Right to Freedom (Article 19 to 22): Meaning, Provisions & Significance

The Right to Freedom, enshrined as a fundamental right in the Indian Constitution, plays a crucial role in realizing the ideal of liberty. The provisions under this right collectively form the bedrock upon which the edifice of liberal democracy is built. This article delves into the nuances of provisions related to the Right to Freedom, their meaning, significance, exceptions, and more.

Meaning of Right to Freedom

The Right to Freedom is a fundamental human right that encompasses various dimensions of individual liberty and autonomy. It is recognized and protected by numerous international human rights instruments, such as the Universal Declaration of Human Rights (UDHR), as well as national constitutions around the world, including the Constitution of India. The essence of this right is to develop an independent, free, and expressive society.

Right to Freedom in India (Article 19 to 22)

The Right to Freedom is a Fundamental Right enshrined in the Constitution of India. The detailed provisions related to the Right to Freedom contained in Articles 19 to 22 of Indian Constitution form the cornerstone of liberal society. Together they ensure that the citizens can voice their opinions freely and engage in various pursuits without undue restrictions.

Right to Freedom: Provisions under the Indian Constitution

Protection of Six Rights (Article 19)

• Article 19 of Indian Constitution guarantees certain freedoms to all citizens of India. It encompasses six fundamental rights:
  • Right to freedom of speech and expression,
  • Right to assemble peacefully and without arms,
  • Right to form associations, unions, or co-operative societies,
  • Right to move freely throughout the territory of India,
  • Right to reside and settle in any part of the territory of India,
  • Right to practice any profession or to carry on any occupation, trade, or business.
• Note: Originally, Article 19 of Indian Constitution contained seven rights. However, the right to acquire, hold, and dispose of property was deleted by the 44th Amendment Act of 1978.
• The following points are to be noted w.r.t. the rights provided by Article 19 of Indian Constitution:
  • These six rights are protected only against the actions of the state and not private individuals.
  • These rights are available only to the citizens and shareholders of a company. They are not available to foreigners or legal entities like corporations, companies, etc.
  • ‘Reasonable’ restrictions can be imposed by the state on these six rights only on the grounds mentioned in Article 19 itself and not on any other grounds.

Freedom of Speech and Expression [Article 19(1)(a)]

• It guarantees every citizen the right to express one’s views, opinions, beliefs, and convictions freely by word of mouth, writing, printing, picturing, or in any other manner.
• As per the rulings of the Supreme Court, the ‘Freedom of Speech and Expression’ as contained in Article 19(1)(a) includes the following:
  • Right to propagate one’s own as well as others’ views.
  • Freedom of silence.
  • Freedom of the press.
  • Right against the imposition of pre-censorship on a newspaper.
  • Freedom of commercial advertisements.
  • Right against tapping of telephonic conversation.
  • Right to telecast.
  • Right to know about government activities.
  • Right to demonstration or picketing but not right to strike.
  • Right against ‘bundh’ called by a political party or organization.
• Restrictions: The ‘Freedom of Speech and Expression’ is subject to reasonable restrictions by the State on the following grounds:
  • Sovereignty and integrity of India
  • Security of the state
  • Friendly relations with foreign states
  • Public order, decency, or morality
  • Contempt of court
  • Defamation, and
  • Incitement to an offense.

Freedom of Assembly [Article 19(1)(b)]

• It guarantees every citizen the right to assemble peacefully (without arms), including the right to hold public meetings, demonstrations, and take-out processions.
• The following points are to be noted w.r.t. this right:
  • This freedom can be exercised only on public land, and not on private land.
  • The assembly must be peaceful and unarmed.
  • Thus, this provision does not protect disorderly, violent, riotous assemblies, one that causes a breach of public peace or one that involves arms.
  • This right does not include the right to strike.
• Restrictions: Reasonable restrictions can be imposed by the state on the exercise of the Right of Assembly on two grounds:
  • Sovereignty and integrity of India,
  • Public order including the maintenance of traffic in the area concerned.

Freedom of Association [Article 19(1)(c)]

• All citizens have the right to form associations, unions, cooperative societies, or any other body of persons such as political parties, companies, partnership firms, societies, clubs, organizations, trade unions, etc.
• The following points are to be noted w.r.t. Article 19(1)(c):
  • This right includes the following:
    a. the right to start an association or union
    b. the right to continue with the association or union.
    c. the negative right of not to form or join an association or union
  • The right to obtain recognition of an association formed is not a fundamental right.
  • As held by the Supreme Court, the trade unions have no guaranteed right to effective bargaining or right to strike or right to declare a lock-out.
• Restrictions: The state can impose reasonable restrictions on the exercise of this right on the following grounds:
  • sovereignty and integrity of India,
  • public order and morality.

Freedom of Movement [Article 19(1)(d)]

• This freedom grants every citizen the right to move freely throughout the territory of the country. One can move freely between the states or within a state.
• The freedom of movement has two dimensions:
  • Internal – right to move inside the country
  • External – right to move out of the country and right to come back to the country.

It is to be noted that Article 19 protects only the first dimension of the freedom of movement. Its second dimension is dealt with by Article 21 (The Right to Life and Personal Liberty).

• Restrictions: The state can impose reasonable restrictions on this freedom on the following two grounds:
  • The interests of the general public. For example, the Supreme Court has ruled that the freedom of movement of prostitutes can be restricted on the grounds of public health and public morals.
  • The protection of the interests of any scheduled tribe. For example, the government restricts the entry of outsiders into tribal areas to protect the distinctive culture, language, customs, and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation.

Freedom of Residence [Article 19(1)(e)]

• Every citizen has the right to reside and settle in any part of the territory of India.
• This right has two parts:
  • the right to temporarily stay in any part of the country, i.e. staying at any place temporarily
  • the right to settle in any part of the country i.e. setting up a home or domicile at any place permanently
• Restrictions: Reasonable restrictions can be imposed by the State on the exercise of this right on the following two grounds:
  • In the interest of the general public.
    1. For example, the Supreme Court has held that certain kinds of persons such as prostitutes and habitual offenders etc can be banned from entering and residing in certain areas.
  • The protection of the interests of any scheduled tribes.
    1. For example, the government has restricted the right of outsiders to reside and settle in tribal areas to protect the distinctive culture, language, customs, and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation.

Freedom of Profession, etc [Article 19(1)(f)]

• All citizens are given the right to practice any profession or pursue any occupation, trade, or business of their choice.
• The following points are to be noted w.r.t. this right:
  • This right does not include the right to carry on a profession, business, trade, or occupation that is immoral or dangerous.
    1. Thus, activities like trafficking in children or dealing with harmful drugs are not allowed under this right.
  • In relation to this right, the State is empowered to:
    a. Prescribe that a technical or professional qualification is necessary for practicing any profession or carrying on any occupation, trade, or business; and
    2. Carry on by itself any trade, business, industry, or service without taking into consideration either complete or partial exclusion of citizens. This means that no objection can be made when the State carries on a trade, business, industry, or service either as a complete or partial monopoly to the exclusion of citizens or in competition with any citizen.
• Restrictions: The State can impose reasonable restrictions on this right on the grounds of the interest of the general public.

Protection in Respect of Conviction for Offences (Article 20)

• This right protects against arbitrary and excessive punishment of an accused person, whether a citizen, a foreigner, or a legal person like a company or a corporation, etc.
• It contains three provisions in this regard:
  • No ex-post-facto law – This provision prohibits incrimination under an ex-post-facto law i.e. that imposes penalties retrospectively or which increases the penalties for such acts. Accordingly, no person shall be:
    A. Convicted of any offense except for violating a law in force at the time of the commission of the act
    B. Subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act

The following points are to be noted w.r.t. this provision:

• This limitation of ex-post-facto law is imposed only on criminal laws, not on civil laws or tax laws. Thus, a civil liability or a tax can be imposed retrospectively.
• This provision prohibits only conviction or sentence under an ex-post-facto criminal law and not the trial thereof.
• Protection under this provision cannot be claimed in case of preventive detention or demanding security from a person.
  • No double jeopardy – No person shall be prosecuted and punished for the same offense more than once.
    A. The protection is available only in proceedings before a court of law or a judicial tribunal, and not in proceedings before departmental or administrative authorities.
  • No self-incrimination – No person accused of any offense shall be compelled to be a witness against himself.

The following points are to be noted w.r.t. this provision:

• This protection extends to both oral evidence and documentary evidence.
• This protection does not extend to the following:
  A. Compulsory production of material objects
  B. Compulsion to give thumb impression, specimen signature, blood specimen
  C. Compulsory exhibition of the body
• This protection extends only to criminal proceedings and not to civil proceedings or other proceedings which are not of criminal nature.

Protection of Life and Personal Liberty (Article 21)

• This right declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law.
• This right is available to both citizens and non-citizens.

Evolution of Rights under Article 21 (Protection of Life and Personal Liberty)

The Supreme Court, through its judgments in different cases, has led to the evolution of the scope of rights included under Article 21. This evolution can be seen as follows:

• Gopalan Case, 1950: The Supreme Court took a narrow interpretation of Article 21 and held that:
  • Protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action. Thus, the state can deprive the right to life and personal liberty of a person based on a law.
    1. The reasoning given by the Supreme Court was that the expression ‘procedure established by law’ used in Article 21 is different from the expression ‘due process of law’. This means that the validity of a law that has prescribed a procedure cannot be questioned on the ground that the law is unreasonable, unfair, or unjust.
  • Personal liberty means only liberty relating to the person or body of the individual.
• Menaka Case, 1978: The Supreme Court took a wider interpretation of Article 21, overruling its judgment in the Gopalan Case. It held that:
  • The right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair, and just.
    a. Effectively, it introduced the concept of ‘due process of law’. Thus, now protection under Article 21 is available not only against arbitrary executive action but also against arbitrary legislative action.
  • The right to life is not merely confined to animal existence or survival but includes the right to live with human dignity.
  • Personal liberty is of the widest amplitude and it covers a variety of rights that go to constitute the personal liberties of a man.
• Subsequent Judgments: The Supreme Court has maintained its interpretation of Article 21 in the Menaka Case in subsequent judgments. Through a series of judgments, it has kept on expanding the scope of Article 21 to include rights such as
  1. Right to live with human dignity,
  2. Right to a decent environment, including pollution-free water and air,
  3. Protection against hazardous industries,
  4. Right to livelihood,
  5. Right to privacy,
  6. Right to shelter,
  7. Right to health,
  8. Right to free education up to 14 years of age,
  9. Right to free legal aid,
  10. Right against solitary confinement,
  11. Right to a speedy trial,
  12. Right against handcuffing,
  13. Right against inhuman treatment, etc.

Right to Education (Article 21A)

• This article declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as determined by the State.
• It is to be noted that this provision makes only elementary education a Fundamental Right, and not higher or professional education.
• This provision was added by the 86th CA Act, of 2002, which made the following changes to the Constitution:
  • Added this new Fundamental Right in Article 21A, which earlier was a DPSP under Article 45.
  • Changed the subject matter of Article 45 to direct that the state shall endeavor to provide early childhood care and education for all children until they complete the age of 6 years.
  • Added a new Fundamental Duty under Article 51A, which says that – it shall be the duty of every citizen to provide opportunity for education to his child/ward between the ages of 6-14 years.
• To implement the provision under Article 21A, the Parliament has enacted the Right of Children to Free and Compulsory Education (RTE) Act, 2009. It seeks to ensure that every child has a right to be provided with full-time elementary education.

Protection Against Arrest and Detention (Article 22)

• Article 22 provides safeguards for persons who are arrested or detained.
• Detention is of 2 types:
  • Punitive Detention- to punish a person for an offense committed by him after trial and conviction in a court.
  • Preventive Detention- detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offense, but to prevent him from committing an offense in the near future.
• Article 22 provides safeguards against both types of detention, and hence contains the following two provisions:
  • First Part: Deals with the cases of ordinary law and provides the following rights to a person who is arrested or detained under an ordinary law:
    a. Right to be informed of the grounds of arrest
    b. Right to be produced before a magistrate within 24 hours, excluding the journey time
    c. Right to be released after 24 hours unless the magistrate authorizes further detention
    d. Right to consult and be defended by a legal practitioner

The following points are to be noted w.r.t. these safeguards:

• These safeguards apply only to an act of a criminal or quasi-criminal nature or some activity prejudicial to the public interest.
• These safeguards are not available to an enemy alien or a person arrested or detained under a preventive detention law.
• These safeguards are available in case of arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax, and deportation of an alien.
  • Second Part: Grants protection to persons who are arrested or detained under a preventive detention law, and includes the following:
    a. Grounds of detention should be communicated to the detenu. However, facts considered to be against the public interest need not be disclosed.
    b. Detention of a person cannot exceed 3 months unless an advisory board reports sufficient cause for extended detention. The board is to consist of judges of a High Court.
    c. The detenu should be allowed to make a representation against the detention order.

The following points are to be noted w.r.t. these safeguards:

• This safeguard is available to both citizens as well as aliens.
• It authorizes Parliament to prescribe:
  • Circumstances and the classes of cases in which a person can be detained for more than 3 months under a preventive detention law without obtaining the opinion of an advisory board
  • The maximum period for which a person can be detained in any class of cases under a preventive detention law
  • Procedure to be followed by an advisory board in inquiry
• The Constitution has divided the legislative power w.r.t. preventive detention between Parliament and State Legislatures as follows:
  • Parliament has exclusive authority to make a law of preventive detention for reasons connected with the Defense, Foreign Affairs, and Security of India.
  • Both Parliament and State Legislatures can concurrently make a law of preventive detention for reasons connected with the security of a state, maintenance of public order, and maintenance of supplies and services essential to the community.
• Some of the preventive detention laws made by the Parliament are
  • National Security Act (NASA) 1980,
  • Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) 1974, etc.

Significance of Right to Freedom

• Cornerstone of Democracy – It forms the bedrock of democracy by empowering citizens to express their views and participate in the governance process. It ensures that individuals have a voice in shaping the policies and decisions that affect their lives.
• Individual Empowerment – These rights empower individuals to exercise autonomy and pursue their interests without undue interference from the state or other entities.
• Promotion of Pluralism and Diversity – It fosters a culture of pluralism and diversity where different viewpoints, beliefs, and perspectives can coexist. It encourages dialogue, debate, and the exchange of ideas, leading to intellectual enrichment and societal progress.
• Protection Against Tyranny – The right to freedom serves as a bulwark against authoritarianism and tyranny by limiting the government’s power to infringe upon individual liberties.
• Safeguarding Human Dignity – Fundamental freedoms such as the right to life, personal liberty, and protection against arbitrary detention uphold the inherent dignity of every individual. They ensure that people are treated with respect and fairness, irrespective of their background, beliefs, or status.
• Facilitation of Socio-Economic Development – Freedom of movement, residence, and profession enables individuals to seek opportunities, pursue livelihoods, and contribute to the economic development of the nation.
• Promotion of Social Justice – It includes provisions for education, legal aid, protection against exploitation, and other social welfare measures aimed at promoting equity and social justice.

In conclusion, the right to freedom serves as a cornerstone of individual liberty and societal progress and is vital for a vibrant democracy. The Constitution’s provisions for the protection of life, personal liberty, and education further underscore its commitment to ensuring the dignity and welfare of all citizens. As India continues its journey towards progress and inclusivity, the principles of freedom embodied in these articles remain essential guides for shaping a fair, democratic, and compassionate society.

Frequently Asked Questions (FAQs)

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