Article 19: the Six Freedoms and Their Restrictions

Total prohibition is not automatically unreasonable, but it requires the strongest justification, and a State monopoly is expressly permitted by 19(6)(ii).

Why article 19 matters on this paper, and its limitation

It is the classic bundle of civil and political rights, corresponding to articles 19, 20 and 21 of the Universal Declaration and articles 19, 21 and 22 of the Civil and Political Covenant.

It is where the Constitution's structure of limits is visible. Article 21 states its limit in six words; article 19 sets out eight grounds for speech alone. That difference in drafting is why article 21 grew into a general guarantee and article 19 did not.

And it is a citizen right, which is its limitation on a human rights paper. A foreigner in India holds no part of article 19. That mismatch is the largest single divergence between Part III and the international instruments, since freedom of expression under article 19 of the Covenant belongs to everyone. [Rights of Persons and Rights of Citizens] takes it, and [What Part III Does Not Contain] returns to it.

The three articles read together

Articles 14, 19 and 21 are not separate compartments.

A law depriving a person of personal liberty must satisfy article 21, by prescribing a procedure that is fair, just and reasonable; article 14, by not being arbitrary or discriminatory; and article 19, if it also restricts one of the six freedoms, by being a reasonable restriction on a permitted ground.

That doctrine is a development of the late 1970s and reversed an earlier view that the articles occupied separate fields. [Due Process Read into a Constitution That Refused It] takes it in full, and it is the single most consequential move in Indian constitutional law for this paper.

Worked example

A question about the freedoms, or about the balance between liberty and public order.

List the six freedoms with their letters, and say that (f) was omitted in 1979.

Give the restriction clauses, and stress that the grounds are exhaustive and differ between freedoms.

Give reasonableness: no formula, the factors, substantive and procedural, and proportionality.

Say that article 19(1)(d) and (e) are the citizen rights whose absence matters most for a non-citizen.

Close on the reading of 14, 19 and 21 together, because in a modern answer no restriction on liberty is tested under one article alone.

What it does NOT mean

It does not mean the freedoms are absolute. Each carries its own restriction clause.

It does not mean the State may restrict on any ground it thinks good. The grounds are exhaustive and differ by freedom.

And it does not mean a total prohibition is always void. It requires the strongest justification, and article 19(6) expressly permits State monopoly.

Quick revision

• 19(1): (a) speech and expression; (b) assemble peaceably and without arms; (c) associations, unions or co-operative societies; (d) move freely throughout the territory; (e) reside and settle; (g) profession, occupation, trade or business.
• No (f). The property right was omitted by the Forty-fourth Amendment, with effect from 20 June 1979, and the lettering was not renumbered.
• 19(2), speech, eight grounds: sovereignty and integrity, security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation, incitement to an offence.
• 19(3) assembly: sovereignty and integrity, public order. 19(4) association: adds morality. 19(5) movement and residence: general public, or protection of the interests of any Scheduled Tribe. 19(6) trade: general public, plus qualifications and State monopoly.
• The grounds are exhaustive, they differ between freedoms, and every clause requires the restriction to be reasonable.
• Reasonableness: no formula; nature of the right, purpose, extent and urgency of the evil, disproportion, prevailing conditions; substantive and procedural; increasingly proportionality.
• All six are citizen rights. A foreigner holds none of them.
• Articles 14, 19 and 21 are read together.

Test yourself

1. Set out article 19 and explain the structure of its restrictions. Article 19(1) confers on all citizens six freedoms: freedom of speech and expression in (a); the right to assemble peaceably and without arms in (b); to form associations or unions or co-operative societies in (c), the last words added by amendment in 2011; to move freely throughout the territory of India in (d); to reside and settle in any part of it in (e); and to practise any profession or carry on any occupation, trade or business in (g). There is no sub-clause (f): it conferred the right to acquire, hold and dispose of property and was omitted by the Forty-fourth Amendment with effect from 20 June 1979, the remaining letters being left unrenumbered so that the article now runs (a) to (g) with a gap.

Clauses (2) to (6) permit restriction. Clause (2) allows reasonable restrictions on speech 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. Clause (3) allows restriction of assembly in the interests of sovereignty and integrity or public order; clause (4) allows restriction of association on those grounds and morality; clause (5) allows restriction of movement and residence in the interests of the general public or for the protection of the interests of any Scheduled Tribe; and clause (6) allows restriction of trade and profession in the interests of the general public, and expressly saves laws prescribing professional or technical qualifications and laws providing for the carrying on of any trade by the State or a State corporation to the complete or partial exclusion of citizens. Three features govern: the grounds are exhaustive, they differ between the freedoms, and every clause requires the restriction to be reasonable.

2. What does reasonableness mean, and who decides it? There is no formula, and any answer that offers one is overstating the law. The court examines the nature of the right infringed, the underlying purpose of the restriction, the extent and urgency of the evil sought to be remedied, the disproportion of the imposition, and the prevailing conditions at the time. Both substantive and procedural reasonableness are examined, so a restriction may be unobjectionable in what it forbids and still fail because of how it is imposed, for instance by conferring an unguided discretion on an official or by providing no opportunity to be heard. Arbitrariness defeats reasonableness, which is the point at which article 14 enters, and in recent decades proportionality has increasingly supplied the framework: a legitimate aim, a rational connection between the measure and that aim, necessity in the sense that no less restrictive alternative would achieve it, and a fair balance between the harm caused and the benefit obtained.

The court decides, not the legislature. That allocation is the whole of the protection article 19 gives, because a legislature able to certify its own restrictions as reasonable would face no limit at all. A total prohibition is not automatically unreasonable, but it demands the strongest justification, and clause (6) expressly contemplates the extreme case by permitting the State or a State corporation to carry on a trade to the complete or partial exclusion of citizens.

3. Why is article 19 both central to and limited on a human rights paper? It is central because it is the classic bundle of civil and political rights and because it is where the Constitution's structure of limits is fully visible. It corresponds to articles 19, 20 and 21 of the Universal Declaration and to articles 19, 21 and 22 of the Civil and Political Covenant, and its drafting shows the Assembly's method: state the freedom, then state exhaustively the grounds on which it may be restricted, then require that any restriction be reasonable and leave that question to the courts. The contrast with article 21, which states its limit in six words, is instructive, and it explains why article 21 grew into a general guarantee while article 19 did not: an article that lists its own exceptions is harder to expand.

It is limited because all six freedoms belong to citizens only. A foreigner in India, including a refugee, a migrant worker or a stateless person, holds no part of article 19, so a restriction on where they may live or travel cannot be attacked under 19(1)(d) or (e) and must be challenged as arbitrary under article 14 or as an unfair procedure under article 21. That is the largest single divergence between Part III and the international instruments, because freedom of expression under article 19 of the Covenant belongs to everyone and is not reserved to nationals, and it is one of the standing criticisms of the Indian scheme.