Constitutional law:

Art 19 (1) states:

all citizens have the right to:

a. Freedom of speech and expression

(2) Nothing in this sub-clause shall affect the operation of law, reasonable restrictions in the
interest of {DMD F PICSS}
b. Right to form associations, unions or co-operative societies
(4) Nothing in this sub-clause shall affect… of {SP, M} – 97th amendment, 2011
c. Right to reside and settle in any part of the country
Nothing in this sub-clause… of {general public or prohtection of the interest of any scheduled
tribes} – 44th amendment, 1978
d. Right to move freely throughout the territory
(5) Nothing in this sub-clause… of {general public or protection of the interest of any
scheduled tribes}

e. Right to practice any profession

(6) Or shall prevent the state from making law relating to:
i. Professional/technical imp for practising any profession
ii. The carrying on by the state, or corp owned by state

f. Right to assemble peaceably without weaponry

(3) Nothing in this sub-cause shall affect... of {SP}

g. (Right to acquire, hold, and dispose of property – omitted)

CA debate on the reasonable restrictions – whether it would negate the rights, it can’t be absolute,
would depend on future legislations, sedition not under (a), contempt of court

basic, inherent and natural right, preconditions for democratic state, not absolute, liable to be
abridges by future/existing laws. These rights have various philosophies – dharam dutt v union of
india (2004)

A law restricting the rights under clause 1 of Art 19 must satisfy two conditions:

a. Must be for a purpose mentioned in clause permitting the imposition of the same
b. Must be reasonable

Limitation on power of the legislature but extends scope of judicial review, determination by
legislature is not conclusive or final but upto the courts

Citizens – determination of citizenship – part II – alien or foreigner or diety of municipal cannot

enjoy this right.

Registered companies or socities do not come under the definition of citizenship (state trading corp
of india ltd v CTO, TELCO Ltd v state of Bihar

In Bennet coleman v UOI, FRs of a citizen are not lost when they associate to form a company

Reasonable restrictions – State of Madras v V.G. Row (while evaluating and forming their
conception of what is reasonable reflect on consti not only for people of their way of thinking but for
all and majority consider it reasonable), test may vary from right to right which the la restricts,
although it is not possible to have a absolute definition, some principles are as follows:

a. Reasonableness demand proportionality (modern dental college and research centre v state
of MP) – should not be arbitrary or of excessive nature, proper balance between freedoms
under clause (1) and social control permitted by clauses (2) to (6)
b. Both substantive and procedural – nature of the restrictions and the procedure provided in
the stature for imposing the restriction, kishan chand arora v polic commr (externment under
clause (5)), maneka gandhi v UOI – exclusion of natural justice is subject to requirement of
reasonableness in art 14
c. An objective concept – should be determined in an objective manner, standpoint of general
public and not point of view of the individual – municipal corpn. Of the city of ahemdabad v
jan mohammed usmanbhai and state of Gujarat v Mirzapur moti kureshi kassab jamat
d. Reasonableness of restriction and not of law –
e. Reasonable restriction includes prohibition
f. Reasonableness and US “due process” – clases (2) to (6) coincide with “due process” of the
US law but it is not to construe the concept of the same while deciding Indian cases
g. Directive principles of state policy
h. Reasonableness of tax – prima facie, a tax is not a restriction on the freedoms construed in
Art 19 – Pankaj Jain agencies v UOI

- Any restriction imposed without the authority of law would be unconstitutional

- Art 366(10)
- Even during an emergency, an individual’s right cannot be restricted without an authority of
law, state of M P v bharat singh, also expressly stated in art 358(2)(b)
- Jabalpur v shivakant Shukla (habeas corpus) Union of india v Naveen Jindal (flag)

Clause (1)(a): Freedom of speech and expression

The right to express one’s opinion and conviction by word of mouth, writing, printing, pictures or any
other mode.

Doordarshan – ‘father, son and holy war’ – Trilogy – Bombay HC disposed at doordarshan (state
authority with public funds) – SC said it is under 19(1)(a) and represent the evil vices eating into the
constitution

Romesh Thappar v state of madras, Patanjali sastri CJ observed, lays at the foundation of democratic
organisations, ‘it is better to leave a few of its noxious branches to their luxurious growth’

- Sakal papers v UOI, liberty of press is included (freedom of press not confined to newspapers
and periodicals but every publication which affords a vehicle of information and opinion
- Pre-censorship on publication unless justified under clause (2) violates
- Bennet coleman case (policies limiting pages of newspaper - Mathhew J to prevent an
oligopoly ruling market – not amount to abridgement of FR)
- Commercial advertisements, gender identity, demonstration (strike is not under the purview
of expression – Radhey shyam sharma v post master general)
 - Citizen has the right to be protected from a bandh (communist party of india v bharat kumar,
all india anna dravida munnetra kazhagam v govt of T.N., reasoning from bharat kumar v
state of kerala)
- Threat to go on a hunger strike is protected under 19(1)(a) – ramlila maidam incident, re
2012
- Freedoms guaranteed under 19(1)(a) and (b), do not include right to exercise them in
properties belonging to other unless it is in public
- Dramatic performance is a form of the same, in s Rangarajan v P. Jagjivan Ram
- Education – 21-A, to choose language for mode of education – 19(1)(a)
- Right to know (RTI Act, Sheela Barse v state of maharashtra and people’s union for civil
liberties v UOI), receive and impart has been recognised under 19(1)(a) – S. P Gupta v UOI,
Ram Jethmalani v UOI (2011)
- Right to reply (Manubhai D Shah v LIC, Yogakshema case), Right to remain silent (national
anthem case – bijoe Emmanuel v state of kerala), right to listen or decline to listen, usha
uthup v state of WB (right to perform)
- Ministry of information and broadcasting, govt of India v cricket assn. of Bengal – air wave or
frequencies are public property, so there are inbuilt restrictions (I guess prasar Bharati act
takes care of this)
- Shreya Singhal v UOI (2015) – can put restricted only is related to eight subject matter in
19(2), invalidation of S 66-A of IT Act, 2000
- Right to elect and right to vote are not fundamental rights but rather statutory rights, NOTA
(PUCL v UOI)
- Exclusion of recordings by press in criminal proceedings – against 19(1)(a) or against right to
free trial for administrative justice? Although very unsettled in india (to bribe witness – sting
operation – right for free trial and freedom of speech and expression – R.K. Anand v Delhi
High Court)

Art 19(2) – reasonable restrictions

a. Sovereignty and integrity of india – with respect to the territorial integrity of India
b. Security of the state – aggravated form of public disorder, state of bihar v shailabala devi
(incitement held reasonable restrictions as it would be danger to security of state)
c. Friendly relations w foreign state – libel – foreign prince etc
d. Public order (public peace, safety and tranquillity) – Romesh thappar case
e. Incitement to an offence (defined in general clauses act)
f. Contempt of court – administrative justice is imp, so balance between the values, SC – Art
129, HC – Art 215, contempt of courts act, S 288 IPC. EMS Nambooridipad v TN Nambiar –
rich and poor, judiciary- instrument of oppression (contempt of court held valid)
g. Decency or morality – S 292-294 IPC (obscenity)
h. Defamation

Clause (1)(b) and 19(3): Freedom to assemble

- Demonstrations, processions and meetings are common to both (1)(a) and (1)(b), so same
rules apply. Strike is not covered under this either.
 - Railway board v Niranjan Singh – cannot assemble meetings on railways, they can prohibit
the same

Clause (1)(c) and 19(4): Freedom to form association

- Lifeblood of democracy, elections – political groups – democracy

- State of madras v V G Row – test is subjective, it is fraught with reactions in religious, political
and economic fields
- Recognition of an association by the government may affect the right to form an association,
OK Ghosh v EX Joseph (govt servant can only join associations that it recognizes, held invalid)
- Dharam dutt v UOI – does not employ fulfilment of every object of the union, it would
contravene scheme guaranteed under part III, Right to strike or right to declare a lockout is
regulated by industrial legislation. Taking over an institution without impairing the right to
form the association and continue the same, was not a violation of 19(1)(c) – LN Mishra
institute of ED and social change v state of Bihar. Condition of recognition (voluntary not
compulsory) would not affect the freedom to form associations
- if there is no legal intervention, then the court cannot purport that it is not in the interest of
the public policy, Zoroastrian cooperative housing society v district registrar (against parsi)
- Damyanti naranga v UOI – law to take out members or impose new members would affect
their right to form association of old members who joined voluntarily
- Central govt may by notification declare an association unlawful under the unlawful activities
(prevention) act, 1967 under grounds mentioned in S 2(f), should be confirmed by tribunal
- Whether right to form associations is also envisages right to not form associations – does not
have to be negated as a FR

Clause (1)(d), (1)(e) and 19(5); Freedom of movement and residence

19(1)(e) applies only to citizens and not foreigners, govt can expel foreigners from india.

- Restricting movement to maintain public order

- Wearing helmets – ajay canu v UOI, Externment order – NB Khare v Delhi, east Punjab safety
act and Bombay police act (for upto two years if act was calculated to cause harm, about to
commit offence or witness), but he has to get in writing and gets a chance to clear the
allegations against him and can appeal to the state govt. Hari v Dy commissioner of police –
law valid, to protect, Max Externment = 2 years
- Prem chand v UOI – police apprehension not enough, strict, clear danger (‘goonda’
vagueness, delhi act invalid, Bombay act valid)
- Deportation – executive has limited power, hasan ali raihani v UOI – should be informed
about reason for deportation – with representation- then order – procedure may be
departed. Abdul rahim v state of bombay, to show passport upon arrival is reasonable
restriction.
- Police surveillance – validity of the same upheld in Kharak singh v state of uttar Pradesh. Held
that 19(1)(d) is inclusive of physical, tangible and direct restraints and not ‘psychological
effect etc’. Govind v state of Madhya Pradesh (only if they show that material exist that they
could be living a criminal life). In malak singh v state of Punjab, held that surveillance over
habitual offenders, and potential offenders is okay)
Clause (1)(g) and 19(6): freedom to carry on trade and commerce (to include all modes through
which a person earns his livelihood, hence, comprehensive)

- Government regulates economy in the way it pleases despite art 19(1)(g). excel wear v UOI,
private enterprise and nationalisation and state ownership. In reliance energy limited v
Maharashtra state road development, level playing field subject to public interest.
- From nationalisation to privatisation. Profession, occupation, trade and business.
- Fundamental right to establish educational institute in restricted as well – modern school v
UOI
- State monopoly can be created wholly or partially by law, it is valid and reasonable restriction
under 19(6) – akadasi padhan v state of orissa. Parliament can create trading monopolies in
the states under entry 21 of concurrent list. Medical issue only govt from public sector – not
account to monopoly – Indian drugs and pharm limited v Punjab drugs manufacturers
association. Monopoly is something to the total exclusion of others
- Trade – to involve govt control aggressively in order to adjudge something as not a trade or
commercial activity because its nature could be against the interest of public order, morality
or dangerous character, plying motor vehicles (sagir ahmad v state of uttar Pradesh) and
rickshaw is trade and commerce.
- Sub-constitutional law and its effect (binoy vishwan v uoi, 2017)
- No fundamental right to carry trade in intoxicants as it is dangerous to public health, art 47 –
Har Shankar v Dy ET Commissioner (1975), right to trade in liquor does exist but it is subject
to stringent restrictions. Liquor has been regarded as res extra commercium.
- State of Tamil Nadu v K Balu
- Caveat here is, unreasonable restrictions on trade in liquor can invoke Art 14. Education is
not considered a trade or commerce but rather welfare activity, right to establish and run any
institution is a FR – sree Balaji medical college & hospital v UOI
- Art 301

Restrictions on trade and commerce:

- Objective manner, general public. Canalisation of business even for an individual is

reasonable where the interest of the country is concerned – bannari aman suagrs ltd v CTO
- Ram jawayya v state of Punjab (school textbooks), govt of kerala – pump sets
- Must not be arbitrary or excessive in nature, urgency of evil sought to be remedied, nature of
the right, purpose of restriction. BP Sharma v UOI
- Sivani v state of Maharashtra – whether there is balance b/w social control and right of an
individual
- Restriction can amount to prohibition, but through stringent test of public interest (narenda
kumar- total prohibition on copper dealer held valid)
- Street Hawking is a FR guaranteed under 19(1)(g) and 21. Hawking zones in the city, national
policy on urban street vendors, 2009 for proper legislation of the same.
- Slaughtering of animals is valid to carry of trade or business if they are of no economic value
to the society

Article 20(1): Ex Post Facto Law

Protection against laws that impose penalties retroactively is provided under this article. No
person can be convicted except for violating a law in force at the time, immunity is provided to
the person.

Sakshi v UOI, refuse to give enlarge meaning to rape because it may violate interpretation of
article 20(1). Section 3(38) in the general clauses act defines offence. Immunity extends only to
punishment for criminal offences under ex post facto law, not against preventive detention or
security from press (state of bihar v shailabala). Does not bar civil liability. Hatisingh
Manufacturing Company v UOI – liability imposed as civil which was not an offence could not
come under the purview of art 20(1). A tax can be imposed retrospectively. This article prohibits
conviction and sentence but not trial (mohan lal v state of rajasthan). Change in courts is not hit
by art 20(1). Rule of evidence can be applied for an offence committed earlier. Prevention of
corruption act inclusive of rule of evidence for trial etc not retrospective operation just because it
draws time passed before the act. If they have the same ingredient of offence, but enacted later,
earlier statute is repealed, the greater punishment does not apply (T Barai v Henry Ah Hoe) –
accused has the benefit to enjoy retroactive law reducing punishment for an offence.

This article immunizes a person from a penalty greater than what he might have incurred at the
time of committing the offence. (kedar nath bajoria v state of west Bengal). Scope of article 20(1)
– K Satwant Singh v State of Punjab. Eg; 420 IPC.

Shiv dutt rai fateh chand v UOI, increasing penalty w/ retrospective effect for violation of taxing
statue is valid, because it is of civil sanction, not under ‘penalty’. Criminal prosecution. Rattan Lal
v State of Punjab (16-year-old – 6 months and fine – probation of offenders’ act, he could be
given the benefit of the act).

Judicial interpretation – Lily Thomas v UOI, sara Mudgal – 494 IPC – no new law.

Article 20(2): Double Jeopardy

Found in the maxim of, nemo debet bis vexari (man must not be put twice in peril for the same
offence). Scope of Art 20(2), prior to the constitution – S 26 of general clauses act, S. 300 CrPC. In
India, principle of autrefois convict no autrefois acquit, means that it can only be invoked if
prosecution and punishment has happened once. If a person has been prosecuted but acquitted,
then he can be punished for the same offence. OP Dahiya v UOI – neither convicted nor acquitted
in the first trial, would not amount to double jeopardy in case of retrial. Person can be tried for
overlapping features of an offence under different acts, eg, 302 IPC, S 3(2) and 3(3) POTA {state v
navjot sandhu}

State of Bihar v Murad Ali Khan, not the allegation of the offence but the ingredients of the
offence is what’s important to determine. State of Bombay v SL Apte – S 409 IPC and S 105
insurance act, different ingredients of offence. The offence of a conspiracy to commit a crime is
different from the crime itself (leo roy frey v suptd, district jail – sea customs act and 102B IPC)

Jitendra Panchal v Narcotics Control Bureau (US and Indian laws are diff, so won’t be
retrospective). Prosecution - must be before court of law or judicial tribunal. Maqbool Hussain v
State of Bombay (gold not allowed – customs authorities – no prosecution or punishment –
foreign exchange regulation act – could not use plea of ‘artefois acquit’, tribunal entertains
departmental or administrative inquiry and not legal evidence on oath unlike the initiations of
 prosecution. Sea customs act, foreign exchange regulations act, jail superintendent acts are
adjudicating and administrative in nature and not criminal proceedings.

Thomas Dana v State of Punjab, established that action taken by a quasi-judicial does not bar a
prosecution later. If prosecution and punishment is done, quasi-judicial body can take further
action (Joginder Singh v Bar Council of India).

Article 20(3): privilege against self-incrimination

a. USA – applies to witnesses as well as parties in civil and criminal proceedings. Documentary
and oral evidence. McArthy v Arndtsain – evidence needed for conviction, is covered by the
constitution.
b. Britain – expose to any criminal charge, penalty or forfeiture. Policy to get people to come
with evidence forward themselves.
c. India:
- Presumption of innocence
- Prosecution to establish guilt
- No need to make statement against his will
- Maintenance of human privacy

Right available to a person accused of an offence not a person questioned as witness, compelled to
be a witness, and to give evidence against himself.

a. Types of incriminating evidence

- Testimonial compulsion (Selvi v State of Karnataka). In MP Sharma v Satish Chandra
(to limit to oral evidence would be to rob the article of its substantial purpose). To be
a witness = furnish evidence which could be in any mode = testimony. Sharma v
Satish.
- State of Bombay v Kathi Kalu Oghad, bench of 11 judges, whether the question of
giving fingerprints, specimen hand writing would be covered under 20(3), ‘to be a
witness’, it is not included under the same because it is not in expression to be a
witness. Prosecution cannot be bought against a statement by a person falling
withing S 132 of IEA (R Dinesh Kumar v State). Several evidences are excluded from
20(3) in order to balance between exigencies of crime and protection of the
individual.
- State of NCT (delhi) v Navjot Sandhu, People’s Union for Civil liberty v UOI – not a
violation of art 20(3) if obtained court of magistrate for obtaining samples under S 27
of POTA. Contrary – Amrit singh v state of Punjab.
- 20(3): personal knowledge, S 73 EA can direct a person to appear before court with
writing sample for comparison in the interest of justice (state {Delhi admin} v Pali
ram). S 91 CrPC, does not empower the court to ask to accused to produce
documents (Kanti Kumar v State of Jharkhand). S 94 CrPC does not include accused
person.
- Standing up for identification, observation by doctor for purpose of intoxication does
not amount to violation of 20(3). If an accused points to the corpus deliciti during
investigation, leading to self-incrimination, discovery made under S 27 of Evidence
Act, it can be used in court. Section 27 of EA is outside prohibition of 20(3) [State of
Bombay v Kathi Kalu Ohgad]
 - Compulsion. In nadini satpathy v PL Dani (pre-trial stage), Iyer J advocated the
interpretation of ‘compelled testimony’, inclusive of stuff like env coercion, tiring
interrogation, psychic torture. Any mode of procedure. Guidelines added into Section
32 and 52 of POTA. US supreme court case, Miranda v Arizona, inform person
arrested of his legal right to consult a legal practitioner. S 52(2) of POTA – Miranda
rule.
- Tape recording of phone conversation by consent of one of the parties is admissible
as evidence in court – RM Malkani v State of Maharashtra.

Article 21: protection of life and personal liberty

Sabeeha faikage v UOI – only against the state and not private individuals.

Gopalan: 1950 - Right to live with human dignity is available to every person, cannot violate except
by procedure established by law. This interpretation was questioned in AK Gopalan v State of
Madras. ‘Law’ was used in the sense of lex and not jus, so it means an enacted law.

Relation between Art 21, 22 and 19. Court held that Art 20-22 (personal liberty) constitute a
comprehensive code and embody constitutional protection and was not controlled by Art 19.
Preventive detection act held valid as long as it conforms with art 22.
Article 22: Protection against arrest

Protection against oppression and abuse, is a major interest of a free society. In joginder Kumar v
State of Uttar Pradesh, no arrest can be made because it is lawful for the officer to do so. After some
investigation and bona fide of a complaint. Article 22 guarantees minimum rights that an arrested
person can enjoy.

Art 22(1): not to be detained without being informed

(2): a. shall not be denied right to consult and be defended

b. to be produced before nearest magistrate w/in 24 hours

c. cannot be detained beyond such period without authority

Rule 1- information about ground of arrest

State of Madhya Pradesh v Shobharam – so that he can prepare his defence, move to court for bail
or for a writ of habeas corpus.

It is not necessary to disclose full details, but just enough for him to understand the reason for his
arrest, ground should be intelligible (Vimal v State of Uttar Pradesh). Sufficient information is
essential, just stating act is not enough.

Rule 2- right to consult a lawyer

Legal practitioner allowed to consult the accused w/out hearing of the police. Court cannot force
them to meet in the presence of a police officer (Jose Poothrikkayil v UOI). It starts from the day of
the arrest, as soon as he is arrested. Iyer in Nandini Satpathy, does not mean a person who is not
under arrest cannot avail the right. Trespass – bail – trial – could not be defended – unconstitutional.

USA- under the impact of due process in law (Gideon v wainwright – ‘mistrial’).

Rule 3: production of the arrested person before magistrate