Introduction to the Right to Freedom
The Right to Freedom, enshrined in Articles 19 to 22 of the Indian Constitution, forms the bedrock of individual liberty and democratic functioning in India. These articles collectively ensure that the State acts within the bounds of law and respects the core freedoms of individuals.
- Article 19: Guarantees six fundamental freedoms essential for personality development and free participation.
- Article 20: Provides crucial protections against arbitrary conviction and excessive punishment.
- Article 21: The most dynamic of all Fundamental Rights, guaranteeing the right to life and personal liberty, interpreted expansively.
- Article 21A: Specifically mandates the right to education.
- Article 22: Provides safeguards against arbitrary arrest and detention, distinguishing between punitive and preventive detention.
Article 19: Protection of Six Rights concerning Freedom
Key Point: These six freedoms are available only to citizens and primarily protected against State action (not private individuals). They are not absolute but subject to "reasonable restrictions."
Article 19(1)(a): Freedom of Speech and Expression
This right implies every citizen's right to express convictions, opinions, beliefs, and ideas freely by word of mouth, writing, printing, pictures, or any other mode. It includes:
- Freedom of the Press, Right to Information (RTI), Right to Silence.
- Freedom of Commercial Advertisements, Right against Pre-censorship.
- Right to Broadcast/Telecast, Right to criticize government and its policies.
- Right to demonstration or picketing (but not right to strike).
The State can impose reasonable restrictions on grounds of:
- Sovereignty and integrity of India, Security of the State.
- Friendly relations with foreign States, Public order.
- Decency or morality, Contempt of court.
- Defamation, Incitement to an offence.
- Romesh Thappar vs. State of Madras (1950): Struck down ban for disturbing public order.
- Shreya Singhal vs. Union of India (2015): Struck down Section 66A IT Act.
- Kedarnath Singh vs. State of Bihar (1962): Upheld Sedition (124A IPC) but limited its application to incitement to violence. (SC recently put 124A on hold).
- Contemporary Issues: Hate Speech, Fake News, Media Trials, Regulation of Social Media.
Article 19(1)(b): Freedom of Assembly
Every citizen has the right to assemble peaceably and without arms. Includes holding public meetings, demonstrations, processions. Does not include the right to strike.
Restrictions on grounds of: Sovereignty and integrity of India, Public order.
Relevant Laws: Section 144 CrPC (prohibit assembly), Section 141 IPC (unlawful assembly).
Article 19(1)(c): Freedom to form Associations or Unions or Co-operative Societies
Right to form political parties, companies, trade unions, etc. Includes right to continue with association and not to join. "Co-operative Societies" added by 97th Amendment, 2011.
Restrictions on grounds of: Sovereignty and integrity of India, Public order, Morality.
Does not include right to strike or lockout, or right to recognition.
Article 19(1)(d): Freedom of Movement
Right to move freely throughout the territory of India (internal movement). Promotes national unity.
Restrictions on grounds of: Interests of the general public (e.g., epidemics, traffic), Protection of interests of any Scheduled Tribe (e.g., Inner Line Permit).
Article 19(1)(e): Freedom of Residence and Settlement
Right to reside and settle in any part of India. Complementary to freedom of movement, promoting national integration.
Same as for movement: Interests of the general public, Protection of interests of any Scheduled Tribe.
Article 19(1)(g): Freedom of Profession, Occupation, Trade or Business
Right to practice any profession, occupation, trade or business. Wide scope covering all livelihoods.
Restrictions in the interests of the general public. State can:
- Prescribe professional/technical qualifications.
- Carry on any trade/business itself (create monopolies).
Does not include immoral or dangerous activities (e.g., human trafficking, illegal drugs).
Suspension of Article 19: Article 358 automatically suspends the six freedoms under Article 19 when a National Emergency is declared on grounds of war or external aggression (NOT armed rebellion) by the 44th Amendment Act, 1978.
Article 20: Protection in Respect of Conviction for Offences
Key Point: Grants protection against arbitrary and excessive punishment. Available to citizens, non-citizens, and legal persons. Cannot be suspended even during an emergency.
Article 20(1): No Ex-post-facto Law
Protection against retrospective criminal laws. No punishment for an act not an offence when committed, nor a higher penalty than prescribed then.
- Applies only to criminal laws, not civil/tax laws.
- Prohibits conviction/sentence, not trial.
- Does not prohibit imposition of a lesser penalty retrospectively.
Article 20(2): No Double Jeopardy
"No person shall be prosecuted and punished for the same offence more than once." Protects from being tried and punished twice by a court of law/judicial tribunal.
- Not available against departmental/administrative proceedings.
- Does not bar subsequent trial for a distinct offence from same facts.
Article 20(3): No Self-incrimination
"No person accused of any offence shall be compelled to be a witness against himself." Right to silence for an accused.
- Extends to oral and documentary evidence.
- Does not extend to physical evidence (thumb impression, blood samples, body exhibition).
- Selvi vs. State of Karnataka (2010): Narco-analysis, polygraph, BEAP tests without consent violate 20(3) and 21.
Article 21: Protection of Life and Personal Liberty
Text: "No person shall be deprived of his life or personal liberty except according to procedure established by law."
Key Point: Available to citizens and non-citizens. Cannot be suspended during emergency (post-44th Amendment).
Evolution of Interpretation: From Narrow to Expansive
A.K. Gopalan vs. State of Madras (1950)
Narrow Interpretation: SC interpreted "personal liberty" narrowly (freedom from physical restraint). "Procedure established by law" meant procedure laid down by enacted law (not "due process of law" as in USA, which implies the law itself must be fair). Protection was only against arbitrary executive action.
Maneka Gandhi vs. Union of India (1978)
Landmark & Broad Interpretation: Marked a paradigm shift. SC overruled Gopalan. Held that "procedure established by law" must be right, just, and fair, and not arbitrary, fanciful, or oppressive. This introduced the concept of "substantive due process." "Personal liberty" was given wide amplitude. Articles 14, 19, and 21 were held to form a 'golden triangle' – any law depriving personal liberty must satisfy tests of all three.
Widest Amplitude: Rights Judicially Interpreted as Part of Article 21
Dignity & Basic Needs
- Right to live with human dignity (Francis Coralie Mullin)
- Right to livelihood (Olga Tellis)
- Right to shelter
- Right to sleep (Ramlila Maidan Incident, 2012)
Privacy & Choice
- Right to privacy (K.S. Puttaswamy, 2017)
- Right to choose a partner/marry (Hadiya case)
- Right to be forgotten (emerging)
- Right against sexual harassment at workplace (Vishaka)
Health & Well-being
- Right to health (Parmanand Katara)
- Right to decent environment (M.C. Mehta)
- Right to emergency medical aid
- Right to timely medical treatment in govt. hospitals
- Right to die with dignity (Passive euthanasia, Common Cause, 2018)
Justice & Fair Trial
- Right to free legal aid (M.H. Hoskot)
- Right to speedy trial
- Right against solitary confinement, handcuffing, inhuman treatment, delayed execution.
- Right to fair trial
- Right against custodial harassment
Travel & Information
- Right to travel abroad (Maneka Gandhi)
- Right to information
- Right not to be driven out of a state
Specific Protections
- Right against bonded labour
- Right of prisoner to have necessities of life
- Right of women to be treated with decency and dignity
- Right against public hanging
- Right to reputation
- Right to hearing
Article 21A: Right to Education
Text: "The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine."
- Addition: Inserted by the 86th Constitutional Amendment Act, 2002.
- Background: Evolved from DPSP Article 45 and Supreme Court's recognition in Unni Krishnan J.P. vs. State of Andhra Pradesh (1993).
- Legislation: Right of Children to Free and Compulsory Education (RTE) Act, 2009, was enacted to give effect to Article 21A.
- Related Provisions: DPSP Art 45 (early childhood care), Fundamental Duty Art 51A(k) (parent's duty to educate).
Article 22: Protection Against Arrest and Detention
Grants protection to persons arrested or detained. Distinguishes between:
- Punitive Detention: To punish for an offence after trial and conviction.
- Preventive Detention: To prevent a person from committing a prejudicial act (without trial).
Part 1: Rights under Ordinary Law (Punitive Detention)
Safeguards for persons arrested under ordinary criminal law (Article 22(1) & 22(2)).
- Right to be informed of grounds of arrest as soon as may be.
- Right to consult and be defended by a legal practitioner of choice.
- Right to be produced before nearest magistrate within 24 hours (excluding journey time).
- Right not to be detained beyond 24 hours without magistrate's authority.
Exception (Art 22(3)): These safeguards are NOT available to enemy aliens or persons arrested/detained under a preventive detention law.
Part 2: Protection under Preventive Detention Law
Safeguards for persons detained under preventive detention law (Article 22(4) to 22(7)).
- Limited Duration (Art 22(4)): No detention for longer than 3 months UNLESS Advisory Board approves.
- Grounds Communication (Art 22(5)): Detaining authority must communicate grounds "as soon as may be."
- Right to Representation (Art 22(5)): Earliest opportunity to make a representation against the order.
- Non-disclosure (Art 22(6)): Facts considered against public interest need not be disclosed.
- Parliament's Power (Art 22(7)): Parliament can prescribe circumstances for detention > 3 months without Advisory Board, max period, and Advisory Board procedure.
Criticism: Preventive detention is often criticized as a "necessary evil" and a draconian measure with high potential for misuse, curtailing liberty without trial.
Mains-ready Analytical Notes
Article 19 – The Foundation of Democratic Freedoms:
These freedoms are essential for a vibrant democracy, allowing citizens to participate, express, organize, and pursue livelihoods. The "reasonable restrictions" clause balances freedom with public interest, but requires careful judicial scrutiny to prevent misuse. Evolving jurisprudence on free speech (e.g., Sec 66A IT Act, sedition debates) highlights ongoing challenges in defining freedom in a changing landscape.
Article 20 – Safeguarding Procedural Fairness in Criminal Justice:
The three protections (no ex-post-facto law, no double jeopardy, no self-incrimination) ensure fair and non-arbitrary criminal proceedings. They guarantee predictability of law, protect against harassment, and uphold the principle that burden of proof is on prosecution, preserving human dignity.
Article 21 – The Expanding Universe of Life and Liberty:
Its transformation from narrow protection (Gopalan) to a repository of human rights (Maneka Gandhi and beyond) showcases judicial activism. By demanding "fair, just, and reasonable" procedure, SC incorporated substantive due process, making Art 21 the cornerstone of dignity and rights. Its expansion to privacy, environment, health, and education demonstrates adaptability, a major strength of Indian constitutionalism.
Article 22 – Balancing Liberty with Security (Preventive Detention):
Art 22 attempts to balance individual liberty against state security. While safeguards exist (Advisory Board, grounds), PD remains controversial due to curtailment of liberty without trial and potential for misuse. Judiciary's role in scrutiny is crucial, but often limited to procedural compliance, raising concerns about its draconian nature in a democracy.
Current Affairs & Recent Developments
- Regulation of Digital Media/Social Media (Art 19(1)(a)): Ongoing debates and legal challenges to IT Rules (e.g., amendments for fact-checking units). Concerns about free speech vs. curbing misinformation.
- Sedition Law (Sec 124A IPC / New BNS Provision) (Art 19(1)(a)): SC's stay on sedition cases continues. New Bharatiya Nyaya Sanhita (BNS), 2023, Section 152 replaces sedition. Its interpretation will be keenly watched.
- Right to Protest (Art 19(1)(b) & (a)): Courts continue to adjudicate limits of protest, balancing it with public order and inconvenience (e.g., farmers' protests, Shaheen Bagh judgment).
- Right to Privacy (Art 21): Digital Personal Data Protection Act, 2023, enacted to operationalize privacy. Its implementation, effectiveness, and government exemptions are under discussion. Surveillance technologies remain a concern.
- Right to Choose Partner (Art 21): SC judgment on same-sex marriage (Oct 2023) affirmed dignity, liberty, and choice under Article 21 for LGBTQ+ individuals regarding cohabitation and freedom from discrimination.
UPSC Previous Year Questions (PYQs)
Prelims MCQs
1. Which of the following are regarded as the main features of the ‘Rule of Law’? (UPSC CSE 2018)
Select the correct answer using the code given below:
(a) 1 and 3 only
(b) 2 and 4 only
(c) 1, 2 and 4 only
(d) 1, 2, 3 and 4
Answer: (c)
Hint/Explanation: Rule of Law implies limitation of powers, equality, and protection of liberty/rights. People's responsibility to govt is not a core tenet; rather govt's responsibility to law.
2. What is the position of the Right to Property in India? (UPSC CSE 2021)
(a) Legal right available to citizens only
(b) Legal right available to any person
(c) Fundamental Right available to citizens only
(d) Neither Fundamental Right nor legal right
Answer: (b)
Hint/Explanation: Right to Property was removed as FR (Art 19(1)(f) & Art 31 omitted by 44th Am.). It is now a constitutional/legal right under Article 300-A, available to any person (citizen or non-citizen).
3. Which Article of the Constitution of India safeguards one’s right to marry the person of one’s choice? (UPSC CSE 2019)
(a) Article 19
(b) Article 21
(c) Article 25
(d) Article 29
Answer: (b)
Hint/Explanation: SC has held right to marry person of choice is part of Right to Life and Personal Liberty under Article 21.
Mains Questions
Direction/Value Points:
- Introduction: Briefly explain FRs and the significance of Right to Privacy judgment.
- K.S. Puttaswamy vs. Union of India (2017): Right to Privacy declared a Fundamental Right, intrinsic to Article 21, also flows from other FRs (e.g., Art 19). Not absolute, subject to reasonable restrictions (legitimate state aim, proportionality, legality).
- Scope of FRs expanded by Privacy Judgment: Bodily autonomy, personal choices, informational privacy, digital privacy, surveillance. Impact on data protection laws (DPDP Act, 2023). Implications for Aadhaar. Strengthens individual autonomy against state and private intrusion.
- Conclusion: The Right to Privacy judgment profoundly expanded the scope of Fundamental Rights, particularly Article 21, making it a powerful shield for individual autonomy in the modern information age.
Direction/Value Points:
- Introduction: Explain Art 19(1)(a) and its importance. State it's not absolute.
- Reasonable Restrictions under Article 19(2): List all eight grounds (Sovereignty/integrity, security, foreign relations, public order, decency/morality, contempt, defamation, incitement). Briefly explain rationale for each.
- Judicial Scrutiny: Courts assess proportionality, direct nexus, absence of arbitrariness.
- Do Restrictions Unduly Curtail Freedom? (Critical Evaluation):
- Arguments for necessity: Balance individual liberty with societal interests, national security.
- Arguments for undue curtailment: Vagueness of terms (public order, decency) leading to misuse. Chilling effect on speech (sedition, defamation). State overreach.
- Conclusion: Reasonable restrictions are necessary, but their application must be narrow, precise, and subject to rigorous judicial scrutiny to prevent suppression of legitimate speech and dissent, maintaining a healthy balance.
Direction/Value Points:
- Introduction: Explain Article 22 and its two parts.
- Safeguards under Ordinary Law (Art 22(1) & 22(2)): Informed of grounds, consult lawyer, produced before magistrate within 24 hrs, no detention beyond 24 hrs without magistrate's authority.
- Safeguards under Preventive Detention Law (Art 22(4)-(7)): Detention not > 3 months unless Advisory Board approves, grounds communicated (exc. public interest), opportunity for representation. (Note: Art 22(1) & 22(2) safeguards NOT available).
- Critical Evaluation of Preventive Detention:
- Arguments for (State): Necessary for national security, public order ("necessary evil").
- Arguments against (Democratic/Rights): Detention without trial, potential for misuse, lack of robust judicial oversight on grounds, contradicts natural justice. India is one of few democracies with PD in Constitution in peacetime.
- Judicial Scrutiny: Courts review procedural compliance, bona fides, but not sufficiency of grounds.
- Conclusion: PD is a significant constitutional compromise. While safeguards exist, the balance often tilts against individual liberty due to executive discretion and misuse potential. Its use needs constant vigilance and strict adherence to fairness.
Original MCQs for Prelims (Practice)
1. Which of the following rights is implicitly included within the scope of "Freedom of Speech and Expression" under Article 19(1)(a) of the Indian Constitution, as interpreted by the Supreme Court?
Select the correct answer using the code given below:
(a) 1 and 3 only
(b) 1, 3 and 4 only
(c) 2 and 4 only
(d) 1, 2, 3 and 4
Answer: (b)
Explanation: Right to strike is generally considered a legal/statutory right, not a fundamental right under Article 19(1)(a) or 19(1)(c). Right to broadcast/telecast, right to silence, and right to information have all been judicially recognized as flowing from Article 19(1)(a).
2. The protection against 'double jeopardy' under Article 20(2) of the Indian Constitution means that a person shall not be:
(a) Arrested more than once for the same alleged act.
(b) Prosecuted and punished for the same offence more than once by a court of law or judicial tribunal.
(c) Subjected to both criminal prosecution and departmental proceedings for the same misconduct.
(d) Compelled to give evidence against themselves in more than one trial for the same offence.
Answer: (b)
Explanation: Double jeopardy under Article 20(2) specifically prohibits being "prosecuted and punished for the same offence more than once" by a court of law or judicial tribunal. It doesn't bar departmental proceedings alongside criminal prosecution, nor does it relate to multiple arrests or self-incrimination in multiple trials (self-incrimination is Art 20(3)).
3. The landmark judgment in Maneka Gandhi vs. Union of India (1978) significantly expanded the interpretation of Article 21 by holding that the "procedure established by law" must be:
(a) Enacted only by the Parliament of India.
(b) Strictly in accordance with the provisions of the Criminal Procedure Code.
(c) Fair, just, and reasonable, and not arbitrary, fanciful, or oppressive.
(d) Limited only to protection against executive action and not legislative action.
Answer: (c)
Explanation: The Maneka Gandhi case was pivotal in ruling that the procedure under Article 21 must be fair, just, and reasonable, effectively incorporating principles of substantive due process and significantly broadening the protection of personal liberty against arbitrary legislative action as well.