1

TABLE OF CASES

A.K. Gopalan vs The State Of Madras.Union Of ... on 19 May, 1950

Association for Democratic Reforms Case
Babulal Parate v. State of Maharashtra
Brij Bhusan Vs State of Delhi (1950)
Damyanti Narang Vs Union of India
Excel wear Vs Union of India (1979 SC 25)
Express newspaper Vs Union of India (1986)
Hamdard Dawakhana Vs Union of India
Hari Singh Nagra & Ors. Vs Kapil Sibal & Ors
Harshaker Vs Deputy Excuse & Taxation commissioner AIR 1975 SC 1121
Himat lal Vs Police commission case
Indian express newspaper Vs Union of India AIR 1962 SC 305
Indian express newspaper Vs UOI the court held that (AIR 1986 SC 515)
Indian Express Newspapers pvt ltd Vs union of India (1985
Indirect Tax Practitioners Assn. Vs R.K. Jain
K. Krishnamurthi Vs Union of India
K.A. Abbas Vs Union of India
Kharak Singh Vs The State of U. P. & Others on 18 December, 1962
New York Time Vs Sullivan 376 US 254.
Pandharnath Sridhar Rangnekar Vs Dy. Commr. of Police.(1973)
Railway Board Vs Niranjan Singh AIR (1969) SC 966)
Rangarajan Vs P. Jagjivan Ram (1989)2 SCC 574
Romesh Thaper Vs State of Madras AIR 1950 SC
S.M. Kala Vs University of Rajasthan
Sakal papers Vs Union of India AIR 1986
Sitaramacharya v. Dy, Inspector of School
State of madras Vs V.G Row
T.M.A Pai foundation Vs State of Karnataka (AIR 2003 SC 355)
TATA Press ltd Vs MTNL(AIR 1995 SC 2438),
Unni Krishnan Vs State of A.P. (AIR 1993 SC 2178
Vishakha Vs state of Rajasthan (AIR 1997 SC 3011)
Shyam Bihari Tiwari Vs State of U.P. (1994)

FREEDOMS NOT ABSOLUTE SUBJECT TO REASONABLE RESTRICTIONS

2
Reasonable restriction means intelligent care and discussion that the restriction is not beyond
what is required for public interest. It should not be arbitrary and excessive. Further, the
restriction can only be imposed by law and not by executive or departmental decision.
Test of reasonable restrictions -Spanning several cases, SC has laid down the following
guidelines :
1. It is the courts and not the legislature that will decide whether a law is reasonable or
not.
2. Reasonable means that the law is not arbitrary and the restriction is not beyond what
is required in public interest. The time and duration of the restriction cannot be
unlimited.
3. There is no fixed standard for reasonableness. Each case must be decided on its own
merits.
4. The restriction must be reasonable from substantiative as well as procedural stand
point.
5. Restrictions imposed due to implementation of Directive Principles may deemed to be
reasonable.
6. The test of reasonability must be objective in the sense that it does not matter what a
Judge or Court thinks what is reasonable but what a normal reasonable person would
think.
7. The restriction must have a relation to the object that is sought through the law and
must not be excessive.
8. It is the reasonableness of the restriction that a count has to determine and not the
reasonableness of the law itself.
9. Restriction may amount to prohibition.

FREEDOM OF SPEECH AND EXPRESSION

ARTICLES 19(1) (A) & 19(2)

Meaning and scope

Article 19(1) (a) of Indian Constitution says that all citizens have the right to freedom of
speech and expressionFreedom of speech and expression is the most basic of all freedoms
granted to the citizens of India. J Patanjali Shastri has said in the case of Romesh Thaper Vs

3
State of Madras1 that freedom of speech and that of the press lay at the foundation of a
democratic society, for without free political discussions, no public education is possible,
which is so important for the proper functioning of the govt. Freedom of Speech and
expression means the right to express one's own convictions and opinions freely by words of
mouth, writing, printing, pictures or any other mode. It thus includes the expression of one's
idea through any communicable medium or visible representation, such as gesture, signs, and
the like. Freedom of speech would amount to nothing if it were not possible to propagate the
ideas. Thus, the freedom of publication and press is also covered under freedom of speech.
Free propagation of ideas is the necessary objective and this may be done on the platform or
through the press. This propagation of ideas is secured by freedom of circulation. Liberty of
circulation is essential to that freedom as the liberty of publication. Indeed, without
circulation the publication would be of little value. The freedom of speech and expression
includes liberty to propagate not one's views only. It also includes the right to propagate or
publish the views of other people; otherwise this freedom would not include the freedom of
press.
Freedom of expression has four broad special purposes to serve:
1)
2)
3)
4)

It helps an individual to attain self-fulfillment.

It assists in the discovery of truth.
It strengthens the capacity of an individual in participating in decision-making.
It provides a mechanism by which it would be possible to establish a reasonable
balance between stability and social change.
5) All members of society would be able to form their own beliefs and communicate
them freely to others.
In sum, the fundamental principle involved here is the people's right to know. Freedom of
speech and expression should, therefore, receive generous support from all those who believe
in the participation of people in the administration. It is on account of this special interest
which society has in the freedom of speech and expression that the approach of the
Government should be more cautious while levying taxes on matters of concerning
newspaper industry than while levying taxes on other matters. Explaining the scope of
freedom of speech and expression Supreme Court has said that the words "freedom of speech
and expression" must be broadly constructed to include the freedom to circulate one's views
by words of mouth or in writing or through audiovisual instrumentalities. It therefore includes
the right to propagate one's views through the print media or through any other
communication channel e.g. the radio and the television. Every citizen of this country
therefore has the right to air his or their views through the printing and or the electronic
media subject of course to permissible restrictions imposed under Article 19(2)of the
Constitution.
Freedom to air one's view is the lifeline of any democratic institution and any attempt to
stifle, suffocate or gag this right would sound a death knell to democracy and would help
1 AIR 1950 SC 124

4
usher in autocracy or dictatorship. The modern communication mediums advance public
interest by informing the public of the events and development that have taken place and
thereby educating the voters, a role considered significant for the vibrant functioning of a
democracy. Therefore, in any setup more so in a democratic setup like ours, dissemination of
news and views for popular consumption is a must and any attempt to deny the same must be
frowned upon unless it falls within the mischief of Article 19(2) of the Constitution.
The various communication channels are great purveyors of news and views and make
considerable impact on the minds of readers and viewers and our known to mould public
opinion on vitals issues of national importance. The freedom of speech and expression
includes freedom of circulation and propagation of ideas and therefore the right extends to the
citizen to use the media to answer the criticism leveled against the views propagated by him.
Every free citizen has undoubted right to lay what sentiments he pleases. This freedom must,
however, be exercised with circumspection and care must be taken not to trench on the rights
of other citizens or to jeopardise public interest.
NEW DIMENSIONS OF FREEDOM OF SPEECH AND EXPRESSION
Government has no monopoly on electronic media: The Supreme Court widened the scope
and extent of the right to freedom of speech and expression and held that the government has
no monopoly on electronic media and a citizen has under Art. 19(1)(a) a right to telecast and
broadcast to the viewers/listeners through electronic media television and radio any important
event. The government can impose restrictions on such a right only on grounds specified in
clause (2) of Art. 19 and not on any other ground. A citizen has fundamental right to use the
best means of imparting and receiving communication and as such have an access to
telecasting for the purpose.
Commercial Advertisements: The court held that commercial speech (advertisement) is a
part of the freedom of speech and expression. The court however made it clear that the
government could regulate the commercial advertisements, which are deceptive, unfair,
misleading and untruthful. Examined from another angle the Court said that the public at
large has a right to receive the "Commercial Speech". Art. 19(1)(a) of the constitution not
only guaranteed freedom of speech and expression, it also protects the right of an individual
to listen, read, and receive the said speech.
Telephone Tapping: Invasion on right to privacy : Telephone tapping violates Art. 19(1)(a)
unless it comes within grounds of restriction under Art. 19(2). Under the guidelines laid down
by the Court, the Home Secretary of the center and state governments can only issue an order
for telephone tapping. The order is subject to review by a higher power review committee and
the period for telephone tapping cannot exceed two months unless approved by the review
authority.
The freedom of speech and expression can be studied under two heads:
1) Freedom of press
2) Right to information

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FREEDOM OF PRESS IN DEMOCRACY It is the primary duty of all the national
courts to uphold the freedom of the press and invalidate all laws and administrative actions
which interfere with such freedoms against constitutional mandate, observed the Supreme
Court in Indian express newspaper Vs Union of India 2, While highlighting the importance
of the freedom of the press in a democracy. To arrest the malpractices of interfering with the
free flow of information , the democratic constitution all over the world provided guarantee
of freedom of speech and expression underlying the circumstances under which restrictions
are imposed.
Freedom of press in India and U.S.A there is no provision in the constitution of India
providing guarantee for the freedom of the press but the Supreme Court in Sakal papers Vs
Union of India3 widely interpreted the scope of art. 19(1)(a) to include within its fold the
freedom of the press which is regarded as a species of which freedom of expression is a
genus. Thus in India the freedom of press flows from the freedom of speech and expression
and enjoy no higher privilege than the freedom of speech and expression.
But the first amendment to the constitution of the USA protected the freedom of the press and
in the USA the press functions as a watch-dog overseeing generally the functions of the
executive, legislature and the judiciary and to criticize the abuse of the power by the
governmental agencies, New York Time Vs Sullivan 376 US 254.
Freedom of Circulation the Indian Constitution does not use the expression freedom of
press in art 19 but it is included in one of guarantees in art 19(1)(a) of the constitution.
Justice Venkataramiah in Indian Express Newspapers pvt ltd Vs union of India 4(1985)
observed that the freedom of press is one of the items around which the greatest and betterest
of constitutional struggles have been waged an all countries where liberal constitution
prevails.
The effect of art 29 on the freedom of press was analysed by the apex court in Express
newspaper Vs Union of India5 ( where two earlier decisions of the court in Romesh Thaper
Vs state of Madras, and Brij Bhusan Vs State of Delhi 6 where the government tried to put
a ban on the circulation of newspaper, . The court while interpreting the scope of art 19(1)(a)
of the constitution held that the freedom of speech and expression includes freedom of
propagation of ideas which freedom was ensured by the freedom of circulation and that the
2 AIR 1962 SC 305
3 AIR 1986
4 AIR1985
5 AIR 1986
6 AIR 1950

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liberty of press consisted in allowing to previous restraint upon the publication. It was further
observed that the fundamental freedom of speech and expression enshrined in our
constitution was based on the provision to the First Amendment of the constitution of USA.
Also there would be violation of the liberty of press not only when there is a direct ban on the
circulation of a publication, but also when some action on the part of the government
adversely affects the publication.
Right to Privacy publication of autobiography of a condemned prisoner-prior restraintthe question concerning the freedom of press vis a vis the right of the citizen and the scope of
prior restraint by the government and the parameters of the right of the press to criticize was
considered by the Supreme Court in S. Rangarajan Vs P. Jagjivan Ram 7. the Facts of the
case were that the petitioners who were the publishers of a Tamil weekly magazine
approached the Supreme Court to restrain the government from interfering with their right of
publication of the autobiography of the condemned person Auto Sankar. The Supreme Court
Held that the government or their officials have no right to impose prior restraint upon the
publication on the apprehension that they may be defamed. The Court reasoned that right to
privacy is implicit in the right to life and liberty guaranteed under art 21 of the constitution. It
is a right to be let alone. A citizen has a right to safeguard privacy of his own, his family,
marriage, procreation, motherhood, child bearing and education amongst other matters and
none can publish anything without his consent. But once the matter becomes part of public
record including the courts record, the publication of the same would not violate the right the
right to privacy and it becomes a legitimate subject for comments by the press and media.
However, in the interest of decency an exception must be carved out to this rule.
Right of press - interview and photograph of under-trial prisoners- conditions- the press is
entitled to exercise the freedom of speech and expression by publishing a matter which does
not invade the rights of other citizens and which does not violate the sovereignty and integrity
of India, the security of state, public order, decency and morality. The press must obtain the
willingness of person sought to be interviewed and so-called right of press which is obtained
on the basis of the permission would be subjected to prohibitions from Jail Manual.
Should the journalist reveal its source-the Press Council Act,1978 provides that it should not
force a journalist to reveal its source. But the Delhi High Court in a case against The Pioneer
said that if the court considered necessary in the interest of justice, the court could direct the
journalist to disclose its source of information.
RIGHT TO INFORMATION
Freedom of speech right of voters, antecedents of candidates:- the foundation of a healthy
democracy is to have well-informed citizens-voters. The reason to have right of information
with regard to the antecedents of the candidate is that voter can judge and decide in whose
favour he should cast his vote. It is voters discretion whether to vote in favour of an illiterate
or literate candidate. It is his choice whether to elect a candidate against whom criminal
7 AIR 1989 SCC 574

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cases, for serious or non-serious charges were filed but is acquitted or discharged. For the
first time the right to know about the candidate standing for election has been brought within
the sweep of article 19(1) (a). There is no doubt that by doing so a new a new dimension has
been given dictated by the need to improve and refine the political process of election.
The Supreme Court in Association for Democratic Reforms Case8 has Held that article
19(1) (a) which provides for freedom of speech and expression would cover in its fold right
of the voter to know specified antecedents of a candidate , who is contesting elections.
Also in K. Krishnamurthi Vs Union of India9 the nature of Right to vote and contest
elections -was Held that it does not have the status of fundamental rights - They are in the
nature of legal rights which can be controlled through legislative means - Constitution
empowers the Election Commission to prepare electoral rolls for identifying the eligible
voters in elections for Lok Sabha and Vidhan Sabha - Right to vote is not an inherent right
and cannot be claimed in an abstract sense -1951 Act includes grounds that render persons
ineligible from contesting elections. Thus, there is no inherent right to contest elections since
there are explicit legislative controls over the same - Representation of the People Act, 1951.
Thus it is a statutory right.
COMMERCIAL ADVERTISEMENTS- INCLUDED
In Hamdard Dawakhana Vs Union of India10, it was held that commercial advertisements
were not included within the concept of freedom of speech and expression.
In Indian express newspaper Vs UOI 11 the court held that all commercial advertisements
could not denied the protection of art 19(1)(a), merely because they were issued by a
businessmen.
Thus explaining the effect of the combined reading of both the above cases the Supreme
Court in TATA Press ltd Vs MTNL12 Held that commercial speech could not be denied the
protection of art 19(1)(a), merely because they were issued by businessmen. In a democratic
society it was observed that free flow of commercial information was indispensible.
Pre- censorship of films K.A. Abbas Vs Union of India13

8 AIR 2002 SC 2112

9 AIR 2010,VOL 7, SCC 202
10 1960
11 AIR 1986 SC 515
12 AIR 1995 SC 2438

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Facts - The petitioner made a documentary film called "A Tale of Four Cities" which
attempted to portray the contrast between the life of the rich and the poor in the four principal
cities of the- country. The film included certain shots of the red light district in Bombay.
Although the petitioner applied to the Board of Film Censors for a `U' Certificate for
unrestricted exhibition of the film, he was granted a certificate only for exhibition restricted
to adults. On an appeal made to it by the petitioner, the Central Government issued a
direction on July 3, 1969 that a `u' Certificate may be granted provided certain specified cuts
were made in the film. The petitioner thereafter field the present petition seeking a
declaration that the provisions of Part 11 of the Cinematograph Act, 1952, together with the
rules prescribed by the Central Government on February 6, 1960 in the exercise of its powers
under s. 5-B of the Act were un- constitutional and void; he further prayed that the direction
dated July 3, 1969 should be quashed. The petitioner claimed that his fundamental tight of
free speech and expression was denied by the order of the Central Government and that he
was entitled to a 'U' Certificate for the film as of right.
Held - (i) Censorship of films including prior restraint is justified under the Constitution.
It has been almost universally recognised that the treatment of motion ,pictures must be
different from that of other forms of art and expression. The motion picture is able to stir up
emotions more deeply than any other product of art. Its effect particularly on children and
adolescents is very great since their immaturity makes them more willingly suspend their
disbelief than mature men and women. They also remember the action in the picture and try
to emulate or/ imitate what they have seen. Therefore, classification of films into two
categories of 'U' films and 'A' films is a reasonable classification. It is also for this reason that
motion picture must be regarded differently from other forms of speech and expression. A
person reading a book or other writing or hearing a speech or viewing a painting or sculpture
is not so deeply stirred as by seeing a motion picture. Therefore the treatment of the latter on
a different footing is also a valid classification.
GROUNDS OF RESTRICTIONS
It is necessary to maintain and preserve freedom of speech and expression in a democracy, so
also it is necessary to place some restrictions on this freedom for the maintenance of social
order, because no freedom can be absolute or completely unrestricted. Accordingly, under
Article 19(2) of the Constitution of India, the State may make a law imposing reasonable
restrictions on the exercise of the right to freedom of speech and expression in the interest
ofi the public on the following grounds: Clause (2) of Article 19 of Indian constitution
contains the grounds on which restrictions on the freedom of speech and expression can be
imposed
1) Security of State: Under Article 19(2) reasonable restrictions can be imposed on fredom
of speech and expression in the interest of security of State. The term "security of state" refers
only to serious and aggravated forms of public order e.g. rebellion, waging war against the
13 AIR 1971

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State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful
assembly, riot, affray. Thus speeches or expression on the part of an individual, which incite
to or encourage the commission of violent crimes, such as, murder are matters, which would
undermine the security of State.
2) Friendly relations with foreign states: This ground was added by the constitution (First
Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious
propaganda against a foreign friendly state, which may jeopardise the maintenance of good
relations between India, and that state. No similar provision is present in any other
Constitution of the world. In India, the Foreign Relations Act, (XII of 1932) provides
punishment for libel by Indian citizens against foreign dignitaries. Interest of friendly
relations with foreign States, would not justify the suppression of fair criticism of foreign
policy of the Government. It is to be noted that member of the commonwealth including
Pakistan is not a "foreign state" for the purposes of this Constitution. The result is that
freedom of speech and expression cannot be restricted on the ground that the matter is
adverse to Pakistan.
3) Public Order: This ground was added by the Constitution (First Amendment) Act. 'Public
order' is an expression of wide connotation and signifies "that state of tranquility which
prevails among the members of political society as a result of internal regulations enforced by
the Government which they have established." Public order is something more than ordinary
maintenance of law and order. 'Public order' is synonymous with public peace, safety and
tranquility. The test for determining whether an act affects law and order or public order is to
see whether the act leads to the disturbances of the current of life of the community so as to
amount to a disturbance of the public order or whether it affects merely an individual being
the tranquility of the society undisturbed. Anything that disturbs public tranquility or public
peace disturbs public order. Thus communal disturbances and strikes promoted with the sole
object of causing unrest among workmen are offences against public order. Public order thus
implies absence of violence and an orderly state of affairs in which citizens can peacefully
pursue their normal avocation of life. Public order also includes public safety. Thus creating
internal disorder or rebellion would affect public order and public safety. But mere criticism
of government does not necessarily disturb public order. In its external aspect 'public safety'
means protection of the country from foreign aggression. Under public order the State would
been titled to prevent propaganda for a state of war with India. The words 'in the interest of
public order' includes not only such utterances as are directly intended to lead to disorder but
also those that have the tendency to lead to disorder. Thus a law punishing utterances made
with the deliberate intention to hurt the religious feelings of any class of persons is valid
because it imposes a restriction on the right of free speech in the interest of public order since
such speech or writing has the tendency to create public disorder even if in some case those
activities may not actually lead to a breach of peace. But there must be reasonable and proper
nexus or relationship between the restrictions and the achievements of public order.
4) Decency or morality: The words 'morality or decency' are words of wide meaning.
Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom

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of speech and expression in the interest of decency or morality. These sections prohibit the
sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is
laid down till now as to what is moral and indecent. The standard of morality varies from
time to time and from place to place.
5) Contempt of Court: Restriction on the freedom of speech and expression can be imposed
if it exceeds the reasonable and fair limit and amounts to contempt of court. According to the
Section 2 'Contempt of court' may be either 'civil contempt' or 'criminal contempt.' In a
democratic country Judiciary plays very important role. In such situation it becomes essential
to respect such institution and its order. Thus, restriction on the freedom of speech and
expression can be imposed if it exceeds the reasonable and fair limit and amounts to
contempt of court. According to the Section 2 'Contempt of court' may be either 'civil
contempt' or 'criminal contempt.' But now, Indian contempt law was amended in 2006 to
make truth a defence. However, even after such amendment a person can be punished for
the statement unless they were made in public interest. Again in Indirect Tax Practitioners
Assn. Vs R.K. Jain14, it was held by court that, Truth based on the facts should be allowed
as a valid defence if courts are asked to decide contempt proceedings relating to contempt
proceeding relating to a speech or an editorial or article. The qualification is that such
defence should not cover-up to escape from the consequences of a deliberate effort to
scandalize the court. Also in a recent judgement in a case
Hari Singh Nagra & Ors. Vs Kapil Sibal & Ors. 15
Facts of case -In a Souvenir published by a literary group/Association of lawyers practicing
in Supreme Court, various messages, articles, poems etc. were contributed by members of the
Bar and the Hon'ble Judges. Respondent, a Senior Advocate also sent a message to be
published in the Souvenir, which expressed concern about the plight of junior members of the
Bar and about the falling standards of legal fraternity. The message was neither released to
the press, nor was the Souvenir made available for sale. It was circulated only to its members
and other members of the Bar. Thereafter, when respondent No. 1 filed his nomination for
contesting the post of President of Supreme Court Bar Association, a news item was
published in the Sunday, Times of India daily wherein certain excerpts of the message were
reported, which suggested that the senior advocate made frontal attack on the judiciary.
Petitioner, the practicing lawyers of Punjab and Haryana High Court filed criminal contempt
of court under Article 215 of the Constitution of India against the three respondents alleging
that one respondent entered into a conspiracy with other two respondants to bring
administration of justice into disrespect which amounted to deliberate interference in the
administration of justice.
Held -Any criticism about the judicial system or the judges which hampers the
administration of justice or brings administration of justice into ridicule must be prevented.
14 2010 VOL 8 SCC 281
15 AIR 2010

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The contempt of court proceedings arise out of that attempt. National interest requires that all
criticisms of the judiciary must be strictly rational and sober and proceed from the highest
motives without being coloured by any partisan spirit or tactics. There is no manner of doubt
that freedom of expression as contemplated by Article 19(1)(a) of the Constitution is
available to the Press and to criticize a judgment fairly albeit fiercely is no crime but a
necessary right. A fair and reasonable criticism of a judgment which is a public document or
which is a public act of a Judge concerned with administration of justice would not constitute
contempt. In fact, such fair and reasonable criticism must be encouraged because after all no
one, much less Judges, can claim infallibility. The Message examined the evils prevailing in
the judicial system and was written with an object to achieve maintenance of purity in the
administration of justice.
6) Defamation: Defamation: Ones freedom, be it of any type, must not affect the reputation
or status another person. A person is known by his reputation more than his wealth or any
thing else. Constitution considers it as ground to put restriction on freedom of speech.
Basically, a statement, which injures a man's reputation, amounts to defamation. Defamation
consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to
defamation is still uncodified in India and subject to certain exceptions.
7) Incitement to an offence: This ground was also added by the constitution (First
Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right
to incite people to commit offence. The word 'offence' is defined as any act or omission made
punishable by law for the time being in force.
8) Sovereignty and integrity of India- To maintain sovereignty and integrity of a state is
prime duty of government. Taking into it into account, freedom of speech and expression can
be restricted so as not to permit any one to challenge sovereignty or to permit any one to
preach something which will result in threat to integrity of the country.
9) Sedition: As understood by English law, sedition embraces all those practices whether by
words, or writing which are calculated to disturb the tranquility of the State and lead ignorant
person to subvert the government. It should be noted that the sedition is not mentioned in
clause (2) of Art. 19 as one of the grounds on which restrictions on freedom of speech and
expression may be imposed.

FREEDOM TO FORM ASSOCIATION:

ART 19(1) (C) AND 19(4)
An association means a collection of persons who have joined together for a certain object,
which may be for the benefit of the members or the improvement, welfare or advantage of the
members or the improvement, welfare or advantage of the public or some scientific,
charitable or similar purpose. Article 19(1)(c) includes the right to form companies,

12
societies, partnership firms, trade unions, clubs, political parties and the like body of persons.
This freedom implies that several individuals can get together and form voluntary admit in
the association with common aims, legitimate purpose and a community of interests. The
person who form the association have the associational right to continue with the member
with those other whom they voluntarily admit an association. Any state action directed to
highjack association by taking it over, introducing officials in the management body of
association, trading out the member or restricting the committees and bodies constitution in
accordance with the constitution of the association. Association of which citizens may be
members may be social, academic creational, religious, cultural, or professional, vocational
or political. These may include associations for of cultural activities.
Recognising the importance of the right of forming associations in a democratic society, the
courts have not favoured the vesting of absolute discretion in the executive to interfere with
this fundamental right. A discretion vested in a government official to prohibit formation of
an association, without proper safeguards, has been held to be unconstitutional.
From time to time the Supreme Court has always been trying to clarify the extent of right to
form association
Reasonableness 19(4)
State of madras Vs V.G Row 16, the Supreme Court declared the provision to be
unconstitutional for the test to be declaring an association unlawful was subjective and the
factual existence of the grounds was not justifiable. The court emphasized that curtailing the
right to form association was fraught with serious potential reactions in religious, political
and economic fields. Therefore, the vesting of power in the government to impose restriction
on this right without consideration in judging the reasonableness of the restrictions. The
existence of a summary and largely one-sided review by an advisory board was no substitute
for a judicial inquiry.
Membership of an association
In Damyanti Narang Vs Union of India17 the apex court held the citizens freedom to form
an association includes his right to become a member of an association already existing, right
to continue to manage and organise an association already formed, right to formulate and
implement the lawful objectives of such association.
Freedom not to join an association
The question whether the associational freedom not to join an association, or union was
raised in S.M. Kala Vs University of Rajasthan is left open to be considered at some
appropriate moment in future. His associational freedom protects the right of a person not to
16 AIR 1952 SC 196
17 AIR 1971

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become a member, if he does not want to join it, or voluntarily to cease or to resign its
membership.
Right to form associations and union is guaranteed so that the people can form a group of
people having the similar view, In Sitaramacharya v. Dy, Inspector of Schoo 18l, it was
held that this right necessarily implies a right not to be a member of an association. Thus, no
one can be compelled to become member of an association.
The freedom under the sub-clause (c) of clause (1) of article 19 is subject certain reasonable
restrictions under the law which may be imposed in interest of:
1
2
3

Sovereignty and integrity of India;

Public order;
Morality

The reasonableness of restrictions is determined by a direct nexus between the demands of

social control conducive to public interests and the imposed restrictions. It can be judicially
determined in the context of each individual case, after taking into consideration both the
substantive and procedural aspects of the proposed statutory restrictions. The government
servants may be forbidden from becoming from becoming members of, or otherwise being
associated with any political party or a like organisation. The officers and man of the armed
and security forces and police force including the non gazetted members of the police
organisation are not free to form, or to members of any association/union/, society or
institution, unless permitted by a law / police regulation framed under legal authorisation.
Nor any association of their can seek, or can apply registration under the Trade Union Act
1926. But the right to association remains citizens basic right, although its reach does not
extend to the privileges of incorporated bodies of citizens: The Hindi Sahitya SammelanRastrabhasa Prachar Samiti Cases.
LAW OF CONSPIRACY AND UNLAWFUL ASSOCIATION
The act of forming an association is lawful, unless it constitutes a crime, or tort of conspiracy.
The tort of conspiracy consists in a combination for the purpose of damaging the plaintiffs
interests in trade or otherwise. The tortious conduct of one of the defendants can be attributed
to all of them. A combination of traders in a trade to ward off free lawful competition with a
rival trader, or of the trade union officers to get a non-union employee dismissed by the
employer and the like constitutes a tortious conspiracy.
An unlawful association is one which encourages aids, or aims at unlawful purposes, abets
commission of acts of violence, intimidation or immorality. An association otherwise lawful
ceases to be lawful.
FREEDOM OF MOVEMENT AND RESIDENCE:
ART 19(1) (D), (19) (E) AND (19) (5)

18 AIR 1958 A.P. 78

14
IMPORTANCE
Inhered in his status of citizenship, the citizens right to move freely throughout the territory
of India is an important aspect of his freedom. The freedom of locomotion guarantees him in
general right of free movement which is an aspect of his personal liberty, although a specific
and limited part of it. It secures to hi, the right and privilege to go to any place within the
country across all states and inter- state barriers. A citizen needs no passport and no visa
while travelling inside the country.
Art 19(1) (d) guarantees to every citizen the right to move freely throughout the territory of
India. Art 19(1)(e) guarantees to a citizen the right to reside and settle in any part of
India.19(5), however the state may impose restrictions on these rights by law in the interests
of general public or for the protection of the interests of any Scheduled Tribe.
ARTICLE 19(1) (D) AND 19(1) (E) ARE COMPLEMENTARY
Broadly speaking the two rights contained in articles 19(1) (d) and 19(1) (e) are parts of the
same right and are complementary and often go together. Most of the cases considered under
article 19(d) are relevant to article 19(e) also. The two rights are therefore discussed together.
FOREIGNERS
Art 19(1) (d) applies only to the citizens and not to foreigners. Accordingly the fundamental
right of a foreigner is confined to art 21 guaranteeing his life and liberty. He cannot claim the
right to reside and settle in the country as guaranteed by art 19(1) (e). The government of
India thus has the power to expel foreigners from India.
Restricting movement to maintain public order
The Punjab Akalis threatened to hold a demonstration in Delhi on the occasion of the
inauguration of Asian games. To frustrate such demonstration, the governments of Haryana
and Uttar Pradesh took stringent measures, such as, barricading highways, resorting to
seizure and arrests, intercepting movement of Akalis across the border on to Delhi.
These steps were challenged through a writ petition in the Supreme Court. The Supreme
Court laid down some general norms as to how the police should behave in such a situation.
The police is entitled to impose reasonable restraints on the physical movement of the
members of the public in order to protect public property and avoid needless inconvenience
to other citizens in their lawful pursuits. But all such restraints on personal liberty have to
commensurate with the object which furnishes their justification. The sanctity of person and
privacy has to be maintained at all costs and ought not to be violated in the name of
maintenance of law and order.
Externment
Art 19(1) (d) and art 19(1) (e) have been invoked frequently to challenge the validity of an
externment order served by the executive on a citizen requiring him to leave a state or a
district. Such an order prima facie curtails the freedoms guaranteed by these articles, and

15
therefore the courts are entitled to test whether the order and the law under which it has been
made is reasonable within article 19(5). The reasonableness of restrictions can be judicially
determined in any given case in accordance with the regulation of the citizens freedom and
the procedural requirements of the official conduct in the matter. Where a person was directed
to remove himself from the Greater Bombay area, and settle at a place specified in the
externment order, because the activities of that person in the greater Bombay were causing
alarm and it was reasonably believed that he was about to be engaged in commission of
certain offences, the externment order was held to be reasonable both in the sense of
expulsion from the Greater Bombay, and fixation of a place of residence as held in
Pandharnath Sridhar Rangnekar Vs Dy. Commr. of Police19.
Kharak Singh Vs The State of U. P. & Others20 on 18 December, 1962
FACTS-The petitioner was challenged in a dacoity case but was released is there was no
evidence against him. The police opened a history sheet against him. He was put under surveillance -is defined in Regulation 236 of the U. P. Police Regulations. Surveillance involves
secret picketing of the house or approaches to the houses of the suspects, domiciliary visits at
night, periodical enquiries by officers not below the rank of Sub-Inspector into repute, habits,
association, income, expenses and occupation, the reporting by constables and chaukidars of
movements and absences from home, the verification of movements and absences by means
of inquiry slips and the collection and record on a history sheet of all information bearing on
conduct.
The petitioner filed a writ petition under Art. 32 in which he challenged the constitutional
validity of Chapter XX of U. P. Police Regulations, in which Regulation 236 also occurs.
HELD-Art. 19 (1) (d) the "freedom" here guaranteed is a right "to move freely" throughout
the territory of India. Omitting as immaterial for the present purpose the last words defining
the geographical area of the guaranteed movement, we agree that the right to "'move" denotes
nothing more than a right of locomotion, and that in the context the adverb "'freely" would
only connote that the freedom to move is without restriction and is absolute, i. e., to move
wherever one likes, whenever one likes and however one likes subject to any valid law
enacted or made under cl. 5. It is manifest that by the knock at the door, or by the man being
roused from his sleep, his locomotion is not impeded or prejudiced in any manner. Learned
Counsel suggested that the knowledge or apprehension that the police were on the watch for
the movements of the suspect, might induce a psychological inhibition against his movements
but, as already pointed out, we are unable to accept the argument that for this reason there is
an impairment of the "'free" movement guaranteed by sub-cl. (d). The freedom guaranteed by
Art. 19 (1) (d) has reference to something tangible and physical rather and not to the
imponderable.

19 AIR 1973
20 AIR 1962

16
The right to move about being excluded its narrowest interpretation would be that it
comprehends nothing more than freedom from physical restraint or freedom from
confinement within the bounds of a prison; in other words, freedom from arrest and
detention, from false imprisonment or wrongful confinement or locomotion.
OUTCOME
Police survieillance
The court ruled that no aspect of police surveillance fell within the scope of art 19(1) (d).
Against the validity of shadowing of the suspects movement, it was argued that if a person
suspected that his movements were being watched by the police, it would induce him a
psychological inhibition against movement and this would infringe art 19(1) (d).
Right to privacy
An interesting question considered by the court in these cases is whether there is in India a
fundamental right to privacy. In this case the apex court ruled that the right to privacy is not a
guaranteed right in India. The right to privacy is however, not absolute and reasonable
restrictions can be placed thereon in public interest under art 19(1) (5).
A.K. Gopalan vs The State Of Madras.21
Law relating to preventive detention--Whether infringes Fundamental Right as to freedom of
movement.
Facts-The petitioner who was detained under the Preventive Detention Act (Act IV of 1950)
applied under Art. 32 of the Constitution for a writ of habeas corpus and for his release from
detention, on the ground that the said Act contravened the provisions of Arts. 13, 19, 21 and
22 of the Constitution and was consequently ultra rites and that his detention was therefore
illegal.
Held - Whatever be the precise scope of Art. 19 (1) (d) and Art.19(5) the provisions of Art.
19(5) do not apply to a law relating to preventive detention, inasmuch as 'there is a special
self-contained provision in Art. 22 regulating it. Though on movement is nothing denial of
personal liberty, yet it has nothing to do with the preventive detention. It is an independent
and substantive and specific right. It is exercisable when he is free from unlawful
confinement and detention. When under preventive detention , he loses the sub-stratum for its
exercise. Article 19 of the Constitution has no application to a law which relates directly to
preventive detention even though as a result of an order of detention the rights referred to in
sub-cls. (a) to (e) and (g) in general, and sub-cl. (d) in particular, of cl. (1) of Art. 19 may be
restricted or abridged; and the constitutional validity of a law relating to such detention
cannot therefore, be judged in the light of the test prescribed in el. (5) of the said Article.
FREEDOM TO CARRY ON TRADE AND OCCUPATION
ART 19(1) (G) AND ART 19(6)
21 AIR 1950 SC 27

17
FREEDOM , TRADE AND OCCUPATION DEFINED - the term occupation means
some activity by which a person is occupied or engaged. It would be an activity of a person
undertaken as a means of livelihood or a mission of life. For instance, a journalist has
fundamental right to carry on his or her occupation under art 19(1)(g). It includes
profession, trade, or business. The term profession has been interpreted to mean an
occupation requiring the exercise of intellectual skill, often coupled with manual skill. The
term business means any activity involving the production, distributions and consumption
of wealth and production and availability of material services. While trade is an activity
concerning the sale and purchase of goods. It is an exchange of any article either by barter or
for money or for service rendered. The party paying consideration in any trade is aware for
what he is paying the consideration.
Exception to the freedom of trade-intoxicants or drugs- the apex court in Harshanker Vs
Deputy Excuse &Taxation Commissioner22 said that trade is and include occupation of
buying and selling, barter or such skilled work as of goldsmiths commission agent etc. The
citizen cannot be prevented from carrying on any trade or profession, except on ground of
unlawful character of the trade, or else, that it is extra commercium. He does not possess
freedom to carry on trade, for instance, in intoxicants or drugs.
There can be no trade in crime. It is as per the will of the person to do or to continue some
business, but this right carry on any trade or profession also includes his right to discontinue
the business, or close down the business, trade or profession as in Excel Wear Vs union of
India (AIR 1925 SC25)
Right Against Sexual Harassment of Working Women In Vishaka Vs State of
Rajasthan23 the Supreme Court observed that sexual harassment of working women at
working places would be violation of the victims , fundamental rights under art 19(1)(g). In
this case a , social worker was brutally gang raped in a village of rajasthan. The court took a
serious note of the matter and issued certain guidelines for the prevention of such incidents.
No Right Against Competitions art 19(1)(g) does not guarantees protection from
competition in trade. Therefore, the loss of income on account of competition in trade does
not infringe the right to trade under art 19(1)(g). In Shyam Bihari Tewari Vs State of U.P24.,
the supreme court held that a cinema owner had no locus standi to challenge, the
establishment and grant in aid, for new cinema hall.
Right to impart education and establish educational institutions the Supreme court in
unni Krishna vs state of A.P25 commonly known as capitation fee case observed that activity

22AIR 1975 SC 1121

23 AIR 1997 SC 3011
24 AIR 1994

18
of establishing an educational institutional institution could neither a trade or business nor
could it be a profession within the meaning of art 19(1)(g).
The above decision of Supreme Court was overruled by T.M.A Pai Foundation Vs State of
Karnataka26 where the court held that:Education used to be charity or philanthropy in good old times. Gradually it became an
'occupation'. Some of the Judicial dicta go on to hold it as an 'industry'. Whether, to receive
education, is a fundamental right or not has been debated for quite some time. But it is
settled that establishing and administering of an educational institution for imparting
knowledge to the students is an occupation, protected by Article 19(1)(g) and additionally by
Article 26(a), if there is no element of profit generation. As of now, imparting education has
come to be a means of livelihood for some professionals and a mission in life for some
altruists.
It is submitted that taking over the right to regulate admission and fee structure of unaided
professional institutions is not a 'reasonable restriction' within the meaning of Article 19(6) of
the Constitution.
Restrictions on the right to carry on trade or business art 19(6)

Reasonable restrictions in public interest.

Restriction must not be unreasonable or excessive.
Restriction may amount to total prohibition.
State trading and state monopoly in a trade or business.

Bibliography
1) Prof. Jain M.P, Indian constitutional law, 5th edition, Wadhwa and
company Nagpur publishers, New Delhi.
2) Prof. Narender Kumar, Constitutional Law of India, 7th edition,
Allahabad Law agency, Haryana.
3) Prof. M.C. Kagzi, The Constitution of India, 6th edition, Vol-2, India
Law House, New Delhi.
4) The Constitution of India- Bare Act, universal law publishers, New
Delhi.
5) Datar P Arvind, Commentry on the Constitution of India, vol-1, 2nd
edition, wadhwa and company , Nagpur law publishers.

25 AIR 1993 SC 2178

26 AIR 2003 SC 355

19

6) De DJ, the Constitution of India, vol-1, 3rd edition, Asia law house,
Hyderabad.

Webliography
1) www.indiankanoon.org
2) www.supremecourtofindia.nic.in
3) www.legalhelpindia.com