Article 19 : – Protection of certain rights regarding freedom of speech etc.
(1) All citizens shall have the right
(a) to freedom of speech and expression; (( Right to freedom of speech and expression comprises compendium of rights. Right to information – Right to Know – right to communicate through media including – Right to be silent – Right to freedom of circulation – Right to commercial Advt – Right to fly national flag))
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted (Right to property, 44th Constitutional Amendment Act 1978)
(g) to practise any profession, or to carry on any occupation, trade or business.
Reasonable Restriction : –
Art. 19 (2) to (6) provide for reasonable restrictions on the freedoms enshrined under Art. 19 (a) to (g):
(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. The Eight grounds of restriction which are mentioned in clause (2) of Article 19 are:
Security of the State means the absence of serious and aggravated forms of public disorder, as distinguished from ordinary breach of "public safety" or "public order" which may not involve any danger to the State itself. Thus, security of the State is endangered by crimes of violence intended to overthrow the Government.
"Friendly Relations with Foreign States" the object of this exception to the freedom of speech and expression is to prevent libels against foreign States in the interests of maintaining friendly relations with them.
“Public order” this ground was added by the Constitution (1st Amendment) Act, 1951, in order to meet the situation arising from the Supreme Court’s decision in Romesh Thapar’s case. In this case, it was held that ordinary or local breaches of public order were no grounds for imposing restriction on the freedom of speech and expression guaranteed by the Constitution.
“Decency and Morality” the words “morality and decency” are words of wide meaning. The word “obscenity” of English law is identical with the word “indecency” under the Indian Constitution. The test of obscenity is “whether the tendency of matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences” and into those hands a publication of this sort is likely to fall. Thus a publication is obscene if it tends to produce lascivious thoughts and arouses lustful desire in the minds of substantial numbers of that public into whose hands the book is likely to fall. This test was laid down in an English case of R. v. Hicklin.
Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency and morality.
Contempt of Court in the exercise of his right of freedom of speech and expression, nobody can be allowed to interfere with the due course of justice or to lower the lower the prestige or authority of the court, even in the garb of criticising a judgment.
Defamation: A statement which injures a man’s reputation amounts to defamation. It consists in exposing a man to hatred, ridicule, or contempt. Section 499, Indian Penal Code contains the criminal law relating to defamation.
Incitement to an offence: Offence means any act or omission made punishable by the law for the time being in force. Incitement to an offence, however, is to be determined by the Court with reference to the facts and circumstances of each case.
((Section 124- A: Sedition; Section 120- B: Criminal Conspiracy; Section 34: Common Intention))
Art. 19(2) reasonable restrictions w.r.t. Freedom of speech and expression – Sovereignty and integrity of India, security of state, friendly relationship with foreign states, public order, decency and morality, contempt of court, defamation, incitement to commit offences
Art. 19(3) refers to reasonable restrictions regarding right to assemble peaceably and without arms
Art. 19(2) – sovereignty and integrity of India, public order.
Art. 19(4) refers to reasonable restrictions w.r.t. Art. 19(c) – Sovereignty and integrity of India, Public order and morality.
Art. 19(5) refers to reasonable restrictions w.r.t. Art. 19(d) and (e) – general public or protection of scheduled tribe.
Art. 19(6) refers to reasonable restrictions w.r.t. Art. 19(g) – general public, qualifications and state monopoly.:
(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 practising 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
The power or right to express one’s opinions without censorship, restraint, or legal penalty is known as Freedom of Speech. Unhindered flow of words in an open forum is the essence of free society and needs to be safeguarded at all times. One’s opinions may, therefore, be expressed by words of mouth, in writing, printing, pictures, or any other mode. This freedom includes a person’s right to propagate or publish the views of other people.
Freedom of speech and expression not only allows people to communicate their feelings, ideas, and opinions to others, rather it serves a broader purpose as well. These purposes can be classified into four:
It helps an individual to attain self- fulfillment;
It assists in the discovery of truth;
It strengthens the capacity of an individual to participate in the decision making process;
It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
Freedom of speech and expression of the press lays at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the popular government is possible.
The offence of sedition, in India, is defined under Section 124-A of the Indian Penal Code as, “whoever by words either spoken or written, or by signs, or by visible representation or otherwise brings into hatred or contempt or excite or attempts to excite disaffection towards the government established by law in India shall be punished”.
(GENERAL)
In the case of Kanhaiya Kumar v. State of NCT of Delhi, students of Jawaharlal Nehru University organized an event on the Parliament attack convict Afzal Guru, who was hanged in 2013. The event was a protest through poetry, art, and music against the judicial killing of Afzal Guru. Allegations were made that the students in the protest were heard shouting anti-Indian slogans. A case therefore filed against several students on charges of offence under Sections [124-A(sedition), 120-B(punishment), and 34(common intention)]. The University’s Students Union president Kanhaiya Kumar was arrested after allegations of ‘anti-national’ sloganeering were made against him. Kanhaiya Kumar was released on bail by the Delhi High Court as the police investigation was still at nascent stage, and Kumar’s exact role in the protest was not clear.
(PRESS AND NEWSPAPER)
When it is left to me to decide whether we should have a government without news papers or news papers without government , I should not hesitate to a moment to prefer the latter – Thomas Jefferson
In Brij Bhushan V. State of Delhi, (1950) an order issued under East Punjab Safety Act, directing the editor and publisher of a newspaper “to submit for scrutiny, in duplicate, before publication, till further orders, all communal matters and news and views about Pakistan, including photographs and cartoons”, was struck down by the Supreme Court observing, there can be little doubt that the imposition of pre-censorship on a journal is a restriction on the liberty of the press which is an essential part of the freedom of speech and expression declared by Art. 19(1)(a).
In Romesh Thappar V. State of Madras, (1950) the notification banning the entry into or circulation, sale, or distribution in the State of Madras or any part of it of the newspaper entitled ‘Crossroads’ published at Bombay was held invalid because, “without liberty of circulation, the publication would be of little value”.
Express Newspaper v UOI, 1958 – Pre Censorship + Working journalists – rules laid down – employer said its curtailing the rights – SC- protecting the interest of the society.
Hamdard Dawakhana v. Union of India, 1960 --- The validity of the Drug and Magic Remedies (Objectionable Advertisement) Act, which put restrictions on advertisement of drugs in certain cases and prohibited advertisements of drugs having magical qualities for curing diseases was challenged on the ground that the restriction on advertisement abridged the freedom. The Supreme Court held that an advertisement is no doubt a form of speech but every advertisement was held to be dealing with commerce or trade and not for propagating ideas. Advertisement of prohibited drugs would, therefore, not fall within the scope of Article 19(1) (a).
In Sakal Papers Ltd. v. Union of India,1962 the Daily Newspapers (Price and Control) Order, 1960, which fixed a minimum price and number of pages which a newspaper was entitled to publish was challenged as unconstitutional by the petitioner on the ground that it infringed the liberty of the press. The Court said, the right of freedom of speech and expression cannot be taken away with the object of placing restrictions on the business activity of a citizen. Freedom of speech can only be restricted on the grounds mentioned in clause (2) of Article 19. It cannot, like the freedom to carry on business, be curtailed in the interests of the general public
Bennet Coleman and Co. v. Union of India, 1973 --- In this case, the validity of the Newsprint Control Order was challenged. The Order fixed the maximum number of pages which a newspaper could publish, and this was said to be violative of Article 19(1) (a) of the Indian Constitution. The government raised the contention that fixing the newsprint would help in the growth of small newspapers as well as prevent monopoly in the trade. It also justified its order of reduction of page level on the ground that big dailies devote a very high percentage of space to advertisements, and therefore, the cut in pages will not affect them. The Court held the newsprint policy to be an unreasonable restriction, and observed that the policy abridged the petitioner’s right of freedom of speech and expression. The Court also held that the fixation of page limit will have a twofold effect- first, it will deprive the petitioners of their economic viability, and second, it will restrict the freedom of expression as compulsorily reducing the page limit will lead to reduction of circulation and area of coverage for news and views.
Hence, any restriction on the number of pages or fixation of page level of a newspaper invalid and violative of Article 19(1) (a).
((In Bennett Coleman v. Union of India 1973,106 the court held that the citizens will not lose their rights after becoming shareholders in a company. Even though a company is not a citizen, the share holders, editors, printers who are citizens can enforce their rights through the medium of the company and hence, locus standi can not be denied.))
Indian Express Newspapers v. Union of India,1985 --- In Indian Express Newspaper v. Union of India, the petitioners, publishers, of daily newspapers and periodicals, challenged the imposition of import duty and the levy of auxiliary duty on the newsprint on the ground of infringement of the freedom of press as it imposed a burden beyond capacity of the industry and also affected the circulation of the newspapers and periodicals. The Court held that the press industry was not free from taxation. Taxes have to be levied by reason of public services, facilities and amenities enjoyed by the newsprint industry, the burden of maintaining which falls on the Government. The Government cannot take power itself to pre-judge the nature of contents of newspapers even before they are printed. Imposition of such a tax restriction virtually amounts to pre-censorship of a newspaper which is prohibited by the Constitution. In this case, the Supreme Court speaking about the utility of freedom of press and observed :
“The expression „freedom of the press‟ has not been used in Article 19 but it is comprehended within Article 19(1)(a). The expression means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. There cannot be any interference with that freedom in the name of public interest. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot made responsible judgments. Freedom of the press is the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of the press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate.”
It is, therefore, the primary duty of courts to uphold the freedom of press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate. Similarly, imposition of pre-censorship of a journal, or prohibiting a newspaper from publishing its own views about any burning issue19 is a restriction on the liberty of the press.
In Tata Press Ltd v. MTNL, 1995 Supreme Court held that commercial speech (advertisement) is a part of the freedom of speech and expression granted under Article 19 (1) (a) of the Constitution. The Court, however, made it clear that the commercial advertisements which are deceptive, unfair, misleading and untruthful could be regulated by the Government. There are no geographical limitation on freedom of speech and expression guaranteed by constitution, and this freedom is exercisable not only in India but outside and if State action sets up barriers to its citizens‟ freedom of expression in any country in the world, it would violate Article 19(1) (a) as much as if it inhibited such expression within the country.
(TELEPHONE TAPPING)
People’s Union for Civil Liberties (PUCL) v. Union of India, (1997) In this case, public interest litigation (PIL) was filed under Article 32 of the Indian Constitution by PUCL, against the frequent cases of telephone tapping. The validity of Section 5(2) of The Indian Telegraph Act, 1885 was challenged. It was observed that “occurrence of public emergency” and “in the interest of public safety” if any of these two conditions are not present, the government has no right to exercise its power under the said section. Telephone tapping, therefore, violates Article 19(1) (a) unless it comes within the grounds of reasonable restrictions under Article 19(2).
CALLING FOR BANDH AND HARTAL WHETHER CONSTITUTIONAL
Communist Party of India v Bharat Kumar 1998,:The citizens belonging to Kerala Chamber of Commerce filed a writ petition under Art. 226 before the Kerala High Court. They pleaded that whenever a bandh call is given the public life is paralyzed, they are forced to remain indoor, business is affected and avocation stalled. The Kerala High Court held that no political party has right to call for Bandh on the ground that they are exercising their right under Art. 19 (1) (a) . Call for bandh implies threat and results in the injury of liberty and property. The bandh is unconstitutional. The court noticed the damage that maybe caused because of bandh call. The Supreme Court of India in the appeal confirmed the opinion of Kerala High Court.
In T.K. Ranagarajan v State of Tamilnadu 2003: The government servant has no right to strike.
In B.R. Singh v UOI, 2016, Doctors cannot deny medical treatment on the grounds of protest in accordance with Essential Services Medical Act.
Himmat Lal Shah Vs Commissioner of Police (1973):It dealt with a common citizen’s right to hold public meetings on streets and the extent to which the state could regulate this right. Appellant applied for permission to hold meeting in public place and street but permission denied by commissioner of police without any proper reason – under rule 7 of Bombay Police Act, 1961 commissioner not bound to give reasons for denial – question raised was whether rule 7 invalid for contravention of article 19 – held, rule 7 declared invalid because it was capable of being used arbitrarily to discriminate unreasonably and unjustifiably and to affect the exercise of rights conferred by article 19 (1). *art 19(1)(a) and Art 19(1)(b)
Freedom of Silence- National Anthem Case, Bijoe Emmanuel v. State of Kerala 1986 3 SC 615
Freedom of speech also includes the right to silence. In a case, three children belonging to Jehovah’s (Cristian Community) witnesses were expelled from the school for refusing to sing the national anthem, although they stood respectfully when the same was being sung. They challenged the validity of their expulsion before the Kerala High Court which upheld the expulsion as valid and on the ground that it was their fundamental duty to sing the national anthem. On appeal, the Supreme Court held that the students did not commit any offence under the Prevention of Insults to National Honour Act, 1971. Also, there was no law under which their fundamental right under Article 19(1) (a) could be curtailed.
Accordingly, it was held that the children’s expulsion from the school was a violation of their fundamental right under Article 19(1) (a), which also includes the freedom of silence.
(MOVIES)
K.A. Abbas v. Union of India,1971 --- The case is one of the firsts in which the issue of prior censorship of films under Article 19(2) came into consideration of the Supreme Court of India. Under the Cinematograph Act, 1952, films are divided into two categories- ‘U’ films for unrestricted exhibition, and ‘A’ films that can be shown to adults only. The petitioner’s film was refused the ‘U’(universal) certificate, and he challenged the validity of censorship as violative of his fundamental right of freedom of speech and expression. He contended that no other form of speech and expression was subject to such prior restraint, and therefore, he demanded equality of treatment with such forms. The Court, however, held that motion pictures are able to stir emotions more deeply than any other form of art.
Hence, pre- censorship and classification of films between ‘U’ (universal)and ‘A’(adult) was held to be valid and was justified under Article 19(2) of the Constitution.
S. Rangarajan v. P. Jagjivan Ram (1989) is an important case that deserves close study. A Division(3) Bench of the Madras High Court revoked the U-Certificate (“suitable for all ages”) granted to a Tamil film called Ore Oru Gramathile (“In One Village”), that dealt with the controversy surrounding affirmative action and the problems of caste. This was challenged before a three-judge bench of the Court. The State made two arguments: first, that the depiction of the government’s reservation policy was ‘biased’; and secondly, that the reaction in the State of Tamil Nadu was bound to be “volatile”.
The Court was concerned – as in the prior case of K.A. Abbas v. Union of India – and in light of the clearly contrary decision in Romesh Thappar (discussed here) – to justify the possibility of pre-censorship. In K.A. Abbas, it had been argued that films, in no substantial way, differed from other media of communication – and if, per Romesh Thappar, pre-censorship was unjustified in the case of newspapers, so it must be in the case of film.
In Secretary, Minister of I&B v, Cricket Association of Bengal (CAB),1995 the Supreme Court has given new dimension to freedom of speech and expression that Government has no monopoly on electronic media. The Supreme Court has considerably widened the scope and extent of the right to freedom of speech and expression and held that the Government as no monopoly on electronic media and a citizen has, under Article 19(1) (a), has right to telecast and broadcast to the viewer/listeners through electronic media : Television and Radio any important event. The Government can only impose restrictions on such a right only on grounds specified in clause (2) of Article 19.
In Maneka Gandhi v. Union of India,1992 the Union of India contended that the fundamental rights guaranteed by the Constitution were available only not be protected by the State? The Supreme Court rejected these contentions and held that the right to freedom of speech and expression has no geographical limitations. Freedom of speech and expression carries with it the right to gather information as also to speak and express oneself at home and abroad and to exchange thoughts and ideas with others not only in India but also outside.
Right to fly National Flag
Union of India v Naveen Jindal 2004 : As an expression of allegiance and patriotism one may fly the national flag and it is a fundamental right under under Art. 19 (1) (a) – but it should not be for commercial purpose
Sahara India Real Estate Corporation Ltd. And Others V. Securities And Exchange Board Of India And Another, 2012 --- In the present case the respondents, the Security Exchange Board of India (SEBI) had passed an order against the appellants Sahara India (Sahara) on 18.10.2011 directing them to refund certain amounts which were invested with them under certain Optionally Fully Convertible Bonds (OFCD). An appeal before the Supreme Court was filed challenging the SEBI order. During the pendency of the appeal the Supreme Court passed an order directing Sahara to submit in detail the manner in which they intended to secure their liability to the OFCD holders to SEBI. In pursuant to the court orders negotiations took place between Sahara and SEBI to determine the sufficiency of the security to be provided for the purpose of meeting the liability. On 7.02.2012 the counsel for Sahara sent a personal letter to the counsel of SEBI stating the details of the security. This information submitted by Sahara were subsequently flashed by a television news channel on its news coverage a day prior to the date of hearing before the Supreme Court. On the date of hearing Shri Fali . S. Nariman, senior counsel for the Sahara expressed his anguish before the court for the breach of confidentiality by SEBI for disclosing the confidential business information to media personnel which were submitted by the company for the sole purpose of acting as a security for their financial liabilities, but SEBI had strongly denied that the alleged disclosure of information had taken place at their instance. However, the Supreme Court took note of the gravity of this incident and requested both parties to make an application to the Court for the purpose of laying down important guidelines relating to Sections 2, 3 and 4 of the Contempt of Court Act 1971, that is, right of the press to make fair and accurate reporting of matters which were sub judice (prohibited from public discussion apart from judiciary) in nature but were matters of great public importance and concern, right of individuals to protect their privacy and restrain the publication of their personal and business communications by third parties, and the duty of the court to ensure proper administration of justice by preventing all interferences and obstructions. On the application of Sahara, which was supported by SEBI, guidelines were requested to be issued by the Court relating the legality of public disclosure of documents which were part of court proceedings and the manner and extent to which the print and electronic media could give publicity to such documents.
Postponement Orders were issued by court- Postponement of reporting of, by judicial order –
(1) Purpose of postponement, held, is fair and dispassionate judicial consideration untainted by media hype
(2) Parameters for passing postponement order, held, are
(i) real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice,
(ii) necessity, and
(iii) proportionality – Order of postponement will only be appropriate in cases where the balancing test i.e., Public right to know through media is to be balanced with litigating party’s right to have cool minded judicial verdict, otherwise favours postponement of publication for a limited period.
In Shreya Singhal v. Union of India (AIR 2015 SC 1523), the Supreme Court held that provisions of Section 66A of the Information Technology Act, 2000 which prescribes punishment for sending offensive messages online are in its entirety violative of Article 19 (1) (a) of the Constitution and are not saved under Article 19(2) of the Constitution.
Toolkit Case- Greta Thunberg (Activist)
RIGHT TO INTERNET ACCESS IS A FUNDAMENTAL RIGHT UNDER 19-1(a)
The telephone and the internet are means of expression because a person talking on the phone or communicating through the internet exercises his right to freedom of speech and expression.
Kerala – the most literate state in India, has just declared Internet access as a basic right for every citizen just like food, education and water. The state budget has unveiled a project, which aims to provide internet connections free of cost to 20 lakh poor families and at subsidised rates to others. In Faheema Shirin v State of Kerala (2019) it was held ‘Right to Internet Access’ as a fundamental right. The Court declared that the right to have access to Internet becomes the part of right to education as well as right to privacy under Article 21 of the Constitution of India. Faheema Shirin, an 18-year-old BA student, the court set aside Shirin’s expulsion and hostel rules which denied Internet access to women students at night.
While this is a step in the right direction, the United Nations recommends that every country should make access to internet a Fundamental human right as well. Basic human rights are separate from Fundamental rights, which are granted by the Indian constitution. Today, professional practice, trade and businesses are to a large extent internet-based. Online business is burgeoning(flourishing): tickets for airlines, train journeys, cinema and music shows, museum visits, taxis, doctor visits, hotels. Therefore freedom of trade and commerce through medium of internet is also constitutionally protected under Article 19 (1)(g). The restrictions imposed by the government upon any fundamental right should be in consonance with the mandate of Article 19(2) to (6) and it must stand the test of proportionality because reasonableness demands proportionality. A law or executive order which curtails any of the fundamental rights without appropriate justification will be classified as disproportionate. In order to balance the right to access to the internet and restrictions to be imposed, the Court adopted the line that access to the internet should be the norm and deviations could be allowed in the interest of public order and safety provided they are temporary, proportionate and justified by reasons which are spelt out clearly and are reviewed periodically. Indefinite suspension of net services is impermissible according to the Supreme Court. Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017, framed under Section 7 of the Indian Telegraph Act, 1885, provide for suspension of telecom services and consequently the suspension of internet services in India.
The Supreme Court has declared access to internet a fundamental right. A government cannot deprive the citizens of fundamental rights except under certain conditions explicitly mentioned in the Constitution. The ruling (Anuradha Bhasin vs Union Of India on 10 January, 2020 ) came on hearing of a plea in connection with Internet blockade for more than 150 days) in Jammu and Kashmir since August 5, 2019 in the view of revoking of Article 370 in the Union Territory. Indian constitution makes the right to freedom of speech and expression a fundamental right for all citizens. It has been listed in Article 19 (1)(a) of the Constitution. The Supreme Court has on many occasions expanded the scope of the right to freedom of speech and expression.
The latest expansion makes the constitutional provision keep pace with innovation of technology. Internet is the primary source of information to millions of Indian citizens. A non-citizen can avail the same benefits but cannot claim it as her fundamental right.
The Supreme Court said repetitive Section 144 orders were an abuse of power. The prohibitory orders issued under Section 144, CrPC, cannot be used indefinitely to suppress freedom of speech and expression. Such orders can’t be used to suppress legitimate expression, and their use needs to be justified by concerns of immediate violence, it said.The right to access Internet is a fundamental right under Article 19 of the Constitution, and total shutdowns are “drastic” measures that should be considered only when “absolutely necessary“, the Supreme Court said.
“We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.”
ARTICLE 19(1)(g)
Chintaman Rao Ram Krishna v/s State of Madhya Pradesh,1951 --- These two applications for enforcement of the fundamental right guaranteed under article 19 (1) (g) of the Constitution of India have been made by a proprietor and an employee respectively of a bidi manufacturing concern of District Sagar (State of Madhya Pradesh). It is contended that the law in force in the State authorizing it to prohibit the manufacture of bidis in certain villages including the one wherein the applicants reside is inconsistent with the provisions of Part III of the Constitution and is consequently void.
The Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural Purposes) Act, LXIV of 1948, was passed on 19th October 1948 and was the law in force in the State at the commencement of the Constitution. Sections 3 and 4 of the Act are in these terms;-
3. The Deputy Commissioner may by notification fix a period to be an agricultural season with respect to such villages as may be specified therein. (bidi ke paude is season mein hi uga skte ho inke according) 4. (1) The Deputy Commissioner may, by general order which shall extend to such villages as he may specify, prohibit the manufacture of bidis during the agricultural season.
(2) No person residing in a village specified in such order shall during the agricultural season engage himself in the manufacture of bidis, and no manufacturer shall during the said season employ any person for the manufacture of bidis.”
The statute in substance and effect suspends altogether the right mentioned in article 19 (1) (g) during the agricultural seasons and such suspension may lead to such dislocation of the industry as to prove its ultimate ruin. The object of the statute is to provide measures for the supply of adequate labour for agricultural purposes in bidi manufacturing areas of the Province and it could well be achieved by legislation restraining the employment of agricultural labour in the manufacture of bidis during the agricultural season. Even in point of time a restriction may well have been reasonable if it amounted to a regulation of the hours of work in the business. Such legislation though it would limit the field for recruiting persons for the manufacture of bidis and regulate the hours of the working of the industry, would not have amounted to a complete stoppage of the business of manufacture and might well have been within the ambit of clause (6). (HELD-)The effect of the provisions of the Act, however, has no reasonable relation to the object in view but is so drastic in scope that it goes much in excess of that object. Not only are the provisions of the statute in excess of the requirements of the case but the language employed prohibits a manufacturer of bidis from employing any person m his business, no matter wherever that person may be residing. In other words, a manufacturer of bidis residing in this area cannot import labour from neighbouring places in the district or province or from outside the province. Such a prohibition on the face of it is of an arbitrary nature inasmuch as it has no relation whatsoever to the object which the legislation seeks to achieve and as such cannot be said to be a reasonable restriction on the exercise of the right. Further the statute seeks to prohibit all persons residing in the notified villages during the agricultural season from engaging themselves in the manufacture of bidis. It cannot be denied that there would be a number of infirm and disabled persons, a number of children, old women and petty shop keepers residing in these villages who are incapable of being used for agricultural labour. All such persons are prohibited by law from engaging themselves in the manufacture of bidis; and are thus being deprived of earning their livelihood.
The result therefore is that the orders issued by the Deputy Commissioner on 13th June 1950 and 26th September 1950 are void, in operative and ineffective. We therefore direct the respondents not to enforce the provisions contained in section 4 of the Act against the petitioners in any manner whatsoever. The petitioners will have their costs of these proceedings in the two petitions.
(Excel Wear v. UOI, 1978- Right to carry on business includes right to close down a business. Private garment manufacturing unit, excel wear – labour problem (high prices or shortage) – losses for a long time – they wanted wind up, under sec 25 (o) Industrial disputes act, 1955, a factory could only be closed down with a prior permission of state govt. held arbitrary as govt refused without any reasonable cause)
(Olga Tellis v. Bombay Municipal Corporation, 1985– Objection was raised by the pavement dwellers that they were deprived of working by not letting them set up their carts and continue their profession, it would violate their Fundamental Rights under Art. 19(1)(g). The contention was raised under 19(1)(g). It was held that every citizen under Art. 19(1)(g) has a right to practice their profession, occupation, trade, business but under a reas restriction that it doesn’t hinder the interest of general public. Art. 19(6))
LAWS ON COW SLAUGHTERING/BEEF BANS
EXTRA for teacher Criteria for granting slaughter permission vary between different states, but usually involve animals being over a certain age, or considered “permanently incapacitated” due to some injury, deformity or other cause, or considered uneconomical for purposes of work, breeding, draught, or milk. Ex: Two states, Assam and West Bengal, both of which have large Muslim populations, permit the slaughter of all cattle on the issuance of “fit-for-slaughter” certificate.
The regulation of cow slaughter is seen as a state matter under India’s Constitution. The list of areas for which the states are responsible, contained in the seventh schedule of the Constitution, includes, as Entry 15, “preservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice.” Various state-level laws restricting or prohibiting cattle slaughter have been justified based on a number of Directive Principles of State Policy contained in the Constitution. These are “guidelines for the government while framing laws and polices” and are non-justiciable (cannot be enforced in the court). For example, article 48 states that:
The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.
Constitutional justifications for cattle protection are also made on the basis of animal and environmental protection policy additions made to the Constitution. Articles 48-A and 51-A were introduced pursuant to the Constitution (Forty-second Amendment) Act, 1976. Article 48-A stipulates that the “State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.” This is categorized as a directive principle of state policy. Article 51-A(g) (also non justiciable) makes it a fundamental duty of every citizen to “protect and improve the natural environment, including forests, lakes, rivers and wild life, and to have compassion for living creatures.”
The controversy resurfaced in the headlines when on March 2, 2015, the President of India, Pranab Mukherjee, gave his assent to the Maharashtra Animal Preservation (Amendment) Act, 1995, nearly 19 years after the amending legislation was passed by the BJP-Shiv Sena led Maharashtra State Assembly in 1995. The law amends the Maharashtra Animal Preservation Act, 1976, to extend the complete ban on the slaughter of cows to bulls and bullocks. Prior to the amendment, bulls and bullocks were considered “scheduled animals,” meaning that approval for slaughter could be granted if a fit-for-slaughter certificate is issued for the animal. Authorities were only permitted to grant such a certificate if the animal is not considered economical for the purposes of agriculture, draught, breeding, or providing milk or bearing offspring. The term of imprisonment for contravening the ban was also raised from six months to five years, and the possible fine raised from 1,000 rupees to 10,000 rupees (about US$152). Additional criminal provisions were inserted into the Act to prohibit the transport, export, sale, purchase, or disposal of cows, bulls, and bullocks for the purposes of slaughter. A new section 5D was also added to prohibit the possession of the flesh of animals slaughtered in contravention of the Act. But consented to give citizens a reasonable amount of time to dispose of meats that are subject of the ban.
Section 2 – Amendment of long title of Mah. IX of 1977 In the Maharashtra Animal Preservation Act, 1976 (Mah. IX of 1977) (hereinafter referred to as ” the principal Act”), in the long title, for the portion beginning with the words “of cows” and ending with the words “agricultural purposes”, the following shall be substituted, namely: “and preservation of cows, bulls and bullocks useful for milch, breeding, draught or agricultural purposes and for restriction on slaughter for the preservation of certain other animals suitable for the said purposes”.
5A. Prohibition on transport and export of cow, bull or bullock for slaughter. –
5B. Prohibition on sale, purchase, disposal in any other manner of cow, bull or bullock. –
5C. Prohibition on possession of flesh of cow bull or bullock. –
Prohibition on possession of flesh of cow, bull or bullock slaughtered outside the State of Maharashtra.
On March 16, 2015, the state assembly of Haryana passed new legislation, which the State Animal Husbandry and Dairy Development Minister characterized as the most stringent in the country. According to news reports, the law bans cow slaughter, the sale of beef and beef products “except for medicinal purposes,” and the export of cows without an authorized permit. The punishment for cow slaughter is three to 10 years’ imprisonment and a fine of up to 100,000 rupees.
In a 1958 case, Mohd. Hanif Qureshi v. State of Bihar (1958) the Supreme Court of India was called upon to decide whether the cattle slaughter laws of Bihar, Uttar Pradesh, and Madhya Pradesh infringed on the fundamental rights of the petitioners guaranteed under articles 14, 19(1)(g) and 25 of India’s Constitution. The petitioners were members of the Muslim Quraishi Community who were mainly engaged in the butcher’s trade. The Court found that the “country is in short supply of milch cattle, breeding bulls and working bullocks” and therefore a “total ban on the slaughter of these which are essential to the national economy for the supply of milk, agricultural working power and manure” is a reasonable restriction to impose in the interests of the general public. The Court also held that “a total ban on the slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male and female” is reasonable and in “consonance with the directive principles laid down in Art. 48.” However, the Court held that a total ban on the slaughter of “useless cattle,” which “involves a wasteful drain on the nation’s cattle feed which is itself in short supply and which would deprive the useful cattle of much needed nourishment, cannot be justified as being in the interests of the general public.” Therefore, the Court held that a total ban on the slaughter of bulls, bullocks and she-buffaloes after they had ceased to be useful was invalid under the Constitution. In response to this decision, certain amendments were made to the cattle slaughter laws of Bihar, Uttar Pradesh, and Madhya Pradesh, which allowed the slaughter of bulls, bullocks and she-buffaloes on the issuance of a fit for slaughter certificate only if they were above the age of 20 or 25 and if they were “permanently unfit” or “useless.”
The Court also held that restrictions on the slaughter of cattle did not infringe on the petitioners’ freedom to practice their religion under article 25 since it had not been established that the sacrifice of cows on the religious holiday of Bakr-Eid is of an obligatory or essential part of the Islamic religion as opposed to being optional.
In 2005, however, in State of Gujarat vs Mirzapur Moti Kureshi Kassab, (2005) a seven-judge constitutional bench of the Supreme Court partially overturned the long line of its own precedents it had established since 1958 in Mohd. Hanif Qureshi. The Court upheld an amendment to the Bombay Animal Preservation Act, 1954, the effect of which was to impose a total ban on the slaughter of bulls and bullocks of any age (previously there was only a partial ban on the slaughter of bulls and bullocks that were under the age of 16 years).
The Court argued that environmental principles and duties in articles 48-A and 51-A(g) of the Constitution, which were introduced in 1976, were not available to the bench in Mohd. Hanif Qureshi. A cow does not lose its protection if it ceases to perform its particular function or reaches a certain age. The Court goes on to state that this argument is “further strengthened by Article 51A(g) of the Constitution” which introduces the fundamental duty that the “State and every citizen of India must have compassion for living creatures. Here the Court made reference to changes in the factual situation in the country to justify the law.
The Court held that:
1. Fodder shortage is no longer a problem and that cow’s progeny can be “fed and maintained without causing any wasteful drain on the feed requisite for active milch, breeding and draught cattle.” (Id. p. 47);
2. The limitation imposed on the right contained in article 19 should not be characterized as a total prohibition since only a part of the petitioner’s business is affected in that they are “not prohibited from slaughtering animals other than the cattle belonging to the cow progeny.” (Id. p. 48);
3. Food security was a greater concern in the past but this is no longer the case; and
4. Bulls and bullocks remain useful past a certain age, since urine and dung are tremendously useful for the production of manure and biogas, particularly as renewable sources of energy.
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