Table of Contents
Right to Freedom
This article deals with ‘Right to Freedom .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here
Guarantees 6 Rights to Citizens but these rights are
- Protected against only state action & not private individual
- Available to citizen only & not to foreigner & legal persons
Article 19(1)(a) Freedom of Speech & Expression
Citizen has right to express his views, opinion, belief etc via writing, painting , picturing etc
SC verdicts has increased scope of this to other areas
- Right to propagate ones & other’s view
- Right to Silence
- Freedom of press
- Right to telecast ie state don’t have monopoly on electronic media
- Right to know about government activities
Romesh Thapar vs State of Madras (1950) – Freedom of Speech and of Press laid at the foundation of all democratic organisations , for without free political discussion there is no public education , which is essential for proper functioning of popular government .
First Amendment to Indian Constitution authorized the Union and State legislatures to put ‘reasonable restrictions’ on free speech under Article 19(2) on 8 grounds
- Sovereignty & integrity of nation
- Security of state
- Friendly relations with foreign states
- Public order
- Decency and Morality
- Contempt of court
- Incitement to an Offence
Fodder : Cases in news where Freedom of Expression was suppressed
|India ranks 138 among 190 nations on the World Press Freedom Index published by Reporters without Borders (behind even Afghanistan (120)
|Murder of Rationalists
|Rationalists like Dabholkar , Pansare & Gauri Lankesh were killed by Right wing for taking rationalist view
|Ban on movies under threat to Public order. Recent examples include Padmavati
Article 19(1)(b) Freedom of assembly
- Citizen has right to assemble peacefully & without arms
- Freedom can be exercised in public & not private land
- Doesn’t protect violent, disorderly, riotous assemblies which cause breach of Public peace
- Restriction – on 2 grounds
- Sovereignty & integrity of nation
- Public order including maintenance of traffic in area
Article 19(1)(c) Freedom of association
- All citizens have right to form Associations or Unions or Cooperatives (Co-Operatives were added by 97th Amendment , 2011)
can be imposed on grounds of
- Sovereignty & integrity of India
- Public order
- SC Rulings – Trade Unions have no right to effective bargaining or right to strike or right to declare lock out & Right to Strike can be controlled by appropriate Industrial Law
Article 19(1)(d) Freedom of movement
- All citizens are entitled to move freely throughout the territory of country (underline idea that India is one unit)
can be imposed on two reasons –
- Interest of general public
- Protection of interests of any Scheduled Tribe
- SC ruling – Freedom of movement of prostitutes can be restricted on the ground of public health & in interest of public morals
- Freedom of Movement has two dimensions
|Right to move inside country (dealt by Article 19)
|Right to move out of country & right to come back to country (dealt by Article 21)
Article 19(1)(e) Freedom of residence
- All citizens have right to reside in any part of territory of India
- Has two parts
- To stay temporarily,
- To set up home or domicile at any place permanently
: Reasonable restrictions can be imposed
- In Interest of general public
- Protection of interest of any scheduled tribes
- SC ruling – Certain areas can be banned for certain kinds of people like Prostitutes & habitual Offenders
- Right to Reside & Right to movement are overlapping to some extend & are complementary to each other
- Right to acquire, hold & dispose off property
- Was there in original constitution but removed after 44th Amendment
Article 19(1)(g) Freedom of profession
- All citizens has right to practise any profession or carry any occupation, trade or business
- State can
impose restrictions in
- Prescribe professional or technical qualification for practicing some profession
- Carry by itself any trade as complete monopoly
- According to SC Judgements , Right doesn’t include professions that are immoral(prostitution) or dangerous(drugs & explosive) & can prohibit or regulate these
Side Topic – Doctrine of Res Extra Commercium
- Res extra commercium (lat. “a thing outside commerce”) is a doctrine originating in Roman law and was understood to include things of the nature which cannot be traded between individuals.
- SC has used this in following cases
- Various decisions of Supreme Court regarding to fundamental right of a citizen to trade in liquor. In recent case of PIL deciding banning sale of Liquor on Highways.
- In RMD Chamarbaugwala v. Union of India , Apex Court held that gambling was an activity res extra commercium
Issues related to Article 19
Issue 1: Heckler’s Veto
- Heckler’s veto is phenomenon in which by threatening public disorder or disturbance, socially powerful groups can shut down critical or inconvenient speech
- In S. Rangarajan vs. P. Jagjivan Ram (1989) , Supreme Court ordered that it was the state’s constitutional duty to maintain law and order, and Government can’t say in order to preserve peace they are curbing the other person’s freedom of speech.
Issue 2 : Shreya Singhal Case & Section 66-A of IT Act
Section 66-A of IT Act
Any person who sends, by means of a computer resource or a communication device any information that is
- grossly offensive ,
- false information intending to cause annoyance etc.,
- intended at deceiving about the origin of the message
shall be punishable with imprisonment for a term which may extend to three years and with fine.
Court’s Judgement (Shreya Singhal vs Union of India)
Court has propounded a new test to check the limit of Freedom of Speech & Expression
- According to court there are three concepts fundemental in understanding this freedom ie Discussion, Advocacy & Incitement
|Mere discussion or even advocacy of a particular cause, howsoever unpopular, is at the heart of Article 19(1)(a).
|Only when such discussion or advocacy reaches the level of incitement that Article 19(2) ie curtailing speech & expression kicks in
Words used such as annoying, inconvenient, grossly offensive, etc shows that no distinction is made between mere discussion or advocacy of a particular point of view with incitement
Hence, Section 66A can’t be saved under Article 19(2) and is unconstitutional.
Issue 3: Criminal Defamation
Subramaniam Swamy vs Government of India (GoI) ( June 2016) Judgement
Supreme Court upheld the Constitutional validity of Criminal Defamation (Section 499 and 500 of IPC) .
- SC declared that Right to “reputation” was protected under Article 21 & Right to free speech under Article 19(1)(a) had to be “balanced” against the right to “reputation” under Article 21.
Note – Sections 499 and 500 of IPC prescribes two years’ imprisonment for a person found guilty of defamation
Note : Article 19(2) contains 8 grounds in the interests of which a law may reasonably restrict the right to free speech. Defamation is one of the 8 grounds, but the provision is silent as to which type of defamation, civil or criminal
Arguments : Section 499 & 500 of IPC should be scrapped
|Reputation is not absolute. It is a social construct based on shared perceptions which can change with time
|Chilling impact on freedom of speech
|State & Corporations use it as a means to coerce the media to adopt self-censorship. Law Commission had also spoken of its “chilling effect”
|Has outlived its use
|Defamation originates from the concept of scandalum magnatum – the slander of great men – which protected the reputations of aristocrats. It was brought to India by Colonists .
|No Reason it to be Criminal Offence
|One has to distinguish between private harm and social harm . Defamation don’t cause any social harm . Hence, keeping it in Statute books as Criminal offense doesn’t make sense. It should be made civil offence .
|United Nations Special Rapporteur on Freedom of Expression has all called upon States to abolish criminal defamation In 2009, the UK (from whom India borrowed this) abolished criminal defamation altogether.
Argument : It shouldn’t be removed
- Article 19 (2) uses the word ‘defamation’ in the context of reasonable restriction.
- Right to Reputation under Article 21
- Proper Safeguards introduced : If it falls under any of the 10 exemptions under law, defamation case cant be filed .
- It takes lot of time , more than decade on average , to settle Civil Disputes.
- In India, citizens are unlikely to have enough liquidity to pay damages for civil defamation and hence criminal defamation is necessary.
- Protection in respect to Conviction for Offences
- Grants protection against arbitrary & excessive punishment to an accused person whether citizen or foreigner or legal person
- This Article can not be suspended even during National Emergency.
It has three important provisions
|No Ex-post facto Law
|– Person shall be tried according to law which was there at time of commission of act
– No penalties retrospectively
Hence, it limit the rights of the sovereign legislature in a limited manner .
|No Double Jeopardy
|– No person can be punished for same crime more than once
– Not available to department & administrative proceedings because they arent judicial in nature
2017: Fodder Scam (Lalu Prasad Case) – SC held that a general conspiracy which gives birth to a cascade of distinct offences (smaller conspiracies) committed in various places spread over several years and involving different accused persons cannot be boxed into one trial. It over-ruled Jharkhand HCs Judgement in which it was held that since they have been convicted in one of the cases linked to the fodder scam, they need not stand trial for the others and it will lead to Double Jeopardy .
|No self incrimination
|– No person can be compelled to witness against himself
– For Criminal & not Civil proceedings
1. Right to Silence : Burden to prove the guilt is on state and Accused is presumed to be innocent until proven guilty beyond any reasonable doubt are implicit in Protection against Self Incrimination
2. Selvi vs State of Karnataka (2010) – Forcible administration of scientific techniques/tests like narco analysis , Brain Electrical Activation Profile (BEAP) test etc during course of investigation would be unjustified intrusion into mental privacy and would be violative of self incrimination.
Related Topic : Anti-Torture Law
Supreme Court has told Government to make Anti-Torture Law many times in the recent past.
Why we should have Anti Torture Law
- India signed UN Convention against Torture (CAT) in 1997 (but is yet to ratify it)
- Due to absence of such law, large number of requests for extradition are turned down. Eg : extradition request relating to Purulia arms drop case suspect Kim Davy failed
- Indian Police Agencies frequently resort to Torture to extract confession.
- 273rd Report of the Law Commission has recommended to pass a law to prevent custodial torture .
- India also faced tough peer review at UNHRC due to Custodial Tortures
- For protection of Article 20 & 21
Prevention of Torture Bill was passed by the Lok Sabha in 2010 , but it lapsed . It was a progressive legislation which included sleep deprivation, sound bombardment etc apart from murder and broken bones (grievous hurt) under torture.
Article 21 – Protection of Life & Personal Liberty
- No person shall be deprived of his life or personal liberty except according to procedure established by law
- Available for both citizens & non-citizens
- This FR is available against state only . If private individual or company or autonomous body leads to encroachment of this right , remedy is available either under Article 226 or general law
Can be seen in two phases
|AK Gopalan Case
|– 1950 – Supreme Court took narrow interpretation
– Ruled that Article 21 is available against arbitrary Executive Action & not from Legislative Action . State can deprive Right to Life based on law
– Because of expression ‘procedure established by law’ which is different from ‘due process of law’
|Maneka Gandhi Case
| (Case was basically against impounding of passport of Maneka Gandhi without giving him due hearing)
– 1978 – Supreme Court overruled its previous judgement & gave wider interpretation.
– Article 19 & 21 are not water tight . Law coming under Article 21 must satisfy Article 19 too
– Hence introduced ‘due process of law’ ie life & personal liberty can be deprived by law provided that law is reasonable, fair & just
– Protect not only from executive but also from legislative action
After Maneka Case , Supreme Court increased the ambit of Article 21 to include following
|Right to live with human dignity
|Right to livelihood
|Right to decent environment
|Right to health
|Right to shelter
|Right to free legal aid
|Right to free education upto age 14
|Right to speedy trial
|Right against public hanging
|Right against custodial death
|Right against hand cuffing
|Right against solitary confinement
Increased it to Right to Reputation in Subramanium Swami vs Government of India Case (June 2016)
Side Topic : US Supreme Court Judgements influenced decisions under Article 21
- Munn vs Illinois (1876) – Justice Field explained that meaning of term LIFE is very wide and is more than mere animal existence. Similarly , term LIBERTY is something more than mere freedom from physical restraint or bounds of prison
Issues related to Article 21
Issue 1 : Right to Privacy Issue
Main Case : Justice KS Puttaswamy vs Union of India
- July 2017 : Justice K. S. Puttaswamy (retd.) vs Union of India, a 9 judge Constitution Bench of the Supreme Court ruled that right to privacy is an intrinsic part of life and liberty under Article 21.
- Case was just to decide Right to Privacy
Judicial History of Right to Privacy
- MP Sharma Case (1954) : 8 Judge bench held that Right to Privacy is not a FR under Indian Constitution
- Kharak Singh vs State of UP (1962) : Kharak Singh was arrested in a case of dacoity, but was released as there was no evidence against him. Uttar Pradesh Police brought him under “surveillance” which he challenged . SC held that Right to Privacy is not FR.
But after that many judgements came which ordered State to be sensitive of Privacy of Citizens
- Malak Singh vs State of Punjab (1981) : Police shouldn’t violate privacy of a citizen while exercising surveillance over him
- People’s Union for Civil Liberties (PUCL) vs Union of India (1997) : Wiretapping without adopting reasonable procedure established by law is a violation of an individual’s privacy .
Right to Privacy declared Fundamental Right under Article 21
- Justice K. S. Puttaswamy (retd.) vs Union of India, a nine judge Constitution Bench of the Supreme Court ruled that right to privacy is an intrinsic part of life and liberty under Article 21.
But with development of S&T and the rate at which privacy destroying technology has developed , Right to Privacy Act specifically dealing with all aspects of privacy is need of the hour
- Right of Privacy is integral part of
- Universal Declaration on Human Rights (UDHR)
- International Covenant on Civil and Political Rights (ICCPR), 1966
- UN Charter (1945)
- India is member of all .
Right to Privacy in other countries
- In US , SC declared that Right to Privacy is FR in 19th century in response to yellow journalism (yellow journalism : newspapers that present little or no legitimate well-researched news & instead use eye-catching headlines for increased sales)
- UK too recognises Right to Privacy as Right under “castle doctrine” of English common law, meaning an Englishman’s home was his castle.
(Conclusion) Why Right to Privacy should be Fundamental Right
- As opined by SC in Justice KS Puttaswamy vs Union of India, Right to Privacy is intrinsic part of Article 21
- Castle Doctrine & other countries : Castle Doctrine says that Person’s home is his Castle and is part of laws of many countries including UK . In US , SC has already declared it to be FR
- Conventions : Various Conventions like Universal Declaration on Human Rights (UDHR) & International Covenant on Civil and Political Rights (ICCPR), 1966 of which India is part also state about this .
- Various Commissions like Justice AP Shah Commission on Privacy Law and Justice BN Srikrishna Commission has recommended need to protect the privacy of persons .
- To Prevent digital colonisation by digital & e-commerce businesses which treat Data as new currency
Issue 2 : Euthanasia
- Word ‘Euthanasia’- originated in Greece, meaning mercy killing
- Two types
- life ending medication is administered to the patient by a third party, usually a doctor (Active Euthanasia) or
- Life support is withdrawn (Passive Euthanasia)
Arguments against Euthanasia
- Constitution of India – according to SC judgement in Gian Kaur Case,1996 , Right to Life doesn’t include Right to die
- Neglect of Healthcare by State – example : Holland.
- Malafide intention – misusing Euthanasia by family members or relatives for inheriting the property of the patient . This was held in Aruna Shanbaug Case too.
Arguments in favour of Euthanasia
- Supreme Court Judgement : Common Cause Case (2018) held that Right to Life include Right to refuse treatment and Die with Dignity and allowed Passive Euthanasia and living wills regarding this.
- Hospitals are already overcrowded. Hospitals should devote resources on those patients which can be cured.
- Care-givers Burden: The caregiver’s burden is huge . Many families have gone bankrupt to ensure medical care for a terminally ill person .
- Encouraging Organ Transplantation
- Law Commission in various reports has spoken in favour of Passive Euthanasia
Aruna Shanbaug Judgement
- Didn’t allow Active Euthanasia but allowed ‘Passive Euthanasia’ in rarest of the rare cases subject to safeguards
- Have to take approval of High Court Bench, based on consultation with a panel of medical experts.
- Only hospital could make such a request (friends and relatives cant).
2018 : Passive Euthanasia and Living Will Judgement (Common Cause vs Union of India)
- PIL filed by NGO Common Cause in 2005 in Supreme Court.
- It held that
- Right to life includes right to refuse treatment and die with dignity ie it allowed Passive Euthanasia
- It allowed LIVING WILL regarding Passive Euthanasian made in presence of Judicial Magistrate .
Issue 3 : Right to Marry
Supreme Court (SC) of India has recognised Right to Marry within scope of Right to Life and Personal Liberty .
Various Judgements regarding this
- 2018 – PIL in Shakti Vahini Case : Supreme Court has took firm stand against Khap Panchayat in their interference in marriages and honour killings.
- 2018 – Hadiya Judgement : Right to Marry is included in Right to life and liberty
- Lata vs State of UP (2006) : Right to Marry is a fundamental part of Right to Life under Article 21 .
- Bhagwan Das vs State (NCT) of Delhi (2011) : Honour Killings fall within the ambit of ‘rarest of rare cases‘ and perpetrators deserve death punishment.
US Supreme Court has given strong judgement with regard to marrying person of his / her own choice
- Loving vs Virginia (1967) : US SC invalidated laws prohibiting interracial marriage
- Bostic vs Schaefer (2015) : Validated same sex marriage
Issue 4 : RIGHT TO LIFE & GREEN LAWS
Several instances where court intervened
- Basis of the “polluter pays” principle pronounced in Bichhri Judgement in Rajasthan, where groundwater and wells were poisoned by industrial effluents.
- Vellore Citizen Welfare Forum vs Union of India (1996) – SC recognised Right to live in Healthy Environment is FR and is part of Article 21
- Doon Valley Case (1989) – SC had to deal with dispute involving mining in hilly areas .
- MC Mehta Case : CNG in Delhi and order to implement Bharat Stage norms
Issue 5 : Lynchings
In news due to Cow Vigilantism and lynchings done on the name of protecting cow .
Reasons of lynchings
- Political Reasons
- Instrumentalisation of prejudice for political ends.
- Religious reasons
- Cow considered mother in hinduism. People easily mobilised using cow symbol
- Whatsapp used to spread rumours
Aspects of the problem
- People are being executed either on the name of religion or caste. Major targets are
- Minority especially Muslims – On allegations of eating and trading in beef.
- Low Caste : They depend on work in the meat and leather industries.
- Fundamental Rights violated :
- Right to Life (Article 21) of Minority communities
- Article 19(1)(g) : Right to Freedom of Profession
- Government’s negligence
- Government is not acting with firm hand and protecting perpetrators of Crime
- Lynching does not find mention in the Indian Penal Code.
- Government maintains no data on Lynchings & NCRB don’t record lynching as separate offence
Consequences of increased lynchings
- Mob Justice mentality on rise
- Loss of faith of minority in state machinery . They can pick up arms if further alienated
- Impact on Farmers : Farmers are feeling the heat because animal husbandry is side business of Farmers . But due to fear of Cow Vigilantes during transportation, market and price of Cattle has come down exponentially.
- Communalism on rise
- India coming under huge pressure from Human Right Groups and faced lot of criticism at UNHRC peer review
- Loss of trade – Leather and Meat industry both impacted which was Foreign Exchange earner .
Uttar Pradesh Law Commission (UPLC) earlier last month took the initiative, unprompted by the Uttar Pradesh government, to recommend a draft anti-lynching law. It commends a law which closely follows in almost every major detail the first law against lynching passed in this country, a remarkable ordinance introduced by the Manipur government late last year, indeed the most significant statute against religious hate crimes in the country.
Ashok Gehlot-led government in Rajasthan has also tabled Rajasthan Protection From Lynching Bill, 2019 (second after Manipur)
- Setting up of special courts
- appointment of a dedicated nodal officer
- Enhanced punishments : Life term with fine upto 5 lakh
- Provide legal aid, compensation and rehabilitation .
Lacunae : unlike the law on mob lynching in Manipur, it does not prescribe any punishment for dereliction of duty.
- Government should pass MASUKA (Manav Suraksha Kanoon) proposed by NGO (National Campaign against Mob Lynching) to act tough against vigilante groups
- Government should adopt Zero Tolerance towards such acts . Feeling of Impunity gives these Vigilante Groups encouragement .
- Judiciary must be vigilant enough to protect Right of Life
- Urgent need for police reforms by improving organizational capabilities or insulating the police from political pressure
Article 21 A
Right to education
State shall provide free & compulsory education from age 6 to 14 via 86th Amendment,2002
- Earlier under Article 45 but wasn’t justiciable
- 1993 – SC ruled Right to education is included in Article 21 itself
- Right of Children to Free & compulsory Education (RTE),2009 was enacted by Parliament in its pursuance
- Protection against Arrest & Detention
- Grants protection to persons who are arrested or detained
Contain two parts
Deals with Punitive detention & confers following Rights
- Rights to be informed of grounds of arrest as soon as arrest is made
- Right to consult & to be defended by legal practitioner of his choice
- Right to be produced before magistrate within 24 hrs
- Right to be released after 24 hr unless magistrate authorises so
Available to alien also (but not enemy alien)
Deals with Preventive detention & confers following rights
- Detention can’t exceed 3 months unless advisory board consisting of HC judge advices so
- Grounds of detention should be communicated to detenu
- Detenu should be afforded opportunity to make representation against detention order
44th Amendment – reduced period from 3 to 2 months but not yet brought into force
India is the only democracy in world which has preventive detention as integral part of constitution
An accused person can be compelled to give his thumb impression but cannot be compelled to be a witness against himself
2018 Judgement : Supreme Court held that Preventive detention of a person by a State merely because the normal legal process is ineffective and time-consuming is illegal.
Analysis of Preventive Detention in India
A person can be put in jail / custody for two reasons. One is that he has committed a crime. Another is that he has potential to commit a crime in future. The custody arising out of the later is Preventive Detention .
Historical background of Preventive Detention in India
India has a long history of “Preventive Detention”. Acts using Preventive Detention are
- Bengal Regulation III , 1818
- Preventive Detention Act, 1950
- TADA , 1985 (to deal with terrorism in Punjab)
- PSA (Public Safety Act) => in force now
States and Goonda Acts
|– Using Provisions of Preventive Detention , States have enacted Goonda Laws
– Goonda Act are enacted for Preventive Detention of habitual offenders
|2019 : MP Government charged persons under Public Safety Act for Bovine trade
Arguments against the provision
- Repugnant to modern democratic constitutions. They are not found in any of the democratic countries.
- Detaining person under Preventive Detention affects the life and liberty of the citizen under Articles 14, 19, 21 and 22 .
- It obviates the International Covenant on Civil and Political Rights (ICCPR) which permits that rights can only be limited “in time of public emergency which threatens the life of the nation” but it allows detention in peacetime as well.
- The long period of detaining (3 months) poses a threat of torture.
- In the absence of proper safeguards, preventive detention has been misused, particularly against the Dalits & minorities.
- States are misusing these provision to make Goonda Acts . Political scores are settled using these provisions
Arguments for the provision
- Circumstances at the time demanded such provisions. Bhimrao Ambedkar who was liberal in orientation too spoke in favour of these provisions as challenges of centrifugal forces faced by newly formed nation were great at that time.
- Number of persons detained in these acts is not a very large and due attention is made before preventive detention.
- Having such kind of acts has a restraining influence on the anti-social and subversive elements.
Conclusion : The PD is a “necessary evil”. But problem is its misuse for political and other motives.
Note : It was Vallabhbhai Patel, a mascot for the advocates of a “hard state”, who introduced and got the preventive detention bill passed in 1950. But the bill was not easy on his conscience. He conceded that he spent two sleepless nights before introducing the bill in Parliament and moved it only because of the political and social turmoil that followed Partition and Independence.Over the last 70 years, provisions of preventive detention which were incorporated to be used as “necessary evil”, has come to be normalized as a “necessary condition” and transitioned from being exceptional measures for exceptional situations, to extraordinary measures for ordinary situations.
Current cases of Preventive Detention
|MP Cow cases (2019)
|MP government used PSA to detain those who have alleged to have committed offences related to cattle laws (maximum punishment of which can be just 1 year)
|Dec 2018 => Manipur Journalist arrested under Preventive Detention (under PSA) for 1 year after he called Manipur CM to be puppet of Centre.
|Chandra Shekhar Azad / Ravan
|2018 : Arrested under PSA