Right to Freedom: Article 19 and Articles 20 and 22

Article 19: six freedoms of citizens

Article 19 guarantees to all citizens six rights:

1. 19(1)(a) freedom of speech and expression;
2. 19(1)(b) to assemble peaceably and without arms;
3. 19(1)(c) to form associations or unions or co-operative societies (co-operatives added by the 97th Amendment, 2011);
4. 19(1)(d) to move freely throughout the territory of India;
5. 19(1)(e) to reside and settle in any part of India;
6. 19(1)(g) to practise any profession, or carry on any occupation, trade or business.

Originally there were seven; 19(1)(f) – the right to acquire, hold and dispose of property – was deleted by the 44th Amendment (1978). These rights are available against the State only, not against private individuals, and only to citizens and not to foreigners or companies (though shareholders may claim them).

Reasonable restrictions (Articles 19(2)–19(6))

Each freedom can be limited only on the grounds listed in the Constitution, and only by a law that is reasonable:

• Speech and expression – 19(2): sovereignty and integrity of India, security of the State, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence. ("Sovereignty and integrity" was added by the 16th Amendment, 1963; "public order" and "friendly relations" by the 1st Amendment, 1951.)
• Assembly – 19(3): sovereignty and integrity of India, public order.
• Association – 19(4): sovereignty and integrity of India, public order, morality.
• Movement and residence – 19(5): interests of the general public and protection of the interests of any Scheduled Tribe – this is why entry to tribal areas can be regulated and inner line permits used.
• Profession – 19(6): interests of the general public; the State may prescribe professional or technical qualifications and may carry on any trade itself, excluding citizens wholly or partly (nationalisation).

What freedom of speech includes – through judgments

• Freedom of the press: although not mentioned, it is part of 19(1)(a) (Romesh Thappar, 1950; Sakal Papers, 1962; Bennett Coleman, 1973).
• Right to information and to know (Raj Narain, 1975; State of UP v Raj Narain).
• Right to fly the national flag as an expression of pride (Naveen Jindal, 2004).
• Right to silence – students who stood respectfully but did not sing the anthem could not be expelled (Bijoe Emmanuel, 1986).
• Internet as a medium of expression and trade – restrictions must be proportionate and orders must be published (Anuradha Bhasin, 2020).
• Online speech: Section 66A of the IT Act, 2000 was struck down as vague and overbroad in Shreya Singhal (2015).
• Commercial advertisements are protected expression (Tata Press, 1995).
• Right to protest peacefully exists, but public places cannot be occupied indefinitely (Amit Sahni – Shaheen Bagh case, 2020).
• Electoral bonds: the scheme was struck down in Association for Democratic Reforms (2024) for violating voters' right to information about political funding under 19(1)(a).

Defamation remains a criminal offence – the Court upheld its constitutionality in Subramanian Swamy (2016). The test for restrictions is now proportionality: the measure must pursue a legitimate aim, be suitable, be the least restrictive option and balance rights against the aim (Modern Dental College, 2016; K.S. Puttaswamy, 2017).

Article 20: protection in respect of conviction for offences

Available to all persons – citizens, foreigners and companies. It cannot be suspended even during a national emergency.

• 20(1) No ex-post-facto criminal law: no one can be convicted for an act that was not an offence when committed, nor given a penalty greater than that prescribed at that time. (Civil and tax laws can be retrospective.)
• 20(2) No double jeopardy: no one can be prosecuted and punished more than once for the same offence – applies to proceedings before a court or judicial tribunal, not departmental proceedings.
• 20(3) No self-incrimination: no accused can be compelled to be a witness against themselves. It covers oral and documentary evidence, but not compulsory production of material objects, thumb impressions, signatures or blood specimens. In Selvi v State of Karnataka (2010) the Court held that narco-analysis, polygraph and brain-mapping tests cannot be done without consent.

Article 22: protection against arrest and detention

Article 22 has two parts.

Ordinary (punitive) arrest – Article 22(1) and (2): a person arrested must be informed of the grounds of arrest; has the right to consult and be defended by a lawyer of their choice; must be produced before the nearest magistrate within 24 hours (excluding journey time); and cannot be detained beyond that without the magistrate's authority. These safeguards do not apply to an enemy alien or a person held under preventive detention. In D.K. Basu (1997) the Court laid down guidelines for arrest and custody to prevent custodial violence.

Preventive detention – Article 22(4)–(7): detention without trial, to prevent a person from doing something in the future. Safeguards:

• Detention cannot exceed three months unless an Advisory Board (of persons qualified to be High Court judges) reports sufficient cause for extension. (The 44th Amendment reduced this to two months, but that provision has not been notified, so three months continues.)
• Grounds must be communicated to the detenu, though facts against public interest need not be disclosed.
• The detenu must be given the earliest opportunity to make a representation.
• Parliament may prescribe circumstances and the maximum period of detention, and the procedure of the Advisory Board.

Parliament and state legislatures can both make preventive detention laws: Parliament exclusively for defence, foreign affairs and security of India; both for security of a state, public order and maintenance of essential supplies. Examples include the National Security Act, 1980 and COFEPOSA, 1974. India is one of the few democracies whose constitution allows preventive detention in peacetime – which is why courts read the safeguards strictly.

Common traps

• Article 19 rights belong to citizens only; Article 20 and 21 to all persons.
• Articles 20 and 21 cannot be suspended during a national emergency (44th Amendment).
• The 24-hour rule of Article 22(2) does not apply to preventive detention.
• Narco-analysis without consent violates Article 20(3) (Selvi, 2010).
• There is no ground of "public interest" in 19(2) – restrictions on speech must fall under the listed grounds.

Practice: Mains question

*"Freedom of speech is not absolute, but restrictions must be the exception." Examine with reference to recent judgments. (250 words)*

Outline. Begin with Article 19(1)(a) as the foundation of democracy – debate, dissent and a free press. Explain the closed list of grounds in 19(2) and the requirement that restrictions be imposed by law and be reasonable. Use judgments: Shreya Singhal (vague laws struck down; distinction between discussion, advocacy and incitement), Anuradha Bhasin (internet shutdowns must be proportionate, temporary and published), Subramanian Swamy (criminal defamation upheld as protecting reputation under Article 21), and ADR 2024 (voters' right to know). Discuss current issues – hate speech, fake news, intermediary rules, sedition (Section 124A IPC was kept in abeyance by the Court in 2022, and the Bharatiya Nyaya Sanhita, 2023 dropped the offence by that name while adding an offence of endangering sovereignty, unity and integrity). Conclude that the proportionality test and procedural safeguards keep restrictions narrow.

Practice: check your understanding

1. *Can a company claim Article 19?* No, only citizens; but shareholders who are citizens may claim it where the company's rights affect theirs.
2. *Is the right to strike a Fundamental Right?* No. The Court has held that there is no fundamental right to strike, though peaceful protest is protected.
3. *Does Article 20(2) bar a departmental inquiry after a criminal trial?* No. Double jeopardy applies only to prosecution and punishment by a court or judicial tribunal.