Right to Freedom: Articles 19 to 22, Article 21 and Preventive Detention

Right to Freedom: Articles 19 to 22 at a Glance

What Is the Right to Freedom: Five Guarantees in Articles 19 to 22

Among the six Fundamental Rights of the Indian Constitution, the right to freedom follows the right to equality. Its five guarantees differ most in who can claim them. The six freedoms of Article 19 belong to citizens alone, while Articles 20, 21 and 22 protect any person, foreigners included.

Article 21 has grown into the widest right in the Constitution. The courts have read into it privacy, dignity, livelihood, a clean environment and many other rights, so that today it is the foundation on which most new rights rest. The other articles stay close to their text, but each has a body of case law that the examination draws on.

Article 19: Six Freedoms of Citizens

Article 19 Freedoms and Reasonable Restrictions Under Article 19(2) to 19(6)

Article 19 guarantees six rights to every citizen. It originally had seven, but the right to acquire, hold and dispose of property was deleted by the 44th Amendment of 1978. These freedoms belong only to citizens, not to foreigners or to legal persons such as companies, though shareholders as citizens can claim them.

None of the freedoms is absolute. The State may impose reasonable restrictions, but only on the grounds that Article 19 itself lists for each freedom, and the courts decide whether a restriction is reasonable. The grounds differ from freedom to freedom.

Freedom of Speech and Expression Under Article 19(1)⁠(a)

The freedom of speech and expression lets every citizen express views and opinions by word of mouth, writing, printing, pictures or any other medium. The Constitution does not mention the press, but the Supreme Court has read the freedom of the press into Article 19(1)⁠(a), along with several other rights.

• The right to propagate one's own views and the views of others.
• Freedom of the press, and freedom from pre-censorship of a newspaper.
• Freedom of commercial advertisements, and the right to telecast without a government monopoly on electronic media.
• The right to know about government activities, which the Right to Information Act puts into practice.
• Freedom of silence, and the right to demonstrate or picket, though not to strike.

The grounds of restriction were not all in the original text. The First Amendment of 1951 added public order, friendly relations with foreign States and incitement to an offence; public order was added to meet the situation created by the Supreme Court's decision in Romesh Thapar's case of 1950. The Sixteenth Amendment of 1963 added the sovereignty and integrity of India.

The right to know has kept growing. On 15 February 2024 a five-judge bench of the Supreme Court struck down the electoral bonds scheme, holding that it violated the voters' right to information about political funding under Article 19(1)⁠(a).

Limits on Speech: Sedition, Section 66A and Internet Shutdowns

Three disputes show how courts test a restriction on speech, which must fall within a ground in Article 19(2) and be reasonable, with a close link between the speech and the harm it is said to cause.

• Sedition: Section 124A of the Indian Penal Code punished bringing or attempting to bring the Government into hatred or contempt. In Kedar Nath v. State of Bihar (1962) the Supreme Court upheld the section but confined it to words that incite violence or public disorder; comments that disapprove of government action without exciting hatred or disaffection are not an offence. The Supreme Court put the law on hold on 11 May 2022, and the Bharatiya Nyaya Sanhita, 2023 removes sedition as an offence, creating instead an offence of endangering India's sovereignty, unity and integrity.
• Section 66A of the IT Act: It punished sending grossly offensive or menacing information online. In Shreya Singhal v. Union of India (2015) the Supreme Court struck it down as violating Article 19(1)⁠(a) and not saved by Article 19(2), and held that online intermediaries need take down content only on a court or government order.
• Internet shutdowns: In Anuradha Bhasin v. Union of India (2020) the Supreme Court held that an indefinite suspension of internet services is illegal, that shutdowns must satisfy necessity and proportionality, and that such orders must be made public and are open to judicial review.

Public order is narrower than it sounds. It means public peace, safety and tranquillity, and mere criticism of the government does not necessarily disturb it. A restriction fails if there is no reasonable nexus between the speech it targets and the maintenance of public order.

Freedoms of Assembly, Association, Movement, Residence and Profession

The other five freedoms of Article 19 protect action rather than speech. Each has its own limits, set by its own clause.

• Assembly: The right to hold public meetings, demonstrations and processions, peaceably and without arms. It does not protect violent or riotous assemblies.
• Association: The right to form associations, unions and co-operative societies, to continue with them, and not to join one. Recognition of an association is not a Fundamental Right.
• Movement: The right to move freely throughout India, which treats the country as one unit for its citizens. Going abroad and returning is covered by Article 21, not Article 19.
• Residence: The right to reside temporarily and to settle permanently anywhere in India. Entry and settlement in tribal areas can be restricted to protect the culture and property of Scheduled Tribes.
• Profession: The right to any profession, occupation, trade or business. It does not cover immoral or dangerous trades, and the State may run a trade itself, even as a monopoly, without justifying it.

Article 20: Protection in Respect of Conviction for Offences

Ex Post Facto Laws, Double Jeopardy and Self-Incrimination Under Article 20

Article 20 protects anyone accused of a crime, whether a citizen, a foreigner or a legal person such as a company, against arbitrary and excessive punishment. It contains three protections, and it is one of the two articles, with Article 21, that cannot be suspended even during a National Emergency.

• No ex post facto law, Article 20(1): No one can be convicted except for breaking a law in force when the act was done, nor given a penalty greater than the law then prescribed. The bar applies only to conviction and sentence, not to trial.
• No double jeopardy, Article 20(2): No one can be prosecuted and punished for the same offence more than once. The protection applies to proceedings before a court or judicial tribunal, not to departmental or administrative proceedings.
• No self-incrimination, Article 20(3): No accused person can be compelled to be a witness against himself. It covers oral and documentary evidence, but not the compulsory production of material objects, thumb impressions, specimen signatures, blood samples or exhibition of the body.

Article 21: Protection of Life and Personal Liberty

From Gopalan to Maneka Gandhi: Procedure Established by Law and Due Process

Article 21 says that no person shall be deprived of life or personal liberty except according to procedure established by law. It protects citizens and foreigners alike. How much it protects depended on how the courts read the words "procedure established by law".

In A. K. Gopalan v. State of Madras (1950) the Supreme Court read Article 21 narrowly. It protected only against arbitrary executive action, not arbitrary laws. If a law laid down a procedure, the procedure could not be questioned as unfair. The Court held that Article 21 did not require the American standard of due process of law, which lets courts test a law's fairness, and upheld the Preventive Detention Act, 1950, except one section.

Maneka Gandhi v. Union of India (1978) overruled Gopalan. The Court held that the procedure must be just, fair and reasonable, which in effect brought in due process, and that Articles 14, 19 and 21 are linked, so a law depriving a person of liberty must satisfy all three. It also held that the right to life is not mere animal existence but includes the right to live with human dignity.

Rights Read Into Article 21: Dignity, Livelihood, Health and More

Building on Maneka Gandhi, the Supreme Court has declared a long list of rights to be part of Article 21. They fall into four broad groups.

Two cases show how the reading works. In Olga Tellis (1985) pavement and slum dwellers in Bombay challenged their eviction during the monsoon, and the Court accepted that taking away a person's livelihood takes away a part of the right to life. In Common Cause (2018) a five-judge bench read the right to die with dignity into Article 21 and allowed living wills, under which a terminally ill or vegetative patient can be passively euthanised; the procedure was eased in January 2023.

Right to Privacy: The Puttaswamy Judgment of 2017

Earlier benches in M. P. Sharma and Kharak Singh had held that there is no Fundamental Right to privacy. The question came up again in the challenge to the Aadhaar scheme. On 11 August 2015 a three-judge bench sent it to a bench of appropriate strength, because those earlier rulings had been given by eight and six judges.

In Justice K. S. Puttaswamy v. Union of India (2017) the nine judges held unanimously that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms in Part III. The judgment overruled M. P. Sharma and Kharak Singh. Like other rights, privacy can be limited, but only where there is a compelling State interest.

Article 21A and the Right to Education Act, 2009

Article 21A requires the State to provide free and compulsory education to all children aged six to fourteen, in the manner the State determines by law. It makes only elementary education a Fundamental Right, not higher or professional education. The 86th Amendment Act of 2002 added it.

The right had a judicial history before the amendment. In 1993 the Supreme Court had already recognised a Fundamental Right to primary education within Article 21, free until a child completes the age of fourteen, while holding that education beyond that depends on the economic capacity of the State. The 86th Amendment also changed Article 45 to cover early childhood care up to the age of six, and added a Fundamental Duty on parents to provide their children opportunities for education.

Parliament gave effect to Article 21A through the Right of Children to Free and Compulsory Education Act, 2009, enacted on 4 August 2009. Section 3 gives every child of six to fourteen the right to free and compulsory education in a neighbourhood school until elementary education is complete, and private schools must reserve 25 per cent of seats for children from disadvantaged backgrounds. A notification of 16 February 2010 brought the 86th Amendment into force on 1 April 2010, the day the Act also took effect.

Article 22: Protection Against Arrest and Detention

Rights of an Arrested Person Under Article 22(1) and 22(2)

Article 22 deals with two kinds of detention. Punitive detention follows a trial and conviction; preventive detention is detention without trial, to stop a person from committing an offence in the near future. The first part of the article protects a person arrested under ordinary law.

• The right to be told the grounds of arrest.
• The right to consult and be defended by a lawyer of one's choice.
• The right to be produced before a magistrate within 24 hours, excluding the journey.
• The right to be released after 24 hours unless the magistrate authorises further detention.

These safeguards do not apply to an enemy alien or to a person held under a preventive detention law. The courts have added to them. The guidelines laid down in D. K. Basu v. State of West Bengal (1997) require police officers who make an arrest to wear clear name tags with their designations, a memo of arrest to be prepared at the time of arrest, and a friend or relative of the arrested person to be told of the arrest. In Arnesh Kumar v. State of Bihar (2014) the Supreme Court held that for offences punishable with less than seven years, arrest should be the exception, and police must first decide whether an arrest is necessary under the law's conditions.

Preventive Detention Under Article 22: Safeguards and Laws

The second part of Article 22 protects persons held under a preventive detention law, citizens and aliens alike. The safeguards are limited, because the purpose of such detention is precaution based on suspicion.

• Detention cannot exceed three months unless an advisory board of High Court judges reports sufficient cause.
• The grounds of detention must be communicated, though facts against the public interest need not be disclosed.
• The detenu must be given an opportunity to make a representation against the order.
• Parliament may prescribe the cases in which a person can be held for more than three months without an advisory board's opinion, the maximum period of detention and the procedure of the board.

The 44th Amendment of 1978 reduced the period without an advisory board's opinion from three months to two, but that provision has not been brought into force. Parliament alone can make preventive detention laws on defence, foreign affairs and the security of India; Parliament and the State Legislatures can both make such laws for the security of a State, public order and essential supplies. The National Security Act, 1980, is the main law today, with a maximum detention of 12 months.

Sources

• Legislative Department (Ministry of Law and Justice): The Constitution of India
• NCERT: Indian Constitution at Work, Class 11, Chapter 2, Rights in the Indian Constitution
• Wikipedia: Maneka Gandhi v. Union of India
• Wikipedia: A. K. Gopalan v. State of Madras
• Wikipedia: Puttaswamy v. Union of India
• Wikipedia: Shreya Singhal v. Union of India
• Wikipedia: Olga Tellis v. Bombay Municipal Corporation
• Wikipedia: Euthanasia in India
• Wikipedia: Freedom of expression in India
• Wikipedia: Internet censorship in India
• Wikipedia: Electoral bonds
• Wikipedia: Right of Children to Free and Compulsory Education Act, 2009
• Wikipedia: National Security Act, 1980
• Wikipedia: Arnesh Kumar Guidelines
• Supreme Court of India: Justice K. S. Puttaswamy (Retd.) v. Union of India, W.P. (C) 494 of 2012, reference order of 11 August 2015
• India Code: The Right of Children to Free and Compulsory Education Act, 2009, with notification S.O. 427(E)
• National Human Rights Commission: Annual Report 1996‑97, the D. K. Basu requirements on arrest
• Wikipedia: Section 124A of the Indian Penal Code
• Wikipedia: Bharatiya Nyaya Sanhita, 2023
• Wikipedia: Article 12 of the Constitution of India