Monday 27 August 2012

Right to Freedom


The Right to Freedom is embodied in Articles 19–22.

Article 19

All citizens shall have the right -

    (a)    to freedom of speech and expression;
·  Freedom of the Press is not mentioned separately anywhere in the constitution. It is included in Freedom of Speech and Expression.
·  Also, Right to information is recognized under Freedom of Speech and Expression.
·  State by law can imposes reasonable restrictions on the exercise of this right in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

    (b)   to assemble peaceably and without arms;
·  State by law can imposes reasonable restrictions on the exercise of this right in the interests of the sovereignty and integrity of India or public order.

    (c)    to form associations or unions;
·   State by law can imposes reasonable restrictions on the exercise of this right in the interests of sovereignty and integrity of India or public order or morality.
·   It does not give right to strike.

    (d)   to move freely throughout the territory of India;
·   State by law can imposes reasonable restrictions on the exercise of this right in the interests of the general      public or for the protection of the interests of any Schedule Tribe.

    (e)    to reside and settle in any part of the territory of India;
·   State by law can imposes reasonable restrictions on the exercise of this right in the interests of the general public or for the protection of the interests of any Schedule Tribe.

(f)   to property*** (repealed by 44th constitutional Amendment 1978 and transferred to Art. 300A) right to property is no longer a fundamental right, though it is still a constitutional right.
        
(g)  to practice any profession, or to carry on any occupation, trade or business.
·   This cannot prevent the State from making any law for prescribing professional or technical qualifications necessary for practicing any profession.

Article 20: Protection in respect of conviction for offenses
Three types of protection are available under this article:
·   Ex-post facto legislation: An ex-post-facto law is a law which imposes penalties retroactively (i.e from back date).
A person can be punished for a offence only under the laws enforceable at the time of commission of the offence.
No criminal law can increase the quantum of punishment from the previous date.
·   Double jeopardy: No person shall be prosecuted and punished for the same offence more than once.
·   Prohibition against self incrimination: No person accused of any offence shall be compelled to be a witness against himself.

 Supreme Court of India is of the view that Narco, Polygraph or Brain mapping tests conducted on any person without their consent violates Right to Self-Incrimination guaranteed under Article 20(3).

Article 21: Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure established by law.
  • In the A K Gopalan case of 1950, the Supreme Court was of the opinion that, in India, there exists “procedure established by law” which means that a law that is duly enacted by legislature is valid if it has followed the correct procedure. It gives legislative an upper hand and they may enact laws which may not be fair from a liberal perspective.
  • However, in Maneka Gandhi vs Union of India case (1978) SC import the concept of “due process of law” from American Constitution which means that laws made by the legislature should be just and fair. Also, it gives authority to SC to examine the spirit of the law made by legislature.
  • This article has become the most important article as Supreme Court has given this article widest interpretation. It has subsumed in it all the rights necessary for life e.g Right to clean air.
  •  The right to life does not include the right to die, and hence, suicide is an offence.
  • Article 21(A) (incorporated by 86th Amendment Act, 2002) it made the right to primary education part of the right to freedom. According to it, State would provide free and compulsory education to children from six to fourteen years of age.


Article 22: Protection against arrest and detention in certain cases.

            1.  No person shall be detained in custody without being informed of the grounds for such arrest.
Also, the arrested person has the right to consult a legal practitioner of his choice.

2.  The arrested person shall be produced before the nearest magistrate within  twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate.

The detained person shall not be kept in custody beyond the period authorize by the magistrate.
3.                  The rights under clauses (1) and (2) are not available to -
·         enemy alien; or
·         Person detained under any law providing for preventive detention.
  • Preventive detention shall not be extended beyond three months after which an Advisory Board will review.
  • Preventive detention is an imprisonment that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is likely to commit a crime.

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