Introduction :

Right to freedom is most precious, natural and basic fundamental rights in part III of the Constitution. It is the kernel (essence/soul) of democratic legal system. Article 19 which speaks about six fundamental freedoms is

available against violative State action. It is the duty of the State to protect and recognize these rights. However these fundamental freedoms are not absolute. By invoking ‘doctrine of police power’, State is authorized to impose by law reasonable restrictions as may be necessary in the larger interest of the society.

(The police powers doctrine provides that a State possesses an inherent right to regulate in protection of the public interest and does not act wrongfully when, pursuant to this power, it enacts bona fide, non-discriminatory and proportionate regulations in accordance with due process.)

In Chintamani Rao v. State of M.P., (AIR 1951 SC 118), by applying doctrine of police power Supreme Court held that absolute freedom cannot be guaranteed by any modern State. The State is empowered to impose reasonable restrictions on it, provided they are necessary for common good.

Article 19 guarantees to every citizens of India the following six basic, fundamental freedoms.

(1) Freedom of speech and expression;

(2) Freedom to assemble peaceably and without arms;

(3) Freedom to form associations or unions;

(4) Freedom to move freely throughout the territory of India;

(5) Freedom to reside and settle in any part of the territory of

India; and

(6) Freedom to practice any profession, or to carry on any

occupation, trade or business.

These ‘six freedoms’ are however, not absolute.

Patanjali Shastri, J. in A.K. Gopalan’s case, observed “man as a rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled.

The guarantee of each of the above rights is, therefore, restricted by the Constitution itself by conferring upon the State a power to impose by law “reasonable restrictions” as may be necessary in the larger interest of community. The restrictions on these freedoms are provided in clause 2 to 6 of Article 19 of the Constitution.

The restrictions which may be imposed under any of the clauses must be reasonable restriction. The restrictions cannot be arbitrary. Hence a restriction to be constitutionally valid must satisfy the following two tests :

1. The restriction must be for the purposes mentioned in clauses 2 to 6 of Art 19.
2. The restriction must be reasonable restriction.

The restriction must be reasonable from the substantive as well as procedural stand point, in other words we can say that the question is not if the court feels the restriction reasonable but where a normal

reasonable man would regard the restriction to be normal.

Hanif Qureshi v. State of Bihar, [1958] : The question is not of the court feels the restriction to be reasonable but where a normal reasonable man would regard the restriction to be reasonable. It is the reasonableness of the restriction which is to be determined by the court and not the reasonableness of the law. Restriction may also amount to prohibition under certain circumstances.

The rights guaranteed by Article 19 are available only to citizens and not to an alien or a foreigner. `Citizens’ under Article 19 mean only natural persons and not legal persons such as corporations or companies. (TELCO v. State of Bihar, 1965).

But now there appears to a change in the judicial attitude on this point. In Bank nationalization case (R.C. Cooper v. UOI, 1970) and the Newspapers case (1973) the court has held that though a company cannot claim a right under Article 19, but its shareholder can claim the rights guaranteed by Article 19, if by the State action the rights of the company as well as of the shareholders is impaired. The fundamental rights of shareholder as citizens are not lost when they associate to form a company.

Art 19 : Protection of certain rights regarding freedom of speech etc :-  

(1) All citizens shall have the right :

(a) to freedom of speech and expression;

Art 19(2) : Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, 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.

Meaning and scope :- Freedom of speech and expression is indispensable (essential) in a democracy. Freedom of Speech and expression means the right to express one’s own convictions(strong beliefs निश्चित मत) and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one’s ideas through any communicable medium or visible representation, such as, gesture, signs and the like.

                     The expression connotes also publication and thus the freedom of the press is included in this category. Free propagation(प्रसार) of ideas is the necessary objective and this may be done on the platform or through the press. The freedom of propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value.

The `freedom of speech and expression’ includes liberty to propagate not one’s views only. It also includes the right to propagate or publish the views of other people, otherwise this freedom would not include the freedom of the press.

In sum, the fundamental principle involved here is the peoples right to know. Freedom of speech and expression should, therefore, receive generous support from all those who believe in the participation of people in the administration.

In Romesh Thapper v. State of Madras, (1950), Patanjali Sastri, J., rightly observed that, “Freedom of speech and of the Press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible”

Prabhu Dutt v. Union of India, (1982) :- In this case, the chief reporter of Hindustan Times Newspaper was refused by jail authorities to interview Ranga and Billa, the two death sentence convicts under Article 19(1)(a) as they were ready to give interview. The Court directed the Superintendent of the Tihar Jail to give permission. The Supreme Court has held that the right to know news and information regarding administration of the government is included in the freedom of press.

In Usha Uttap v. State of W.B., (1984), Calcutta High Court held that, freedom of speech and expression includes right to paint, sing, dance, to write a poem, literature, etc. and these aspects are also covered by Article 19 (1)(a).

Freedom of Press :- The word expression includes publication. If something is published then it can be communicated to others by the way of circulation. Without circulation the publication has no value. So the freedom of press is also included within the meaning of freedom of speech and expression. The press has every right to express its own ideas. Press can thus exercise this right or freedom by the way of publication and circulation.

Need of freedom of press :-

 (1) Printed matters record the ideas in permanent form while the speech cannot.

(2) However large the audience of speech may be, a press has a larger circulation than spoken words.

(3) Freedom of press is an extension of freedom of speech and

expression.

(4) In every democratic system there should be a free exchange of words, ideas, thought, information, etc. This can be done by press.

(5) Freedom of press is also important to control the corruption of Government and to control the misuse of power.

The Right to Information Act, 2005 entitles every citizen to have access to information controlled by public authorities. Under the Act, it is obligatory upon authority to provide information and maintain records consistent with its operational needs. The object of the Act is to promote openness, transparency and accountability in administration.

In Secretary General, Supreme Court of India v. Subhash Chandra Agarwal, (2010), the Delhi High Court of Delhi held that, The source of right to information does not emanate from Right to Information Act. It is a right that emerges from Constitutional Guarantee under Art. 19(1)(a) as held by Supreme Court in many cases.

In Brij Bhushan v. State of Delhi, (1950), the Chief Commissioner of Delhi issued an order against the petitioner, the printer, publisher and editor of an English weekly called “the organizer”. By this order it was directed that all the information photographs should be submitted by the press to the Commissioner for scrutiny. Supreme Court held that pre-censorship is violative of freedom of speech and expression under Article 19 (1) (a), so it is unconstitutional.

Again in Virendra v. State of Punjab, (1957), The Supreme Court held that prohibition to any newspaper from publication of its own views about the burning topics of the day is a serious encroachment on freedom of speech and expression under Article 19 (1)(a) of the Constitution.

In Bennet Colman and Co. v. Union of India, (1973) In this case the validity of the Newsprint Control order which fixed the maximum number of pages (10pages) which a newspaper could publish was challenged as violative of fundamental rights guaranteed in Art. 19(1)(a) and Art 14. The Court held that the newsprint policy is not reasonable restriction within the ambit of Article 19(2). The newsprint policy abridges petitioners rights of freedom of speech and expression.

Right to vote : A Fundamental Right : Voters have right to know about their candidate : In Union of India v. Association for Democratic Reforms (2002) The Supreme Court of India upheld a High Court order mandating the Election Commission to obtain and disclose to the public background information relating to candidates running for office, including information on their assets, criminal records, and educational background.  The Supreme Court ruled that the right to know about public officials is derived from the constitutional right to freedom of expression under article 19(1)(a).

Commercial Advertisement-Part of freedom of speech and expression :-

In a landmark case Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd, (1995), the litigant – Mahanagar Telephone Nigam Ltd (MTNL) – is a public sector company and a licensee within the meaning of the Indian Telegraph Act, 1885. It has telecommunication services in Delhi and Mumbai. The MTNL used to publish and circulate a telephone directory with white pages but after 1987, it started giving contracts to outsiders to publish this directory. Further, the MTNL allowed the contractors to earn revenue by publishing advertisements in the directory.

The Tata Press Ltd also published the Tata Press Yellow Pages. The MTNL and the Union Government filed a case before the Bombay Civil Court that it has a monopoly in printing and publication of list of telephone subscribers and that Tata Press Ltd. has no right to do the same. It was pointed out that Tata Press was violating the provisions of the Indian Telegraph Act, 1885. The court rejected the MTNL plea and an appeal reached the High Court. The High Court ruled in favor of MTNL, following which Tata Press Ltd challenged the High Court’s decision before the Supreme Court. The Supreme Court ruled that the MTNL has no right to hold back Tata Press Ltd. from publishing ‘Tata Yellow Pages.’

Freedom of speech includes freedom of silence :

In the National Anthem case, (Bijoe Emmanuel v. State of Kerala, 1986), The Supreme Court held that no person can be compelled to sing the National Anthem. In July 1985, three children were expelled from their school after they refused to sing the national anthem of India “Jana Gana Mana.” While they silently stood during the morning assembly of the school, they objected to singing the anthem because it was allegedly against their religious faith of Jehovah, their God. On appeal the Supreme Court held that, they did not commit any offence under the Prevention of Insults to National Honour Act, 1971 because they stood respectfully when the National Anthem was being sung. Accordingly, it was held that, the children’s expulsion from school was in violation of fundamental right under Article 19(1)(a) which also includes the freedom of silence.

M. Hasan v. Government of A.P. (1998) : It has been held that, the denial by jail authorities  to journalist and videographer to interview the condemned prisoners in jail amounts to deprivation of a citizen’s fundamenatal right of freedom of speech and expression under Art 19(1)(g) of the Constitution. Every citizen has a right to propagate his ideas and views on many aspects of prisioner’s life.

New dimension to freedom of speech and expression : Government has no monopoly on electronic media :- In a historic judgment in

Secretary, Ministry of I & B v. Cricket Association of Bengal (1995), The Supreme Court has considerably widened the scope and extent of the right to freedom of speech and expression and held that the Government has no monopoly on electronic media and a citizen has, under Article 19(1)(a), a right to telecast and broadcast to the viewers/listeners through electronic media television and radio any important event. The Government can impose restrictions of such a right only on grounds specified in Cl (2) of Art 19 and not on any other ground. 

In Ramesh Thapar v. State of Madras, (1962),  a weekly journal called as “Cross Roads” was printed and published in Bombay. The Madras Government by an order prohibited the circulation of journal in Madras State. This order was challenged as violative of Article 19 (1) (a). Supreme Court said that the order of the Madras Government is unconstitutional because it takes away the right to circulation, which is available to the press.

Restrictions on Freedom of Speech and Expression :

Clause 2 of Article 19 contains the grounds on which restrictions on freedom of speech and expression can be imposed. State is having every power to impose reasonable restrictions under the following heads :

1. Security of the State : The term security of State refers only to serious forms of publicdisorder such as rebellion, waging war against the State, insurrectionand not ordinary breaches of public order and public safety, e.g.Unlawful assembly.

2. Public Order : This ground was added by the Constitution (First Amendment)Act, 1951. The expression “public order” is synonymous with publicpeace, safety, and tranquility. Any act which leads to the disturbanceof the current life of the community affects public order.

3. Friendly relation with Foreign States : This ground was added by the Constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly State which mayjeopardize(धोक्यात पाडणे) the maintenance of good relations between India and that State.

4. Decency or Morality : The word “decency” connotes the same as lack of obscenity. Theword “obscenity” is identical with the word “indecency”. Any act whichtends to undermine public morals can be prohibited. Sections 292 to294 of the Indian Penal Code, 1860 provides for restriction on freedomof speech and expression in the interest of decency and morality.

5. Contempt of Court : Freedom of speech and expression does not mean a license given to a person to make unfounded and irresponsible allegations againstthe judiciary. Restriction can be imposed on it, if it exceeds the reasonable and fair limit and amounts to contempt of Court.

6. Defamation : A statement which injures a man reputation amounts to defamation.Defamation consists in exposing a man to hatred(द्वेष), ridicule(टिंगल), or contempt.In India Section 499 of the Indian Penal Code, 1860 contains thecriminal law relating to defamation.

7. Incitement to an Offence : This ground was also added by the Constitution (First Amendment)Act, 1951. Obviously, freedom of speech and expression cannot confera license to incite people to commit offence. What constitute incitementwill however have to be determined by the Court with reference to thefacts and circumstances of each case.

8. Integrity and Sovereignty of India :  This ground was added to Article 19(2) by the Constitution(Sixteenth Amendment) Act, 1963. The object is to protect the sovereigntyand integrity of India. Law can impose reasonable restrictions on rightto free speech if it preaches secession(अलगाव) of any part of India from the Union.

In Chintamani Rao v. State of M.P., (1951), The Supreme Court held that absolute freedom cannot be guaranteed by any modern State. The State is empowered to impose reasonable restrictions on it, provided they are necessary for common good.

In Kedar Nath v. State of Bihar, (1952), Court held that Section 124-A of I.P.C., which puts reasonable restrictions in the interest of public order, is saved by Article 19 (2).

In State of Bihar v. Shailababa, (1952), Court said that incitement to commit offences punishable under the Indian Penal Code would generally endanger the security of the State. Hence reasonable restrictions can be imposed on it under clause (2) of Article 19.

Art 19 (1)(b) to assemble peaceably and without arms;

Art 19 (3) Nothing in 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 of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

Freedom Of Assembly :

Article 19(1)(b) guarantees to all citizens of India right “to assemble peaceably and without arms.” The right of assembly includes the right to hold meetings and to take out processions.

This right is however subject to the following restrictions :-

1. The assembly must be peaceable;

2. It must be unarmed;

3. Reasonable restrictions can be imposed under Clause (3) of Article 19.

The right of assembly is implied in the very idea of the democratic

Government. The right of assembly thus includes right to hold meetings and to take out processions. This right, like other individual rights is not absolute but restrictive. The assembly must be non-violent and must not cause any breach of public peace. If the assembly is disorderly or riotous then it is not protected under Article 19(1)(b) and reasonable restrictions may be imposed under clause (3) of Article 19 in the interest of `sovereignty and integrity of India’ or `public order’.

When a lawful assembly becomes unlawful. –

Article 19(1)(b) saves existing Indian law regulating public meetings in the interest of public order if the restrictions are reasonable. If an assembly becomes unlawful it can be dispersed. Chapter VIII of the Indian Penal Code lays down the conditions when an assembly becomes “unlawful”. Under Section 141 of the Indian Penal Code, as assembly of five or more persons becomes an unlawful assembly if the common object of the persons composing assembly is –

(a) to resist the execution of any law or legal process,

(b) to commit any mischief or criminal trespass,

(c) obtaining possession of any property by force,

(d) to compel a person to do what he is not legally bound to do or omit which he is legally entitled to do.

(e) to overawe the Government by means of criminal force or show of criminal force or any public servant in the exercise of his lawful powers.

An assembly which was not unlawsful when assembled may subsequently become unlawful if it becomes violent or is likely to result in disturbance. Under Section 129 of the Criminal Procedure Code, 1973 such an assembly may be ordered to be dispersed if the disturbance to the public peace is reasonably apprehended. Section 151 of the Indian Penal Code makes it an offence not to disperse after a lawful command to disperse has been given.

Section 107 of the Criminal Procedure Code empowers Magistrate to obtain security for keeping the peace from any person who is likely to commit a breach of peace. Section 144, Criminal Procedure Code, 1973 empowers the Magistrate to restrain an assembly, meeting or procession if there is a risk of obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety or a disturbance of the public tranquillity or a riot or any affray.

In Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166 –

It was observed that broadly stated a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is a communication of one’s ideas to other to whom it is intended. There are forms of demonstration which would fall within the freedom guaranteed by Article 19(1)(a) and 19(1)(b) A violent and disorderly demonstration would not obviously be within Article 19(1)(a) or (b). But peaceful and orderly demonstration would fall within the freedoms guaranteed under these clauses.

Art 19 (1)(c) to form associations or unions;

Art 19 (4) 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 of 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.

Article 19(1)(c) guarantees to all citizens the right to form associations or unions. The right to form associations or unions is subject to the restrictions as laid down in sub-clause (4) of the said article. Sub- clause (4) says that nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes or prevents the State from making any law imposing in the interest of 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.

Thus restrictions can be imposed on the exercise of the right to form union and associations on the ground of safeguarding public order or morality and integrity and Sovereignty of India.

The right of association pre-supposes organisation. It is an organisation or permanent relationship between its member in matters of common concern. It thus includes the right to form companies, societies, partnership, trade union and political parties.

The right guaranteed is not merely the right to form association but also to continue with the association as such. The freedom to form association implies also the freedom to form or not to form, to join or not to join an association or union. (Sarya Pal Singh v. State of UP).

In Damayanti v. Union of India, 1971 the validity of Hindi Sahitya Sammelan Act, 1962 was challenged as violative of Article 19(1)(c). The petitioner was a member of an association. The Act changed the composition of the association and introduced new members. The result of this alteration was that the members who voluntarily formed the association were now compelled to act in the association with other members in whose admission they had no say. The Supreme Court held that the Act violated the rights of the original members of the society to form an association guaranteed under Article 19(1)(c). “The right to form an association”, the Court said, “necessarily implies that the persons forming the association have also the right to continue to be associated with only those whom they voluntarily admit in the association. Any law by which members are introduced in the voluntary association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the rights to form an association”.

In O.K.A. Nair v. Union of India, (1976) the appellants were members of the Civil Employees Unions in the various centres of the Defence Establishments. The Commandant declared their unions as unlawful association. The challenged the validity of the impugned order on the ground that the said order was violative of Article 19(1)(c). The Supreme Court held that the civil employees of the defence establishments answer the description of the members of the Armed Forces within the meaning of Article 33, and therefore they are not entitled to form trade unions.

In Balakotiah v. Union of India, (1958) the services of the appellant were terminated under Railway Services Rules for his being a member of communist party and trade unionist. The appellant contended that the termination from service amounted in substance to a denial to him right to form association. It was held that appellant had no doubt had fundamental right to form association but he had no fundamental right to be continued in the Government Services. Therefore order terminating his services was not in contravention of Article 19(1)(c) because the order did not prevent the appellant from continuing in Communist Party and Trade Union.

In Haji Mohd. V. District Board, Malda (1958), a restriction requiring a teacher to take prior permission to engage in political activities represents to be a reasonable restriction. For a teacher is not merely a citizen but he has to be under certain terms and discipline of employment.

The right to form union does not carry with it the right to achieve every object. Thus, the trade unions have no guaranteed right to an effective bargaining or right to strike or right to declare lockout. (All India Bank Employee’s Association v. The National Industries Tribunal , 1962).

Art 19 (1)(d) to move freely throughout the territory of India;

Art 19 (5) Nothing in 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.

Article 19(1)(d) guarantees to all citizens of India the right “to move freely throughout the territory of India”. This right is, however, subject to reasonable restrictions mentioned in clause (5) Article 19 i.e., in the interest of general public or for the protection of the interests of any Scheduled Tribe.

Article 19(1)(d) of the Constitution provides the citizens a right to go wherever they like in Indian territory without any kind of restriction whatsoever. They can move from one state to other and also from one place to another place within any state of India. This freedom cannot be curtailed by any law except within the limits of Article 19(5). In this way Constitution stresses that the entire country is one unit so far the citizens are concerned. The object is to create the sense of nationality in the minds of the citizens.

Grounds of Restrictions. – The state under clause (5) of Article 19 may impose reasonable restrictions on the freedom of movement on two grounds:

(1) In the interest of general public.

(2) For the protection of interest of any Scheduled Tribe.

In N.B. Khare v. State of Delhi (1950), the petitioner was served with an order of externment by the District Magistrate, Delhi to remove himself immediately from Delhi district and not to return there for a period of three months, The order was made under The East Punjab Safety Act, 1949. It was held by the Supreme Court that the mere fact that the order depended on the subjective considerations of the executive did not make the restriction unreasonable because the desirability of passing such an order in emergency has to be left to an officer.

State of M.P. v. Baldeo Prasad (1961) : A law providing for externment of ‘dangerious character’ from a particular locality cannot be called reasonable if it does not specially define as to what is meant by dangerous character as it gives the administrative authority arbitrary power to determine as to whether a citizen is of dangerous character.

In State of U.P. v. Kaushalya, (1964), it was held that the right of movements of prostitutes may be restricted on the grounds of public health and in the interest of public morals.

In Raja Sukhandas v. State of U.P., (1974), the validity of section 3(3) of the U.P. Control of Goondas Act, 1970 was challenged. The Supreme Court, while upholding the validity of the said section of U.P. Goondas Act, observed that the purpose of the Act was to control nefarious activities of the unsocial elements and the Act defined the word Goondas which showed that it covered only such persons who carried on activities which were against the interest of the general public and therefore be prohibited under Clause (5) of Article 19.

In Rajneesh Kapoor v. UOI (2007), it has been held that the requirement of wearing helmet is not a restriction on free movement of citizen. The paramount objective of wearing helmet is to save his life.

Restrictions on the right of movement for the protection of the interest of the Scheduled Tribe is based on the fear that uncontrolled mixing of the tribe with the people of other areas might produce undesirable effect upon the tribal people.

Art. 19 (1)(e) : to reside and settle in any part of the territory of India;

According to Article 19(1)(e), Indian citizens have the right to reside and settle in any part of India. According to clause (5) of Article 19, however, reasonable restrictions can be imposed on this right by law by the state in the general interests of the general public or for the protection of interests of any Scheduled Tribe.

The right of movement and residence go together, for when a person is asked to quit a particular place, both of his rights of movement and residence are affected. Therefore, in matters of restrictions imposed on the citizens regarding movement or residence at a particular place within the country, the same principles are followed, and most of the cases considered under Article 19(1)(d) are also relevant to Article 19(1)(e).

The freedom to reside and settle may be curtailed and suspended during an emergency.

In Ibrahim Wazir v. State of Bombay, (1954), the appellant an Indian citizen came to India without permit and was arrested and deported to Pakistan by the Government under the Influx from Pakistan (Control) Act, 1949. It was held that the order of removal was invalid as coming a citizen to his home country without a permit was not an offence which would justify his expulsion from the country.

In State of Madhya Pradesh v. Bharat Singh, (1967), Section 3(1)(b) of the M.P. Public Security Act, 1959 empowered the State Government to issue an order requiring a person to reside or remain in such a place as may be specified in the order to ask him to leave the place to go to another place selected by the authorities in the interests of security of the state or public order. The Supreme Court held that the impugned Section 3(1)(b) of the Act imposes unreasonable restriction on the right guaranteed by Article 19(1)(e) and therefore, void. The Act did not give any opportunity to be heard to the concerned person about the place where he was asked to reside. Further the section did not indicate the extent of the place, area or its distance from the residence of the person externed.

Art 19 (1)(g) to practice any profession, or to carry on any occupation, trade or business.

Art 19 (6) Nothing in sub-clause (g) 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 of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,-

(i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or

(ii) 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.

Article 19(1)(g) guarantees that all citizens shall have the right “to practise any profession, or to carry on any occupation, trade or business.” However, the right to carry on a profession, trade or business is not unqualified.

It can be restricted and regulated by authority of law. Thus the State can under clause (6) of Article 19 make any law –

(a) imposing reasonable restriction on this right `in the interest of public’, (b) prescribing professional or technical qualifications necessary for practising

(c) enabling the State to carry on any trade or business to the exclusion of citizens wholly or partially.

P.A. Inamdar v. State of Maharashtra (2005) : It has been held that the right to establish an educational institution, for charity or for profit, being an occupation is guaranteed under the the Constitution to all citizens under Art 19 (1)(g) and to minorities under Art. 30.

In Sukumar Mukherjee v. State of W.B., (1993) 3 SCC 724 the appellants challenged the validity of West Bengal State Health Service Act, 1990 on the ground that it imposes unreasonable restriction on their right to carry on any occupation, trade or business under Article 19(1)(g) of the Constitution. Section 9 of the Act prohibited private practice by teacher doctors of W.B. Medical Education Service and not by the doctors of W.B. Health Service.

When these services were separated the doctors were given an option to join either the WBMES or WBHS.

It was held that the restriction imposed by Section 9 is reasonable and in the interest of the general public. The restriction is not on the freedom to practise the medical profession. This applies to those doctors who voluntarily join the Government service. Those who join the government service are bound by the terms and conditions of service and will have no right to private pratice.

In Kerala SMT Feb. v. Kerala T.B.O. Association, (1994) 5 SCC 28 the validity of two orders made by the Government of Kerala under Section 4 of the Kerala Marine Fishing Regulation Act, 1980 was challenged by the owners and operators of mechanised boats as violative of their rights to move freely under Article 19(1)(g) (which includes territorial waters). By these orders bottom trawling was prohibited altogether within the territorial waters for a period of 44 days – monsoon period – in the year 1992, and thus their boats were practically confined to the seashore during this period and not to go to sea. The object of this order was to protect the interests of the larger sections of the fishermen and assuring livelihood of traditional fisherman and also conservation of fish wealth and to avoid possible law and order problem in coastal area and the sea. The Court held that the two orders were valid as they imposed reasonable restrictions in public interest.

In a significant judgment in Dr. Haniraj L. Chuhani v. Bar Council of Maharashtra in Goa, (1996) 3 SCC 342 the Supreme Court has upheld the validity of a rule of State Bar Council of Maharashtra and Goa, which restricted entry of other professionals into legal profession while they are already carrying any other full time profession. The right to practise any profession, or to carry on any occupation, trade or business is not an absolute right but subject to reasonable restrictions specified in claus (6) of Article 19. The appellant who was a doctor had applied for enrolment as an advocate.

The rule made by the Bar Council prevented him from being enrolled as an advocate. The appellant challenged the validity of the rule on the ground that it was violative of his fundamental right under Art 19(1)(g) of the Constitution. The appellant claimed that even though he is medical practitioner, he was entitled to simultaneously carry on the profession as an advocate.

The Supreme Court held that the State Bar Council was justified in framing the impugned rule prohibiting the entry of a professional who insists on carrying on other profession. The Judges observed, “The legal profession required full attention and would not countenance, an advocate riding two horses or more at a time. He has to be a full time advocate or not at all.”

In M/s. B.R. Enterprises v. State of U.P., AIR 1999 SC 1867 the petitioners had challenged the Validity of Lotteries (Regulation) Act, 1988, and the order passed by the State of U.P. in exercise of power vested under Section 5 of the Act banning sale of lottery tickets of other States in the State of Uttar Pradesh as violative of Article 19(1)(g) and Articles 301, 302, and 303 of the Constitution.

The Supreme Court, however, has held that lottery contains an element of chance and therefore cannot be trade or commence but is gambling. Sale of lottery tickets organised by the State can not be construed to be trade and commerce within the meaning of Articles 301 to 303 or trade or business under Article 19(1)(g) of the Constitution.

The Constitution makers could never have conceived to give protection to gambling either under Article 19(1)(g) or as trade under Article 301 of the Constitution. The difference between gambling and trade is that a gambling inherently contains a chance with the no skill, while trade contains skill with no chance what makes lottery a pernicious is its gambling nature even in the state run lotteries the same elements of chance remains with no skill.

Accordingly, the Court held that the ban imposed by the State of Uttar Pradesh on the sale of lotteries is constitutional and not violative of Article 19(1)(g) of the Constitution.

Hawkers Right to trade on pavement of roads : In a judgement of far reaching importance in Sodam Sing v. New Delhi Municcipal Committee,

a five jusge bench of the SC has held that, hawkers have a fundamental right to carry on trade on pavement of roads, but subject to reasonable restriction under Art 19(6). i.e if properly regulated, cannot be denied.