Abstract
Any country’s citizens function the way they do because of its constitution and the type of government it has. When we consider India, out of many others it is a democratic country, where the people can voice out their opinion. It is provided in Article 19 of the Indian constitution, there are countries where the people who have criticized the government were executed, but in India and many other countries that follow democratic policies the people can reject the government’s actions, can ask for change fearlessly, can protest, strike, move freely and whatnot. All these are the recognized rights in the Indian constitution. But wherever there is right there is a sense of duty as well, to maintain public order reasonable restrictions are laid down.
However there are uncountable incidents from the government officials and the public side where Article 19 is exploited, and the judiciary upholds the Article most of the time. The problem here is that exploitation doesn’t stop with a judgment. Knowingly or unknowingly it is misused or overused. I tried to come up with a simpler and unbiased approach to understanding the article and its exploitation so that not only legal professionals but people from other streams can also understand and inculcate the necessary changes. The importance and the instances where the clauses are misused along with some case laws where the judiciary upheld them are discussed, alongside some suggestions to avoid them in the future, which were provided in this descriptive yet action paper.
I have used the word misuse for public and misrepresentation for public servants. The government officials or government or public servants are the representatives of the Constitution, they must ensure the proper functioning of the Constitution and when they fail to do so and mislead the public, then the word misrepresentation comes into the picture. Misuse comes into the frame when the receptors of such freedom exploit it or overuse it.
This paper is unbiased. It does not support or justify anyone’s actions but highlights all the problems committed by each side and effective solutions are provided further.
Keywords: Article 19, Indian Constitution, Misuse, Misrepresentation, Suggestions
Introduction
During the Electoral bond case, other than the word unconstitutional, it has ‘violated article 19(1)(a)'() was heard a lot. Let us try to understand how it is violated with a simple example of a corporation that has an illegal side business that is laundering its money to its main company and eventually that money is funded to a party. The party uses the money to campaign and create attractive manifestos, eventually when the party wins the actual truth behind the attractive manifestos and campaigns are left as information unknown to the public. The public can never know where the money came from even after filing an RTI as the parties and the scheme claim that the donor knows donee or vice versa. At least that is what it is said. It is violating the Right to information which is a part of freedom of speech and expression.
But does article 19 contain only freedom of speech and expression, partially yes but there are more clauses as well. Electoral bond cases have shed light on how one of the clauses was exploited openly for years, and few papers explained the same.
This paper focuses on other clauses as well along with the aforementioned one. The importance of each clause along with how they are misused, along with some tips, opinions and inputs to improve the existing system for better functioning of the public in general and eventually the nation as a whole.
Research Methodology:
Mainly the paper is descriptive research as several case studies and observations were combined, also there is action research used as this paper aims to provide suggestions as well. Meta-analysis is used to understand the overall situation spread across multiple studies.
Review of Literature:
The previous research work in this area covers the need for Freedom of speech, criticism of the judiciary system over continuous involvement and restrictions, and many more. Few of the papers discussed regarding the Electoral Bond Scheme and other landmark judgments from the past.
A journal article published by Shrutanjaya Bharadwaj under the title ‘Freedom but not really: the unprotected zones of Article 19(1)(a)’; where the author has taken a firm stance and criticized a few judgements given by the judiciary, argued that the court must not go beyond the restrictions provided in 19(2) even if it believes so. Also, the author has advocated that strict adherence to the Article is necessary to uphold freedom of speech while following the limitations provided.
In a journal article published in the International Journal of Research, the author emphasizes the need for the right to freedom of speech for a fool-proof democratic society. It is a crucial component for democracy and protection of it is necessary. Upholding it is necessary even during crucial times. Some papers throw light on the censorship of speech which impacts the free functioning of freedom of speech.
Delving into the provision:
Article 19 of the Indian constitution goes as follows:
“Protection of rights regarding freedom of speech etc.
- All citizens have the right
- To freedom of speech and expression
- To assemble peaceably without arms
- To form associates (or) unions (or) cooperative societies
- To move freely throughout the territory of India
- To reside and settle in any part of the territory of India
- To acquire, hold and dispose of property (omitted)
- To practice any profession or to carry on any occupation or trade or business”
However, each of the clauses was misused by the public or misrepresented by the public servants. Let us have a quick look at how these rights are exploited in an immoral manner.
(a) Freedom of speech and expression:
As an individual, one wants to express and voice out their opinions, whether it is for socializing or any other purpose. Whereas at the national level to hold the government accountable so that they are transparent enough in their actions, as long as the reason is reasonable enough it is intertwined with democracy which is a fundamental concept of our country.
Misuse:
From making hate speeches to spreading fake news or else it may be indecent content or anti-state propaganda the list goes on. Incidents like Manipur violence, misinformation on COVID-19 and many more shed light on how the press handles and how some individuals from social media platforms are misleading the public.
In a landmark case of Union of India v. Associate for Democratic Reforms which included the right to impart and receive information and freedom to hold opinions concerning the clause, there is another important line in its judgment ‘one-sided information, disinformation, misinformation and non-information all create an uninformed citizenry’. Well, this one line summarizes all the consequences of misleading information.
On further note, there are governments as well who have misrepresented the clause on several occasions and imposed restrictions in the name of the clause, but every time the court has upheld the constitution and stated that such restrictions are unreasonable and unconstitutional (Romesh Thappar v. State of Madras)
(b) to assemble peacefully without arms:
A person for the sake of public awareness or connecting with like-minded people either for questioning or criticizing often tends to hold meetings and discussions publicly, protests also come under this clause.
Misuse:
The reason for the gathering may be moral but the unorganized gatherings or protests often lead to public inconvenience and block essential services. There are cases of deaths of innocent citizens who were unable to get proper medical attention due to unorganized protests. On top of that if any radicalized group has infiltrated the protest group or discussion then the consequences are unimaginable. Real-life incidents like farmers’ protests, protests during CAA or agitations on reservations serve well as examples.
Also, it is not always the public at fault the public servants as well misrepresent the clause by not providing permission or premises for the same as is done in Himat Lal K. Shah v. Commissioner of Police, Ahmedabad.
(c) to form an association/union.
Associations or unions are formed by people with common interests and goals. Such a workers union helps to voice out the opinions of the workers which include collective bargaining, working conditions and many more. In MNCs and many other companies, these serve the purpose of resolving disputes. Whether promoting or preventing something the associations or unions come in hand.
Misuse:
Often the power in these unions or associations is concentrated which leads to discrimination and bias. Also, corruption and mismanagement are a part and parcel of most of the unions and associations. With or without political influence the associations and unions are often resistant to change, which leads them to go on strikes and stoppage of work. The incident of Maruti Suzuki Manesar violence where an altercation between workers and management led to the death of the HR manager.
Speculations exist that some of the unions and associations help extremist groups or terrorist groups infiltrate the country through them.
Well the answer for all these misuse and misrepresentation is the need to strike a balance whether it be Banglore Medical Trust v. B.S.Muddappa or Society for Unaided Private Schools of Rajasthan v. Union of India the emphasis is always laid on striking the balance between their individual interests and government obligations and rules.
(d) to move freely throughout the territory of the country:
If seen at an individual level it is a matter of personal liberty, and educational and professional growth, at a group level it is for social integration, at government or national level to achieve balanced regional development fits the bill.
Misuse:
Urban issues such as traffic congestion and immobility of the same which lead to environmental damage. Often to evade being held liable legally this right is exercised by individuals. The metropolitan cities are the most affected also incidents where the suspects of heinous crimes flee out of state or sometimes out of the country to get away with legal obligations. The thing is that the public servants are sometimes at equal fault for the same as well. Such as unreasonable visits and continuous surveillance over a person as happened in Kharak Singh v. The State of UP & Ors.
(e) to reside and settle in any part of the country:
The importance of this clause is the same as the previous one where any individual seeks growth in personal and professional life, a group of people in search of economic opportunities and a nation as a whole or its wellbeing.
Misuse:
Himachal Pradesh and Uttar Pradesh serve as an example of environmental degradation due to severe social mobility, the recent case of Bangalore and Hyderabad water crisis or the ever-green case of Delhi’s pollution all fit the criteria. Sometimes the Government has to intervene and restrict the concerned party’s operations for the sake of public order as in the case of District Collector Chittoor v. Chittoor District Groundnut Traders Association where the state government have restricted the traders settling in a specific area as the state needs to regulate the market activities.
Nevertheless, new rights are added to the book as the situation arises such as the right of pavement dwellers to reside in public lands given in the case Olga Tellis & ors v. Bombay Municipal Corporation.
(g) to practice any profession and carry on any trade.
A nation for the sake of social development and welfare, any profession for the encouragement of its professional standards and an individual for the sake of economic freedom prefers to have the livelihood they desire.
Misuse:
Some of the factories in the name of carrying out a trade exploit its workers by making them perform hazardous activities with little to no protection. The cases of individuals being permanently disabled are not unheard of. On top of that, illegal and fraudulent practices, cyber crimes, scamsters and fraudsters are everywhere and are part of our daily news. A person can pretend like a professional by claiming a license fraudulently and practicing the profession incidents such as unqualified medical practitioners or fraudulent lawyers come into this category.
Carrying trade that affects the environment is not a part of this clause and it is emphasized by the Supreme Court in the case of Subhash Kumar v. State of Bihar.
Reasonable restrictions:
All the judgments are provided with the help of other clauses from Article 19 which states that ‘in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.’ or ‘interests of the general public or for the protection of the interests of any Scheduled Tribe’.
Sovereignty means the government is a supreme authority that functions without anyone’s interference. Integrity is having strong character or principles or ethics. Public order refers to the welfare of society. Any such statement or action that disrupts the government’s functioning, the moral principles or the public welfare is treated as an exploitation of the Article or Clause.
Sovereignty, integrity and public order all these keywords contain ambiguity. What is considered a moral principle for one may not be one for another. If slums are considered a nuisance and removed then all the people are displaced which does not come under public order. So the terms are re-defined every time according to the circumstances. It is left to the discretion of the judiciary to decide based on the circumstances.
If compared with some of the developed countries’ legislatures such as The Republic of South Korea where the defamation laws are strict, according to its law when a person does something true or false if it damages the reputation of others, then it is considered as defamation and sometimes they can result in criminal charges. It is just an example of stricter rules on freedom of speech. Some argue that there must be absolute freedom of speech, without any restrictions. But frankly, the public goes out of order with limitations itself, imagine what happens if there are no such restrictions.
Recent developments:
There are some sections under different statutes, policies or any other which are contradicting Article 19. From time to time they were struck down leading to the conclusion that Article 19 is not exhaustive. Some of them are:
1. State Bank of India v. Association for Democratic Reforms & Ors. (2024) – The Electoral Bond Scheme was termed unconstitutional as it violates the Right to information
2. Anuradha Bhasin v. Union of India (2020) – upholding the Article the court stated that internet shutdown must be lawful, limited and temporary.
3. Navtej Singh Johar v. Union of India (2018) – decriminalized consensual homosexual activities, and upheld the freedom of expression and association.
Suggestions:
So then it has to mean that it is an ongoing problem and exists as long as the right exists. On a brighter note, some simple changes can make a major impact. The suggestions to overcome such misuses are as follows.
- Creation of comprehensive legislature: For a nation like India which has a comprehensive and complex legal system, enactment of another legislature will only shoulder the responsibility. But to prevent the exploitation of the same a detailed legislature would lend a helping hand. One of the reasons people are exploiting or people don’t even know that such action is exploitation is due to the not-so-detailed article. A detailed Act that defines each of the clauses, its amount of usage, reasonable restrictions, and punishment for noncompliance. This helps the judiciary in the speedy disposal of cases as all the instructions are laid down, helps the public servants to do their part with more clarity and helps the public as well.
- Give training: Special training to police, administrative officers and other public servants regarding organizing protests, meetings, relocating people, dealing with uninformed strikes and protests etc., must be provided. The death of innocent civilians due to the negligence or non-performance of the duties by public servants is not unnoticed.
- Special committees: Special committees where there are people with knowledge of rules, regulations and training for organizing protests and any other type of public meetings should be set up. With their assistance more organized ways can be seen and casualties, misuse and misrepresentation can be decreased and eventually may disappear as well.
- Inclusion in school curriculum: Some of the school textbooks and the important articles are discussed. But apart from the academic knowledge and writing the same in exams, there is not much development in the same. Practical application of this such as conducting seminars or allocating project works relating to the rights and duties will play an important role. The silver lining is that in India apart from being a part of school curriculum it is a part of most of higher education as well. But to be honest no one understands the same. Designing such a curriculum where the students will be involved in the subject will be helpful
- Speedy recovery: As discussed earlier, creation of a comprehensive legislature itself would help in speedy recovery, but till that time is there any way of speedy recovery? There must be a way out of it as the area can’t consume much time. Let us take an example where a student who is for higher studies moving out of the country but was restrained from doing so by a public servant just as in Kharak Singh v. State of UP & ors, by the time the student files a case and awaits for the judgment in the slow-paced system, the chance of him losing out the opportunity is high. The government will give the amount but cannot return the time.
- Digital assistance: In training or speedy recovery of cases, the digital world would be helpful. From producing, managing and distributing data through digital media, to filing e-litigation, digital reforms in the judicial system can do miracles. Monitoring infiltration of extremists into the country as they are going to play a vital role in disturbing the organized meetings and many more.
Conclusion:
From this, it can be concluded that “it takes two to tango”. When pointing a finger towards the judiciary legislature or executive the public is ignoring the fact that three fingers are pointing towards them. The same applies to the three organs of the country, merely pointing out and blaming the public means telling them that they are incompetent. So many hands make work lighter. Criticizing the government is necessary for the functioning of democracy, but back up the criticism with facts and evidence. The government blaming a certain community or group of people for misusing the provided freedom is as essential as adhering to clause (2) of Article 19. And finally, the judiciary must uphold the democracy and independence of the judiciary by providing unbiased judgments. Even if someone doesn’t understand the terms laid down in the constitution, the simpler way to make them understand the restrictions is that, don’t hurt the sentiments of people and have some moral principles.
India is the largest democratic country, managing a 1.4 billion population with diverse religious people, where freedom of religion and freedom of speech coexist, yet managing to be the fastest growing nation among developing countries in the world is not a small thing. On further note, the application of certain changes in the constitution/statutes is necessary for a developing country.
Basavaraju Saroja Kumari
Mahatma Gandhi Law College.