Subjects >>Indian Polity >>Right to Freedom (Article 19-22)

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INTRODUCTION
22 Jul 2020

Freedom is not worth having if it does not include the freedom to make mistakes

-       Mahatma Gandhi

Right to freedom is a positive right and is conferred by the Constitution in order to promote the ideal of liberty held out by the Preamble. In this article, we will look at the main points of the:

  • Article 19
  • Article 20
  • Article 21 and
  • Article 22

Article 19


Article 19 forms the core of the chapter on Fundamental Rights.

In original Constitution, under Article 19(1) there were 7 freedoms given, that is from (a to g), However, Article 19(1)(F) that is - freedom to acquire property anywhere in the territory of India was abolished by 44th Amendment Act, 1978, by Janta Party Government.

According to Article 19(1) following freedoms have been mentioned –

Every citizen of India shall have the right to:

a) Freedom of Speech and Expression

b) To assemble peacefully without arms

c) To form union or association or cooperative societies. (added by 97th Amendment Act, 2011)

d) To move freely throughout the territory of India.

e) To reside and settle anywhere in the territory of India.

f) Abolished (Property Acquirement)

g) To practice any profession or carry on any occupation, trade and business.

The freedoms given under Article (19) are not absolute in nature, on certain ground these can be reasonably restricted.

Following are the grounds for reasonable restrictions on above mention freedoms

  • On Article 19(1)(A) – Defamation, contempt of court, decency and morality, public offer, incitement to an offence, sovereignty and integrity of India, security of the state etc.
  • On Article 19(1)(B) – Public order, sovereignty and integrity of India, security of the state etc.
  • On Article (1)(C) – Public order, morality, sovereignty and integrity of India, security of the state etc.
  • On Article 19(1)(D)(E) -In the interest of general public, protection on the interest of schedule tribe.
  • On Article 19(1)(G) -In the interest of general public, professional and technical qualification required.

ARTICLE 20

Protection in respect of conviction of offenses.

a)    Ex-post fact legislation law

b)   Double jeopardy

c)    Prohibition against self-incrimination

The meaning of the terms is:

  • Ex-Post Facto Legislation means retrospective criminal legislation. Criminal legislation cannot be given retrospective effect i.e., from previous dates/years.
  • Double Jeopardy means for the same offence there cannot be punishment more than once.

Exception – Immunity against Double Jeopardy extends only in the case of decision taken by Courts or Judicial Tribunals.

  • Prohibition Against Self Incrimination means any offender cannot be compelled to prone self-incriminatory evidence showing its indulgence in that crime.

Exception – If any object or document is searched and seized it can be produced before the court as piece of evidence.


ARTICLE 21

Right to life and personal liberty

No person shall be deprived of his life and his personal liberty except in accordance with the ‘procedure established by law’.

Over the years Article-21, became very important Fundamental Right and Foundation stone of Part-III of the Constitution. The Supreme Court through liberal interpretation of this article derives several inferred rights out of this Article.

Inferred or Composite Rights

The inferred or composite rights are those rights not directly given in the Constitution but have been derived by the Supreme Court through interpretation of various provisions of the Constitution.

Some of the Inferred Rights derived from Article-21 are-

  • Right to Primary Education (now a fundamental right under Article 21(A).
  • Right to health of the workers (Government provides schemes – CGHS etc.).
  • Right to Privacy (Derived from right to personal liberty).
  • Right to shelter (Housing schemes are built by center).
  • Right to speedy trial (fast-track courts are built).
  • Right against cruel punishment (without any torture).
  • Right against denial of wages and arbitrary dismissal of the workers.
  • Right to social justice and economic empowerment.
  • Right to Information.
  • Right to go abroad.
  • Right against custodial violence.
  • Right to have clean surroundings etc.

Rule of Law

Rule of law is a British concept given by Professor Dicey it reflects parliamentary supremacy. It includes 3 things-

a)    No one is above law.

b)    No one can be punished without any breach of law.

c)    Everyone is equal before law.

Due process of Law is a US Concept, which reflects judicial supremacy; it means if a law is made by the legislature, it is just not only from the perspective of legislature’s competency to make such law but also from the perspective of reasonableness of the law. It protects the people from legislative actions.

Procedure establish by law is Indian concept as given in Article (21). It reflects Constitutional supremacy; it means a law so made can be fudged only from the perspective of legislatures competence. It protects the citizen from executive acts.

In Indian Constitution, although procedure establish by law in given, however in Maneka Gandhi case (1975), Supreme Court in its decision also added the phrase ‘Due process of Law’. It means now the citizen are protected by both Legislation and Executive action.

ARTICLE 21 A



Right to Education for children between the age of 6-14 years.

It shall be the duty of the state to provide free and compulsory education to the children between the age of 6-14 years in such a manner as the state may think fit. (added by 86th Amendment Act, 2002, by Vajpayee Government but implemented with effect from 1st April, 2010 by Manmohan Singh Government).

ARTICLE 22

Protection against arrest and detention in certain cases:

a)  No person shall be arrested or detained by any authority without properly informing him the ground for such arrest or detain.

b) He must be produced before the nearest magistrate within 24 Hours of such arrest/detention. (Excluding holidays, or time taken during the journey)

c)  No such person can be denied the right to consult and to be defended by any legal protection of his choice.

 

Exceptions-

a)   An enemy alien.

b)   The personal arrested/detained under preventive detention.

Preventive and Punitive Detention

Definition of Preventive Detention

  • If a person is arrested or detained before committing any offence, in anticipation that if he is not arrested in advance, he may endanger public order or may cause harm to the society, it is called as preventive detention.
  • The objective of preventive detention is to prevent a person from causing harm to the society.

Definition of Punitive Detention

  • If a person is arrested after occurrence of the crime because of his indulgence in that crime, it is called as Punitive detention. The objective of punitive detention is to punish a person for the crime he had already committed.
Under preventive detention a person can be detained for a maximum period of ‘3 months’, however if the Government wants to detain him further, his detention must be authorized by an advisory body, which is purely judicial.
The detained person shall be informed about the ground for such detention as soon as possible. He must be given an earliest opportunity to present his case, before the concerned authority.

Did You Know

  • Freedom of press is not directly given in our Constitution; however, media derives its freedom from Article 19(1)(A) that is freedom of speech and expression.
  • Freedom of Expression means to express one’s own opinion as well as opinion of other through print or electronic media.

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