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  • 8/13/2019 Project Constitution ARTICLE 19

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    Indian Constitution: Article 19

    Freedom of speech and expression

    PROJECT

    Submitted For the partial fulfillment for the degree of

    B.B.A.LL.B.

    Submitted to: Submittedby:Mr. Santosh Yadav Aniket Seth(faculty of Constitutio-1) B.B.A.LL.BV thSem

    2011-2016

    Siddhartha Law College, Dehradun

    (Affiliated to Uttarakhand Technical University, Dehradun)

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    Table of contents

    CONTENTS Pg no.

    1) Acknowledgement...........................................................22) Table of cases....................................................................3

    3) Abstract.............................................................................4

    4) Reasonable restrictions......................................................5

    5) Freedom of speech and expression....................................5-10 Freedom of press----------7-9

    Right to information------9-106) Grounds of restriction.........................................................11-14

    7) Freedom to assemble..........................................................14-15

    8) Freedom to form association...............................................15-17

    9) Freedom of movement and residence..................................17-20

    10) Freedom to carry on trade and occupation...........................20

    11) Bibliography

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    TABLE OF CASES

    A.K. Gopalan vs The State Of Madras.Union Of ... on 19 May, 1950 Association for Democratic Reforms Case Babulal Parate v. State of Maharashtra Brij Bhusan Vs State of Delhi (1950) Damyanti Narang Vs Union of India Excel wear Vs Union of India (1979 SC 25) Express newspaper Vs Union of India (1986) Hamdard Dawakhana Vs Union of India Hari Singh Nagra & Ors. Vs Kapil Sibal & Ors Harshaker Vs Deputy Excuse & Taxation commissioner AIR 1975 SC 1121

    Himat lal Vs Police commission case Indian express newspaper Vs Union of India AIR 1962 SC 305 Indian express newspaper Vs UOI the court held that (AIR 1986 SC 515) Indian Express Newspapers pvt ltd Vs union of India (1985 Indirect Tax Practitioners Assn. Vs R.K. Jain K. Krishnamurthi Vs Union of India K.A. Abbas Vs Union of India Kharak Singh Vs The State of U. P. & Others on 18 December, 1962 New York Time Vs Sullivan 376 US 254.

    Pandharnath Sridhar Rangnekar Vs Dy. Commr. of Police.(1973) Railway Board Vs Niranjan Singh AIR (1969) SC 966) Rangarajan Vs P. Jagjivan Ram (1989)2 SCC 574 Romesh Thaper Vs State of Madras AIR 1950 SC S.M. Kala Vs University of Rajasthan Sakal papers Vs Union of India AIR 1986 Sitaramacharya v. Dy, Inspector of School State of madras Vs V.G Row T.M.A Pai foundation Vs State of Karnataka (AIR 2003 SC 355)

    TATA Press ltd Vs MTNL(AIR 1995 SC 2438), Unni Krishnan Vs State of A.P. (AIR 1993 SC 2178 Vishakha Vs state of Rajasthan (AIR 1997 SC 3011) Shyam Bihari Tiwari Vs State of U.P. (1994)

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    ABSTRACT

    Protection of certain rights regarding Freedom of Speech (ARTICLE19)

    19. Protection of certain rights regarding freedom of speech etc(1) All citizens shall have the right(a) to freedom of speech and expression;(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(g) to practise any profession, or to carry on any occupation, trade or business(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 sovereigntyand integrity of India, the security of the State, friendly relations with foreign States, publicorder, decency or morality or in relation to contempt of court, defamation or incitement to anoffence(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing lawin so far as it imposes, or prevent the State from making any law imposing, in the interests ofthe sovereignty and integrity of India or public order, reasonable restrictions on the exerciseof the right conferred by the said sub clause(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing lawin so far as it imposes, or prevent the State from making any law imposing, in the interests ofthe sovereignty and integrity of India or public order or morality, reasonable restrictions onthe exercise of the right conferred by the said sub clause(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of anyexisting law in so far as it imposes, or prevent the State from making any law imposing,reasonable restrictions on the exercise of any of the rights conferred by the said sub clauseseither in the interests of the general public or for the protection of the interests of anyScheduled Tribe(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing lawin 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 saidsub clause, and, in particular, nothing in the said sub clause shall affect the operation of anyexisting 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 orcarrying on any occupation, trade or business, or (ii) the carrying on by the State, or by acorporation owned or controlled by the State, of any trade, business, industry or service,whether to the exclusion, complete or partial, of citizens or otherwise .

    http://www.indiankanoon.org/doc/1142233/http://www.indiankanoon.org/doc/1378441/http://www.indiankanoon.org/doc/1248826/http://www.indiankanoon.org/doc/445304/http://www.indiankanoon.org/doc/1024002/http://www.indiankanoon.org/doc/844404/http://www.indiankanoon.org/doc/935769/http://www.indiankanoon.org/doc/493243/http://www.indiankanoon.org/doc/1723400/http://www.indiankanoon.org/doc/1801956/http://www.indiankanoon.org/doc/1801593/http://www.indiankanoon.org/doc/626103/http://www.indiankanoon.org/doc/1172678/http://www.indiankanoon.org/doc/588489/http://www.indiankanoon.org/doc/588489/http://www.indiankanoon.org/doc/588489/http://www.indiankanoon.org/doc/1172678/http://www.indiankanoon.org/doc/626103/http://www.indiankanoon.org/doc/1801593/http://www.indiankanoon.org/doc/1801956/http://www.indiankanoon.org/doc/1723400/http://www.indiankanoon.org/doc/493243/http://www.indiankanoon.org/doc/935769/http://www.indiankanoon.org/doc/844404/http://www.indiankanoon.org/doc/1024002/http://www.indiankanoon.org/doc/445304/http://www.indiankanoon.org/doc/1248826/http://www.indiankanoon.org/doc/1378441/http://www.indiankanoon.org/doc/1142233/
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    FREEDOMS NOT ABSOLUTE SUBJECT TO REASONABLE RESTRICTIONS Reasonable restriction means intelligent care and discussion that the restriction is not beyondwhat is required for public interest. It should not be arbitrary and excessive. Further, therestriction can only be imposed by law and not by executive or departmental decision.

    Test of reasonable restrictions -Spanning several cases, SC has laid down the followingguidelines :

    1. It is the courts and not the legislature that will decide whether a law is reasonable ornot.

    2. Reasonable means that the law is not arbitrary and the restriction is not beyond whatis required in public interest. The time and duration of the restriction cannot beunlimited.

    3. There is no fixed standard for reasonableness. Each case must be decided on its ownmerits.

    4. The restriction must be reasonable from substantiative as well as procedural stand point.

    5. Restrictions imposed due to implementation of Directive Principles may deemed to bereasonable.

    6. The test of reasonability must be objective in the sense that it does not matter what aJudge or Court thinks what is reasonable but what a normal reasonable person wouldthink.

    7. The restriction must have a relation to the object that is sought through the law and

    must not be excessive.8. It is the reasonableness of the restriction that a count has to determine and not the

    reasonableness of the law itself.9. Restriction may amount to prohibition.

    FREEDOM OF SPEECH AND EXPRESSION

    ARTICLES 19(1) (A) & 19(2)

    Meaning and scope

    Article 19(1) (a) of Indian Constitution says that all citizens have the right to freedom ofspeech and expressionFreedom of speech and expression is the most basic of all freedomsgranted to the citizens of India. J Patanjali Shastri has said in the case of Romesh Thaper VsState of Madras 1 that freedom of speech and that of the press lay at the foundation of ademocratic society, for without free political discussions, no public education is possible,which is so important for the proper functioning of the govt. Freedom of Speech andexpression means the right to express one's own convictions and opinions freely by words of

    1 AIR 1950 SC 124

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    mouth, writing, printing, pictures or any other mode. It thus includes the expression of one'sidea through any communicable medium or visible representation, such as gesture, signs, andthe like. Freedom of speech would amount to nothing if it were not possible to propagate theideas. Thus, the freedom of publication and press is also covered under freedom of speech.

    Free propagation of ideas is the necessary objective and this may be done on the platform orthrough the press. This propagation of ideas is secured by freedom of circulation. Liberty ofcirculation is essential to that freedom as the liberty of publication. Indeed, withoutcirculation the publication would be of little value. The freedom of speech and expressionincludes liberty to propagate not one's views only. It also includes the right to propagate or

    publish the views of other people; otherwise this freedom would not include the freedom of press.

    Freedom of expression has four broad special purposes to serve :

    1) It helps an individual to attain self-fulfillment.2) It assists in the discovery of truth.3) It strengthens the capacity of an individual in participating in decision-making.4) It provides a mechanism by which it would be possible to establish a reasonable

    balance between stability and social change.5) All members of society would be able to form their own beliefs and communicate

    them freely to others.

    In sum, the fundamental principle involved here is the people's right to know. Freedom ofspeech and expression should, therefore, receive generous support from all those who believein the participation of people in the administration. It is on account of this special interestwhich society has in the freedom of speech and expression that the approach of theGovernment should be more cautious while levying taxes on matters of concerningnewspaper industry than while levying taxes on other matters. Explaining the scope offreedom of speech and expression Supreme Court has said that the words "freedom of speechand expression" must be broadly constructed to include the freedom to circulate one's views

    by words of mouth or in writing or through audiovisual instrumentalities. It therefore includesthe right to propagate one's views through the print media or through any othercommunication channel e.g. the radio and the television. Every citizen of this country

    therefore has the right to air his or their views through the printing and or the electronicmedia subject of course to permissible restrictions imposed under Article 19(2)of theConstitution.

    Freedom to air one's view is the lifeline of any democratic institution and any attempt tostifle, suffocate or gag this right would sound a death knell to democracy and would helpusher in autocracy or dictatorship. The modern communication mediums advance publicinterest by informing the public of the events and development that have taken place andthereby educating the voters, a role considered significant for the vibrant functioning of a

    democracy. Therefore, in any setup more so in a democratic setup like ours, dissemination ofnews and views for popular consumption is a must and any attempt to deny the same must be

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    frowned upon unless it falls within the mischief of Article 19(2) of the Constitution.The various communication channels are great purveyors of news and views and makeconsiderable impact on the minds of readers and viewers and our known to mould publicopinion on vitals issues of national importance. The freedom of speech and expression

    includes freedom of circulation and propagation of ideas and therefore the right extends to thecitizen to use the media to answer the criticism leveled against the views propagated by him.Every free citizen has undoubted right to lay what sentiments he pleases. This freedom must,however, be exercised with circumspection and care must be taken not to trench on the rightsof other citizens or to jeopardise public interest.

    NEW DIMENSIONS OF FREEDOM OF SPEECH AND EXPRESSION

    Government has no monopoly on electronic media : The Supreme Court widened the scopeand extent of the right to freedom of speech and expression and held that the government has

    no monopoly on electronic media and a citizen has under Art. 19(1)(a) a right to telecast and broadcast to the viewers/listeners through electronic media television and radio any importantevent. The government can impose restrictions on such a right only on grounds specified inclause (2) of Art. 19 and not on any other ground. A citizen has fundamental right to use the

    best means of imparting and receiving communication and as such have an access totelecasting for the purpose.

    Commercial Advertisements : The court held that commercial speech (advertisement) is a part of the freedom of speech and expression. The court however made it clear that thegovernment could regulate the commercial advertisements, which are deceptive, unfair,misleading and untruthful. Examined from another angle the Court said that the public atlarge has a right to receive the "Commercial Speech". Art. 19(1)(a) of the constitution notonly guaranteed freedom of speech and expression, it also protects the right of an individualto listen, read, and receive the said speech.

    Telephone Tapping : Invasion on right to privacy : Telephone tapping violates Art. 19(1)(a)unless it comes within grounds of restriction under Art. 19(2). Under the guidelines laid down

    by the Court, the Home Secretary of the center and state governments can only issue an orderfor telephone tapping. The order is subject to review by a higher power review committee and

    the period for telephone tapping cannot exceed two months unless approved by the reviewauthority.

    The freedom of speech and expression can be studied under two heads:

    1) Freedom of press2) Right to information

    FREEDOM OF PRESS IN DEMOCRACY It is the primary duty of all the nationalcourts to uphold the freedom of the press and invalidate all laws and administrative actionswhich interfere with such freedoms against constitutional mandate, observed the Supreme

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    Court in Indian express newspaper Vs Union of India 2, While highlighting the importanceof the freedom of the press in a democracy. To arrest the malpractices of interfering with thefree flow of information , the democratic constitution all over the world provided guaranteeof freedom of speech and expression underlying the circumstances under which restrictions

    are imposed.F reedom of press in I ndia and U .S.A there is no provision in the constitution of India

    providing guarantee for the freedom of the press but the Supreme Court in Sakal papers VsUnion of India 3 widely interpreted the scope of art. 19(1)(a) to include within its fold thefreedom of the press which is regarded as a species of which freedom of expression is agenus. Thus in India the freedom of press flows from the freedom of speech and expressionand enjoy no higher privilege than the freedom of speech and expression.

    But the first amendment to the constitution of the USA protected the freedom of the press andin the USA the press functions as a watch-dog overseeing generally the functions of theexecutive, legislature and the judiciary and to criticize the abuse of the power by thegovernmental agencies, New York Time Vs Sullivan 376 US 254.

    F reedom of Ci rculation the Indian Constitution does not use the expressio n freedom of press in art 19 but it is included in one of guarantees in art 19(1)(a) of the constitution.Justice Venkataramiah in Indian Express Newspapers pvt ltd Vs union of India 4(1985) observed that the freedom of press is one of the items around which the greatest and betterestof constitutional struggles have been waged an all countries where liberal constitution

    prevails.

    The effect of art 29 on the freedom of press was analysed by the apex court in Expressnewspaper Vs Union of India 5 ( where two earlier decisions of the court in Romesh ThaperVs state of Madras, and Brij Bhusan Vs State of Delhi 6 where the government tried to puta ban on the circulation of newspaper, . The court while interpreting the scope of art 19(1)(a)of the constitution held that the freedom of speech and expression includes freedom of

    propagation of ideas which freedom was ensured by the freedom of circulation and that theliberty of press consisted in allowing to previous restraint upon the publication. It was furtherobserved that the fundamental freedom of speech and expression enshrined in ourconstitution was based on the provision to the First Amendment of the constitution of USA.

    Also there would be violation of the liberty of press not only when there is a direct ban on thecirculation of a publication, but also when some action on the part of the governmentadversely affects the publication.

    Right to Privacy publi cation of autobiography of a condemned pri soner -pri or r estr aint- thequestion concerning the freedom of press vis a vis the right of the citizen and the scope of

    prior restraint by the government and the parameters of the right of the press to criticize was

    2 AIR 1962 SC 3053 AIR 19864

    AIR19855 AIR 19866 AIR 1950

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    considered by the Supreme Court in S. Rangarajan Vs P. Jagjivan Ram 7. the Facts of thecase were that the petitioners who were the publishers of a Tamil weekly magazineapproached the Supreme Court to restrain the government from interfering with their right of

    publication of the autobiography of the condemned person Auto Sankar. The Supreme Court

    Held that the government or their officials have no right to impose prior restraint upon the publication on the apprehension that they may be defamed. The Court reasoned that rightto privacy is implicit in the right to life and liberty guaranteed under art 21 of the constitution.It is a right to be let alone. A citizen has a right to safeguard privacy of his own, his family,marriage, procreation, motherhood, child bearing and education amongst other matters andnone can publish anything without his consent. But once the matter becomes part of publicrecord including the courts record, the publication of the same would not violate the right theright to privacy and it becomes a legitimate subject for comments by the press and media.

    However, in the interest of decency an exception must be carved out to this rule.

    Right of press - interview and photograph of under -tr ial pr isoners- conditions- the press isentitled to exercise the freedom of speech and expression by publishing a matter which doesnot invade the rights of other citizens and which does not violate the sovereignty and integrityof India, the security of state, public order, decency and morality. The press must obtain thewillingness of person sought to be interviewed and so-called right of press which is obtainedon the basis of the permission would be subjected to prohibitions from Jail Manual.

    Shoul d the jour nal ist r eveal it s source- the Press Council Act,1978 provides that it should notforce a journalist to reveal its source. But the Delhi High Court in a case against The Pioneer

    said that if the court considered necessary in the interest of justice, the court could direct the journalist to disclose its source of information.

    RIGHT TO INFORMATION

    F reedom of speech r ight of voters, antecedents of candidates :- the foundation of a healthydemocracy is to have well-informed citizens-voters. The reason to have right of informationwith regard to the antecedents of the candidate is that voter can judge and decide in whosefavour he should cast his vote. It is voter s discretion whether to vote in favour of an illiterateor literate candidate. It is his choice whether to elect a candidate against whom criminal

    cases, for serious or non-serious charges were filed but is acquitted or discharged . For thefirst time the right to know about the candidate standing for election has been brought withinthe sweep of article 19(1) (a). There is no doubt that by doing so a new a new dimension has

    been given dictated by the need to improve and refine the political process of election.

    The Supreme Court in Association for Democratic Reforms Case 8 has Held that article19(1) (a) which provides for freedom of speech and expression would cover in its fold rightof the voter to know specified antecedents of a candidate , who is contesting elections.

    7 AIR 1989 SCC 5748 AIR 2002 SC 2112

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    Also in K. Krishnamurthi Vs Union of India 9 the nature of Right to vote and contestelections -was Held that it does not have the status of fundamental rights - They are in thenature of legal rights which can be controlled through legislative means - Constitutionempowers the Election Commission to prepare electoral rolls for identifying the eligible

    voters in elections for Lok Sabha and Vidhan Sabha - Right to vote is not an inherent rightand cannot be claimed in an abstract sense -1951 Act includes grounds that render personsineligible from contesting elections. Thus, there is no inherent right to contest elections sincethere are explicit legislative controls over the same - Representation of the People Act, 1951.Thus it is a statutory right.

    COMMERCIAL ADVERTISEMENTS- INCLUDED

    In Hamdard Dawakhana Vs Union of India 10, it was held that commercialadvertisements were not included within the concept of freedom of speech and expression.

    In Indian express newspaper Vs UOI 11 the court held that all commercial advertisementscould not denied the protection of art 19(1)(a), merely because they were issued by a

    businessmen.

    Thus explaining the effect of the combined reading of both the above cases the SupremeCourt in TATA Press ltd Vs MTNL 12 Held that commercial speech could not be denied the

    protection of art 19(1)(a), merely because they were issued by businessmen. In a democraticsociety it was observed that free flow of commercial information was indispensible.

    Pre- censorshi p of f il ms K.A. Abbas Vs Union of India 13

    Facts - The petitioner made a documentary film called "A Tale of Four Cities" whichattempted to portray the contrast between the life of the rich and the poor in the four principalcities of the- country. The film included certain shots of the red light district in Bombay.Although the petitioner applied to the Board of Film Censors for a `U' Certificate forunrestricted exhibition of the film, he was granted a certificate only for exhibition restrictedto adults. On an appeal made to it by the petitioner, the Central Government issued adirection on July 3, 1969 that a `u' Certificate may be granted provided certain specified cutswere made in the film. The petitioner thereafter field the present petition seeking adeclaration that the provisions of Part 11 of the Cinematograph Act, 1952, together with therules prescribed by the Central Government on February 6, 1960 in the exercise of its powersunder s. 5-B of the Act were un- constitutional and void; he further prayed that the directiondated July 3, 1969 should be quashed. The petitioner claimed that his fundamental tight offree speech and expression was denied by the order of the Central Government and that hewas entitled to a 'U' Certificate for the film as of right.

    Held - (i) Censorship of films including prior restraint is justified under the Constitution.

    9 AIR 2010,VOL 7, SCC 20210 196011

    AIR 1986 SC 51512 AIR 1995 SC 243813 AIR 1971

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    It has been almost universally recognised that the treatment of motion ,pictures must bedifferent from that of other forms of art and expression. The motion picture is able to stir upemotions more deeply than any other product of art. Its effect particularly on children andadolescents is very great since their immaturity makes them more willingly suspend their

    disbelief than mature men and women. They also remember the action in the picture and tryto emulate or/ imitate what they have seen. Therefore, classification of films into twocategories of 'U' films and 'A' films is a reasonable classification. It is also for this reason thatmotion picture must be regarded differently from other forms of speech and expression. A

    person reading a book or other writing or hearing a speech or viewing a painting or sculptureis not so deeply stirred as by seeing a motion picture. Therefore the treatment of the latter ona different footing is also a valid classification.

    GROUNDS OF RESTRICTIONS

    It is necessary to maintain and preserve freedom of speech and expression in a democracy, soalso it is necessary to place some restrictions on this freedom for the maintenance of socialorder, because no freedom can be absolute or completely unrestricted. Accordingly, underArticle 19(2) of the Constitution of India, the State may make a law imposing reasonablerestrictions on the exercise of the right to freedom of speech and expression in the interestof i the public on the following grounds: Clause (2) of Article 19 of Indian constitutioncontains the grounds on which restrictions on the freedom of speech and expression can beimposed

    1) Security of State : Under Article 19(2) reasonable restrictions can be imposed on fredomof speech and expression in the interest of security of State. The term "security of state" refersonly to serious and aggravated forms of public order e.g. rebellion, waging war against theState, insurrection and not ordinary breaches of public order and public safety, e.g. unlawfulassembly, riot, affray. Thus speeches or expression on the part of an individual, which inciteto or encourage the commission of violent crimes, such as, murder are matters, which wouldundermine the security of State.

    2) Friendly relations with foreign states : This ground was added by the constitution (FirstAmendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious

    propaganda against a foreign friendly state, which may jeopardise the maintenance of goodrelations between India, and that state. No similar provision is present in any otherConstitution of the world. In India, the Foreign Relations Act, (XII of 1932) provides

    punishment for libel by Indian citizens against foreign dignitaries. Interest of friendlyrelations with foreign States, would not justify the suppression of fair criticism of foreign

    policy of the Government. It is to be noted that member of the commonwealth includingPakistan is not a "foreign state" for the purposes of this Constitution. The result is thatfreedom of speech and expression cannot be restricted on the ground that the matter isadverse to Pakistan.

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    3) Public Order : This ground was added by the Constitution (First Amendment) Act. 'Publicorder' is an expression of wide connotation and signifies "that state of tranquility which

    prevails among the members of political society as a result of internal regulations enforced bythe Government which they have established." Public order is something more than ordinary

    maintenance of law and order. 'Public order' is synonymous with public peace, safety andtranquility. The test for determining whether an act affects law and order or public order is tosee whether the act leads to the disturbances of the current of life of the community so as toamount to a disturbance of the public order or whether it affects merely an individual beingthe tranquility of the society undisturbed. Anything that disturbs public tranquility or public

    peace disturbs public order. Thus communal disturbances and strikes promoted with the soleobject of causing unrest among workmen are offences against public order. Public order thusimplies absence of violence and an orderly state of affairs in which citizens can peacefully

    pursue their normal avocation of life. Public order also includes public safety. Thus creatinginternal disorder or rebellion would affect public order and public safety. But mere criticismof government does not necessarily disturb public order. In its external aspect 'public safety'means protection of the country from foreign aggression. Under public order the State would

    been titled to prevent propaganda for a state of war with India. The words 'in the interest of public order' includes not only such utterances as are directly intended to lead to disorder butalso those that have the tendency to lead to disorder. Thus a law punishing utterances madewith the deliberate intention to hurt the religious feelings of any class of persons is valid

    because it imposes a restriction on the right of free speech in the interest of public order sincesuch speech or writing has the tendency to create public disorder even if in some case thoseactivities may not actually lead to a breach of peace. But there must be reasonable and proper

    nexus or relationship between the restrictions and the achievements of public order.

    4) Decency or morality : The words 'morality or decency' are words of wide meaning.Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedomof speech and expression in the interest of decency or morality. These sections prohibit thesale or distribution or exhibition of obscene words, etc. in public places. No fix standard islaid down till now as to what is moral and indecent. The standard of morality varies fromtime to time and from place to place.

    5) Contempt of Court : Restriction on the freedom of speech and expression can be imposedif it exceeds the reasonable and fair limit and amounts to contempt of court. According to theSection 2 'Contempt of court' may be either 'civil contempt' or 'criminal contempt.' In ademocratic country Judiciary plays very important role. In such situation it becomes essentialto respect such institution and its order. Thus, restriction on the freedom of speech andexpression can be imposed if it exceeds the reasonable and fair limit and amounts tocontempt of court. According to the Section 2 'Contempt of court' may be either 'civilcontempt' or 'criminal contempt.' But now, Indian contempt law was amended in 2006 tomake truth a defence. However, even after such amendment a person can be punished forthe statement unless they were made in public interest. Again in Indirect Tax Practitioners

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    Assn. Vs R.K. Jain 14 , it was held by court that, Truth based on the facts should be allowedas a valid defence if courts are asked to decide contempt proceedings relating to contempt

    proceeding relating to a speech or an editorial or article. The qualification is that suchdefence should not cover-up to escape from the consequences of a deliberate effort to

    scandalize the court. Also in a recent judgement in a caseHari Singh Nagra & Ors. Vs Kapil Sibal & Ors. 15

    Facts of case - In a Souvenir published by a literary group/Association of lawyers practicingin Supreme Court, various messages, articles, poems etc. were contributed by members of theBar and the Hon'ble Judges. Respondent, a Senior Advocate also sent a message to be

    published in the Souvenir, which expressed concern about the plight of junior members of theBar and about the falling standards of legal fraternity. The message was neither released tothe press, nor was the Souvenir made available for sale. It was circulated only to its membersand other members of the Bar. Thereafter, when respondent No. 1 filed his nomination forcontesting the post of President of Supreme Court Bar Association, a news item was

    published in the Sunday, Times of India daily wherein certain excerpts of the message werereported, which suggested that the senior advocate made frontal attack on the judiciary.Petitioner, the practicing lawyers of Punjab and Haryana High Court filed criminal contemptof court under Article 215 of the Constitution of India against the three respondents allegingthat one respondent entered into a conspiracy with other two respondants to bringadministration of justice into disrespect which amounted to deliberate interference in theadministration of justice.

    Held -Any criticism about the judicial system or the judges which hampers theadministration of justice or brings administration of justice into ridicule must be prevented.The contempt of court proceedings arise out of that attempt. National interest requires that allcriticisms of the judiciary must be strictly rational and sober and proceed from the highestmotives without being coloured by any partisan spirit or tactics. There is no manner of doubtthat freedom of expression as contemplated by Article 19(1)(a) of the Constitution isavailable to the Press and to criticize a judgment fairly albeit fiercely is no crime but anecessary right. A fair and reasonable criticism of a judgment which is a public document orwhich is a public act of a Judge concerned with administration of justice would not constitutecontempt. In fact, such fair and reasonable criticism must be encouraged because after all noone, much less Judges, can claim infallibility. The Message examined the evils prevailing inthe judicial system and was written with an object to achieve maintenance of purity in theadministration of justice.

    6) Defamation: Defamation: Ones freedom, be it of any type, must not affect the reputationor status another person. A person is known by his reputation more than his wealth or anything else. Constitution considers it as ground to put restriction on freedom of speech.Basically, a statement, which injures a man's reputation, amounts to defamation. Defamation

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    consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating todefamation is still uncodified in India and subject to certain exceptions.7) Incitement to an offence : This ground was also added by the constitution (FirstAmendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right

    to incite people to commit offence. The word 'offence' is defined as any act or omission made punishable by law for the time being in force.

    8) Sovereignty and integrity of India - To maintain sovereignty and integrity of a state is prime duty of government. Taking into it into account, freedom of speech and expression can be restricted so as not to permit any one to challenge sovereignty or to permit any one to preach something which will result in threat to integrity of the country.

    9) Sedition: As understood by English law, sedition embraces all those practices whether bywords, or writing which are calculated to disturb the tranquility of the State and lead ignorant

    person to subvert the government. It should be noted that the sedition is not mentioned inclause (2) of Art. 19 as one of the grounds on which restrictions on freedom of speech andexpression may be imposed.

    FREEDOM TO ASSEMBLE -ART 19(1) (B)

    Art 19(1) (b) guarantees to the citizens of India the right to assemble peaceably and withoutarms. Under art.19(1)(3), however, the state can make any law imposing reasonablerestrictions on the exercise of this right in the interest of public order, and sovereignty andintegrity of India.

    To some extent, there is common ground between art 19(1) (a) and art19 (1) (b). For example demonstrations, processions and meetings considered under art 19(1) (a) also fall under art19(1) (b) for a demonstration also amounts to an assembly and, therefore, the same principlesapply under both articles. The right to strike is not available under either of these articles.

    Restrictions on freedom of assembly

    1) Assembly should not be violent but peaceful.2) It should be without arms

    3) The public order has to be maintained.M eetings in government places this could be well understood by a case judgement in

    Railway Board Vs Niranjan Singh 16 . The Question arose that whether anyone could holdmeetings in government premises or not even though the person is government employ?

    The court held that it is true that the freedoms guaranteed under our Constitution are veryvaluable freedoms and this Court would resist abridging the ambit of those freedoms exceptto the extent permitted by the Constitution. The fact that the citizens of this country havefreedom of speech, freedom to assemble peaceably and freedom to form - associations or

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    unions does not mean that they can exercise those freedoms in whatever place they please.The exercise of those freedoms will come to an end as soon as the 'right of some-one else tohold his property intervenes. Such a limitation is inherent in the exercise of those 'rights.The validity of that limitation is not to be judged by the tests prescribed by Sub-Arts.

    (2) And (3) of Art. 19. In other words the contents of the freedoms guaranteed undercls.(a), (b) and (c), the only freedoms with which we are concerned in this appeal, do notinclude the right to exercise them in the properties belonging to others a citizen of thiscountry in the exercise of his right under cls. (d) And (e) of Art. 19(1) could move aboutfreely in a public-office or even reside there unless there exists some law imposingreasonable restrictions on the exercise of those rights .

    Absolute ban on publ ic meetings in India citizens had a right to hold meetings in publicstreets before the constitution, subject to the control of appropriate authority regarding thetime and place of the meeting and considerations of public order. In Himat lal Vs Police

    commission case17

    the court held that the State cannot by law abridge or take away the rightof assembly by prohibiting assembly on every Public Street or public place. The State canonly make regulations in aid of the right of assembly of each citizen and can only imposereasonable restrictions in the interest of public order. If the right to hold public meetingsflows from Art.19 (1) (b) and Art. 19(1) (d) it is obvious that the State cannot imposeunreasonable restrictions. It must be, kept in mind that Art.19 (1) (b), read with Art.13, and

    protects citizens against State action. It has nothing to do with the right to assemble on private streets or property without the consent of the owners or occupiers of the private property.

    This Court in Babulal Parate v. State of Maharashtra 2 rightly observed: "The right ofcitizens to take out processions or to hold public meetings flows from right in Art. 19(1) (b)to assemble peaceably and without arms and the right to move anywhere in the territory ofIndia."

    FREEDOM TO FORM ASSOCIATION:

    ART 19(1) (C) AND 19(4)

    An association means a collection of persons who have joined together for a certain object,

    which may be for the benefit of the members or the improvement, welfare or advantage of themembers or the improvement, welfare or advantage of the public or some scientific,charitable or similar purpose. Article 19(1)(c) includes the right to form companies,societies, partnership firms, trade unions, clubs, political parties and the like body of persons.This freedom implies that several individuals can get together and form voluntary admit inthe association with common aims, legitimate purpose and a community of interests. The

    person who form the association have the associational right to continue with the memberwith those other whom they voluntarily admit an association. Any state action directed tohighjack association by taking it over, introducing officials in the management body ofassociation, trading out the member or restricting the committees and bodies constitution in

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    accordance with the constitution of the association. Association of which citizens may bemembers may be social, academic creational, religious, cultural, or professional, vocationalor political. These may include associations for of cultural activities.

    Recognising the importance of the right of forming associations in a democratic society, thecourts have not favoured the vesting of absolute discretion in the executive to interfere withthis fundamental right. A discretion vested in a government official to prohibit formation ofan association, without proper safeguards, has been held to be unconstitutional.

    From time to time the Supreme Court has always been trying to clarify the extent of right to form association

    Reasonableness 19(4)

    State of madras Vs V.G Row 18 , the Supreme Court declared the provision to be

    unconstitutional for the test to be declaring an association unlawful was subjective and thefactual existence of the grounds was not justifiable. The court emphasized that curtailing theright to form association was fraught with serious potential reactions in religious, politicaland economic fields. Therefore, the vesting of power in the government to impose restrictionon this right without consideration in judging the reasonableness of the restrictions. Theexistence of a summary and largely one-sided review by an advisory board was no substitutefor a judicial inquiry.

    Membership of an association

    In Damyanti Narang Vs Union of India19

    the apex court held the citizens freedom to forman association includes his right to become a member of an association already existing, rightto continue to manage and organise an association already formed, right to formulate andimplement the lawful objectives of such association.

    Freedom not to join an association

    The question whether the associational freedom not to join an association, or union wasraised in S.M. Kala Vs University of Rajasthan is left open to be considered at someappropriate moment in future. His associational freedom protects the right of a person not to

    become a member, if he does not want to join it, or voluntarily to cease or to resign itsmembership.

    Right to form associations and union is guaranteed so that the people can form a group of people having the similar view, In Sitaramacharya v. Dy, Inspector of Schoo 20 l, it washeld that this right necessarily implies a right not to be a member of an association. Thus, noone can be compelled to become member of an association.

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    The freedom under the sub-clause (c) of clause (1) of article 19 is subject certain reasonablerestrictions under the law which may be imposed in interest of:

    1) Sovereignty and integrity of India;2) Public order;3) Morality

    The reasonableness of restrictions is determined by a direct nexus between the demands ofsocial control conducive to public interests and the imposed restrictions. It can be judiciallydetermined in the context of each individual case, after taking into consideration both thesubstantive and procedural aspects of the proposed statutory restrictions. The governmentservants may be forbidden from becoming from becoming members of, or otherwise beingassociated with any political party or a like organisation. The officers and man of the armedand security forces and police force including the non gazetted members of the policeorganisation are not free to form, or to members of any association/union/, society orinstitution, unless permitted by a law / police regulation framed under legal authorisation.

    Nor any association of their can seek, or can apply registration under the Trade Union Act1926. But the right to association remains citizens basic right, although its reach doe s notextend to the privileges of incorporated bodies of citizens: The Hindi Sahitya Sammelan-Rastrabhasa Prachar Samiti Cases.

    LAW OF CONSPIRACY AND UNLAWFUL ASSOCIATION

    The act of forming an association is lawful, unless it constitutes a crime, or tort of conspiracy.The tort of conspiracy consists in a combination for the purpose of damaging the plaintiffsinterests in trade or otherwise. The tortious conduct of one of the defendants can be attributedto all of them. A combination of traders in a trade to ward off free lawful competition with arival trader, or of the trade union officers to get a non-union employee dismissed by theemployer and the like constitutes a tortious conspiracy.

    An unlawful association is one which encourages aids, or aims at unlawful purposes, abetscommission of acts of violence, intimidation or immorality. An association otherwise lawfulceases to be lawful.

    FREEDOM OF MOVEMENT AND RESIDENCE:ART 19(1) (D), (19) (E) AND (19) (5)

    IMPORTANCE

    Inhered in his status of citizenship, the citizens right to move freely throughout the territoryof India is an important aspect of his freedom. The freedom of locomotion guarantees him ingeneral right of free movement which is an aspect of his personal liberty, although a specificand limited part of it. It secures to hi, the right and privilege to go to any place within thecountry across all states and inter- state barriers. A citizen needs no passport and no visawhile travelling inside the country.

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    Art 19(1) (d) guarantees to every citizen the right to move freely throughout the territory ofIndia. Art 19(1)(e) guarantees to a citizen the right to reside and settle in any part ofIndia.19(5), however the state may impose restrictions on these rights by law in the interestsof general public or for the protection of the interests of any Scheduled Tribe.

    ARTICLE 19(1) (D) AND 19(1) (E) ARE COMPLEMENTARY

    Broadly speaking the two rights contained in articles 19(1) (d) and 19(1) (e) are parts of thesame right and are complementary and often go together. Most of the cases considered underarticle 19(d) are relevant to article 19(e) also. The two rights are therefore discussed together.

    FOREIGNERS

    Art 19(1) (d) applies only to the citizens and not to foreigners. Accordingly the fundamentalright of a foreigner is confined to art 21 guaranteeing his life and liberty. He cannot claim the

    right to reside and settle in the country as guaranteed by art 19(1) (e). The government ofIndia thus has the power to expel foreigners from India.

    Restricting movement to maintain public order

    The Punjab Akalis threatened to hold a demonstration in Delhi on the occasion of theinauguration of Asian games. To frustrate such demonstration, the governments of Haryanaand Uttar Pradesh took stringent measures, such as, barricading highways, resorting toseizure and arrests, intercepting movement of Akalis across the border on to Delhi.

    These steps were challenged through a writ petition in the Supreme Court. The SupremeCourt laid down some general norms as to how the police should behave in such a situation.The police is entitled to impose reasonable restraints on the physical movement of themembers of the public in order to protect public property and avoid needless inconvenienceto other citizens in their lawful pursuits. But all such restraints on personal liberty have tocommensurate with the object which furnishes their justification. The sanctity of person and

    privacy has to be maintained at all costs and ought not to be violated in the name ofmaintenance of law and order.

    Externment

    Art 19(1) (d) and art 19(1) (e) have been invoked frequently to challenge the validity of anexternment order served by the executive on a citizen requiring him to leave a state or adistrict. Such an order prima facie curtails the freedoms guaranteed by these articles, andtherefore the courts are entitled to test whether the order and the law under which it has beenmade is reasonable within article 19(5). The reasonableness of restrictions can be judiciallydetermined in any given case in accordance with the regulation of the citizens freedom andthe procedural requirements of the official conduct in the matter. Where a person wasdirected to remove himself from the Greater Bombay area, and settle at a place specified inthe externment order, because the activities of that person in the greater Bombay were

    causing alarm and it was reasonably believed that he was about to be engaged in commissionof certain offences, the externment order was held to be reasonable both in the sense of

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    expulsion from the Greater Bombay, and fixation of a place of residence as held inPandharnath Sridhar Rangnekar Vs Dy. Commr. of Police 21 .

    Kharak Singh Vs The State of U. P. & Others 22 on 18 December, 1962

    FACTS- The petitioner was challenged in a dacoity case but was released is there was noevidence against him. The police opened a history sheet against him. He was put under sur-veillance -is defined in Regulation 236 of the U. P. Police Regulations. Surveillance involvessecret picketing of the house or approaches to the houses of the suspects, domiciliary visits atnight, periodical enquiries by officers not below the rank of Sub-Inspector into repute, habits,association, income, expenses and occupation, the reporting by constables and chaukidars ofmovements and absences from home, the verification of movements and absences by meansof inquiry slips and the collection and record on a history sheet of all information bearing onconduct.

    The petitioner filed a writ petition under Art. 32 in which he challenged the constitutionalvalidity of Chapter XX of U. P. Police Regulations, in which Regulation 236 also occurs.

    HELD -Art. 19 (1) (d) the "freedom" here guaranteed is a right "to move freely" throughoutthe territory of India. Omitting as immaterial for the present purpose the last words definingthe geographical area of the guaranteed movement, we agree that the right to "'move" denotesnothing more than a right of locomotion, and that in the context the adverb "'freely" wouldonly connote that the freedom to move is without restriction and is absolute, i. e., to movewherever one likes, whenever one likes and however one likes subject to any valid lawenacted or made under cl. 5. It is manifest that by the knock at the door, or by the man being

    roused from his sleep, his locomotion is not impeded or prejudiced in any manner. LearnedCounsel suggested that the knowledge or apprehension that the police were on the watch forthe movements of the suspect, might induce a psychological inhibition against his movements

    but, as already pointed out, we are unable to accept the argument that for this reason there isan impairment of the "'free" movement guaranteed by sub-cl. (d). The freedom guaranteed byArt. 19 (1) (d) has reference to something tangible and physical rather and not to theimponderable.

    The right to move about being excluded its narrowest interpretation would be that itcomprehends nothing more than freedom from physical restraint or freedom fromconfinement within the bounds of a prison; in other words, freedom from arrest anddetention, from false imprisonment or wrongful confinement or locomotion .

    OUTCOME

    Police survieillanceThe court ruled that no aspect of police surveillance fell within the scope of art 19(1) (d).Against the validity of shadowing of the suspects movement, it was argued that if a person

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    suspected that his movements were being watched by the police, it would induce him a psychological inhibition against movement and this would infringe art 19(1) (d).

    Right to privacy

    An interesting question considered by the court in these cases is whether there is in India afundamental right to privacy. In this case the apex court ruled that the right to privacy is not aguaranteed right in India. The right to privacy is however, not absolute and reasonablerestrictions can be placed thereon in public interest under art 19(1) (5).

    A.K. Gopalan vs The State Of Madras. 23

    Law relating to preventive detention--Whether infringes Fundamental Right as to freedom ofmovement.

    Facts- The petitioner who was detained under the Preventive Detention Act (Act IV of 1950)

    applied under Art. 32 of the Constitution for a writ of habeas corpus and for his release fromdetention, on the ground that the said Act contravened the provisions of Arts. 13, 19, 21 and22 of the Constitution and was consequently ultra rites and that his detention was thereforeillegal.

    Held - Whatever be the precise scope of Art. 19 (1) (d) and Art.19(5) the provisions of Art.19(5) do not apply to a law relating to preventive detention, inasmuch as 'there is a specialself-contained provision in Art. 22 regulating it. Though on movement is nothing denial of

    personal liberty, yet it has nothing to do with the preventive detention. It is an independentand substantive and specific right. It is exercisable when he is free from unlawful

    confinement and detention. When under preventive detention , he loses the sub-stratum for itsexercise. Article 19 of the Constitution has no application to a law which relates directly to

    preventive detention even though as a result of an order of detention the rights referred to insub-cls. (a) to (e) and (g) in general, and sub-cl. (d) in particular, of cl. (1) of Art. 19 may berestricted or abridged; and the constitutional validity of a law relating to such detentioncannot therefore, be judged in the light of the test prescribed in el. (5) of the said Article.

    FREEDOM TO CARRY ON TRADE AND OCCUPATION

    ART 19(1) (G) AND ART 19(6)

    FREEDOM , TRADE AND OCCUPATION DEFINED - the term occupation meanssome activity by which a person is occupied or engaged. It would be an activity of a personundertaken as a means of livelihood or a mission of life. For instance, a journalist hasfundamental right to carry on his or her occupation under art 19(1)(g). It includes profession, trade, or business. The term profession has been interpreted to mean anoccupation requiring the exercise of intellectual skill, often coupled with manual skill. Theterm business means any activity involving the production, distributions and consumptionof wealth and production and availability of material services. While trade is an activityconcerning the sale and purchase of goods. It is an exchange of any article either by barter or

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    for money or for service rendered. The party paying consideration in any trade is aware forwhat he is paying the consideration.

    Exception to the freedom of trade-intoxicants or drugs- the apex court in Harshanker VsDeputy Excuse &Taxation Commissioner 24 said that trad e is and include occupation of

    buying and selling, barter or such skilled work as of goldsmiths commission agent etc. Thecitizen cannot be prevented from carrying on any trade or profession, except on ground ofunlawful character of the trade, or else, that it is extra commercium. He does not possessfreedom to carry on trade, for instance, in intoxicants or drugs.

    There can be no trade in crime. It is as per the will of the person to do or to continue some business, but this right carry on any trade or profession also includes his right to discontinuethe business, or close down the business, trade or profession as in Excel Wear Vs union ofIndia (AIR 1925 SC25)

    Right Against Sexual Harassment of Working Women In Vishaka Vs State ofRajasthan 25 the Supreme Court observed that sexual harassment of working women atworking places would be violation of the victims , fundamental rights under art 19 (1)(g). Inthis case a , social worker was brutally gang raped in a village of rajasthan. The court took aserious note of the matter and issued certain guidelines for the prevention of such incidents.

    No Right Against Competitions art 19(1)(g) does not guarantees protection fromcompetition in trade. Therefore, the loss of income on account of competition in trade doesnot infringe the right to trade under art 19(1)(g). In Shyam Bihari Tewari Vs State ofU.P 26 ., the supreme court held that a cinema owner had no locus standi to challenge, theestablishment and grant in aid, for new cinema hall.

    Right to impart education and establish educational institutions the Supreme court inunni Krishna vs state of A.P 27 commonly known as capitation fee case observed thatactivity of establishing an educational institutional institution could neither a trade or

    business nor could it be a profession within the meaning of art 19(1)(g).

    The above decision of Supreme Court was overruled by T.M.A Pai Foundation Vs State ofKarnataka 28 where the court held that:-

    Education used to be charity or philanthropy in good old times. Gradually it became an'occupation'. Some of the Judicial dicta go on to hold it as an 'industry'. Whether, to receiveeducation, is a fundamental right or not has been debated for quite some time. But it issettled that establishing and administering of an educational institution for impartingknowledge to the students is an occupation, protected by Article 19(1)(g) and additionally byArticle 26(a), if there is no element of profit generation. As of now, imparting education has

    24AIR 1975 SC 112125 AIR 1997 SC 301126

    AIR 199427 AIR 1993 SC 217828 AIR 2003 SC 355

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    come to be a means of livelihood for some professionals and a mission in life for somealtruists.

    It is submitted that taking over the right to regulate admission and fee structure of unaided professional institutions is not a 'reasonable restriction' within the meaning of Article 19(6) ofthe Constitution.

    Restrictions on the right to carry on trade or business art 19(6)

    Reasonable restrictions in public interest. Restriction must not be unreasonable or excessive. Restriction may amount to total prohibition. State trading and state monopoly in a trade or business.

    ibliography

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    1) Prof. Jain M.P, Indian constitutional law, 5 th edition, Wadhwa andcompany Nagpur publishers, New Delhi.

    2) Prof. Narender Kumar, Constitutional Law of India, 7 th edition,Allahabad Law agency, Haryana.

    3) Prof. M.C. Kagzi, The Constitution of India, 6 th edition, Vol-2, IndiaLaw House, New Delhi.

    4) The Constitution of India- Bare Act, universal law publishers, NewDelhi.

    5) Datar P Arvind, Commentry on the Constitution of India, vol-1, 2 nd edition, wadhwa and company , Nagpur law publishers.

    6) De DJ, the Constitution of India, vol-1, 3 rd edition, Asia law house,Hyderabad.

    Webliography

    1) www.indiankanoon.org

    2) www.supremecourtofindia.nic.in

    3) www.legalhelpindia.com

    http://www.indiankanoon.org/http://www.supremecourtofindia.nic.in/http://www.supremecourtofindia.nic.in/http://www.indiankanoon.org/