The doctrine of ultra vires is frequently used; in the constitutional law, administrative law, and corporate law. It is applied in cases where the government bodies exceed their limit; or when the subordinate legislation crosses their legal authority. Also, in companies when legal persons go beyond their legal capacity, then the doctrine of ultra vires comes into play. In this article, the author deals with the role played by doctrine of ultra vires in the Administrative law and the Constitutional law.
Abuse of Powers by the Authority
The courts have developed effective ways to control the abuse of administrative functions. If a law crosses the discretionary power then it is held ultra vires and unconstitutional as per Article 14, Article 19, and other relevant provisions. Then the control mechanism can be at the initial stage of delegation or during the exercise of discretion. An act can become ultra vires when there is mala fide intention or improper purpose.
Mala fide
When an authority exceeds the power conferred due to the mala fide intention, that is to have a dishonest or corrupt intention, then such an act is considered as ultra vires. It is difficult to point out the motive, so the courts generally term them in a broad sense as the abuse or improper exercise of power. Mala fide intention does not imply only moral turpitude as a matter of law, in other words, it is said that the power conferred is used for indirect purpose without any nexus to the objective to be achieved and is completely foreign to the stated law.
In C.S. Rowjee v. Andhra Pradesh State Road Transport Corporationto 1986:INSC:260 certain transport routes were initiated by the corporation. The Chief Minister gave directions only to specific routes and other routes were not selected because of the vengeance towards his political opponents. In the absence of an affidavit from the minister, it was held by the court that there was mala fide intention present in the part of the act done by the Chief Minister.
Improper purpose/consideration:
When the power conferred is exercised with a different purpose deviating from the actual purpose, then it is considered invalid. The improper purpose is wider than mala fide. The question of good or bad intention is not questioned here, only the purpose of the action is questioned. In Lal Kamal Das v. State of West Bengal MANU/SC/0147/1975 it was held that the power of ordering prevention detention cannot be used for simple theft of railway property. There should be a proper purpose to prosecute such a person in the criminal court.
If an administrative power is exercised by improper/irrelevant or extraneous consideration then such action is ultra vires and it will be quashed. The general terms and conditions of the statute decide that the considerations are relevant or irrelevant. The court struck down the impugned order and held that the "law and order” concept is not the same as the “public order” concept. Sometimes there can be mixed considerations, so the court should apply the principle clearly.
Judicial Control
In administrative law, the doctrine of ultra vires forms the base. It questions the authority exercised by the various authorities. The court has to decide whether the actions are within the limit or exceeds the limit. The first step in the control mechanism of power is judicial control. Various questions have to be answered before applying judicial control:
Once, these questions are answered then the control can be applied in places where there is an excess of power. If a parent act or legislation is declared as void and unconstitutional, then the delegated legislation is also considered as void and unconstitutional. It is the court's decision about the scope of powers given to the delegated legislation.
If it goes beyond the scope of the parent act, then it is ultra vires. Also, the sub-ordinate legislation can be questioned for their action based on unreasonableness. The court fails to apply judicial control in cases where the powers of delegated authority are not clear. If there is no precise limit imposed for the authority and the power given is in a broad sense, then it becomes difficult to apply the doctrine of ultra vires as they turn into an uncontrolled authority.
Parent Act and Delegation.
Article 13(2) of the Indian Constitution states that a law made by the state is held void if it abridges or takes away the fundamental rights conferred under Part III of the constitution. This Article makes it clear that law includes order, ordinance, bye-law or ay regulation or notification, etc. Article 245 limits the extent of powers conferred by Parliament and legislatures of states to make laws.
The laws made under Article 245 are subject to other constitutional provisions. In Chintaman Rao v. State of Madhya Pradesh MANU/SC/0143/1958 , it was held that the parent act was unconstitutional as it allowed the Deputy Commissioner to prohibit the manufacture of bidis in few areas, which was a violation of Article 19(1) (g) of the constitution. Therefore, the order was held to be ultra vires and it was struck down.
The Parent act cannot delegate the essential functions to the subordinated delegated legislation. The subordinate delegated legislation should not be inconsistent with the parent act. There should be no conflict between the delegated legislation and the enabling legislation. A rule made by the parent act for ensuring the safety of passengers in ferry does not confer the subordinate delegated legislation to frame a rule to prohibit all private ferries. Therefore the court held that the rule was out of the scope of powers conferred by applying the doctrine ultra vires and hence void.
In Tahir Hussain v. District Board Muzzaffar Nagar, MANU/SC/0159/1954 the parent law allowed the District Board to frame bye-laws for public health and safety. The board framed a bye-law prohibiting the cattle market.
The court held there was reasonable nexus and applying the ultra vires principle the scope of the delegation authority was exceeding the parent act.
The court held that the rule which imposed a bar on the people for enrollment in bar council of age 45 years as invalid and ultra vires. A delegated body cannot sub-delegate further his power to another body as per the maxim “potestas non potest delegari”. Another important aspect is that a delegated legislation can be given a retrospective effect also. However, such power cannot be used in the cases of sovereign legislature unless it is expressed by the State.
Case study on the Doctrine of Ultra Vires: Misuse of Section 144 of the Criminal Procedure Code
Many states are imposing Section 144 of the Criminal Procedure Code in the year 2020. Section 144 provides wide powers to the magistrate in issuing urgent emergency orders for restricting public gatherings. During the Delhi riots, the use of the provision was easily found.
The Delhi police have imposed orders under Section 144 without any powers conferred by law, they have misused the power beyond their limits. Most of the orders were issued by the Assistant Commissioner of Police (ACP) and Deputy Superintendent of Police (DCP). Under the Delhi police Act or the Criminal Procedure Code, no power is vested on the ACP or DCP to pass such orders. The orders under 144 can be issued only by Magistrate or Commissioner under few circumstances.
The state of Delhi follows a commissionerate-system that identifies the police as a separate body, but the Criminal procedure code is not based on any such system. They are not under the supervision of a magistrate. Certain Magisterial Powers were conferred by the Delhi Police Act on the senior police officers. Section 20(5) and 70(1) confers the powers of the executive magistrate upon certain senior police officers.
The two main things to be noted are that the powers of the District Magistrate is conferred only upon the Commissioner of Police and not upon the ACP or DCP. The second thing to be noted is that none of the provisions of the Delhi Police Act is about the appointment of the executive magistrate, therefore only the powers of the executive magistrate are conferred.
A person appointed as an executive magistrate and a person; empowered with the powers of an executive magistrate is different. ACP and DCP are not appointed as an executive magistrate. They cannot pass an order under Section 144 of the Criminal procedure code. If they pass any orders under Section 144 of the Criminal Procedure Code without the inherent powers; then it is considered as ultra vires and illegal.
Doctrine of Severability
Doctrine of severability is also known as doctrine of separability. It helps in the protection of our fundamental rights. It is mentioned in clause (1) of Article 13 of the Constitution of India that all laws which were enforced in India, before the commencement of Constitution, in so far as they are inconsistent with the provisions of fundamental rights shall to the extent of that inconsistency be void. But the whole law or act would not be held invalid, only the provisions of the law or act which are not in consistent with the fundamental rights will be held as void. This whole hypothesis is known as the doctrine of severability. But the application of this doctrine is only possible if the part which is inconsistent with the law can be separated from the whole legislation. If both the valid and invalid part are so closely weaved with each other that it can't be separated, then, the whole law or act will be held as invalid. This doctrine can be better understood by help of case laws.
In A.K. Gopalan v. State of Madras MANU/SC/0091/1965 The Supreme Court held that in case when a part of legislation is repugnant to the Constitution, only that repugnant provision of the impugned Act will be void and not the whole of the legislation, and every attempt should be made to save as much as possible of the act. If the omission of the invalid part will not change the nature or the structure of the object of the legislature, it is severable. In this case, the Apex Court, held that except Section 14 all other sections of the Preventive Detention Act, 1950 were valid, and since Section 14 could be severed from the rest of the Act, the detention of the petitioner was not illegal as the Preventive Detention Act, 1950 is not void.
In State of Bombay v. F.N. Balsara MANU/SC/0009/1951 , eight Sections of the Bombay Prohibition Act were declared invalid by the Apex Court, the Supreme Court said that the portion which was invalid to the extent of fundamental rights was separable from the rest of the act, and thus by the application of the doctrine of severability only those eight sections would be deleted from the code and the rest of the provisions of the code will remain the same.
In R.M.D.C. v. Union of India, MANU/SC/0046/1961 the Supreme Court of India, in this case layed down the guidelines for the application of doctrine of severability, they are as follows:
1. In ascertaining that whether the valid parts of a statute can be separated from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test which should be applied is whether the legislature would have enacted the valid part without the impugned part if it had known that the rest of the impugned part of statute was invalid.
2. If the valid and invalid provisions are so inexorably mixed up with each other that they cannot be separated from one another, then the invalidity of a portion would result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and independent that after striking out the invalid part, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become void in law.
3. Even when the provisions which are valid and distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole.
4. When the valid and invalid parts of a statute are independent of one another and do not form part of the same scheme but what is left after omitting the invalid portion is so thin and different from what it originally was when it emerged out of the legislature, then also the Act will be rejected in its entirety.
5. If after the invalid portion is repealed from the statute, but if the provisions which remain, cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, or else it will amount to judicial legislation.
6. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of legislation, its object, the title and preamble to it.
2. Doctrine of Eclipse
The doctrine of eclipse says that any law which is inconsistent with fundamental rights is not valid. Such a law is not totally dead but is overshadowed by the fundamental right.
The inconsistency (conflict) between the impugned law and fundamental right can be removed by introducing constitutional amendment to the relevant fundamental right so that eclipse vanishes and the entire law becomes valid.
In other words, till the time a provision of law violates a fundamental right guaranteed by the Indian Constitution, it is dormant and inoperative. But if such fundamental right is amended by the Parliament and thereby, the law no more violates such fundamental right, then in such a situation the law becomes alive and operative.
These eclipsed laws exist for all post transactions and for the enforcement of the rights acquired and liabilities incurred before the commencement of the Constitution. It is only against the citizens of the country that they remain dormant and inoperative, but they remain in operation against the non-citizens who are not entitled to fundamental rights guaranteed by the Constitution.
In Bhikhaji v. State of Madhya Pradesh MANU/SC/0031/1952, the provisions of C.P. and Berar Motor Vehicles (Amendment) Act 1948 authorized the State Government of M.P to take up the entire motor transport business in the Province to the exclusion of motor transport operators. This provision was valid when enacted, but became void when the Constitution in 1950 commenced as it violated Article 19(1)(g) of the Constitution. However, in 1951 Clause (6) of Article 19 of the Constitution was amended by the Constitution (1st Amendment) Act, which authorized the Government to monopolize any business. The
Supreme Court observed that the objective of the amendment was to remove the eclipse and to make the impugned Act free from any infirmity. It became enforceable against citizens as well as non-citizens after the constitutional impediment was removed.
In Keshava Madhava Menon v. State of Bombay, MANU/SC/0020/1951 the petitioner was prosecuted under a Press law for publishing a pamphlet without permission. While the prosecution was ongoing, the Constitution commenced and the petitioner challenged the act as unconstitutional. Issues arose
whether sections 15(1) And 18(1) read with the definitions contained in sections 2(6) and 2(10) of the Indian Press (Emergency Powers) Act, 1931, were inconsistent with article 19(1)(a)read with clause (2) of that article?
Assuming that they were inconsistent, whether the proceedings commenced under section 18(1) of that Act before the commencement of the Constitution could nevertheless be proceeded with?
The court held that the constitutional rights came from the date of commencement of the Constitution, so the question of the inconsistency between the existing laws and fundamental rights must necessarily arise on and from the date those rights came into being.
In Deep Chand v. State of Uttar Pradesh MANU/SC/0023/1959 the Supreme Court held that a post- Constitutional law is void from its inception if it is found to be inconsistent with the Fundamental rights, but, a pre- Constitution law having been validly enacted earlier to the commencement of the Constitution would continue in force so far as non-citizens are concerned after the Constitution came into force. This is so because prior to commencement of constitution legislature had the competence to pass such act but after the commencement of the Constitution, the legislature does not have the competence to pass.
In Shankri Prasad v. Union of India AIR 1951 SC 458, the constitutional validity of Constitution (1st Amendment) Act, 1951, which curtailed the right to property, was challenged. The Court held that the power to amend the Constitution under Article 368 also included the power to amend fundamental rights enumerated in Part III of the Constitution and that the word “law” in Article 13(3) of the Constitution includes only an ordinary law made in exercise of the legislative powers and does not include Constitutional amendment which is made in exercise of constituent power. Therefore, a Constitutional amendment will be legally valid even if it abridges or takes any of the fundamental rights.
In Mahendra Lal Jaini v. State of U.P MANU/SC/0083/1962., the Court said that Article 13(1) of the Constitution recognizes the existence of pre-Constitutional laws which were valid when enacted, and therefore could be revived by the doctrine of eclipse and Article 13(2) provides for a direction to the State to not to make a law which takes away or abridges the rights conferred by Part III of the Constitution. The legislative power of Parliament of India and State Legislatures under Article 245 is subject to the other provisions of the Constitution and therefore, subject to Article 13(2).
3. Doctrine of Waiver
According to the doctrine of waiver, any person who is entitled to any right or privilege can waive off such a privilege, if he does so with his free will. This doctrine operates on the assumption that a man is the best judge of his interest under any legal liability, and that he has the knowledge of the consequences while intentionally giving up the privilege of such right.
But, the doctrine of waiver does not apply to fundamental rights of the people guaranteed under the Constitution of India. The fundamental rights were kept in the Constitution for the public at large and not merely for the individual's benefit. Thus, the 'doctrine of waiver' cannot be used for giving up the fundamental rights.
In Basheshar Nath v. Commissioner of Income Tax MANU/SC/0064/1958, a similar question arose whether a fundamental right may be waived off by the person who has it. In that case, the petitioner was found to conceal a large amount of his income under Section 5(1) of Taxation of Income (Investigation Commission) Act, 1947.
The petitioner to escape a heavy penalty agreed to enter into settlement under Section 8A with the Commissioner. In the meantime the Supreme Court in another case, held the Section 5(1) as ultra vires of the Constitution, and as a result it was struck down. Relying on this decision of the Court, the petitioner approached the Apex Court and contended that he is no longer liable to pay any penalty, due to absolvent of Section 5(1) of the impugned act. The respondent on the other hand, contended that even if Section 5(1) was invalid, the petitioner, by making the settlement had waived his right under Article 14.It was held that Article 14 cannot be waived off as it is a public policy of the state. No person can relieve the state of this obligation.
In Olga Tellis & Ors vs Bombay Municipal Corporation MANU/SC/0039/1985, the pavement dwellers gave an undertaking to the MCD that they would not claim any fundamental right to put up huts on pavements and public roads, and also that they would not obstruct the demolition of the huts after a certain date. But, later when the huts were sought to be demolished after the specified date, the pavement dwellers pleaded that they are protected under Article 21 of the Constitution of India. The municipal corporation contended that the dwellers cannot raise any such plea in the view of their previous undertaking. The Supreme Court, overruled the objection of the municipal corporation saying fundamental rights cannot be waived off by any person. There can be no estoppel against the fundamental rights guaranteed under the Constitution.
Important Constitutional Amendments
After the enactment of the constitution in 1950, there have been numerous amendments made over the passage of time in order to bring the law in line with the changing aspects of society. Some of the important amendments have been discussed in this article.
1. Abolition of states according to classes and the introduction of Union Territories and reorganisation of states by language (1956)
This amendment organised the states with regard to the languages spoken in those territories. This systematic arrangement further lowered the complexity of the states and it even abolished the classification of states by progress and per-capita income of the states.
The mini-constitution (42nd amendment) inserted Socialism and Secularism in the preamble, a provision on fundamental (1976)
The main contention behind the enactment of this act was to protect the interest of minorities and to restore their faith in the notion that the rich and the affluent strata of the society will not dominate over them. And the reason behind adding socialism in the amendment was to promote social as well as economic equality of the country.
Right to Property deleted from the list of fundamental rights (1978)
This move was taken up in order to facilitate the reorganisation of land and also facilitate the land acquisition by the government of India for developmental purposes. Also, there was a need to bridge the gap between the affluent and the poor of the society which would be accomplished by the way of redistribution of land.
Voting age reduced from 21 to 18 (1989)
During the governance of Rajiv Gandhi, the voting age was reduced from the age of 21 to 18 and according to the then government, this provision was laid down so that the youth could actively participate in the electoral purposes of the nation and this would eventually motivate them to become a part and parcel of the political process.
Free and compulsory education to children between 6 to 14 years (2002)
This amendment is hailed to be one of the most important amendments of the Indian Constitution, it directed the private schools to grant 25% of the seats to the economically weaker and disadvantaged sections of the society through a process by the way of government funding. The onus behind taking up this initiative was to provide elementary education to the ones in need of it. In addition to this reservation, the amendment even provided free education for all the children aged between 6 to 14 years and there were measures taken up by the government for the implementation of the same.
Introduction of the Goods and Services Tax (GST), to present the idea of One Nation, One Tax (2016)
This is one of the most recent amendments which includes both central government's tax as well as state government's tax. The NDA government has claimed that the introduction of GST has deterred the state governments from increasing tax unreasonably.
2.2- Article 14-18 – Right to Equality
The right to equality provides for the equal treatment of everyone before the law, prevents discrimination on various grounds, treats everybody as equals in matters of public employment, and abolishes untouchability, and titles (such as Sir, Rai Bahadur, etc.).
Before knowing about the right to equality, aspirants should know the types of equality to get an idea of what it is. It is also mentioned in our Preamble. The types of equality are:
1. Natural 2. Social 3. Civil 4. Political 5. Economic 6. Legal
The Right to Equality is one of the Fundamental Rights enshrined in the Constitution of India. It is very important to understand what this right entails and includes. This topic is a basic topic in the polity and constitution segments of the for the civil services exam. Below we provide the associated articles of the Constitution under the right to equality.
Right to Equality
| Article | Brief description |
|---|---|
| Article 14 | The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, on grounds of religion, race, caste, sex or place of birth |
| Article 15 | The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. |
| Article 16 | There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. |
| Article 17 | Abolition of untouchability |
| Article 18 | Abolition of all titles except military and academic |
Equality before the law (Article 14)
Article 14 treats all people the same in the eyes of the law. This Article is described in two parts – wich states and commands the State not to deny to any person 'equality before the law'. Another part of it also commands the State not to deny the 'equal protection of the laws'.
This provision states that all citizens will be treated equally before the law and avoids any kind of discrimination.
The law of the country protects everybody equally.
Under the same circumstances, the law will treat people in the same manner.
Page 48 of 108
Sub- CONSTITUTIONAL LAW -I, SEM -2, Mumbai University New Syllabus – 2022-2023
Prohibition of discrimination (Article 15)
This article prohibits discrimination in any manner. This article secures the citizens from every sort of discrimination by the State, on the grounds of religion, race, caste, sex or place of birth or of them.
No citizen shall, on grounds only of race, religion, caste, place of birth, sex or any of them, be subject to any liability, disability, restriction or condition with respect to:
- Access to public places
- Use of tanks, wells, ghats, etc. that are maintained by the State or that are meant for the general public
The article also mentions that special provisions can be made for women, children and the backward classes notwithstanding this article.
Equality of opportunity in matters of public employment (Article 16)
Article 16 provides equal employment opportunities in State service for all citizens.
No citizen shall be discriminated against in matters of public employment or appointment on the grounds of race, religion, caste, sex, place of birth, descent or residence.
Exceptions to this can be made for providing special provisions for the backward classes.
Abolition of untouchability (Article 17)
Article 17 prohibits the practice of untouchability.
- Untouchability is abolished in all forms.
- Any disability arising out of untouchability is made an offence.
Abolition of titles (Article 18)
Article 18 abolishes titles.
- The State shall not confer any titles except those which are academic or military titles. The article also prohibits citizens of India from accepting any titles from a foreign State.
- The article abolishes the titles that were awarded by the British Empire such as Rai Bahadur, Khan Bahadur, etc.
- Awards like Padma Shri, Padma Bhushan, Padma Vibhushan, Bharat Ratna and military honours like Ashok Chakra, Param Vir Chakra do not belong to this category.
2.3- Article 19 – Six Fundamental Freedoms and Reasonable Restrictions.
Article 19(1) of the Constitution of India guarantees six fundamental freedoms to every citizen of India, namely-
1. Freedom of speech and expression;
2. Freedom to assemble peacefully and without arms;
3. Freedom to form associations, unions or co-operative societies;
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 fundamental freedoms are the natural and basic freedoms inherent in the status of a citizen. However, these freedoms are not absolute or uncontrolled but are subject to certain reasonable restrictions. In this article, the author will take you through the six fundamental freedoms provided under Article 19 along with the relevant case laws.
6 fundamental freedoms
Freedom of speech and expression [Article 19(1)(a) and 19(2)]
Article 19(1)(a) guarantees the freedom of speech and expression to all citizens. Freedom of speech and expression is the foundation of a democratic society and is one of the most cherished rights of a citizen. It is the first condition of liberty and plays an important role in forming public opinion.
Page 49 of 108
Sub- CONSTITUTIONAL LAW -I, SEM -2, Mumbai University New Syllabus – 2022-2023
Meaning of freedom of speech and expression
Freedom of speech and expression means the right to speak, and the right to express oneself through any medium-by words of mouth, writing, pictures, signs, internet etc. Every citizen has a right to hold an opinion and to be able to express it, including the right to receive and impart information. The expression 'freedom of speech and expression' has a wide connotation. It includes the freedom of the propagation of ideas, their publication and circulation.
Scope of freedom of speech and expression
There are various facets of the freedom of speech and expression which have been recognised by the courts. Some of those facets or rights that constitute the freedom of speech and expression are mentioned below:
1. Freedom of the press: Freedom of the press is perhaps the most important freedom under the right to free speech and expression. Freedom of the press does not find an explicit mention in the Constitution. However, it has been indisputably held to be an important aspect of the freedom of speech and expression and is implied under Article 19(1)(a). Freedom of press means:
- There can be no pre-censorship in the press;
- No-pre stoppage of publication in newspapers of articles or matters of public importance;
- Freedom of circulation;
- No excessive taxes on the press, etc.;
However, restrictions can be imposed in the interests of justice, but those restrictions must withstand the test of Article 19(2).
In Bennett Coleman & Co v. Union of India MANU/SC/0038/1972 the Hon'ble Supreme Court held that the freedom of the press embodies the right of the people to free speech and expression. It was held that “Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content.”
In the landmark case of Romesh Thappar v. The State Of Madras MANU/SC/0006/1950 the Supreme Court observed that, “freedom of speech and of the press lay at the founda- tion of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible". The Court in this case held that the freedom of circulation is as important as the freedom of publication.
2. Right to know and to obtain information: In the State of U.P. v. Raj Narain MANU/SC/0032/1975., the Supreme Court observed that the right to know is derived from the concept of freedom of speech. The Court further held that the people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. It is a basic postulate of a democracy that every citizen must have a right to know about what the government is doing. It is only when the public is aware of the acts of government that transparency and accountability in governance can prevail. Thus, the right to obtain information and disseminate it is an important fundamental right. In India, we have the Right to Information Act, 2005 which provides for the right of a citizen to secure access to information under the control of public authorities.
3. Right to know the antecedents of the candidates at election: In Union of India v. Association For Democratic Reforms MANU/SC/0112/2024, the Hon'ble Supreme Court held that the voters have a fundamental right to know the antecedents of the candidate contesting election including his/her criminal past.
4. Right to reply: In LIC v. Prof. Manubhai D. Shah MANU/SC/0032/1993. the Supreme Court ruled that the right to reply, including the right to get that reply published in the same news media in which something was published against or in relation to a citizen, is protected under Article 19(1)(a).
5. Right to silence: Right to speak includes the right to not speak or the right to remain silent. In Bijoe Emmanuel v. State of Kerala MANU/SC/0061/1986 the Supreme Court upheld the right to silence of three children who were expelled from school because they refused to sing the National Anthem. The Court held that no person can be compelled to sing the National Anthem if he has genuine conscientious objections based on his religious belief. Hence, the right to speak and the right to express includes the right not to express and to be silent.
6. Right to fly the national flag: In the case of Union of India v. Naveen Jindal MANU/SC/0072/2004 the Supreme Court held that flying the National Flag with respect and dignity is an expression and manifestation of one's allegiance and feelings and sentiments of pride for the nation and therefore, is a fundamental right protected under Article 19(1)(a). However, the flying of the National Flag cannot be for commercial purposes or otherwise and can be subject to reasonable restrictions.
Reasonable restrictions on the right to free speech and expression
The right to free speech and expression is not an absolute right and is subject to reasonable restrictions. As per Article 19(2), restrictions can be imposed upon the freedom of speech and expression in the interests of:
1. sovereignty and integrity of India,
2. the security of the state,
3. friendly relations with foreign states,
4. public order, decency or morality, or
5. in relation to contempt of court,
6. defamation, or
7. Incitement to an offence.
Freedom of assembly [Article 19(1)(b) and 19(3)]
The object of holding an assembly or a meeting is the propagation of ideas and to educate the public. Hence, the right to assemble is a necessary corollary of the right to free speech and expression. Article 19(1)(b) provides for the right to assemble peaceably and without arms. This includes the right to hold public meetings, hunger strikes, and the right to take out processions. However, the assembly must be peaceful and without arms.
It is pertinent to note that there is no right to hold an assembly on government premises or private property belonging to others.
In Himmat Lal v. Police Commissioner, Bombay MANU/SC/0762/2018 the Supreme Court struck down a rule that empowered the police commissioner to impose a total ban on all public meetings and processions. It was held that the state could only make regulations in aid of the right of assembly of citizens and could impose reasonable restrictions in the interest of public order but no rule could be prescribed prohibiting all meetings or processions altogether.
Reasonable restrictions on right to freedom of assembly
According to Clause 3 of Article 19, the right to freedom of assembly could be restricted on the following grounds:
1. In the interests of the sovereignty and integrity of India, or
2. In the interests of public order.
Freedom to form associations, unions or co-operative societies [Article 19(1)(c) and 19(4)]
Article 19(1)(c) provides for the right to form associations, unions or cooperative societies. An association refers to a group of persons who have come together to achieve a certain objective which may be for the benefit of the members of the welfare of the general public or a scientific, charitable or any other purpose.
The right to form associations is considered as the lifeblood of democracy, as without such a right, the political parties critical to the functioning of a democracy cannot be formed.
The right to form associations and unions includes the right to form companies, societies, trade unions, partnership firms and clubs, etc. The right is not confined to the mere formation of an association but includes its establishment, administration and functioning as well.
Some of the facets of the right to form associations are as follows:
1. The right to form associations means the right to be a member of an association voluntarily. It also includes the right to continue to be or not to continue to be a member of the association. In Damyanti v. Union of India MANU/SC/0726/1971 , the Supreme Court upheld the right of the members of an association to continue the association with its composition as voluntarily agreed upon by the persons forming the association.
2. The right to form an association includes the right not to be a member of an association.
3. The right under Article 19(1)(c) does not prohibit the state from making reservations or nominating weaker sections into the cooperative societies and their managing committees.
4. No prior restraint can be imposed on the right to form an association.
5. There is no fundamental right of recognition of the association or union by the government.
6. The right to form an association includes no right to achieve the objects of the association.
Reasonable restrictions on right to form association
According to Article19(4), reasonable restrictions can be imposed on the right to form associations, unions and co-operative societies, etc. on the following grounds:
1. In the interests of the sovereignty and integrity of India, or
2. In the interests of public order or morality.
Freedom of movement and residence [Article 19(1)(d), 19(1)(e) and 19(5)]
Article 19(1)(d) and (e) are complementary to each other and confer a right upon the citizens to move freely or/and to reside and settle in any part of the country.
Freedom of movement
Article 19(1)(d) provides for the right to move freely throughout the territory of India. This means the right to locomotion, i.e., the right to move as per one's own choice. This right includes the right to use roads and highways.
In Chambara soy v. Union of India MANU/OR/0347/2007, some unscrupulous elements had blocked the road due to which the petitioner was delayed in taking his ailing son to the hospital and his son died on arrival at the hospital. The Supreme Court held that the right of the petitioner to move freely under Article 19(1)(d) has been violated due to the road blockage. The Court held that the State is liable to pay the compensation for the death of the petitioner's son due to the inaction on the part of the State authorities in removing the aforesaid blockage.
Freedom of residence
Article 19(1)(e) states that it is the fundamental right of every citizen to reside and settle in any part of the territory of India.
In the case of U.P. Avas Evam Vikas Parishad v. Friends Co-op. Housing Society Ltd MANU/SC/0097/2002 it was held by the Supreme Court that the right to residence under Article 19(1)(e) includes the right to shelter and to construct houses for that purpose.
Reasonable restrictions on right to freedom of movement and residence
As per Article 19(5), the right to freedom of movement and residence could be restricted on the following grounds:
1. In the interests of the general public, or
2. For the protection of the interests of any Scheduled Tribe.
Freedom of profession, occupation, trade or business [Article 19(1)(g) and 19(6)]
Article 19(1)(g) provides for the fundamental right of the citizens to practice any profession or to carry on any occupation, trade or business.
Scope: What's included and what's not
1. The right to carry on a business also includes the right to shut down the business. In Excel Wear v. Union of India MANU/SC/0263/1978 the Supreme Court declared Section 25-O of the Industrial Disputes Act, 1947, which required an employer to take prior permission from the government for closure of his industrial undertaking, as unconstitutional and invalid on the ground that it violated Article 19(1)(g).
2. There is no right to hold a particular job of one's choice. For example, in the case of closure of an establishment, a man who has lost his job cannot say that his fundamental right to carry on an occupation is violated.
3. There is no right to carry on any dangerous activity or any antisocial or criminal activity.
4. No one can claim a right to carry on business with the government.
5. The right to trade does not include the right of protection from competition in trade. Thus, loss of income on account of competition does not violate the right to trade under Article 19(1)(g).
The Hon'ble Supreme Court in Vishaka v. State of Rajasthan MANU/SC/0786/1997 has observed that the sexual harassment of working women in workplaces violates the fundamental right under Article 19(1)(g). In this case, comprehensive guidelines and binding directions were issued by the court to prevent the incidents of sexual harassment of women at workplaces in both public and private sectors.
Reasonable restrictions on freedom of profession, occupation, trade or business
Article 19(6) provides that the fundamental right under Article 19(1)(g) can be restricted in the following ways:
1. By imposing reasonable restrictions in the interest of the general public.
2. By state monopoly: Sub-clause (ii) of Article 19(6) enables the state to make laws for creating state monopolies either partially or completely in respect of any trade or business or industry or service. The right of a citizen to carry on trade is subordinated to the right of the state to create a monopoly in its favour.
Also, Sub-clause (i) of Article 19(6) empowers the state to lay down, by law, “the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business”.
In State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat MANU/SC/1352/2005 the Supreme Court has held that the expression 'in the interest of general public' in Article 19(6) is of wide import comprehending public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the Constitution.
Test of Restrictions under Article 19(2) to 19(6)
The restrictions to be imposed on the fundamental freedoms under Article 19(2) to Article 19(6) must satisfy the following tests:
1. The restriction must be imposed by or under the authority of a law duly enacted by the appropriate legislature. The law authorising the restriction must be reasonable.
2. The restriction imposed must be for the particular purpose or object envisaged in the specific clauses, i.e., Article 19(2) to 19(6). There has to be a reasonable nexus between the restriction imposed and the objects mentioned in the respective clause.
3. The restriction must be reasonable.
Conclusion
In the landmark case of Maneka Gandhi v. Union of India MANU/SC/0133/1978 the Supreme Court said that it is possible that a right does not find express mention in any clause of Article 19(1) and yet it may be covered by some clause of that Article. This is true for freedom of the press is one such important fundamental right which, though not expressly mentioned, is implicit in Article 19(1)(a).
Lastly, it is noteworthy that earlier Article 19(1) provided for seven fundamental freedoms i.e. Clause(f) provided for the freedom to hold and acquire property which was deleted by the Constitution (Forty-Fourth Amendment) Act, 1978.
Copyright © 2026 Manupatra. All Rights Reserved.
Toll Free No : 1-800-103-3550
+91-120-4014521