SlideShare a Scribd company logo

RIGHT TO FREEDOM UNDER ARTICLE 19 OF THE CONSTITUTION OF INDIA AND NEW CHALLENGES

This document provides an overview of fundamental rights in the Indian constitution. It discusses the origins and evolution of fundamental rights from concepts like natural law and documents like the Magna Carta. It describes the key fundamental rights protected in the Indian constitution regarding equality, freedom, anti-exploitation, religion, culture and education, and constitutional remedies. It also analyzes the salient features and provisions of each fundamental right. Finally, it discusses how the framers of the Indian constitution were influenced by other documents and drew from various sources and ideological influences in developing the fundamental rights framework for independent India.

1 of 31
Download to read offline
1. INTRODUCTION
The origin of Fundamental Rights, which are also known as Natural Rights Human Rights,
Basic Rights, or Inalienable Rights, is based on the theory of Natural Law. The idea that
people have certain rights, which cannot be taken away, began with the theory of Natural
Law. This theory states that natural order exists in the universe because all things are created
by Nature or God. Everything has its own qualities and is subject to the rules of Nature to
achieve its full potential.
The fundamental rights were included in the constitution because they were considered
essential for the development of the personality of every individual and to preserve human
dignity. The Fundamental Rights are enshrined in Part III of the Constitution from Articles
12 to 35. The framers of the Constitution derived the inspiration for Fundamental Rights
from the Constitution of the USA (i.e., the Bill of Rights).
Part III of the Constitution is rightly described as the Magna Carta of India. It contains a
very long and comprehensive list of ‘justiciable’ Fundamental Rights. The Fundamental
Rights in our Constitution are more elaborate than those found in the Constitution of any
other country in the world, including the USA. All people, irrespective of race, religion,
caste, or sex, have been given the right to move the Supreme Court and the High Courts for
the enforcement of their fundamental rights. The Fundamental Rights are named so because
they are guaranteed and protected by the Constitution, which is the fundamental law of the
land. They are ‘fundamental’ also in the sense that they are essential for the all-around
development (material, intellectual, moral, and spiritual) of the individuals.
Originally, the Constitution provided for seven Fundamental Rights. These are;
1. Right to equality (Articles 14–18)
2. Right to freedom (Articles 19–22)
3. Right against exploitation (Articles 23–24)
4. Right to freedom of religion (Articles 25–28)
5. Cultural and educational rights (Articles 29–30)
6. Right to property (Article 31)
7. Right to constitutional remedies (Article 32).
However, the right to property was deleted from the list of Fundamental Rights by the 44th
Amendment Act, of 1978. It is made a legal right under Article 300-A in Part XII of the
Constitution. So, at present, there are only six Fundamental Rights.
Basic Rights stand for the fundamental ideals that the Indian people uphold. They are
designed to safeguard each person’s dignity and provide environments that allow each
person to express their unique personality to the maximum. The State is required under the
Fundamental Rights to refrain from interfering with individual liberty in all of its forms.
So, the Constitution’s enumeration of fundamental rights acts as a reminder to the
government in charge to uphold such rights and a boundary on the scope of state action.
The Charter of Human Rights adopted by the United Nations Organization has given the
idea of Basic Rights a more tangible and universal texture.1
Another purpose behind the inclusion of the chapter on Fundamental Rights in the
Constitution is to establish “a government of law and not of man”, that is, a governmental
system where the ruler cannot oppress the ruled by encroaching on citizens’ basic rights
and liberties. The Basic Rights are given sanctity by being included in the Constitution;
thus, the authorities dare not so readily violate them. A parliamentary style of governance
allows for easy passage of bills since the people who form the government are also the
leaders of the majority party in the legislature. Hence, in the absence of a constitutional
provision limiting the power of the state by stating fundamental rights, the risk of an
infringement on a citizen’s right to privacy cannot be completely eliminated. As a
consequence, it has become more common for contemporary democratic nations’
constitutions to include provisions for fundamental rights.2
The “right to freedom” category includes Article 21, which states that “no individual shall
be deprived of his life or personal liberty unless according to procedure established by law.”
But what is “life” or “personal liberty” is not defined by the Constitution anywhere.
1
Shivangi Singh, Evolution and Development of Fundamental Rights (Unpublished Thesis, Amity University)
2
Dr. Durga Das Basu, Introduction to the Constitution of India 82 (LexisNexis, Gurgaon, 21st edn., 2013).
1.1.SALIENT FEATURES OF FUNDAMENTAL RIGHTS
The following characteristics define the Basic Rights protected by the Constitution:
1) Some of them are solely accessible to Indian people, while others are open to
everyone, including residents of other countries and legal entities like
corporations and enterprises.
2) They are qualified rather than absolute. They are subject to reasonable
constraints from the state. The courts, however, will determine whether or not
these limits are reasonable. As a result, they find a balance between social
control and individual liberty, or between the rights of the individual and those
of society as a whole.
3) With a few exceptions, such as those against the State’s action and the action
of private persons, the majority of them are accessible against the State’s
arbitrary action. There are no constitutional remedies available when private
persons infringe the rights that are protected exclusively against State action,
only conventional legal remedies.
4) Although some of them are beneficial and provide people certain benefits,
others are bad and restrict the state’s ability to act.
5) They are justiciable, which enables people to ask the courts to enforce them if
and when they are broken.
6) The Supreme Court protects and guarantees them. As a result, the party that
feels wronged may proceed straight to the Supreme Court rather than having to
file an appeal against the high courts’ decision.
7) They are neither eternal nor sacred. The only way for the Parliament to limit or
abolish them is via a constitutional amendment act, not through a regular act.
Moreover, this may be done without altering the Constitution’s “basic
structure.”
8) They can be suspended during the operation of a National Emergency except
the rights guaranteed by Articles 20 and 21. Further, the six rights guaranteed
by Article 19 can be suspended only when an emergency is declared on the
grounds of war or external aggression (i.e., external emergency) and not on the
ground of armed rebellion (i.e., internal emergency)
9) Articles 31A (saving laws relating to the purchase of estates, etc.), 31B
(validating certain acts and regulations contained in the 9th Schedule), and 31C
(saving laws relating to the application of certain directive principles) place
restrictions on their application.
10) The Parliament may limit or revoke their applicability to members of the armed
forces, paramilitary forces, police, intelligence agencies, and similar services
(Article 33).
11) Its use may be limited while martial law is in effect everywhere. To restore
order, martial law is “military rule” implemented under unusual circumstances
(Article 34). It is distinct from declaring a state of emergency.
12) Although some of them may be enforced based on a law created to give them
effect, the majority of them are directly enforceable (self-executory). In order
to ensure consistency throughout the nation, only the Parliament and not state
legislatures may pass such legislation (Article 35).
1.2. FUNDAMENTAL RIGHTS UNDER INDIAN CONSTITUTION
FUNDAMENTAL
RIGHTS
ARTICLES PROVISIONS
RIGHT TO
EQUALITY
14 Equality Before Law
15 Prohibition of Discrimination
16 Equality of Opportunity in Public Employment
17 Abolition of untouchability
18 Abolition of Titles
RIGHT TO
FREEDOM
19
Protection of 6 Rights
i. The right to free speech and expression;
ii. The right to peaceful assembly without the
use of force;
iii. The right to form associations, unions, or
cooperative societies.
iv. The freedom to roam around without
restriction on Indian soil.
v. The right to practice any profession and the
freedom to engage in any occupation, trade,
or business in any location within Indian
territory.
20 Protection in Respect of Conviction for Offences
21 Protection of Life and Personal Liberty
21-A Right to Education
22 Protection Against Arrest and Detention
RIGHT AGAINST
EXPLOITATION
23
Prohibition of Human Trafficking and Forced
Labor
24 Prohibition of Child Labor
RIGHT TO
FREEDOM OF
RELIGION
25
Freedom of Conscience, Profession, Practice, and
Propagation
26 Freedom to Manage Religious Affairs
27
Freedom from Taxation for the Promotion of a
Religion
28 Freedom from Attending Religious Instruction
EDUCATIONAL
AND CULTURAL
RIGHTS
29 Protection of Interests of Minorities
30
Right of Minorities to Establish and Administer
Educational Institutions
RIGHT TO
CONSTITUTIONAL
REMEDIES
32
Right to use five writs as remedies for enforcing
one’s fundamental rights:
i. Habeas Corpus: Used to order the release
of someone wrongfully incarcerated.
ii. To order a public authority to carry out its
duties, use a Mandamus.
iii. Quo Warranto: To order someone to leave
a position they are incorrectly supposed to
be in.
iv. Prohibition: Preventing a lower court from
continuing with a matter.
v. Certiorari is the higher court’s ability to
take an ongoing case from a lower court
and put it before itself.
33
Provides the Parliament with the authority to limit
or abolish the fundamental rights of “Members of
the Armed Forces, paramilitary forces, police
forces, intelligence agencies, and analogous
forces”
34
Provides for the restrictions on fundamental rights
while martial law (military rule) is in force
35
Empowers the Parliament to make laws on
Fundamental Rights
Fundamental rights are essential for everyone’s moral and intellectual growth. The
growth of a person requires the protection of fundamental rights. Several important
basic rights have been included in the Indian constitution in the post-independence
period. Each individual in India is given distinct legal rights under the Constitution. A
brief analysis on the six fundamental rights is provided as under;
1.2.1. Right to Equality (Art. 14 to 18)
The equal legal rights of all people are fully protected by the right to equality.
Discrimination based on caste, creed, religion, place of birth, race, or sexual
orientation is categorically prohibited under the right to equality. It guarantees
that everyone has an equal opportunity to work for the government and forbids
it from treating anybody unfairly at work because of their religion, caste, race,
gender, ancestry, place of birth, place of residence, or any other of these
considerations.
Articles 14 through 18 define equality before the law. The Constitution
guarantees equality before the law and ensures that everyone is treated fairly.
Citizens cannot be treated differently by the state because of their caste, race,
religion, gender, or place of birth. To attain equality, this is necessary.

Recommended

legislative and executive govt..pptx
legislative and executive govt..pptxlegislative and executive govt..pptx
legislative and executive govt..pptxHabibaMustarin1
 
The indian constitution
The indian constitutionThe indian constitution
The indian constitutiongopal krishna
 
The Krishna's PPT on Indian Constitution
The Krishna's PPT on Indian ConstitutionThe Krishna's PPT on Indian Constitution
The Krishna's PPT on Indian ConstitutionKrishna Gupta
 
Fundamental Rights @ (mnusratgulbarga@gmail.com)
Fundamental Rights @ (mnusratgulbarga@gmail.com)Fundamental Rights @ (mnusratgulbarga@gmail.com)
Fundamental Rights @ (mnusratgulbarga@gmail.com)nusratg1
 
Indian constitution and social legislation fundamental rights
Indian constitution and social legislation   fundamental rightsIndian constitution and social legislation   fundamental rights
Indian constitution and social legislation fundamental rightsBimal Antony
 
Fundamental rights in India - Wikipedia.pdf
Fundamental rights in India - Wikipedia.pdfFundamental rights in India - Wikipedia.pdf
Fundamental rights in India - Wikipedia.pdfmahendra2022110109
 

More Related Content

Similar to RIGHT TO FREEDOM UNDER ARTICLE 19 OF THE CONSTITUTION OF INDIA AND NEW CHALLENGES

The Frenzy Effectiveness of International Human Rights Treaties In Bangladesh.
The Frenzy Effectiveness of International Human Rights Treaties In Bangladesh.The Frenzy Effectiveness of International Human Rights Treaties In Bangladesh.
The Frenzy Effectiveness of International Human Rights Treaties In Bangladesh.International Islamic University Malaysia
 
The Constitution And Its Effects On The United States
The Constitution And Its Effects On The United StatesThe Constitution And Its Effects On The United States
The Constitution And Its Effects On The United StatesMichelle Wilson
 
Indian Constititution business law notes
Indian Constititution business law notes Indian Constititution business law notes
Indian Constititution business law notes Akhilesh Krishnan
 
Our fundamental rights.pptx
Our fundamental rights.pptxOur fundamental rights.pptx
Our fundamental rights.pptxShristysinha7
 
Fundamental rights of indian constitution
Fundamental rights of indian constitutionFundamental rights of indian constitution
Fundamental rights of indian constitutionAryan Singh
 
FUNDAMENTAL RIGHTS, WRITS AND FUNDAMENTAL DUTIES.pptx
FUNDAMENTAL RIGHTS, WRITS AND FUNDAMENTAL DUTIES.pptxFUNDAMENTAL RIGHTS, WRITS AND FUNDAMENTAL DUTIES.pptx
FUNDAMENTAL RIGHTS, WRITS AND FUNDAMENTAL DUTIES.pptxMeghaGeorge7
 
Coi 1st and 2nd unit
Coi 1st and 2nd unitCoi 1st and 2nd unit
Coi 1st and 2nd unitraj207209
 
Essay On The Constitution Of India
Essay On The Constitution Of IndiaEssay On The Constitution Of India
Essay On The Constitution Of IndiaJeanne Hall
 
FUNDAMENTAL RIGHTS.pptx
FUNDAMENTAL RIGHTS.pptxFUNDAMENTAL RIGHTS.pptx
FUNDAMENTAL RIGHTS.pptxJerslin Muller
 
Fundamental Rights The Indian Nature
Fundamental Rights The Indian NatureFundamental Rights The Indian Nature
Fundamental Rights The Indian NatureYogeshIJTSRD
 
Filipino Citizens and Their Rights
Filipino Citizens and Their RightsFilipino Citizens and Their Rights
Filipino Citizens and Their RightsMT Dayang
 
Human rights and fundamental rights
Human rights and fundamental rightsHuman rights and fundamental rights
Human rights and fundamental rightsNiteshRajMurarikar
 
Bill Of Rights Essay
Bill Of Rights EssayBill Of Rights Essay
Bill Of Rights EssayBeth Hines
 
MCN202-M2-Ktunotes.in_.pptx
MCN202-M2-Ktunotes.in_.pptxMCN202-M2-Ktunotes.in_.pptx
MCN202-M2-Ktunotes.in_.pptxJessepinkman64
 

Similar to RIGHT TO FREEDOM UNDER ARTICLE 19 OF THE CONSTITUTION OF INDIA AND NEW CHALLENGES (20)

The Frenzy Effectiveness of International Human Rights Treaties In Bangladesh.
The Frenzy Effectiveness of International Human Rights Treaties In Bangladesh.The Frenzy Effectiveness of International Human Rights Treaties In Bangladesh.
The Frenzy Effectiveness of International Human Rights Treaties In Bangladesh.
 
The Constitution And Its Effects On The United States
The Constitution And Its Effects On The United StatesThe Constitution And Its Effects On The United States
The Constitution And Its Effects On The United States
 
Indian Constititution business law notes
Indian Constititution business law notes Indian Constititution business law notes
Indian Constititution business law notes
 
Fundamental Rights In India
Fundamental Rights In IndiaFundamental Rights In India
Fundamental Rights In India
 
Our fundamental rights.pptx
Our fundamental rights.pptxOur fundamental rights.pptx
Our fundamental rights.pptx
 
Fundamental rights of indian constitution
Fundamental rights of indian constitutionFundamental rights of indian constitution
Fundamental rights of indian constitution
 
FUNDAMENTAL RIGHTS, WRITS AND FUNDAMENTAL DUTIES.pptx
FUNDAMENTAL RIGHTS, WRITS AND FUNDAMENTAL DUTIES.pptxFUNDAMENTAL RIGHTS, WRITS AND FUNDAMENTAL DUTIES.pptx
FUNDAMENTAL RIGHTS, WRITS AND FUNDAMENTAL DUTIES.pptx
 
Coi 1st and 2nd unit
Coi 1st and 2nd unitCoi 1st and 2nd unit
Coi 1st and 2nd unit
 
Fundamental Rights And Duties
Fundamental Rights And DutiesFundamental Rights And Duties
Fundamental Rights And Duties
 
Human Rights
Human RightsHuman Rights
Human Rights
 
Essay On The Constitution Of India
Essay On The Constitution Of IndiaEssay On The Constitution Of India
Essay On The Constitution Of India
 
FUNDAMENTAL RIGHTS.pptx
FUNDAMENTAL RIGHTS.pptxFUNDAMENTAL RIGHTS.pptx
FUNDAMENTAL RIGHTS.pptx
 
Fundamental Rights The Indian Nature
Fundamental Rights The Indian NatureFundamental Rights The Indian Nature
Fundamental Rights The Indian Nature
 
Filipino Citizens and Their Rights
Filipino Citizens and Their RightsFilipino Citizens and Their Rights
Filipino Citizens and Their Rights
 
Human rights and fundamental rights
Human rights and fundamental rightsHuman rights and fundamental rights
Human rights and fundamental rights
 
Bill Of Rights Essay
Bill Of Rights EssayBill Of Rights Essay
Bill Of Rights Essay
 
MCN202-M2-Ktunotes.in_.pptx
MCN202-M2-Ktunotes.in_.pptxMCN202-M2-Ktunotes.in_.pptx
MCN202-M2-Ktunotes.in_.pptx
 
Indian constitution
Indian constitutionIndian constitution
Indian constitution
 
Protecting Fundamental Rights Of Citizens
Protecting Fundamental Rights Of CitizensProtecting Fundamental Rights Of Citizens
Protecting Fundamental Rights Of Citizens
 
LLB LAW NOTES ON LAW OF HUMAN RIGHTS
LLB LAW NOTES ON LAW OF HUMAN RIGHTSLLB LAW NOTES ON LAW OF HUMAN RIGHTS
LLB LAW NOTES ON LAW OF HUMAN RIGHTS
 

Recently uploaded

Electronic Archiving in the Revision of eIDAS
Electronic Archiving in the Revision of eIDASElectronic Archiving in the Revision of eIDAS
Electronic Archiving in the Revision of eIDASFrederik Rosseel
 
Agreement to Cooperate with Adjustment Services in Kings County Family Court ...
Agreement to Cooperate with Adjustment Services in Kings County Family Court ...Agreement to Cooperate with Adjustment Services in Kings County Family Court ...
Agreement to Cooperate with Adjustment Services in Kings County Family Court ...Todd Spodek
 
Powerpoint presention on Principles of Natural Justice
Powerpoint presention on Principles of Natural JusticePowerpoint presention on Principles of Natural Justice
Powerpoint presention on Principles of Natural JusticeHarshitaGarg60
 
Yankho Likongwe CV 28 February 2024 Full.doc
Yankho Likongwe CV 28 February 2024 Full.docYankho Likongwe CV 28 February 2024 Full.doc
Yankho Likongwe CV 28 February 2024 Full.docYankhoLikongwe
 
Abby post campaign report for oppo pls stop
Abby post campaign report for oppo pls stopAbby post campaign report for oppo pls stop
Abby post campaign report for oppo pls stopUddhav Parab
 
Kenneth Norrie Valedictory Lecture Slides 28/2/24
Kenneth Norrie Valedictory Lecture Slides 28/2/24Kenneth Norrie Valedictory Lecture Slides 28/2/24
Kenneth Norrie Valedictory Lecture Slides 28/2/24malcolmcombe1
 
Court_on_its_own_motion_v_Director_General_of_Prisons__Govt_of_NCT_of_Delhi.pdf
Court_on_its_own_motion_v_Director_General_of_Prisons__Govt_of_NCT_of_Delhi.pdfCourt_on_its_own_motion_v_Director_General_of_Prisons__Govt_of_NCT_of_Delhi.pdf
Court_on_its_own_motion_v_Director_General_of_Prisons__Govt_of_NCT_of_Delhi.pdfbhavenpr
 

Recently uploaded (7)

Electronic Archiving in the Revision of eIDAS
Electronic Archiving in the Revision of eIDASElectronic Archiving in the Revision of eIDAS
Electronic Archiving in the Revision of eIDAS
 
Agreement to Cooperate with Adjustment Services in Kings County Family Court ...
Agreement to Cooperate with Adjustment Services in Kings County Family Court ...Agreement to Cooperate with Adjustment Services in Kings County Family Court ...
Agreement to Cooperate with Adjustment Services in Kings County Family Court ...
 
Powerpoint presention on Principles of Natural Justice
Powerpoint presention on Principles of Natural JusticePowerpoint presention on Principles of Natural Justice
Powerpoint presention on Principles of Natural Justice
 
Yankho Likongwe CV 28 February 2024 Full.doc
Yankho Likongwe CV 28 February 2024 Full.docYankho Likongwe CV 28 February 2024 Full.doc
Yankho Likongwe CV 28 February 2024 Full.doc
 
Abby post campaign report for oppo pls stop
Abby post campaign report for oppo pls stopAbby post campaign report for oppo pls stop
Abby post campaign report for oppo pls stop
 
Kenneth Norrie Valedictory Lecture Slides 28/2/24
Kenneth Norrie Valedictory Lecture Slides 28/2/24Kenneth Norrie Valedictory Lecture Slides 28/2/24
Kenneth Norrie Valedictory Lecture Slides 28/2/24
 
Court_on_its_own_motion_v_Director_General_of_Prisons__Govt_of_NCT_of_Delhi.pdf
Court_on_its_own_motion_v_Director_General_of_Prisons__Govt_of_NCT_of_Delhi.pdfCourt_on_its_own_motion_v_Director_General_of_Prisons__Govt_of_NCT_of_Delhi.pdf
Court_on_its_own_motion_v_Director_General_of_Prisons__Govt_of_NCT_of_Delhi.pdf
 

RIGHT TO FREEDOM UNDER ARTICLE 19 OF THE CONSTITUTION OF INDIA AND NEW CHALLENGES

  • 1. 1. INTRODUCTION The origin of Fundamental Rights, which are also known as Natural Rights Human Rights, Basic Rights, or Inalienable Rights, is based on the theory of Natural Law. The idea that people have certain rights, which cannot be taken away, began with the theory of Natural Law. This theory states that natural order exists in the universe because all things are created by Nature or God. Everything has its own qualities and is subject to the rules of Nature to achieve its full potential. The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. The Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35. The framers of the Constitution derived the inspiration for Fundamental Rights from the Constitution of the USA (i.e., the Bill of Rights). Part III of the Constitution is rightly described as the Magna Carta of India. It contains a very long and comprehensive list of ‘justiciable’ Fundamental Rights. The Fundamental Rights in our Constitution are more elaborate than those found in the Constitution of any other country in the world, including the USA. All people, irrespective of race, religion, caste, or sex, have been given the right to move the Supreme Court and the High Courts for the enforcement of their fundamental rights. The Fundamental Rights are named so because they are guaranteed and protected by the Constitution, which is the fundamental law of the land. They are ‘fundamental’ also in the sense that they are essential for the all-around development (material, intellectual, moral, and spiritual) of the individuals. Originally, the Constitution provided for seven Fundamental Rights. These are; 1. Right to equality (Articles 14–18) 2. Right to freedom (Articles 19–22) 3. Right against exploitation (Articles 23–24) 4. Right to freedom of religion (Articles 25–28) 5. Cultural and educational rights (Articles 29–30) 6. Right to property (Article 31) 7. Right to constitutional remedies (Article 32).
  • 2. However, the right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, of 1978. It is made a legal right under Article 300-A in Part XII of the Constitution. So, at present, there are only six Fundamental Rights. Basic Rights stand for the fundamental ideals that the Indian people uphold. They are designed to safeguard each person’s dignity and provide environments that allow each person to express their unique personality to the maximum. The State is required under the Fundamental Rights to refrain from interfering with individual liberty in all of its forms. So, the Constitution’s enumeration of fundamental rights acts as a reminder to the government in charge to uphold such rights and a boundary on the scope of state action. The Charter of Human Rights adopted by the United Nations Organization has given the idea of Basic Rights a more tangible and universal texture.1 Another purpose behind the inclusion of the chapter on Fundamental Rights in the Constitution is to establish “a government of law and not of man”, that is, a governmental system where the ruler cannot oppress the ruled by encroaching on citizens’ basic rights and liberties. The Basic Rights are given sanctity by being included in the Constitution; thus, the authorities dare not so readily violate them. A parliamentary style of governance allows for easy passage of bills since the people who form the government are also the leaders of the majority party in the legislature. Hence, in the absence of a constitutional provision limiting the power of the state by stating fundamental rights, the risk of an infringement on a citizen’s right to privacy cannot be completely eliminated. As a consequence, it has become more common for contemporary democratic nations’ constitutions to include provisions for fundamental rights.2 The “right to freedom” category includes Article 21, which states that “no individual shall be deprived of his life or personal liberty unless according to procedure established by law.” But what is “life” or “personal liberty” is not defined by the Constitution anywhere. 1 Shivangi Singh, Evolution and Development of Fundamental Rights (Unpublished Thesis, Amity University) 2 Dr. Durga Das Basu, Introduction to the Constitution of India 82 (LexisNexis, Gurgaon, 21st edn., 2013).
  • 3. 1.1.SALIENT FEATURES OF FUNDAMENTAL RIGHTS The following characteristics define the Basic Rights protected by the Constitution: 1) Some of them are solely accessible to Indian people, while others are open to everyone, including residents of other countries and legal entities like corporations and enterprises. 2) They are qualified rather than absolute. They are subject to reasonable constraints from the state. The courts, however, will determine whether or not these limits are reasonable. As a result, they find a balance between social control and individual liberty, or between the rights of the individual and those of society as a whole. 3) With a few exceptions, such as those against the State’s action and the action of private persons, the majority of them are accessible against the State’s arbitrary action. There are no constitutional remedies available when private persons infringe the rights that are protected exclusively against State action, only conventional legal remedies. 4) Although some of them are beneficial and provide people certain benefits, others are bad and restrict the state’s ability to act. 5) They are justiciable, which enables people to ask the courts to enforce them if and when they are broken. 6) The Supreme Court protects and guarantees them. As a result, the party that feels wronged may proceed straight to the Supreme Court rather than having to file an appeal against the high courts’ decision. 7) They are neither eternal nor sacred. The only way for the Parliament to limit or abolish them is via a constitutional amendment act, not through a regular act. Moreover, this may be done without altering the Constitution’s “basic structure.” 8) They can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21. Further, the six rights guaranteed by Article 19 can be suspended only when an emergency is declared on the grounds of war or external aggression (i.e., external emergency) and not on the ground of armed rebellion (i.e., internal emergency)
  • 4. 9) Articles 31A (saving laws relating to the purchase of estates, etc.), 31B (validating certain acts and regulations contained in the 9th Schedule), and 31C (saving laws relating to the application of certain directive principles) place restrictions on their application. 10) The Parliament may limit or revoke their applicability to members of the armed forces, paramilitary forces, police, intelligence agencies, and similar services (Article 33). 11) Its use may be limited while martial law is in effect everywhere. To restore order, martial law is “military rule” implemented under unusual circumstances (Article 34). It is distinct from declaring a state of emergency. 12) Although some of them may be enforced based on a law created to give them effect, the majority of them are directly enforceable (self-executory). In order to ensure consistency throughout the nation, only the Parliament and not state legislatures may pass such legislation (Article 35). 1.2. FUNDAMENTAL RIGHTS UNDER INDIAN CONSTITUTION FUNDAMENTAL RIGHTS ARTICLES PROVISIONS RIGHT TO EQUALITY 14 Equality Before Law 15 Prohibition of Discrimination 16 Equality of Opportunity in Public Employment 17 Abolition of untouchability 18 Abolition of Titles RIGHT TO FREEDOM 19 Protection of 6 Rights i. The right to free speech and expression; ii. The right to peaceful assembly without the use of force; iii. The right to form associations, unions, or cooperative societies. iv. The freedom to roam around without restriction on Indian soil.
  • 5. v. The right to practice any profession and the freedom to engage in any occupation, trade, or business in any location within Indian territory. 20 Protection in Respect of Conviction for Offences 21 Protection of Life and Personal Liberty 21-A Right to Education 22 Protection Against Arrest and Detention RIGHT AGAINST EXPLOITATION 23 Prohibition of Human Trafficking and Forced Labor 24 Prohibition of Child Labor RIGHT TO FREEDOM OF RELIGION 25 Freedom of Conscience, Profession, Practice, and Propagation 26 Freedom to Manage Religious Affairs 27 Freedom from Taxation for the Promotion of a Religion 28 Freedom from Attending Religious Instruction EDUCATIONAL AND CULTURAL RIGHTS 29 Protection of Interests of Minorities 30 Right of Minorities to Establish and Administer Educational Institutions RIGHT TO CONSTITUTIONAL REMEDIES 32 Right to use five writs as remedies for enforcing one’s fundamental rights: i. Habeas Corpus: Used to order the release of someone wrongfully incarcerated. ii. To order a public authority to carry out its duties, use a Mandamus. iii. Quo Warranto: To order someone to leave a position they are incorrectly supposed to be in. iv. Prohibition: Preventing a lower court from continuing with a matter.
  • 6. v. Certiorari is the higher court’s ability to take an ongoing case from a lower court and put it before itself. 33 Provides the Parliament with the authority to limit or abolish the fundamental rights of “Members of the Armed Forces, paramilitary forces, police forces, intelligence agencies, and analogous forces” 34 Provides for the restrictions on fundamental rights while martial law (military rule) is in force 35 Empowers the Parliament to make laws on Fundamental Rights Fundamental rights are essential for everyone’s moral and intellectual growth. The growth of a person requires the protection of fundamental rights. Several important basic rights have been included in the Indian constitution in the post-independence period. Each individual in India is given distinct legal rights under the Constitution. A brief analysis on the six fundamental rights is provided as under; 1.2.1. Right to Equality (Art. 14 to 18) The equal legal rights of all people are fully protected by the right to equality. Discrimination based on caste, creed, religion, place of birth, race, or sexual orientation is categorically prohibited under the right to equality. It guarantees that everyone has an equal opportunity to work for the government and forbids it from treating anybody unfairly at work because of their religion, caste, race, gender, ancestry, place of birth, place of residence, or any other of these considerations. Articles 14 through 18 define equality before the law. The Constitution guarantees equality before the law and ensures that everyone is treated fairly. Citizens cannot be treated differently by the state because of their caste, race, religion, gender, or place of birth. To attain equality, this is necessary.
  • 7. 1.2.2. Right to Freedom (Art. 19 to 22) It is sometimes referred to as the right to liberty. Every person’s most treasured dream is to be free. The freedom of speech, of expression, of assembly without the use of force, of travel across the whole area of our country, of organisation, of the practise of any profession, and of residence throughout the country are only a few of the rights that are protected by the right to freedom. These rights, however, are subject to several limitations. 1.2.3. Right against Exploitation (Art. 23-24) Many sorts of exploitation have taken place as a result of the historical hierarchical structure of Indian society. Understanding that being exploited is comparable to, if not worse than, being mistreated is crucial. This basic right is crucial in ensuring that no person is subjected to any type of forced labour. No one may be coerced to labour against their will, even if money is provided. The Indian constitution forbids any kind of forced labour. Work that is done for less than the required minimum wage is considered forced labour. Also included as a constitutional infraction in the document is human trafficking. People may not be purchased or sold for unlawful or immoral purposes. This sentence also states that the “bound labour” in question is unlawful. 1.2.4. Righty to Freedom of Religion (Art. 25 to 28) Every religion that one chooses to practice is fully free. The Constitution refers to India as a “secular state” due to the country’s multireligious population, which includes adherents of many other faiths as well as Hindus, Christians, and Sikhs. It suggests that India does not have a “national” or “state” religion. However, it gives citizens total freedom to follow whatever religion they desire and to worship whomever they like. Nonetheless, this shouldn’t interfere with another person’s religious practises or beliefs. This flexibility is also available to visitors. 1.2.5. Cultural & Educational Rights (Art. 29-30) According to cultural and educational rights, every member of society has the right to keep their original language or script. While considering Indian culture, its variety immediately springs to mind. Our Constitution holds that diversity is
  • 8. our strength in a country with such a varied population. So, one of minorities’ essential rights is the freedom to maintain their culture. The term “minority” refers to ethnic or religious groups that are indigenous to a certain region of the country and who adhere to the same language or faith. It is also permissible for minority linguistic and religious groups to create their own educational institutions. They will be able to preserve and develop their own culture as a result. 1.2.6. Right to Constitutional Remedies (Art. 32-35) In India, a person may approachcthe Supreme Court in order to have their basic rights respected. According to Articles 32 and 226 of the Constitution, the Supreme Court and the High Court are both safeguarded against abuse of this prerogative. It is referred to as the right to a constitutional remedy. According to this Article, the Supreme Court and the high courts have the power to impose basic rights. The rights may also be expanded by regional courts. The court- martial is not covered by this safety measure, however, since it is governed by military law.
  • 9. 2. EVOLUTION OF FUNDAMENTAL RIGHTS IN INDIA The written Magna Carta, which was granted to the English people by King John in the early years of 1215, guaranteed them their historical privileges. This was the first document to safeguard people’s liberty. After this, in 1689, the English people’s fundamental freedoms and rights were consolidated in the form of the Bill of Rights. The Magna Carta of India, which is section III of the constitution, protects fundamental rights. India’s development of fundamental human rights protected by the constitution was influenced by historical precedents like France’s Declaration of the Rights of Man, the United States Bill of Rights, and England’s Bill of Rights. The Rowlatt Act passed in 1919, granted the British government and police a wide range of authority. They permitted the indefinite detention and arrest of people, warrantless searches and seizures, limits on public meetings, and a heavy hand in the control of the media. The widespread resistance to this action ultimately sparked nationwide acts of nonviolent civil disobedience to demand the protection of civil liberties and limits on governmental authority. The independence of Ireland and the creation of the Irish constitution had a significant impact on Indians, who aspired to freedom and had their own government. The Irish constitution’s guiding principles of state policy were also seen favorably by the Indian populace as a model for how to effectively address complex social and economic issues across a large and varied country. In 1928, the Nehru Commission composed of representatives of Indian political parties proposed constitutional reforms for India that apart from calling for dominion status for India and elections under universal suffrage, would guarantee rights deemed fundamental, representation for religious and ethnic minorities, and limit the powers of the government. In 1931, the Indian National Congress (the largest Indian political party of the time) adopted resolutions committing itself to the defense of fundamental civil rights, as well as socio-economic rights such as the minimum wage and the abolition of untouchability and serfdom. Committing themselves to socialism in 1936, the Congress leaders took examples from the constitution of the erstwhile USSR, which inspired the fundamental duties of citizens as a means of collective patriotic responsibility for national interests and challenges.
  • 10. While the Constitution was being written, our framers of the Constitution had to consider the changing world and foresee how our nation would adapt by allowing for civil rights that might meet their demands. To make this feasible, the fundamental rights subcommittee, led by J.B. Kripalani, and the drafting committee, led by Dr. B.R. Ambedkar, began the difficult work of determining the requirements of Indian citizens in light of the challenging circumstances of division. When India obtained independence on 15 August 1947, the task of developing a constitution for the nation was undertaken by the Constituent Assembly of India, composed of elected representatives under the presidency of Rajendra Prasad. While members of Congress were composed of a large majority, Congress leaders appointed persons from diverse political backgrounds to the responsibilities of developing the constitution and national laws. Notably, Bhimrao Ramji Ambedkar became the chairperson of the drafting committee, while Jawaharlal Nehru and Sardar Vallabhbhai Patel became chairpersons of committees and sub-committees responsible for different subjects. A notable development during that period having a significant effect on the Indian constitution took place on 10 December 1948 when the United Nations General Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions. The Fundamental Rights were included in the 1st Draft Constitution (February 1948), the 2nd Draft Constitution (17th October 1948), and the 3rd and final Draft Constitution (26th November 1949), being prepared by the Drafting Committee. Fundamental rights serve as the cornerstone of India’s democratic system and secularism. They provide the necessary circumstances for a person’s physical and moral safety, promoting social fairness and equality. They also stand up for the rights of people of color and other marginalized groups in society. Individual liberty is also protected by fundamental rights. These rights create the rule of law, which keeps the power of the government from being unchecked. Over the years, various Judicial Precedents have added strength to the Fundamental Rights in India. It is considered to be the basic structure of the Constitution.3 3 Keshavananda Bharati Vs. State of Kerala, AIR 1973 SC 1461
  • 11. 3. RIGHT TO FREEDOM UNDER INDIAN CONSTITUTION The definition of “freedom” is simply “not to be constrained in any way.” The idea of “freedom” is particularly popular among political philosophers in the West. In his work “Two Ideas of Liberty,” British philosopher Isaiah Berlin introduced the concepts of negative and positive freedom. Negative freedom, according to him, is the capacity to act as one pleases without regard to any restraints from the outside world. Positive freedom, on the other hand, refers to having control over one’s own life and the choices that are made in it. The distinction between the two is that whereas positive freedom relates to a notion of oneself that is neither constrained nor governed by others, negative freedom denotes the freedom to do or not do something. Hence, freedom encompasses a variety of individual rights such as freedom of movement, freedom of speech and expression, freedom of religion, the freedom to travel, freedom of employment, freedom of self-identity, freedom to own property, etc. The state should lessen its meddling in the business of individuals in order to provide them with these rights. It ought to function as a base state. These freedoms are essential liberties that any democratic state offers to its citizens. These liberties have been outlined as essential rights in the Constitution even in a democratic nation like India.4 The right to freedom, according to the Indian Constitution, refers to the fundamental rights given under Article 19 to Article 22. The aim of these rights is to promote the ideals of liberty held by the Preamble in newly independent India, in order to remove inequalities amongst individuals and to entitle all individuals to a dignified life. Right to Freedom comprises the following rights; 19 Protection of certain rights regarding freedom of speech etc. 20 Protection in Respect of Conviction for Offences 21 Protection of Life and Personal Liberty 21-A Right to Education 22 Protection Against Arrest and Detention In this assignment, I am constraining my discussion with regard to Art. 19 of the Constitution of India, and that shall be my area of analysis and studies. 4 Right to Freedom, available at: https://blog.ipleaders.in/what-is-the-right-to-freedom/ (Visited on April 2, 2023)
  • 12. 3.1.BIRTH OF FREEDOM OF SPEECH UNDER THE INDIAN CONSTITUTION Indian freedoms were completely at risk during the colonial period. The mass Indian population’s freedom of speech and expression was really restricted by the horrors committed by the British Empire. The British used all legal means at their disposal to stifle Indians’ freedom of expression, from the Sedition laws they put on them in 1870 through Section 295A of the Hate Speech Law, in an effort to quell the revolutionary emotions that were driving the population towards an independent uprising. The very basic freedom of speech and expression that people had previously been denied was also made possible by the Prevention of Seditious Meeting Act, 1907, which forbade open debates and the formation of unions. The concept of free speech was also adapted by the authors and architects of the Indian Constitution from the democratic principles enshrined in the US Constitution. The American Constitution places a high value on freedom of speech and expression. 3.2. ARTICLE 19 OF THE CONSTITUTION OF INDIA Article 19 (1) of the Constitution, guarantees certain fundamental rights, subject to the power of the State to impose restrictions on the exercise of those rights. The Article was thus intended to protect these rights against State action other than in the legitimate exercise of its power to regulate private rights in the public interest. 3.2.1. Freedom of Speech and Expression: Expression is a matter of liberty and right. The liberty of thought and the right to know are the sources of expression. Free Speech is the live wire of democracy. Freedom of expression is integral to the expansion and fulfillment of individual personality. Freedom of expression is more essential in a democratic setup of a State where people are Sovereign rulers. Iver Jennings said, without freedom of speech, the appeal to reason which is the basis of democracy cannot be made.
  • 13. According to Justice Krishna Iyer, “This freedom is essential because the censorial power lies in the people over and against the Government and not in the Government over and against the people.” Freedom of speech and expression is required to fulfill the following objectives: a) To discover the truth b) Non-self-fulfillment c) Democratic value d) To ensure pluralism In order to create India a sovereign, democratic, socialist, secular, and republican nation, the people of India gave themselves the Constitution of India. Freedom of speech and expression, which is the mother of all rights, holds a special position in our democratic society. Securing LIBERTY OF THOUGHT AND EXPRESSION to all people is one of the major goals of the Indian Constitution, as stated in the Preamble. A fundamental human right is the freedom of expression. It is the expression and actual implementation of individual thinking freedom. No matter the kind of government, freedom of speech is mentioned in many constitutions. In Bennett Coleman & Co. v. Union of India5 , the Supreme Court held that newspapers should be left free to determine their pages and their circulation. This case arose out of a constitutional challenge to the validity of the Newspaper (Price & Page) Act, of 1956 which empowered the Government to regulate the allocation of space for advertisement matters. The court held that the curtailment of advertisements would fall foul of Article 19(1)(a), since it would have a direct impact on the circulation of newspapers. The court held that any restriction leading to a loss of advertising revenue would affect circulation and thereby impinge on the freedom of speech. 5 1973 AIR 106
  • 14. In Indian Express Newspapers v. Union of India6 , a challenge to the imposition of customs duty on the import of newsprint was allowed and the impugned levy was struck down. The Supreme Court held that the expression of freedom of the press though not expressly used in Article 19 was comprehended within Article 19(1)(a) and meant freedom from interference from an authority that would have the effect of interference with the content & the circulation of newspapers. In Secretary, Ministry of Information and Broadcasting v. Cricket Association, Bengal7 , the Supreme Court held that broadcasting is a means of communication and a medium of speech and expression within the framework of Article 19(1)(a). This case involved the rights of a cricket association to grant telecast rights to an agency of its choice. It was held that the right to entertain and to be entertained, in this case, through the broadcasting media are an integral part of the freedom under Article 19(l)(a). The Indian Constitution’s Article 19 (1)(a) provides “the right to freedom of speech and expression” to all of its inhabitants, including the media. In addition, clause (2) of Article 19 states that nothing in sub-clause (a) of clause (1) shall affect the operation of any current law or preclude the State from enacting new legislation insofar as such legislation places reasonable limitations on the exercise of the right conferred by the said sub-clause in the interest of: a) Sovereignty and Integrity of India. b) The state’s security. c) Goodwill towards other countries. d) Law and order. e) Morality or decency. f) Disrespect for the law. g) Defamation. h) Provocation of an offense. 6 1986 AIR 515 7 1995 AIR 1236
  • 15. 3.2.2. Freedom to Assemble: As it is made possible and constrained by the confluence of the criminal process code and the constitutional text, the right to assemble is of particular relevance within the field of constitutional law. While the Constitution recognizes it as a right, procedural rules drastically impede this freedom by giving the government the ability to control its expression and forcibly restrict its use. This rather paradoxical strategy reflects the colonial history and the Indian State’s unquestioned embrace of the majority of the 1872 Code of Criminal Procedure’s provisions. It is regrettable that contemporary India is carrying on this tradition in terms of rights for association and assembly. In Himat Lal K. Shah v. Commissioner of Police8 , the Supreme Court evaluated whether the petitioners’ Article 19 (1) rights were infringed by the requirement that prior written permission from the policeise obtained before conducting a public assembly on a public thoroughfare. Here, the regulation in issue gave the Commissioner or a representative of her the authority to deny authorization for the meeting. Chief Justice Sikri, writing for the majority, differentiated between a legislative provision allowing the control of behavior in assemblies and processions and a rule allowing the rejection of permission to organize public gatherings on public roadways without prescribing rules for the officer in charge. The necessity for previous authorization did not bother him, in his opinion “The right that arises from Article 19(1)(b) does not include the freedom to have a meeting whenever and whenever. It is a right that is subject to regulation.” He revoked the officer’s arbitrary authority granted by the police commissioner. In Kameshwar Prasad v. State of Bihar9 , an ordinance that prohibited government workers from participating in any kind of protest was reviewed. The court finds that a government employee’s basic rights were not violated and that Article 19 (1) (b) is violated by the provision that forbids both orderly and disruptive protests. The Court did not object to the idea that the rights or freedoms of government workers as a group may be restricted. “By accepting 8 (1973) 1 SCC 227 9 1962 AIR 1166
  • 16. the contention that the freedoms guaranteed by Part Ill, and in particular those in Article 19(1)(a), apply to the servants of Government, we should not be taken to imply that in relation to this class of citizens, the responsibility arising from the official position would not by itself impose some limitations on the exercise of their rights as citizens,” the apex court writes. Restrictions on the freedom of assembly: Nothing in the right to assemble peacefully shall affect the operation of any existing law insofar as it imposes or prevents the State from enacting any law imposing reasonable restrictions on the exercise of that right in the interests of the sovereignty and integrity of India or public order, according to Article 19(3) of the Constitution. Once the Constitution was adopted, limits relating to sovereignty and integrity were introduced. 3.2.3. Freedom of Association The freedom “to organize associations and unions or cooperative organizations” is guaranteed to all Indian citizens under Article 19(1)(c) of the Indian Constitution. In accordance with Article 19 clause (4), the state may pass laws that place reasonable limitations on this right for the purpose of maintaining public morality, public order, or India’s sovereignty and integrity. The extent of the freedom to organize groups, unions, or cooperative societies is quite broad and includes all types of associations, such as political parties, clubs, societies, businesses, organizations, trade unions, etc. The ability to organize a union should not imply that the unions have a guaranteed right to successful collective bargaining or the right to go on strike either in connection with or independent of collective bargaining. Several industrial laws, such as the Industrial Dispute Act or the Trade Unions Act, may govern or restrict the right to strike or call a lockout. Right to form association does not carry the right to recognition Right to form association does not carry the right to strike, Right to form association does not carry the right to inform rival union
  • 17. Restrictions on the Freedom of Association The right of association like other individual freedom is not unrestricted. Clause (4) of Article 19 empowers the State to impose reasonable restrictions on the right of freedom of association and union in the interest of “public order” or “morality” or “sovereignty or integrity” of India. It saves existing laws so far as they are not inconsistent with the fundamental right of association. 3.2.4. Freedom to Move Freely throughout the Territory of India All Indian citizens have the freedom to “travel freely across the territory of India,” according to Article 19(1)(d). This right is still subject to the reasonable limitations listed in Article 19’s paragraph (5), namely those necessary to preserve the interests of any Scheduled Tribe or the general public. The freedom to travel unrestrictedly across Indian territory is guaranteed to its residents under Article 19(1)(d) of the Constitution. They are able to migrate within the same State as well as from one State to another. Any legislation cannot restrict this freedom unless it does so within the restrictions outlined in Article 19. (5). The whole region is one entity as far as the residents are concerned, which is what the Constitution emphasizes. Hence, the goal was to instill in Indian residents a sense of nationalism rather than a petty, local mindset. Reasonable Restrictions: The State may under clause (5) of Article 19 impose reasonable restriction on the freedom of movement on two grounds; a) In the interests of the general public b) For the protection of the interest of Scheduled Tribes. 3.2.5. Freedom to Reside and Settle in any parts of the Territory of India Every Indian citizen has the right “to stay and settle in any portion of the territory of India,” as stated in Article 19(1)(e). Nevertheless, in accordance with Article 19’s paragraph (5), this right may be subject to legal restrictions that are reasonable and necessary for the preservation of any Scheduled Tribe’s interests or the general welfare.
  • 18. Eliminating internal obstacles inside India or any of its portions is the goal of the clause. As used in this Article, the phrase “the territory of India” denotes the freedom to live anywhere and in any region of the Indian State. · It should be mentioned that the freedom to roam about the nation and the right to live there are complimentary and often coexist. As a result, the majority of the instances examined under Article 19(1)(d) also pertain to Article 19(l)(e). This privilege is subject to legal limitations that are fair and necessary to safeguard the interests of the general public or any Scheduled Tribes. So, it was seen to be a fair limitation when a prostitute was told to leave the boundaries of a big city or had her mobility and residency restricted under the Suppression of Immoral Trade in Women and Girls Act, of 1956. 3.2.6. Freedom to Practice any Profession, or to carry on any occupation, trade, or business The freedom to practice any profession or to engage in any employment, trade or business is guaranteed to all citizens under Article 19(1)(g) of the Indian Constitution, subject to Art.19(6), which lists the kind of restrictions the state may place on the aforementioned right of the people. The ability to conduct any specific form of business of one’s choosing is granted to all people by Article 19(1), subclause (g). But, this does not give someone the right to engage in behavior that is criminal in the eyes of the law or to hold a certain job or occupy a particular position of their choosing. Moreover, Art. 19(1)(g) does not imply that conditions be established by the state or other statutory authority in order to increase the profitability of any trade or to attract clients to the company or businessman. Moreover, a person who occupies a location illegally cannot claim a fundamental right to operate a company there because a citizen cannot use a fundamental right to justify an illegal conduct or to prevent a statutory authority from legitimately carrying out its statutory duties. The Supreme Court has affirmed socially controlled laws in a number of instances in light of directive principles, taking into consideration the regulated and planned economy, and the operations of private businesses have been greatly constrained. But, under Article 19(6), the state is not prohibited from
  • 19. passing legislation restricting the enjoyment of the basic right in a reasonable manner for the benefit of the general populace. For one to practice a profession, there must be legislation governing technical or professional credentials. Article 19 will provide protection for laws that establish professional qualifications (6). Nothing in Subclause(g) of Clause (1) of Article 19 shall hinder the State’s ability to conduct any trade, business, industry, or service, whether it be to the total or partial exclusion of citizens or otherwise if it is not in the interest of the general public, according to Article 19(6)(ii). If the State is not engaged in commerce, Article 19(6)(ii) will not apply. 3.3. AN ANALYSIS OF HATE SPEECH Hate speech originated in America in the early 1990s as a result of an odd civil marriage of the left and right. Tipper Gore and Lynne Cheney started lobbying for government censorship of everything they considered disagreeable in an effort to ban the right to Free Speech of dissidents. They shared a political worldview that was opposed to the other’s. Hate speech was created in this patriotic manner. The phrase “hate speech” is often used in daily speech to refer generally to unpleasant discourse that targets a group or an individual based on intrinsic traits, such as race, religion, or gender, harming communal peace. International human rights legislation does not have a single definition of hate speech since the topic is still highly debatable, especially in light of how it pertains to free expression, non-discrimination, and equality. 3.3.1. International Perspective of Hate Speech In terms of international human rights legislation, the concept of hate speech is still fiercely debated, particularly in light of how it pertains to equality, non- discrimination, and freedom of expression. As a consequence, there is no definition of hate speech under these laws.10 10 Hate Speech, available at: https://www.legalserviceindia.com/legal/article-9495-analysis-on-hate- speech.html (Visited on April 2, 2023)
  • 20. The UN Strategy and Plan of Action on Hate Speech seeks to provide a comprehensive framework for the UN system to address the issue on a global scale. Hate speech is defined as any speech, writing, or behavior that disparages or utilizes derogatory words to refer to an individual or a group of individuals based on who they are, such as based on their religion, origins, nation, race, color, birth, gender, or another identifiable trait. 3.3.2. Indian Perspective of Hate Speech Article 19(1)(a) of the Indian Constitution guarantees the right to freedom of speech and expression. Notwithstanding this, the Constitution’s Article 19(2) permits reasonable restrictions on free speech. where such restrictions are required to safeguard India’s integrity, security, friendly relations with other nations, preservation of the rule of law, and morality, or in situations involving contempt for the court, defamation, or solicitation to commit an offense.11 The diversity of religions, ethnicities, cultures, etc in India makes it essential to ensure that religious, racial, and ethnic tolerance prevails. The significance of this can be seen in various sections of the IPC, which prohibit and punish hate crimes. Some of the important sections of IPC, which are attracted in response to hate speech, such as S. 153A, S. 153B, S. 295AAND S. 505(2) The laws listed below, in addition to the Indian Penal Code, contained provisions addressing hate speech: Under the 1951 Representation of the People Act, a person who has been found guilty of violating their right to free speech and expression is unable to run for office. It is forbidden to advocate for untouchability by words (spoken or written), signs, or other outward expressions under the Protection of the Civil Rights Act of 1955. 11 Ibid
  • 21. The Religious Institutions (Prevention of Misuse) Act of 1988 forbids stirring up animosity or other hostile attitudes between various religious, racial, and linguistic, or groups, classes, or tribes. The Cinematograph Act of 1952 and the Cable Television Network Regulation Act of 1995 both address the prevention and regulation of the online transfer of any data meant to incite hatred. the Supreme Court discussed the effects of hate speech on society as a whole in Babu Rao Patel v. State of Delhi12 . Pravasi Bhalai Sangathan v. Union of India13 is another recent Supreme Court decision (2014). These are instances where the Supreme Court has not applied Article 19(1)(a) to hate speech. Tehseen S. Poonawalla v. Union of India14 , Kodungallur Film Society v. Union of India15 , and Amish Devgan v. Union of India16 are three recent rulings regarding hate speech by the Indian Supreme Court (2018). (2020). The Amish Devgan ruling draws a distinct distinction between hate speech and hate crimes. It has excellent doctrine and a strong legal foundation. In a nutshell, hate speech is dangerous to democracy, pluralism, and a society based on constitutional principles, particularly when it transgresses values outlined in the Preamble of the Constitution, such equality, dignity, fraternity, and liberty. 3.4.THE NEED FOR THE PROTECTION OF FREEDOM OF SPEECH IN INDIA India, the second-most populated nation in the world and the biggest democracy in the world have a very strong need to safeguard its people’s right to free speech and expression. As India is a secular nation with a wide range of linguistic, religious, caste, 12 1980 AIR 763 13 AIR 2014 SC 1591 14 (2018) 9 SCC 501 15 2018 (5) KHC 297 (SC) 16 (2021) 1 SCC 1
  • 22. and creed groups, freedom of expression is essentially a delicate and fundamental right that is provided to its residents. The need to defend free expression is shown by: i. Active engagement in democracy: Since it aids in sound decision-making, freedom of expression enables people to actively participate in the efficient running and operation of democracy. ii. Expression of views and attitudes: In a nation where there are citizens of many religions, castes, and creeds, freedom of speech facilitates the appropriate expression of diverse opinions and attitudes. iii. Development and self-fulfillment: The effective, unrestricted interchange of ideas and views promotes civic health and yields substantial personal satisfaction. iv. Open conversations: are crucial to the operation of democracy and its other political institutions because they serve to uncover the truth and promote wise and healthy decision-making. Time and again, judicial precedents serve to reiterate the importance of the freedom of speech which is one of most quintessential fundamental right enshrined under Part III of the Constitution of India. 3.5. LEGAL REMEDIES FOR VIOLATION OF FREEDOM OF SPEECH In the event that article 19 (1) (a) is violated, the right to petition the Supreme Court for the enforcing of one’s freedom of speech and expression is another fundamental right under article 32 of the Constitution, which deals with remedies for the enforcement of rights conferred under part III of the Constitution. Even the High Courts have been granted the same authority as the Supreme Court under Article 226 to make decrees and writs in order to uphold the people’ basic freedom to speech and expression. Hence, any aggrieved person may approach these courts which are considered to be the guardian of the Constitution. Public Interest Litigation can also be filed.17 17 M. Laxmikanth, Indian Polity for Civil ServicesExaminations 7.1 (Tata McGraw Hill, NewDelhi, 3rd edn., 2010).
  • 23. 4. NEW CHALLENGES TO FREEDOM OF SPEECH AND EXPRESSION The modern regime is challenging and altering the underlying presumptions of the preceding period. Will countries be required to embrace more forms of expression than their own Constitutions permit? Should we rethink our ideas of extraterritoriality, jurisdiction, and sovereignty? How can we arrive at a formulation that functions across a medium that is not constrained by territoriality and boundaries while balancing sovereign constitutional positions on topics like freedom of expression, free speech, political jurisdiction, and state capacity and intervention? They are challenging the established laws, standards, forms of communication, and trade and business. Now the problem will be to figure out how a country may apply its own laws without restricting the liberties enjoyed by people of other nations. I am taking through some growing challenges in the field of Freedom of Expression as under; 4.1.INTERNET REGULATION AND FREEDOM OF EXPRESSION The internet reflects the diversity of human opinion. National and geographical borders are irrelevant in Internet communication. One of their main characteristics is their worldwide nature, which some analysts believe makes it hard for them to be effectively regulated by the government. Internet content regulation initiatives by one nation may have an impact on other nations’ rights to free expression, notably in the US, where such rights are guaranteed. Conflict may also arise as a result of the differing rulings made by courts in other nations, particularly when one nation refuses to enforce the decision made by a court in another. The internet is as diverse as human thought.18 4.2.RIGHT TO PRIVACY AND FREEDOM OF EXPRESSION The right to privacy must always be maintained and only be restricted when necessary. There is no such national privacy policy in India, and the country’s privacy regulations are insufficient to safeguard residents from eavesdropping. Although not specifically mentioned as a basic right, privacy is a crucial aspect of Articles 19 and 21. India lacks laws addressing the right to privacy, especially in electronic communications, despite discussions about a shoddy pending privacy bill from 2011, while the Supreme Court 18 ACLU v. Reno, 521 U.S. 844 (1996)
  • 24. has recognized a limited right to privacy over time. The right to privacy has been construed by the Indian Supreme Court to be included in Article 21 of the Indian Constitution, which states that no person may have his life or liberty taken away from him unless by law. The whole legal system has come under fire for giving Statewide censorship powers and permitting the use of contemporary technologies for monitoring. 4.3.COPYRIGHT LAW AND FREEDOM OF EXPRESSION There are several potential areas of conflict between copyright and freedom of speech that have hitherto gone unnoticed. Since copyrighted material is significant to people in a particular cultural context, its replication could be necessary for exercising one’s right to free speech. The ability to articulate emotions, ideas, and views is unique to creators. Their creations could integrate into a culture and pick up meanings and allusions that are hard to communicate in other contexts. This would increase the likelihood of copyright and freedom of speech clashing in more ways than previously thought.19 4.4. INTERNATIONAL MEASURES TAKEN TO OVERCOME THE CHALLENGES International treaties guarantee the right to freedom of speech, but the definition of this right and the methods for defending it vary widely across nations. A number of organic documents, including the African Charter on Human and Peoples’ Rights (ACHPR)20 , the American Convention on Human Rights (ACHR)21 , the European Convention for Human Rights (ECHR)22 , and the International Covenant on Civil and Political Rights (ICCPR)23 of the United Nations, provide protection for free expression on a fundamental level. 19 Dr. Sreenivasulu N.S. and Somashekarappa “Freedom of Speech & Expression and the Issues of Intellectual Property and Copyright”, available at: http://manupatra.com/roundup/370/Articles/Freedom%20of%20Speech.pdf ( Visited on April 2, 2023). 20 Article 9 of the ACHPR 21 Article 13 of the ACHR 22 Article 10 of ECHR 23 Article 19 of the ICCPR
  • 25. 5. JUDICIAL DECISIONS ON FREEDOM OF SPEECH AND EXPRESSION Indian Judiciary is at all times active in interpreting the Constitution of India to the growing needs, demands, and observed challenges. In the light of Judicial interpretation, the courts have constantly observed remarkable findings meeting the ends of justice. Some of them are illustrated here in this study; 5.1. Hamdard Dawakhana vs Union of India24 This case was related to the advertisement of prohibited drugs and commodities. The product sold by the petitioners was said to have self-medicating values which were advertised to the general public as well. The petitioners in the case alleged that they were experiencing difficulty to advertise their product as many objections were raised against their advertisements. The Supreme Court in this case held that an obnoxious advertisement cannot come within the scope of Article 19(1)(a). Advertisement of prohibited drugs would, therefore, not fall within the scope of Article 19(1)(a). 5.2. Romesh Thappar vs State of Madras25 In this case, the petitioner used to publish and circulate a newspaper named “crossroads” which used to review and criticize the schemes and activities of the government of Madras. The government of Madras banned the entry and circulation of this newspaper in the state by the restriction of public safety grounds. The supreme court in this case said that the right of circulation of the newspaper lies solely with the establishment i.e., the company of the newspaper and the state of Madras cannot interfere with the same. The ground of Public safety under Article 19(2) is not a reasonable restriction and hence a ban on entry and circulation of the newspaper by the state of Madras cannot be imposed under Article 19(2). 24 SCR 1960 (2) 671 25 1950 AIR 124
  • 26. 5.3.Prabha Dutt vs Union of India26 The petitioner, Smt Prabha Dutt Chief reported of Hindustan Times filed a petition under Article 32 of the Indian Constitution asking for a writ directing the respondent, the superintendent of Tihar Jail, to allow her to interview the two convicts named Billa and Ranga who are charged with death sentence for an offence under Section 302 of the Indian Penal Code and the petitions filled by them to the President of India for communication of the sentence are reported to have been rejected by the President recently. The Supreme Court in this case directed the Superintendent of the Tihar Jail to allow the representatives of a few newspapers to interview two death sentence convicts under Article 19(1)(a) as “the right under Article 19(1)(a) is not an absolute right, nor indeed does it confer any right on the press to have an unrestricted access to means of information”. 5.4.K.A. Abbas vs Union of India27 The issue of censorship of films under Article 19(2) was mentioned in this case in front of the Supreme Court of India. This was done under the Cinematograph Act, 1952 to protect the viewers. The petitioner’s film got an “A” certificate instead of “U” certificate and hence, the petitioner challenged the censorship in court. He said that it was a clear violation of his fundamental right i.e., freedom of speech and expression. It was held by the court that “it had been almost universally recognized that motion pictures must be treated differently from other forms of art and expression, because a motion picture’s instant appeal both to the sight and to hear, and because a motion picture had become more true to life than even the theatre or any other form of artistic representation. Its effect, particularly on children and immature adolescents was great.” Hence the court upheld the censorship of the film and the case was dismissed. 26 1982 AIR 6 27 1971 AIR 481
  • 27. 5.5.People’s Union for Civil Liberties vs Union of India28 The validity of Section 33B of the Representation of People Act, 1951 was challenged by the People’s Union of Civil Liberties. Section 33B provided that an electoral candidate is not bound to disclose any information apart from that required. In Union of India v. Association for Democratic Reforms, the Supreme Court of India recognized that the right to know about electoral candidates is well within the ambit of right to information available under the right to freedom of speech and expression described in Article 19(1)(a) of the Indian Constitution. Furthermore, it stated that information about the criminal background of candidates, assets, and liabilities of candidates and their family members, and educational qualifications of candidates should be available to the voters as a part of the rights. It was held by the Hon’ble Supreme Court that Telephone tapping, therefore, violates Article 19(1) (a) unless it comes within the grounds of reasonable restrictions under Article 19(2). 5.6.Emmanuel vs State of Kerala29 Three students were expelled from their school in 1985 for not singing the national anthem of India. After they were expelled from school, their father filed a writ petition in the High Court of Kerala stating that the expulsion was a direct violation of their fundamental right which is Freedom of speech and expression and freedom of religion which is protected by the Indian Constitution under Articles 19 and 25. The court dismissed the case and stated that “no words or thoughts in the national anthem was capable of offending religious convictions”. Under Article 136 of the Constitution of India, their father later filed a special leave petition in the Supreme Court of India. The Supreme Court held that the expulsion of school children merely for not singing the national anthem was a direct violation of their right to freedom of expression. 28 AIR 1997 SC 568 29 1987 AIR 748
  • 28. 5.7.Sakal Papers Pvt. Lmt. vs Union of India30 The constitutional validity of the Newspaper Act, 1956 is being challenged by the petitioners of the case which are a private newspaper company, its shareholders, and the two readers. The newspaper act empowers the central government to regulate the cost of newspapers with respect to the number of pages and the allocation of space for advertisements. The company also challenges the Daily Newspaper Order, 1960 under the Newspaper Act which was passed by the government to start such regulations. The act and order regulated the prices a publisher could charge for the newspaper and hence the petitions argued that both the Newspaper Act and the Newspaper Order violated the freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution. The court in this matter held that the laws mentioned by the petitioners i.e., Increasing advertisement prices would either result in an increase in the cost of the newspapers or would result in the reduced number of pages which would be the dissemination of ideas which indeed is a fundamental aspect of the right to freedom of speech and expression. The court held that the right to freedom of speech cannot be taken away from a company with the sole objective of restricting business and hence the Newspaper Act and Newspaper Order were said to be unconstitutional by the Supreme Court of India. 5.8.R. Rajagopal vs State of Tamil Nadu31 A prisoner named Auto Shankar, who was held for murder and was sentenced to life imprisonment and death sentence, wrote an autobiography when he was imprisoned. The book discussed his personal life and his relationship with many senior police officials, a lot of whom have been said to be involved with him in many illegal acts. Before his death sentence, he handed over the book to his wife after informing the prison officials of the same and the wife gave the book to the petitioners i.e., the editor, the associate editor, the printer, and the publication of a Tamil Magazine, for its publication. The IGP, when he got to know about the book, wrote to the publisher stating that the contents of the book were false and untrue, that the book was defamatory in nature, and that strict legal action will be taken against them if they 30 1962 AIR 305 31 1995 AIR 264
  • 29. proceed with publishing the book. The Tamil Magazine editor filed a petition against the IGP to prevent him from violating their and the prisoner’s right to freedom of speech and expression. The Supreme Court in this case held that the magazine had the right to publish the autobiography written by the prisoner, without his consent or authorization. It held that the state cannot prevent the publication but may sue the plaintiff for defamation after the article is published, but they had no right to stop the petitioners from publishing the book. It held that every person has the right to publish his/her autobiography because of his/her fundamental rights under Article 19 of the Indian Constitution and hence, the case was in favor of the petitioners.
  • 30. 6. CONCLUSION The fundamental rights guaranteed by the Indian Constitution serve as a guarantee that as long as democracy prevails and everyone in India is guaranteed the preservation of their fundamental rights. These civic freedoms have precedence over all other laws of the country. The full development of the people and the country depends on fundamental rights. The earliest written guarantee of these basic rights is found in the Magna Carta. While these rights cannot be established, they do exist in the natural world. These rights have been outlined in several nations’ bills of rights and other legal texts. As they interfere with the ability to live a normal life, these rights cannot be taken away from any human being. Citizens in democracies must thus take precautions to prevent the infringement of their rights. In contemporary liberal democracies, freedom of speech and expression is often seen as a fundamental and universal idea. In making its ruling on freedom of speech, the Supreme Court of India benefited greatly from the rulings of foreign courts, particularly those in the US, UK, and Europe. A global rule of law on free speech that goes beyond the minimum level imposed by the most important human rights agreements that are almost universally ratified may not be conceivable. Now, the “age of information” is a reality, and electronic media is a major source of power. Thus, to conclude, Fundamental Rights are considered to be the backbone of the Indian Constitution. It is the protector of Democratic values in society. However, the Constitution also provides for riders to each of the rights enshrined in it. It is imperative for us to understand that rights always follow duties hence, it is high time for us to take responsibility along with the fundamental rights gifted to us by the framers of the Constitution. The Right to Freedom of Speech and Expression as provided under Art. 19 of the Constitution of India though witnessed remarkable developments since its inception has confronted the growing challenges and new trends in the society. Our Judiciary is =constantly addressing the issues posed before it from time to time meeting the ends of justice and equity. However, the new laws laid down by the Courts should not act as a paper tiger rather they should see the light of day serving the cause of the people.