“Test of Reasonableness under Article 19”

By V. Karthyaeni,

Gujarat National Law University

This project deals with the general questions raised in Art. 19, the rights conferred by Art. 19 to each individual emphasizing on the restrictions to which it is subject.

Right to Freedom.

Art. 19. Protection of certain rights regarding freedom of speech, etc.-

(1) All citizens shall have the right-

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(d) to move freely throughout the territory of India

(e) to reside and settle in any part of the territory of India; [and][1]

(f) [* * *][2]

(g) to practice any profession, or to carry on any occupation, trade or business.

The freedoms enumerated in Art.19 (1) are those great and basic rights, which are recognized as the natural rights inherent in the status of a citizen. But none of these freedoms is absolute or uncontrolled, for each is liable to be curtailed by laws made or to be made by the state to the extent mentioned in clauses (2) to (6) of Art 19. Clauses (2) to (6) recognize the right of the State to make laws putting reasonable restrictions in the interests of the general public, security of the State, public order, decency, or morality and for other reasons set out in those sub-clauses. The principle on which the power of the State to impose restriction based is that all individual rights of a person are held subject to such reasonable limitations and regulations as may be necessary for the protection of the general welfare. Indeed there has to be a balance between individual rights guaranteed under Art 19(1) and the exigencies of the State which is the custodian of the interests of the general public, public order, decency or morality and of other public interests which may compendiously be described as social interest.

The debate has always been on as to what exactly is the definition of ‘reasonable restriction’. The phrase ‘reasonable restriction connotes that the limitation imposed upon a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interest of the public. The word reasonable implies intelligent care and deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness unless it strikes a proper balance between the freedom guaranteed in Art.19 (1)(2) and the social control permitted by cl. (6) of Art. 19, it must be held to be wanting in that quality.[3]

Tests of Reasonable Restrictions

Articles 19(2) to (6) impose limitations on the freedoms guaranteed by Arts.19 (1)(a) to (g). These restrictions pose a general question as to how are the restrictions related to the right, which they restrict? It has been said that it is the rights, which are fundamental, and not the limitations. But these observations overlook the fact that the rights granted are not absolute but are subject to permissible restrictions. Thus the freedom to speak does not mean the freedom to say whatever one likes, but freedom subject to the laws of libel, sedition, blasphemy and the like. Again the freedom of assembly is subject to the assembly being peaceful and not causing a breach of public peace. The rights represent the claims of the individual and the limitations represent the claims of other individuals and the claims of the State or society. Therefore to say that the rights are fundamental and the limitations are not destroys the balance which Art.19 was designed to achieve.

Another question is what is the test for determining whether a restriction is reasonable within the meaning of Art.19? The test of reasonableness as laid down by Sastri C.J. in Madras v. V.G. Row[4] has generally been accepted as correct. He said: “it is important… to bear in mind that the test of reasonableness, wherever prescribed should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness, can be laid down as applicable to all cases”. For adjudging reasonableness of a restriction, the courts consider such factors as: the nature of 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. The test of reasonability can be supplemented by the following observations of Holmes.J. in his classic dissent in Lochner v. New York.[5] “the test to be applied is not whether a judge personally considers particular restrictions unreasonable, but whether a reasonable man would necessarily consider them unreasonable.” The reasonableness of the restriction has to be judged not in reference to the ground on which it can be imposed, but with reference to the fundamental right which is restricted.

Certain general considerations have been laid down in amplifying the tests of reasonableness. Thus in considering whether restrictions are reasonable it is relevant to consider whether the law imposing them is temporary or permanent. Again, when the State has to take swift decisions in emergent situations of apprehended danger, restrictions may be considered reasonable which would not be considered otherwise reasonable. And it is necessary to inquire whether the impugned law provides reasonable safeguards as, for example, by conferring a right of appeal or review, or a right to have the matter judicially determined. A legislature cannot restrict the freedoms beyond Art 19 (2) to (6). Before proceeding to the tests which determine the reasonability of the restrictions it is important to know the nature of the restrictions and the clauses giving it.

Restrictions given Art.19 (2) to (6)

(2)[[6]Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of [[7] the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.]

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of [7the sovereignty and integrity of India or] public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of [7 sovereignty and integrity of India or] public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(5) Nothing in [[8]sub-clauses (d) and (e)] of the said clause shall effect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of the right conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, [[9]nothing in the said sub-clause shall affect the operation of any existing law insofar as it relates to, or prevent the State from making any law relating to, -

(i) the professional or technical qualifications necessary for practicing any

profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.]

Three significant characteristics of clauses 19 (2) to (6) may be noted:

(1) The restrictions under them can be imposed only by or under the authority of a law: no restriction can be imposed by executive action alone without there being a law to back it up with.

(2) Each restriction must be reasonable.

(3) A restriction must be related to the purposes mentioned in clauses 19 (2) to (6).

There is thus a double test to adjudge the validity of a restriction.

(a) whether it is reasonable; and

(b) whether it is for a purpose mentioned in the clause under which the restriction is being imposed

Both these questions are to be determined by the Courts when a law is challenged as unconstitutional. The onus of proving to the satisfaction of the Court that the restriction is reasonable is on the state.

With the reservation that no absolute definition of the expression is possible, some of the principles which the Supreme Court has affirmed in ascertaining the reasonableness of restrictions can be taken into consideration:

1. Reasonableness demands proper balancing. - The phrase reasonable restrictions connotes that the limitation imposed upon a person in the enjoyment of a right should not be arbitrary or of an excessive nature. A legislation arbitrarily invading the right of a person cannot be regarded as reasonable. A restriction to be valid must have a direct and proximate nexus with the object which the legislation seeks to achieve and the restriction must not be in excess of that object i.e.; a balance between the freedoms guaranteed under Art. 19(1) (a) to (g) and the social control permitted by clauses (2) to (6) of Art. 19.It is the substance of the legislation and not its appearance or form which it to be taken into consideration while assessing its validity. This introduces the principle of ‘proportionality’. This means the court would consider whether the restriction imposed by legislation on the Fundamental Rights are disproportionate to the situation and are “not the least restrictive of the choices”. It is the direct, inevitable and the real, not the remote, effect of the legislation on the Fundamental right which is to be considered[10]. A restriction to be reasonable must also be consistent with Art. 14. of the Constitution. (Ex.hypothesi) since the restrictions cannot be arbitrary or excessive.

2. Reasonableness: both substantive and procedural.- To determine the reasonableness of the restriction, the Court should also consider the nature of the restriction and procedure prescribed by the statute for enforcing the restriction on the individual freedom. Not only substantive, but ‘procedural provisions of a statute also enter into the verdict of its reasonableness’. For example, if the law prescribed five years externment or ten years’ externment, the question whether such period of externment is reasonable, being the substantive part, is necessary for the consideration under clause (5) of Art. 19. Similarly, if the law provides the procedure under which the exercise of the right may be restricted, the same is also for the consideration of the Court so as if the determine if the exercise of the right has been reasonably restricted.[11] Also the absence of provisions for review makes the provisions unreasonable. Retrospectivity of a law may also be a relevant factor although retrospectivity of a law does not make it automatically unreasonable. A statute imposing a restriction with retrospective effect is not prima facie unreasonable: but retrospectivity is an element to be taken into consideration in determining whether the restriction is reasonable or not.[12] Discretion vested in an administrative authority is also a relevant factor. If its exercise is properly controlled and safeguarded, it is reasonable otherwise it is not.[13]

3. Reasonableness and objective concept. - The reasonability of a restriction has to be determined in an objective manner. It should be from the standpoint of the general public and not from the view of the persons upon whom the restrictions are imposed or upon abstract considerations. This concept of objectivity prompted the Supreme Court to warn the Judges from bringing their own personal predilections in ascertaining the reasonableness of the restrictions.

4. Reasonableness of restriction and not of law. - The Court is called upon to ascertain the reasonableness of the restriction and not of the law which permits the restriction. A law may be reasonable, but the restriction imposed by it on the exercise of freedom may not be reasonable.

5. Reasonableness includes total prohibition. - For a time, different views were expressed on the question whether the word “ restrictions” in Arts. 19(2) to (6) included “prohibition”, till the Sup.Ct. answered it in the affirmative in Narendra Kumar v. Union.[14] In that case, Das Gupta J. reviewed the earlier Sup.Ct. decisions with the following result: the observations of Kania C.J and Das J. in Gopalan that the ‘restriction’ did not mean “deprivation” were made in the context of a conflict between Art 19(1) (d) and Art 21 and could not have been intended for general application.

6. Reasonableness and Directive Principles of State Policy. - The Directive Principles of State Policy are also relevant in considering whether a restriction on a Fundamental Right is reasonable or not. A restriction which generally promotes a Directive Principle is regarded as reasonable. The Supreme Court once observed in Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir.[15] “Any action taken by the Government with the view to giving effect to any one or more of the Directive Principles would ordinarily,……, qualify for being regarded as reasonable”.

7. Reasonableness of Taxes. - The Constitution draws a distinction between tax and other laws. While the restrictions are imposed by other laws, tax laws impose taxes. Therefore prima facie, a tax is not a ground for challenging it as a restriction on one of the freedom in Art 19(1) however the Court has asked for a precaution in imposing taxes under Art. 19(1) (a).

Effect v. Subject Matter Test

What is the test to determine whether a law violates Art.19 (1) or any Fundamental right? A Legislation or a Government action may have a direct effect on a Fundamental Right although its subject matter may be different. The object of the law or executive action is irrelevant when it infringed a Fundamental right although its subject-matter may be different. No law or action will expressly say that it violates a right guaranteed. That is why the courts have to protect Fundamental Rights by considering the scope and provisions of the Act and its effect upon the Fundamental right. The ‘effect’ test has been applied by the Supreme Court in Maneka Gandhi[16] and in several other cases. For example, in the Bank Nationalization[17] case, the Supreme Court has said that it is the direct operation of the Act upon the rights which form the real test. However, earlier, in the Gopalan case[18], the Supreme Court has applied the test of subject matter in order to uphold the validity of the Preventive Detention Act against a challenge under Art. 19(1) (a). The effect test gives a greater protection to Fundamental rights.[19] It may, however be noted that under the Bennett Coleman doctrine, it is ‘direct’ effect on a Fundamental Right which is determinative. A difference of judicial opinion is possible on the question whether the ‘effect’ of a provision on a Fundamental Right is ‘direct’ or ‘indirect’.

Freedoms and Restrictions under Art. 19

Freedom of Speech: Articles 19(1) (a) and 19(2)

Freedom of speech is the bulwark of democratic government. It is considered to be the mother of all other liberties. Freedom of speech under Art 19(1) (a) includes the right to express one’s views and opinions at any issue through any medium, e.g., by words of mouth, writing, printing, picture, film, movie, etc. Thus, it includes the freedom of communication and the right to propagate or public opinion. But this right is subject to reasonable restrictions under Art 19(2). The phrase freedom of speech and expression has a broad connotation. The right to paint or sing or dance or to write poetry or literature is also covered by Art 19(1) (a) because the common basic characteristic of all these activities is freedom of speech and expression, right to travel abroad. It also includes the right to receive information, freedom of the press and within certain limits picketing or demonstration may also be regarded as a manifestation of one’s freedom of speech and expression. As regards Government servants, the judicial view appears to be that a strike by them can be validly prohibited. A Bihar Government prohibited its Governments servants from going on a strike in connection with any matters pertaining to their conditions of service. The rule was challenged. The provision was declared valid as it did not curtail freedom of speech and there was no Fundamental right to strike. Applying the tests of reasonability;

Viewing from an objective concept, the restriction on strike from the point of the general public rather than from the point of people on whom the restriction is imposed. The general public opinion being opposing strike as the reasons may be, the restriction on strike is therefore reasonable. Moreover when the people cease to work and go a strike, the general interests of the public involved in their work is also affected. The susceptibility and demands of a section of a society cannot be forced upon on the rest of the society whose sentiments are not the same as that of the strikers. From this point of view the restriction on strike is reasonable. On similar lines “Bandhs” organized by the political parties are also declared unconstitutional. It is not an exercise of the freedom of speech and expression, because during a “Bandh”, people are not expected to travel, not to carry any trade, no to attend to their work. It cuts down the rights of other individuals and there is also a destruction of public property. Such cannot be an unreasonable restriction as there is a clear destruction of public property leading to social disorder which is not in the interests of the public.

Restrictions under Article 19(2).

The object of all freedoms and restrictions is to reach social order or maintenance of public order. No freedom can be absolute or completely unrestricted. Accordingly, under Art. 19(2), the state may make a law imposing ‘reasonable restrictions ’on the exercise of the right to freedom of speech and expression ‘in the interests of’, the security of the State, friendly relations with the foreign States, public order, decency, morality, sovereignty and integrity of India, or ‘in relation to the Contempt of Court, defamation of incitement to an offence’. Restrictions in Art.19 (2) are all conceived in the national interests or in the interests of the society. The first set of grounds viz, sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order- are all grounds referable to national interest; whereas, the second set of grounds, viz, decency, morality, contempt of court, defamation and incitement to offence are all conceived in the interest of the society.

Security of State and Public order.

Art. 19(2) uses two concepts; ‘public order’ and ‘security of state’. The term ‘public order’ covers a small riot, an affray, breaches of peace, or acts disturbing public tranquility. But ‘public order’ and ‘public tranquility’ may not be synonymous. A man playing loud music in his home at night may disturb public tranquility, but not public order. Therefore such acts only the serenity of others may not fall within the term ‘public order’. There should be some element of disturbance of peace to bring a matter under ‘public order’. An aggravated form of peace which threatens the foundations of, or threatens to overthrow, the state will fall within the scope of the phrase ‘security of state’. The expression’ overthrowing the state’ is covered by the term ‘security of the state’. Therefore making a speech tending to overthrow the state can be made punishable and such a form of restriction is reasonable as it is for preserving social order.

Friendly Relations with foreign states.

The idea or the object behind imposing restrictions on the freedom of speech in the interests of friendly relations with a foreign country is that persistent and malicious propaganda against a foreign power having friendly relations with India may cause considerable embarrassment to India, and, accordingly, indulging in such propaganda may be prohibited. This restriction clearly strikes a balance between the purpose of the restriction and social order.

Incitement to an offence.

Freedom of speech does not confer a license to incite people to commit offence. Incitement to serious and aggravated offences, like murder may be punishable as involving the security of the state. Incitement to many other offences is also punishable as affecting public order. But there may be still other offences like bribery, forgery, cheating, etc., having no public order aspect. So the words ‘incitement to offence’. This restriction also prohibits incitement to all those offences which do no disrupt the public order was the debate in the Parliament and was challenged to be unreasonable as offence is a wide term and includes any punishable act under the Indian Penal Code. The Court held in State of Bihar V. Shailabal Devi,[20] that incitement to murder or other violent crimes would generally endanger the security of the state; hence a restriction against such incitement would be a valid law under Art. 19(2).

Decency or Morality

The ideas about decency or morality vary from society and time to time depending on the standards of morals in the contemporary society. Selling of obscene books, obscene things to young persons, committing an obscene act or singing an obscene song in the public place were the listed obscene acts under S 292 of IPC. To test the reasonability what we have to see is that whether a class, not an isolated case, into whose hands the book, article, or story falls suffer in their moral outlook or become depraved by reading it might have impure and lecherous thoughts aroused in their minds. The charge of obscenity must therefore be judged from this aspect. “Indecency is not confined to sexual indecency; indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting….”.

Administrative Discretion.

The general principle is that it is unreasonable to leave absolute and arbitrary discretion to an administrative officer to regulate the freedom of speech and expression. Such kind of restriction is clearly unreasonable, as it does not provide any provisions or further appeals. The discretion to be valid must be exercisable for purposes specified in Art. 19(2) and subject to legislative policy and procedural safeguards.

Clear and Present danger test in U.S. as applicable in India.

In U.S.A. freedom of speech was originally protected by the doctrine of clear and present danger propounded by Holmes J. in Schnek v. United States[21]. In that case the Supreme Court of America passed upon the military censorship provisions of the Espionage Act of 1917, which imposed certain limitations upon press and speech. The case involved an appeal from a conviction on a charge of circulating antidraft leaflets among members of the United States armed forces. The Espionage Act made it a felony to attempt to obstruct the enlistment and recruitment services of the United States. Appellant’s counsel contended that the Espionage Act violated the First Amendment guaranteeing freedom of speech. It was held that the freedom of speech could be abridged if the Government could show that there was a clear and present danger to the State arising from the abuses of that freedom.

Clear and Probable danger test: The test of clear and present danger was abandoned in Dennis v. United States[22].In that case the validity of the Alien Registration Act, 1940 was in question. The Statute made it unlawful for any person to advocate, advise or teach the duty, necessity, desirability or propriety of overthrowing or destroying the Government in the United States by force or violence and penalized even a conspiracy to commit such forbidden acts. The petitioners, leading members of the Communist Party, were charged with a conspiracy to form a party for teaching and advocating the overthrow of Government by force. They contended that the statute could not stand the constitutional test of “clear and present danger” and that their conviction by the Court below was therefore, liable to be set aside.

The test of clear and present danger was discarded and the test of clear and probable danger has been substituted. Judged by the new test it was held that the impugned statute was constitutional, though it penalized even conspiring to advocate the future overthrow of the State and imminent danger is to be apprehended thereby. The arm of the law has been lengthened thereby.

In India: a comparison of the protection afforded to freedom of speech under the Indian and American Constitutions reveals a close identity. Art. 19 (2) as originally drafted seems to be based on the “clear and present danger” test of the United States. After the amendment it has come into line with the “clear and probable danger” test applied in the United States.

Freedom of Assembly. Article 19(b) and (3)

Art.19 (1) (b) guarantees to all citizens of India the right of assembly which includes the right to hold public meetings and to take out processions. The Constitution secures this right to the citizen subject to two limitations: (i) the assembly must be unarmed and (ii) it must be peaceful i.e., it must not be tumultuous or riotous in character. Further, under clause (3) the state may impose reasonable restrictions as may be deemed necessary in the interests of public order or the sovereignty and integrity of India. However it is reasonable to infer that the words ‘public order’ in clause (3) is used in the same restricted sense as in clause (2), namely, in the sense, of public peace, safety and tranquility. Therefore any assembly of five or more persons with the object of committing any act mentioned in s 141 of IPC is an unlawful assembly and a restriction on such an assembly is reasonable, keeping in view the public safety, peace and tranquility. The restriction on the holding meetings in Government premises like Railways is also valid or reasonable as the right of assembly cannot be exercised on the property of somebody as they are entitled to enjoy their property like any other private individual. A difficult question that arises here is that when a meeting is itself lawful, and conducted without any intention to commit a breach of the peace, nevertheless, such a meeting may in times of political or sectarian excitement, provoke public disorders. Then in such a situation can the citizen be deprived of his right because its very exercise in a manner perfectly lawful will excite others to a breach of peace. In India, holding of meetings otherwise lawful, may in emergency be prevented, if in the position of an appropriate authority such an action is deemed necessary. If a lawful meeting with a lawful object shows a clear sign of apprehending danger then the police may take such steps that are necessary to prevent a breach of the peace.

Scope of S.144 Criminal Procedure Code: the District Magistrate under S 144 of CrPC passed an order prohibiting the assembly of five or persons in certain areas of Nagpur specified in that order. There were two rival unions of textile workers in Napur and they were holding meetings and conducting processions in such a way as to endanger public order. This necessitated the order of the District Magistrate under S.144 of CrPC. When the order was infringed a prosecution was launched. It was contended by the accused that S.144 of CrPC was unconstitutional.

The power conferred by S.144 is exercisable not only where present danger exists but also when there is an apprehension of danger. It was contended on the authority of Schenck v. United States 249 U.S. 47 that previous restraints on a fundamental right are permissible only if there be a clear and present danger. Madholkar, J., rejected this contention observing that “Whatever may be the position in the United States it seems to us clear that anticipatory action of the kind permissible under S.144 is not impermissible under Cls. (2) and (3) of Art.19”. For maintaining public order anticipatory action may well be taken and that cannot by itself be regarded as an unreasonable restriction upon the fundamental right. It was held that the right of the citizen to take out the processions or hold public meetings flows from the right in Art 19(1) (b) to assemble peaceably and the right to move anywhere in India. These rights may be reasonably restricted in the interests of public order. The objects for securing of which an order may be passed under S.144 are to “prevent obstruction, annoyance, injury” etc. the prevention of these actions is necessary in the interests of “public order”. So S.144 of CrPC was held to be within the saving provisions of clause (3) of Art. 19.

Freedom of Association: Art.19 (1) (c) and (4)

This Article declares that all citizens shall have the freedom to form associations or unions. Obviously, the right to form an association includes the right to continue it.[23] It also includes the negative right of not joining associations or unions but it is yet debatable whether this negative right can also be regarded as a fundamental right. A High Court has held that the right to form an association necessarily implies that a person is free t refuse to be a member of an association if he desires, and, therefore, a rule making it compulsory for every teacher to become a member of a government sponsored association at the risk of suffering disciplinary action in case a teacher absents from two consecutive meetings infringes Art. 19 (c).

Power to declare Association unlawful: In State of Madras v. V.G.Row[24] the Government of Madras declared a society known as People’s Education society as an unlawful association. Under S 15(2)(b) of the Criminal Law Amendment Act the subjective satisfaction of the government that an association was working for unlawful objects was final. The decision of the government could be reviewed by an Advisory Board but was otherwise final. The Supreme Court held that these provisions were unreasonable as they excluded judicial scrutiny. Any law which restricts a right of an individual and gives no scope for appeal is unreasonable. Therefore the order banning the association was struck down.

Withdrawing recognition: Rule 4-B of the Bihar Government servants conduct rules, 1956 provides that no government servant shall join or continue to be a member of any Service Association which is not, within a period of 6 months from its formation, recognized by the government or in respect of which recognition has been refused or withdrawn by the government. The withdrawal of recognition has nothing to do with Public Peace, safety and tranquility. It need not be ‘in the interests of the public order’. In other words, the government was given an arbitrary power to recognize or derecognise a service Association. This was held to be unconstitutional.

However, a rule compelling a member of the police force to withdraw his membership of an association as soon as recognition accorded to it is withdrawn, or if, no recognition is granted to it, would be protected under Art.33 of the Police forces( Restriction of Rights) Act, 1966. The Act has been enacted under Art.33 but is also valid under Art, 19(4). This is regarded as a valid restriction in the interests of discipline and public order.

This right gives rise to some questions; does this right to form associations also involve a guarantee that an association shall have the concomitant right to achieve its objectives for which it has been formed? It can be argued that obviously the association is formed to achieve its purposes, and if these purposes are not guaranteed then the right to form association becomes an idle right. The Supreme Court has however ruled that the right guaranteed by Art. 19(1) (c) does not carry with it a concomitant right that unions formed for protecting the interests of labour shall achieve their object such that any interference to such achievement by any law would be unconstitutional unless it could be justified under Art. 19(1)(c ) as being in the interests of public order and morality. The right under Art. 19(1)(c ) extends only to the formation of an association or union and insofar as the activities of the association or union are concerned, or as regards the steps which union might take to achieve its object, they are subject to such laws as may be framed and such laws cannot be tested under Art.19 (4). The Court has held that even a very liberal interpretation of Art. 19(1)(c) cannot mean that the trade unions have a guaranteed right to strike. The right to strike may be controlled by appropriate industrial legislation.

Freedom of Movement, Residence and Property - Arts. 19(1)(d),19(1)(e), 19(f) and 19(5)

This right guarantees to every citizen the right to move ‘freely’ throughout the territory of India. The adverb ‘freely’ connotes that the freedom to move is without a restriction and is absolute, i.e., to move wherever one likes, whenever one likes, and however one likes, subject to valid law enacted under clause (5). Laws such as wearing of helmet while riding a two-wheeler motor vehicle, which facilitate movement rather than restrict it, do not violate Art. 19(1)(d). Externment or internment orders i.e., requiring a person to leave a certain area or not to enter a certain area would, no doubt, curtail freedom guaranteed in clause (1)(d). Hence, a law authorizing externment or internment to be valid must fall within the tests of reasonability, namely restrictions must be in the interests of public or for the protection of the interest of the Scheduled tribes. An externment order was once challenged on the ground that it was not a reasoned order. The Supreme Court rejected the challenge pointing out that there is a certain brand of lawless elements in society whom it is impossible to bring to book by established methods of judicial trial because the legal evidence essential for conviction is impossible to obtain. For fear of reprisals, witnesses are unwilling to depose in public against such characters. So, in the externment order against such a person, and in the disposal of appeal against that order, the concerned authority is not bound to give reasons or write a reasoned order. The externee is only entitled to be informed of the general nature of the material allegations.[25] Since it falls within the interests of general public such a restriction on movement reasonable. However both the substantive and procedural part of the law has to be reasonable before the restrictions can be accepted as reasonable. Further, there must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous before terming him to be a ‘dangerous character’ fraught with violence. Likewise, there must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in the place or any part thereof is hazardous to its community and its safety….Natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of Arts. 14,19 and 21 of the Constitution. Mere police apprehension is not enough. Some ground or the other is not adequate. Therefore on the above grounds externment or internment can be regarded as a reasonable restriction. It has been stated earlier that the restrictions must fall within the interests of public and in the protection of Scheduled Tribes. Under these conditions a law can restrict the movement of an individual. An instance of a restriction on free movement imposed in the interests of the general public, on the existing laws of the Official Secrets Act, 1923, a person is denied access to “prohibited places”. A person who approaches, inspects, passes over or is the vicinity of, enters any prohibited place commits an offence under the Act. These restrictions are necessary to preserve the security of the State .The interests of the general public embrace public security, public order and public morality. Similarly, restrictions may be imposed on movement and traveling to prevent or control epidemics, etc.

The second ground of restriction is to protect “the interests of scheduled tribes”. It was considered necessary to empower the State to impose restrictions upon the entry of outsiders to the areas inhabited by these tribes. An uncontrolled mixing of the tribes with the people of other sections is likely to produce undesirable effects upon the unsophisticated tribal people.

Freedom of Residence

The purpose of this clause is also to remove internal barriers within the territory of India so as to enable every citizen to travel freely and settle down in any part of a State or Union Territory. This freedom is too, subject to restrictions in the interests of public or for the protection of the interests of Scheduled Tribes. Therefore the test for this freedom is if a restriction is in securing the above interests, it is reasonable. Thus, prostitutes may be restricted to carry on their trade within a specified area and accordingly may be required to reside in or remove from particular area. Similarly restrictions on habitual offenders is also a reasonable restriction. The scope of this freedom was considered by the Supreme Court in Ebrahim Vazir of State of Bombay.[26]Influx from Pakistan (Control) Act XXIII of 1949:

S.7 of the said Act was intended to control admission into and regulate movements in India of people from Pakistan. An Indian citizen returning to India from Pakistan is requested to produce a permit or a passport, as the case may be, before being allowed to enter the country. If he enters the country without a permit, or a passport, action may be taken under S.7 for his expulsion. An order passed under S.7 was challenged on the ground that the Fundamental Right of the citizen under Art. 19(1), clause (e) “to reside and settle in any part of the territory of India” is hereby infringed. This contention was upheld and S.7 was pronounced to be void. The Supreme Court observed in the above mentioned case: “the Act purports to control admission into and regulate the movement in India of persons entering from Pakistan, but S.7 oversteps the limits of control and regulation when it provides for removal of a citizen from his own country.

Freedom of Property

Article 19(1)(f) of the Constitution guarantees the fundamental right of the citizens to acquire, hold and dispose of property. However, this sub-clause (f) of the clause (1) of Art.19 has been deleted by the Forty-Fourth Amendment to the Constitution with the effect from June 20, 1979.

Freedom of Trade and Occupation. Art 19(1)(g) and 19(6)

Art.19 (1)(g) of the Constitution guarantees that all citizens have the right to practice any profession or to carry on any occupation or trade or business. The freedom is not uncontrolled, for clause (6) of the Art. imposes reasonable restrictions on this right on the following grounds.

Reasonable restrictions in the interests of the general public:

Under this the restriction should firstly be in the interests of the public and secondly, the restrictions should be a ‘reasonable restriction’.

The expression ‘in the interests of general public’, the Court has held, “is of wide import comprehending public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the Constitution. A law providing for basic amenities; for the dignity of human labour… is a social welfare measure in the interest of general public.”[27]

Next, in order to determine the reasonableness of the restriction, regard must be had to the nature of the business and conditions prevailing in that trade. Thus trades in noxious or dangerous goods or trafficking in women may be prohibited altogether and there is nothing unconstitutional in the laws doing so. Bu trades which are not illegal or immoral or injurious to the health and welfare of the public, though may not be altogether suppressed, can be regulated and the evils mitigated in the interests of the general public.

There are some activities, which do not come within the ambit of this freedom such as reading in adulterated food or gambling. On the other hand, restrictions which are not permissible with other trades are lawful and reasonable so far as the trade in liquor is concerned, and that is why even the prohibition of the trade in liquor is not only permissible but is also reasonable. The reasons are again, public morality, public interests and harmful and dangerous character of liquor.

The Supreme Court decisions illustrating the reasonable restrictions in the interests of the general public may be noted here:

(a) In emergency situations, it is necessary in the interests of the public to impose control on the production, supply and distribution of commodities essential to the life of the community. Likewise, the fixation of maximum prices of commodities mentioned in the Essential Commodities Act, 1955 would not be an unreasonable restriction on the freedom of trade, provided that the controlling authority in determining the prices acts on some formula, which is not unreasonable.

(b) The Minimum Wages Act, 1948, empowers the State Government to fix minimum rates of wages in regard to workers of each of the industries scheduled therein. The petitioner claimed the Act invalid, being an unreasonable restriction on the freedom to carry on business guaranteed by Art. 19(1)(g) inasmuch as the Act did not define what is minimum wage and made no provision for taking into consideration capacity of the employer to pay. The Court held[28] “ In an underdeveloped country which faces the problem of unemployment on a very large scale, it is not unlikely that labour may offer to work even on starvation wages. The policy of the Act is to prevent the employment of such sweated labour in the interests of the general public and so, in prescribing the minimum wage rate the capacity of the employer need not be considered. What is being prescribed are minimum wage rates which a welfare State assumes every employer must pay before he employs labour”. The reasonability is therefore verified as the object and the social control measures are balanced.

(c) Section 7 of the Punjab Trade Employments Act, 1949, which directs that the shops and establishments to which it applies shall remain closed one day in a week, is not invalid because the object of the law is to ensure the health and efficiency of the worker who forms an essential part of the community and in whose welfare, therefore, the community is vitally interested. For the same reasons, laws regulating the hours of employment of employees and opening and closing hours of establishments cannot be said to constitute an unreasonable restriction on the right to carry on trade or business.Increase in the number of national festival holidays has also been upheld as reasonable restriction.

Unreasonable Restrictions

Any law which does not strike a proper balance between the freedoms guaranteed and the social control permitted by the clauses in Art. 19 is an unreasonable restriction.

In Chintaman Rao v. State of M.P[29], the Central Provinces and the Berar Regulation of Manufacture of Beedies (Agricultural Purpose) Act of 1948 was questioned as unconstitutional. The Act provided that in the argicultural season no one should engage in the manufacture of Beedies. The object of the legislation was to divert the labour engaged in the manufacture of Beedies to the agricultural sector where there was a dearth of labour. It was held by the Supreme Court that the legislation in question was not a reasonable restriction upon occupational freedom. It was observed that even the persons who could not engage in the hard manual labour necessary in agriculture such as children, the old and the infirm, were also prevented in the legislation from making their livelihood in the manufacture of Beedies. No alternative provision was contemplated for providing them with work during the period of their enforced idleness.

The legislation not only compels those engaged in agricultural work from taking other avocations but also prohibits persons in no connection with agriculture to undertake agricultural operations. The legislature has thus failed to take into account the probable repercussions of the restriction upon the persons affected by it. The restriction was, therefore, held to be unreasonable. The legislation was accordingly struck down as unconstitutional.

A prohibition on the fundamental right to carry on occupation, trade or business is not regarded as reasonable if is it imposed not in the interests of the general public but keeping in view the susceptibilities and sentiments of a section of a community.

In Mohd.Faruk v. State of M.P.[30], the M.P Municipal Corporation Act, 1956, made it mandatory upon the Corporation to make adequate provisions for the construction, maintenance and regulation of a slaughter house. Section 432 authorizes the Government to modify or repeal any bye-laws made by the Corporation. Therefore acting under Section 432, the Government by a notification cancelled the bye-laws made by the Jabalpur Municipality relating to bulls and bullocks which prohibited the slaughter of such animals. It was held by the Supreme Court that such notification infringed the fundamental right of the petitioner guaranteed under Art. 19(1)(g) as the power to cancel the bye-laws cannot be exercised in an arbitrary manner. It was observed that the sentiments of a section of a community may be hurt by permitting the slaughter of bulls and bullocks. However, a prohibition imposed on the exercise of a fundamental right to carry on an occupation, trade or business will not be regarded as reasonable, if it is imposed not in the interest of general public but merely to respect the susceptibilities and sentiments of a section of the people whose way of life, belief or thought is not the same as that of the claimant.

A law which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business cannot be held reasonable.

This was held in Dwaraka Pd. V. State of U.P.[31] “the licensing authority may grant, refuse to grant, renew or refuse to renew a license and may sustain, cancel, revoke or modify any license or any terms thereof granted by him under the Order for reasons to be recorded: provided that every power which is under the Order exercisable by the State Coal Controller or any person authorized by him on his behalf.” Section 4(3) of the U.P Coal Control Order, 1953, was declared void because it gave unrestrained authority to a single individual to grant, withhold or cancel licenses in any way he chooses, and there was nothing in the Order which could ensure a proper execution of the power or operate as a check on the injustice that might result from the improper execution of the same.

Therefore, where power is conferred on the executive to regulate and control the exercise of the freedom conferred by Article 19(1)(g), it is necessary that the law which does so should either lay down the circumstances or grounds on which the power may be exercised. An Act which vests discretionary powers on an executive should also give sufficient guidance in the matter of the exercise of discretionary powers in order to sustain reasonableness of the restriction. However, it is not necessary that such guidance or policy should be expressly and specifically stated. It is enough if such guidance can be found on a fair reading of the Act and other concerning circumstances.

In Excel Wear v. Union of India[32]. This case was about the right to close down a business- whether a fundamental right under Art.19(1)(g).

Excel Wear a registered partnership was engaged in the manufacture of garments. On account of labour trouble and continuing losses they wanted to close down their factory. Under S 25 introduced by an amendment of 1976 in the Industrial Disputes Act 1947 a factory could be closed down only with the prior permission of the State Government. The State Government refused to give permission. Excel Wear challenged the validity of S 25-o by means of a writ. The questions of law raised were

(1) Have the petitioners a fundamental right to close down the business as an integral part

(2) of their right under Art. 19(1)(g) to carry on any business?

(3) If so, is this right unreasonably restricted by S 25?

Justice Untawalia found that the right to carry any business carries with it by implication a right to close down that business. This is anagolous to the freedom no to speak which is implied in the freedom of expression guaranteed by Art. 19(1)(a). There may be many circumstances in which it may not be possible for a person to carry on his business. Such circumstances exist in this case for the violent attitude of labour and continued losses, have made it impossible for the petitioner to carry on that business. S. 25-o empowers the Government to compel the proprietor to carry on his business on pain of penalties even in such circumstances. So, it is an unreasonable restriction and so void.

Conclusion

The whole purpose of the project was in determining suitable tests to determine the reasonableness of the restrictions imposed on the citizens in Art. 19(1). In the above-explained chapters it was many a times mentioned that the base for ascertaining the reasonableness of a restriction was that it should be in the interests of the general public, which is probably the best test. What then is in the interests of the general public would be the next question.

Well, any restriction which to maintain public order, in the sense, public peace, safety, tranquility, public health, morals are in the interests of the public. The restriction on the legislations should lead to these purposes. If the result does not lead to the above-mentioned folds then the restriction is not reasonable. The restrictions that put the rights guaranteed, within the social controls permitted under clauses (2) to (6) are hence reasonable. Every legislation is with a set objective.

In achieving those objects the legislations should not arbitrarily invade upon the rights of a citizen. The restriction should look at the set objects that the legislation seeks to achieve and it should establish a close link with such object of the legislation. If the close or proximate effect of the law is that it abridges the fundamental rights of the citizens and if the restriction prevents such abridgment, then the restriction is reasonable. On the other hand, if the restriction goes too far in linking itself with the object of the legislation then such a restriction is unreasonable. Another important test is, if a said provision or a right shows clear signs of danger or even shows an apprehended danger then a restriction on such a law is reasonable.

[1] Ins. By Constitution ( Forty- fourth Amendment) Act, 1978, S.2 (w.e.f. 20-6-1979).

[2] Clause (f) on “to acquire, hold and dispose property; and”omitted by Constitution (Forty- fourth Amendment) Act, 1978, S.2 (w.e.f. 20-6-1979).

[3] Chintaman Rao v. State of M.P., AIR 1951 SC 118.

[4] (1952) S.C.R. 597, 607, (’52) A.SC. 196.

[6] Subs. retrospectively by the Constitution (First Amendment) Act, 1951, S.3, for the original cl. (2) which read: “Nothing in sub-clause (a) of cl (1) shall affect the operation of any existing law in so far as it relates to or prevents the State from making any law relating to libel, slander, defamation, Contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State”.

[7] Ins. By the Constitution (Sixteenth Amendment) Act, 1963, S.2.

[8] Subs. By the Constitution (First Amendment) Act, 1978, S.2 for “sub-clauses (d), (e) and (f)”(w.e.f 20-6-1979).

[9] Subs. By the Constitution (First Amendment) Act, 1951, S.3, for the original words. “Nothing in the said sub-clause shall affect the operation of any existing law insofar as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business.”

[10] Express Newspapers v. Union of India AIR 1958, SC 578

[11] Golak Nath v. State of Punjab AIR 1967 SC 1643.

[12] Narendra Kumar v. Union of India, AIR 1960 SC 430: (1960)2 SCR 375; see infra.

[13] Municipal Corp. v. Jan Mohd. Usmanbhai.(1986) 2SCC 20.

[19] Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106: (1971) 2 SCC 788.

[23] State of Madras v. V.G. Rao, AIR 1951 Mad 147.

[25] State of Maharashtra v. Saleem Hasan Khan, AIR 1989 SC 1304: (2989) 2 SCC 316.

[27] Minicipal Corp. v. Jan Mohd. Usmanbhai, (1986) 3 SCC 20. 31.

[28] U.Unichoyi V. State of Kerala AIR 1962, SC 12, 17.