Through this article, the author seeks to understand the meaning of ‘Reasonable Restrictions’ embodied under Article 19 of the Indian Constitution. This article has been authored by Sidharth Sabu, associated with National University of Advanced Legal Studies.
Introduction
The fundamental rights guaranteed under the Constitution of India are non-absolute rights. This means that the extent to which these rights could be exercised may be limited by the State. This is where the concept of Reasonable Restrictions come in Article 19 of the constitution deals with freedoms and their respective grounds of restrictions.
Under Article 19(1), six freedoms have been laid down namely, freedom of speech and expression, freedom to assemble peacefully without arms, freedom to form associations and unions, freedom to move freely throughout the territory of India, freedom to reside and settle in any part of the territory in India, freedom to practice any profession or carry on any occupation, trade or business.
Corresponding to these six freedoms, certain grounds have been mentioned under article 19(2) to 19(6) on which the state may impose reasonable restrictions. It is not necessary that statutes may be enacted exclusively for restricting the freedoms under the restrictive clauses. When a statute enacted by the government restricts these freedoms, such restrictions have to be reasonable.
However, the term “reasonable” has not been defined under the constitution and no tests were laid down either. It is in this regard, the role of the Supreme Court to interpret the constitution comes into play. Over time, the Supreme Court has laid down, in a plethora of cases, various tests and principles with respect to the concept of reasonable restrictions.
The idea of a Test
Regarding the test to be applied, the Supreme Court in State of Madras v G Row[1] laid the basic principle that test of reasonableness whenever prescribed shall be applied to each individual statute impugned and no abstract or general principle of reasonableness shall be laid down as applicable in all cases.
Before discussing the principles relating to reasonable restrictions, it is important to see the provisions as laid in the Constitution. Article 19(2) states that the government may impose reasonable restrictions upon the freedom of speech and expression in the interest of the following factors;
- 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
- Incitement to an offence
Article 19(3) confers the state with the authority to impose reasonable restrictions upon the freedom to assemble peacefully without arms in the interest of the following;
- Sovereignty and integrity of India
- Public order
Article 19(4) states that the government may impose reasonable restrictions upon the freedom to form associations and unions in the interest of;
- Sovereignty and integrity of India
- Public order
- Morality
Article 19(5) grants the government the power to impose reasonable restrictions upon the freedom to move freely throughout the territory of India and the freedom to reside or settle in any part of the territory of India in the interest of the following factors;
- In the interest of the general public or
- The protection of the interests of any Scheduled Tribe
Under Article 19(6) the government may impose restrictions upon the freedom to practice any profession in the interest of the general public, and further, the government may make laws in relation to professional or technical qualifications for practising any profession and the government shall not be barred from carrying out any business or trade, industry or service.
Principles laid by the Supreme Court
“In the Interest of” – The Supreme Court has, in detail discussed wordings of these provisions. In all these provisions, the term, “in the interest of” has been repeated. It is to be noted here that it is not to be used interchangeably for “for the maintenance of” Thus, for instance, in the interest of public order does not mean that the law enacted by the government in order to be protected by the above-mentioned provisions needs to need to be for the purpose of maintaining public order.[2] The ambit of these provisions is hence very wide. In other words, a law which is not designed to directly ensure public order but penalizes the ones whose activities are detrimental to the same, the law shall be protected under reasonable restrictions.
Public Order – Public order is mentioned in clauses (2) and (4). Public order is a very wide concept which entails the idea of a peaceful society where its members can coexist maintaining the socially accepted morals and values. Thus, the government takes into consideration the aspiration and opinions of the society at large while enacting laws in the interest of public order. Public order is different from Public security as the later is embodied by the former. It is considered that any disturbance to peace and tranquillity to public peace harms public order.[3] It was held by the Supreme Court in The Superintendent, Central Prison, Fatehgarh v. Ram ManoharLohia[4], public order must be demarcated from the other grounds mentioned under Article 19(2) and taken in an exclusive sense to mean public peace, safety and tranquillity as opposed to national upheavals, such as revolution, civil strife and war, affecting the security of the State. In this case, it was further held that the speech should have a direct nexus to public order.
Reasonableness – With respect to the ambit of reasonable restrictions, the Supreme Court in Chintaman Rao v State of Madhya Pradesh had laid down the principle that the legislative view of what constitutes reasonable restriction shall not be conclusive and final and that it shall be subjected to supervision by the Supreme Court.
As mentioned earlier, the most basic rule while testing whether a law falls within the ambit of reasonable restriction is that no general or abstract rule shall be adopted for the application of all case. Each case has to be seen independently. The test of reasonableness shall be however on the basis of the following grounds; “The nature of the 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”[5]
With respect to the reasonableness of the restriction imposed, it is to be noted that the question is not whether the judge finds it reasonable or not, but whether a reasonable man would consider the restrictions reasonable or not.
In Chintaman Rao v State of Madhya Pradesh[6], the Supreme Court opined that a restriction in order to be referred to as reasonable shall not be arbitrary and shall not be beyond what is required in the interest of the public. The reasonable implies intelligent care and deliberation Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed.
It is important in this regard, to mention a theory that was propounded by John Stuart Mill in his treatise “On Liberty” referred to as the Harm Principle. Harm Principle suggests that the state may interfere in the private life of individuals by way of sanction if harm is caused to others.
As per Mill’s theory, two sets of actions are present; that affects one’s own self and the one that affects others. It is quite difficult to draw a definite line of division as any action will have a ripple effect on the society at large howsoever small it may seem and Mills was aware of this.
Thus, Mills suggests that those actions that affect one’s own selves and those which affects others only by their free, willful, undeceived participation shall be free from state interference. This in fact does have a relation with the reasonable restrictions clause and the concept of reasonableness in particular.
In Express Newspapers v Union[7] of India, it was held by the Supreme Court that there ought to be a reasonable balance between the freedoms enshrined under Article 19(1) and the social control permitted by clauses (2) to (6). In addition to this, the restriction imposed shall have a direct or proximate nexus with the object sought to be achieved by the law.
The question of the relationship between reasonable restrictions and directive Principles of State Policy was addressed by the Supreme Court in Kasturi Lal Lakshmi v state of Jammu and Kashmir[8] in which the court observed that a law which is usually aimed at fulfilling a Directive Principle, the probability of the law being an unreasonable restriction.
Grounds for Restrictions
Article 19(2)– Article 19(2) allows the government to impose restrictions upon the freedom of speech and expression as ensured under article 19(1)(a). There are a lot of controversial cases revolving around Article 19(2) as freedom of speech and expression is one of the most basic rights an individual shall hold. Any restriction or any law that seems to restrict free speech have always been questioned and challenged.
The fact that freedom of press falls within the ambit of Article 19(1)(a) adds to the list of cases challenging the restrictions imposed on free speech. Free Speech and expression encompass an individual’s right to express his own opinion without fear of sanctions from the government. It includes a number of facets such as the right to dissent, right to criticize etc and right to freedom of expression includes an artist’s right to express in the form of art and exhibit it without fear of unreasonable censorship, the right to stage protest etc.
Article 19(2) draws a line of division between permissible speech and impermissible speech. It lays down a number of grounds under which the government may interfere and impose restrictions upon free speech which have been mentioned earlier at the beginning of this article.
Sovereignty and Integrity of India- This ground was added in 1963 by the 16th Amendment Act with a view to restrict those categories of speech that could be detrimental to national integrity and the sovereignty of India. Speeches inciting secession from the Union of India shall be restricted as it compromises the sovereignty of India.
Supreme Court, in Kedarnath Singh v State of Bihar[9] held that a speech falling under sedition will disrupt and endangers the authority f the government and resultantly affect the sovereignty of the country. It is therefore the duty of the government to make sure that they are restricted so as to prevent a situation of anarchy.
Security of state might be at stake when actions intended to overthrow the government are carried on. It is thus necessary to restrict such circumstances in the interest of the security of the state. Words, signs speech etc which cased incitement to violence shall be restricted.
Friendly Relations with the Foreign States- Apart from internal peace, there is something else the government need to sure; relation with foreign countries. Restrictions may be imposed on any form of speech that could jeopardize India’s relations with foreign countries.
Public Order- The restrictions in the interest of public order have been discussed above. Public order as the ground was later added in 1951 by the First Amendment Act. It is synonymous with public peace and tranquillity. As mentioned earlier, the provision states “in the interest of public order” and not “maintenance of public order” which is a wider concept.
This means that the protection of reasonable restriction shall be extended to those laws which restrict not only the speech that directly affects public order but also those which are likely to affect public order. Thus, in the interest of public order, the government may impose restrictions on them.
Decency and Morality- these are further grounds on which the government may impose restrictions upon the people. Individual rights and interests shall be overridden by the collective interests of society as a whole. There are some socially agreed morals that individuals are expected to follow. Morality and decency are thus two factors that would change from time to time and this metamorphosis ought to be reflected in the legal framework as well.
The remnants of. the Victorian morality has always slowed down the progress of Indian society in evolving a rather matured sense of morality, however, the law has often done the job of lifting the society up to higher levels of progression. The historic Navtej Sigh Johar v Union of India[10] decriminalized homosexual relationships which were in fact a huge as far as Indian society and Indian morality is concerned.
In KA Abbas v Union of India[11], the Supreme court held that Censorship is a restrictive measure followed for the benefit of the society. Any form of art expresses an idea to the people and art and literature influences people to a very large extend. It is a necessary duty of the state to ensure that those words, signs or any form of expression if exposed to those who are open to influences of this sort would corrupt such minds, are censored.
Pre censorship by itself shall not be struck down on grounds of unreasonableness this was also reiterated in the landmark judgment of the Supreme Court in Renjith D Udeshi v State of Maharashtra[12]. Sections 292 to 294 of the Indian Penal Code impose restrictions upon speech on grounds of morality and decency by way of punitive sanctions.
Contempt of Court- In a democratic system, judiciary holds a very crucial position in the administration of justice and application of laws. The supreme position of the judiciary is indispensable for the smooth functioning of law and hence anything that would belittle the authority of the Courts shall be met with a legal sanction on grounds of contempt of court.
The Contempt of Courts Act is the legislation enacted to impose a restriction upon actions including speech and expression that would scandalize the courts and jeopardize their position. In Indirect Tax Practitioners Association v R K Jain[13] it was held by the Supreme Court that truth based on facts should be allowed as a valid defence against contempt proceedings. Section 2 of the Contempt of Courts Act divides contempt into civil and criminal contempt.
Civil Contempt is the willful disobedience of a court order whereas criminal contempt is the publication of any matter or doing of any act which scandalizes or tends to scandalize or lower or tend to lower the authority of any court, prejudices or interferes or tends to interfere with the due process of a judicial proceeding, interferes or tend to interfere with the administration of justice.
Defamation- Free Speech does not warrant an individual to defame another. A person knowingly makes a statement or publishes a matter to the public about another person that would tarnish the latter’s reputation shall be restricted on grounds of defamation. A defamatory matter in a permanent form such as a matter written or printed is labelled as Libel and the defamatory matter which is spoken is called slander.
Incitement to an Offence- Free speech shall be restricted if it incites offences punishable under law. This was added by the First Constitutional Amendment Act, 1951.
Article 19(3) – Article 19(3) grants the state authority to impose a restriction on the freedom to assemble peacefully without arms. Freedom to hold assembly as laid in Article 19(1)(b) includes the right to hold protests, conduct meetings etc. However, this freedom can be restricted on the grounds of Sovereignty and Integrity of India and in the interest of public order. As per the constitution, the assembly ought to the peaceful and unarmed.
There are a number of laws enacted to impose restrictions on the freedom to assemble in the interest of public order. Chapter VIII of the Indian Penal Code discusses unlawful assembly as a threat to public tranquillity.
Section 141 holds an assembly of 5 or more individuals illegal if the common objective is to overthrow the government by criminal force, to resist the execution of any law or legal process, to commit any mischief or criminal trespass or other offence, to unlawfully obtain possession of any property or to deprive any person of the enjoyment of a right to ay, or the use of water or other incorporeal rights of which he is in possession or enjoyment, to enforce any right or supposed right or to compel any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do.
The section also holds that an assembly which was lawful when assembled may subsequently become an unlawful assembly. Under section 144 of the Criminal Procedure Code, the magistrate is empowered to restrain an assembly if there is a risk of obstruction, annoyance or injury to any person legally employed or danger to human life, health or safety or disturbance to public tranquillity or riot or any affray.
Article 19(4) – By virtue of Article 19(4) the government are empowered to impose restrictions upon the freedom to form associations in the interest of public order or morality or sovereignty and integrity of India.
In-State of Madras v VG Rao[14], the constitutionality of the Criminal Law Amendment Act, 1908 as amended by the Madras Act 1950 was challenged before the Supreme Court. As per this legislation, the government may declare an association to be unlawful by notification in the official gazette if there are sufficient reasons to believe that it would interfere with the administration of law, maintenance of law and order and would constitute a danger to the public peace.
There would be an advisory body to whom the notifications are served and if there is any challenge against the notification the same could also be brought before it and the advisory body was to decide whether the association is unlawful or not. The Supreme court held that the duty to test the reasonableness of order lies with the judiciary and thus, vesting of powers with the government to impose restrictions without allowing the judiciary to test the reasonableness of the grounds shall be unconstitutional.
Article 19(5) – In the interest of the general public and the interest of the Scheduled Tribes, the government may impose reasonable restrictions upon the freedom to move freely in the territory of India and the freedom to reside and settle in the territory of India. The intention of the makers of the constitution was to enhance the unity of India as India was a “Union of States” despite the administration having a well-established division of powers between states and the Centre. Two cases have to be mentioned in respect of eth reasonable restrictions that are allowed to be imposed on the freedom to move freely.
In State of Uttar Pradesh v Kaushalya[15], the restrictions imposed on the free movement of prostitutes were held to be constitutional as it was imposed in the interest of the general public.
With respect to the interest of Scheduled Tribes, the Guwahati High Court held in Dhan Bahadur GhortI v State of Assam[16] that the allowing individuals to move into and reside in the premises of Scheduled Tribes would affect their very existence they are a sensitive society that needed to be preserved from the interference of the outside world.
Article 19(6) – Reasonable restrictions may be imposed by the government on the freedom of profession, occupation, trade or business on grounds of public order. Apart from the abovementioned ground, any restriction upon the freedom of profession would be unconstitutional and it is not necessary that the restriction have to destroy the industry or business perse, but even if it creates a situation wherein it is impossible to carry on the business except in onerous conditions, such a restriction shall be held unconstitutional. [17]
In State of Kerala v Joseph Antony[18], the State government had imposed a ban on mechanized nets and mid-water trawlers in territorial waters. This was challenged before the court on grounds that it imposed unreasonable restrictions on freedom of profession. The court observed that the object of the government was to promote the livelihood of poor other poor fishermen who could not afford such expensive machinery. The Supreme Court held that the restriction was constitutional.
In Bombay Hawkers Union v Bombay Municipal Corporation[19], the provisions of the Bombay Municipal Corporation Act was challenged as it mandated street hawkers to have the license to carry on business and the government could revoke the license or remove unauthorized hawkers from the street. The Supreme Court observed that the public street is meant for the use of the public and hawkers if they cause nuisance, inconvenience or annoyance to the public should be removed. The restrictions were held constitutional.
Conclusion
Freedoms if absolute would always be detrimental to the smooth functioning of the society as the individual interests of all individuals would be prioritized. This would lead to the withering away of the state resulting in anarchy. As the maker of the law and the executor of the law, the Government should have the authority to impose restrictions upon freedom. However, there ought to have a balance between the freedom granted and the restrictions imposed. This balance depends on the reasonableness of the restriction. The constitution protects only those restrictions that are reasonable and courts have laid principles to measure the reasonableness of a restriction.
[1] 1952 AIR 196
[2] Ramji Lal Modi v State of UP, AIR 1957 SC 620
[3] Om Prakash V Emperor AIR 1948 Nag 199
[4] AIR 1963 SC 633
[5] Harkchand ratanchand Bantia v Union of India, AIR 1970 SC 14453
[6] AIR 1951 SC 118
[7] AIR 1958 SC 578
[8] AIR 1980 SC 1992
[9] AIR 1962 SC 955
[10] (2018)10 SCC 1
[11] AIR 1971 SC 481
[12] AIR 1965 SC 881
[13] (1983) 4 SCC 125
[14] AIR 1952 SC 196
[15] All India Report 1964 SC 416
[16] AIR 1953 Gau 61
[17] Express Newpapers v Union of India
[18] AIR 1994 SC 721
[19] AIR 1985 SC 1206
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