Rights to freedom

Protection of Six Fundamental Rights under Article 19

    1. Article 19 guarantees six fundamental rights to Indian citizens:
      • Freedom of speech and expression.
      • Freedom to assemble peaceably without arms.
      • Freedom to form associations or unions or cooperative societies.
      • Freedom to move freely throughout the country.
      • Freedom to reside and settle in any part of the country.
      • Freedom to practice any profession or carry out any occupation, trade, or business.
    2. Originally, Article 19 included the right to property, which was removed by the 44th Amendment Act, 1978.
    3. These rights are protected against state actions, not private individuals, and are exclusive to Indian citizens. The state can impose reasonable restrictions on these rights under grounds mentioned in the Constitution.
    1. Freedom of Speech and Expression
      • This right allows individuals to express their views freely via speech, writing, printing, or any other means.
      • SC rulings expanded this right to include:
        • Propagating one’s views and the views of others.
        • Freedom of the press and the right to telecast.
        • Right to know government activities, freedom of silence, and freedom against pre-censorship.
        • Right to peaceful demonstration, but not the right to strike.
      • Restrictions can be imposed for reasons like security of the state, public order, decency, morality, defamation, and incitement to offense.
    2. Freedom of Assembly
      • Citizens can assemble peaceably without arms on public land for meetings, protests, or processions.
      • This right doesn’t protect violent or riotous assemblies or those causing breaches of public peace.
      • Reasonable restrictions can be imposed for:
        • Sovereignty and integrity of India.
        • Maintenance of public order, including traffic and safety concerns.
      • Section 144 of the CrPC empowers magistrates to prevent assemblies that may endanger human life or public peace.
    3. Freedom to Form Associations
      • Includes forming political parties, trade unions, societies, and organizations. Citizens also have the right not to join associations.
      • The right to form associations doesn’t extend to a right to recognition or a right to strike, as per SC judgments.
      • Reasonable restrictions are allowed for:
        • Sovereignty and integrity of India.
        • Public order and morality.
    4. Freedom of Movement
      • Grants citizens the right to move freely across India to promote national integration.
      • Two dimensions of this freedom:
        • Internal movement: Within India (Article 19).
        • External movement: Right to travel abroad and return (covered under Article 21).
      • Restrictions can be imposed to:
        • Protect the general public.
        • Safeguard Scheduled Tribes’ culture and resources.
      • SC upheld movement restrictions in cases like prostitutes (public morality) and AIDS-affected individuals (public health).
    5. Freedom of Residence
      • Allows citizens to reside and settle in any part of the country, promoting national unity.
      • Divided into:
        • Temporary residence.
        • Permanent settlement.
      • Restrictions apply to protect:
        • General public interests.
        • Scheduled Tribes’ distinct culture and rights (e.g., tribal areas).
    6. Freedom of Profession, Occupation, Trade, and Business
      • Ensures citizens can choose any profession or trade for their livelihood.
      • State can regulate:
        • Qualifications for professions.
        • State monopolies in specific industries or businesses.
        • Immoral and dangerous trades (e.g., trafficking, drug trade).

Issues Related to Rights Under Article 19

Issue Key Provisions Challenges Recommendations
Freedom of Press – Implied under Article 19(1)(a) as per Sakaal Papers vs Union of India. – Increasing censorship and corporate influence.
– Lack of regulation for digital media.		 – Strengthen self-regulation mechanisms for media.
– Expand Press Council of India (PCI) powers to include digital media.
Sedition – Defined under Section 124A of IPC.
– Punishable by life imprisonment or up to 3 years with fine.
– SC in Kedar Nath Singh vs State of Bihar limited its scope to acts inciting violence or public disorder.		 – Misuse to suppress dissent.
– Ambiguity in application and interpretation.		 – Amend Section 124A to align with SC rulings.
– Penalize misuse to uphold free speech.
Hate Speech – Defined as incitement to hatred based on identity (race, religion, gender, etc.).
– T.K. Viswanathan Committee recommended new provisions under IPC (Sections 153C, 505A).		 – Overbroad terms like “offensive” lead to misuse.
– Ambiguity in defining intent and proportionality.		 – Clarify definitions and intent in hate speech laws.
– Establish cybercrime coordinators and ensure effective enforcement.
Defamation – Criminalized under Sections 499 and 500 IPC.
– SC upheld its constitutionality, emphasizing dignity under Article 21.		 – Criminal defamation stifles free speech.
– Civil remedies already exist, making criminal defamation redundant.		 – Decriminalize defamation to align with global trends.
– Strengthen civil remedies for reputation-related cases.
Internet Freedom – Recognized as a fundamental right under Anuradha Bhasin vs Union of India.
– Restrictions must follow proportionality and undergo periodic review.		 – Frequent internet shutdowns.
– Economic losses (e.g., $1.3 billion in 2019).		 – Ensure transparency in shutdown orders.
– Explore less restrictive alternatives like advisories and targeted measures.
Censorship of Arts/Media – Governments ban films/books citing law and order issues.
– SC rulings emphasize maintaining order without stifling freedom.		 – Suppression of artistic expression due to law and order concerns. – Ensure CBFC certification suffices for releases.
– Address law and order without stifling freedom of expression.
Freedom of Speech (Civil Servants) – SC allows restrictions to ensure discipline and effective duty discharge. – Balancing discipline with individual rights.
– Misuse of restrictions to suppress legitimate expression.		 – Establish clear guidelines for permissible restrictions.
– Ensure that restrictions are proportional and justified.

Protection in Conviction for Offenses (Article 20)

    1. Article 20 safeguards individuals from arbitrary and excessive punishment, including:
      • Ex-post facto laws: A law cannot punish actions that were not criminal at the time they were committed or increase the penalty retrospectively for a crime already committed.
        • Scope: Applies only to criminal laws, not civil laws.
        • Purpose: Protects individuals from unfair and retrospective application of laws.
        • Judicial Observations: Enlarging a penal provision retrospectively is violative of Article 20(1).
          • Example: The Vodafone Case highlighted that retrospective amendments can be applied to tax laws (civil) but not to criminal statutes.
      • Double jeopardy: No one can be punished twice for the same offense.
        • Scope:
          • Applicable to judicial punishments for the same offence.
          • Departmental inquiries or actions under different laws for distinct offences do not violate this principle.
        • Judicial Interpretations:
          • Venkataraman v. Union of India: Article 20(2) refers to judicial punishment and does not apply to departmental proceedings.
          • Retrial is permissible if the accused was neither acquitted nor convicted in the earlier trial.
      • Self-incrimination: Protects individuals from being compelled to testify against themselves.
        • Scope: Covers oral and documentary evidence that could incriminate the individual.
          • Does not apply to:
            • Searches or seizures.
            • Collection of physical evidence such as fingerprints, DNA samples, or medical tests.
          • Protection becomes applicable only when a formal accusation has been made.
        • Judicial Observations:
          • Selvi v. State of Karnataka: Compulsory narco-analysis or brain-mapping constitutes testimonial compulsion and violates Article 20(3).

Article 21: Protection of Life and Personal Liberty

  1. Article 21 states: “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”
  2. The Supreme Court has interpreted this right expansively to include various dimensions of a dignified life.

Two Key Doctrines:

  1. Procedure Established by Law (borrowed from Britain):
    • Ensures that no person is deprived of liberty unless the procedure set by law is followed.
    • The judiciary cannot question the reasonableness of the law.
  2. Due Process of Law (borrowed from the U.S.A):
    • Ensures that both procedure and law itself must be fair, just, and reasonable.
    • Allows judicial review of laws violating fundamental rights.

Evolution of Interpretation:

  1. Initially, in A.K. Gopalan v. State of Madras (1950), the Supreme Court ruled that Article 21 only required “procedure established by law” without testing its fairness.
  2. However, in Maneka Gandhi v. Union of India (1978), the Supreme Court ruled that “procedure” must be fair, just, and reasonable, ensuring protection against arbitrary State action.
  1. SC expanded Article 21 to include rights such as:
Right Case/Amendment Description
Right to Live with Dignity Francis Coralie Mullin v. UT of Delhi, 1981 Life includes the right to live with dignity, encompassing access to shelter, nutrition, and healthcare.
Right to Privacy K.S. Puttaswamy v. Union of India, 2017 Right to Privacy declared a fundamental right under Article 21.
Right to Education 86th Constitutional Amendment, 2002 (Article 21A) Free and compulsory education for children aged 6-14 made a fundamental right.
Right to Die with Dignity Common Cause v. Union of India, 2018 Legalized passive euthanasia and recognized the right to make a “living will.”
Right to Speedy Trial Hussainara Khatoon v. State of Bihar, 1979 Delayed justice violates the fundamental right to life and liberty.
Right Against Custodial Torture D.K. Basu v. State of West Bengal, 1997 Laid down guidelines to prevent police brutality and custodial violence.
Right to Clean Environment Subhash Kumar v. State of Bihar, 1991 Recognized pollution-free water and air as part of the right to life.
Right Against Sexual Harassment Vishaka v. State of Rajasthan, 1997 Formulated Vishaka Guidelines for workplace safety of women.
Right to Fair Compensation Olga Tellis v. Bombay Municipal Corporation, 1985 Eviction of slum dwellers without alternative housing violates the right to life.
Right to Livelihood D.M. Jabalpur v. S. Shukla, 1976 Supreme Court held that the right to livelihood is integral to the right to life.
Euthanasia and Right to Die with Dignity Aruna Shanbaug v. Union of India (2011); Common Cause v. Union of India (2018) Passive euthanasia and living wills allowed in specific circumstances.
Delay in Execution of Death Penalty Shatrughan Chauhan v. Union of India, 2014 Prolonged delays in execution are considered cruel and violative of Article 21
Narco Analysis and Privacy Selvi v. State of Karnataka, 2010 Involuntary administration of narco-analysis, brain-mapping, or lie-detector tests is prohibited as it violates mental privacy
Death Penalty Bachan Singh Case (1980)

 

 Death penalty to be applied only in the “rarest of rare” cases.

Right to Education (Article 21A)

  1. Added by the 86th Amendment Act (2002), guarantees free and compulsory education for children aged 6–14 years.
  2. Enforced through the Right to Education Act, 2009, which sets quality standards for elementary education.
86th Amendment Act

The 86th Amendment Act introduced significant changes to the Indian Constitution, specifically concerning education and child welfare:

  1. Article 21A: It mandates that every child between the ages of 6 to 14 has the fundamental right to education, to be provided by the State in a manner prescribed by law.
  2. Article 45: It includes provisions for early childhood care and education for children up to the age of 6 years, emphasizing it as a Directive Principle of State Policy.
  3. Article 51A (K): It imposes a responsibility on parents and guardians to ensure educational opportunities for their children or wards between the ages of 6 and 14 years.

Features of the Right to Education (RTE) Act, 2009

  1. Provision of Free and Compulsory Education: Children aged 6 to 14 years are entitled to free and compulsory elementary education in a nearby school.
  2. Reservations for Economically Weaker Sections (EWS): Kendriya Vidyalayas, Navodaya Vidyalayas, Sainik Schools, and private unaided schools are required to reserve 25% of their seats for students from disadvantaged and economically weaker backgrounds.
  3. Oversight by NCPCR: The National Commission for the Protection of Child Rights (NCPCR) monitors the implementation of the RTE Act.
    • States must establish similar commissions at the state level.
  4. Funding Mechanism:
    • The funding for implementing RTE is shared between the Central and State governments.
    • Finance Commission: The Centre can request the Finance Commission to allocate additional resources to states.
    • Civil Society Involvement: Partnerships with civil society can address funding gaps.

Article 22: Protection Against Arrest and Detention

  1. Provides safeguards for arrested individuals, ensuring:
    • Informed grounds for arrest.
    • Right to legal representation.
    • Judicial review within 24 hours.
  2. Preventive detention provisions allow the state to detain individuals to prevent future crimes.
  3. Advisory boards (with HC judges) review detentions exceeding 3 months.
  4. Criticism of Preventive Detention
    • Human Rights Concerns:
      • Often misused, leading to arbitrary detentions and suppression of dissent.
      • Considered undemocratic as no other democratic country includes preventive detention as a constitutional provision in peacetime.
    • Impact on Fundamental Rights: Preventive detention laws override the protections provided under Articles 14, 19, and 21, making them a contentious issue.
    • Judicial Interpretations:
      • Anna Hazare Case (2011): The Supreme Court ruled that preventive detention can only be invoked if there is an imminent danger to peace or likelihood of a cognizable offence.
        • Arrests without justification violate fundamental rights.
      • Spurious Chilli Seeds Case: The Supreme Court emphasized that preventive detention should not substitute normal legal processes.
        • Detention orders must meet rigorous scrutiny as they affect Articles 14, 19, 21, and 22.
    • Historical Context and Evolution
      • Colonial Legacy: Preventive detention existed in British India under the Bengal Regulation III of 1818 and the Defence of India Act, 1939.
      • Post-Independence: Preventive Detention Act, 1950, was enacted but lapsed in 1969.
        • New laws like MISA (1971) and COFEPOSA (1974) were introduced.
        • MISA was repealed in 1978, but COFEPOSA continues to exist.
      • Emergency Period (1975–1977): Preventive detention laws were widely misused, leading to 1,75,000 detentions.