G. Kanchana Devi (B.E., LL.M) has written this article “RIGHT TO FREEDOM UNDER INDIAN CONSTITUTION“
Certain natural rights that are basic to humanity are referred to as Human Rights. These human rights are protected and guaranteed by the Indian Constitution as “Fundamental Rights”. The Right to Freedom is one of the most significant fundamental rights for the citizens of India. The purpose of these rights is to safeguard the principles of liberty in the Indian Constitution’s Preamble. In addition, to ensure the right to dignity of life of every citizen. Part III under Articles (19-22) of the Indian Constitution deals with the Right to Freedom.
These rights are basic freedom of speech and expression, forming an association, personal liberty, and other such rights that are considered to be the functioning of democracy. Any individual who has the legal status of citizenship is entitled to such a right to freedom. An individual’s dignity mentioned in the Preamble reflects the country’s dignified values. The state cannot guarantee that these rights are absolute. As granting them completely and uncontrollably to citizens may cause harm to society as a whole.
A basic component of these rights is justiciable, review, judicial remedy or execution. Social fairness is ensured by the basic right, but during an emergency, the enforcement of such rights may be suspended Though the government has the power to impose a reasonable restriction on fundamental rights. In addition, the judiciary has the power to safeguard such rights from violations by the actions of the government.
Article 3 of UDHR
Article 3 of the Universal Declaration of Human Rights adopted by the UN General Assembly in the year 1948 provides, ‘Everyone has the right of life, liberty and security of person’. India was one of the initial signatories to the International Covenants on Economic, Social, and Cultural Rights and Civil and Political Rights, where most of the fundamental rights were later codified in the International Covenant in 1966.
Right to Freedom: Article 19-22
The guaranteed basic and most significant rights to the citizens of India are given under Part III ‘Fundamental Rights (Right to Freedom)’, Article (19-22) of the Indian Constitution as follows,
Protection of specific rights to all citizens regarding freedom: Article 19
In respect of conviction for offences: Article 20
Protection of life and personal liberty: Article 21
Right to education: Article 21A
Protection against arrest and detention in certain cases.: Article 22
Article 19 of the Indian Constitution
The following rights of freedom shall be granted to all citizens:
- Speech and expression;
- Assemble peaceably without arms;
- Forming Associations or Unions or Co-Operative Societies;
- Freely moving throughout the territory of India;
- Reside and Settle anywhere in the territory of India;
- Omitted by the Constitution (44th Amendment) Act, 1978, s. 2 (w.e.f. 20-6-1979).
- Practising any Profession, or carrying on any Occupation, Trade or Business.
Sub-clause (2-6) deals that the State shall impose reasonable restriction on exercising these rights, if it affects the functioning of existing law or prohibits the state from making any new law in the interests of the supremacy, probity, or the safety of the state, amity with foreign states, social order, civility or ethics, slander or instigation to a breach of law.
The Supreme Court has laid down certain guidelines for establishing the reasonable restrictions
- It is only the court that shall decide finally whether a restriction is reasonable or not;
- The term “reasonable restriction” in Article 19(6) signifies that the state should not impose arbitrary limitations on the rights of a citizen or uncontrollable ones, beyond what is required in the interests of the public.
Romesh Thappar vs. State of Madras
Freedom of speech and expression is essential in an egalitarian nation. In Romesh Thappar vs. the State of Madras, J. Patanjali Sastri observes that the act does not consider minor disorders but for disorders that entail intimidating the peace and serenity of the territory. Thus, the court quashes the order of government by considering it as void due to unconstitutionality.
Secretary General, Supreme Court of India vs Subhash Chandra Agarwal
Secretary General, Supreme Court of India vs Subhash Chandra Agarwal, The right to information development is a part of constitutional law, as set in Article 19(1)(a) of the Constitution. According to a series of Supreme Court decisions, the source of the right to information does not come from the Right to Information Act but from the constitutional guarantees under Article 19(1)(a). Therefore, the Right to Information Act is not a repository of the right to information; its repository is the constitutional rights guaranteed under Article 19(1)(a)
Damyanti v. Union of India
In Damyanti v. Union of India , the Supreme Court held that the Association members have the right to continue the association as voluntarily agreed upon by the persons forming the association.
Rajneesh Kapoor vs Union of India
In Rajneesh Kapoor vs Union of India, they held that the necessity of wearing a helmet is not a restriction of citizen’s free movement. The foremost purpose of wearing a helmet is to save a life.
U.P. Avas Evam Vikas Parishad v. Friends Co-op. Housing Society Ltd
In the case of U.P. Avas Evam Vikas Parishad v. Friends Co-op. Housing Society Ltd., the Supreme Court held that the right to residence under Article 19(1)(e) comprises the right to shelter and construction of houses for that mean.
Bijoy Cotton Mills Ltd. Vs State of Ajmer
Under Article 19(6), the state shall impose reasonable restrictions on the right to carry on any profession, business and trade with conditions that the limits should be reasonable and in the interest of the public. Bijoy Cotton Mills Ltd. Vs the State of Ajmer, stated that the Minimum Wages Act was challenged for being a violation of article 19(g). Court held that the act which imposes the restrictions is reasonable on the ground of the interest of the public.
Article 20: Protection In Respect Of Conviction for Offences
Article 20 deals with the protection of citizens in respect of conviction for offences. The following safeguards are provided to citizens who are accused of crimes.
Ex-post facto law also termed as Retrospective law under sub-clause (1) states that a person cannot be convicted for any act which has not been charged as an offence by any law nor impose a penalty more than that has been inflicted by any law in force at the time of the commission of such act.
Pareed Lubba Muhammed Lubba vs K.K. Neelambaran  held that the default of payment on the due date of Panchayat tax was not an offence, so the defaulter cannot be punishable for the non-payment under a law passed later which made it an offence.
Concept of Double Jeopardy
Double Jeopardy implies that no person is convicted for the same offence more than once.
In Maqbool Hussain vs State of Bombay, the Appellant who brought gold into India without informing, was seized by the Customs Authorities under the Sea Customs Act, 1878. Authorities punished him for committing an offense under the Foreign Exchange Regulations Act, 1973. When he contended that the second prosecution violates Article 20(2) as it was for the same offense, the Court held that the confiscation done by the Customs Authority is not a Court or a Tribunal. Furthermore, it does not represent a judgment of judicial character necessary to take the plea of double jeopardy. Additionally, the Foreign Exchange Regulations Act of 1973 does not restrain him from being prosecuted.
Prohibition against Self-Incrimination
Prohibition against self-incrimination indicates that the State must not compel any person who commits a crime, to bear witness against himself.
Kishore Singh Ravinder Dev vs. State of Rajasthan, states that in the constitution, evidentiary and procedural laws, provisions are elaborately made for safeguarding the rights of an offender and protecting his dignity.
Article 21: Protection of Life And Personal Liberty
Article 21 states that only when the procedure is established by law, a person shall be deprived of their life and personal liberty rights by the state.
The Court has elucidated the right to life and liberty as the ‘Right to – live with dignity, reputation, die, shelter, education, health, speedy trial, free legal aid, against the inhuman treatment by the police, protection against illegal arrest, detentions and custodial death, sleep, privacy, bail, travel abroad, etc.’
Maneka Gandhi vs. Union of India The court held that a law that comes under Article 21 must comply with the obligation under Article 19 as well. Thus, any law procedure for the deprivation of life or liberty of a person should not be unfair, unreasonable or arbitrary.
R. Rajagopal v. State of Tamil Nadu The court held that it was the ‘Right of Privacy’ for the criminal auto Shankar has the right to do whatever he wanted with his personal information. Thus, the magazine can publish the “autobiography” of that criminal.
Re-Ramlila Maidan Incident v. Home Secretary, UOI was the case which led to the initiation of the ‘Right to Sleep’, a distinct part of Fundamental Rights, which safeguards against any measures taken by the State leading to the unlawful deprivation of a person’s sleep.
Common Cause (A Regd. Society) v. Union of India, At present, active euthanasia is illegal in India, just as in most other countries. On the other hand, passive euthanasia is legal but concerns specific guidelines.
Article 21(A): Right to Education
Article 21A indicates the Right to free and compulsory education for children from the age of 6 to 14. This article was added to the Constitution through the 86th Constitutional Amendment Act, 2002, which was previously present in Article 45, Part IV in the Directive Principles of State Policy in the Indian Constitution.
Miss Mohini Jain vs State of Karnataka  The Court held that the capitation fee charges the students is high. However, education ensures a life of dignity. Hence, it declared that the Right to Education is a part of the Fundamental Rights.
Article 22: Protection Against Arrest And Detention In Certain Cases
Article 22 deals with the protection of a person against arrest and detention in some cases. This provision applies to both citizens and non-citizens and provides procedural protection at the time of the arrest. The main purpose of this right is to avoid arbitrary arrests and detention.
Sub-clause (1) to (3) of this provision implies
- A person who has been arrested and detained must be informed of the reason for the arrest and must be given the right to consult an advocate further.
- The arrested person should be produced in front of a judicial magistrate within 24 hours from the time of arrest and should not be detained in custody beyond the period pronounced by a magistrate.
- The above-mentioned protection does not apply to enemy aliens and to a person arrested under preventive detention. There are two types of detention namely, Punitive and Preventive.
Punitive is the detention that occurs after the commission of a crime and trial, whereas, Preventive is the detention that occurs before the commission of a crime, to avoid future crime on the ground of suspicion.
- However, the detention cannot be extended for more than 3 months unless suggested by an Advisory Board, having persons equivalent to the qualification of High Court Judges.
DK Basu v. State of West Bengal is one of the landmark cases where the Supreme Court provides 11 guidelines and conditions for arrests and detentions. These are in addition to constitutional and statutory protection.
In the case of Joginder Kumar v. State of U.P. establishes that an arrested person should know the reason for his arrest and detention, and also must allow to let any other person know the location of his detention.
A.S. Mohammed Rafi v. State of Tamil Nadu
The resolution of advocates is contradicted by professional ethics and violates the right of the accused in the case of A.S. Mohammed Rafi v. State of Tamil Nadu, where the Bar Association of Coimbatore passed a resolution that its members not to defend the policemen who had assaulted some lawyers. Such resolutions are illegal and the court observed that every person has a right to defend in a court of law, nevertheless of the type of accusations.
C.B.I. v. Anupam J. Kulkarni
In the case of C.B.I. v. Anupam J. Kulkarni, held that the magistrate shall permit the detention if he deems it fit and reasonable, but the period of detention cannot be extended more than 15 days. An advisory board has the power to extend such a period with a sufficient report.
The most significant basic fundamental right is the right to freedom, among citizens. It is also equally important to understand that fundamental rights are not absolute and have certainly reasonable restrictions imposed by the state in the interest of security, public order and society as a whole. The right to freedom is the one that possesses the most essential value and is used for peace and prosperity as well as for the growth and development of an individual. Therefore, the right to freedom not only means that one is not restrained by any but also comprises physical or mental pressure in any aspect of one’s life.
Thus, the right to freedom requires effectual and entrenched study and survey of the root cause and accordingly drafting the suitable law which also consists of efficient and essential check and limitation mechanisms to preclude its unjust and unconstitutional use in any scenario.
G. Kanchana Devi B.E., LL.M
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