greatest changes due to liberal interpretation provided by the Supreme Court.
According to the Supreme Court Article 21 guarantees not merely the right to life but also the right to dignified life. It could thus be seen that all the Fundamental Rights and the Directive Principles ultimately aim to extend a level of quality of life to people.
Without the right to life, for an individual to enjoy other Fundamental Rights become meaningless. Thus Article 21 has emerged as the Fundamental of all Fundamental Rights. It has become the heart and soul of the Constitution. Even if the other fundamental rights have not been provided in the Constitution, a liberal interpretation to Article 21 will lead implicitly to such rights.
As the Supreme Court observes that the Article 21 as a composite right and has given right to largest number of inferred rights primarily right to live with dignity, right to Primary Education, up to 14 years of age, right to health of workers, right to speedy trial for the under trials, right against cruel punishment, right to shelter etc.
It is article 21 that makes the difference between a Constitutional State and a Police State.
In its earlier decision in A.K. Gopalan Vs State of Madras (1950) case the Supreme Court stated that personal liberty is different from liberty and thus Article 19 and 21 are two different articles. The right to personal liberty is a limitation upon the powers of the executive but not that of the legislature and only safeguards the individual against arbitrary or illegal action on the part of executive.
In Monika Gandhi Vs Union of India (1978) case the Supreme Court had overruled its earlier decision and stated that the liberty cannot be diluted. The personal freedom guarantee granted under article 19 and personal liberties mentioned under article 21 should not be read separately. Both of them supplement and complement each other. The expression personal liberty under article 21 also includes the freedom provided under article 19. Both overlap each other. Also article 21 safeguards the individual against the arbitrary or illegal actions not only on the part of the Executive but also on the legislature. Any law made by the legislature imposing restrictions on personal liberty of individuals should not be arbitrary, unfair or unreasonable.
Article 21(A) Right Education
It was introduced by 86th Amendment Act, 2002. It says that the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such a manner as the State may provide by law.
Article 51 A states that it is the duty of a parent or guardian to provide education for his children in the age group of 6-14 years.
Article 22 Protection against arrest and detention in Certain Cases
Article 22 provides procedural safeguards against arbitrary arrest and detection. It is applicable to all individuals (Citizens and non-citizens). It does not confer a Fundamental Right on an individual against arrest and detention. It only extends certain procedural safeguards in case of arrest of individual. Thus it comes into play only after a person has been arrested. Its object is to prevent arbitrary arrest and detention by the State. Article 22 confers following safeguards in case of arrest and detention:-
No person who is arrested shall be detained in custody without being informed as soon as possible of the grounds for such arrest. Further he shall not be denied the right to consult and be defended by an advocate of his choice.
The arrested person shall be produced before the nearest judicial magistrate within 24 hours of his arrest. While calculating the 24 hours the time taken to travel from place to detention to the Court and by intervening holidays shall not be taken into consideration.
No person shall be detained in the custody beyond the period for which his detention has been authorized by the Judicial Magistrate. The above safeguards are not available to
(1) Enemy aliens
(2) The persons who are arrested under Preventive Detention laws such as NSA, COFE POSA, POTA Unlawful Activities (Prevention Act) etc.
The Detentions are of two types: Punitive and Preventive
Punitive Detention means detention after a proper trial. In such cases the arrested person is informed of his ground of arrest. He has been given a reasonable opportunity to defend himself and the prosecution has succeeded on his guilt and the court has punished him with a sentence.
On the other hand, Preventive Detention means detention without trial. In such cases, crimes may not have had happened and one of the objective is to prevent an individual from proceeding further commit a crime. Therefore a person can be arrested merely on the ground of suspicion. The rights of such arrested persons are largely governed by the respective preventive detention laws.