Article 19: assembly, association, movement, residence and profession - Constitutional Law I

Check the judgment before you rely on this. Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Learn the pairing. Each freedom in Article 19(1) has its own restriction clause, and the grounds differ. Clause (b) is limited by (3), (c) by (4), (d) and (e) by (5), and (g) by (6). Getting the pairing right is half the answer; students routinely apply the Article 19(2) grounds to all six freedoms, which is wrong.

1. The six freedoms, and what happened to the seventh

Article 19(1) guarantees to all citizens the right:

(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions, and since the Ninety-seventh Amendment, 2011, co-operative societies;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(g) to practise any profession, or to carry on any occupation, trade or business.

Clause (f), the right to acquire, hold and dispose of property, was omitted by the Forty-fourth Amendment, 1978. Property is now a constitutional but not a fundamental right under Article 300-A. The lettering was left unchanged, which is why the list runs (a) to (e) and then (g).

2. Freedom of assembly — 19(1)(b), restricted by 19(3)

The right is to assemble peaceably and without arms; those words are limitations built into the right itself, not external restrictions. An assembly that turns violent, or that is armed, falls outside the guarantee from the start.

Restrictions under clause (3) may be imposed in the interests of the sovereignty and integrity of India or public order. Section 144 of the Code of Criminal Procedure and the provisions on unlawful assembly are the usual statutory examples; their validity turns on whether the order is reasonable and confined to what public order requires.

3. Freedom of association — 19(1)(c), restricted by 19(4)

The right covers forming a company, a trade union, a political party, a society or a co-operative, and it includes the right not to join. Grounds of restriction are sovereignty and integrity, public order, and morality.

An important limit: the right guarantees the formation of an association, not that the association will achieve its objects. So the right to form a trade union does not carry a fundamental right to strike or to collective bargaining; those depend on statute. That proposition is a favourite short-note point.

4. Freedom of movement and residence — 19(1)(d) and (e), restricted by 19(5)

These two are taken together because they share a restriction clause. Movement means movement throughout the territory of India, which underlines that India is one country and there is a single citizenship; it does not include travel abroad, which falls under Article 21.

Restrictions may be imposed in the interests of the general public, or for the protection of the interests of any Scheduled Tribe. The second ground is the constitutional basis for restrictions on entry into and settlement in scheduled and tribal areas, which exist to protect tribal communities from dispossession.

Reasonable restrictions on these freedoms also include the law relating to externment, the movement of persons carrying communicable disease, and restrictions on the movement of habitual offenders, each judged by whether it goes further than the public interest requires.

5. Freedom of profession, occupation, trade or business — 19(1)(g), restricted by 19(6)

The widest of the freedoms in practice, and the one with the widest restriction clause. Under clause (6) the State may impose reasonable restrictions in the interests of the general public, and in particular nothing prevents the State from:

prescribing professional or technical qualifications for practising an occupation; and
carrying on any trade or business itself, or through a corporation owned or controlled by it, to the complete or partial exclusion of citizens — that is, creating a State monopoly.

The monopoly power was added by the First Amendment, 1951, and it is the provision that revived the eclipsed law in Bhikaji Narain Dhakras v. State of Madhya Pradesh, 1955 INSC 49, AIR 1955 SC 781.

Two limits worth stating. There is no fundamental right to carry on a trade that is inherently harmful or immoral — res extra commercium — which is the reasoning usually applied to trade in liquor, in dangerous goods and to gambling. And a total prohibition of a trade is permissible only where nothing short of prohibition would serve the public interest.

6. The test of reasonableness, common to all

The clauses differ in their grounds, but each requires the restriction to be reasonable, and that is a judicial question. The classic statement is in Chintaman Rao v. State of Madhya Pradesh, 1950 INSC 27, AIR 1951 SC 118, where a law empowering a total prohibition on the manufacture of bidis during the agricultural season, in order to secure labour for agriculture, was struck down. The restriction went beyond what the object required, and a law that arbitrarily or excessively invades the right cannot be said to possess the quality of reasonableness.

The factors courts weigh are the nature of the right, the purpose of the restriction, the extent and urgency of the evil sought to be remedied, the proportion of the imposition, and the prevailing conditions. Procedural fairness matters as much as substantive content: an unguided discretion conferred on an official is usually unreasonable for that reason alone.

7. Article 19 and the golden triangle

Since Maneka Gandhi v. Union of India, 1978 INSC 16, (1978) 1 SCC 248, Articles 14, 19 and 21 are read together. A law that deprives a person of personal liberty must also satisfy Article 19 where the freedom in question is affected, and must be reasonable in the Article 14 sense. This ended the earlier view that the Articles occupied separate compartments.

How this is examined

As short notes on individual freedoms — freedom of association, freedom of trade and business, or the position of the right to property after 1978. As an essay: discuss the freedoms guaranteed by Article 19 and the restrictions on them.

For the essay, tabulate mentally: freedom, clause, restriction clause, grounds. Then give Chintaman Rao for reasonableness and Maneka Gandhi for the interrelation. Do not forget to mention that clause (f) was deleted in 1978 and that property now rests in Article 300-A — it is a frequent one-mark point and easily missed.

Now go and read the questions themselves: Constitutional Law I past question papers.