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DD Basu Commentary on the Constitution of India, Vol 1-4, 9e 2015/Volume 3/PART III FUNDAMENTAL
RIGHTS/Article 19 1 of 7

CONSTITUTION OF INDIA
Art. 19.

Protection of certain rights regarding freedom of speech, etc.


1)  All citizens shall have the right--
1. to freedom of speech and expression;
1. to assemble peaceably and without arms;
1. to form associations or unions1 [or co-operative societies];
1. to move freely throughout the territory of India;
1. to reside and settle in any part of the territory of India; 2[and]
1. 3
[* * *]
1. to practise any profession, or to carry on any occupation, trade or business.

1)
(2)Nothing in sub-clause (a) of clause (1) shall affect 4
[(2)Nothing in sub-clause (a) of clause(1) shall
the operation of any existing law in so far as it relates affect the operation of any existing law,or prevent the
to, or prevent the state from making any law relating State from making any law,in so far as such law
to libel, slander, defamation, contempt of Court or imposes reasonable restrictions on the exercise of
any matter which offends against decency or morality the right conferred by the said sub-clause in the
or which undermines the security of, or tends to interests of5 [the sovereignty and integrity of India],
overthrow, the State. the security of the State,friendly relations with foreign
States,public order,decency or morality,or in relation
to contempt of court,defamation or incitement to an
offence].
1)  Nothing is sub-clause (b) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law imposing,
in the interests of6 [the sovereignty and integrity of India or] public order, reasonable
restrictions on the exercise of the right conferred by the said sub-clause.
1)  Nothing in sub-clause (c) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law imposing,
in the interests of7 [the sovereignty and integrity of India or] public order or morality,
reasonable restrictions on the exercise of the right conferred by the said sub-clause.
1)  Nothing in8 [sub-clauses (d) and (e)] of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent the State from making
any law imposing, reasonable restrictions on the exercise of any of the rights conferred
by the said sub-clauses either in the interests of the general public or for the protection
of the interests of any Scheduled Tribe.
1)
(6)Nothing in sub-clause (g) of the said clause shall (6)Nothing in sub-clause (g) of the said clause shall
affect the operation of any existing law in so far as it affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposes, or prevent the State from making any law
imposing, in the interests of the general public, imposing, in the interests of the general public,
reasonable restrictions on the exercise of the right reasonable restrictions on the exercise of the right
conferred by the said sub-clause, and, in particular, conferred by the said sub-clause, and, in 9 particular
nothing in the said sub-clause shall affect the 10
[nothing in the said sub-clause shall affect the
operation of any existing law in so far it prescribes or operation of any existing law in so far as it relates
empowers any authority to prescribe, or prevent the to,or prevent the State from making any law relating
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State from making any law prescribing or to,--


empowering any authority to prescribe, the
professional or technical qualifications necessary for
practising any profession or carrying on any
occupation, trade or business.
1. the professional or technical qualifications necessary for practising any
profession or carrying on any occupation, trade or business, or
1. the carrying on by the State, or by a corporation owned or controlled by the
State, of any trade, business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise.]

Amendments
1.  Clauses (2) and (6) of Art. 19 were amended by s. 3 of the Constitution (First
Amendment) Act, 1951.
1. In Cl. (2) the changes effected were--
1. Introduction of several new grounds of restriction upon the freedom
of speech,--
1. friendly relations with foreign States; (2) Public order; (3) Incitement
to an offence.
1. Deletion of the ground 'tends to overthrow the State'.
1. Widening the scope of the expression relating to 'security of the
State', by substituting the words 'any matter which offends against or
undermines the security of the State' by the words "in the interests of the
security of the State".
1. Substiutution of the words "libel, slander" by the word 'defamation'.
1. Insertion of the expression 'reasonable restrictions', to govern all the
above grounds.
1. The foregoing changes are given retrospective effect, by the
words--"shall be deemed always to have been enacted in the following
form".--
1.
1. In Cl. (6), a new ground of restriction upon the freedom of trade, profession
etc., was introduced, viz, the carrying on of a trade, business, industry or service,
by the State or by a corporation owned or controlled by the State. No law relating
to such function shall be void by reason of the fact that it ousts the private citizens
from that trade or industry, either partially or exclusively. This Amendment Act
came into force on 18-6-51.

1I.  By the Constitution (Sixteenth Amendment) Act, 1963, which came into force
on the 6th October, 1963, Cls.(2), (3) and (4) were amended in order to include the
maintenance of the sovereignty and integrity of India as a ground of restriction of the
fundamental rights of expression, assembly and association, guaranteed by sub-cls. (a)-
(c) of Cl. (1) of Art. 19.
1II.  By the Constitution (44th Amendment) Act, 1978, the right to property has
been excluded from the list of Fundamental Rights, omitting sub-Cl. (f) of Cl. (1) and
making consequential omission in Cl. (5).
In the original Constitution of 1949, there were 7 freedoms in Art. 19(1), which were popularly knows
as 'the seven freedoms of the Indian Constitution'.
One of them, namely, 'the right to acquire, hold and dispose of property' has been omittedby the
Constitution (44th Amendment) Act, 1978, leaving only six freedoms in that Article. They are--1.
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Freedom of speech and expression. 2. Freedom of assembly. 3. Freedom of association. 4. Freedom


of movement. 5. Freedom of residence and settlement. 6. Freedom of profession, occupation, trade or
business.
Not only Art. 19(1)(f) but the related Art. 31 has also been omitted by the same 44th Amendment Act,
1978, thus eliminating the right to property from the protection of Part III of the Constitution.
Instead, the right to property has been retained as an ordinary legal right, by inserting Art. 300A
(outside Part III) as follows:

"No person shall be deprived of his property save by authority of law".

The result, in short, is that if an individual's property is taken away by a public official without legal
authority or in excess of the power conferred by law in this behalf, he can no longer have speedy
remedy direct from the Supreme Court under Art. 32 (because the right under Art. 300A is not a
fundamental right). He shall have to find his remedy from the High Court under Art. 226 or buy an
ordinary suit.
Effects of Amendments
See under the respective clauses.
1 Inserted by the Constitution (Ninety-seventh Amendment) Act, 2011, S. 2 (w.e.f. 15-2-2012).

2 Inserted by the Constitution (Forty-fourth Amendment) Act, 1978, S. 2 (w.e.f. 20-6-1979).

3 Sub-cl. (f)-'to acquire, hold and dispose of property'; omitted by the Constitution (44th Amendment) Act, 1978, S. 2
(w.e.f. 20-6-1979).

4 Substituted by the Constitution (First Amendment) Act, 1951, 1951, S. 3 (with retrospective effect).

5 Inserted by the Constiutution (Sixteenth Amendment) Act, 1963, S. 2.

6 Inserted by the Constiutution (Sixteenth Amendment) Act, 1963, S. 2.

7 Inserted by the Constiutution (Sixteenth Amendment) Act, 1963, S. 2.

8 Substituted by the Constitution (44th Amendment) Act, 1978, S. 2, for "sub-clauses (d), (e) and (f)" (w.e.f. 20-6-1979).

9 Cf. Bishun Sarup v. Union of India, (1973) 3 SCC 1 (para. 28) : AIR 1973 SC 554.

10 Substituted by the Constitution (First Amendment) Act, 1951, 1951, S. 3.

GENERAL
Scope of Article 19: Six Freedoms
Article 19 of the Constitution guarantees six fundamental rights: viz., (1) Freedom of speech and
expression, (2) Freedom of assembly, (3) Freedom of association, (4) Freedom of movement, (5)
Freedom of residence and settlement, (6) Freedom of profession, occupation, trade or business. The
scope of the guarantee has, however, been defined by limitations contained in the Article itself. The
Article, thus, may be said to consist of two parts--(a) the declaration of the rights, in Cl. (1), comprising
six sub-clauses; (b) the limitations contained in the five clauses, (2) to (6), each governing one or
more of the sub-clauses of Cl. (1).
In Maneka Gandhi v. Union of India, 1 it was held that when the Constitution makers enacted Part III,
they inscribed in the Constitution certain basic rights which inhere in every human being and which
are essential for the unfolding and development of his full personality. These rights represented the
basic values of a civilized society and the Constitution makers declared that they shall be given a
place of pride in the Constitution and elevated to the status of fundamental rights.
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Fundamental rights are those rights which the State enforces against itself. 2
Fundamental right is a right derived from (1) natural or fundamental law, (2) Constitutional law. It is a
significant component of liberty, encroachments of which are rigorously tested by Court to ascertain
the soundness of purported governmental justifications.
A fundamental right triggers strict scrutiny to determine whether the law violates the Due Process
Clause or the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. As enunciated
by the U.S. Supreme Court fundamental right include voting, inter-state travel and various aspects of
privacy (such as marriage and contraception right). Also termed as "fundamental interest". 3 It is a right
protected and guaranteed by the written Constitution of a State. 4
In England, these six rights are known as Common Law Rights as distinguished from the rights
created by statutes.
The Supreme Court of India characterises these as natural rights. Fundamental rights are the modern
name for what has been traditionally known as "natural rights". 5
When guaranteed and entrenched by a written Constitution, these rights are called "Fundamental
Rights" because they are guaranteed by the fundamental law. 6 In the Eighth Edition of the book (at pp.
13-14) learned author HOOD PHILLIPSsays: "Such rights when recognised in a Constitution and
guaranteed protection against curtailment (except by legislation passed by special procedure) can be
distinguished as "fundamental rights". In this sense, the British Constitution does not recognise
"Fundamental rights". Nonetheless, the courts increasingly refer to rights as "fundamental" or
"constitutional" which because of their importance cannot be restricted except by clear words in an Act
of Parliament. The enactment of Human Rights Act, 1998 and the ensuing duty of public authorities to
act in a way compatible with Convention Rights will, almost inevitably encourage further use of such
terminology."
The American Declaration of Independence (1776) states that all men are created equal and among
their inalienable rights are life, liberty and pursuit of happiness. The American 'Bill of Rights' consists
of ten amendments added in 1791 to the Federal Constitution of 1787. These rights include free
exercise of religion, freedom of speech, and the press, peaceful assembly, petition for redress of
grievances (1st Amendment); security of persons, houses, papers and effects from unreasonable
search and seizure (4th Amendment); no deprivation of life, liberty or property without due process of
law (5th Amendment) and freedom from excessive bail or fines and from cruel and unusual
punishment (8th Amendment). The American Constitution has already provided that the writ of habeas
corpus should not be suspended, that no ex-post facto law should be passed, and trial of all crimes,
except in cases of impeachment, should be by jury. Later amendments abolished slavery and
preserved the franchise from discrimination on ground of race, colour or sex.
Article 19 confers fundamental rights on citizens. A statutory right - as distinguished from fundamental
right - conferred on persons or citizens is capable of being deprived of or taken away by legislation.
The fundamental rights cannot be taken away by legislation; a legislation can only impose reasonable
restriction in the exercise of the right. These rights are great and basic rights, which are recognized
and guaranteed as natural rights, inherent in the status of a citizen of a free country.
A fundamental right is so called because it is secured "not" by the ordinary law, but by a fundamental
law, which in modern times, is embodied in written Constitution that cannot be altered by ordinary
process of legislation.7 It is also called "entrenched rights" because they are guaranteed by a written
Constitution, so that "entrenched rights" because they are guaranteed by a written Constitution, so
that they cannot be taken away or abridged without amending the Constitution itself or is called
"Constitutional rights" because they are enforceable by remedies specified in the Constitution apart
from remedies prescribed by ordinary law.8 Yet, there cannot be any liberty absolute in nature and
uncontrolled in 'operations' so as to confer a right wholly free from restraint. Had there been no
restraints, the rights and freedom may tend to become the synonyms of anarchy and disorder. The
Founding Fathers, therefore, conditioned the enumerated rights and freedoms reasonably and such
reasonable restrictions are found to be enumerated in clauses (2) to (6) of Art. 19 (excepting for sub-
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clauses (i) and (ii) of clause (6), the laws falling within which descriptions are immense from on the
ground on the exercise of legislative power within their ambit. 9
In the United States of America, the Amendment guaranteed the Fundamental Rights. But there is no
specific provision in the constitution enabling govt. to restrict these rights. Hence the American
Supreme Court invented the doctrine of "Police Power" for bringing about the essential reconciliation.
The Supreme Court of America observed: "The liberty of the individual to do as he pleases, even in
innocent matters is not absolute. It must frequently yield to the common good. 10
Fundamental Rights or freedoms contained in Art. 19(1) are those great and basic rights, which are
recognized as the natural rights of every citizen.11 But these rights, though fundamental, are subject to
restriction on grounds of public order, decency, morality or other public interest, which may
compendiously described as "Social Welfare".12 Individual liberty will be subordinated to the social
interests.13
It was held therein that the freedom of the person is not the result of Art. 19. Art. 19 only deals with
certain particular rights, which in their origin and inception are attributes of the freedom of the person,
but being of great importance are regarded as specific and independent rights. It does not deal with
the freedom of the person as such.
It is right that is fundamental and not the limitation. 14 In Ramlila Maidan Incident,15 the Supreme Court
said that the expression "fundamental" has two different connotations. The essential character of
fundamental rights is secured by limiting the legislative power and by providing that any transgression
of the limitation would render the offending law pretendo void. But in Chapter IV i.e., Art. 37, the
expression means basic or essential, but it is used in the normative sense of setting before the State
goals which it should achieve.
The Constitution has recognized personal liberties as Fundamental Rights,sub- Clauses (a), (b), (c),
(d), (e) and (g) are Fundamental Rights attached to the person and Clause (f) (now deleted), is the
right to property (juris rerum). Personal liberties means as the right to do as one pleases within the
law. In the rights attached to the person, the first and foremost is the freedom of life, which means the
right to live i.e. the right that one's life shall not be taken away except under the authority of law. Next
to the freedom of life comes the freedom of the person which means that one's body shall not be
touched, violated, arrested, or imprisoned and one's limb shall not be injured or maimed except under
the authority of law. Right to live and freedom of the person are the primary rights attached to the
person. If a man is free, it is then and then only that he can exercise a variety of other auxiliary rights,
that is to say, he can, within certain limits, speak what he likes, assemble where he likes, form any
association or unions, move about freely as his own inclination may direct, reside and settle anywhere
he likes and practice any profession or carry on any occupation trade or business. These are
attributes of the freedom of the person and are consequently rights attached to the person. 16 It was
also held that Art. 19 is not exhaustive of all rights.
The Fundamental Rights themselves have no fixed content and the attempt of the Court should be to
expand and reach the ambit of the Fundamental Rights. The Constitution is required to be kept young,
energetic and alive. Most of the Fundamental Rights are empty vessels into which each generation
must pour its content in the light of experiences.17
The several rights of freedom guaranteed to the citizens by Art. 19(1) are excersible by them
throughout and wide part of the territory of India. 18
Even if a right is not specifically mentioned in Art. 19 (unenumerated Rights) it may still be a
Fundamental Right covered by some of the articles, but only if it is an integral part of a named
Fundamental Right or partakes the same basic nature and character as that of fundamental right. It is
not enough that a right claimed by the petitioner flows or inmates from a named Fundamental Right or
that its existence is necessary in order to make the exercise of the named Fundamental Right
meaningful and effective. Every activity which facilitates the exercise of a named Fundamental Right is
not necessarily comprehended in that Fundamental Right nor it can be regarded as such merely
because it may not be possible otherwise to effectively exercise that Fundamental Right. What is
necessary to be seen is, whether the right claimed by the petitioner is an integral part of the
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Fundamental Right or partakes the basic nature and character as the named Fundamental Rights, so
that exercise of that right is in reality and substance nothing but an instance of the exercise of the
named Fundamental Right. The theory that a peripheral or concomitant right which facilitates the
exercise of a named Fundamental Right or given its meaning and substance or makes its exercise
effective, is itself a guaranteed right included within the named Fundamental Right cannot be
accepted.19
The general rules of interpretation which are to be remembered in this context are as follows: (a) A
statutory enumeration excludes everything other than what is enumerated; 20(b) But the foregoing
principle would not debar a liberal or progressive interpretation being given to the express terms of the
Constitution, to meet a challenged situation, because a Constitution is an organic instrument for the21
governance of a country, which is to endure for ages. 21
The Ninth Amendment to the US Constitution says: "The enumeration in the Constitution of certain
rights shall not be construed to deny or disparage others retained by the people". In view of this
amendment, new rights have been evolved either on the theory that the Constitution did not intend to
take away the natural rights existed prior to the framing of the Constitution in 1787 or by way of a
liberal interpretation of those rights which are expressly enumerated in the Bill of Rights, so that the
new rights so evolved are in reality "penumbras" or emanations from the express guarantee to give
them 'life and sustenance' or to make the express guarantee more meaningful. 22
In his book Comparative Constitutional Law23 it is said: "The most crucial instance of the application of
this maxim (i.e., unenumerated fundamental rights) arises in connection with the enumeration of
Fundamental Rights in a Constitution. It is common place that as civilisation advances, the list of the
minimum human rights which deserve constitutional protection also enlarges, which fact has been
demonstrated by Universal Declaration of Rights Charters of 20th Century. Influenced by these
Charters, the latest written Constitutions of the world have included in their Bill of Rights, a larger list
than contained in American Bill of Rights in the shape of the first eight amendments adopted in 18th
Century - thus containing newer concepts as specific guaranteed rights such as human dignity, right to
family, education, privacy. The author further says:24"It is however, now understood that 9th
Amendment is not a substantive source of new rights,25 but it simply keeps the court's way to a liberal
interpretation of those rights which are expressly enumerated in the Bill of Rights. This meaning of the
9th Amendment has been given in such a manner that it would be acceptable even under
Constitutions which do not contain a provision like the 9th Amendment - and we shall presently see
this line of interpretation of expressly enumerated fundamental rights has already been adopted in
recent Indian decisions - obviously, influenced by the observation of American Judges. This
interpretation is, in fact, an application of the doctrine of "necessary implication" arising out of the
express terms. In short, it means that an expressly specified fundamental right must be held to include
all other rights which are essential for the enjoyment or exercise of the enumerated right. It is founded
on the view that "specific guarantees in the Bill of Rights have 'penumbras' formed by "emanations"
from those guarantees that help give them life and sustenance". So understood, it would not involve
the importation of anything from outside the Constitution, but only a determination of the question
whether the unenumerated right claimed is a mere "emanation" from such enumerated right. In
Richmond Newspapers v. Virginia, 26 it was held thus: "Notwithstanding the appropriate caution against
reading into Constitution rights not explicitly defined, the court has acknowledged that certain
inarticulated rights are implicit in enumerated guarantees. For example, the right of association and of
privacy, the right to be presumed innocent and the right to be judged by standard of proof beyond a
reasonable doubt in a criminal trial, as well as the right to travel appears nowhere in the Constitution.
The concerns expressed by MADISON and others have thus been resolved; fundamental rights "even
though not expressly guaranteed" have been recognised by the court as indispensable in the
enjoyment of right explicitly defined".
In India, the initial view that Part III of the Constitution gives an "exhaustive" list of Fundamental
Rights27 has been departed from by the Supreme Court by propounding the theory of "emanation"
following the American Supreme Court decision.28
There is no concept of derivative Fundamental Rights. The contention that if there is no specific
fundamental right as named in the Article, all rights which is derived either by declaration of court or
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otherwise can only be derivative was not accepted. It was held that the right of a voter to know about
the antecedents of a candidate is part of Fundamental Right to free speech and expression, i.e., right
to get information and not a derivative right.29
Object of Article 19(1): A guarantee against State action
Article 19(1) guarantees certain Fundamental Rights, subject to the power of the State to impose
restrictions on the exercise of those rights. The Article was thus intended to protect these rights
against State action other than in the legitimate exercise of its power to regulate private rights in the
public interest. Violation of Fundamental Rights by individuals is not within the purview of the
Article,30unless such private act ion is supported by the State, in any form. 31 Conversely, in a challenge
to 'State action, private individuals who would be benefited by the impugned legislation may also be
joined.32
The scope of Art. 19 has been expanded to many fields which are un-enumerated rights, but which
are integral part of the Fundamental Rights or partake of the same basic nature and character. For
e.g. (1) freedom of speech and expression includes freedom of propagation of ideas which is ensured
by freedom of circulation.33 It was held that pre-censorship of a journal is a restriction on liberty of the
press.34 But pre- censorship can be justified if brought within the ambit of Art. 19(2). 35 Advertisement
meant for propagation of ideas or furtherance of literature or human thought is a part of freedom of
speech and expression.36 Right to publish and circulate one's ideas, Sakal Papers (P) Ltd. v. Union of
India, 37 rights of citizens to exhibit films on Doordarshan Odyssey Communication (P) Ltd. v.
Lokvidayan Sanghatana, 38 right to know is implicit in the right of free speech and expression. It was
held that disclosures of information regarding functioning of Government must be the rule. 39It includes
the right to know every public act, everything done in a public way by their public authorities. State of
U.P. v Raj Narain, 40 and the right to know the affairs of the Government. 41
There is no separate guarantee of the freedom of the press, but it is an integral part42 of freedom of
expression.42 Freedom of speech and expression is regarded as the first condition of liberty. It
occupies a preferred position in the hierarchy of liberties and is the mother of all liberties. Freedom of
speech is described as a basic human right and a natural right. With the development of law in India,
the right to freedom of speech and expression has taken within its ambit the right to receive
information as well as the right to press. Figuratively, belief, thought and expressions are three angles
of a triangle which cannot be separated from one another. Belief occupies a place higher than thought
and expression. Belief of people rests on liberty of thought and expression. Placed as the three angles
of a triangle, thought and expression would occupy the two corner angles on the baseline while belief
would be placed at upper angle. Attainment of the Preambular liberties is eternally connected to the
liberty of expression. Hunger strike is a form of protest and is part of right to expression. 43 It was
further held that a citizen has a fundamental right to leisure, to sleep, not to hear loud sound, and to
remain silent and in privacy.
Right to speech implies the right to silence. It implies freedom, not to listen and not to be forced to
listen. The right comprehends the freedom to be free from what one desires to be free from Noise
Pollution (v) In Re.44 Right of freedom of thought protected by First Amendment against State action
includes both right to speak freely and the right to refrain from speaking at all. The right to speak and
the right to refrain from speaking are complementary components of the broader concept of
"individual4 freedom of mind".45 Rights and freedoms of citizens are set forth in the Constitution in
order to guarantee that the individual, his personality and those things stamped with his personality
shall be free from official interference except where a reasonable basis for intrusion arises. In this
sense, many of the Fundamental Rights can be described as contributing to the rights to privacy. The
right to privacy in any event, will necessarily have to go through a process of case-by-case
development. Even assuming that the right to personal liberty, the right to move freely throughout the
territory of India and the freedom of speech create an independent right of privacy, as an emanation
from them which one can characterize as a Fundamental Right, it cannot be said the said right is
absolute.46 Right to privacy being integral part of freedom of speech and expression, telephones-
tapping would be violation of Art. 19, even less restriction comes under Art. 19(2). 47
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If a right is not in express terms "Fundamental" within the meaning of Part III, does it escape Art. 13,
read with the trammels of Art. 19, even if the immediate impact, the substantial affect the proximate
import or the necessary result in prevention of free speech or practice of one's own profession? The
answer is that associated rights totally integrated, must enjoy the same immunity.48
The Supreme Court has asserted that in order to treat a right as fundamental right, it is not necessary
that it should be expressly stated in the constitution as a Fundamental Right. Political, Social and
Economic changes occurring in the country may entail the recognition of new rights and the law in its
eternal youth grows to meet social demands. The court recognized the doctrines of implied
fundamental right.49
It was held that Fundamental Rights in India may have to be read along with Universal Declaration of
Human Rights and if need by its domestic jurisprudence.50 It was held therein that "Our Constitution
guarantees all the basic and fundamental human rights set out in Universal Declaration of Human
Rights, 1948, to its citizens and other persons. The chapter dealing with the Fundamental Rights is
contained in Part III of the Constitution. The purpose of this part is to safeguard the basic human rights
from the vicissitudes of political controversy and to place them beyond the reach of political parties
who, by virtue of their majority, may come to form the Government at the Centre or in the State". It
was further held that primacy of the interest of the nation and the security of the State will have to be
read into the Universal Declaration as also in every article dealing with Fundamental Rights, including
Art. 21 of the Constitution.
Articles 19, 21-22

1.  In the early case of Gopalan,51 it was held by the majority that the rights
conferred by Art. 19 are the rights of free men and a person whose personal liberty has
been taken away under a valid law of punitive (Art. 21) or preventive (Art. 22) detention
cannot complain of the infringement of any of the fundamental rights under Art. 19.

1.  But the foregoing generalisation in Gopalan's case,52 namely, that a man
under detention,--punitive or preventive--must necessarily be incapable of exercising
any of the fundamental rights enumerated, in Art. 19(1) [paras. 8, 10] has been
overruled, bit by bit, by the Supreme Court itself, in the later cases, so that it is now fairly
settled that--

1a)  The proposition that Art s. 21-22 stand as a self-contained code is not
correct.53 In that case, the majority held: "It is not the object of the authority making the
law impairing the right of a citizen nor the form of act ion taken that determines the
protection he can claim; it is the effect of the law and the action upon the right which
attracts the jurisdiction of the court to grant relief. If that be the true view, and we think it
is, in determining the impact of State act ion upon constitutional guarantees which are
fundamental, it follows that the extent of protection against impairment of a fundamental
right is determined not by the subject of the Legislature, nor by the form of the action, but
by its direct operation of the individual right". The Court further said: "We are of the view
that the theory that the object and form of the State act ion determines the extent of
protection which the aggrieved party may claim is not consistent with the Constitutional
Scheme". The Court further added: "In our judgment, the assumption in A.K. Gopalan's
case,54 that certain articles in the Constitution exclusively deal with specific matters and
in determining whether there is any infringement of the individual's guaranteed rights,
the object and form of State action alone need to be considered and effect of the laws on
fundamental rights of the individual in general will be ignored and cannot be accepted as
correct".

1b)  Hence, a law falling under Art s. 21-22 has yet to satisfy the requirements of
the other Articles in Part III such as Art s. 14 55 and 19.56
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In another major development, the court overruled the argument that Art. 19(1)(a) could not apply to a
law affecting freedom of speech, but not enacted "directly" with respect to Art. 19(1)(a). The Court
declared that if a law affected freedom of speech, its reasonableness became assessable with
reference to Art. 19(2) even though it was enacted directly to control the freedom of speech. 57

1c)  But even though Art. 19 may be applicable, a law of preventive detention,
which complies with the requirements of Art. 22(5) cannot be held to offend Art. 19 as
the elements of procedural reasonableness and natural justice are embodied in Art.
22(5) itself.58

1d)  At the same time, a person whose freedom of movement [Art. 19(1)(d)] has
been taken away by a sentence of imprisonment or an order of detention, need not lose
his other fundamental rights, such as the freedom of expression [Art. 19(1)(a)], 59 in so far
as that right may be exercised within the valid conditions relating to his imprisonment or
preventive detention.

1e)  In sum Art s. 14, 19 and 21 are not mutually exclusive. 60 In Maneka Gandhi
v. Union of India, 61 it was held that Art s. 14, 19 and 21 are not to be interpreted in water-
tight compartments and consequently a law depriving a person of personal liberty and
prescribing a procedure for that purpose within the meaning of Art. 21 has to stand the
test of one or more of the fundamental rights conferred under Art. 19 and is also to be
listed with references to Art. 14. It was held that principles of reasonableness pervades
all these articles.62 In Maneka Gandhi's case, JUSTICE KRISHNA IYER said that no
article in the Constitution pertaining to fundamental rights is an island in itself. Just as a
man is not dissectible into separate limbs, cardinal rights in an organic constitution have
a synthesis. In that, the court said that the expression "personal liberty" in Art. 21 was
given an expansive interpretation. Court emphasised that the expression "personal
liberty" is of widest amplitude covering a variety of rights "which go to constitute the
personal liberty of man". Some of these attributes have to be raised to the status of
distinct fundamental rights and given additional protection under Art. 19. The court
observed that the concept of reasonableness must be projected in the procedure
contemplated by Art. 21. The court assumed the power to adjudge the fairness and
justness of procedure established by law to deprive a person of his personal liberty. The
court has reached the conclusion by holding that Art s. 21, 19 and 14 are not mutually
exclusive, but are inter-linked.63
Right to personal liberty also means that personal liberty of a person must satisfy a triple test - (1) it
must prescribe a procedure; (2) the procedure must withstand the test of one or more fundamental
rights conferred by Art. 19 may be applicable to a given situation; and (3) it must also be liable to be
tested with reference to Art. 14.64
It would follow that the Court may interfere with the order of the detaining authorities in cases like the
following:

2a)  Where by the order the detenu was prevented from sending his manuscript
outside the jail for publication, there being nothing in the manuscript which was
prejudicial to the ground for which he had been preventively detained. 65

2b)  Where he is debarred from purchasing books on his own for study inside the
jail,66 unless the books to be purchased are such as would incite violence and would
defeat the vary object of the prisoner's detention. 67

1.  But Art. 19 does not include any fundamental rights to live.68 Hence, capital
punishment cannot be said to be an unreasonable restriction on any of the rights
conferred by Art. 19.
11

A law is hit by Art. 19 if the "direct and inevitable consequences" of such law is to take away or abridge
any of the freedoms guaranteed under Art. 19(1). If the impact of the law on any of the rights under
Art. 19(1) is merely incidental, indirect, remote, or collateral and is dependent on factors which may or
may not come into play, the anvil of Art. 19 will not be available for judging its validity. 69 In Bennett
Coleman & Co. v. UOI, 70when the newsprint policy was challenged, it was argued by the Union of
India that the subject matter was rationing of imported commodity and not freedom of speech and the
test to adjudge the validity of a regulatory provision should be the subject matter, its pith and
substance and not its effect or result. The Supreme Court rejected this approach and enunciated the
test - "What is the direct and inevitable consequence" or the effect of the impugned State act ion on
the fundamental rights. The Court said that the true test is whether the effect of the impugned action is
to take away or abridge Fundamental Rights. The Court said that a legislation or Government act ion
may have a direct effect on a fundamental right although its subject matter may be different. The
object of the law or executive action is irrelevant when it infringes a fundamental right although its
subject matter may be different. Even a law dealing directly with a purpose mentioned in Art. 19(2)
would be invalid if it is not reasonable. The court said that no law or act ion would state in words that
rights of freedom of speech and expression are abridged or taken away. That is why the courts have
to protect and guard fundamental rights, by considering the scope and provisions of the Act and its
effect upon the fundamental rights. The Supreme Court said that the object of the restriction imposed
on newspapers has nothing to do with the availability of newsprint or foreign exchange because these
were post-quota restrictions which fell outside the purview of Art. 19(2). In that case, the court applied
the test of "direct effect" on the fundamental rights. 71
[This topic will be more fully discussed under Art. 21, post].
1 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597.

2 Golak Nath v. State of Punjab, AIR 1967 SC 1643, per HIDAYATULLAH J.

3 Black's Law Dictionary, 7th Edn., 1999.

4 See also Advanced Law Lexicon, by P. Ramanatha Aiyer, 3rd Edn., 2005, Vol. II, pp. 1948-1949.

5 Golak Nath v. State of Punjab, 1967 SC 1643 : (1967) 2 SCR 762.

6 See Hood Phillips, Constitutional and Administrative Law, 7th Edn., 1987 at p. 15.

7 West Virginia Board v. Barnetti, (1943) 319 US 624.

8 See Bribery Commissioner v. Ranasinghe, (1964) 2 All ER 785(PC) . Also see D.D. Basu, Human Rights in
Constitutional Law, 2nd Edn., at p. 59.

9 Dharam Dutt v. Union of India, AIR 2004 SC 1295 : 2004 (1) SCC 712.

10 Adkins v. Children's Hospital, (1923) 261 US 525.

11 State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92.

12 Hari Khennu Gawali v. DCP, AIR 1956 SC 559.

13 A.K. Gopalan v. State of Madras, AIR 1950 SC 27.

14 Ram Singh v. State of Delhi, AIR 1951 SC 270 : 1951 SCR 451; Maneka Gandhi v. Union of India, (1978) 1 SCC
248 : AIR 1978 SC 597; T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : AIR 2003 SC 355.

15 Ramlila Maidan Incident v. Home Secretary, UOI, (2012) 5 SCC 1 : (2012) 2 SCALE 682.

16 A.K. Gopalan v. State of Madras, AIR 1950 SC 27 : 1950 SCR 291.

17 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461 : 1973 SCR 1(Supp-1) ; Unni
Krishnan J.P. v. State of A.P., (1993) 1 SCC 645 : AIR 1993 SC 2178 : (1993) 1 SCR 594; People's Union for Civil
Liberties v. Union of India, AIR 2003 SC 2363 : (2003) 4 SCC 399.

18 Virendra v State of Punjab, AIR 1957 SC 896 : 1958 SCR 308.


12

19 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597.

20 Crawford on Statutory Interpretation at p. 333.

21 James v. Commonwealth, 1936 AC 578(PC) ; Ministry of Home Affairs v. Fisher, (1979) 3 All ER 21(PC) ; AG v.
Reynolds, (1979) 3 All ER 129(PC) ; Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 : (1973) 4 SCC 225;
State of Karnataka v. UOI, AIR 1978 SC 68 : (1977) 4 SCC 471; Kamala v. State of Maharashtra, AIR 1981 SC 814 :
(1981) 1 SCC 478; Peoples' Union for Civil Liberties v. UOI, AIR 1997 SC 568 : (1997) 1 SCC 301; Samatha v. State of
AP, AIR 1997 SC 3297 : (1997) 8 SCC 191.

22 See Griswold v. Connecticut, (1965) 381 US 479; Eisenstadi v. Baird, (1972) 405 US 438; Robertson v. Baldwin,
(1897) 165 US 275.

23 D.D. Basu, Comparative Constitutional Law, 2nd Edn., 2008, p. 255.

24 See D.D. Basu, Comparative Constitutional Law, 2nd Edn., 2008, at p. 256.

25 Griswold v. Connecticut, (1965) 381 US 479 (supra).

26 (1980) 488 US 555.

27 A.K. Gopalan v. State of Madras, AIR 1950 SC 27 : 1950 SCR 88.

28 Maneka Gandhi v. UOI, AIR 1978 SC 597 : (1978) 1 SCC 248.

29 People's Union for Civil Liberties v. Union of India, (2003) 4 SCC 399 : AIR 2003 SC 2363.

30 Samdasani v. Central bank of India, 1952 SCR 391 : AIR 1952 SC 59; Vidya Verma v. Shivnarayan, 1956 SCR 357 :
AIR 1956 SC 520.

31 Kochunni v. State of Madras, AIR 1959 SC 725 (730) : 1959 Supp (2) SCC 316.

32 State of W.B. v. Ashok, AIR 1972 SC 1960; John Martin v. State of W.B., AIR 1974 SC 775 (para. 6); Gopinath v.
D.M., (1975) SC [W.P. 556/74, dt. 18-3-75] : (1974) 3 SCC 562

33 Ramesh Thappar v. State of Madras,AIR 1950 SC 124 : 1950 SCR 594.

34 Brij Bhushan v. State of Delhi, AIR 1950 SC 129.

35 Bennett Colman v. Union of India, AIR 1973 SC 106.

36 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 : (1960) 2 SCR 671.

37 Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305.

38 Odyssey Communication (P) Ltd v. Lokvidayan Sanghatana, (1988) 3 SCC 410 : AIR 1988 SC 1642 : 1988 SCR
486(Supp-1) .

39 S.P. Gupta v. Union of India, 1981 SCC 87(Supp) : AIR 1982 SC 149 : (1982) 2 SCC 365.

40 State of U.P. v Raj Narain, (1975) 4 SCC 428 : AIR 1975 SC 865 : (1975) 3 SCR 333.

41 Dinesh Trivedi v. Union of India, (1997) 4 SCC 306 : JT 1997 (4) SC 237. See also Indian Express News Papers
(Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641: AIR 1986 SC 515 : (1985) 2 SCR 287; S. Rangarajan v. P.
Jagivan Ram, (1989) 2 SCC 574 : (1989) 2 SCR 204; LIC of India. v. Manubhai D. Shah, (1992) 3 SCC 637 : AIR 1993
SC 171; Secretary Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal, (1995) 2 SCC
161 : AIR 1995 SC 1236. See also M. Nagaraj v. Union of India, AIR 2007 SC 71 : (2006) 8 SCC 212.

42 Arundhathi Roy, In Re,(2002) 3 SCC 343 : AIR 2002 SC 1375; Bennett Coleman & Co. v. Union of India, (1972) 2
SCC 788 : AIR 1973 SC 106 : (1973) 2 SCR 757. See also Express Newspapers v. UOI, AIR 1958 SC 578 : 1959 SCR
12; Hindustan Times v. State of UP, AIR 2003 SC 250 : (2003) 1 SCC 591; Peoples' Union for Civil Liberties v. UOI,
AIR 2004 SC 1442 : (2004) 2 SCC 476.

43 See Ramlila Maidan Incident v. Home Secretary, UOI, (2012) 5 SCC 1 : (2012) 2 SCALE 682.

44 Noise Pollution (v) In Re,AIR 2005 SC 3136 : (2005) 5 SCC 733.

45 Wooley v. Maynord, (1977) 430 US 705.


13

46 Govind v. State of M.P., AIR 1975 SC 1378 : (1975) 2 SCC 148.

47 People's Union for Civil Liberties v. Union of India, AIR 1997 SC 568 : (1997) 1 SCC 301. See also District Registrar
& Collector v. Canara Bank, (2005) 1 SCC 4.

48 Maneka Gandhi v. Union of India, (1978) 1 SCC 248: AIR 1978 SC 597.

49 Unni Krishnan J.P. v. State of A.P., AIR 1993 SC 2178 : (1993) 1 SCC 645. Also read article "The Right to Privacy in
the Era of Smart Governance" by Sheetal Asranni Dann, Legal Associate, World Bank, Journal of the Indian Law
Institute, Vol. 47, No. I, p. 53, and the article "Right to Publicity: Is it encompassed with the Right of Privacy" by
Subhashini Narasimhan & Thriyambak J. Kannan, (2005) 5 SCC Journal Section J-5.

50 Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988 : (2000) 2 SCC 465.

51 Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 (paras. 8, 10): Casebook (I), pp. 452-3; Ram Singh v.
State of Delhi, AIR 1951 SC 270 : 1951 SCR 451.

52 Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 (paras. 8, 10): Casebook (I), pp. 452-3; Ram Singh v.
State of Delhi, AIR 1951 SC 270 : 1951 SCR 451.

53 Cooper v. Union of India, AIR 1970 SC 564 : (1970) 1 SCC 248(majority) ; Sambhu Nath v. State of W.B., AIR 1973
SC 1425 (7-Judge Bench) : (1973) 1 SCC 856; Maneka v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248 (paras.
54-55)--(7-Judges).

54 A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 (supra).

55 Khudiram v. State of W.B., AIR 1975 SC 550 : (1975) 2 SCC 81 (para. 12)--(4-Judges); Haradhon v. State of W.B.,
AIR 1974 SC 2154 : (1975) 3 SCC 198 (para s. 32-33)--(5-Judegs).

56 Sambhu Nath v. State of W.B., AIR 1973 SC 1425 : (1973) 1 SCC 856 (7-Judge Bench); Khudiram v. State of W.B.,
AIR 1975 SC 550 : (1975) 2 SCC 81 (para. 12)--(4-Judges). See also Bachan Singh v. State of Punjab, AIR 1980 SC
898 : (1980) 2 SCC 684; Sunil Batra v. Delhi Administration, (1978) 4 SCC 494 : AIR 1978 SC 1675.

57 Bennett Coleman & Co. v. UOI, AIR 1973 SC 106 : (1972) 2 SCC 788.

58 Khudiram v. State of W.B., AIR 1975 SC 550 : (1975) 2 SCC 81 (para. 12)--(4-Judges); Haradhon v. State of W.B.,
AIR 1974 SC 2154 : (1975) 3 SCC 198 (para s. 32-33)--(5-Judegs).

59 State of Maharashtra v. Prabhakar, AIR 1966 SC 424 : (1966) 1 SCR 702.

60 T.V. Vatheeswaran v. State of T.N., AIR 1983 SC 361 (2) (para. 20) : (1983) 2 SCC 68.

61 Maneka Gandhi v. Union of India, AIR 1978 SC 597: (1978) 1 SCC 248

62 See also Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 : (1978) 4 SCC 494 : (1979) 1 SCR 392.

63 See also Kharak Singh v. State of UP, AIR 1963 SC 1295 : (1964) 1 SCR 332 per JUSTICE SUBBA RAO.

64 District Registrar and Collector v. Canara Bank, AIR 2005 SC 186 : (2005) 1 SCC 496.

65 State of Maharashtra v. Prabhakar, AIR 1966 SC 424 : (1966) 1 SCR 702.

66 Fernandez v. State of Maharashtra, (1964) 66 Bom LR 185; Khan v. State, AIR 1967 Bom 254.

67 Narayanan v. State, A 1973 Ker 97(F.B) .

68 Bhuban v. State of AP, AIR 1974 SC 2092 (para. 6) : (1975) 3 SCC 185.

69 Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980) 2 SCC 684.

70 AIR 1973 SC 106 : (1972) 2 SCC 788.

71 See also Sakal Papers v. UOI, AIR 1962 SC 305 : (1962) 3 SCR 842; Maneka Gandhi v. UOI, AIR 1978 SC 597 :
(1978) 1 SCC 248; R.C. Cooper v. UOI, AIR 1970 SC 564 : (1970) 1 SCC 248; Express Newspapers v. UOI, AIR 1958
SC 578 : 1959 SCR 12.

Article 19: Confined to citizens


14

2.  The right conferred by Art. 19 are not available to any person who is not a
citizen of India.72
It was further held in Dharam Dutt v. Union of India 73 that a perusal of Art. 19 with certain other Articles
like Art s. 26, 29 and 30 shows that while Art. 19 grants rights to citizens as such, the associations can
lay claim to the Fundamental Rights guaranteed by Art. 19 solely on the basis of their being an
aggregation of citizen i.e. the rights of the citizens composing the body. As the stream can rise no
higher than the source, associations of citizens cannot lay claims to rights not open to citizens or claim
freedom from restriction to which the citizens composing it are subject. Conversely, a restriction on the
activities of the association is not a restriction on the act ivities of the individual citizens forming
membership of the association.
The Fundamental Rights are natural rights, but our country does not think it expedient to confer these
Fundamental Rights, mentioned in Art. 19 on non-citizens. Other rights have been conferred on non-
citizens because the Constitution makers thought that it would not be detrimental to the interests of
the country.74
An alien who has entered India legally, and has applied for Indian citizenship, is entitled to be heard or
make a representation before he is deported.75 The fundamental right of a foreigner is confined to Art.
21 for life and liberty and does not include the right to reside and stay in the country as mentioned in
Art. 19(1)(e), which is applicable only to citizen.
An alien is also entitled to have the right to be defended by a legal practitioner 76 since it comes under
the ambit of Art. 21. The "only" rights available to an alien or non-citizen are - (1) Right to equality or
equal protection before the laws (Art. 14); (2) Right against ex post facto criminal law, double jeopardy
and self-incrimination (Art. 20); (3) Right to life and personal liberty (Art. 21); (4) Safeguards against
arbitrary arrest and detention (Art. 22) which are available only to friendly aliens, but not to enemy
aliens (Art. 22(3)(a)); (5) Right against exploitation (Art. 23); (6) Freedom of religion (Art. 25); (7)
Freedom from taxation for promotion of any particular religion (Art. 27); (8) Remedial rights to enforce
the "above" rights (Art. 32).77 In G. Nasirulla v. Public Prosecutor, A.P, 78 it was ruled that Art. 21 of the
Constitution makes deprivation of liberty a matter of concern and permissible only when the law
authorises to do so. Thus, Art. 21 of the Constitution is not only available to the citizens, but to non-
citizens as well.79Article 13 of the International covenant on Civil and Political Right, 1966 would apply
provided an alien is "lawfully" an Indian namely with valid passport, visa, etc., and not to those who
entered illegally or unlawfully.80 But see Graham v. Richardson, 81 where the court used equal
protection to void a Pennsylvania law restricting public assistance to citizen and an Arizona law
limiting such benefits to citizens and long time lawful resident aliens alone. Court concluded that strict
scrutiny applied to alienage classification employed by states, characterising aliens as a class as a
prime example, of a "discrete and insular" seniority for whom such heightened judicial solicitude is
appropriate."
A non-citizen running a newspaper is not entitled to the Fundamental Right to freedom of speech and
expression and cannot claim the benefit of the liberty of the press, which is implicit in the freedom of
speech and expression.82 In State of Arunachal Pradesh v. Khudiram Chakma, 83 the Supreme Court
approved the Statement of law dealing with equality of treatment of aliens in Equality and
Discrimination under International Law84 written by WARWICK MCKEAN which reads thus:
"It has long been recognised that persons who reside on the territory of countries of which they are not
nationals possess a specific status under International Law. States have traditionally reserved the right
to expel them from their territory and to refuse to grant them certain rights which are enjoyed by their
own nationals e.g., the right to vote, hold public office or to engage in political activities. Aliens may be
prohibited from joining civil service or certain professions or from owning some categories of property
and State may place them under restriction in the interest of national security or public order.
Nevertheless, once lawfully admitted to a territory, they are entitled to certain minimum rights
necessary to the enjoyment of ordinary private life".
At pp. 195-96 of the same book, it is further said:
15

"General International Law provides that alien should not be discriminated against in the enjoyment of
property rights once they have been acquired. If alien property is nationalised whereas the property of
nationals remains unaffected, then that act is discriminatory and prohibited under International Law. As
FITZMAURICE points out, it has long been recognised that in certain matters e.g., general treatment
of foreigners in a country or compensation for property which may be expropriated or nationalised,
nondiscrimination as between persons of different nationality or against foreigners as compared with
persons or local nationality, amounts to a rule of international law, the breach of which gives rise to a
valid claim on the part of foreign Government whose national is involved".

2.  Hence, enforcement of any of the rights conferred by Art. 19 cannot be


claimed by the following persons--

1i)  A person whose citizenship of India has been validly terminated by law
made by Parliament in pursuance of the power conferred by Art. 11. A child of Srilankan
parents who were found guilty of assassinating the former Prime Minister Rajiv Gandhi
was held to be an Indian citizen since the child was born in India while her mother was in
an Indian prison. She did not cease to be an Indian citizen and was entitled to live in
India till her status was determined by Central Government under Sections 9(2) of the
Citizenship Act .85 Citizenship itself is not fundamental right guaranteed by the
Constitution,86 and is subject to the legislative competence of Parliament under Art. 11. 87

1ii)  A foreigner.88 If a foreigner is refused the right of citizenship by registration,


he cannot complain violation of his fundamental right under the Constitution, for, he is
entitled only to the protection of Art s. 20 to 22 of the Constitution (and also Art. 14). A
foreigner cannot challenge the legality and validity of Citizenship Act and order passed
refusing the prayer for citizenship to the foreigner under Art. 226 of the Constitution. 89
The Extradition Act makes provisions for magisterial inquiry and the order is subject to
judicial review for enforcing compliance with the statutory provisions relating to the
proceedings which is regarded as or a penal of quasi-criminal nature. 90
Sections 3 of the Foreigners Act however provides -"The Central Government may by order make
provision either generally or with respect to all foreigners or with respect to any particular foreigner or
any prescribed class or description of foreigners, for prohibiting, regulating or restricting the entry of
foreigners into India or their departure therefrom or their presence or continued presence therein". The
above provision gives absolute and unfettered discretion to the Central Government and the power is
not subject either to any conditions or to any procedure laid down in the statute. The Constitution also
affords no protection, because the provisions of Art. 19 are not applicable to a foreigner. In the result,
"as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel
remains and it is obvious that there is no scope for judicial review except on the ground of mala fides
which hardly means anything in reality".91
(iii) A citizen, according to the Citizenship Act , means a natural person. 92 Hence, a right under Art. 19
cannot be claimed by--

3a)  a Deity;93

3b)  an artificial person, such as a company;94 a Municipal Committee.95

2c)  An association of persons, apart from the citizens who constitute such
association, e.g., a society registered under the Societies Registration Act ;96 a workers'
union.97
On the other hand, by the mere fact that a person enters Government service, he does not cease to
be a citizen of India or disentitle himself to the rights conferred by this Article, 98 though the nature of
duties which Government servants have to discharge might necessarily involve restrictions of some of
these freedoms within the purview of Cls. (2) to (6). 99
16

Whether a corporation can be citizen within the meaning of Article 19


It is now settled100 that the rights conferred by Art. 19 are confined to natural persons who are citizens
and that a corporation, not being a citizen,101 cannot claim any of the rights included in that Article,
even though their shareholders are citizens.102 Of course, a corporation can claim other Fundamental
Rights which are open all persons, e.g., Art. 14, and its shareholders may enforce Art. 19 as well. 103
But it was held that the fundamental rights of shareholders are not lost when they associate to form a
company. The shareholder's rights are equally and necessarily affected of the rights of the company is
affected.1 A different view was taken wherein it was held that once a company or a corporation is
formed, the business which is carried on by the said company or corporation is the business of the
company or corporation, and it is not the business of the citizen who get the company or corporation
formed or incorporated and the right of the incorporated body must be judged on that footing alone
and cannot be judged on the assumption that they are the rights attributable to the business of
individual citizens, and the same principle would apply to a society registered under the Societies
Registration Act .2
In Santa Clara County v. Southern Pacific Railroad, 3 the court held that corporation were persons for
the purposes the Fourteenth Amendment, thus opening the door for corporate challenges to the
constitutional validity of economic regulations. Though this ruling has been criticised from time to time,
its probable effect has likely been to permit the constitutional claims of corporate owners-
shareholders--to be asserted by the Corporation (and then adjudicated as a single claim) rather than
via a multiplicity of claim by the shareholders.4
But in the case of a partnership firm, a writ petition filed by a partner shall be deemed to have been
filed on behalf of all partners who are citizens of Indi5
A company has an independent and legal personality distinct from the individuals who are its
members. But the corporate veil may be lifted, the corporate personality may be ignored and the
individual members recognized in certain exceptional circumstances. The clauses of cases where
lifting of the veil is permissible must necessarily depend on the relevant statutory or other provision,
the object sought to be achieved, the impugned conduct, the involvement of the element of public
interests, the effect on the parties who may be affected etc.6
In Constitutional Law of India,7 learned author H.M. Seervai says, "It is submitted that the present state
of law is unsatisfactory and time is ripe for the whole question to be considered afresh in view of the
tendency of the courts to afford relief to shareholders of corporation and in view of increasing
tendency, even in Company Law to tear the corporate veil. Further, the Supreme Court has now finally
decided that (1) a State Corporation; (2) a Government Company; (3) a Company incorporated under
Companies Act ; and (4) a registered society are "the State" within the meaning of Art. 12 if in
substance they are an agency or instrumentality of the State, notwithstanding that, in law, a body
corporate is a separate legal entity from the members composing it. If the corporate veil can be torn,
so that the employees of corporate bodies might not be deprived of their fundamental right, there is no
rational ground for not tearing the corporate veil, so that the shareholders or members of the
corporation who have ultimate control of the corporation may not be denied their fundamental rights.
But before the question can arise whether a corporation is a citizen, two conditions must be satisfied -
(1) all or a majority of its shareholders must be Indian citizens, and (2) its management and control
must be in the hands of Indian citizen. If both these conditions are satisfied, then the correct ground
for holding that such a corporation is a citizen is that a court will not look behind the corporate veil to
the persons who, in substance, though not in legal theory, control the management and run the
company. This would also get rid of the absurd anomaly that although a partnership firm carrying on a
small business can enforce its fundamental right under Art. 19, Companies, State corporations,
Government Companies and corporations created by statute carrying on business on the most
extensive scale cannot claim those rights. It is submitted that JUSTICE GAJENDRAGADKAR may be
right in holding in 19648 that the corporate veil could not be torn and the tearing of corporate veil must
be limited to a very narrow grounds. The passage of time has eroded that doctrine. Consequently,
instead of treating the company as an agent of its shareholders, which clearly is not, it would be more
accurate to say that the court will look behind the separate entity of the company to the shareholders
17

who carry on the business, if the valuable fundamental rights covered by Art. 19 are not to be
defeated. This is not an ideal solution, but it is the best that is to be had, since Parliament has not
amended the Citizenship Act as suggested by CHIEF JUSTICE GAJENDRAGADKAR. This
suggestion itself shows that there is nothing incongruous in a Corporation being a citizen."
Even if a company can be assumed as a citizen, a foreign compan; can under no circumstance be
held as a citizen and therefore cannot invoke Art. 19. 9 The Supreme Court has acknowledged that the
position of law in this regard is in a nebulous state. The Court said: "Apart from the law being in a
nebulous state, the trend is in the direction of holding that the matter of fundamental freedom
guaranteed by Art. 19, the right of a shareholder and the company which the shareholders have
formed are rather "co-extensive" and denial of the fundamental freedom to one would be denial to the
other. It is time to put an end to this controversy...". 10
The guarantee of equal protection in Art. 14 is extended to any person and is not restricted to citizen.
Hence there is no bar to a company to challenge the constitutionality of a law on the ground of denial
of equal protection or discrimination, where the company is discriminated against. A shareholder of the
company may also invoke Art. 14 to challenge a statute, though primarily affecting the company, it has
also affected his rights as shareholder.11 As to whether a shareholder has also been affected by a
statute, which is levelled against the company, the court will look into the effects of the operation of the
law and in such a case, the court would allow the shareholder to challenge the statute without
complaining of any infringement of the rights of the company. 12
Unincorporated association
An association of citizens which is not incorporated has no legal entity apart from its citizens (e.g., a
society registered under the Societies Registration Act ), so that if cannot claim any Fundamental
Right to which its members, individually, are not entitled. 13
72 See Hans Muller of Nurenburg v. Supdt., Presidency Jail, Calcutta, (1955) 1 SCR 1284 (1298) : AIR 1955 SC 367;
State of Gujarat v. Ambica Mills Ltd., AIR 1974 SC 1300 : (1974) 4 SCC 656 (para. 24). See also State Trading Corpn.
Ltd. v. CTO, AIR 1963 SC 1811 : (1964) 4 SCR 99; Anwar v. State of J&K, AIR 1971 SC 337 : (1971) 3 SCC 104; Gilles
Pfeiffer v. UOI, AIR 1996 Mad 322.

73 Dharam Dutt v. Union of India, AIR 2004 SC 1295 : (2004) 1 SCC 712.

74 Keshavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461.

75 Hasan Ali Raihany v. Union of India, AIR 2006 SC 1714 : (2006) 3 SCC 705.

76 See K. Vijayalaxmi v. State of AP, AIR 2013 SC 3589 : (2013) 5 SCC 489.

77 See also Jafaria v. UOI, (2010) 4 SCC 560 : (2010) 3 SCALE 304.

78 AIR 1978 SC 429 : (1978) 1 SCC 240.

79 See also Chairman, Railway Board v. Mrs. Chandrima Das, AIR 2000 SC 988 : (2000) 2 SCC 465.

80 Sarbananda Sonowal v. Union of India, AIR 2005 SC 2920 : (2005) 5 SCC 665. See also Sugarman v. Dongall, 413
US 634 (1973).

81 Graham v. Richardson, 403 US 365 (1971).

82 M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395 see also Anwar v. State of J&K, (1971) 3 SCC 104 : AIR
1971 SC 337 : Hans Muller of Nuramburg v. Supdt. Presidency Jail, Calcutta, AIR 1955 SC 367 : (1955) 1 SCR 1284;
Indo-China Steam Navigation Co. Ltd. v. Jagjit Singh, Addl Collector of Customs, AIR 1964 SC 1140 : (1964) 6 SCR
594; State of Arunachal Pradesh v. Khudiram Chakma, AIR 1994 SC 1461 : 1994 SCC 615(Supp-1) ; Louis De Raedt
v. Union of India, AIR 1991 SC 1886 : (1991) 3 SCC 554 : (1991) 3 SCR 149.

83 1994 (Supp-1) SCC 615 (supra).

84 See Warwick McKean, Equality and Discrimination under International Law at p. 194. As referred to in State of
Arunachal Pradesh v. Khudiram Chakma, 1994 SCC 615(Supp-1) : AIR 1994 SC 1461 (supra).

85 S. Nalini Srikaran v. UOI, AIR 2007 Mad 87 : (2007) 2 MLJ 831.


18

86 Izhar Ahmed v. Union of India, AIR 1962 SC 1052 : 1962 Supp (3) SCR 235.

87 Izhar Ahmed v. Union of India, AIR 1962 SC 1052 : 1962 Supp (3) SCR 235.

88 Hans Muller of Nurenburg v. Supdt., Presidency Jail, Calcutta, (1955) 1 SCR 1284 (1298) : AIR 1955 SC 367; State
of Gujarat v. Ambica Mills Ltd., AIR 1974 SC 1300 (para. 24) : (1974) 4 SCC 656; B.I.S.N. Co. v. Jasgit, AIR 1964 SC
1451 : (1964) 34 Com Cases 689; Anwar v. State of J&K, AIR 1971 SC 337 : (1971) 3 SCC 104.

89 Daivid John Hopkins v. UOI, AIR 1996 Mad 314 : (1995) 2 CTC 335.

90 Hans Muller v. Supt., Presidency Jail, AIR 1955 SC 367 : (1955) 1 SCR 1284.

91 Hans Muller v. Supt., Presidency Jail, AIR 1955 SC 367 : (1955) 1 SCR 1284 (supra).

92 S.T.C. v. C.T.O., AIR 1963 SC 1811; Barium Chemicals v. Company Law Board, AIR 1967 SC 295 : 1966 Supp SCR
311.

93 Deity v. Chief Commer., AIR 1960 Mani. 20.

94 B.I.S.N. Co. v. Jasjit, AIR 1964 SC 1451 : (1964) 34 Com Case 689; Anwar v. State of J&K, AIR 1971 SC 337 :
(1971) 3 SCC 104.

95 Bhagat v. Asstt . Registrar,AIR 1968 Pat 211 (216).

96 Bhagat v. Asstt . Registrar,AIR 1968 Pat 211 (216).

97 H.T. Workers' Union v. HP Government, AIR 1967 HP 21 (para. 14).

98 Kameshwar v. State of Bihar, AIR 1962 SC 1166 : (1962) Supp (3) SCR 369.

99 Kameshwar v. State of Bihar, AIR 1962 SC 1166 : (1962) Supp (3) SCR 369.

100 State Trading Corpn. v. C.T.O., AIR 1963 SC 1811 (1817); British India Steam Navigation Co. v. Jasjit,AIR 1964 SC
1451 : (1964) 34 Com Cases 689 (1454); Barium Chemicals v. Company Law Board, AIR 1967 SC 295 (305) : 1966
Supp SCR 311; Amritsar Municipality v. State of Punjab, AIR 1969 SC 1100 (1106) : (1969) 1 SCC 475.

101 As defined in Sections (1)(f) of the Citizenship Act , 1955.

102 Tata Engineering Co. v. State of Bihar, AIR 1965 SC 40 (48) : (1964) 6 SCR 885. See also State of Gujarat v. Shri
Ambica Mills, (1974) 3 SCR 760 : AIR 1974 SC 1300.

103 D.F.O. v. B.T.Co., AIR 1981 SC 1368 (paras. 7-8); D.C.G.M. v. Union of India, AIR 1983 SC 1937.

1 Bennett Coleman & Co Ltd. v. Union of India, AIR 1973 SC 106 : (1973) 2 SCR 757 : (1972) 2 SCC 788. See also
Delhi Cloth & General Mills Ltd. v. Union of India, AIR 1983 SC 937 : (1983) 4 SCC 166 : (1983) 3 SCR 438; Neptune
Assurance Co. Ltd. v. Union of India, (1973) 1 SCC 310 : AIR 1973 SC 602.

2 Dharam Dutt v. Union of India, AIR 2004 SC 1295 : (2004) 1 SCC 712. See also Godhra Electric Co. v. State of
Gujarat, AIR 1975 SC 32 : (1975) 1 SCC 199; State Trading Corporation v. Commercial Tax Officer, AIR 1963 SC
1811 : (1964) 4 SCR 99. See also Vodafone International Holding BV v. UOI, (2012) 6 SCC 613 : (2012) 1 SCALE 530.

3 Santa Clara County v. Southern Pacific Railroad, 116 US 394 (1886).

4 Comm. General Life Insurance Co. v. Johnson, 303 US 77 (1938); Wherling Steel Corp. v. Glander, 337 US 562. See
Massey, American Constitution Law, 2nd Edn. 2005, p. 463.

5 Andhra Industrial Works v. Chief Controller of Imports, AIR 1974 SC 1539 : (1974) 2 SCC 348.

6 LIC v. Escorts Ltd., (1986) 1 SCC 264 : AIR 1986 SC 1370. See also Tata Engineering & Locomotives Ltd. v. State of
Bihar, AIR 1965 SC 40 : (1964) 6 SCR 885.

7 H.M. Seervai, Constitutional Law of India, 4th, Edn., Vol. I, p. 708.

8 State Trading Corpn. Ltd. v. CTO, AIR 1963 SC 1811 : (1964) 4 SCR 99 (supra).

9 Sewpujanrai Indrasanrai Ltd. v. Collector of Customs, AIR 1958 SC 845 : 1959 SCR 821.

10 Delhi Cloth & General Mills Ltd. v. UOI, AIR 1983 SC 937 : (1983) 4 SCC 166 : (1983) 3 SCR 438.
19

11 Chiranjit Lal v. UOI, AIR 1951 SC 41 : 1950 SCR 869; Dwarakadas Shrinivas v. Sholapur Spg. & Wvg. Co., AIR
1954 SC 119 : 1954 SCR 674.

12 Bennett Coleman & Co. v. UOI, AIR 1973 SC 106 : (1972) 2 SCC 788.

13 All India bank Employees' Assocn v. N .I. Tribunal,AIR 1962 SC 171 (180) : (1962) 3 SCR 269.

Nature of the right guaranteed by Article 19


2.  From its several clauses, it will appear that Art. 19 is confined to what are
known as civil rights as distinguished from political rights. It does not, per se, guarantee
any political right, such as the right to vote14 or to hold any political office.15
This article represents basic values of a civilized society and elevated the said values to the State of
Fundamental Rights.16

2I.  Though, as noticed earlier, the concept of 'natural rights' is not relevant in
India for ascertaining whether there are any inviolable rights apart from those included in
Part III of the Constitution, the concept has been utilised for determining the ambit of the
Fundamental Rights themselves, that is to say, for determining how far the guarantee
under Art. 19 will go. It has been laid down by the Supreme Court that Art. 19 refers to
what are known as natural or common law rights as distinguished from rights which are
created by a statute.17 In the words of our Supreme Court, Art. 19 (1) guarantees--

"those great and basic rights which are recognised and guaranteed as the natural17 rights inherent in the
status of a citizen of a free country".

The doctrine of natural rights is itself an offshoot of the doctrine of natural law. Since natural law
consists of rules founded on the primary instincts of man as modified by his inborn perception of what
is right or wrong, it follows that natural rights constitute the primary rights and obligations of man to
one another as soon as they begin to live in a society i.e., in association with others. And, since the
rules of natural law are of universal application, natural rights also inhere in every human being in all
ages and in all climes.18
The political implication of the theory of natural right is that these rights, inherent in man, existed prior
to the birth of the State itself and cannot therefore be violated by State. 19 Paradoxically, however, the
growth of the State itself necessarily put limitation on the natural rights of every individual in the
interests of their collective existence. In a "state of nature" the earliest state of society envisaged by
political thinkers such as HOBBES or ROUSSEAU, right was co-related with might, in the sense that
every man had a right to do everything in his power. The growth of political society narrowed down the
ambit of such right in so far as social existence postulates that the right of each individual should be
limited by the collective interest of the society in which he lives.
The lessons which can be drawn from the history of natural rights and which are applicable to
fundamental rights guaranteed by the Constitution may be formulated as follows: (1) Natural rights are
those minimal rights of an individual which must be guaranteed by every society which claim to be
civilized; (2) Natural rights have a sanctity superior to other rights conferred by positive law. This is the
idea which prompted the Americans when they spoke of inalienable rights of life, liberty and pursuit of
happiness in their Declaration of Independence and so they adopted them in the form of Bill of Rights
which was added to the Constitution in 1971; (3) Fundamental rights like natural rights are intended to
be limited on all governmental power and all State act ion, including legislative. In fact, it is to protect
the Fundamental Rights from legislative encroachment, in particular against temporary passion of a
group of men composing the Legislature for the time being that they were embodied in a written
Constitution.20
20

The following, for instance, are rights the authority for which is to be found in some statutory grant and
not Art. 19 of the Constitution:

2i)  The right of a lawyer to practice before a Court.21

2ii)  The right to hold a public office.22

1iii)  The right to vote or to stand as a candidate for election to a municipal body, 23
or to the Legislature.24
III. As stated above, when a right is created by a statute, it can be exercised only subject to the
conditions imposed by that statute and it can also be restricted in any manner or taken away by the
Legislature at any time.25 But when a right is fundamental under the Constitution, it cannot be taken
away by the Legislature.26 It can then be subjected only to such restrictions as are authorised by the
Constitution. Thus, a right conferred by Cl. (1) of Art. 19 can be subjected only to 'reasonable
restrictions'27 imposed on any of the grounds specified in cls. (2)-(6), as may be applicable, and, as will
be seen, presently, these grounds are exhaustive.28
A fundamental right is so called because it is secured not by an ordinary law, but by the fundamental
law, which in modern times is embodied in a written Constitution, that cannot be altered by ordinary
process of legislation. A written Constitution can, however, be called 'fundamental only' if it has a
superiority over ordinary laws in that (1) it cannot be changed in the same process by ordinary laws;
(2) the validity of ordinary laws can be tested with reference to the fundamental law; and (3) there is
an authority (e.g., the judiciary) to declare unconstitutional an ordinary law which is thus found to be
inconsistent with the provisions of the Constitution.29 The English people maintain that human rights
can also be maintained by ordinary law under their system of "Rule of Law". But when they are
enforced by a Constitution which cannot be changed like an ordinary law, except through the process
of constitutional amendment, they are called "Fundamental Rights". 30
In Keshavananda Bharati v. State of Kerala, 31 it was contended that the constitution contain twelve
features and one such basic feature is "the guarantee of basic human right elaborated in Part III of the
constitution. But in the decision, some learned judges held "the dignity of the individual secured by the
various freedom and basic rights in Part III" (by SHELAT & GRANT, JJ) is an essential feature. Two
other judges HEGDE & MUKHERJEA J.J) held "the essential features of the individual freedom
secured to the citizens" is a basic features. According to learned Judge JAGAMOHAN REDDY
"Liberty of thought expression, belief, faith and worship and equality of States and of opportunity" as
Constitution's basic structure. It was held in that case that the constitution could be amended without
altering its basic structures. In Namit Sharma v. UOI, 32 the Supreme Court said that dignity of
individual conferred by Part III rights and its enforcement through Art s. 32 and 226 are basic
structures of Constitution. The Supreme Court also held that separation of power and independence
of judiciary also form the basic structure. Free and fair election is one of the basic features. 33

1V.  The rights guaranteed by Art. 19 are also to be distinguished from


contractual rights. While the right to carry on any business or to hold property and to
enter into contracts as incidental to such rights is a Fundamental Right, 34 the rights
granted by a contract are not Fundamental Rights but are protected by the ordinary law
of the land, except where such rights exist antecedent to and apart from the contract. As
will be shown, hereafter, the rights arising under a contract are not guaranteed by our
Constitution,35 so that they are liable to be curtailed or3 superseded by legislation. While
an ordinary legal right appertains to private law and denotes the relationship between
two private citizens, a fundamental right appertains to public law and is a right which an
individual possesses against the State itself. The party bound by fundamental right is the
State. The distinction was explained36 by the American Supreme Court thus: "These
rights (i.e., those guaranteed by Bill of Rights) are different from concrete rights which a
man may have to a specific chattel or to a piece of land or to the performance by another
of a particular contract or to damages to a particular wrong, all of which may be invaded
21

by individual; they are the capacity, power, privileges of having and enjoying these
concrete rights and of maintaining them in the courts, which capacity, power or privilege
can only be invaded by State."37 In fact, no right can be said to be fundamental if it can
be overridden by the Legislature and if there is no authority under the Constitution to
pronounce a law to be invalid when it violates or contravenes such rights directly or
indirectly. In India such authority is judiciary. It is held that the insertion of a declaration
of fundamental rights in the forefront of the Constitution coupled with an express
prohibition against legislative interference with those rights (Art. 17) and the provision of
a Constitutional sanction for the enforcement of such prohibition by means of judicial
review (Art. 32) is a clear and emphatic indication that these rights are to be paramount
to ordinary State-made laws.38
When Art. 19 speaks of laws imposing reasonable restriction, it has in mind, laws, which are imposed
on subjects, which they have no option but to obey. But when the operation of law is attracted by
reason of a contract, which a person is free to evolve into at his own will and choice, the inhibition
under Art. 19 has no application, the parties being left to rights and remedies under the contract. 39

1.  For the same reason, a right based on a settlement between the parties
cannot be enforced as a fundamental right.40

1I.  In short Art. 19(1) guarantees--

Those great and basic rights which are recognised and guaranteed as the natural rights inherent in the status
of a citizen of a free country.41

It does not, accordingly, include a right to burn a copy of the national Constitution. 42

1II.  It does not include the right to life, which is included in Art. 21. 43

14 Ponnuswami v. Returning Officer, AIR 1952 SC 64 : 1952 SCR 218.

15 Cf. Taylor v. Beckham, (1901) 178 US 548; Cave v. Newell, (1918) 246 US 650; Snowden v. Hughes, (1944) 321 US
1.

16 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597.

17 State of W.B. v. Subodh Gopal, 1954 SCR 587 : AIR 1954 SC 92. Pannala v. Union of India, 1957 SCR 233 (261) :
AIR 1957 SC 397; Jamuna Prasad v. Lachhi Ram, (1955) 1 SCR 608 : AIR 1954 SC 686.

18 Preamble to Universal Declaration 1948 para 9.

19 Golak Nath v. State of Punjab, AIR 1967 SC 1643 : (1967) 2 SCR 762.

20 Marbury v. Madison, 1 Cranch 137 : 2 L Ed 60; see also Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
: (1973) 4 SCC 225). See D.D.Basu, Human Rights in Constitutional Law,2nd Edn., pp. 48 and 57.

21 Mulchand v. Mukund, AIR 1952 Bom 296; Rangaswami v. Industrial Tribunal, AIR 1954 Mad 533; Ananthakrishnan
v. State of Madras, AIR 1952 Mad 395 (402).

22 Cf. Taylor v. Beckham, (1901) 178 US 548; Cave v. Newell, (1918) 246 US 650; Snowden v. Hughes, (1944) 321 US
1.

23 Sakhwant v. State of Orissa, AIR 1955 SC 166 : (1955) 1 SCR 1004.

24 Ponnuswami v. Returning Officer, AIR 1952 SC 64 : 1952 SCR 218; Jamuna Prasad v. Lachhi ram, (1955) 1 SCR
608 : AIR 1954 SC 493. See also Babu Lal Singal v. State of Haryana, AIR 1995 P & H 71; Jyoti Basu v. Debi Ghosal,
AIR 1982 SC 983 : (1982) 1 SCC 691; P. Nalla Thampy v. B.L. Shanker, AIR 1984 SC 135 : 1984 SCC 631(Supp) ;
Anukul Chandra Pradhan v. UOI, AIR 1997 SC 2814 : (1997) 6 SCC 1; Jitu Patnaik v. Sanatan Mohakud, AIR 2012 SC
913 : (2012) 4 SCC 194; UOI v. Rakesh Kumar, AIR 2010 SC 3244 : (2010) 4 SCC 50.
22

25 H.T. Workers' Union v. HP Government, AIR 1967 HP 21 (para. 14); State of Bihar v. Kameshwar, AIR 1952 SC 252
: 1952 SCR 889; Raghubar Dayal Jai Prakash v. Union of India, AIR 1962 SC 263 (274) : (1962) 3 SCR 547.

26 Cf. Taylor v. Beckham, (1901) 178 US 548; Cave v. Newell, (1918) 246 US 650; Snowden v. Hughes, (1944) 321 US
1.

27 Cf. Taylor v. Beckham, (1901) 178 US 548; Cave v. Newell, (1918) 246 US 650; Snowden v. Hughes, (1944) 321 US
1.

28 See Dharam Dutt v. Union of India, AIR 2004 SC 1295 : (2004) 1 SCC (712).

29 Marbury v. Madison, (supra).

30 See D.D. Basu, Human Rights in Constitutional Law, 2nd Edn., p. 60.

31 Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

32 AIR 2012 SC (Supp) 867 : (2013) 1 SCC 745.

33 J&K National Panthers Party v. UOI, AIR 2011 SC 8 : (2011) 1 SCC 228. Art. 32 being a fundamental right cannot be
diluted by any legislation. (For further discussion, see Art. 368, post).

34 State of Bihar v. Kameshwar, AIR 1952 SC 252; Raghubar Dayal Jai Prakash v. Union of India, AIR 1962 SC 263
(274) : (1962) 3 SCR 547.

35 Devata Singh v. Chief Justice, AIR 1962 SC 201 : (1962) 3 SCR 305.

36 Butchers' Union v. Crescent City Co., (1883) 28 L Ed 585.

37 Butchers' Union v. Crescent City Co., (1883) (28) L Ed 585 (supra).

38 A.K. Gopalan v. State of Madras, AIR 1950 SC 27 : 1950 SCR 88.

39 Lachman Das v. State of Punjab, AIR 1963 SC 222 : (1963) 2 SCR 353.

40 Nachane v. Union of India, AIR 1982 SC 1126 (para. 7) : (1982) 1 SCC 205.

41 State of W.B. v. Subodh Gopal, 1954 SCR 587 : AIR 1954 SC 92.

42 Natarajan, in re.,AIR 1965 Mad 11 (14).

43 Bachan v. State of Punjab, AIR 1980 SC 898 (para. 27) : (1980) 2 SCC 684.

Provisions of the Constitution barring application of Article 19


3.  Since the adoption of the Constitution, various provisions have been
engrafted into the Constitution, barring invocation to Art. 19 under different situations.
Though a detailed discussion of these exclusionary provisions must await the relevant
Articles, an enumeration thereof would be useful in the present context, to give a
comprehensive view as to the scope of Art. 19.

3.  The validity of laws coming under the following provisions of the Constitution
cannot be challenged on the ground of contravention of Art. 19:

3i)  A law of compulsory acquisition or requisitioning of property, made under


Art. 31 (2),--by reason of Art. 31 (2B), inserted by the Constitution (25th Amendment)
Act, 1971, with effect from April 20, 1972.

3ii)  A law of acquisition of estate, agrarian reform etc., which comes under Art.
31A,44--inserted by the Constitution (4th Amendment) Act, 1955.
23

2iii)  Any Act specifically included in the Ninth Schedule, as amended,--by reason
of Art. 31B, inserted by the Constitution (1st Amendment) Act, 1951. What is the effect
45

of including a legislation under Ninth Schedule and whether such laws could be
challenged as violating fundamental rights under Art s. 14, 19 and 21 was finally settled
by the Supreme Court.46 It was held: (1) A law that abrogates or abridges rights
guaranteed by Part III of the Constitution may violate the basic structure doctrine or it
may not. If this former is the consequence of the law, whether by amendment of any
article of Part III or by an insertion in the Ninth Schedule, such law will have to be
invalidated in exercise of judicial review power of the Court. (2) All amendments to the
Constitution made on or after 24-4-1973 by which the Ninth Schedule is amended by
inclusion of various laws therein shall have to be tested on the touchstone of the basic or
essential features of the Constitution as reflected in Art. 21 read with Art. 14, Art. 19 and
the principles underlying them. To put it differently, even though an Act is put in the Ninth
Schedule by a constitutional amendment, its provision would be open to attack on the
ground that they destroy or damage the basic structure of the fundamental right or rights
taken away or abrogated pertains or pertains to basic structure. (3) Justification for
conforming protection, not blanket protection, as the laws included in the Ninth Schedule
by constitutional amendments shall be a matter of constitutional adjudication by
examining the nature and extent of infraction of a fundamental right by a statute, sought
to be constitutionally protected and on the touchstone of the basic structures doctrine as
reflected in Art. 21, read with Art s. 14 and 19 by the application of the "rights test" and
the "essence of the right" test taking the synoptic view of this article in Part III. Applying
the above tests to the Ninth Schedule laws, if the infraction affects basic structures then
such laws will not got the protection of the Ninth Schedule. (4) If the validity of Ninth
Schedule law is already upheld, it will not be open to challenge. But where a law was
declared as violative of rights conferred in Part III and subsequently included in Ninth
Schedule, the same could be challenged to find out whether it destroy the basic
structure doctrine. After deletion of Art. 19(1)(f) (i.e., right to property) statutes which
affect the right to property can be challenged for violation of Art. 14, violation of basic
structure of Constitution, violation of rule of law or lack of legislative competence. 47
Challenge to a law included in IX Schedule cannot succeed merely by establishing that
fundamental right has been violated. Only when such challenge is made as violative of
basic structure of Constitution, violation of fundamental rights may not ipso facto violate
basic structure. But a law which violates basic structure invariably violates some
fundamental right.48

1iv)  A law giving effect to the Directives under Art. 39 (b) and (c),--by reason of
Art. 31C,49inserted by the Constitution (25th Amendment) Act, 1971, with effect from April
20, 1972.
Loss oflocus standito enforce rights under Article 19
Even though a person may have a fundamental right under Art. 19, his right to enforce it in a court of
law may be barred by various judicial principles, a full discussion of which must await Art s. 32 and
226,post. Nevertheless, the broad heads of such bar to relief may be mentioned in this context, to give
a comprehensive view of the subject:

3.  Pre-Constitution law or order. It is now established that the Constitution, or


for the matter of that, any fundamental right included in Part III thereof, has no
retrospective effect to affect anything that was concluded prior to the commencement of
the Constitution.
Hence, even though a person may be a citizen and possessed of a fundamental right under Art. 19
with respect to a subject-matter, he cannot challenge the constitutionality of any law or order which
become final prior to January 26, 1950,50 where there is nothing pending by reason of which it could
24

be said that the contravention of the fundamenta right is continuing from day-to-day since when the
law or order was made.51
An order of dismissal passed before the Constitution came into force cannot be challenged under Art.
226, since Constitution is prospective and when the order of dismissal has become final. 52 It has no
retrospective effect and therefore will not affect acts done before the commencement of Constitution. 53

3I.  Estoppel. It has also been explained earlier, that though a person may not
be deprived of his fundamental right by mere disuse or non-exercise, he may disqualify
himself for a judicial remedy by reason of his conduct constituting estoppel or waiver,
e.g.,--
He cannot challenge the constitutionality of a law, after having accepted benefit under it, with full
knowledge of his rights.54 In a case where the petitioner was not selected for the post of lecturer, when
the post was re-advertised, she applied and appeared before the selection committee. At the same
time, she also filed a writ petition challenging her non-selection. It was held that the writ-petition was
not maintainable on the ground of estoppel by her conduct from challenging the earlier order, when
she appeared pursuant to the re-advertisement for the same post before the selection committee. 55
A writ petition challenging land acquisition nine years after the High Court in a petition by some other
persons had struck down notification under Sections 48 of the Land Acquisition Act by which the
land of the petitioner was also acquired. The petitioner's claim for higher compensation was also
granted against which an appeal was also filed before the High Court. It was held that the writ petition
challenging the notification was not maintainable since the petitioner was challenging only the value or
compensation and not legality of the notification. He has also acquiesced to the land acquisition
proceedings.56 In appropriate cases any party who derives any advantage under a decree or order
made depending on facts and circumstances of the case disentitles him to challenge the same and
will be estopped from filing an appeal against the same. 57
A consent order was passed by Division Bench whereby parties agreed that the appellate authority
may re-consider the case. Such an order does not clothe the appellate authority to pass an order
taking into consideration irrelevant material and ignoring relevant factors and against rules. Appellate
authority is bound to pass an order in accordance with law. When he fails to do so, his final order can
be challenged and will not be barred by estoppel. Consent of parties does not clothe the authority with
jurisdiction to pass an order ignoring provisions of law.58
But before rejecting the application on the ground of waiver or estoppel, the court has to see whether
there is a specific plea on those grounds. If there is no proper pleading, the same should not be
entertained at the time of hearing.59Where a party by his own conduct waived the dispute regarding
correct assessment of its need and acquiesced to the said assessment and the State act ed upon
non-contentious attitude adopted by the party and acted upon the representation, the party cannot
challenge the assessment at a later stage.60
Where a candidate participated in an examination without protest, it is a case of acquiescence and
has no locus standi to challenge the process of selection,61 Likewise a person who has claimed
enhanced compensation in land acquisition proceedings without any protest cannot later challenge the
land acquisition proceedings.62
"Waiver is the abandonment of a right in such a way that the other party is entitled to plead the
abandonment by way of confession and avoidance if the right is thereafter asserted, and is either
express or implied from conduct. It may some time resemble a form of election, and some times is
based on ordinary principles of estoppel.63 A 'waiver' is a giving up, relinquishment or surrender of
some known right and takes place where a person dispenses with the performance of something
which he has a right to the exercise."64
But in Mohapatra v. State of Orissa, 65 a Committee was constituted for selection of books for
educational institution. The petitioner also submitted his books for selection without raising any
objection as to the composition of Committee. The decision of Committee was challenged inter aliaon
the ground that some of the members were also authors whose book was considered for selection
25

and thus they were disqualified and the decision was vitiated. It was contended that having submitted
the books for selection and either failed or only partially succeeded, the petitioner could not raise an
objection which has been waived. The Supreme Court negatived the objection observing that if a
person had not submitted books for selection, it could be argued that he could not be said to be a
"person aggrieved". And if he submitted the books and failed he could be precluded from raising an
objection under the doctrine of waiver. It would be "contradictory in terms" in as much as the sequitur
would be that nobody would be able to challenge the act ion. Moreover, it cannot be ignored that
waiver is a technical plea and the court should not uphold such objection lightly. Ultimately the duty of
court is to do justice and unless it finds that justice is more appropriately and effectively done by
upholding the objection, it should hear and decide the matter on merits. 66
When the plea of locus standi is waived before the High Court, the same cannot be agitated before
the Supreme Court.67 A part of the rules which is unfavourable to the petitioners while seeking to retain
the favourable part thereof cannot be sustained. The very source under which they come to operate,
either survives or perishes under the rules.68
But such estoppel cannot operate merely because he had applied for an order in his favour under the
statute.69
III. Delay. It is also fairly settled that unexplained delay for a considerable period of time may defeat a
constitutional remedy to enforce a Fundamental Right under Art. 19. 70 Even though Art. 32 itself is a
guaranteed right it does not follow that it was the intention of the Constitution makers that the
Supreme Court should discard all principles and grant relief in a petition filed after inordinate delay. A
party seeking intervention and aid of the court under Art. 32 for encroachment of his rights should
exercise due diligence and approach the court within a reasonable time after the cause of action
arises and if there has been undue delay or laches on his part, the court has undoubted discretion to
deny relief.71 Six years in moving an application under Art. 226 was held to be fatal in the case of
automatic termination of services (for unauthorized absence for more than ten days) and it was held
that the appropriate remedy is by way of industrial dispute. 72 In service matters, an aggrieved person
should approach the court in six months or at the most within a year from the date of when his junior
has been promoted.73 In the case of challenge to seniority list, court said that once the seniority has
been fixed and it remains in existence for a reasonable period, any challenge to the same should not
be entertained. A seniority list which remains in existence for three to four years unchallenged, should
not be disturbed. 3 - 4 years is a reasonable period for challenging seniority list. Any challenge beyond
the said period has to be properly and satisfactorily explained. 74 Writ petition challenging the recorded
date of birth and for correction filed thirty years after preparation of service book was held to be
hopelessly barred.75
[See, further, under Art s. 32, 226post].
44 Laxminarayan v. Maharashtra Rev. Tribunal, AIR 1975 SC 1036 (Para 9) : (1975) 3 SCR 537 : (1975) 1 SCC 487.

45 Venkatrao v. State of Bombay, AIR 1970 SC 126 (128) : (1969) 2 SCC 81.

46 I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1 : AIR 2007 SC 861.

47 K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 : AIR 2011 SC 3430.

48 Glanrock Estate (P) Ltd. v. State of Tamil Nadu, (2010) 10 SCC 96 : (2010) 9 SCALE 270.

49 Kesavananda v. State of Kerala, AIR 1973 SC 1461 : (1973) 4 SCC 225; Minerva Mills v. Union of India, AIR 1980
SC 1789 (1810)CB : (1980) 3 SCC 625.

50 Dharam Das v. State of Punjab, AIR 1975 SC 1069 (para s. 20, 23) : (1975) 1 SCC 343.

51 Santi Sarup v. Union of India, AIR 1955 SC 624 : (1954-55) 7 FJR 506.

52 State of Maharashtra v. Prabhakar Pandurang Sangiri, AIR 1966 SC 424 : (1966) 1 SCR 702. See also Sri
Jagadguru Kasi Basava Rajendraswami of Govimutt v. Commissioner of Hindu Religious Charitable Endowments,
Hyderabad, (1964) 8 SCR 252 : AIR 1965 SC 502.
26

53 Keshava Madhava Menon v. State of Bombay, AIR 1951 SC 128 : 1951 SCR 228; see also Suraj Mal Mahta v. A.V.
Viswanatha Sastri, AIR 1954 SC 545 : (1955) 1 SCR 448; Rajendraswami v. Commr., HR & CE, AIR 1965 SC 502 :
(1964) 8 SCR 252; Khuj Behari Lal v. UOI, AIR 1963 SC 518 : (1963) 2 SCR 1.

54 Inder Kumari v. State of Rajasthan, AIR 1975 SC 1058 (para. 10) : (1976) 1 SCC 377.

55 Suneeta Agarwal v State of Haryana, AIR 2000 SC 1058 : (2000) 2 SCC 615.

56 Prasun Roy v. Calcutta Metropolitan Development Authority, AIR 1988 SC 205 : (1987) 4 SCC 217.

57 M. Ramnarain (Pvt.) Ltd. v. State Trading Corpn. of India, AIR 1983 SC 786 : (1983) 3 SCC 75.

58 S. Sethuraman v. R. Venkataraman, AIR 2007 SC 2499 : (2007) 6 SCC 382.

59 Municipal Corporation of Greater Bombay v. Hakimwala Tenants Association, AIR 1988 SC 233 : 1988 SCC
55(Supp) . See also Motilal Padampet Sugar Mills Co. Ltd. v. State of U.P., AIR 1979 SC 621 : (1979) 2 SCC 409 :
(1979) 2 SCR 641. See also Bellary Steel & Alloys Ltd. v. CCT, (2009) 17 SCC 547; Uttaranchal Power Corpn. v. Kashi
Viswanath Steels Ltd., (2010) 6 SCC 738.

60 Ferro Alloys Corporation Ltd. v. Union of India, (1999) 4 SCC 149: AIR 1999 SC 1236.

61 Om Prakash Shukhla v. Akhilesh Kumar Shukhla, AIR 1986 SC 1043 : 1986 SCC 285(Supp) : (1986) 1 SCR 855.
See also Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 : (2010) 6 SCALE 166; Vijendra Kumar Varma v.
Public Service Commission, (2011) 1 SCC 150 : (2010) 10 SCALE 632.

62 Har Avatar Singh v State of Punjab, (1982) 3 SCC 483.

63 Kammins Ballrooms Co. Ltd. v. Zenith Investment (Torquay) Ltd., (1970) 2 All ER 871.

64 Scherer v. Wohlstrom, Tax Civil appeal, 318 SW 2d 456; Smith v. Mc Knight, Tax Civil Appeal 240 SW 2d 368 --
followed in Inderpreet Singh Kehlon v. State of Punjab, (2006) 11 SCC 356.

65 AIR 1984 SC 1572 : (1984) 4 SCC 103.

66 See also Rattan Lal Sharma v. Managing Committee, AIR 1993 SC 2155 : (1993) 4 SCC 10.

67 Karnataka State Road Transport Corporation v Workers' Federation, AIR 1999 SC 1059 : (1999) 2 SCC 687.

68 Zila Dastavej Lekha Association v. State of U.P., AIR 1996 SC 2107 : (1996) 8 SCC 441.

69 Rama Rao v. State of A.P., AIR 1961 SC 564 (572) : (1961) 2 SCR 931..

70 Tilok Chand v. Munshi, AIR 1970 SC 898 : (1969) 1 SCC 110; Aflatoon v. Lt . Governor,AIR 1974 SC 2077 (para. 11)
: (1975) 4 SCC 285; Durga Prasad v. Chief Controller, AIR 1970 SC 769 : (1969) 1 SCC 185.

71 Trilokchand v. H.B. Munshi, AIR 1970 SC 898; M.L.Cecil D'Souza v. Union of India, AIR 1975 SC 1269; S.S. Moghe
v.Union of India,AIR 1981 SC 1495.

72 Scooters India v. Vijay E.V. Eldred, (1998) 6 SCC 549 : JT 1998 (8) SC 204.

73 Sadasivaswamy P.S. v. State of Tamil Nadu, AIR 1974 SC 2271; State of Orissa v. Arun Kumar, AIR 1976 SC 1639.
But see Suresh Chand v. Union of India, (2004) 13 SCC 563.

74 Shiba Shankar Mohapatra v. State of Orissa, AIR 2010 SC 706 : (2010) 12 SCC 471; see also K.R. Mudgal v. R.P.
Singh, (1986) 4 SCC 531; Vijay Kumar Kaul v. UOI, AIR 2012 SC 2274 : (2012) 7 SCC 610; Rajendra Pratap Singh
Yadav v. State of UP, AIR 2011 SC 2737 : (2011) 7 SCC 743.

75 State of Uttaranchal v. Pitamber Dutt Simwol, (2005) 11 SCC 477; see also State Bank of India v. K.C. Tharakram,
(2005) 8 SCC 428.

Suspension of Fundamental Rights during Emergency


4.  There is no provision in our Constitution for suspension of Fundamental
Rights outside the Emergency provisions in Part. XVIII.
27

4.  As will be more fully explained under Art. 358, that Article suspends the
operation of Art. 19 during the operation of a Proclamation of Emergency made under
Art. 352. The effect of Art. 358 is that it suspends the restrictions on the power of the
State to make any law in contravention of the provisions of Art. 19 only during the
pendency of the Proclamation.76 It does not lay down that the validity of any law, which
had already been made, cannot be challenged on the ground of violating the provisions
of Art. 19.
In other words--

4a)  Laws or orders made prior to the coming into operation of the Proclamation
of Emergency are not protected from the challenge of unconstitutionality on the ground
of contravention of Art. 19.77
In other words,--
Article 358 does not validate a law which was enacted prior to the Proclamation of Emergency but was
invalid for contravention of Art. 19, when made.78

4b)  But any law or order made after the coming into operation of the
Proclamation of Emergency cannot be challenged, during the continuance of the
Emergency, on the ground of contravention of Art. 19. 79Even after the Emergency is over,
the constitutionality of act s done or omitted to be done during the Emergency cannot be
challenged on the same ground.80 The net result of Art. 358 is thus to remove the fetters
created on the legislative and executive powers by Art. 19 and if the Legislature makes
laws or the executive commits acts which are inconsistent with the rights guaranteed by
Art. 19, their validity is not open to challenge either during the continuance of the
emergency or even thereafter.

3c)  But as soon as the Proclamation ceases to operate, the legislative


enactments passed and the executive act ions taken during the course of the said
emergency shall be inoperative (except as to things already done or omitted during the
period of the Proclamation of Emergency) to the extent to which they conflict with the
rights guaranteed under Art. 19 because as soon as the emergency is lifted. Article 19
which was suspended during the emergency is automatically revived and begins to
operate.81
It was held that Art. 358 enables the State-it empowers the State-to make any law or to take any
executive action inconsistent with Art. 19. This exceptional power is, however, confined to the period
of emergency and is intended to facilitate the effective implementation of the object of the emergency.
The justification for the extraordinary provision is that individual liberties may have to be kept in
abeyance temporarily if found necessary to meet the threat to the security of India or any part thereof
within the meaning of Art. 352(1). As soon as the emergency ceases, the law so made shall to the
extent of inconsistency with Art. 19 ceases to have effect except with respect to things done or omitted
to be done before the law so ceases to have effect. What it means is that the validity of the law made
or the things done or omitted to be done by virtue of the said Article during the period of emergency
cannot be questioned either during or after the emergency on the ground of inconsistency with Art. 19.
Neither the law nor the executive act ion (to the extent of inconsistency with Art. 19) can continue even
for a day beyond the cessation of emergency. Their validity and/or the competence of the State to
make or take them during the period of emergency is however, placed beyond question. Article 358
sanctions such a course because the Founding Fathers thought---and not without justification--that
when the security of India or any part thereof is threatened as contemplated by Art. 352, the State
should be left free to make such law or to take such executive action as is necessary to safeguard the
security of the country unfettered by the provisions of Art. 19. This subordination of Art. 19, is however,
only for the period the proclamation of emergency under Art. 352 is in operation.
28

2.  A single Judge of the Karnataka High Court has held that since the date
which is relevant for the application of Art. 358 is the date when the impugned law was
enacted not when it was brought into force, if a law was made during the operation of a
Proclamation of Emergency, its validity cannot be challenged on the ground of
contravention of Art. 19, even though it was brought into force after the Proclamation of
Emergency ceased to be in force.82
So stated, the proposition does not seem to be sound, being contrary to the law laid down in Makhan
Singh's case,83 but the position would be otherwise (as happened in the Karnataka case84 ) if at the
time when the challenge is made, a second Proclamation under Art. 358 is in operation, so as to
preclude the invocation to Art. 19.
Conversely, the relevant date is the date when a Bill become 'law' by the assent of the Governor (or of
the President when it was reserved for his assent by the Governor. 85
Articles 358 and 359
The point of distinction between the two Articles have thus been explained by the Supreme Court 86 --

4i)  The suspension of Art. 19 during the pendency of the Proclamation of


Emergency removes the fetters created on the legislative and executive powers by Art.
19 and if the Legislature makes laws or the executive 87commits act s which are
inconsistent with the rights guaranteed by Art. 19, their validity is not open to challenge
either during the continuance of the emergency88 or even thereafter. As soon as the
Proclamation ceases to operate, the legislative enactments passed and the executive
actions taken during the course of the said emergency shall be inoperative to the extent
to which they conflict with the rights guaranteed under Art. 19, because as soon as the
emergency is lifted, Art. 19 which was suspended by the emergency provisions is
automatically revived and begins to operate. Art. 358, however, makes it clear that things
done or omitted to during the emergency cannot be challenged be done even after the
emergency is over. In other words, the suspension of Art. 19 complete during the period
in question even after the emergency is over.

4ii)  The suspension of Art. 19 under Art. 358 applies to the whole of the country,
and so, covers all States. On the other hand, the Order issued under Art. 359 (1) may
extend to the whole of India or may be confined to any part of the territory of India [Art.
359(2)].

3iii)  The suspension of Art. 19 for which Art. 358 provides continues so long as
the Proclamation of Emergency is in operation, whereas the suspension of the right to
move any court which the Presidential Order under Art. 359(1) brings about can last
either for the period of the Proclamation or for a shorter period if so specified by the
Order.
The vital distinction between Art. 358 and 359 is that Art. 358 suspend the rights only under Art. 19 to
the extent that the Legislature can make laws controversing Art. 19 during the operation of
proclamation of emergency and the executive can take act ion which the executive is competent to
take under such laws. Article 358 does not suspend any fundamental right. Article 359(1) also
suspend any pending proceeding for the enforcement of such fundamental rights. The purpose and
object of Art. 359(1) is that the enforcement of any fundamental right mentioned in the Presidential
order is barred or it remains suspended during the Emergency.
Under Art. 358, Art. 19 is automatically suspended, but not other fundamental rights. As a matter of
fact, there is no provision in the Constitution for suspension of other fundamental rights. For, even
under Art. 359 under a Presidential Order, "only the right to move the court for enforcement of
fundamental right other than the right guaranteed by Art s. 20 and 21 is suspended". Article 19
remains suspended for the duration of emergency while the right to move the court for the
enforcement of fundamental rights other than rights guaranteed by Art s. 20 and 21 will be suspended
29

only so long as the Presidential Order is in operation. Under Art. 358, Art. 19 is suspended for all
purposes while under Art. 359, the right to move any court for the enforcement of fundamental rights
other than the rights guaranteed by Art s. 20 and 21 may be suspended only for certain purposes.
Article 358 is applicable only when a Proclamation of Emergency is made on account of war or
external aggression. It has no application if a proclamation is made on account of "armed rebellion".
According to Art. 358(2), Art. 358(1) does not apply to (i) any law which does not contain a recital to
the effect that such law is in relation to the proclamation of emergency in operation when it is made; or
(ii) any executive action taken otherwise than under a law containing such a recital. Article 358(2)
makes it clear that only a law enacted in relation to emergency would be immune from being
challenged under Art. 358 during an emergency. In (ii) mentioned above "action under a law" suggests
that any act ion which is ultra vires the law is not protected.
As to the effect of proclamation of emergency in view of Art. 358(1), it is well82 explained by Supreme
Court in Attorney General of India v. Amratlal Prajivandas, 89 thus:- "Art. 358(1) enables the State to
make any law or to take any executive action inconsistent with Art. 19. This power is confined to the
period of emergency. As soon as emergency ceases, the law so made shall, to the extent of
inconsistency with Art. 19, cease to have effect, except with respect to things done or omitted to be
done before the law so made cease to have effect. What it means is that the validity of the law made
or things done or omitted to be done by virtue of the said article during the period of emergency
cannot be questioned either during or after the emergency on the ground of inconsistency with Art.
19". Thus, if the freedom of speech has been curtailed during the emergency to the extent not
warranted by Art. 19(2), the citizen whose right has been unreasonably curtailed cannot sue the State
for damages or any other relief nor can he take any other proceeding for unreasonably curtailing his
right during the emergency period.
An executive act ion taken in accordance with Art. 358(2) also cannot be challenged on the ground
that it is violative of Art. 19. But if such executive action is ultra vires, the law under which it is taken, is
not protected by Art. 358.90An executive act ion which is otherwise invalid (i.e., outside Art. 19) is not
immune from attack merely because a proclamation of emergency is in operation when it is taken.
During emergency, Art. 19 is suspended, but that cannot authorise the taking of detrimental executive
action without any legislative authority or even in purported exercise of power conferred by any pre-
emergency law which was invalid when enacted.
Article 358 makes it clear that things done or omitted to be done during emergency cannot be
challenged even after the emergency is over. In other words, the suspension of Art. 19 is complete
during the period in question and legislative and executive act ion which contravenes Art. 19 cannot
be questioned even after emergency is over.91
Article 359(1) is on the same lines as Art. 358, but Art. 359(1) now includes all fundamental rights
which may be mentioned in the Presidential Order and is, therefore much wider than Art. 358 which
includes Art. 19 only. The consequences given in Art. 358 as a result of a proclamation under Art.
352(1) are automatic. Presidential Orders under Art. 359(1) may have different consequences from
emergency to emergency depending upon the terms of the Presidential Orders involved. Article 359(1)
makes it clear that both the legislative and executive organs of the State are freed, for the duration of
the emergency from the limits imposed by Part III of the Constitution. 92
Proclamations of Emergency and exercise of the powers under Articles 358-59

5.  There have been three occasions when a Proclamation of Emergency under
Art. 352 was made by the President:

5a)  On October 26, 1962, in view of the Chinese aggression in NEFA. This
Proclamation was revoked on January 10, 1968.

5b)  On December 3, 1971, in view of aggression by Pakistan.


30

4c)  While the second Proclamation of 1971, made on the ground of external
aggression was continuing, a third Proclamation, on the ground of 'internal disturbance'
has been made on June 26, 1975 (in addition to the second), on the ground that certain
persons (such as Jayprakash Narain) have been inciting the Police and the Armed
Forces against carrying out the orders of their superiors, in discharge of their duties.
In the result--
Article 19 remained suspended in respect of laws and orders made between 26-10-62 and 10-1-68, 93
and those made subsequent to 3-12-71.

5.  Enforcement of fundamental rights in the Courts, for specific purposes, has
been barred on the following occasions, by issuing a Presidential Order under Art. 359--

6a)  On November 3, 1962, providing that a person arrested or imprisoned under


the Defence of India Act would not be entitled to move any Court for the enforcement of
any of his fundamental rights under Art s. 14, 21 and 22. 94

6b)  In December 1974, barring the right of any detenu under the Maintenance of
Internal Security Act, 1971, for smuggling operations, to move any Court for the
enforcement of his fundamental rights under Art s. 14, 21 and 22,--for a period of 6
months or during the continuance of the Proclamation of Emergency of 1971, whichever
expired earlier.

5c)  On June 27, 1975, suspending the right to move the Courts under Art s. 14,
21 and 22, during the continuance of the Proclamation of Emergency of June 26, 1975,
in respect of detention under the emergency powers. This Order has been extended to
Jammu & Kashmir, by an amendment of June 29, 1975.
Questions still open

4.  Article 358 suspends the restrictions on the powers of the State to make any
law in contravention of the provisions of Art. 19 only during the pendency of the
Proclamation.

5i)  It does not lay down that the validity of any law, which has been made prior
to the Proclamation, cannot be challenged on the ground of violating the provisions of
Art. 19.95

5ii)  It does not protect the law or rule or order 96 from invalidity on any ground
other than the contravention of Art. 19 (or any other Article suspended under Art. 359). 97

4iii)  It does not protect an executive order--

7a)  which has been issued under a law which was invalid when enacted; 98 or
was otherwise invalid,99e.g., having no legal authority or being contrary to law; 100

7b)  which though made during operation of the Proclamation, had no legal
authority; 101

6c)  which, though made during the operation of the Proclamation, was a
continuance of a pre-Proclamation executive action, which was violative of Art. 19 or
otherwise unconstitutional.102
In other words--
31

Article 358 does not preclude the Court from annulling an executive act or subordinate legislation as
ultra vires, on the ground of being outside the scope of a statute, as interpreted by the Supreme Court.
In other words, the executive order immune from attack under Art. 358 is only that order which the
State was competent to make, but for the provisions contained in Art. 19. Executive action which was
otherwise invalid is not immune from attack because of Art. 358. 103

4I.  When the enforcement of a specified fundamental right is suspended, for a


specified purpose, by issuing an Order under Art. 359,--

8a)  Courts shall have no power to enquire whether there was any necessary
relation between that particular fundamental right and the security of India. 1

8b)  But the validity of a law shall be open to review if the restriction on the
fundamental right so specified has been made for a purpose other than the purpose
specified in the Presidential order. 2
Effects of revocation of Emergency

6.  The extraordinary power under Art. 358 is intended to facilitate the effective
implementation of the objectives of the emergency and is, therefore, confined to the
period of emergency.

6.  The justification of this extraordinary provision is that individual liberties may
have to be kept in abeyance temporarily if found necessary to meet the threat to the
security of India or any part thereof within the meaning of Art. 352(1). Hence, as soon as
the emergency ceases, the law so made shall to the extent of inconsistency with Art. 19,
cease to have effect, it cannot have any operation even for a day beyond the cessation
of the Emergency.3

3.  At the same time, the validity of the law made or the things done or omitted
to be done by virtue of Art. 358 cannot be questioned either during or after the
emergency, on the ground of inconsistency with Art. 19. Their validity and or the
competence of the State to make or take them during the period of emergency are thus
placed beyond question,4 by the latter part of Art. 358(1)--'except as respects things
done before the law so ceases to have effect'. In other words, the citizen whose right
under Art. 19 been unreasonably curtailed cannot sue the State for damages or other
relief nor take any other proceeding against the State for imposing such unreasonable
restrictions during the period of emergency.5

76 A.G. v. Amratlal, (1994) 5 SCC 54 (para. 31)-9 Judges : AIR 1994 SC 2179.

77 Makhan Singh v State of Punjab, AIR 1964 SC 381 : (1964) 4 SCR 797.

78 Shyam Behari v. Union of India, AIR 1963 Assam 94 (97).

79 Makhan Singh v State of Punjab, AIR 1964 SC 381 : (1964) 4 SCR 797.

80 Makhan Singh v State of Punjab, AIR 1964 SC 381 : (1964) 4 SCR 797.

81 Makhan Singh v State of Punjab, AIR 1964 SC 381 : (1964) 4 SCR 797.

82 Laxmi Touring Talkies v. State, AIR 1975 Kant 37 (para. 54).

83 Makhan Singh v State of Punjab, AIR 1964 SC 381 : (1964) 4 SCR 797.

84 Laxmi Touring Talkies v. State, AIR 1975 Kant 37 (para. 54).

85 Rajaram v. State of Maharashtra, 1973 Mah LJ 813.


32

86 Makhan Singh v State of Punjab, AIR 1964 SC 381 : (1964) 4 SCR 797.

87 District Collector v. Ibrahim, AIR 1970 SC 1275 (1278) : (1970) 1 SCC 386.

88 State of Maharashtra v. Lok Sikhshan Sanstha, (1971) 2 SCC 410 (419) : AIR 1973 SC 588.

89 AIR 1994 SC 2179 : (1994) 5 SCC 54.

90 Dt. Collector v. Ibrahim & Co., AIR 1970 SC 1275 : (1970) 1 SCC 386.

91 See Makhan Singh v. State of Punjab, AIR 1964 SC 381 : (1964) 4 SCR 797.

92 Additional District Magistrate v. Shivakant Shukla, (1976) 2 SCC 521 : AIR 1976 SC 1207.

93 Makhan Singh v. State of Punjab, AIR 1964 SC 381 : (1964) 4 SCR 797.

94 District Collector v. Ibrahim, AIR 1970 SC 1275 (1278) : (1970) 1 SCC 386.

95 State of M.P. v. Bharat Singh, AIR 1967 SC 1170 : (1967) 2 SCR 454; Durga Das v. Union of India, AIR 1966 SC
1078 : (1966) 2 SCR 573.

96 Collector v. Ibrahim, AIR 1970 SC 1275 : (1970) 1 SCC 386.

97 Jaichand v. State of W.B., AIR 1967 SC 483 : 1966 Supp SCR 464; A.G. v. Amritlal, (1994) 5 SCC 54 (para. 32)-9
Judges, agreeing with Makhan Singh v. State of Punjab, AIR 1964 SC 381 : AIR 1976 SC 1207, and the dissenting
view of Bhagwati J., in the Jabalpur case,(1976) 2 SCC 521 : (1964) 4 SCR 797.

98 Bennett Coleman v. Union of India, AIR 1973 SC 106; Casebook (I), p. 249 (paras. 8-11) : (1977) 2 SCC 788.

99 Collector v. Ibrahim, AIR 1970 SC 1275 : (1970) 1 SCC 386.

100 Collector v. Ibrahim, AIR 1970 SC 1275 : (1970) 1 SCC 386.

101 Bennett Coleman v. Union of India, AIR 1973 SC 106; Casebook (I), p. 249 (paras. 8-11) : (1977) 2 SCC 788.

102 Meenakshi Mills v. Union of India, AIR 1974 SC 366 (para. 98) : (1974) 2 SCR 398.

103 Dt. Collector v. Ibrahim, AIR 1970 SC 1275 (1278) : (1970) 1 SCC 386.

1 Yakub v. State of J&K, A 1968 SC 765 : (1968) 2 SCR 227.

2 Collector v. Ibrahim, AIR 1970 SC 1275 : (1970) 1 SCC 386.

3 Attorney-General v. Amratlal, (1994) 5 SCC 54 (para. 31)-9 Judges : AIR 1994 SC 2179.

4 Attorney-General v. Amratlal, (1994) 5 SCC 54 (para. 31)-9 Judges : AIR 1994 SC 2179.

5 Attorney-General v. Amratlal, (1994) 5 SCC 54 (para. 31)-9 Judges : AIR 1994 SC 2179.

Clauses (2-6): The Limitation in general: How far 'Police Powers'


acknowledged
Fundamental rights and social control
Absolute or unrestricted individual rights do not, and cannot exist, in any modern State. This is the
position in England,6 where there is no constitutional guarantee of fundamental rights. And this is
equally the position, as explained by the Court, in the United States,7 notwithstanding the
constitutional guarantee of individual rights, in unqualified terms, in the first ten amendments.
As the American Supreme Court said--

"The liberty of the individual to do as he pleases even in innocent matters, is not absolute. It must frequently
yield to the common good."8
33

In West Coast Hotel Company v. Parrish, 9 the court said--

"What is freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits
the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not
recognise an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation.
But the liberty safeguarded is liberty in a social organisation which requires the protection of law against the
evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus
necessarily subject to the restraints of due process and regulation which is reasonable in relation to its subject
in the interest of the community is due process".

The reconciliation of the contest between Power and Liberty, between the claims of the political
society on the one hand and the interests of the individual, on the other, is a perennial problem of
society,--a problem of 'recurrent difficulty'10 which curiously persists irrespective of any difference in the
form of Government.
Since the disappearance of the fetish of laissez faire and the emergence of the Welfare State, it is
generally acknowledged that the individual can have no absolute or unfettered right in any matter and
that the welfare of the individual, as a member of a collective society, lies in a happy compromise
between his rights as an individual and the interests of the society to which he belongs. There is no
protection of the rights themselves,11 unless there is a measure of control and regulation of the rights
of each individual in the interests of all. In the words of DAS J. of our Supreme Court:12

"Putting restraint on the freedom of wrong-doing of one person is really securing the liberty of the intended
victims. Therefore, restraints on liberty should be judged not, only subjectively as applied to a few individuals
who come within their operations but also objectively as securing the liberty of a greater number of
individuals."13

1A)  U.S.A.--In the United States there was no limitation imposed upon any of the
fundamental rights added to the Constitution by the first Ten Amendments of 1791. But it
was soon realised that for the maintenance of public order, for the prevention of
corruption of the public morals, incitement to crime and the like, some limitations must of
necessity be imposed upon the liberty of the individual. The Supreme Court, in
interpreting the Constitution, had, therefore, to invent 14 the doctrine of 'Police Power' of
the States,15 under which States have the inherent power to impose such restrictions
upon the fundamental rights as are necessary to protect the common good, e.g., public
health, safety and morals.16'Police power' is the right of the Legislature to pass such
legislation as is necessary in furtherance of security, morality and general welfare of the
community, except in cases where it is expressly prohibited from exercising it by the
Constitution. The American Supreme Court laid down: "It (Police Power) extends not
only to regulation which promotes public health, morals and safety, but to those which
promote the public convenience or the general prosperity. It is the essential of the power,
at times most insistent and always one of the least limitable of the powers of the
Government.17 MR JUSTICE HOLMES who described 'police power' as one of the
apologetic phrases of American Constitution remarked: "It may be said in a general way
that the Police Power extends to all the great public needs. 18 The doctrine of police
power is based on the theory that the State is armed with an inherent authority to protect
public health, safety and morals. It is the power of the people exercised through the
State Governments to restrain an individual in the interest of the public. The introduction
of this doctrine was necessitated, it is said, by USA on account of the very liberal
interpretation of the 'due process' clause. JUSTICE PATANJALI SASTII of Supreme
Court of India said: "When that power (legislative power) was threatened with prostration
by the excesses of due process, the equally vague and expansive doctrine of "Police
Power" i.e., the power of the Government to regulate private rights in public interest was
evolved to counteract such excesses. DAS, J. (later CJ) also remarked that the content
of the due process of law had to be narrowed down by the enunciation and application of
34

the new doctrine of "Police Power" as an antidote or palliative to that power." Learned
author T.K. TOPE in his book Constitutional Law19 has commended on the above views
of the two learned Judges of our Supreme Court and has said: "With great respect to
their Lordships, it is submitted that the doctrine of Police Power was not evolved merely
to counteract the consequences of "due process" clause. The absence of any power in
the Legislature to restrict fundamental rights was the efficient cause of the birth of the
doctrine".
In Munn v. Illinois, 20 court upheld against a due process challenge of Illinois regulation of grain
shortage sales, concluding that Government could regulate private property when it is "affected with a
public interest" or "used in a manner to make it of public consequences, and affects the community at
large". The court intimated that such regulations might be unreasonable and void when applied to
"mere private contracts, relating to matters in which public has no interest". 21 In that case, CHIEF
JUSTICE MOIIISON WAITE argued that since the days of the common law, grain elevators and
warehouses had been recognised as businesses "clothed with a public interest" and as such were
subject to public regulation by the Legislature. Although he conceded that this regulatory power might
be abused, the Chief Justice insisted that abuse "is no argument against law's existence. For
protection against abuse by Legislature the people must resort to the polls and not to the courts."

"The liberty of the individual to do as he pleases, even in innocent matters, is not, absolute. It must frequently
yield to the common good."22

In other words, the police power is founded on the theory that--

"the whole is greater than the sum total of all the parts, and when the individual health, safety and welfare are
sacrificed or neglected, the State shall suffer."23

In an organized society,--without which there cannot be any safeguard of individual rights,--there


cannot be any right which is injurious to the community as a whole. The police power is thus the
authority to establish those rules of good conduct and neighbourliness which are calculated to prevent
a conflict of rights and to insure to each the uninterrupted enjoyment of his own, so far as that is
reasonably consistent with a corresponding enjoyment by other. 24

"It is the governmental power of self-protection and permits reasonable regulation of rights and property in
particulars essential to the preservation of the community from injury."25

But though originally regarded as a negative or regulatory power to protect the community from injury
resulting from individual act ion, the trend of judicial decisions in the United States is to regard it as
something more, viz., the power of the State to secure 'general convenience, prosperity and welfare'. 26
Thus, in upholding a total prohibition of the use on the public streets of amplifiers emitting 'loud and
raucous noise', the Court observed27 --

"The police power of a State extends beyond health, morals and safety and comprehends the duty, within
constitutional limitation to protect the well-being and tranquillity of a community." 28

It would thus include the safeguarding or promotion of the economic needs of the general public,29
their convenience or general prosperity;30 and everything that tends "to increase the industries of the
State, develop its resources and add to its wealth and prosperity," 31 including the beautification of the
community.32 In Home Building and Loan Association v. Blaisdale, 33 the court said:

"Undoubtedly, whatever is reserved of State power must be consistent with the fair intent of the constitutional
limitation of the power. The reserved power cannot be construed so as to destroy the limitation nor is the
limitation to be construed to destroy the reserved power in its essential aspects. They must be construed in
35

harmony with each other. This principle precludes a construction which would permit the State to adopt as its
policy the repudiation of debts or the destruction of contracts or the denial of means to enforce them. But it
does not follow that condition may not arise in which a temporary restraint of enforcement may be consistent
with the spirit and purpose of the constitutional provision and thus found to be within the range of reserved
power of the State to protect the interest of the community. If State power exists to give temporary relief from
the enforcement of contract in the presence of disasters due to physical causes such as fire, flood or
earthquake that power cannot be said to be non-existent when the urgent need demanding such relief is
produced by economic causes. The protective power of the State, its police power, may be exercised in
directly preventing the immediate and literal enforcement of contractual obligation by a temporary and
conditional restraint where vital public interest would otherwise suffer. It is manifest from our decision that there
has been a growing appreciation of public needs and of the necessity of finding grounds for a rational
compromise between individual right and public welfare. The question is no longer merely that of one party to a
contract as against another, but of the use of reasonable means to safeguard the economic structure upon
which the good of all depends."

In short, the 'police power' is not confined to a narrow category but extends to 'all the great public
needs' including even political well-being.34

"The public welfare is a broad and inclusive concept. The moral, social, economic and physical well-being of
the community is one part of it; the political well-being, another."35

Upon this theory, the Court upheld the constitutionality of a statute which provided that employers
shall not deduct wages for absence of employees for the purpose of exercising his vote on election
day.36
On the other hand,--

6i)  The Police Power does not confer upon the State an "unrestricted authority
to accomplish whatever the public may presently desire. It is the Government power of
self-protection and permits reasonable regulation of rights and property in particular
essential to the preservation of the community from injury", 37 which of course, includes
general welfare.38

6ii)  The regulations which are imposed in the exercise of the Police Power must
have (a) a real and substantial relation to the above and (b) must not be arbitrary or
oppressive.39 In other words, the police power must be exercised subject to constitutional
limitations, including 'Due Process' (14th Amend-ment). But the burden of showing its
unreasonableness is on the person who complains.40
Learned Author T.M. COOLEY in his book A Treaties on the Constitutional limitation41 has stated:

"The police power of the State extends to the protection of the lives, limbs, health, comfort and quiet of all
persons and the protection of all property within the State. According to the maxim "sic utere tuo ut alienum
non loedas" which being universal application, it must of course, be within the range of legislative action to
define the mode and manner in which every one may so use his own as not to injure others."

And again:

"By this general police power of the State, persons and property are subjected to all kinds of restraints and
burden in order to secure the general comfort, health and prosperity of the State, of the perfect right in the
Legislature to do, which no question ever was, or, upon acknowledged general principles, even can be made,
so far as natural persons are concerned."42

At page 577, it is further said:

"The regulation must have reference to the comfort, safety or welfare of the society; they must not be in conflict
with any provision of the Charter; and they must not, under pretence of regulation in fact, and not amendment
36

of the Charter in curtailment of the corporate franchise. The maxim "sic utere tuo ut alienum non loedas" is that
which lies at the foundations of the power, and to whatever enactment affecting the management and business
of private corporation, it cannot be fairly be applied, the power will not extend".

At pp. 282-83 of the same book, it is also said that "police power of the State could not be alienated
even by express grant. The State could not barter away or in any manner abridge or weaken any of
the essential powers which are inherent in all Governments and the existence of which in full vigour is
important to the well being of organised society".

1B)  India.--Our Constitution, similarly, acknowledges that there cannot be any


such thing as absolute or uncontrolled liberty, for that would lead to anarchy and
disorder. Liberty has to be limited in order to be effectively possessed. The question,
therefore, arises in each case of adjusting the conflicting interests of the individual and of
the society.43 Fundamental rights guaranteed under Art. 19 of the Constitution are not
absolute but are subject to reasonable restriction to be imposed against enjoyment of
such right. Such reasonable restrictions strike a balance between the freedom
guaranteed by any of the clauses under Art. 13(1) and the social control permitted by
clauses (2) to (6) under Art. 19.44 Though our Constitution also acknowledges that there
cannot be any such thing as absolute or uncontrolled liberty, the doctrine of police power
is not available under the Indian Constitution. It was evolved in the US where the
residuary power is not conceded to the Federal Government vested in the State on the
ground that this residuary power of maintenance of law and order and peace was
essential for development of a civilised society. In India, as a Constitution was enacted,
there was no scope for any power except the one which could be derived from any
provision of the Constitution coupled with an Entry in one of the three lists. Right to tax
or levy imports must be in accordance with the Constitution. The doctrine of police power
could not be of any help to justify the levies imposed by the State on alcohol or alcoholic
liquors.45
In Dwarakadas Shrinivas v. Sholapur Spg. & Wvg. Co., 46 JUSTICE BOSE said: "I deprecate the use of
doubtful words like police power, social control, eminent domain and the like. I say doubtful not
because they are devoid of meaning, but because they have different shades of meaning in different
countries and because they represent powers which spring from widely different sources. In my
opinion, it is wrong to assume that these powers are inherited in the State in India and then to say how
far the Constitution regulates and fits in with them. We have to interpret the plain provisions of the
Constitution and it is for Jurists and students of law, not for Judges, to see whether our Constitution
also provides for these powers and it is for them to determine whether the shape which they take in
India reasonable any of the varying forms which they assume in other countries". 47 The court has also
characterised the expression "police power" as alien to the scheme of Indian Constitution. 48
The exercise of the right under Art. 19(1)(a) will come to end when such exercise threatens to infringe
the fundamental right of another. Such a limitation is inherent in41 the exercise of the right under Art.
19(1)(a).49

"There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint for that would
lead to anarchy and disorder. The possession and enjoyment of all rights are subject to such reasonable
conditions as may be deemed to the governing authority of the country to be essential to the safety, health,
peace, general order and morals of the community. Ordinarily every man has the liberty to order his life as he
pleases, to say what he will, to follow any trade, occupation or calling at his pleasure and to do any other thing
which he can lawfully do without let or hindrance by any other person. On the other hand, for the very
protection of these liberties the society must arm itself with certain powers. ... What the Constitution, therefore,
attempts to do in declaring the right of the people is to strike a balance between individual and social control -
Art. 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints
that may be placed upon them by law, so that they may not conflict with public welfare or general morality."50

Liberty is confined and controlled by law, whether common law or statute. It is in the words of BURKE,
a regulated freedom. It is not an abstract or absolute freedom. The safeguard of liberty is in the good
37

sense of the people and in the system of representation and responsible Government, which has been
evolved. .... Liberty is itself gift of the law and may by the law be forfeited or abridged. 51
BLACKSTONE says personal liberty consists in the power of locomotion, of changing situation, or
removing one's person to whatever place one's inclination may direct, without imprisonment or
restraint, unless due course of law. The definition implies that certain qualification and limitation rest
upon this power, which are known to the law and enforced by it, without infringing upon constitutional
liberty.52
But, instead of leaving the question of limitation entirely to the Courts in each case as is presented
before them, our Constitution seeks to improve upon the American Constitution, by defining the scope
of the limitations in the Constitution itself,53 and by authorising the State to restrict the freedoms
guaranteed by the earlier part of Art. 19, within the limits of the restricting Cls. (2) to (6), which may be
said to constitute a partial codification of the doctrine of 'police powers'. The peculiarity of this Article,
as pointed out already, lies in the fact that it contains two parts,--one declaring the rights themselves
and another enumerating precisely the limitations which may be imposed by the State upon the
exercise of each of these rights.54 In the fourth edition of the book, learned author says: "But instead of
leaving the question of limitation entirely to the court in each case, as is presented before them, our
Constitution seeks to improve upon the American Constitution, by defining the scope of the limitation
in the Constitution itself and by authorising the State to restrict the exercise of the freedom guaranteed
by the earlier part of Art. 19, within the limits of the restricting clauses (2) to (6) which may be said to
constitute a partial codification of the doctrine of police power." 55
In was held in Santokh Singh's case56 that it is hardly fruitful to refer to the American decision
particularly when the Court has clearly enunciated the scope and effect of Art. 19(1)(a) and 19(2). It
was held that the test of reasonableness of restriction has to be considered in each case in the light of
the nature of the right infringed, the purpose of restriction, and extent and the nature of the mischief
required to be suppressed and the prevailing social and other conditions at this time. There can be no
abstract standard or general pattern of reasonableness and our Constitution provides reasonably
precise general guidance in the matter.
At the same time, the provisions of our Constitution should be interpreted 'by the plain words used by
the Constitution and not with reference to the connotation of 'Police Powers' in American
Constitutional law.57 The reason is--(i) There is no corresponding doctrine of 'due process of law' in
India, to counteract which the doctrine of 'Police Powers' had to be invented in the U.S.A. (ii) 'Police
Power' is an undefined residue of power in the hands of the American Judiciary, and, as it has been
just seen, it has been widely asserted to include everything that tends to promote the 'public welfare',
e.g., "to increase the industries of the State, develop its resources and add to its wealth and
prosperity."58 So interpreted, it has a positive aspect, apart from the more restricted negative meaning
originally assigned to it, viz., the imposition of restrictions 'to prevent corruption of morals, incitement
to crime, disturbance of the public peace'59 and the like, by an abuse of the freedoms. Once the
positive concept is admitted, there may not remain any limit to the discretion left to the Judiciary. The
object of specifying the restrictions in Cls. (2) to (6) of Art. 19 was to define with certainty the
limitations that might be imposed upon the freedoms instead of leaving that to the disposal of the
Judges.60

"Our Constitution has deliberately rejected the 'due process' clause of the U.S. Constitution with the result that
it is not necessary in India to evolve a doctrine of 'Police Power' in order to mitigate the vigour of the due
process clause. Again, the distribution of legislative power between the Union and the States in too detailed
and mutually exclusive lists, with a detailed concurrent list and inclusion in the part on Fundamental Rights of
the limitations to which the rights are subject, leave no room for reading into any Constitution the theories
evolved in the context of American Constitution".61

As Dr. Ambedkar explained in the Constituent Assembly: 62

"... what the Draft Constitution has done is that instead of formulating fundamental rights in absolute terms and
depending upon our Supreme Court to the rescue of Parliament by inventing the doctrine of police power, it
38

permits the State directly to impose limitations upon the fundamental rights". 63 According to DR. AMBEDKAR,
"There is really no difference in the result, what one does directly the other does indirectly". In Constitutional
Law of India,64 this approach of DR. AMBEDKAR has been commented upon. Learned author says: "With due
respect to the learned jurist, it is submitted that there is difference in result. There is a greater element of
certainty about Indian Constitution on account of mention of specific heads in clauses (2) to (6) of Art. 19 which
delimit the scope and extent of restriction on the fundamental rights. Thus, the danger of vagueness and
variety of views that may be held by individual judges in the field of restriction on individual freedom is much
minimised in the Indian Constitution. The Constitution of USA suffers in this respect from vagueness. This is a
very important point of distinction between the Constitution of USA and that of India. This gave Indian
Constitution a far more certainty than the American Constitution." (See pp. 134-35).

6 Liversidge v. Anderson, 1942 AC 206 (261).

7 Schenck v. United States, (1919) 249 US 47.

8 Adkins v. Children 's Hospital,(1923) 261 US 525. See also West Coast Hotel Company v. Parrish, (1937) 300 US
379.

9 (1937) 300 US 379.

10 Harrison v. Schaffner, (1941) 312 US 579 (583).

11 Cox v. New Hampshire, (1941) 312 US 569 (574).

12 Gopalan v. State of Madras, 1950 SCR 88 (292).

13 Gopalan v. State of Madras, 1950 SCR 88 (292).

14 Gitlow v. New York, (1925) 168 US 652.

15 It is interesting to note that the very concession of the 'Police Power' has strengthened the doctrine of 'judicial
review'. While the State has the right to regulate the exercise of a fundamental right in order to prevent it from being
abused, it cannot curtail the right itself [Mugler v. Kansas, (1887) 123 US 623]. Hence, whatever legislation the State
makes in the exercise of its police power is subject to the scrutiny of the Courts for the verdict whether it is a
'reasonable regulation of the fundamental right [Lochner v. N.Y., (1905) 198 US 45] or an abridgement of the
fundamental right itself, which is guaranteed by the Constitution (see below).

16 Cooley, Constitutional Law, p. 289.

17 Eubank v. Richmond, 226 US 137.

18 Noble State Bank v. Haskell, 219 US 104.

19 T.K. Tope, Constitutional Law, 3rd Edn. at p.134.

20 Munn v. Illinois, 94 US 113 (1877).

21 See also Mugler v. Kansas, 123 US 623 (1887).

22 Adkins v. Children 's Hospital,(1923) 261 US 525.

23 (1896) 169 US 366 US 569 (574).

24 Cooley, Constitutional Law, p. 289.

25 Penhandle Pipe Line v. State Highway Commn., (1935) 19 LEd 1090 (1097).

26 Eubank v. Richmond, (1912) 226 US 137; Kovacs v. Cooper, (1949) 336 US 77.

27 Kovacs v. Cooper, (1949) 336 US 77.

28 Veix v. Sixth Ward Building Assn., (1940) 310 US 32; Home Building & Loan Assn. v. Blaisdel, (1933) 290 US 398.

29 Veix v. Sixth Ward Building Assn., (1940) 310 US 32; Home Building & Loan Assn. v. Blaisdel, (1933) 290 US 398.

30 C.B.&Q. Ry. v. Drainage Commn., (1905) 200 US 561.


39

31 Barbier v. Connolly, (1885) 113 US 27.

32 Berman v. Parker, (1954) 348 US 26.

33 (1934) 290 US 398 (supra).

34 Day-Brite Lighting v. Missouri, (1952) 342 US 421.

35 Day-Brite Lighting v. Missouri, (1952) 342 US 421.

36 Day-Brite Lighting v. Missouri, (1952) 342 US 421.

37 Penhandle Pipe Line Co. v. State Highway Commn., (1935) 294 US 613.

38 Berman v. Parker, (1954) 348 US 26; Treigle v. Acme Homestead Assocn., (1936) 297 US 189 (197); N.Y. Savings
Bank v. Hahn., (1946) 326 US 230; Goldblatt v. Hempstead, (1962) 369 US 590.

39 Treigle v. Acme Homestead Assocn., (1936) 297 US 189 (197); N.Y. Savings Bank v. Hahn., (1946) 326 US 230;
Goldblatt v. Hempstead, (1962) 369 US 590.

40 Berman v. Parker, (1954) 348 US 26; Treigle v. Acme Homestead Assocn., (1936) 297 US 189 (197); N.Y. Savings
Bank v. Hahn., (1946) 326 US 230; Goldblatt v. Hempstead, (1962) 369 US 590.

41 See T. M. Cooley, A Treaties on the Constitutional limitation, 8th Edn., pp. 573-74.

42 See T. M. Cooley, A Treaties on the Constitutional limitation, 8th Edn., pp. 573-74.

43 Gopalan v. State of Madras, 1950 SCR 88 (253-4) : AIR 1950 SC 27, MUKHERJEA, J.; Santokh Singh v. Delhi
Administration, AIR 1973 SC 1091 : (1973) 1 SCC 659 (para 8); Laxmi v. State of U.P., AIR 1981 SC 873 : (1981) 2
SCC 600. See also Noise Pollution (V) In Re,AIR 2005 SC 3136 : (2005) 5 SCC 733 (para 11); Krishnan Kakkanath v.
Govt. of Kerala, AIR 1997 SC 128 : (1997) 9 SCC 495; Maulana Mufti Syed Mohammed Noorur Rehman v. State of
West Bengal, AIR 1999 Cal 15. See also Ramlila Maidan Incident, In re.,(2012) 5 SCC 1 : 2012 Cri LJ 3516; State of
WB v. Subodh Gopal Bose, AIR 1954 SC 92 : 1954 SCR 587.

44 Krishnan Kakkanath v. State of Kerala, AIR 1997 SC 128 : (1997) 9 SCC 495.

45 Synthetics and Chemicals Ltd. v. State of UP, AIR 1990 SC 1927 : (1990) 1 SCC 109.

46 AIR 1954 SC 119 : 1954 SCR 674.

47 See also K.K. Kochunni v. State of Madras, AIR 1960 SC 1080 : (1960) 3 SCR 887.

48 Synthetics and Chemicals Ltd. v. State of UP, AIR 1990 SC 1927 : (1990) 1 SCC 109 - supra.

49 B.L. Wadehra v. State (NCT of Delhi), AIR 2000 Del 266; Bijayananda Patra v. Dt. Magistrate, Cuttack, AIR 2000 Ori
70.

50 Gopalan v. State of Madras, AIR 1950 SC 27 : 1950 SCR 88; see also Santokh Singh v. Delhi Admn., AIR 1973 SC
1091 : (1973) 1 SCC 659.

51 Addl. District Magistrate, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521 - by Ray CJ) : 1976 SCR 172(Supp.) :
AIR 1976 SC 1207.

52 See T. M. Cooley, A Treaties on the Constitutional limitation, 8th Edn., First Indian Reprint 2005. Chapter X dealing
with Constitutional protection to personal liberty at p. 339.

53 It is interesting to note that while moving Art. 8, as drafted by the Sub-Committee on Fundamental Rights, Sardar
Patel, the Chairman of the sub-committee, omitted the provisos which contained the limitations to the Fundamental
Rights of freedom of speech etc. (III C.A.D., p. 445). But after the outbreak of the communal atrocities and other
subversive activities, it was considered essential for the protection of the infant State that the limitations of individual
freedoms should be definitely stated and that is why Art. 8 was redrafted as Art. 13 with the limitation Clauses and so
embodied in the Draft Constitution of 1947.

54 Gopalan v. State of Madras, 1950 SCR 88 (253-4) : AIR 1950 SC 27, MUKHERJEA, J.; Santokh Singh v. Delhi
Administration, AIR 1973 SC 1091 (para 8) : (1973) 1 SCC 659; Laxmi v. State of U.P., AIR 1981 SC 873 : (1981) 2
SCL 600.

55 D.D. Basu, Commentary on the constitution of India, 4th Edn., Vol. I (1961), p. 488.
40

56 Santokh Singh v. Delhi Administration, AIR 1973 SC 1091 (supra)

57 Chiranjit Lal v. Union of India, AIR 1951 SC 41 (56) : 1950 SCR 869. See also Santokh Singh v. Delhi
Administration, (1973) 1 SCC 659 : AIR 1973 SC 1091.

58 Barbier v. Connolly, (1885) 113 US 27.

59 Gitlow v. N.Y., (1925) 268 US 652.

60 Constituent Assembly Debates Vol. VII CAD., p. 41. It would be useful to note in this connection the provision in Art.
29(2) of the Universal Declaration of Human Rights which seeks to grapple the question of limitation upon the exercise
of individual rights, in a rather comprehensive manner:"In the exercise of his rights and freedoms, everyone shall be
subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect
for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general
welfare in a democratic society".Similar is the blanket provision in Art. 12 of the Japanese Constitution:"The freedom
and rights guaranteed to the people by this Constitution shall be maintained by the constant endeavour of the people
who shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the
public welfare".

61 H. M. Seervai, Constitutional Law of India, 4th Edn., Vol. I, p. 236.

62 Constituent Assembly Debates, Vol. VIl C.A.D., p. 41.

63 Constituent Assembly Debates, Vol. VIl C.A.D., p. 41.

64 T. K. Tope, Constitutional Law of India, 3rd Edn., pp. 134-35.

How far the limitations specified in Cls. (2)-(6) are exhaustive


It is the rights which are fundamental, not the limitations and it is the duty of the Supreme Court and all
Courts in the land to guard and defend those rights, zealously. 65 The question whether there is a
fundamental right or not cannot be dependent upon whether it can be made the subject matter of
control.66 As far as Art. 19 is concerned, what is fundamental is the freedom and not the exception.
Restraints are permissible only to the extent they have a nexus with the approved object. The liberty
can be curtailed "only on the grounds listed in saving sub-articles one directly, specifically,
substantially and imminently attracted, so that the basic rights may not be stultified". 67 On a
comparison of Art s. 14 and 19, in an early decision of the Calcutta High Court in Surajmal v. ITC, 68 it
was held that "on a plain comparison of the language of Art s. 14 and 19, no question of
"reasonableness" arose in the language of Art. 14 as distinguished from the specific words
"reasonable restriction" appearing in Art. 19(2) to (6). The only way in which reasonableness entered
into Art. 14 was that a law required "reasonable classification" having a reasonable nexus to the object
of the law. In construing "reasonable restriction" under Art. 19, the court has not to consider the
reasonableness of law, but only the reasonableness of restriction and to that extent only is legislative
policy under review in a court of law. A legislation may pass the test of reasonable restriction within the
meaning of Art. 19. To read into Art s. 14 and 19, an equal standard of reasonableness would be to
introduce in India the concept of 'due process' of the American Law and our Supreme Court has
repeatedly held that "due process" does not apply to our Constitution".
Limitations imposed by Art s. 19(2) to 19(6) on the freedoms guaranteed by Art s. 19(1)(a) to (g) serve
a two-fold purpose, viz., on the one hand, they specify that these freedoms are not absolute, but are
subject to regulations; on the other hand, they put a limitation on the power of the Legislature to
restrict those freedoms. A Legislature cannot restrict these freedoms beyond the requirement of Art.
19(2) to 19(6).
But while considering the validity of restriction, the Courts will have to take note of the 'Directive
Principles of State Policy'. It was held that the Constitution aims at bringing about a synthesis between
'Fundamental Rights and Directive Principles of State Policy' by giving to the former a place of pride
and to the latter a place of permanence.69 In determining the constitutional validity of any statutory
provision, the fundamental duties as envisaged in Part IV-A must also be taken into consideration. 70
The same principle was reiterated in State of Kerala v. N. M. Thomas, 71 wherein it was held that so far
41

as the Courts are concerned when there is no apparent inconsistency between the Directive Principle
of State Policy contained in Part IV and the Fundamental Rights mentioned in Part III, which in fact
supplement each other, there is no difficulty in Jutting a harmonious construction which advances the
object of the Constitution.72
JUSTICE HEGDE in one of his articles in Journal of Constitutional and Parliamentary Studies 73 said:
"The duties imposed on the State by Part III (i.e., Fundamental Rights) are essentially of negative
character. By the mandate contained in this Part, the State is asked not to do certain things. The
breach of these mandates is made justiciable because the nature of these mandates is such that they
can be easily enforced through courts. The mandates in Part IV (i.e., Directive Principles) are positive
mandates. Thereunder, the State is directed to take certain positive steps for the advancement of the
society. For taking these steps necessary condition must first be created. In the very nature of things,
the mandate cannot be enforced through courts. It would be wrong to say that these positive
mandates are of lesser significance than the mandates under Part III. 74 The court as far as possible
relied upon the Directive Principles of State Policy for the purpose of upholding "reasonableness" of
restriction in legislation.75 Where judiciary had a choice, it chose the construction in conformity with
social philosophy laid down in Directive Principles.76 In Golak Nath v. State of Punjab, 77 the Supreme
Court said that fundamental rights and directive principles form an integrated scheme. 78
In Kesavananda Bharati v. State of Kerala, 79 JUSTICE CHANDRACHUD observed: "The Constitution
accords a place of pride to fundamental rights and a place of permanence to the directive principles.
That one is justiciable and other not, may show the intrinsic difficulties in making the latter enforceable
through legal processes, but that distinction does not bear on their relative importance....the basic
subject of conferring freedom or individuals is the ultimate achievement of the ideal set out in Part IV.
The freedom of few has then to be abridged in order to ensure the freedom of all. It is in this sense
that Parts III and IV (as said by GRANVILLE AUSTIN) together constitute the conscience of the
Constitution. In Minerva Mills v. UOI, 80 the very same Judge as Chief Justice said that Parts III & IV
are like two wheels of a chariot, one no less important than the other. In other words, Indian
Constitution is founded on the bedrock of the balance between Parts III & IV. This harmony and
balance between fundamental rights and directive principles is an essential feature of the basic
feature of the Constitution". The Supreme Court has said that in interpreting the Constitution due
regard has to be given to directive principles which have been recorded as the soul of the Constitution
in the context of India being a Welfare State. The Preamble itself is elaborated in the two vital
chapters of the Constitution on fundamental rights and directive principles of State policy. In the
Constituent Assembly Debates, DR. B.R. AMBEDKAR has underscored that one of the objectives of
the directive principles of State policy is to achieve economic democracy and left that in the hands of
future elected representatives.81 The Supreme Court has held that "with development of law, even
certain matters covered by Part IV of the Constitution relating to directive principles have been uplifted
to the status of fundamental rights. Court also said that fundamental rights, directive principles and
fundamental duties under Chapter IV-A is a composite scheme to achieve social order which affords
liberty to all. Unbridled individual rights will create imbalance in society. Hence appropriate proportion
therefore has to be maintained between individual rights and collective rights of society which imply
observance of fundamental duties by individuals. The Supreme Court said that when you assert your
right, you must respect the freedom of others".82 In Ashoka Kumar Thakur v. UOI, 83 the court said that
no distinction can be made between the two sets of rights. The fundamental rights represent civil and
political rights and directive principles embody social and economic rights. Merely because the
directive principles are not justiciable by judicial process, it does not mean that they are of subordinate
importance.84
The interest of a citizen or section of a community, however important, is secondary to the interest of
the country or community as a whole. Implementation of directive principles contained in Part IV is
within the expression of "restriction in the interests of general public". A restriction placed on any
Fundamental Rights, aimed at securing directive principles will be held "reasonable" and hence intra
vires subject to two limitations: (1) that it does not run in clear conflict with the Fundamental Rights
and (2) that it has been enacted within the legislative competence of the enacting Legislature. 85
42

Any provision which has the effect of making an in road into the guarantee of Fundamental Rights in
the very nature of things should be constrained very strictly and it would not be permissible to widen
the scope of such a provision or to extend the frontiers of the protected zone beyond what is
warranted by the language of the provision.86

5.  It follows from the foregoing discussion that the limitations enumerated in
Art. 19 were intended to be exhaustive87 and are to be strictly construed.88The Courts
cannot, accordingly, uphold the validity of a State Act restricting a Fundamental Right on
any ground other than those specified in the relevant limitation clause of Art. 19 itself. 89
Thus--

9a)  The Court must strike down any law which imposes a restriction upon the
freedom of speech and expression or assembly 90 unless it falls within any of the grounds
specified in Cl. (2) Art. 19.91

7i)  Section 4A of the Central Civil Services (Conduct) Rules, 1955, which
prohibits a Government servant from participating in
"any demonstration....in connection with any matter pertaining to his condition of service"
violates Art. 19 (1)(a) inasmuch as the restriction is not confined to the grounds of restriction
permissible under Cl. (2) of Art. 19.92
It also violates Art. 19 (1)(b), because it is not confined to the interests of public order or any of the
permissible grounds of restriction under Cl. (3) of Art. 19. 93

7ii)  A restriction upon the freedom of the Press cannot be justified on a ground
permissible under any clause other than Cl. (2) such as 'the interests of the general
public' which is a valid ground for restricting the freedom of property or business. 94 A
restriction imposed on the ground of interest of general public which may be reasonable
under clause (5) may not ipso facto apply to a restriction imposed by cl. (6) of Art. 19. 95

9b)  Any restriction upon the citizen's right to carry on any occupation, trade or
business under Art. 19(1)(g) must be held to be void unless it is saved by Cl. (6) of the
Article.96
The proper interpretation of a ground of restriction is no doubt a business of the Court, but once the
scope of a ground of restriction has been interpreted, the Court cannot enlarge the relevant limitation
clause to admit other grounds on any theory of 'Police Power'. Nothing short of an amendment can
introduce new grounds of restriction. This is illustrated by the decision of the Supreme Court in the
case of Romesh Thappar v. State of Madras, 97which, we shall presently see, necessitated an
amendment of the Constitution. In the original text of Art. 19 (2), 'public order' was not mentioned as a
ground of restriction and the only relevant ground was 'security of the State'. The Court had, therefore,
to determine whether the impugned law (Madras Maintenance of Public Order Act, 1949) was a law
relating to 'security of the State'. The Court interpreted the expression 'security of the State' as
referring to "those aggravatedforms of prejudicial act ivity" which endanger the very existence of the
State and as not including ordinary breaches of the public peace. The impugned law, having for its
object the maintenance of public order and public safety, was, therefore, held to be invalid, being
outside the protection of Cl. (2). If the matter rested here, the State would have been powerless to
restrict or punish the use of the freedom of expression even though it caused or tended to cause a
breach of public peace and tranquillity. Government was, accordingly, obliged to have Cl. (2) amended
by inserting, inter alia,'public order' as a ground of restriction, by the Constitution (First Amendment)
Act, 1951, 1951. For the same reasons, the grounds of 'sovereignty' and 'integrity' of India had to be
introduced by amending Cls. (2), (3) and (4) by the Constitution (Sixteenth Amendment) Act, 1963.
According to the learned author and jurist H.M. SEERVAI, the observation that "such is the rights
which are fundamental, not the limitation" in Ram Singh's case,98 is misleading, for they overlook the
43

fact that what is guaranteed is not an absolute right, but a right subject to permissible restriction. That
the rights conferred by Art. 19(1) are not absolute, is obvious from the nature of these rights. The well
recognised limitations on the rights embodied in Art. 19(1)(a) to (g) are expressly incorporated in Art.
19(2) to 19(6). The rights represent the claims of the individual, the limitation protect the claims of
other individuals and the claim of the society or the state; to say that the rights are fundamental and
the limitations are not is to destroy the balance Art. 19 was designed to achieve. To say this is not to
be little fundamental rights, but only to say that the rights are not absolute and can be enjoyed only in
an orderly society.99
In each of the clauses (2) to (6) of Art. 19, pari materia provision exists in the following words "Nothing
in... clause (1) shall affect the operation of an existing law or prevent the State from making any law, in
so far as such law imposes reasonable restriction on the exercise of the right conferred...in the interest
of...". The use of the categorical negative "Nothing" and the emphatic "shall" makes the clause
definitive. It takes the character of a power restrictive clause. It creates legislative competence,
subject to the law making power given under Art s. 245, 246 and 248 and the appropriate legislative
Lists of the Seventh Schedule. It acknowledges the legislative power in disregard to the Fundamental
Rights of the citizens, subject only to the limitation put by the adverbial phrase "in so far as such laws
impose reasonable restriction in the interest of ...". It saves legislation under certain conditions which
in its absence should have been invalidated by reason of contravention or otherwise under
"unqualified clause (1) or under clause (2) of Art. 13". Under it, the area of social regulation and
governmental interference in the sphere of individual freedom is clearly marked out. The six freedoms
declared in clause (1) are "subordinated to" a certain degree to the consideration of State security,
public safety, public order, general interests of the public, social and economic regulation or any one of
them. In the interest of such stated categories of heads of social control the legislative abridgment is
permitted in the form of 'reasonable restriction' on the exercise of individual rights. The phrase "in so
far as", "in the interests of" and the adjective "reasonable" preceding the word "restriction" fix the
scope of legislative enrolment of the Rights. The legislative regulation of the rights should be as much
as it is absolutely necessary for realisation of the ends of necessary social regulation epitomised by
the heads of social control specified in the several clauses. The clauses set the scope of "permitted
restricted" legislation by the definition and specification of the heads of legislative encroachment
"separately" in relation to several freedoms taking into account the relative relevance of the freedom of
an individual in preference to the social interests, the attendant circumstances for their exercise and
his relational behaviour in the society in relation to the other citizens. Limitation of the freedom is
permitted by imposition of "reasonable restriction" by authority of law under "defined condition". No
general legislative authority to restrict the vital freedom of the individual is recognised. Legislation is
not forbidden under condition in which it must be permitted for implementation of the aims of desirable
social control and economic regulation. The individual has been guaranteed exercise of his freedom in
so far as he does not hinder the enjoyment of similar freedom by his other fellow citizens and his
individual citizen interest does not obstruct the common objective of the Welfare State. Legislation
should impose 'restriction' which should be "reasonable", and at the same time, designed to achieve
only the stated categories of social control and public purposes and objectives. The concept of
reasonableness finds its manifestation in ideals of socio economic justice by which the Directive
Principles declared in Part IV are inspired.100 The relation between the legislative policy and objective
should not be too remote to the specific types of social control legislation spanned under the several
heads specified in the several clauses."101
Once the violation of rights under Art. 19(1) is prima facie established, the burden is on the State to
establish that the law comes within the provisions of Art. 19(2) to 19(6). 102

5I.  The reason why the State cannot travel beyond the contents of Cls. (2)-(6)
in curbing a fundamental right guaranteed by Cl. (1), is that Cl. (1) guarantees an
'absolute and unconditional right', 'subject only to reasonable restrictions' that may be
imposed by the Legislature in the public interest under the relevant limitation clause in
Cls. (2)-(6).103
44

2II.  The grounds specified in Cls. (2)-(6) being exhaustive, they should be
strictly construed.104
In Sakal Paper's case,105 the challenge was a Government order which sought to regulate the number
of pages according to the price charged, prescribed the number of supplements to be published and
regulate the size and area of advertisements in relation to other matters contained in the newspaper.
Supreme Court struck down the order holding that the same directly affected the freedom of speech
and expression because inherent in the freedom is the right to publish and circulate the publications.
The order was sought to be supported on the ground that it only regulated the commercial aspects of
the newspapers and not dissemination of the news and views by them and hence it is only a
reasonable restriction. Which agreeing to the contention that newspapers have two aspects, i.e.,
dissemination of news and views and commercial, held that the State cannot seek to place restrictions
on business by directly and immediately curtailing any other freedom of the citizen guaranteed by the
constitution and which is not susceptible of abridgement on the same ground as are set out Art. 19(6).
It was held that the right of freedom of speech cannot be taken away with the object of placing
restriction on the business activities of a citizen.

2V.  But even though Art. 19(2)-(6) is exhaustive as to the grounds of restriction
of the rights enumerated in the Article, in order to justify a restriction under cls. (2)-(6),
the law which imposes the restriction must be otherwise valid. A restriction which is not
authorised by a valid law cannot be saved by any other clauses. 106 The court will also
invalidate a restriction imposed by the law which is "unreasonable". 107"Without authority
of law" would include not only cases of total absence of any law authorising the
impugned administrative act108 but also where the administrative order is ultra vires the
authorising statute, having violated either the conditions or procedure prescribed by
statute.1
Nor is the Court debarred from interpreting the contents of a right itself, to hold that it does not include
an encroachment upon the same or other fundamental right belonging to some other person or
persons.2
65 Ram Singh v. State of Delhi, AIR 1951 SC 270 : 1951 SCR 451.

66 TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : AIR 2003 SC 355.

67 Maneka Gandhi v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248.

68 AIR 1961 Cal 578.

69 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : 1973 Supp. SCR 1.

70 State of Gujarat v. Mirzapur Moti Kurshi Kessab Jamet, AIR 2006 SC 212 : (2005) 8 SCC 534.

71 (1977) 2 SCC 310.

72 See also State of Bombay v. R.M.D.C., AIR 1957 SC 699 : 1957 SCR 921; Kasturi Lal Lakshmi Reddy v. State of
J&K, AIR 1980 SC 1992 : (1980) 4 SCC 1; Maneka Gandhi v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248;
Union of India v. Hindustan Development Corporation, (1993) 4 SCC 499 : AIR 1994 SC 988; Papanasam Labour
Union v. Madura Coats Ltd., (1995) 1 SCC 501 : AIR 1995 SC 2200.

73 Vol. V, No. (2), April-June 1971 at p.157.

74 See also Chandra Bhavan Boarding & Lodging v. State of Mysore, AIR 1970 SC 2042 : (1969) 3 SCC 84.

75 Nashirwar v. State of MP, AIR 1975 SC 360 : (1975) 1 SCC 29; see also Har Shankar v. Excise & Taxation
Commission, AIR 1975 SC 1121 : (1975) 1 SCC 737.

76 Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, AIR 1976 SC 1455 : (1976) 3 SCC 832.

77 AIR 1967 SC 1643 : (1967) 2 SCR 762.

78 See also Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731 : 1959 SCR 629.
45

79 (1973) 4 SCC 225.

80 AIR 1980 SC 1789 : (1980) 3 SCC 625.

81 Bhim Singh v. UOI, (2010) 5 SCC 538 : (2010) 5 SCALE 37.

82 See Ramlila Maidan Incident, In re.,(2012) 5 SCC 1 : 2012 Cri LJ 3516).

83 (2008) 6 SCC 1 : (2008) 5 SCALE 1.

84 See also Minerva Mills v. UOI, AIR 1980 SC 1789 : (1980) 3 SCC 625.

85 State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534 : AIR 2006 SC 212. See also Workmen
v. Meenakshi Mills Ltd., (1992) 3 SCC 336 : AIR 1994 SC 2696 : 1992 3 SCR 409; Municipal Corporation, City of
Ahmedabad v. Jan Mohd. Usman Bhai, (1986) 3 SCC 20. See also State of Bombay v. Balsara, AIR 1951 SC 318 :
1951 SCR 682; Pathumma v. State of Kerala AIR 1978 SC 771 : (1978) 2 SCC 1 : (1978) 2 SCR 537; MRF Ltd. v.
Inspector, Kerala Govt., AIR 1999 SC 188 : (1998) 8 SCC 227; K.K. Kochunni v. State of Madras, AIR 1960 SC 1080 :
(1960) 3 SCR 887; O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 : 1963 SCR 789(Supp-1) ; Indian Handicraft
Emporium v. UOI, AIR 2003 SC 3240 : (2003) 7 SCC 589.

86 Godavari Sugar Mills Ltd. v. S.B. Kamba, (1975) 1 SCC 696 : AIR 1975 SC 1193.

87 Sakal Papers v. Union of India, AIR 1962 SC 305 (315) : (1962) 3 SCR 842; see also Supdt. v. Ram Manohar, AIR
1960 SC 633 : (1960) 2 SCR 821; Kedar Nath v. State of Bihar, AIR 1962 SC 955 : 1962 Supp (2) SCR 769.

88 Kovacs v. Cooper, (1949) 336 US 77.

89 Ghosh v. Joseph, AIR 1963 SC 812 (814) : (1963) Supp (1) SCR 789; Kameshwar v. State of Bihar, AIR 1962 SC
1166 (1172) : 1962 Supp (3) SCR 369.

90 Kameshwar v. State of Bihar, AIR 1962 SC 1166 (1172) : Casebook (I), 292-4 : 1962 Supp (3) SCR 369.

91 Ghosh v. Joseph, AIR 1963 SC 812 (814) : (1963) Supp (1) SCR 789; Kameshwar v. State of Bihar, AIR 1962 SC
1166 (1172) : 1962 Supp (3) SCR 369.

92 Kameshwar v. State of Bihar, AIR 1962 SC 1166 (1172) : Casebook (I), 292-4.

93 Kameshwar v. State of Bihar, AIR 1962 SC 1166 (1172) : Casebook (I), 292-4.

94 Sakal Papers v. Union of India, AIR 1962 SC 305 (315) : (1962) 3 SCR 842; see also Supdt. v. Ram Manohar, AIR
1960 SC 633 : (1960) 2 SCR 821; Kedar Nath v. State of Bihar, AIR 1962 SC 955 : 1962 Supp (2) SCR 769.

95 Udai Singh Dagar v. UOI, AIR 2007 SC 2599 : (2007) 10 SCC 306.

96 Yasin v. Town Area Committee, 1952 SCR 572 (578) : AIR 1952 SC 115.

97 Romesh Thappar v. State of Madras, 1950 SCR 594 (601) : AIR 1950 SC 124.

98 Supra.

99 H.M. Seervai, Constitutional Law of India, 4th Edn., Vol I, pp. 702-703. See also Khoday Distilleries Ltd. v. State of
Karnataka, (1995) 1 SCC 574.

100 Burn Standard Co. v. UOI, AIR 1994 SC 786.

101 See Prof. Dr. M.C. Jain Kagzi, Constitution of India , 2001 Edn., Vol II, pp. 978-79.

102 Vrajlal M. & Co. v. State of M.P., (1969) 2 SCC 248 : AIR 1970 SC 129; Municipal Corporation, City of Ahmedabad
v. Jan Mohd Usman Bhai, AIR 1986 SC 1205 : (1986) 3 SCC 20; Bacham Singh v. State of Punjab, AIR 1982 SC
1325 : (1982) 3 SCC 24 : (1983) 1 SCR 145; State of Karnataka v. Gouri Narayana Ambiga, AIR 1995 SC 1691 : 1995
SCC 560(Supp. 2) .

103 Pathumma v. State of Kerala, AIR 1978 SC 771 (para 7)--7 Judges : (1978) 2 SCC 1.

104 Sakal Papers (P.) Ltd. v. Union of India, AIR 1962 SC 305 (315) : (1962) 3 SCR 842; see also Supdt. Central
Prison v. Ram Manohar Lohia, AIR 1960 SC 633 : (1960) 2 SCR 821; Kedar Nath v. State of Bihar, AIR 1962 SC 955.

105 Supra.
46

106 Yasin v. Town Area Committee, 1952 SCR 572 (578) : AIR 1952 SC 115. See also LIC v. Manubhai, AIR 1993 SC
171 : (1992) 3 SCC 637.

107 Cooper v. UOI, AIR 1970 SC 564 : (1970) 1 SCC 248; Pathumma v. State of Kerala, AIR 1978 SC 771 : (1978) 2
SCC 1 : (1978) 2 SCR 537.

108 Wazir v. State of HP, AIR 1954 SC 415 : 1955 SCR 408.

1 Krishna Bus Service v. State of Haryana, AIR 1985 SC 1651 : (1985) 3 SCC 711; Ishwar v. State of Rajasthan, (1987)
1 SCC 103; Bidi Supply Co. v. UOI, AIR 1956 SC 479 : 1956 SCR 267; Tahir Hussain v. District Board, AIR 1954 SC
630; Mineral Development Co. v. State of Bihar, AIR 1960 SC 468 : (1960) 2 SCR 909; Bishamber Dayal Chandra
Mohan v. State of UP, AIR 1982 SC 33 : (1982) 1 SCC 39.

2 Ry. Bd. v. Naranjan, AIR 1969 SC 966 (para 13) : (1969) 1 SCC 502.

Scope for judicial review


The question that next arises is "how far, if at all, would the Courts be competent to adjudicate upon
the validity of the restrictions so imposed by the State under any of the Cls. (2) to (6)?"
It might seem from Art. 13 (ante) that any law, whether previous or subsequent to the commencement
of the Constitution (which may be in force for the time being), would be void if inconsistent with any of
the fundamental rights guaranteed by the Constitution. If the matter stood thus, the Courts would have
been entitled to declare any law abridging any of the six freedoms as ultra vires or unconstitutional,
without any exception. But the words "nothing in sub-clause" at the beginning of each of Cls. (2) to (6)
of Art. 19 imply that the rights declared in Cl. (1) shall be subject to the exceptions mentioned in Cls.
(2) to (6) and that any existing law or any law hereafter made by the State in relation to these
exceptional subjects shall be valid even though, they may be inconsistent with the general
declarations in Cl. (1). For example, a law imposing civil or criminal penalty for a defamatory
publication is good, even though it may be an apparent restriction of the right of freedom of
expression.

6.  But then, has the Court any power to pronounce a law as unconstitutional on
the ground that it is not really covered by the exception clause under which the
restriction is sought to be imposed?
In the United States,--"determination by the Legislature of what constitutes proper exercise of 'Police
Power' is not final or conclusive, but is subject to Supervision by the Courts." 3
In the USA, the Police Power of the State is a limitation on the declaration of Fundamental Rights in
the Constitution which is otherwise absolute. But the court imposes the limitation of 'Due Process'
upon the exercise of Police Power itself.4 Police power is a power to care for the health, safety, morals
and welfare of the people. In a general way, it extends to all the great public needs. 5 It is held that
police power is subject to constitutional limitation. It cannot be exercised unreasonably or arbitrarily.
The State has no right to impose unreasonable and unnecessary restrictions upon the private use of
the property under the guise of police power. The reasonableness of the police power of the State
must be considered in the light of the current economic and social conditions of the people and the
use of police power can become the subject of scrutiny by the court. The Court is not concerned with
questions of policy or the expediency of the legislation but it is bound to interfere if it finds the
legislation to be in excess of the powers of the Legislature:

"The Legislature being familiar with local conditions, is, primarily, the judge of the necessity of such
enactments. The mere fact that a court may differ with the Legislature in its views of public policy, or, that
judges may hold views inconsistent with the propriety of the legislation in question, affords no ground for
judicial interference, unless the act in question is unmistakably and palpably in excess of legislative power.
47

If there existed a condition of affairs concerning the Legislature of the State, exercising its conceded right to
enact laws for the protection of the health, safety or welfare of the people, might pass the law, it must be
sustained; if such act ion was arbitrary, interference... and having no just relation to the protection of the public
within the scope of legislative power, the act must fail."6

In NAACP v. Alabama, 7 a provision to which compels the disclosure the details of membership of an
association "to determine whether the association was conducting intrastate business is violative of
the Alabama foreign corporation registration statute--was insufficiently compelling and production of
the membership list had "substantial bearing" on the vindication of that interest. But see Buckley v.
Valeo, 8where a provision required every political candidate or committee to maintain records of
contributors and to disclose to federal regulators the name, address and in the case of large
contributors the occupation of each contributor. These requirements were upheld on the ground that
they satisfy "substantial governmental interest". In that case, court upheld the Act 's disclosure
requirement and its limits on campaign contribution maintaining that they served an important purpose
(elimination of corruption) and it impinged only minimal on speech.
It is the business of the Court to see that in restricting the abuses of the exercise of a fundamental
right in the collective interests, the Legislature does not go to the length of abridging the right itself. 9 In
De Jonge v. Oregon, 10 the Supreme Court observed--

"The fundamental rights of freedom of speech, of the press and of assembly, guaranteed by the Constitution
may be abused by using speech or press or assembly in order to incite violence or crime. The people through
their Legislatures may protect themselves against that abuse. But the 'legislative intervention' can find
constitutional justification only by dealing with the abuse. The rights themselves cannot be curtailed...".11

In that case, the court ruled that mere participation in an organisation devoted to advocating criminal
syndicalism could not be made a crime. In American Book Sellers' Assn. v. Hudnut, 12 the court said: "If
there is any fixed star in our Constitutional Constellation, it is that no official can prescribe what shall
be orthodox in matters of opinion". Under the First Amendment, the Government must leave to the
people the evaluation of ideas. Bald or subtle, an idea is a powerful as the audience allows it to be. A
belief may be pernicious - the belief of Nazis led to the death of millions, those of the Klan to the
repression of millions. A pernicious belief may prevail. Totalitarian Government today rule much of the
planet, practising suppression of billions and spreading dogma that may enslave others. One of the
things that separates our society from theirs in our absolute right to propagate opinion that the
Government finds wrong or even hateful. The ideas of the Klan may be propagated. 13 Communists
may speak freely and run for office.14 The Nazi party may march through the city with a large Jewish
population.15 Court said that people may seek to repeal laws guaranteeing equal opportunity or to
revoke constitutional amendments granting the vote to blacks and women. They may do so because
"above all else, the First Amendment means that Government has no power to restrict expression
because of its message or its ideas".
In each case, thus, the Court has to undertake--

"the delicate and difficult task... to weigh the circumstances and to appraise the substantiality of the reasons
advanced in support of the regulation of the free enjoyment of the rights."16

The problem before the Court is to hold the balance between two conflicting interests which equally
demand protection from the Court:

"When particular conduct is regulated in the interest of public order, and the regulation results in an indirect,
conditional, partial abridgment of speech, the duty of the courts is to determine which of these two conflicting
interests demands the greater protection under the particular circumstances presented."17
48

The American Supreme Court has said that under the guise of protecting the public, arbitrarily to
interfere with private business or prohibit lawful occupation or impose unreasonable and unnecessary
restriction upon them is beyond the power of State. 18

1.  Basically the position in India is substantially the same as in the U.S.A., and
the Supreme Court has laid down the following broad propositions relating to Cls. (2)-(6)
of Art. 19:

7.  Whether any law has in fact transgressed the limitations specified in Cls. (2)-
(6) of Art. 19 is to be ascertained by the Court and if in its view the restrictions imposed
by the law are greater than what is permitted by Cls. (2) to (6) whichever is applicable,
the Court will declare the same to be unconstitutional and, therefore, void under Art. 13.
Here there is scope for the application of the "intellectual yardstick" of the Court. 19
Here, then, the Indian Constitution has adopted the principle of judicial supervision of legislative and
executive action from the American Constitution. It is for the Court 20 to determine whether the
restriction is 'reasonable'; the determination by the Legislature is not final,--it is subject to the
supervision of the Court.21 JUSTICE MAHAJAN (as he then was) emphatically said in
Chintamanrao'scase: "The determination by the Legislature of what constitutes a reasonable
restriction is not final or conclusive; it is subject to the supervision by the Court. In the matter of
fundamental rights, the Supreme Court watches and guards the right guaranteed by the Constitution
and in exercising its functions it has the power to set aside an Act of Legislature if it is in violation of
freedoms guaranteed by the Constitution."22 The Supreme Court is constituted as a protector and
guarantor of fundamental rights.23
In MRF Ltd. v. Inspector, Kerala Govt., 24 the Supreme Court summarised the legal position as to find
"reasonableness" thus:--

"(1) While considering reasonableness of the restriction, the court has to keep in mind the Directive Principles
of State Policy; (2) Restriction must not be arbitrary or of an excessive nature so as to go beyond the
requirement of the interest of the general public; (3) In order to judge the reasonableness of restriction, no
abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the
same will vary from case to case as also with regard to changing condition, values of human life, social
philosophy of the Constitution prevailing conditions and surrounding circumstances; (4) A just balance has to
be struck between the restriction imposed and the social control envisaged by clause (2) of Art. 19; (5)
Prevailing social values as also social needs which are intended to be satisfied by restriction imposed have to
be borne in mind; (6) There must be a direct and proximate nexus or a reasonable connection between the
restriction imposed and the object sought to be achieved. If there is a direct nexus between the restriction and
the object of the Act, there is a strong presumption in favour of constitutionality of the Act will naturally arise."

Though the Court starts with the assumption that the Legislature is the best judge of what is good for
the community by whose suffrage it comes into existence, the ultimate responsibility of determining
the reasonableness of the restriction, from the point of view of the interests of the general public rests
with the Court and the Court cannot shirk this solemn duty cast on it by the Constitution. 25 The
Supreme Court has been constituted as a protector and guarantor of the Fundamental Rights. It was
held that Fundamental Rights are intended not only to protect individual rights, but they are based on
public policy. Liberty of the individual and the protection of the Fundamental Rights are the very
essence of the democratic way of life adopted by the Constitution and it is the privilege and duty of the
Court to uphold those rights. The Court would naturally refuse to circumscribe them or to curtail them
except as provided in the Constitution.26 Still later, it was held that "The Fundamental Rights to move
this Court can, therefore, be appropriately described as the cornerstone of the democratic edifice
raised by the Constitution. That is why it is natural that this Court should regard itself "as the protector
and guarantor of the Fundamental Rights" and should declare that "it cannot, consistently with the
responsibility laid upon it, refuse to entertain applications seeking protection against infringement of
such rights In discharging the duties assigned to it, this Court has to play the role of a Sentinel as the
qui vive and it must always regard it as its solemn duty to protect the said Fundamental Rights
zealously and vigilantly."27
49

"The legislative and judicial are co-ordinate departments of the Government, of equal dignity; each is alike
supreme in the exercise of its proper function and cannot directly or indirectly, while acting within the limits of
its authority, be subjected to the control or supervision of the other, without an unwarrantable assumption by
that offer of power which, by the Constitution, is not conferred upon it. The Constitution apportions the powers
of Government but it does not make any one of the three departments subordinate to another, when exercising
the trust committed to it. The Courts may declare legislative enactments unconstitutional and void in some
cases, but not because the judicial power is superior in degree or dignity to the Legislature. Being required to
declare what the law is in the cases which came before them, they must enforce the constitution as the
paramount law, whenever a legislative enactment comes in conflict with it. But the Courts sit, not to review or
revise the legislative act ion, but to enforce the legislative will; and it is only when they find that the Legislature
has failed to keep within the constitutional limits, that they are at liberty to disregard its action; and in doing so,
they only do what every private citizen may do in regard to the act ion of the Courts when the judges assume
to act and to render judgments or decrees without jurisdiction". "In exercising this high authority, the judges
claim no judicial supremacy; they are only the administrators of the public will. If an act of the Legislature is
held void, it is not because the judges have any control over the legislative power, but because the act is
forbidden by the Constitution, and because of the will of the people, which is therein declared, as paramount to
that of their representation expressed in any law.

Nevertheless in declaring a law unconstitutional, a Court must necessarily, cover the same ground which has
already been covered by the legislative judgment, and must indirectly overrule the decision of that co-ordinate
department. The task is, therefore, a delicate one, and only to be entered upon with reluctance and hesitation.
It is a solemn act in any case to declare that that body to whom the people have committed the sovereign
function of making laws for the commonwealth, have deliberately disregarded the limitation imposed upon this
delegated authority, and usurped power which the people have been careful to withhold; and it is almost
equally so when the act is adjudged to be unconstitutional appears to be chargeable rather than to careless
and improvident act ion, or error in judgment, than to intentional disregard of obligations. But it is a duty which
the Courts, in a proper case are not at liberty to decline; and whatever doubts may at one time have been
suggested regarding it, may have long since been removed, if indeed they were ever seriously entertained".28

By reason of the word 'reasonable', thus, our Constitution leaves it to the highest Court of the land (as
in the United States)29 to say where the freedom of the individual ends and the power of the State to
protect the collective interests begins.
To determine what is a 'reasonable' restriction of individual liberty in the collective interest, is, however,
no easy task for the Court. To draw that line is an eternal problem of political society; it is "a recurrent
difficulty in those fields of the law where differences in degree produce ultimate differences in kind." 30
The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of
the right should not be arbitrary or of an excessive nature beyond what is required in the interests of
the public. The word "reasonable" implies intelligible care and deliberation, that is, the choice of a
course which reason dictates.31 In State of Madras v. V.G. Roov, 32 it was observed: "It is important in
this context to bear in mind that the test of reasonableness, wherever prescribed should be applied to
each individual statute impugned, and no abstract standard or general pattern of reasonableness can
be laid down as applicable to all cases. The nature of right alleged to have been infringed, the
underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be
remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all
enter into judicial verdict.33
The phrase "reasonable restriction" connotes that the limitation imposed upon a person in enjoying a
right should not be arbitrary or of an excessive nature beyond what is required in the interest of the
public. Legislation which arbitrarily or excessively invade the right cannot be said to contain the quality
of reasonableness and unless it strikes a proper balance between the freedom guaranteed under Art.
19(1)(g) and the social control permitted by cl. (6) of Art. 19 must be held to be wanting in
reasonableness.34
One of the tests of reasonableness is that should not be excessive. 35 This is otherwise known as the
"proportionality test".36 It means that the restriction imposed in exercise of a fundamental right must be
proportionate to the legitimate aim pursued which is authorised by the limitation clause appended to
the guarantee of that right. Also, the reason given by the authority to justify the restriction must be
50

relevant and sufficient under the limitation clause.37 Arbitrariness being opposed to reasonableness is
an anti-thesis to law. There cannot, however, be any exact definition of arbitrariness, neither can there
be any strait jacket formula therefor.38 A precaution has to be taken to observe that if wide powers are
conferred by statute on any authority then these must be exercised in furtherance of public policy. 39
Since the disappearance of the fetish of "laissez faire" and the emergence of the Welfare State, it is
generally acknowledged that the individual can have no absolute or unfettered right in any matter and
that the welfare of the individual as a member of a collective society, lies on a happy compromise
between the right of an individual and the interests of the society to which he belongs. There is no
protection of the rights themselves unless there is a measure of control and regulation of the rights of
each individual in the interest of all.40 In A.K. Gopalan v. State of Madras, 41 the court said: "Putting
restraints on the wrong doing of one person is really securing the liberty of the intended victim.
Therefore, restraints on liberty should be judged not only subjectively as applied to a few individuals
who come within their operation, but also objectively as securing the liberty of a greater number of
individuals.

6I.  Before applying that yardstick, the law has to be properly construed. If, after
such construction, the law, does not appear to have overstepped the limitations in Cls.
(2)-(6) [as may be relevant to the case], the Court shall have to uphold the law, whether
it likes it or not.42 On the other hand, if the law appears to have transgressed limitations,
the Court cannot save it on the ground that the intentions or motives of the Legislature
were beneficial,43 or that the law is being or would be properly administered, in
consonance with the constitutional requirements.44
III. The grounds of interference by the Court under Cls. (2)-(6) are--

10a)  That there is no relationship between the impugned legislation and any of
the grounds specified in Cls. (2)-(6) or that such relationship is not rational45or
proximate.46
There must be a direct and proximate nexus or reasonable connection between the restriction
imposed and the object which is sought to be achieved. In other words, the court has to see whether
by virtue of the restriction imposed on the right of the citizen, the object of the statute is really fulfilled
or frustrated.47 In that case, the court said that standard of reasonableness is to be judged with due
reference to the subject matter of the legislation in question, economic and social condition in India
and surrounding circumstances. In interpreting constitutional provisions, the court should keep in mind
the social setting of the country so as to show a complete consciousness and deep awareness of the
growing requirements of the society, the increasing needs of the nation, the burning problems of the
day and complex issues facing the people which the Legislature in its wisdom through beneficial
legislation seeks to solve. The judicial approach should be dynamic rather than static, pragmatic and
not pedantic and elastic rather than rigid.

10b)  That the restriction is from both substantive and procedural standpoints, not
according to the personal estimate or philosophy of the Judge, but according to objective
conditions, such as the extent and urgency of the evil and the excessiveness or
otherwise of the remedy provided by the law.48 In exercising this power, the Court has to
balance between the freedom guaranteed and the need for social control. 49

3V.  As will be shown presently, 'reasonableness', like the American concept of


'due process', has a twofold aspect,--substantive and procedural.
The power of the Court to invalidate the offending law is subject to the doctrine of 'severability'. 50
Where a law purports to authorise the imposition of restriction on a fundamental right in a language
"wide enough" to cover restriction both within and without the limit of constitutionally permissible
legislative action affecting such right, it is not possible to uphold it even in so far as it may be applied
within the constitutional limits as it is not "severable". So long as the possibility of it being applied to
51

purposes not sanctioned by the Constitution cannot be meted out, it must be held to be wholly
unconstitutional and void.51

2.  In exercising this power, the Court must not overlook its general limitations 52
--

8i)  The only concern of the Court is to see that the constitutional limitations are
not violated by the State.

8ii)  Where it cannot come to a clear finding that some constitutional limitation
has been transgressed by the Legislature, the Court cannot strike down a statute on the
mere ground that it does not agree with the legislative policy behind the impugned
legislation. The Courts are not at liberty to declare an Act as void because in 'their
opinion' it is opposed to the 'Spirit' supposed to pervade the constitutions but not
expressed in words. "When the fundamental law has not limited either in terms or by
necessary implication, the general powers conferred upon the Legislature, we cannot
declare a limitation under the notion of having discovered something in the "spirit" of the
Constitution, which is not even mentioned in the instrument. 53 Nor can a Court declare a
statute unconstitutional and void, solely on the ground of unjust and oppressive
provisions, or because it is supposed to violate, the natural, social or political rights of
citizens, unless it can be shown that such injustice is prohibited or such rights
guaranteed or protection by the Constitution (Page 164). The learned author says that
the remedy for unwise or oppressive Legislature, within constitutional 'bounds' is by an
appeal to the justice and patriotism of the representatives of the people. If this fails, the
people in their sovereign capacity, can correct the evil; but the Courts cannot assume
their rights. The judiciary can only arrest the execution of a statute when it conflicts with
the Constitution. It cannot run a race of opinion upon points of right, reason and
expediency with the law making power. Any legislative act which does not encroach
upon the powers apportioned to the other department of the Government being prima
facie valid, must be enforced, unless restrictions upon legislative power can be painted
out in the Constitution, and the case shown to come within them (page 168). If the
Courts are not at liberty to declare statutes void because of their apparent injustice or
impolicy, neither can they do so because they appear "to the minds of the judges to
violate fundamental principles of republican Government," unless it shall be found that
the principles are placed beyond legislative encroachment by the Constitution (page
169).54 Restricting the scope of limiting or restricting the exercise of fundamental rights
has widened the scope of judicial review, i.e. the Court has to consider whether the
restriction is reasonable and proportionate.

5iii)  On the other hand, once a constitutional limitation is found to have been
violated, the Court is bound to interfere irrespective of any considerations of
administrative inconvenience that might be caused by the annulment of the legislation.
The Court act as the interpreter of the Fundamental Rights and the Supreme Court acts
as the 'sentinel on the qui vive' in relation to the fundamental rights. It was held that "it is
the function of the Judges, nay their duty, to pronounce upon the validity of laws. If
Courts are deprived of that power, the fundamental rights conferred on the people will
become a mere adornment because rights without remedies are as writ in water. A
controlled constitution will then become uncontrolled." 55 It was observed that "as long as
some Fundamental Rights exist and are part of the Constitution, the power of judicial
review has also to be exercised with a view to see that the guarantees afforded by these
rights are not contravened. Judicial Review has thus become an integral part of our
Constitutional system."
52

2iv)  Whether a constitutional limitation has been violated is a legal question, to


be determined by the established norms of legal interpretation in so far as they require to
be modified in view of the special nature of an organic instrument.
It has been held in the USA that it is the "duty" of the Supreme Court to determine the constitutional
validity of an impugned law because the Constitution is the organic or fundamental law, in
contravention of which no law can be allowed to stand and the final authority to determine whether the
Legislature has act ed within the powers conferred on it by the Constitution rests with the Judiciary. 56 In
Cohens v. Virginia, 57 CHIEF JUSTICE MARSHALL said: "The Judiciary cannot, as the Legislature
may, avoid a measure because it approaches the confines of the Constitution. We cannot pass by it
because it is doubtful, with whatever doubt, with whatever difficulties, a case may be attended, we
must decide it when it is brought before us. We have no more right to decline the exercise of
jurisdiction which is given than to usurp that which is not given. The one or the other would be treason
to the Constitution". Judges are bound by their oath, to support the provisions of the Constitution 58 and
to give effect to its commands irrespective of their view of the wisdom of such provisions. 59 Hence,
where the constitutionality of a statute is properly raised before the court, and it is clear that it
transgresses the authority vested in the Legislature by the Constitutionthe Judges cannot shirk from
their duty to declare the statute unconstitutional. 60 The court should not be deferred from this duty by
consideration such as - (1) That the Executive might take political action in disregard of the court's
judgment; (2) That serious consequences in the economic or social sphere will result from the
declaration of unconstitutionality;61(3) That the invalidation of offending statute might create
administrative inconvenience or render the administration of criminal justice difficult; 62(4) That the
violation of the Constitution is small in its degree or extent. 63 Here, since fundamental rights are
involved, it follows that it is the constitutional duty of the courts to be vigilant and to resist even petty
encroachments upon fundamental rights, privileges and immunities of the people. 64
A fundamental right may be eroded by gradual and stealthy encroachments unless they are resisted at
the earlier stage. American Supreme Court said: "Illegitimate and unconstitutional practices get their
first footing .... by silent approaches and slight deviation from legal modes of procedure. It is the duty
of courts to be watchful for the constitutional rights of the citizen and against any stealthy
encroachment therein.65 In other words, though the court would be slow to interfere unless the
encroachment on individual liberty is "substantial", it has to take into account that the substance of an
individual right may be taken away by bits if the court upholds gradual encroachment by degrees in
separate decision.66 The court has, therefore, always to guard against gradual encroachment and
strike down a restriction as soon as it reaches a certain magnitude." 67

1.  The law under the Indian Constitution, however, differs from the American
on the following respects:

8.  Our Constitution contain express provisions for judicial review, legislation as
to its conformity with the Constitution, unlike as in America, where the Supreme Court
has assumed extensive powers of reviewing legislative act s under cover of the wisely
interpreted 'due process' clause in the fifth and fourteenth amendment. If, when the
Courts of this country face up such an important and none too easy task, it is not only
out of any desire to tilt at Legislature authority in a crusading spirit, but in discharge of a
duty plainly laid upon it by the Constitution. This is specially true 'as regards the
fundamental rights' as to which the Court has been assigned the role of a 'sentinel on
the quiv vive'. While the Court naturally attaches great weight to the legislative judgment,
it cannot desert its own duty to determine finally the constitutionality of an impugned
statute.68
While in the U.S.A., the Court had to derive its power of judicial review over the exercise of the 'Police
Power' from the all-embracing guarantee of 'due process' 69[14th Amendment], in India, the power of
judicial review is imported by the word 'reasonable'70 which qualifies the word 'restriction' in each of the
limitation clauses of Art. 19 itself.
53

7I.  In the U.S.A., as has been already stated the 'Police Power' of the State is a
limitation to the declaration of fundamental rights in the Constitution which is otherwise
absolute. But the Court imposes the limitation of 'Due Process' upon the exercise of the
'Police Power' itself. In Lochner v. N.Y., 71 the Supreme Court said--

"It must, of course, be conceded that there is a 'limit to the valid exercise of the police power by the State ...
Otherwise the Fourteenth Amendment would have no efficacy and the Legislatures of the States would have
unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the
morals, the health or the safety of the people; such legislation would be valid no matter how absolutely without
foundation that claim might be. The claim of the police power would be a mere pretext become another and
delusive name for the supreme sovereignty of the State to be exercised free from constitutional restraint...In
every case that comes before this Court, therefore ... the question necessarily arises: "Is this a fair, reasonable
and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary
interference with the right of the individual to his personal liberty ...".72

It was further held therein "The purpose of the statute must be determined from the natural and legal
effect of the language employed; and whether it is or is not repugnant to the Constitution must be
determined from the natural effect of such statutes when put into operation, and not from their
proclaimed purpose. The court looks beyond the mere letter of the law in such cases ... It seems to us
that the real object and purpose were simply to regulate the hours of labour between the master and
his employers (all being men sui juries), in a private business, not dangerous in any degree to morals
or in any real and substantial degree, to the health of the employees. Under such circumstances the
freedom of the master and employee to contract with each other in relation to their employment, and
in defining the same, cannot be prohibited, or interfered with without violating the Federal
Constitution."
In other words,73

"The Legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private
business, or impose unusual and unnecessary restrictions upon lawful occupations74 ..." If, therefore, a Statute
purporting to have been enacted to protect the public health, the public morals, or the public safety has no
reasonable or substantial relation to those objects, or is a palpable invasion of rights secured by the
fundamental law, it is the duty of the Courts to so adjudge, and thereby give effect to the Constitution." 75

In Allgeyer v. Louisiana, 76 it was held "The 'liberty' mentioned in that amendment (Fourteenth
Amendment) means not only the right of the citizen to be free from the mere physical restraint of his
persons, as by incarceration, but the term is deemed to embrace the right of the citizen to be free to
use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling;
to pursue any livelihood or occupation; and for that purpose to enter into all contracts which may be
proper, necessary and essential to his carrying out to a successful completion, the purpose above
mentioned To deprive the citizen to such a right as herein described without due process of law is
illegal. Such a statute is not due process of law because it prohibits an act which under the federal
constitution that defendants had a right to performs. This does not interfere in any way with the
acknowledged right of the State to enact such legislation in the legitimate exercise of its police or other
powers as it may seem proper. In the exercise of such right, however, care must be taken not to
infringe upon those other rights of the citizen which are protected by the federal constitution." 77 The
police power does not confer on the State an "unrestricted" authority to accomplish whatever in public
may presently desire. It is the governmental power of self-protection and permits reasonable
regulation of rights and property in particular essential to the preservation of the community from
injury, which of course includes general welfare.78 The regulations which are imposed in the exercise
of police power must have (a) a real and substantial relation to the above, and (b) must not be
arbitrary or oppressive.79 In other words, the police power must be exercised subject to constitutional
limitation including Due Process.
The doctrine of 'police power' is not available under Indian Constitution. In India, as a Constitution was
enacted, there is no scope for any power except one which could be derived from any provision of the
54

Constitution coupled with an Entry in one of the three Lists. It was held that no tax could be levied on
the concept of police power.80
It was held that while interpreting the provisions of Indian Constitution, we should go by the plain
words used by the Constitution makers and importing the expression like 'police powers' which is a
term of variables and indefinite connotation in American law can only make the task of interpretation
more difficult. It was observed that the expression 'police power' is alien to the scheme of Indian
Constitution.81
In Dwarakadas Shrinivas v. Sholapur Spg. & Wvg. Co. (known as Sholapur Mills case), JUSTICE
BOSE said: "I deprecate ... the use of doubtful words like "police power, social control, eminent
domain" and the like. I say, doubtful, not because they are devoid of meaning but because they have
different shades of meaning in different countries and because they represent powers which spring
from widely differing sources. In my opinion, it is wrong to assume that these powers are inherent in
the State in India and then to say how far the Constitution regulates and fits in with them. We have to
interpret the plain provisions of the Constitution and it is for jurists and students of law, not for judges,
to see whether our Constitution also provides for these powers and it is for them to determine whether
the shape which they take in India resemble any of the varying forms which they assume in other
countries.
While exercising the power of judicial review, the Courts will examine the underlying purpose of the
restrictions imposed, the nature and urgency of the evil sought to be remedied, the duration and
whether they are proportionate to the needs of such restriction. Although the social philosophy and
values of judges will play an inevitable part with decision making process, the Courts must exercise
responsibility and self-restraint while interfering with legislative judgment. The restriction must no be
arbitrary or excessive and must strike a proper balance between the freedom and the need for social
control. The Court will test the reasonableness, if necessary, not only by considering surrounding
circumstances, but also contemporaneous legislation passed as part of single scheme. 82 While
exercising power of judicial review in the case of total prohibition of a trade, the Court has to balance
the direct impact on the fundamental right against the greater public or social interest sought to be
achieved. Implementation of the directive principles contained in Part IV is within the expression in the
interest of general public.83
It is also held that the court in considering the validity of the impugned law imposing a prohibition on
the carrying on of a business, or profession, attempt an evaluation of its direct and immediate impact
upon the fundamental right of the citizen affected thereby and the larger public interest sought to be
ensured in the light of the object sought to be achieved, the necessity to restrict citizen's freedom, the
inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general
public, the possibility of achieving the object by imposing a less drastic restraint and in the absence of
exceptional situation such as prevalence of a state of emergency - national or local - or the necessity
to maintain essential supplies or the necessity to stop activities inherently dangerous, the existence of
machinery to satisfy the administrative authority that no case for imposing the restriction is made out
or that a less drastic restriction may ensure the object intended to be achieved. 84
Under our Constitution, the word 'reasonable'85 in Cls. (2) to (6) of Art. 19 enables the Court to
determine not only whether the impugned restrictive law is, in fact,86 in the interests of public order,
morality, or security of the State (or any other ground of restriction permitted by the relevant restrictive
clause of Art. 19), but also whether the restriction sought to be imposed by the legislation is
reasonable, having regard to the objective test, viz., whether the restriction has a reasonable relation
to the authorised purpose or is an arbitrary87 abridgement of the freedom guaranteed by the Article
under the cloak of any of the exceptions. In short, under Cls. (2) to (6), the reasonableness is to be
applied as to the necessity for the 'restriction', the means adopted for securing that end, as well as the
procedure to be followed.88
3 Meyer v. Nebraska, (1923) 262 US 390.

4 Lochner v. New York, (1905) 198 US 45; American Communication v. Douds, (1950) 339 US 492; Watkins v. US,
1957 US 178.
55

5 Noble State Bank v. Haskell, (1911) 219 US 104.

6 Meyer v. Nebraska, (1923) 262 US 390.

7 NAA CP v. Alabamn, 357 US 449 (1958).

8 Buckley v. Valeo, 424 US 1 (1976).

9 It is an embodiment of this doctrine that we find in Art. 19 (1)-(2) of the West German Constitution (1948):"l. In so far
as according to this basic law a basic right may be restricted by legislation, or on the basis of law, therefore, law must
apply in general and not solely to an individual case. Furthermore, the law must name the basic right, indicating the
article.2. In no case may a basic right be affected in basic content".

10 De Jonge v. Oregon, (1937) 290 US 353.

11 De Jonge v. Oregon, (1937) 290 US 353. See also Herndon v. Lowry, 301 US 242 (1937).

12 (1986) 475 US 1001.

13 See Brandenburg v. Ohio, (1969) 395 US 444.

14 De Jong v. Oregon, (1937) 290 US 353 (supra).

15 Smith v. Collin, (1978) 439 US 916.

16 Schneider v. State, (1939) 308 US 147 (161).

17 American Communications Assocn. v. Douds, (1950) 339 US 382.

18 Burns v. Brylan, (1924) 264 US 504.

19 A.K. Gopalan v. State of Madras, 1950 SCR 88 (294) DAS J. AIR 1950 SC 27.

20 Chintamanrao v. State of M.P., 1950 SCJ 571 (574) : AIR 1951 SC 118 : 1950 SCR 759.

21 Chintamanrao v. State of M.P., 1950 SCJ 571 (574) : AIR 1951 SC 118 : 1950 SCR 759.

22 See also Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996 : 1963 SCR 885(Supp-1) .

23 Romesh Thappar v. State of Madras, AIR 1950 SC 124 : 1950 SCR 594; see also V.G. Row v. State of Madras, AIR
1962 SC 201 : (1962) 3 SCR 305; Bandhua Mukti Morcha v. UOI, AIR 1984 SC 802 : (1984) 3 SCC 161; Daryao v.
State of UP, AIR 1961 SC 1457 : (1962) 1 SCR 574; Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184;
I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861 : (2007) 2 SCC 1.

24 AIR 1999 SC 188 : (1998) 8 SCC 227.

25 Hanif Quareshi v. State of Bihar, AIR 1958 SC 731 (734-4) : 1959 SCR 629; Santokh Singh v. Delhi Administration,
AIR 1973 SC 1091 : (1973) 1 SCC 659.

26 Daryao v. State of U.P., AIR 1961 SC 1457 : (1962) 1 SCR 574; See also Ramesh Thappar v. State of Madras, AIR
1950 SC 124 : 1950 SCR 594.

27 Prem Chand Garg v. Excise Commissioner U.P., AIR 1963 SC 996 : 1963 SCR 885(Supp. 1) .

28 T.M. Cooley, A Treatise on the Constitutional limitations, 2005 Edn., pp. 159-60. First Indian Reprint 2005, Chapter
VII (Of the circumstances under which a Legislative Enactment may be declare unconstitutional).

29 Thomas v. Collins, (1945) 323 US 516.

30 Harrison v. Schaffner, (1941) 312 US 579 (583).

31 Chintaman Rao v. State of MP, AIR 1951 SC 118 : 1950 SCR 759; Abdul Hakim Quareshi v. State of Bihar, AIR
1961 SC 448 : (1961) 2 SCR 610.

32 AIR 1952 SC 196 : 1952 SCR 607.

33 See also Maneklal Chhotalal v. M.G. Makwana, AIR 1967 SC 1373 : (1967) 3 SCR 65; State of Bihar v. K.K. Misra,
AIR 1971 SC 1667 : (1969) 3 SCR 337; Laxmi v. State of UP, AIR 1968 SC 1323 : (1969) 1 SCR 22; Harakchand v.
56

UOI, AIR 1970 SC 1453 : (1969) 2 SCC 166; Krishnan Kakkanath v. Govt. of Kerala, AIR 1997 SC 128 : (1997) 9 SCC
495; Ramlila Maidan Incident, In re.,(2012) 5 SCC 1 : 2012 Cri LJ 3516.

34 Dwaraka Prasad Laxmi Narain v. State of UP, AIR 1954 SC 224 : 1954 SCR 803.

35 Sunday Times v. UK, (1974) 2 EHRR 524.

36 Handyside v. UK, (1976) ECHR 20(A) ; see also Om Kumar v. UOI, AIR 2000 SC 3689 : (2001) 2 SCC 386.

37 See Sunday Times v. UK, (1974) 2 EHRR 524 (supra).

38 Praveen Singh v. State of Punjab, (2000) 8 SCC 633 : AIR 2001 SC 152.

39 Consumer Action Group v. State of Tamil Nadu, AIR 2000 SC 3060 : (2000) 7 SCC 425.

40 Cox v. New Hampshire, (1941) 312 US 569.

41 AIR 1950 SC 27 : 1950 SCR 88.

42 A.K. Gopalan v. State of Madras, 1950 SCR 88 (294) : AIR 1950 SC 27 DAS, J.

43 Kanti Lal Babulal v. H.C. Patel, (1968) 1 SCR 735 (740) : AIR 1968 SC 445.

44 Kanti Lal Babulal v. H.C. Patel, (1968) 1 SCR 735 (740) : AIR 1968 SC 445.

45 Ghosh v. Joseph, AIR 1963 SC 812 : 1963 Supp (1) SCR 789. See also Supt., Central Prison v. Ram Manohar
Lohia, AIR 1960 SC 633 : (1962) 2 SCR 821; Sodhi Samser v. State of Pepsu, AIR 1954 SC 276 : 1954 CrLJ 735(SC) ;
J.J. Merchant (Dr.) v. Srinath Chaturvedi, AIR 2002 SC 2931 : (2002) 6 SCC 635.

46 Sodhi Shamser v. State of Pepsu, AIR 1954 SC 276 : 1954 CrLJ 735.

47 Pathumma v. State of Kerala, AIR 1978 SC 771 : (1978) 2 SCC 1.

48 State of Madras v. Row, 1952 SCR 597 (607) : AIR 1952 SC 196; Hari Chand v. Mizo Dt . Council,AIR 1967 SC
829 : (1967) 1 SCR 1012.

49 Quareshi v. State of Bihar, (1961) 2 SCR 610 : AIR 1961 SC 448; Kochuni v. State of Madras (I), AIR 1960 SC 1080
: (1960) 3 SCR 887.

50 Chintamanrao v. State of M.P., 1950 SCJ 571 (574) : AIR 1951 SC 118 : 1950 SCR 759.

51 Romesh Thappar v. State of Madras, AIR 1950 SC 124 : 1950 SCR 594; State of MP v. Baldeo Prasad, AIR 1961
SC 293 : (1961) 1 SCR 970; see also Muglar v. Kansas, (1887) 123 US 623; Bates v. Little Rock, (1959) 361 US 516;
N.A.A.C.P. v. Alabama, (1958) 377 US 288.

52 See Author's Tagore Law Lectures on Limited Government & Judicial Review.

53 T.M. Cooley, A Treatise on the Constitutional limitation, 2005 Edn., First Indian Reprint 2005 at p. 171.

54 See A.K. Gopalan v. State of Madras, AIR 1950 SC 27 : 1950 SCR 88 by KAMA C.J. and MAHAJAN J.

55 Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 : (1980) 2 SCC 591. In Kesavananda Bharti v. State of
Kerala, AIR 1973 SC 1461 : (1973) 4 SCC 225.

56 Woods v. Cloyd, (1948) 333 US 138; Baker v. Carr, (1962) 369 US 186.

57 (1821) 2 Cr. 396.

58 US v. Fisher, (1805) 2 Cr. 396.

59 Lake County v. Rollins, (1888) 130 US 238.

60 Carter v. Carter Coal Co., (1935) 298 US 238.

61 See Mc.Pherson v. Blacker, (1892) 146 US 1; Legal Tender Cases,(1871) 12 Wall 457.

62 Williams v. Illinois, (1970) 399 US 235.

63 Looney v. Crane Co., (1917) 247 US 178.


57

64 Jones v. Securities & Exchange Commission, (1935) 298 US 1.

65 Byod v. US, (1886) 116 US 616.

66 Byars v. US, (1927) 273 US 28.

67 Pennsylvania Coal Co. v. Mahon, (1922) 260 US 393.

68 State of Madras v. V.G. Rao, AIR 1952 SC 196 : 1952 SCR 597.

69 Lochner v. N.Y., (1905) 198 US 45. But see Muller v. Oregon, 208 US 412 (1908); Buntenig v. Oregon, 243 US 426
(1917).

70 Khare v. State of Delhi, AIR 1950 SC 211 (217) : 1950 SCR 591; Chintamanrao v. State of M.P., 1950 SCJ. 571
(574) : AIR 1951 SC 118 : 1950 SCR 759.

71 Lochner v. N.Y., (1905) 198 US 45. But see Muller v. Oregon, 208 US 412 (1908); Buntenig v. Oregon, 243 US 426
(1917).

72 Lochner v. N.Y., (1905) 198 US 45. But see Muller v. Oregon, 208 US 412 (1908); Bunting v. Oregan, 243 US 426
(1917).

73 Mugler v. Kansas, (1887) 123 US 623.

74 Kovacs v. Cooper, (1949) 336 US 77.

75 Mugler v. Kansas, (1887) 123 US 623.

76 Allgeyer v. Louisiana, 165 US 578 : 41 L Ed 832 (1897).

77 See also Adair v. U.S., 208 US 161 (1908).

78 Penhandle Pipe Line v. State Highway Commission, (1935) 19 L Ed 1090; see also Berman v. Parker, (1954) 297
US 189; Penn v. NY, (1978) 438 US 104; Treigle v. Acme Homestead Association, (1936) 297 US 189; New York
Savings Bank v. Hahn, (1946) 326 US 230.

79 Treigle v. Acme Homestead Assn., (supra); N.Y. Savings Bank v. Hahn, (supra); Goldblatt v. Hempstead, (1962)
369 US 590.

80 Synthetics and Chemicals Ltd. v. State of U.P., (1990) 1 SCC 109 : AIR 1990 SCR 192.

81 K.K. Kochunni v. State of Madras, (1960) 3 SCR 887 : AIR 1960 SC 1080; But see Charanjit Lal Chaudary v. Union
of India, AIR 1951 SC 41 : 1950 SCR 869.

82 State of Madras v. V. G. Rao, AIR 1952 SC 196; Narendra Kumar v. Union of India, AIR 1960 SC 430; Dwaraka
Prasad Lakshmi Narain v. State of U.P., AIR 1954 SC 224; P.P. Enterprises v. Union of India, AIR 1982 SC 1016; Lord
Krishna Sugar Mills v. Union of India, AIR 1959 SC 1124. See also Sivani v. State of Maharashtra, AIR 1995 SC 1770 :
(1995) 6 SCC 289.

83 Indian Handicrafts Emporium v. Union of India, (2003) 7 SCC 589 : AIR 2003 SC 3240. See also Narendra Kumar v.
UOI, AIR 1960 SC 430 : (1960) 2 SCR 375.

84 Mohammed Faruq v. State of MP, AIR 1970 SC 93 : (1969) 1 SCC 853.

85 It is to be noted that in the original Draft Art. 13, the word 'restriction' was not qualified by the word 'reasonable'. The
word 'reasonable' was introduced at the suggestion of Pandit Thakurdas Bhargava in order that "the Court would be
empowered to examine, whether the restrictions imposed by the Legislature were reasonable or not" [VII C.A.D., pp.
735-740].

86 Romesh Thapar v. State of Madras, 1950 SCR 594 (602-3) : AIR 1950 SC 124.

87 Brushaber v. Union R.R, Co., (1916) 240 US 1; Nebia v. N.Y., (1934) 291 US 502.

88 Chintamanrao v. State of M.P., 1950 SCJ 571 (574) : AIR 1951 SC 118 : 1950 SCR 759.

What constitutes a 'restriction'


58

9.  When a law is impugned as, having imposed a restriction upon a


fundamental right, what the Court has to examine is the substance of the legislation,
without being beguiled by the mere appearance of the legislation. 89 While considering the
scope of 'restriction', the first question to be considered is the sweep of the fundamental
right guaranteed by the relevant Clauses (a) to (g) of Clause (1). If the right canvassed
falls within the sweep and expanse of any of the sub-clauses, then the next question to
be considered is whether the impugned law imposes a reasonable restriction falling
within the scope of clause of Art. 19(2) to (6). But if the right sought to be canvassed
does not fall within the sweep of fundamental right, but is a mere concomitant or adjunct
or expansion or incidence of that right, then the validity thereof is not to be tested by
references to Clauses (2) to (6). The test to be considered is one of reasonableness or
whether it comes into conflict with any provision of the Constitution. Whether the
restriction is reasonable or unreasonable, one question which will have to be decided by
keeping in view the substance of the legislation and not being beguiled by the mere
appearance of the legislation.90 The Legislature cannot disobey the constitutional
prohibitions by employing an indirect method.91 The legislative power being, subject to
the fundamental rights, the Legislature cannot indirectly take away or abridge the
fundamental rights which it cannot do directly.92
It is difficult to define or explain the word "reasonable" with any precision. It will always be dependent
on the fact of a given case with reference to the law which has been enacted to create a restriction on
the right. It is neither possible nor advisable to state any abstract standard or general pattern of
reasonableness as applicable uniformly to all cases. No person can be divested of his fundamental
rights. They are incapable of being taken away or abridged. All that the State can do by exercise of
legislative power is to regulate these rights by imposition of reasonable restriction on them. The
restriction can be imposed only by or under authority of law. It cannot be imposed by exercise of
executive power without any law to back it up. Each restriction must be reasonable and a restriction
must be related to the purpose mentioned in Art. 19(2).
It was held that imposition of restriction is a concept in-built in the enjoyment of fundamental rights as
no right with corresponding reasonable restriction is placed on it. When the restrictions are placed
upon the carrying on of a profession or to ensure that the intent, object or purpose achieved thereby
would be enhancing purity in public life, such object certainly be throttled if there arose a situation of
conflict of interest between private interest and public duty. The principle of private interest giving way
to public interest is a settled canon not only of administrative jurisprudence but also of statutory
interpretation as well.
Part III of the Constitution is the soul of the Constitution. It is not only a charter of the rights that are
available to Indian citizens, but is even completely in consonance with the basic norms of human
rights recognised and accepted all over the world. The fundamental rights are basic rights, but they
are neither uncontrolled nor without restriction. In fact, the Framers of Indian Constitution themselves
spelt out the nature of restriction on such rights. Exceptions apart, normally the restriction or power to
regulate the manner of exercise of a right would not frustrate that right.
While exercising the power to regulate the right, the State has to function openly and in public interest.
The width of the expression "pubic interest" cannot be restricted to a particular concept. It may relate
to a variety of matters including administration of justice. When the court applies the test of "proximate
and direct nexus" with the expression, the court has to keep in mind the fact that the restriction should
be founded on the principle of least invasiveness i.e., the restriction should be imposed in a manner
and to the extent which is unavoidable in a given situation. The court would also take into
consideration whether the anticipated event would or would not be intrinsically dangerous to public
interest. While considering the reasonableness of restriction, the court has to take into consideration
not only Part III of the Constitution, but also Directive Principles of State Policy, under Part IV and
Fundamental Duties under Part IV-A. The Court held that the significance of fundamental principles
stated in Directive Principles has attained greater significance in considering reasonableness. 93 In
Municipal Corpn. of the City of Ahmedabad v. Jan Muhammed Usmanbhai, 94 the court said: "in
59

determining the question (i.e., reasonableness) the court cannot proceed on a general notion of what
is reasonable from the point of view of the person or persons on whom restrictions are imposed. The
right conferred by sub-clause (g) is expressed in general language and if there had been no qualifying
provision like clause (6), the right so conferred would have been absolute. To the persons who have
this right, any restriction will be irksome and may well be regarded by them as unreasonable. But the
question cannot be decided on that basis. What the court has to do is to consider whether the
restrictions imposed are reasonable in the interest of general public".
The test of 'reasonableness' has to be viewed in the context of the issues which faced the Legislature.
In the construction of such laws and in judging their validity, the court must approach the problem from
the point of view of furthering the social interest which is the purpose of legislation to promote. They
are not in those matters functioning in vacuum, but as part of the society which is trying by enacting a
law, to solve the problems and furthering the moral and material progress of the community. 95
An unqualified person cannot be medical R ractitioner. It is a reasonable restriction since its object is
to safeguard public health.96
A restriction imposed in any form has to be reasonable and to that extent it must stand the scrutiny of
judicial review. It cannot be arbitrary or excessive. It must possess a direct and proximate nexus with
the object sought to be achieved. Whenever and wherever any restriction is imposed upon the right to
freedom of speech and expression, it must be within the framework of reasonable restriction
prescribed by law as subscribed by Art. 19(2) of the Constitution. The restriction must be provided by
law in a manner somewhat distinct to the term "due process of law" as contained in Art. 21 of the
Constitution. If the orders passed by the executive are backed by a valid law, the restriction imposed
thereby is likely to withstand the test of reasonableness, which requires it to be free from arbitrariness,
to have a direct nexus to the object and to be proportionate to the right restricted as well as the
requirement of the society. An order under s. 144 CrPC is passed on the strength of a valid law
passed by Parliament. When the order is passed by an executive authority declaring that at a given
place or area more than five persons cannot assemble and hold a public meeting and there is a
complete channel provided for examining the correctness or otherwise of such an order passed under
s. 144 CrPC . Such an order falls within the framework of reasonable restriction. 97
The Directive Principles of State Policy as provided in Part IV of the Constitution are also relevant in
considering whether the restriction on fundamental right is reasonable or not. Any act ion taken by
Government with a view to giving effect to any one or more of Directive Principles would ordinarily,
subject to any constitutional or legal inhibition or other overriding consideration, qualify for being
regarded as reasonable, while an action which is inconsistent with or run counter to a Directive
Principles would incur the reproach of being unreasonable. 98 So also the concept of public interest
must as far as possible receive its orientation from Directive Principles. 99
The necessary motivation and inspiration for legislative prescription of reasonableness of restriction
must be found in the Directive Principles of State Policy and in appropriate matters even in the
citizen's fundamental duties. The court should bear in mind, particularly the Directives. 100
Chapter IV-A of the Constitution deals with fundamental duties. Since the duties enumerated in that
Chapter stand outside Part III, it would appear that they are not legally enforceable against a person,
but they are not absolutely useless. They have got atleast the same worth as the court has imputed to
Directive Principles enumerated in Part IV which are also non-justiciable. It would follow, therefore,
that if a State makes a law or order to prohibit any act or conduct in violation of those duties, the court
would uphold such prohibition as a reasonable restriction on the relevant fundamental right of the
citizen in question. The court would also look at the duties while interpreting an equivalent statute. 1
It signifies that the limitation imposed on a person in enjoyment of the right should not be arbitrary or
of an excessive nature, beyond what is required.2 Permissible restriction on any fundamental right,
even if they can be imposed by duly enacted law, must not be excessive, or in other words, they must
not go beyond what is necessary to achieve the objects of the law under which they are sought to be
imposed. The power to 'impose restriction' on fundamental rights is essentially a power to 'regulate'
the exercise of these rights. In fact, 'regulation' and not 'extinction' of that which is to be regulated is
generally speaking the extent to which permissible restriction may go in order to satisfy the list of
60

reasonableness.3 A punishment cannot be restriction.4 It is reasonable to think that the word


'restriction' to be sufficiently wide to same laws 'inconsistent' with Art. 19(1), or taking away rights
conferred by the article provided this inconsistency or taking away was 'reasonable' in the interests of
the different matters mentioned in Clauses (2) to (6). Therefore, the word 'restriction' covers cases of
'prohibition' also. But in such cases, the Court has to take special care to see that the list of
'reasonableness' is satisfied. The greater the 'restriction', the more the need for strict scrutiny. 5
Restrictions in the nature of prohibition are reasonable, when the trade or business if permitted would
be immoral, injurious or illegal.6 Reasonableness of such restrictions differ from trade to trade. 7
Restriction or regulation includes prohibition and in order to determine whether total prohibition would
be reasonable, the Court has to balance the direct impact on the fundamental right of the citizen as
against greater public or social interest sought to be safe-guarded. The standard of judging
reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a
total prohibition must also satisfy the test that a lesser alternative would be inadequate and whether a
restriction in effect amounts to a total prohibition is a question of fact which shall have to be
determined with regard to the facts and circumstances of the case, the ambit of the right and the effect
of restriction upon the exercise of that right when the prohibition is only with respect to the exercise of
the right referable only to a particular area of activity or relating to a particular matter, there is not total
prohibition.8

1I.  On the other hand, the effects of the legislation are relevant for this purpose
only in so far as they are the direct and inevitable consequences or the effects which could be
said to have been in the contemplation of the Legislature. The possible or remote effects of a
legislation upon any particular fundamental right cannot be said to constitute a restriction
upon the right.9

The direct operation of legislation upon fundamental right forms the real test. It is not the object of the
authority making the law nor the form of act ion that determines the invasion of fundamental right. It is
the effect of the law and of the action upon the rights of citizen which attracts the jurisdiction of court to
grant relief. The true test is whether the effect of the impugned act ion is to take away or abridge
fundamental rights.10 The doctrine of direct and inevitable effect has been described as the doctrine of
intended and real effect or as the test of proximate effect and operation of statute. 11 The tests of object
of legislation and pith and substance of the subject matter are irrelevant to question of infringing the
fundamental rights.12 Earlier Supreme Court decisions "adopting" the above tests can no longer be
regarded as good law.13
If the legislation indirectly or incidentally affects a citizen's right under Art. 19(1), that will not introduce
any infirmity to the validity of the legislation. If by operation of law regarding punitive or preventive
detention, a citizen's right to freedom is affected, the application of Art. 19 will not arise. 14

The Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous
Provisions Act, 1955, has for its object the regulation of the conditions of service of the workmen employed in
the newspaper industry with a view to ameliorating such conditions.

It was argued that as a result of the regulation made in pursuance of the Act, the employers who were
marginally situated might not be able to bear the burden and might have to close down their establishments,
and would thus result in the curtailment of circulation of news. Held, that such consequences were not
inevitable but depended on various factors which may or may not come into play. A possible eventuality of this
type could not be said to have been in the contemplation of the Legislature. The impugned law, therefore,
could not be said to constitute a restriction upon the freedom of speech and expression, though it might be a
restriction upon some other right guaranteed by Art. 19 (1).

3II.  It follows that if a law which imposes a valid restriction upon a fundamental
right incidentally interferes with the exercise of some other right, it cannot be said to
constitute a restriction upon the right.15
61

4V.  A restraint cannot be said to be a 'restriction within the meaning of Art. 19


unless it is 'imposed' by law and which the citizen has no option but to obey. Where the
restraint is self-imposed inasmuch as the operation of the law is attracted by reason of a
contract which the citizen is free to enter into at his own will or choice, he cannot
complain of the unreasonableness of the law. 16
If legislation imposes restrictions under Cls. (2) to (6) of Art. 19, the Court had to consider whether the
restrictions were disproportionate to the situation. If the restrictions imposed are reasonable, but
statute permitted administrative authorities to exercise a discretion, while imposing the restriction, in
individual cases, actions have to be tested on the principle of proportionality, though not so expressly
stated to be so. Under the 'principle of proportionality' the Court will see that the 'Legislature' and the
'administrative authority' maintain a proper balance between the adverse affects which the legislation
or the administration order may have on the rights liberties or interests of the persons keeping in mind
the people which they were intended to serve. The legislation and the administrative authority are,
however, given an area of discretion, or a change of choices, but as to whether the choice made
infringes the rights excessively or not is for the Court to decide. That is what meant by proportionality. 17
Proportionality involves 'balancing test' and 'necessity test'. The balancing test permits scrutiny of
excessive onerous penalties or infringement of right or interest and a manifest imbalance of relevant
consideration. The necessity test requires infringement of human rights to the least restrictive
alternative.18Proportionality requires the judge to decide whether the act ion taken was really needed
as well as whether it was within the range of courses of action that could reasonably be followed.
Principle of proportionality ordains that administrative measures must not be more drastic than is
necessary for attaining the desired result.19 Proportionality as a part of reasonableness is described by
HALSBURY'S LAWSOF ENGLAND thus: "The court quashes exercise of discretionary powers in
which there is not a reasonable relationship between the object sought to be achieved and means
used to that end or where the punishment imposed by administrative bodies or inferior courts are
wholly out of proportion to the relevant misconduct. 20 In Elloy De Freitas v. Permanent Secretary of
Ministry of Agriculture, Fisheries, Land & Housing, 21 it was observed that in deciding lawfulness of a
restriction on a constitutional right, court asks, whether (1) the legislative objective is sufficiently
important to justify limiting a fundamental right; (2) the measures designed to meet the legislative
objectives are rationally connected to it; and (3) the means used to impair the right a freedom are
more than necessary to accomplish the objective. In Brown v. Stott (Procurator Fiscal, Dunfemline, 22 it
was held that the European Court of Human Rights has recognised the need for a fair balance
between the general interest of the community and personal right of individuals, the search of which
balance has been described as inherent in the whole of the Convention. The principle of
proportionality directs attention to the question whether a fair balance has been struck between the
general interest of the community in the realisation of the legitimate aim and the protection of
fundamental rights of the individual.

3.  Where the effect of the law is to curtail or restrain the exercise of a
fundamental law, it must be regarded as a 'restriction' within the purview of Cls. (2)-(6),
even though it may not be restrictive in its terms.23

2I.  Again, the word 'restriction' is wider than the word 'regulation', and may,
therefore, include not only a partial restriction, but also a total prohibition, where the
mischief sought to be remedied by the 'restriction' warrants a total prohibition. 24
It was held that the power to impose 'restriction' on fundamental rights is essentially a power to
'regulate', the exercise of these rights. In fact, 'regulation' and not extinction of that which is to be
regulated is, generally speaking, the extent to which permissible restriction may go in order to satisfy
the list of reasonableness.25
The concept of reasonableness must change with passage of time and absorb current socio-economic
values. The court said that the test of fairness has to be looked into from various angles and common
sense point of view. In that, Doordarshan refused to exhibit a documentary film 'Father, Son and Holy
62

War' on the ground that the film depicted violence. Court said: "The catchword here is "reasonable
restriction" which corresponds to societal norms of decency. In the present matter the documentary
film depicts social vices that are eating into the very foundation of our Constitution. Communal riots,
caste and class issues and violence against women are issues that requires every citizen's attention
for a feasible solution. Only the citizens especially the youth of our nation who are correctly informed
can arrive at a correct solution. This documentary film, in our considered opinion, showcases a real
picture of crime and violence against women and members of various religious groups perpetuated by
politically motivated leaders for political, social and personal gains". 26
89 Express Newspapers v. Union of India, AIR 1958 SC 578 (619) : 1959 SCR 12; Bennett Coleman & Co. Ltd. v.
Union of India, AIR 1973 SC 106 (119-20) : (1972) 2 SCC 788; Sukhnandan v. Union of India, AIR 1982 SC 902 (para
18) : (1982) 2 SCC 150.

90 Dharam Dutt v. Union of India, (2004) 1 SCC 712 : AIR 2004 SC 1295.

91 Dwarkadas v. Sholapur Spinning & Weaving Co., 1954 SCR 674 (683) : AIR 1954 SC 119. See also Bachan Singh
v. State of Punjab, (1980) 2 SCC 684 : AIR 1980 SC 898; Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 :
(1960) 2 SCR 671.

92 Kerala Education Bill,in re,AIR 1958 SC 956 (985) : 1959 SCR 995.

93 See N.K. Bajpai v. UOI, (2012) 4 SCC 653 : AIR 2012 SC 1310.

94 AIR 1986 SC 1205 : (1986) 3 SCC 20.

95 See Jyot Prasad v. UT of Delhi, AIR 1961 SC 1602 : (1962) 2 SCR 125; See also State of Madras v. V.G. Row, AIR
1952 SC 196 : 1952 SCR 597.

96 Rajasthan Pradesh Vaidya Samiti v. UOI, AIR 2010 SC 2221 : (2010) 12 SCC 609; see also Ayurvedic Enlisted
Doctors' Assn. v. State of Maharashtra, (2009) 16 SCC 170 : (2009) 3 SCALE 912.

97 Ramlila Maidan Incident, In re.,(2012) 5 SCC 1 : 2012 Cri LJ 3516.

98 Kasturi Lal Lekshmi Reddy v. State of J&K, AIR 1980 SC 1992 : (1980) 4 SCC 1.

99 Maneka Gandhi v. UOI, AIR 1978 SC 597 : (1978) 1 SCC 248; see also UOI v. Hindustan Development Corpn., AIR
1994 SC 988 : (1993) 4 SCC 499; Papanasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200 : (1995) 1 SCC
501.

100 Fateh Chand Himmatlal v. State of Maharashtra, AIR 1977 SC 1825 : (1977) 2 SCC 670; State of Kerala v. N.M.
Thomas, AIR 1976 SC 490 : (1976) 2 SCC 310; Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 : (1973) 4
SCC 225; State of Bombay v. RMDC, AIR 1957 SC 699 : 1957 SCR 874.

1 Banvari Seva Ashram v. State of UP, AIR 1987 SC 374 : (1986) 4 SCC 753; Rural Litigation and Entitlement Kendra
v. State of UP, AIR 1985 SC 652 : (1985) 2 SCC 431 and AIR 1987 SC 359 : 1986 SCC 517(Supp) ; M.C. Mehta v. UOI
(1988) 1 SCC 47; Animal and Environment Legal Defence Fund v. UOI, AIR 1997 SC 1071 : (1997) 3 SCC 549; State
of UP v. Yamuna Shankar Mishra, (1997) 4 SCC 7 : AIR 1997 SC 3671; State of Punjab v. G.S. Gill, AIR 1997 SC 2324
: (1997) 6 SCC 129.

2 Bishamber Dayal Chandra Mohan v. State of U.P., (1982) 1 SCC 39 : AIR 1982 SC 33.

3 Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106 : (1972) 2 SCC 788.

4 Raghubhir Singh v. Court of Wards, Ajmer, AIR 1953 SC 373 : 1953 SCR 1049.

5 Narendra Kumar v. Union of India, AIR 1960 SC 430 : (1960) 2 SCR 375.

6 Cooverje B. Bhanacha v. Excise Commissioner, Ajmer, AIR 1954 SC 220 : 1954 SCR 873.

7 See also Madhya Bharat Cotton Association v. Union of India, AIR 1954 SC 634; Pratap Pharma (P) Ltd. v. Union of
India, (1997) 5 SCC 87 : AIR 1997 SC 2648.

8 State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534 : AIR 2006 SC 212. See also N.K. Bajpai
v. UOI, (2012) 4 SCC 653 : AIR 2012 SC 1310.
63

9 Express Newspapers v. Union of India, AIR 1958 SC 578 (619) : 1959 SCR 12; Bennett Coleman & Co. Ltd. v. Union
of India, AIR 1973 SC 106 (119-20) : (1972) 2 SCC 788; Sukhnandan v. Union of India, AIR 1982 SC 902 (para 18) :
(1982) 2 SCC 150. See also Sakal Papers v. UOI, AIR 1962 SC 305 : (1962) 3 SCC 842.

10 R.C. Cooper v. UOI, AIR 1970 SC 564 : (1970) 1 SCC 248; Bennett Coleman & Co. v. UOI, AIR 1973 SC 106 :
(1972) 2 SCC 788; Maneka Gandhi v. UOI, AIR 1978 SC 597 : (1978) 1 SCC 248.

11 Maneka Gandhi v. UOI, AIR 1978 SC 597 : (1978) 1 SCC 248 - per JUSTICE BHAGAVATI.

12 Bennett Coleman & Co. v. UOI, AIR 1973 SC 106 : (1972) 2 SCC 788 (supra); Maneka Gandhi v. UOI, (supra).

13 See A.K. Gopalan v. State of Madras, AIR 1950 SC 27 : 1950 SCR 88; Ram Singh v. State of Delhi, AIR 1951 SC
270; Hamdard Dawakhan v. UOI, AIR 1960 SC 554 : (1960) 2 SCR 671; Naresh v. State of Maharashtra, AIR 1967 SC
1 : (1966) 3 SCR 744.

14 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 : 1963 SCR 691(Supp. 2) .

15 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 : (1960) 2 SCR 671.

16 Kharak Singh v. State of U.P., AIR 1963 SC 1295 : (1964) 1 SCR 332.

17 Om Kumar v. Union of India, (2001) 2 SCC 386 : AIR 2000 SC 3689 : 2000 SCR 693(Supp. 4) . See also Teri Oat
Estates (P) Ltd. v. Union Territory of Chandigarh, (2004) 2 SCC 130.

18 See De Smith, Judicial Review of Administrative Law, 1995, pp. 601-605.

19 Wade, Administrative Law, 9th Edn., p. 366.

20 4th Edn. (Re-issue) para 78 - Vol. I.

21 (1999) AC 69.

22 (2001) 2 WLR 817.

23 Yasin v. Town Area Committee, 1952 SCR 572 : AIR 1952 SC 115.

24 Cooverjee v. Excise Commr., 1954 SCR 873 : AIR 1954 SC 220; Collector of Customs v. Sampathu, AIR 1962 SC
316 (325) : (1962) 3 SCR 786; Narendra Kumar v. Union of India, (1960) 2 SCR 375 : AIR 1960 SC 430.

25 Bennett Coleman & Co. Ltd. v. Union of India, (1972) 2 SCC 788 : AIR 1973 SC 106.

26 Director General, Directorate General of Doordarshan v. Anand Patwardhan, AIR 2006 SC 3346 : (2006) 8 SCC
433.

Conditions of a valid restriction on the fundamental rights under


Article 19
In order to be valid, a limitation (under Cls. (2)-(6) of Art. 19) must comply with the following
conditions--

11a)  It must be imposed by law:

11b)  Such law must be made by the 'State'.

7c)  Such law must be valid.

2d)  The restriction must be proximately related to any of the grounds specified in
the limitation Cls. (2)-(6), which may be relevant to the fundamental right in question
(see below).

2e)  The restriction imposed by the law must be 'reasonable' except in cases
coming under sub-Cls. (i)-(ii) of Cl. (6). 27
64

(a) The restriction must be imposed by 'law'

7.  From the expression 'the State making any law' in each of the limitation
Clauses (2) to (6), it is clear that a restriction, in order to be valid, must have been
imposed by a 'law', which is made by the 'State', as defined in Art. 12.

7.  As explained by Art. 13(3)(a), 'law' includes valid subordinate legislation. 28


But without legislative authority, the Executive cannot impose any restriction upon any of
the fundamental rights guaranteed by Art. 19 (1). 29 Any law which may be made under
Clauses 2 to (6) of Art. 19, to regulate the exercise of the right to the freedoms
guaranteed under Art. 19, must be 'law' having statutory force and not a mere executive
or departmental instruction.30 The first pre-requisite for curtailment of freedom of speech
and expression is that restriction imposed must have the authority of law to support it. 31
Law means a valid law - be it a statute, a statutory rule or a statutory notification or
regulation.32 It is only thereafter the question arises whether the restrictions imposed are
reasonable and permissible. Orders or regulations or instructions which purport to
restrict any fundamental right must have been made in exercise of legislative power of
the State and not in exercise of executive power. 33 The regulation under U.P. Police
Regulation which are mostly departmental instruction framed for the guidance of police
officers is not 'law' and the same cannot be based to curtail the fundamental freedom. 34
Clauses (2) to (6) of Art. 19 make no distinction between the law made by the
Legislature and the subordinate legislation for the purpose of placing the restriction on
the exercise of the respective fundamental rights mentioned in Art. 19. Restriction
imposed by the subordinate legislation should not violate any provision of the
Constitution.35
The State undisputably can issue direction which should meet the criteria of 'law' within the meaning
of Art. 13 of the Constitution.36 A circular letter as regards determination of caste of child born from a
non-scheduled caste male through a scheduled caste mother is not 'law', since the same is not issued
by the State in exercise of its powers under Art. 162 or when the same is not issued in terms of Art.
166 &3). In such cases, a circular is in the nature of administrative instruction. 37 Flag code containing
executive instructions is not law and on that basis a citizen cannot be prevented from flying or hoisting
the national flag.38
27 Joseph v. R.B.I., AIR 1962 SC 1371 : 1962 Supp (3) 632.

28 Rashid Ahmed v. Municipal Board, 1950 SCR 566 (571) : AIR 1951 SC 139; Tahir Hussain v. Dt . Board
Muzaffarnagar,AIR 1954 SC 630.

29 Ganapati v. State of Ajmer, (1955) 1 SCR 1065 : AIR 1955 SC 188; Bishun Das v. State of Punjab, AIR 1961 SC
1570 (1574); Bishamber v. State of U.P., AIR 1982 SC 33 (para 27) : (1982) 1 SCC 39.

30 Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615 : AIR 1987 SC 748. See also Krishnan Kakkanath v.
Government of Kerala, AIR 1997 SC 128 : (1997) 9 SCC 495.

31 See Ramlila Maidan Incident, In re.,(2012) 5 SCC 1 : 2012 Cri LJ 3516; Bennett Coleman & Co. v. UOI, AIR 1973
SC 106 : (1972) 2 SCC 788.

32 Kharak Singh v. State of UP, AIR 1963 SC 1295 : (1964) 1 SCR 332.

33 Edward Mills Co. Ltd. v. State of Ajmer, AIR 1955 SC 25 : (1955) 1 SCR 735; Narasingh Pratap Singh v. State of
Orissa, AIR 1964 SC 1793 : (1964) 7 SCR 112.

34 Kharak Singh v. State of U.P., AIR 1963 SC 1295 : (1964) 1 SCR 332.

35 Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574. See also Bishan Das v. State of Punjab, (1962) 2
SCR 69 : AIR 1961 SC 1570; Satwant Singh v. A.P.O., AIR 1967 SC 1836 : (1967) 3 SCR 525.

36 Modern School v. Union of India, (2004) 5 SCC 583 : AIR 2004 SC 2236.

37 Punit Rai v. Dinesh Chaudhary, (2003) 8 SCC 204.


65

38 Union of India v. Naveen Jindal, (2004) 2 SCC 510 : AIR 2004 SC 1559; See also Dwaraka Nath Tiwari v. State of
Bihar, AIR 1959 SC 249; State of M.P. v. Thakur Bharat Singh, (1967) 2 SCR 454 : AIR 1967 SC 1170.

A citizen's fundamental right to establish and manage an educational institution under Art. 19(1)(g)
cannot be deprived on the basis of a policy decision or a circular 'Law' for the purpose of Art. 19(6)
must be one enacted by the Legislature.39It is settled law that an executive order or administrative
instruction in the form of a circular is not a law and the law can be only enacted by competent
Legislature and competent Parliament. The expression "law" within the meaning of Art. 300-A would
mean a Parliamentary Act or an Act of State Legislature or statutory order having the force of law. 40
The Supreme Court has held that the UP Leal Remembrancer's Manual is a set of executive
instructions and is not law.41
The bye-laws of a co-operative society framed under the Co-operative Societies Act do not come
within the scope of 'law'.42
From the language of Clauses (2) to (6), it is clear that the restriction referred to these clauses can be
imposed only by law including intra vires sub-ordinate legislation. But without legislative authority, the
executive cannot impose any restriction upon any of the fundamental rights. 43

4.  The Legislature, however, is not required to make a law solely for the
purpose of imposing the restriction. A restriction may be imposed by a general law, if the
other conditions are satisfied.44
(b) The law must be made by the 'State'
The restrictions referred to in Cls. (2) to (6) of Art. 19 may be imposed by any of the authorities that
come within the comprehensive definition of "the State", in Art. 12, who are competent to make a 'law'
as defined in Art. 13(3)(a).45Once it is acknowledged that fundamental rights are intended as a
limitation against the State (as distinguished from a private individual) it would follow that any authority
which would come under the doctrine of State, act ion would be competent to impose restriction on the
exercise of a fundamental right, provided of course, it satisfies the constitutional test of "proportionality
or reasonableness". The authority to impose limitations on the freedoms is thus wider in the Indian
Constitution than in the United States, where the 'Police Power' is regarded as an attribute of
sovereignty of the States. Even the Federal Government has not got this power since it is supposed
that the States did not delegate this power to the Union at the time of the federal compact. 46 The Union
has, therefore, to derive regulatory powers as an incident of its powers over inter-State and foreign
commerce.47 It is only the State Legislature which can exercise, the police power.
According to learned author T.M. COOLEY:48

"The Government of the United States is one of the enumerated powers, the Government of the States are
possessed of all the general powers of legislation. When a law of the Congress is assailed as void, we look in
the national constitution to see if the grant of specified powers is broad enough to embrace it, but when a State
law is attacked on the same ground, it is presumably valid in any case, and this presumption is a conclusive
one, unless the Constitution of the United States or of the State, we are able to discover that it is prohibited.
We look in the Constitution of the United States for 'grants' of legislative power, but in the Constitution of the
States to ascertain if any 'limitation" have been imposed upon the complete power with which the legislative
department of the State was vested in its creation. Congress can pass no laws but such as the Constitution
authorities either expressly or by clear implication; while State Legislature has jurisdiction of all subjects in
which legislation is not prohibited."

Municipal or other local authorities may exercise it only if it is delegated by the State Legislature. 49
In India, the power of imposing limitations has been conferred not only on the States and the Union, 50
but also on local and other authorities,51 who have the power to make 'laws'52 including within that term
all forms of subordinate legislation, such as 'bye-laws.'53
39 State of Bihar v. Project Uchcha Vidya Sikshak Sangh, (2006) 2 SCC 545.
66

40 Hindustan Times v. State of UP, AIR 2003 SC 250 : (2003) 1 SCC 591; see also UOI v. Col. L.S.N. Murthy, (2012) 1
SCC 718 : (2011) 13 SCALE 67; ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705 : AIR 2003 SC 2629.

41 State of UP v. Rakesh Kumar Keshari, (2011) 5 SCC 341 : AIR 2011 SC 1705; State of UP v. Johri Mal, (2004) 4
SCC 714 : AIR 2004 SC 3800.

42 Co-operative Credit Bank v. Industrial Tribunal, AIR 1970 SC 245. See also Zoroastrian Co-operative Housing
Society Ltd. v. District Registrar Co-operative Societies (Urban), AIR 2005 SC 2306 : (2005) 5 SCC 632.

43 Bishamber Dayal Chandra Mohan v. State of U.P., AIR 1982 SC 33 : (1982) 1 SCC 39; Bishan Das v. State of
Punjab, AIR 1961 SC 1570 : (1962) 2 SCR 69.

44 Babulal v. State of Maharashtra, AIR 1961 SC 884 (888) : (1961) 3 SCR 423.

45 Vrajlal v. State of M.P., AIR 1970 SC 129 (135) : (1969) 2 SCC 248.

46 Thornhill v. Alabama, (1940) 310 US 88.

47 Brooks v. U.S., (1925) 267 US 432; Wickard v. Filburn, (1942) 317 US 111.

48 T.M. Cooley, A Treatise on the Constitutional Limitations, First Indian Reprint 2005, p. 173.

49 Zucht v. King, (1922) 260 US 174.

50 Gopalan v. State of Madras, 1950 SCR 88 (256) : AIR 1950 SC 27.

51 Rashid Ahmed v. Municipal Board, 1950 SCR 566 (571) : AIR 1950 SC 163. See also Peerless v. RBI, (1992) 2
SCC 343.

52 Penhandle Pipe Line v. State Highway Commn., (1935) 19 L Ed 1090 (1097).

53 Rashid Ahmed v. Municipal Board, 1950 SCR 566 (571) : AIR 1950 SC 163. See also Peerless v. RBI, (1992) 2
SCC 343.