The Constitution of India, 1950 guarantees certain ‘fundamental rights’ to both citizens and non-citizens. These rights, placed under Part III of the Constitution (i.e. Articles 14 to 32), are a set of basic human rights that protect people against unreasonable actions by the government. Among these provisions is Article 19, which guarantees protection of certain rights regarding freedom of the individual. Article 19 does two things – first, it confers six basic freedoms to all Indian citizens, and second, it specifies the circumstances under which the government can limit these freedoms.
What does Article 19, clause (1) of the Constitution say?
Article 19, clause (1) guarantees six rights to all the citizens of India. The rights are listed under sub-clauses (a) to (e) and sub-clause (g) of clause (1) of Article 19. Together these rights promote the ideal of liberty envisaged in the Constitution. The rights guaranteed under Article 19(1) are not absolutely free from limitations. They are subject to a corresponding set of reasonable restrictions given under Articles 19(2) to 19(6).
Article 19, clause (1) guarantees six fundamental rights to all citizens. These rights are:
(a) The right to freedom of speech and expression;
(b) The right to assemble peaceably and without arms;
(c)The right to form associations or unions;
(d)The right to move freely throughout the territory of India;
(e)The right to reside and settle in any part of the territory of India; and
(g)The right to practise any profession, or to carry on any occupation, trade, or business.
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Why is clause (f) of Article 19 missing? What did it provide for?
In 1950, when the Constitution came into force, Article 19(1) guaranteed seven rights. The seventh right, contained in Article 19(1)(f), was the fundamental right to property. This right contained citizens’ right to buy, own and sell property.
However, through the 44th Constitutional Amendment in 1978, the right to property ceased to be a fundamental right. Article 19(1)(f) was deleted from the Constitution. At the same time, Article 300A was inserted, which recognises the right to property as a constitutional right. It guarantees that no one can be deprived of their property except as per the procedure laid down in law.
So, if someone breaches your right to property, you should approach the High Court under Article 226 of the Constitution of India. To know more about constitutional remedies, check out our explainer. |
Article 19 rights are restricted to citizens alone. These rights are not available to anyone who is not a citizen of India or who cannot be a citizen of India. In other words, these rights are not available to a foreign national or someone who has given up their citizenship of India or whose Indian citizenship has been terminated.
Registered companies and societies are not considered citizens under Article 19. However, if a state action limits the rights of a company and as a result, the rights of the shareholders of that company are infringed, the shareholders enjoy the rights under Article 19 as citizens of India. So, the fundamental rights of citizens are not lost when they form a company or society.
The duty to uphold Article 19 rights of citizens lies with the State. If a state action causes breach of any of these rights, it can be challenged in an appropriate court of law. You can read more about how to challenge such breaches in our explainer on Constitutional Remedies.
Broadly, State includes not only the Legislature (which enacts law), Executive (which formulates policy and is responsible for its execution), and the Judiciary (which adjudicates disputes), but also includes local bodies (such as Panchayats and Municipal authorities) as well as other authorities (which includes agencies or instrumentalities of the State or bodies or institutions which discharge public functions of the government).
The rights guaranteed under Article 19(1) are not completely free from restraint. Each right is subject to a different set of reasonable restrictions. These reasonable restrictions are listed under clauses (2) to (6) of Article 19 [Article 19(2) – Article 19(6)].
| Fundamental right under Article 19 |
Grounds for corresponding restrictions |
| Freedom of speech and expression |
Article 19(2)
- sovereignty and integrity of India
- security of the State
- friendly relations with foreign States
- public order
- decency or morality
- contempt of court
- defamation
- incitement to an offence
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| Freedom to assemble peaceably and without arms |
Article 19(3)
- sovereignty and integrity of India
- public order
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| Freedom to form associations or unions |
Article 19(4)
- sovereignty and integrity of India
- public order
- morality
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| Freedom to move freely throughout the territory of India |
Article 19(5)
- in the interests of the general public
- for the protection of the interests of any Scheduled Tribe
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| Freedom to reside and settle in any part of the territory of India |
Article 19(5)
- in the interests of the general public
- for the protection of the interests of any Scheduled Tribe
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| Freedom to practise any profession, or to carry on any occupation, trade or business |
Article 19(6)
- in the interests of the general public
- the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
- the State or a State owned/controlled corporation can carry out any trade, business, industry or service, excluding citizens completely or partially
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If a state action completely prohibits an Article 19 right, the court should test the constitutional validity of that action based on the facts and circumstances of the case. In some cases, a total prohibition may be a reasonable restriction, while in others it may not. For instance, a complete ban on carrying out dangerous trades or businesses, such as cultivation of drugs, or the sale of liquor may be considered a reasonable restriction. At the same time, a total prohibition on the sale or purchase of meat during a particular religious festival may not be considered reasonable.
Article 358 provides that Article 19 rights can be suspended if a national emergency is proclaimed on the grounds of war or external aggression.
For instance, during the 1971 war between India and Pakistan, a national emergency was proclaimed and Article 19 was suspended. A fresh proclamation of emergency was made later in 1975 on the grounds of internal disturbance, which suspended the fundamental rights under Article 19 till 1977.
The right to freedom of speech and expression denotes the liberty to express one’s views, opinions and beliefs by the words, writing, art, pictures, etc. This is available to a person, a corporation, press, commercial advertisers, artists, etc.
It has the following variation (if applicable)
- Media Freedoms
- Freedom of artistic expression
- Commercial Speech
- Political expression
- Right to know
Having a free and independent media is the cornerstone of democracy. Article 19(1)(a) of the Constitution includes the freedom to express one’s ideas through any media like words, writings, pictures, paintings, visual representations, gestures, signs, etc. This includes publishing and propagating ideas. Thus, the freedom of media, i.e., the press and the audio-visual media (radio, podcasts, television news channels, YouTube, etc) is also protected under the freedom of expression.
In India, unlike in the United States, there is no separate constitutional provision for freedom of the press but it flows from Article 19(1)(a). As a result, the freedom of the press in India stands on the same footing as the freedom of speech of a citizen, and the press is subject to the same set of reasonable restrictions under Article 19(2). Media freedom includes a bundle of rights. Some of these rights are:
The press enjoys the right to publish information and opinion. It includes the right to report news, and publish the views of the editor, and other authors published under the editors’ discretion.
Media freedom includes both the right to publish and the right to circulate information and opinion. In several cases, courts have upheld the freedom of circulation as a crucial aspect of the freedom of expression.
In 1950, the Supreme Court ruled on a challenge to an order of the State of Madras banning the entry and circulation of an English Journal called “Cross Roads”, on grounds of public safety and public order. This journal was printed and published in Bombay. The journal was banned under the Madras Maintenance of Public Order Act 1949. The court quashed the concerned provision of the Act and the associated government order, as they restricted free speech and expression.
Another case challenged the Central government’s Newsprint Policy of 1972-73 which compelled newspapers to compromise between circulation and content by creating price brackets for a higher number of pages. Here, the Supreme Court held that “The right to determine the number of pages has been held to be an aspect of the freedom of expression as it has a direct impact on the quantity and quality of content being published.” Though such restriction was imposed for economic reasons, it negatively impacted the freedom of the press, as they had to limit their coverage to obey the policy, which violated the right to circulation.
Media freedom includes the right to report proceedings of the Court. In response to a plea by the Election Commission of India, the Supreme Court stated that the media has the right to report Court proceedings, including the oral observations of judges. The statement in question was an oral observation by the Madras High Court where it said that the Election Commission of India could be charged with murder for allowing political rallies during the peak of the COVID-19 wave in India. This statement was widely reported in the media.
Everyone enjoys the freedom of artistic expression and creativity. Artistic expression includes the freedom to imagine, create, propagate art and artistic works. It also includes access to art and artistic works in any manner not prohibited by law. So, the work of an author, a poet, a painter, a cartoonist, a filmmaker, a musician, an actor, etc are all protected under the freedom of speech and expression under Article 19(1)(a).
The scope of this right can be understood through the following:
Pre-censorship is the prior restraint on art or artistic work. Pre-censorship happens when the State imposes prior restraint to restrict the freedom of artistic expression through any form of art. Prior censorship of artistic work is allowed in India in specific circumstances.
In India, there have been instances of prior censorship of films. In 1970, the Supreme Court while deciding a challenge to the pre-censorship of a short film ‘A Tale of Four Cities’ refused to accept the distinction between pre-censorship and censorship in general and considered both to be within the scope of reasonable restrictions under Article 19(2). The Court found that pre-censorship is permitted under the Constitution for maintenance of public order and tranquillity.
However, the Supreme Court decides such cases based on their specific facts. For instance, in a 2018 judgement, the Supreme Court ruled against prior restraint on the screening of the film Padmaavat since the requisite Censor Board permissions had been taken. Gujarat and Rajasthan governments had banned the screening on grounds of public order. The Court held that artistic expression is an inseparable part of freedom of speech under Article 19(1)(a). After the Central Board of Film Certification has already certified a film as per its mandate and internal reviewing policies, individual governments cannot exercise prior restraint on the film.
The right to freedom of speech and expression covers the right of artists to exhibit all forms of art, even those that showcase obscenity or nudity in some form. The Supreme Court, in its approach to such issues, has followed a case-by-case analysis, and tried to balance the freedom of artistic expression with the larger interest of the community.
In 1996, the Supreme Court set aside a decision of the Delhi High Court, which had temporarily restrained the screening of the film ‘Bandit Queen’ (on the grounds of obscenity) until a fresh ‘A’ certificate was issued with several cuts and changes in the film. The Court reinstated the ‘A’ certificate and observed that the scenes with nudity were crucial to the overall narration of the story. Through this judgement, the Supreme Court emphasised the importance of allowing social critique through artistic expression.
In 2008, the Delhi High Court was faced with a petition challenging Maqbool Fida Husain’s painting of Mother India as obscene. The High Court, while holding that the painting was not obscene, highlighted that a balance between obscenity and creative artistic expression should be reached depending on the current standards, the pervasive character of the artistic expression over obscenity, and also if the art served any public interest. The court must consider the perspective of the artist and the surrounding circumstances of a painting.
The right to freedom of speech and expression protects the right to protect one’s artistic creation from piracy. It also includes the right to defend one’s creation from copying and circulation of pirated material or content.
In a 2019 decision, the Delhi High Court, while deciding petitions to stop websites streaming pirated content, held that just as constitutional freedoms are regulated under reasonable restrictions, appropriate lines can be drawn to restrict access to infringing websites by creating a fine balance between freedoms and rights of everyone involved. The Delhi High Court, by issuing the first dynamic injunction in India, allowed the injunction holder to block all such content infringing websites through this order instead of filing separate suits for each infringement.
Article 19(1)(a) protects the rights of the speaker of commercial speech (such as advertisements and informational pamphlets) as well as the rights of an individual to listen, read, and receive it. Advertisements and other kinds of commercial speech disseminate information and benefit the public. Any limitation of the propagation, publication, and circulation of commercial speech violates the freedom of speech and expression. However, the freedom of commercial speech is subject to reasonable restrictions under Article 19(2). So, advertisements which are deceptive, unfair, misleading, and untruthful can be regulated. To read more about the law on misleading advertisements, read our explainer on Consumer Rights.
Some commercial speech rights are:
This right to regulate advertising space in newspapers and other similar media is vital to the freedom of expression. This is because the size of advertising space affects the price of the media and affects its circulation, which is itself an important part of the freedom of expression.
This right has been firmly entrenched through case law as well. In 1962, the Supreme Court held that a law which allows the government to control the allocation of advertising space among newspapers was unconstitutional. The Court invalidated a governmental policy controlling the price of newspapers with reference to their number of pages and advertising space. This was because this law violated the newspapers’ right to commercial speech.
The right to advertisement is protected as part of the freedom of speech. However, comparative advertisements, where two or more products are compared to bring out the advantages of the advertisers’ products, have been challenged on grounds of intellectual property and defamation.
The Delhi High Court faced a challenge to an advertisement for Complan, produced by Heinz in 2019.((Horlicks Limited v. Heinz India Private Limited, (2019) 256 DLT 468)) Horlicks Ltd. asked for an injunction on the grounds that it had unfavourably compared Heinz’s products with that of Horlicks, and had also infringed on its (Horlicks’) trademark.
The Delhi High Court observed that the comparison in the advertisement was fair, and advertisements for a product, which depicted a fair comparison with a competitive product, were permissible. It was a protected form of commercial expression under Article 19(1)(a), and could only be restricted by the limitations mentioned under Article 19(2), none of which applied to this case.
The Freedom of Political Expression is essential for maintaining democracy. Citizens express their political opinions from time to time by casting votes during elections, and more regularly by dissenting and criticising Government’s actions and policies. This right reinforces the idea that it is the citizens who give legitimacy to the government. It ensures accountability of the government and prevents them from stifling critical views. However, this right is subject to restrictions, and cannot extend to violence or any other activity that disrupts public order.
The right to political expression includes:
Casting of votes by citizens is the most visible form of political expression. This is a facet of the right of expression of an individual and is provided under Article 19(1)(a). It must be remembered that the “right to vote” by itself is not a fundamental right, but casting of the vote has been held to be a form of political expression.
The decision taken by a voter after verifying the credentials of the candidate either to vote or not is a form of expression protected under Article 19(1)(a).This should be read alongside section 79(d) of the Representation of the People Act, 1951, which defines “electoral right” to include the right of a person to “vote or refrain from voting at an election.” In the landmark case, People’s Union for Civil Liberties v. Union of India, the Supreme Court recognised that the fundamental right under Article 19(1)(a) read with the statutory right under section 79(d) is violated unreasonably if right not to vote effectively is denied and secrecy is breached.
It is interesting to note that through the PUCL case, the Supreme Court directed the Election Commission of India to provide for the “None of the Above (NOTA)” option in Electronic Voting Machines and ballot papers. This would ensure that those voters, who come to the polling booth and decide not to vote for any of the candidates in the fray, are able to exercise their right not to vote while maintaining their right of secrecy.
The right to protest is essential to maintain accountability and prevent arbitrary rule-making by the government. Courts have recognised that peaceful protests are immensely important in a democracy. The right to protest is protected under the right to freedom of speech and expression, and the authorities are not permitted to revoke or grant permission by going into the merits of the protest.
The right to criticise the Government, essential for maintaining accountability, is also a part of the freedom of speech and expression. Dissent and criticism have been hailed as crucial elements for a democracy.
This right also includes the right of a political rival, like anyone else, to criticise the government, and it cannot be curtailed on the charge of defamation. While criticism of the government and its officials may be valid, it cannot condone a political rival seemingly engaging in spreading false news and allegations, about a political personality, in a schematic and planned manner.) Criticism of this kind would amount to defamation and is not protected under Article 19(1)(a).
The Right to Know is fundamental to the right to freedom of expression. This is because the right to know promotes the free flow of information, and enables citizens to be better informed and helps citizens utilise their freedom of expression more effectively. A discussion on the pros and cons of a government policy is more nuanced and useful when sufficient information is available from the government. However, this right does not permit anyone to claim any and all sorts of official documents. Restrictions, especially those which concern national security or public order, are applicable. To know more about the law on right to information, read our explainer.
The right to know includes:
Unquestionably, the right to freedom of expression involves the right to receive information and public documents from government authorities and other organisations performing a public function. This covers asking for one’s examination answer scripts, to matters covered under official secrecy laws if sufficient public benefit and interest can be shown in such matters. However, this right cannot override the right to privacy; for instance, personal information of public officials which is not relevant to the public cannot be sought under this right.
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