Constittional Law 4th Trimester

7/27/2019 Constittional Law 4th Trimester

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Constitutional law project

On

Ground for restriction under article 19(2)

Submitted by: submitted to :

Deepak Kaneriya miss. Kuldeep Kaur

2012ballb76



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Table of index

Name of topic page no.

Introduction………………………………………………….. 4

Indian position of fundamental rights……………….. 4-5

Rights conferred in Article 19……………………………. 5-6

What are reasonable restrictions………………………….. 6

Test of reasonable restriction ………………………….. . 6-10

Conclusion………………………………………………………… 11

Bibliography…………………………………………………………. 12



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introduction

Position in U.S.A.

First amendment to the United States (US) Constitution, a bellwether in the pursuit of expanding

the horizon of civil liberties. This Amendment provides for the freedom of speech of press in the

American Bill of Rights. This Amendment added new dimensions to this right to freedom and

purportedly, without any limitations. The expressions used in wording the Amendment have a

wide magnitude and are capable of liberal construction. It reads as under:

Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a redress of grievances.

Although the First Amendment to the American Constitution provides that Congress shall make

no law abridging the freedom of speech, press or assembly, it has long been established that

those freedoms themselves are dependent upon the power of the constitutional Government to

survive. If it is to survive, it must have power to protect itself against unlawful conduct and

under some circumstances against incitements to commit unlawful acts. Freedom of speech, thus,

does not comprehend the right to speak on any subject at any time.

Indian position

In contradistinction to the above approach of the US Supreme Court, the Indian Constitution

spells out the right to freedom of speech and expression under Article 19(1)(a). It also provides

the right to assemble peacefully and without arms to every citizen of the country under Article

19(1)(b). However, these rights are not free from any restrictions and are not absolute in their

terms and application. Ar ticles 19(2) and 19(3), respectively, control the freedoms available to a

citizen. Article 19(2) empowers the State to impose reasonable restrictions on exercise of the

right to freedom of speech and expression in the interest of the factors stated in the said clause.

Part 3 of Indian constitution deals with fundamental rights. Below is the detail of article 19 I;e

freedom of speech and expression.



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Article 19- Protection of certain rights regarding freedom of speech, etc

19. (1) All citizens shall have the right —

(a) to freedom of speech and expression;

(b) To assemble peaceably and without arms;

(c) To form associations or unions;

(d) To move freely throughout the territory of India;

(e) To reside and settle in any part of the territory of India;

Article 19 as above mentioned is deals with the protection of certain rights like freedom of speech and

expression , to form an association and to move freely within and throughout the territory of union of

India and last but not least to live and settle in any part of the territory of India. Right mention above are

basic and fundamental but not absolute which means that, there is some reasonable restriction should be

imposed on article 19.

Who can decide the reasonableness of r ight?

In the case of Babulal Parate v. State of Maharashtra , it was held that burden to decidereasonableness lies on court.

“Reasonable restriction contemplated under the Indian Constitution brings the matter in the

domain of the court as the question of reasonableness is a question primarily for the Court to

decide.”

The fundamental right enshrined in the Constitution itself being made subject to reasonable

restrictions, the laws so enacted to specify certain restrictions on the right to freedom of speechand expression have to be construed meaningfully and with the constitutional object in mind. For

instance, the right to freedom of speech and expression is not violated by a law which requires

that name of the printer and publisher and the place of printing and publication should be printed

legibly on every book or paper.



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The pre-amendment Article had empowered the State to make laws imposing reasonable

restrictions in exercise of the rights conferred under Article 19(1)(a) in the interest of 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 of an offence. To introduce a more

definite dimension with regard to the sovereignty and integrity of India, this Amendment was

made by the Constitution (First Amendment) Act, 1951 with retrospective effect.

As we all well aware of the freedom of speech and expression is regarded as the first condition of

liberty. It occupies a preferred position in the hierarchy of liberties, giving succor and protection

to all other liberties. It has been truly said that it is the mother of all other liberties. Freedom of

speech plays a crucial role in the formation of public opinion on social, political and economic

matters. It has been described as a; basic human right ;a natural right; and the like. With thedevelopment of law in India, the right to freedom of speech and expression has taken within its

ambit the right to receive information as well as the right of press.

Attainment of the preamble l ibert ies is eternall y connected to the li ber ty of expression. (Ref.

Preamble, the Spir it and Backbone of the Constitu tion of I ndia, by Justice R.C. Lahoti

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 overl ook the fact that the r ights granted are not absolute but are

subject to permissible restr ictions. Thus the freedom to speak does not mean the freedom to say

whatever one likes, but freedom subject to the laws of li bel, sediti on, 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 ri ghts represent the claims of the individual and the limitations

represent the claims of other i ndividuals 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.



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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.

Rowh 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 . “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.

Article 19 (2) stated as;-

19(2) 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 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.

The reasonable restrictions are grounds which permit limitations to be placed on the exercise of

speech and expression and are contained under Article 19(2). These include,

(a) Securi ty of State;- 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



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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

. b) Fr iendly relations with foreign states;

c) Public Order; - 19(2) use 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‟

d) Decency or morali ty ;

e) Contempt of Cour t;

f) Defamation;

g) Incitement to an off ence;- 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 asaffecting 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 not 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

h) Sovereignty and integrity of I ndia.

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.



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If a law does not fall within these grounds and abridges the right to freedom of speech and

expression then it is ultra vires and declared void. For instance, in Bennett Coleman & Co. v

Union of I ndia

The Supreme Court again came to the rescue of the press. It held that freedom of press entitles

newspapers to achieve any volume of circulation and freedom lies both in its circulation and

content.

The reason behind that The right to freedom of speech and expression under Article 19(1)(a) is

limited by the restrictions contained under Article 19(2). Article 19(2) contains above various

grounds on which laws can be made which limit the exercise to freedom of speech and

expression. These grounds are collectively referred to as reasonable restrictions.

In the landmark case of Sakal Papers v. Union of I ndia The Indian Supreme Court held that the

Constitution permits the imposition of reasonable restrictions only within the grounds expressly

stated within Article 19(2). The position which has emerged is that the freedom to speech and

expression can be curtailed when:

(a) The restriction is through an authority of law to support it. A restriction cannot be based on

executive orders which are not empowered by legislation;

(b) This legislation and law which restricts the right to freedom of speech and expression should

fall within the reasonable restrictions as enumerated under Article 19(2);

(c) This restriction should be just, fair and reasonable and not be excessive and disproportionate

to the object sought to be achieved.

In the case of State of West Bengal Vs. Subodh Gopal Bose ( 1954)

It was held that that the State has a duty to protect itself against certain unlawful actions and,

therefore, may enact laws which would ensure such protection. The right that springs from

Article 19(1)(a) is not absolute and unchecked . There cannot be any liberty absolute in nature

and uncontrolled in operation so as to confer a right wholly free from any restraint. Had there

been no restraint, the rights and freedoms may become synonymous with anarchy and disorder.



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The onus of proving to the satisfaction of the Court that the restriction is reasonable is on the

state.



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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

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.

if the close or proximate effect of the law is that i t abri dges the fundamental r ights of the citizens

and i f the restr iction prevents such abridgment, then the restr iction i s 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



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Bibliography

Indian constitution by V.N.Shukla

Course material by miss kuldeep kaur

Manupatra .com

www.goforthelaw.com

http://www.goforthelaw.com/



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Constittional Law 4th Trimester