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Author: Kinkini Chaudhuri, II year of B.B.A., LL.B.(Hons.) from Amity University, Kolkata


India had achieved independence after huge bloodshed only for the citizens of the country, so that they could live happily, without any interference from outside, which is known as sovereignty. Just after three tears, on the 26th day of November 1950, India had drafted its first Constitution, with its founding fathers being, Dr. B.R. Ambedkar, Sir Benegal Narsing Rao, Surendra Nath Mukherjee and others. The Constitution of India has 22 parts and 395 Articles, and Part III of the Constitution is enshrined with the Fundamental Rights, ranging from Articles 12 to 35. It must be remembered that the Fundamental Rights are not absolute. This means that, during a curfew, or an emergency, the Fundamental Rights will be defunct. The best example would be when Indira Gandhi had declared an emergency during her years of power. Article 19(1) of the Constitution of India gives the freedom of speech and expression to all the citizens of India. The Fundamental Rights are available to all, irrespective of caste, creed, gender, religion, place of birth, etc.

Article 19 of the Constitution of India consists of six clauses, and Article 19(1) of the Constitution of India consists of six sub-clauses, ranging from a to g, where, sub-clause f has been omitted. Article 19(1) of the Constitution of India guarantees the freedom of speech and expression, which could be by words of mouth, painting, writing, or even could be on social media. But, there are certain restrictions mentioned in Article 19(2) 0f the Constitution of India.

Article19 (2) of the Constitution of India lays down the following restrictions:

1. Security of the State

2. Friendly relations with the foreign States

3. Public order

4. Decency and morality

5. Contempt of Court

6. Defamation

7. Incitement to an offence

8. Sovereignty and integrity of India

Lacunae in Article 19 (1) of the Constitution of India

Article 19(1) of the Constitution of India talks about freedom of speech and expression, without any fear through oral, written, or electronic broadcasting or press. The word press consists of blogs and websites too.

Even though Article 19(1) of the Constitution of India mentions about the freedoms and Article 19(2) to Article 19(6) of the Constitution of India mentions about the exceptions to Article 19(1) of the Constitution of India, still, there are instances where people are scared to open their mouths for justice as either they will be beaten up, or their future will be darkened by the other party. Sometimes it so happens that they are defamed. It has been found in educational institutions, like schools, where students get low marks if they speak anything against the teacher. A similar situation had happened with me when I was standard XII.

A teacher used to defame me by asking me in front of the whole class as to why I had opted that subject, as I was poor in it, though keen to learn. Each day the teacher used to repeat the same sentence quite a few numbers of times. When I had complained to my parents, they had decided to complain to the Principal. After complaining, from the next day onwards, the teacher had never looked forward to my queries, neither did the teacher ask me whether I was facing any problem in understanding, instead, the teacher had started giving me low marks. Even if the answers were right, the teacher used to give me either zero or at least a mark. Ultimately, I had to sit for re-tests, as the person used to make me fail in that subject. I remember that the teacher used to ask me to complain about that person to the Principal. I don’t think that these are right. People should get a chance to speak up for justice.

Another situation is very common among us. You will find that in rural India, a girl considers her husband to be a God. This is prevalent in this generation too. She has huge expectations during her marriage. Marriage is the only best moment of her life. But, after marriage, when the girls find out that she is being tortured, taken for granted, defamed in front of others, she does not get the courage to open and speak up, because if she does that, she will be thrown out of the house, which ultimately leads to divorce. Later, she does not have any shelter and food to eat. In Indian society, a divorced woman is considered to be a sinister lady. Later, her parents are questioned by the people in the society and become the only issue to talk about in the whole area. Not only that, but the whole family is also pushed in a corner by the people in the society. People do not let them participate in social gatherings. Later, the girl’s life is doomed. No one marries her. So, people should understand that differences of opinion will be there, and people have to let everyone speak as everyone, irrespective of caste, creed, gender, religion, place of birth, etc people have the right to speak, and should be heard.

Article 19(1) (b) of the Constitution talks about the freedom to assemble peaceably without any arms. This means that people should have the right to revolt, but should be without any arms and ammunition. Situations have occurred where; people lose their lives due to revolts. The main reason is that people revolt with arms and ammunition. It must be remembered that people have the right to protest, and thereby express their views. One best example would be, people marching with candles to express their protest after the Nirbhaya Rape Case. This is mainly because, while protesting, no one should get hurt or lose lives, as per Article 21 of the Constitution of India, which talks about Right to Life. The most recent protest was against the CAA and the NRC. The CAA Amendment Act was against the illegal migrants who were Hindu, Jain, Parsi, Sikh, Christian from different countries like Pakistan, Bangladesh, and Afghanistan, who had entered the country before 2014 following religious prosecutions. It must be noted that the CAA bill must not mention about the Muslims and some other communities, who had come in India either from the same, or the neighbouring countries. Another point to be noted is that refugees from Sri Lankan Tamils in India, Rohingyas from Myanmar, and Tibetans refugees were not mentioned.

NRC would be an official record to all legal citizens in India. The CAA and the NRC were enacted by the Government of India on 12th December 2019. The move had sparked widespread national and overseas ongoing protests against the Act and is associated with the proposals of the NRC. The protest had first begun in Assam and had swiftly spread to other states like Delhi, Meghalaya, Arunachal Pradesh, Tripura, on 4th December 2019. There were civil disobedience demonstrations, general strike, stone-pelting by the other protesters. Not only that, the Government had used methods like shooting by police, riot police, stone pelting, mass arrest, internet shutdown, curfew, transport restrictions. As of 16th December, over 65 lack deaths, 173 injuries had occurred. Also, as of 17th December, over 3000 deaths had occurred. The main reason why people do not revolt peacefully is that the citizens think that, the voices won’t be heard. If only they do something unusual, like mass killing, only then, the Government will take quick action.

In case of Bandh, a landmark decision in Bharat Kumar (Bharat Kumar K. Palicha v. State of Kerala)1997, a Full Bench of the Kerala High Court had declared ‘Bandhs’ organised by political parties from time to time as unconstitutional being violative of the Fundamental Rights of the people. The Court refused to accept it as an exercise of the freedom of speech and expression by the concerned party calling for the bandh. When a bandh is called, people are expected not to travel, not to carry on their trade, not to attend to their work. A threat is held out either expressly or impliedly that any attempt to go against the call for bandh may result in physical injury.

The Supreme Court has dismissed an appeal against the above- mentioned High Court decision. The Supreme Court refused to interfere with the High Court decision. The Court has accepted the distinction drawn by the High Court between a ‘bandh’ and a strike. A bandh interferes with the exercise of the Fundamental Freedoms of other citizens, in addition to causing a national loss in many ways. The Fundamental Rights of the people as a whole cannot be regarded as subservient to a claim of Fundamental Rights of an individual, or a section of the people.

The Supreme Court has now declared the reason why bandh should be banned. In the name of hartal or bandh or strike, no person has any right to cause inconvenience to any other person or to cause in any manner a threat or apprehension of risk to life, liberty or property of any citizen or destruction of life and property, and the least to any government or public property. The Supreme Court pointed out that it was high time that the authorities concerned took serious note of this requirement while dealing with those who destroy public property in the name of strike, hartal or bandh. Any soft or lenient approach of such offenders would be an affront to the rule of law and challenge to public order and peace.

Inappropriate cases, even the organizers of the bandh may be directed to pay compensation. Any organization interfering with the functioning of the Courts commits contempt of Court and can be punished accordingly. A peaceful strike which does not interfere with the rights and properties of the people is however not illegal. In the instant case, the High Court did award compensation against the State Government for loss of property and death of a person during the bandh for the failure of the authorities to take appropriate action and provide adequate protection to the people’s life, liberty and property. The Government failed to discharge its public duty to protect the people during the bandh.

Also, it is not valid to confer uncontrolled discretion on administrative orders to regulate the freedom of assembly. A rule banning the holding of public meetings on public streets without police permission has been held bad in Himmat Lal v. Police Commissioner, AIR (1973) SC 87. In India, citizens had a right to hold meetings on public streets before the Constitution, subject to the control of appropriate authority regarding the time and place of meeting and considerations of public order. The rule in question gave no guidance as to the circumstances in which permission to hold meeting could be refused and, therefore, gave arbitrary powers.

A person can exercise his freedom of speech and expression while he/she is talking over the telephone too. So, when a person is talking on the telephone, he is exercising his right to freedom of speech and expression. Telephone tapping, accordingly, infracts Article 19(1) (a) unless it falls within the ground of restrictions falling under Article 19(2).


It must be remembered that a company is not a citizen, and thus it cannot exercise all the fundamental rights that are enshrined in the Constitution of India. Even though there are so many restrictions, still there are some situations which are beyond restrictions. People don’t follow the restrictions that are already mentioned in the Constitution. The citizens must remember that Fundamental Rights are fundamental and are primary. People should be respected only by allowing others to enforce their fundamental rights. Also, another fact is that the dead also have some respect. Therefore, it is important to follow and allow everyone to use their Fundamental Rights.


M.P. Jain, Indian Constitutional Law (LexisNexis Publication) 7th Edition


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