UNIT 3

1. Protective Discrimination & Social Justice (15-16)

New Trends on Social Justice
No discrimination (15)
Equality (16)
2. Untouchability (17)
3. Abolition of Titles (18)
4. Right to Freedom (19)
Speech and Expression
Dimensions- Freedom of Assembly, Association,
Movement and Residence, Profession,
Occupation, Trade and Business
Reasonable Restrictions
Article 15

 Draft Article 9
 prohibited discrimination on 5 grounds: religion, race, caste, sex, place of
birth.
 debated on the 29th of November 1948
argued that Draft Article- did not engage with discrimination based on
family and descent
Others - wanted specific mention of gardens, roads and tramways as
potential public spaces where people should not face discrimination
In response -the general nature of the language used in the Article was
sufficient
 proposal - add a similar clause for Scheduled Castes and Tribes as well.
not adopted –argued that this approach would perpetuate the segregation
of Scheduled Castes and Tribes.
 The Draft Article was adopted with some amendments on 29th November
1948.

Article 15 (1)

 State cant discriminate on these 5 grounds.

Nainsukhdas v. State of Uttar Pradesh , AIR 1953

 the state election commission sets up different electoral boards for

different religions, which were declared unconstitutional by the Supreme
court of India.

Article 15 (2)

 The state and citizens cant discriminate of these 5 grounds

 Eg The Madras removal of civil disabilities Act punishes social disabilities

 No law or custom or usage could authorize any person to prevent any

harijans ,depressed classes from having access to public spaces.
 The Madras Removal of Civil Disabilities Act, 1938
  This act was the first comprehensive Act passed by the Madras
 Legislature to remove social disabilities making it an offence to
 discriminate against the untouchables. This was not only applicable to
state funded facilities like roads, wells and transportation but also
applicable to “any other secular institution” to which the general public
was admitted including restaurants, hotels, shops etc. This Act also barred
judicial enforcement of any customary right or disability based on
membership in such group. Violation was made a cognizable offence,with
a small fine for the first offence, larger fines and upto six months
imprisonment for subsequent offence.
 In most of the Indian Provinces, later called States, Acts removing Civil
Disabilities of untouchables were passed.
 The untouchables were variously described as “Harijans, Scheduled
Castes, Excluded Classes, Backward Classes or Depressed Classes”.

Article 15 (3)

 State has powers to do positive discrimination

 Upliftment and protection of specific groups

 For women and children

 in some areas the women and children do need special privileges and
therefore the state for their welfare can make laws, moreover this doesn't
means that discrimination is being done but some special privileges are
being given to them as they require them.

Yusuf Abdul Aziz vs State of Bombay

 Section 497 of the Indian Penal Code (IPC) was questioned

 For adultery women weren’t punishable

 It perceives a consensual sexual intercourse between a man, married or

unmarried, and a married woman without the consent or connivance of her
husband as an offence of "adultery“. It also holds the man and not the
(adulteress) "wife" of another man, who has been unfaithful to her
husband, solely responsible for the sexual liaison.

Article 15(4)
  was added after the 1st amendment of the constitution in 1951.

 Gives state power to make special provisions for advancement of 3 groups:

SEBC Socially and Educationally backward class – not defined
SC- Scheduled Caste- defined in art 341
ST- Scheduled Tribe – defined in art 342

Champakam Dorai Ranjan v. State of Madras, Air 1951

 state reserved some seats for the backward classes of the society but
Supreme court declares it unconstitutional but the state says that according
to article 46 of the Indian constitution the state can reserve seats for the
weaker section of the society but still the Supreme court declares it
unconstitutional by saying that Directive Principles of the State policy
cannot over-ride the fundamental rights but still the 1st amendment of the
constitution was done.

Jaswant Kaur vs State of Bombay

 The Court held that an order requistioning land for the construction of the
harijan colony was held to be as violative of Article 15 .

In order to nullify the two decisions Article 15 was amended in 1951 and this
provision was inserted in order to help the State take up work in the interest of
the backward classes.

 1st Amendment of the Indian Constitution

The amendment says that any reservation could be done by the state for
the educationally and socially backward sections of the society and hence it
would not be considered as the violation of the article 15 of the
constitution.

• question - how to check who are backward classes and who are general

solution- Article 340 which gives the power to make a commission who will
decide that who are backward classes of the society and who lies under the
 general category moreover this report made by the commission shall be
challenged in the court of law.

M.R Balaji v. State of Mysore, Air 1962

• State of Mysore Govt order 28% BC, 22% MBC, 15% SC, 3% ST

• The reservation then went upto 68% which was further declared to be
unconstitutional by SC

• Sc held while determining backward class, consider both social and

educational factors

• Not just Caste but also poverty etc

• Limit of 50% was introduced

• Further categorization of BC to MBC is not valid

• Positive discrimination should not hinder advancement of society at large

• but after that the Mandal commission case which declared that the
reservation upto 50% is valid and above that is not valid i.e will be declared
as unconstitutional.

Indra Sawhney vs Union Of India

• MR balaji vcase was overturned

• We can consider BC by considering only Caste

• Further MBC was also allowed

• Facts of the Case –

• January 1, 1979, - Janata Government - headed by then Prime Minister Sri

Morarji Desai- appointed the second backward classes commission- under
article 340 - under the chairmanship of Sri. B.P. Mandal -to investigate the
status of the socially and educationally backward classes in India.
• The commission submitted its report on December 1980 and identified
about 3743 castes as socially and educationally backward and
recommended 27% reservation for them in Government jobs & certain
steps for the advancement , necessary provision required for their
upliftment by giving them equal opportunity in the public employment.

• In the meantime, due to internal disturbances within the party, the

government collapsed and thus it couldn't implement the
recommendations made by the Mandal commission

• after that Congress headed by Indira Gandhi came into power and it too
didn't implement the recommendations made by the Mandal Commission
report till 1989

• in 1989 the congress government ceased to exist in power due to defeat in

the general elections.

• After winning the elections Janta Dal again came into power and decided to
implement the report of the commission. Prime Minister V.P. Singh issued
office of a memorandum on August 13, 1990, and reserved 27%seats for
the socially backward classes

• soon after the implementation of this report conflict and riots broke out in
the country and the anti-reservation movement affected the nation for 3
months causing huge loss to life and property.

• a writ petition was filed by the Bar Association of the Supreme Court,
challenging the validity of Office of Memorandum issued by the
government.

• To tackle the situation Prime Minister P.V. Narsimha Rao issued another
office of a memorandum which increased the reservation up to 37% and
included the reservation for economically, socially, educationally backward
classes as well.
 • The 5 judge bench referred this matter to 9 judges who issued a notice to
the government asking the criteria upon which the government has
proposed to increase the reservation. But the government failed to do so

• Judgement-

• 9 judges Constitution Bench of the Supreme Court by 6-3 majority

I. Backward class of citizens in Article 16(4) can be identified based on the caste
system & not only on an economic basis.

II. Article 16(4) is not an exception to Article 16(1). It is an instance of the

classification. Reservation can be made under article 16(1).

III. Backward classes in Article 16(4) were not similar to as socially & educationally
backward in article 15(4).

IV. The creamy layer must be excluded from the backward classes.
V. Article 16(4) permits the classification of backward classes into backward &
more backward classes.
VI. A backward class of citizens cannot be identified only & exclusively
concerning economic criteria.
VII. Reservation shall not exceed 50%.
VIII. Reservation can be made by the ‘EXECUTIVE ORDER’.
IX. No reservation in promotion.
X. Permanent Statutory body to examine complaints of over – inclusion /
under – inclusion.
XI. The majority held that there is no need to express any opinion on the
correctness or adequacy of the exercise done by the MANDAL COMMISSION.
XII. Disputes regarding new criteria can be raised only in the Supreme Court.
Article 15 (5)

 came after the 93rd constitutional amendment of 2005.

 Same as clause 4 but Specified for admission to educational institutions

T.M Pai Foundation v. State of Karnataka Air, 2003

 Held-it is the discretionary power of the state that they can or cannot
impose the restrictions regarding the admission of the backward classes

PA inamdar Case

 In Private/ Unaided institutions they could do whatever

Article 16- Equality

 State May Lay Down Qualification or Conditions in regard to requirements

of Employment or Employment
 BR Ambedkar called reservations as Compensatory Benefits
 For welfare state, uplift unequal sections
 Available for citizens only

Article 16 (1)

 For employment and appointment to job opportunities owned by state,

there should be equality of opportunity

Rajya Sabha Secretariat v. Subhash Baloda [AIR 2013 SC 2193]

SC said that Article 16 does not prevent the state from prescribing the requisite
qualification and the selection procedure for the recruitment or appointment. It is
for the state to decide. But test or qualification should not be arbitrary.

 There must be some nexus between Rules Prescribed and Posts

Panduranga Rao v. Andhra Pradesh Public Service Commission [AIR 1963 SC 268]

Supreme Court Held that Rule which required that only a lawyer practicing in the
A.P High Court had introduced a classification between one class of advocate and
the rest and the said classification was irrational in as much as there was no nexus
between the basis of the said classification.

Article 16(2)

 Lays 6 Grounds against Discrimination

 Religion, Race, Caste, Sex, Descent, Place of Birth, Residence
 Allows public employment to set criteria but not on these 6 grounds

Dr. Pradeep Jain v. Union of India 1984

 the court provided two broad justifications for the domicile reservation-
financial assistance by the state & backwardness of particular region.
  financial assistance by the state - premised on the fact that state
government provides a considerable financial assistance to the universities
within its borders and this money is derived from the taxes paid by the
people domiciled in that particular state.
 Hence there exists a legitimate state interest to promote education within
its borders as there is a likelihood that people domiciled in the state will
serve as medical practitioners in their state after receiving the higher
education.

Article 16 (3)

 Parliament has power to give reservation on basis of residence

 Exception to 16 (2)
 Reasons 2
 1.States have backward areas
For their speedy development
2.Equal opportunity to these people

Dr. Pradeep Jain v. Union of India 1984

 the court provided two broad justifications for the domicile reservation-
financial assistance by the state & backwardness of particular region.
 financial assistance by the state - premised on the fact that state
government provides a considerable financial assistance to the universities
within its borders and this money is derived from the taxes paid by the
people domiciled in that particular state.
 Hence there exists a legitimate state interest to promote education within
its borders as there is a likelihood that people domiciled in the state will
serve as medical practitioners in their state after receiving the higher
education.

Article 16 (4)

 For social and economic prosperity of Societies disadvantage section, state

has power to reserve in their favor
 Includes SC and ST
  Questioned the validity of this

Balaji vs State of Mysore

 2 conditions who qualify can use 16 4

1.Socially and educationally backward
2.There should be no adequate representation of these groups in State

Devadasan v. Union of India, AIR 1964 S.C. 179.

 Before- If BC reserved seats weren’t filled this year, they can add it up to
next year
 17% reserved for SC and ST and subsequent add ons
 In 1961, 64% was reserved
 In this case- Reservation if above 50% then carry forward is invalid
 “carry forward rule” made by the Government to regulate the appointment
of persons of backward classes in government services was involved.
 The Supreme Court struck down the “carry forward rule” as
unconstitutional on the ground that - power vested in the government
cannot be so exercised so as to deny reasonable equality of opportunity in
matters of public employment for the members of classes other than
backward classes.
 In this case, the reservation of posts to the members of backward classes
had exceeded 50% and had gone up to 68% due to “carry forward rule.”

• as unconstitutional.

Indra Sawhney vs Union Of India

• Aka Mandal Commission Case

• 1979- PM Morarji Desai made a commission whose chairperson was BP

Mandal

• Commissions job- to find out in india how many SEBC

• In 1980 Report- 3743 Castes were SEBC

 • Committee recommended 27% reservation for govt jobs

• 1990- PM VP Singh implemented the recommendation

• 9 Benches Judge- 6:3 Majority laid 12 principles

• 3 imp principles for article 16

1. 27% reservation for sebc is right

2. This reservations only available for apppointments not reservations

3. Total reservation cannot exceed 50% except in extraordinary situations

• But Parliament realized it was wrong

• Brought 77th Amendment- Art 16 4(A) where promotion also gets

reservation

• 81 Amendment- Art 16 4 (b) where 50% limit for sc and st was removed

81’St Amendment Act 2000

amended the constitution to overrule the said order and inserted clause 16(4B)

Article 16 (5)- reservation in religious institutions

 For religious institutions if theres an office and if the requirement is to be of

a specific religion, its not violative of the article

Reservation is affirmative action

• The purpose of affirmative action - to speed up establishment of a

representative and unprejudiced workforce & to assist those who were in
the past deprived by unfair discrimination to fulfil their highest potential.

• Reservations has encouraged an ongoing debate regarding the legal, moral

and economic questions arising from the preferential treatment of certain
groups of people in society.
• India’s founding fathers had a good reason for putting asymmetry into the
constitution. The inequality was so pervasive that it would’ve been absurd
to say the law must treat everyone equally. Facial neutrality would’ve
continued the structure of inequality. But permanently enshrining caste
distinctions has created subclasses of privileged members of formerly
disadvantaged castes.

• Communities or sections of communities who get listed as being permitted

to benefit under reservation system are not removed from this list even if
their social and political conditions improve. In many cases the legal system
is involved in deciding if a certain person is entitled to reservation.
Article 17

Abolition of Untouchability

 Untouchability is abolished and its practice in any form is forbidden The

enforcement of any disability arising out of Untouchability shall be an offence
punishable in accordance with law
 Its forbidden & such acts are punishable
 In US, To abolish slavery in 1860, Emancipation Proclamation by Abraham
Lincoln
 In constituent assembly suggested untouchability should be made an
offense and punishments should be prescribed

 Untouchability is neither defined in the Constitution nor in the Act. It refers

to a social practice which looks down upon certain depressed classes solely
on account of their birth and makes any discrimination against them on this
ground.
 One member proposed an amendment to clarify the definition of the term
‘untouchable’ to make it explicitly applicable to caste- and religious-based
untouchability. He argued that if the term was undefined, the provision was
likely to be misinterpreted. Another member agreed with
this, contending that the Draft Article as it stood could be construed as
prohibiting the government from regulating the quarantine of individuals
with communicable diseases.
 The amendment was rejected by the Assembly.

 2nd part of punishment- read w article 35 which says punishments of part 3

of consti can be prescribed through this article
 Then parliament passed
1.untouchability offenses act 1955
2.Committee of untouchability and economic development of SC 1965- to
amend this act^
3. In 1976 Renamed and amended the act- Protection of civil rights act
defines ‘Civil Right’ as ‘any right accruing to a person by reason of the abolition of
untouchability by Article 17 of the Constitution.’
 Modifications-
 a) Offenses were made non compoundable
b) Punishments were enhanced
c) Duty of investigaton on public servant
If he refuses then abetment of offence and he is punishable
d) Place of worship was included
6months imprisonment + 500 rs fine
e) Power given to state govt to imply collective punishment/ fine
f) Insulting a member of SC ST was made a crime
4.Sc and St prevention of atrocities act
The Act provides for special courts for the trial of offences under the Act and for the relief and
rehabilitation of the victims of such offences. Atrocities committed against a Hindu SC or ST,
who had converted to another religion, can be prosecuted under the Act, if the victim is still
suffering from social disability.

Devarajiah vs B Padmanna
 petitioner has lodged a complaint with the City Magistrate, Bangalore, against the
respondent alleging that the latter had issued a printed pamphlet according to the contents of
which the complainant had no right to worship or enter into any Jain temple and the
Complainant should be prevented from entering such places of public worship belonging to
the Jain community and offering prayers and religious services in those places. He also
alleged that the accused was encouraging untouchability by instigating the Jains not to have
social or religious intercourse with others of the same religion like the Complainant.
 word 'untouchability' in the Act is intended to be, it can only refer to those regarded as
untouchables in the course of historical development. A literal construction of the term would
include persons who are treated as untouchables either temporarily or otherwise for various
reasons, such as their suffering from an epidemic or contagious disease or on account of
social observances such as are associated with birth or death or on account of social boycott
resulting from caste o
 Rajasthan HC/ madras HC- Untouchablity is in inverted commas that means
it cant be used as literal or grammatical meaning but through historical
meaning
 It means caste based discrimination
 In literal it would mean temporary sick patients also
PUDR vs UOI
 15 2 and art 17 protections available against State and Private Individuals
 Asiad workers case
State of Karnataka vs Appa Balu Ingle
  17 objective- to remove disabilities based on caste
 Supreme Court expressing its concern on the continuance of the practice of
untouchability, held that it was an indirect form of slavery and only
extension of caste system.
 The facts of the case revolve around an incident whereby individuals belonging to the
Harijan community were threatened from drawing water from a public borewell. As
disposed by the prosecution witnesses, this borewell was being installed at an area
that was approximately 15 feet from harijan colony. During the drilling process, on
the said day of the incident, water had sprayed from the well at about 9:30 PM.
Groups of people belonging to both Hindu and Harijan communities were present at
the said location. After the conclusion of a pooja performed by young Hindu girls,
Hindus had taken water from the well for the purpose of performing pooja at the
temple. The complainant and the prosecution witnesses intended to draw water from
the same well and had carried pots for the same. However, at this point, they were
asked by the respondents not to draw water from the well. The reason given to them
stemmed from the fact that they belonged to the Harijan community and that they
had the availability of a separate well for them to draw water.
 Additionally, the Harijans were further obstructed by the respondents, particularly by
Respondent 1 who threatened them with the use of a gun. Due to the possibility of
having to suffer dire consequences, the complainants refrained from drawing water
from the well.
 This case has undergone various stages. First at the trial court, all accused individuals were
convicted and sentenced to simple imprisonment and fine. On appeal to the Additional Sessions
Judge, two of the accused were acquitted. The remaining three convicted accused preferred a
revision petition to the High Court. Allowing this, the Single Judge of High Court discredited the
evidence of the prosecution witnesses on the ground that the words were not uttered verbatim
in their evidence. This resulted in the acquittal of the remaining three accused.
Jai Singh vs UOI
 to decide whether the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (No. 33 of 1989) (hereinafter to be referred to as 'the Act') is
ultra vires the Constitution of India.
Article 18
 Clause (1) prohibits the conferment of titles, Military and academic
distinctions are exempted from the prohibition.
Clause (2) prohibits a citizen of India from accepting any title from a foreign State.
Clause (3) provides that a non-citizen who holds any office of office of profit or
trust under the State shall not accept, without the consent of the President, any
title from any foreign State.
Clause (4) provides that no person citizen or non citizen holding any office of
profit or trust, shall, without consent of the President, accept any present or
emolument or office of any kind from or under any foreign State.
 American Constitution under Article 8 also haS the similar provision and
have prohibited the persons holding the office of trust or profit from
receiving gifts in any forms from foreign states without the permission of
the Congress.

In Balaji Raghavan v. Union of India (AIR 1996 SC 770),

 In 1954 the Government of India introduced four awards namely , Bharat
Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri for exceptional
and distinguished service in any field including public service.
 These awards were abolished in 1977 but were reinstated in 1980.
 There validity was challenged in the Court under Article 18 on the ground
of their inconsistency with that Article.
 The Court observed that it does not conflict with Article 18 and Court also
noted indiscriminate conferment of these awards without any clear
guidelines and it advised that a committee under the Prime Minister
consisting among others i.e., Speaker of the Lok Sabha, the Chief Justice of
India or his nominee and the leader of the opposition in consultation with
the President of India should nominate persons for these awards.

Article 19- Freedom

 2 types of rights
1. Freedoms for citizens-19 (1)
2. Restrictions by state on these freedoms- Articles 19(2) to 19(6)
contain ‘reasonable restrictions’ on the rights enshrined under Article 19(1).
 Originally, there were 7 freedoms in Art. 19(1) but the last one - ‘the right
to acquire, hold and dispose of property’ removed by the Constitution (44th
Amendment) Act, 1978, leaving only 6 freedoms in this Article.
 Only available to citizens
 Only available against State

Reasonable restrictions on freedom

• No freedom can be unlimited.

• to strike a balance between individual liberty and public order ‘reasonable

restrictions’ have been imposed under Article 19 sub-clauses (2) to (6).

• phrase reasonable restrictions connotes - limitation imposed upon a person

in the enjoyment of a right should not be arbitrary or excessive.

• The reasonableness of restriction has to be determined in an objective

manner and from the pov of general public and not from pov of the
persons upon whom the restrictions are imposed.

• In deciding the substantive aspect of reasonableness, according to the

Supreme Court, the nature of the right alleged to have been infringed, the
underlying purpose of the restrictions imposed, the extent and urgency of
the evil sought to be remedied thereby, the disproportion of the imposition,
the prevailing conditions at the time, should all enter into the judicial
verdict.
Art 19 (1) (a)- Freedom of Speech and Expression-

 3 types

Right to receive info

Right to express own ideas

Rights to keep communication as secret

 right to express one’s own ideas, thoughts and opinions freely through
writing, printing, picture, gestures, spoken words or any other mode is the
essence of freedom of speech and expression.
 through visible representations such as gestures, or through print media or
any other communication channel.

• implies that freedom of the press is also included in this category.

• Free propagation of ideas is the necessary objective

• Includes Right to Press, Express view, Remain silent, Freedom of

Commercial Advertisements

Bijoe Emmanuel vs State of Kerala

 High school assembly anthem was played

 3 students belonging to Jehovah Belief stood in attention but didn’t sing
national anthem
 Headmistress Expelled them
 HC said ok
 SC said np
 SC held that Jehovah believers can only participate in rituals related to their
God
 The students standing in attention means they showed respect
 According to National Honor Act they did not commit any violation
 Thus It includes Freedom to Remain Silent

Brij Bhushan vs State of Delhi

 • BR Ambedkar said Freedom of Press needn’t be mentioned because Art 19
is based on 1st Amendment of US Consti that says Freedom of Speech and
Press

Sakal Papers vs UOI

 Freedom of press is a species of Freedom of Speech and Expression

Romesh Thapar v. State of Madras, (1950):

• The petitioner - well-known communist

• had published articles that were suggestive of him being skeptical of PM

Jawaharlal Nehru’s policies especially the ones about foreign policy.

• During that time, a communist movement in western Madras had started

to gather momentum. Madras government feared that the content
propounded by the magazine would add to the agitate in that region.

• The government of Madras in order to avoid such a situation on 1 st March

1950, issued an order solemn a ban on the entry and circulation of the
weekly journal in that area.

• The order was issued pursuant to Section 9(1-A) of the Madras

Maintenance of Public Order Act, 1949 (hereafter referred to as ‘Act’),

• Thus, the petitioner filed a petition before the Supreme Court arguing that
the order passed by the government infringes upon his fundamental right
to free speech and expression.

Maneka Gandhi vs UOI

 Maneka Gandhi - to go to other country for official work. she applied for
the passport under Indian passport act 1967 - issued on 1 June 1976.
 On the 4th of July 1977 , maneka Gandhi received a letter from the regional
passport officer intimating to her that it was decided by the government of
India to impound her passport under sec.10(3)(c)of the act “in public
interest”.
  required to surrender her passport within 7 days
 Maneka Gandhi addressed a letter to the regional passport officer
requesting a copy of a statement about the reason for making the order as
provided in sec.10(5).
 reply on 6th july 1977 - government decided “in the interest of general
public” not to furnish her a copy of statement of reasons for the making of
the order.
 Maneka Gandhi - writ petition under article 32 of the constitution of India
challenging action of government in impounding her passport and
declining to give reasons for doing so. She challenges sec 10(3)(c)
unconstitutional because it’s a violation of fundamental right under art.
14,19(1).
 The court said that section 10(3)(c) of passport act, 1967 is void because it
violates article 14 of Indian constitution because it confers vague and
undefined power to the passport authority.
 it is violative of Article 14 of the Constitution since it doesn’t provide for an
opportunity for the aggrieved party to be heard. It was also held violative of
Article 21 since it does not affirm to the word “procedure” as mentioned in
the clause, and the present procedure performed was the worst possible
one.
 The Court, however, refrained from passing any formal answer on the
matter, and ruled that the passport would remain with the authorities till
they deem fit.

Prabha Dutt v. Union of India

Supreme Court directed the Superintendent of Tihar Jail to allow representatives

of a few newspapers to interview Ranga and Billa, the death sentence convicts, as
they wanted to be interviewed.

Union of India v. Assn. for Democratic Reforms (2002)

One-sided information, disinformation, misinformation and non information, all

equally create an uninformed citizenry which makes democracy a farce. Freedom
of speech and expression includes right to impart and receive information which
includes freedom to hold opinions.The right to speech also included that Right to
remain silent.

• Right to Information

The right to know or to get information is one of the aspects of freedom of speech
and expression. Freedom to receive information is also included in the freedom of
speech and expression through various supreme court judgments.

Right to Information Act, 2005, which especially talks about the right of the
people to ask for information from the government officials.

• Right not to Speak

This right has also been included in freedom of speech and expression. This right
came to the notice of people after the judgment in the leading case of

Bijoe Emmanuel v. The State of Kerala.

Elements for the right to freedom of speech and expression

1. available only to a citizen of India and not to foreign nationals.

2. includes the right to express oneself through any medium, such as in words
of writing, printing, gesture, etc.

3. This right is not absolute, means government has the right to make laws
and to impose reasonable restrictions in the interest of 8 grounds ie
sovereignty and integrity of India,
Security of State,
friendly relations with foreign states,
public order,
decency/morality,
defamation,
contempt of court and incitement to an offence.

4. Such a right ought to be implemented as much by the action of the State as

by its inaction. Thus, failure on the part of the State to guarantee the
 freedom of right and expression to all its citizens would also constitute a
violation of Article 19(1)(a) of the Indian constitution.

 Restrictions on Freedom of Speech and Expression 19 (2)

Reasonable Restrictions for freedom on speech and ecpression

Clause (2) imposes certain restrictions on free speech under following heads:
I. security of the State,
II. friendly relations with foreign States
III. public order,
IV. decency and morality,
V. contempt of court,
VI. defamation,
VII. incitement to an offence, and
VIII. sovereignty and integrity of India.

Security of the State:

 The term security of state distinguished from public order.

 security of state refers to serious and aggravated forms of public disorder,
example rebellion, waging war against the state [entire state or part of the
state], insurrection etc

Peoples Union for Civil Liberties (PUCL) v. Union of India.10 AIR 1997 SC 568

 PIL was filed under Article 32of the Indian Constitution by PUCL, against the
frequent cases of telephone tapping. The validity of Section 5(2)of The
Indian Telegraph Act, 1885 was challenged. It was observed that
occurrence of public emergency and in the interest of public safety is
the sine qua non for the application of the provisions of Section 5(2).
 If any of these two conditions are not present, the government has no right
to exercise its power under the said section. Telephone tapping, therefore,
violates Article 19(1) (a) unless it comes within the grounds of reasonable
restrictions under Article 19(2).

Friendly relations with foreign States:

  added by the Constitution (First Amendment) Act of 1951. The State can
impose reasonable restrictions on the freedom of speech and expression, if
it hampers the friendly relations of India with other State or States.

Public order:

 added by the Constitution (First Amendment) Act, 1951 in order to meet

the situation arising from the Supreme Court's decision in

Romesh Thappars, case (AIR 1950 SC 124).

Kishori Mohan v. State of West Bengal].

 As per honble Supreme court, public order is different from law and order
and security of state
 In Kishori Mohan v. State of West Bengal, the Supreme Court explained the differences
between three concepts: law and order, public order, security of State. Anything that disturbs
public peace or public tranquillity disturbs public order.[17] But mere criticism of the
government does not necessarily disturb public order.[18] A law punishing the utterances
deliberately tending to hurt the religious feelings of any class has been held to be valid as it
is a reasonable restriction aimed to maintaining the public order.[19]
 It is also necessary that there must be a reasonable nexus between the restriction imposed
and the achievement of public order

Om Prakash v. Emperor, AIR 1948 Nag, 199

 The expression 'public order' connotes the sense of public peace, safety
and tranquillity. Anything that disturbs public peace disturbs public order

Decency and morality

 section 292 to 294 of IPC- it prohibits the sale or distribution or exhibition

of obscene words. The standard of morality changes with changing times.
 RanjitD. Udeshi v. State of Maharashtra (AIR 1965 SC 881) upheld the
conviction of a book seller who was prosecuted under Section 292, I.P.C.,
for selling and keeping the book Lady Chatterley's Lover.

Contempt of court:
  The expression Contempt of Court has been defined Section 2 of the
Contempt of Courts Act, 1971. - refers to civil contempt or criminal
contempt under the Act

Defamation:

 The clause (2) of Article 19 prevents any person from making any statement
that defames the reputation of another.

 Defamation is a crime in India inserted into Section 499 and 500 of the I.P.C.

 Right to free speech is not absolute. It does not mean freedom to hurt
anotherd reputation which is protected under Article 21 of the constitution.

 truth is considered a defence against defamation, but the defence would

help only if the statement was made for the public good.

Incitement to an offense:

 added by the Constitution (First Amendment) Act, 1951.

 from making any statement that incites people to commit offense.

Sovereignty and integrity of India:

 added subsequently by the Constitution (Sixteenth Amendment) Act, 1963.

 This is aimed to prohibit anyone from making the statements that challenge
the integrity and sovereignty of India.
Art 19(1) b –

 Freedom to assemble: freedom to assemble peacefully & without arms.

 reasonable restrictions can be imposed

Restrictions 19(3)

 Restrictions on grounds
a) Sovereignty
b) Integrity
c) Public Order
 Unlawful assembly if-
a) Interrupt Legal Process
b) Criminal Trespass
c) Criminal Force on Public Officer
d) Force on individual to do something they shouldn’t
e) Possesion of someones property
 Disperse under Sec 129 of CRPC
 If not dispersed, Offense under Sec 151 of IPC
 For rally- license or permit needed
19(1)c Freedom to form associations/unions/cooperative societies: This freedom
gives workers the right to form trade union, which is thus a fundamental right.

1. The Police Forces (Restriction of Rights) Act, 1966 prohibits police

personnel from forming trade unions.

2. The Constitution also allows the Parliament to pass a law restricting

the right to form political association to members of the armed
forces, intelligence bureaus, persons employed with
telecommunication system.

 Permanent organization for discussion

All India Bank Employee Association vs National Industrial tribunal

 Right to strike or right to lockout isn’t covered in 1c

19(4)- State may impose reasonable restrictions on the same

 Grounds
a) Sovereignty
b) Integrity
c) Public Order
d) Morality
19(1) d Freedom to move freely:

 move freely throughout the territory of India.

 can be restricted protecting the interests of the Scheduled Tribes.
 To incite sense of nationality in citizens

Restrictions 19(5)

 Restrictions on ground of
a) In the interests of the general public
b) For the protection of the schedule tribes
19(1) (e) Freedom of residence:

 to reside in any part of the country.

 To remove internal barriers

Restrictions 19 (5)

 general public
 ST
Article 19 (1) (g)- Freedom of Profession, occupation, trade, business

 citizens have right to practise any profession, or to carry on any

occupation ,trade and business.
 intention - to evolve socio-economic strengthening
 is not unregulated and cannot be looked in to isolation.
 Article 19(1)(g) uses 4 expressions similar not identical. –
“profession, occupation, trade, and business” object - as comprehensive
and wide as possible.
 “Occupation” - some activity by which a person is occupied or engaged. as
a means of livelihood or a mission of life. wide meaning - regular work job,
principal activity, employment, business or a calling in which an individual is
engaged.
 “Trade” -activity concerning the sale and purchase of goods. It is
an exchange of any article either by barter or for money or for service.
 “Business” - activity involving the production, distribution, and
consumption of wealth and the production and availability of material
services. wide term -include anything which occupies the time, attention,
and labour of a person
 Profession - occupation carried on by a person by virtue of his personal and
specialised qualifications, training, or skill.

Excel Wear vs UOI

The validity of Sections 25-O and 25-R of the Industrial Disputes Act was
challenged.

Section 25-O required an employer to take prior permission from the Government
for the for the closure of his industrial undertaking. The Government could refuse
the permission to close down the business if it was satisfied that the reasons
given by the employer were not adequate and sufficient or that such closure was
prejudicial to the public

The Supreme Court held Section 25-O as a whole and Section 25-R in so far as it
related to the awarding of punishment for violation of provisions of Section 25-O
as unconstitutional and invalid for violation of Article 19(1)(g).

The Court said that no person had a right to carry on the business if they could
not pay even the minimum wages to the workers.

Sodan Singh vs NDMC

The SC upheld the restrictions imposed by the New Delhi Municipal Corporation.

The restrictions commented that hawkers cannot occupy a stationery place on

street pavement which by and large result in enormous difficulties to pedestrians
and other public at large.

though there is inherent right to carry on any trade or business on street

pavements but the right extends only to hawking on the street pavements i.e by
moving from one point to other rather than being 5 stationary at one place also
the restrictions imposed by the municipal corporation is pro bono in nature.

State shall make any law imposing the rights provided under Article 19(g)

Restrictions 19(6)

State can impose reasonable restrictions

1. in interest of general public.

2. State shall make any law relating to professional or technical qualifications

necessary for practising a profession or carrying on any occupation, trade or
business,

3. And also law in relation to creation of State Monopoly.