Right to Freedom [Art. 19-22]: Concept (UPSC)

In this article, we will discuss the ‘Right to Freedom’ in a simple and easy way and try to understand its various important aspects.

So to understand well, definitely read the article till the end and also read other articles related to this topic. Read more – Fundamental Rights

Freedom is our birthright and no one can take it away from us. Is freedom really that important? Let’s understand.

This article is a continuation of the previous articles written on Fundamental Rights. We have already understood the Right to Equality; article 14 to 18 .

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| Concept of freedom

Who doesn’t love freedom! If we look back on history, it is known that more than half of history has been spent in the struggle for freedom of the people. but why ?

Because freedom is directly related to the development of mankind. We are rational beings and today we have been able to progress so much because we got freedom according to our will.

So overall freedom; There is an absence of external restrictions on a person. In other words, being in control of one’s life and destiny and having the opportunity to freely express one’s desires and activities is freedom.

But given the diverse interests and aspirations of the people, any social life requires certain rules and laws, these rules necessitate restrictions on certain freedoms. However, such restrictions are not seen in the sense of curtailing freedom, but in the sense of reducing insecurity.

There are two forms of freedom, negative freedom and positive freedom.

Negative freedom – It simply means the absence of any external restrictions on the individual. That is, to leave the person on his own condition, let him do whatever he wants.

Positive freedom – It is associated with the feeling of doing something. That is, if freedom means to explore our creativity or develop capacity, then we have to do something and there can be many obstacles in doing this.

For example, there’s a flood, and you’re stuck on an island with a lot of water all around. Since you are free, you can go anywhere, do anything. Now you have to go to the mainland somewhere away from the island to get ration, but you know that if you go into the water, you can drown and you can also die. In such a situation, if somehow you get a boat and you are asked to walk on a particular route, then you can easily bring ration. That is to say that the boat and the compulsion to walk on a particular route is not reducing your freedom but reducing insecurity.

In a broader context, both negative freedom and positive freedom go hand in hand. There is such an inviolable area of any person, where he can do whatever he wants, similarly there is also an area where for his development some obstacles have to be removed or some restrictions have to be imposed.

Talking about the freedom provided by the Indian Constitution, it is also not unlimited but with reasonable restrictions. How? Let’s understand.

Right to freedom

Right to freedom has been discussed from Article 19 to Article 22 of Part 3 of the Indian Constitution –

Article 19 – Protection of six rights; (1) Expression (2) Conference
(3) Association (4) Transmission (5) Residence (6) Trade
Article 20 – Protection in respect of conviction for offenses
Article 21 – Life and personal liberty
Article 21A – Right to elementary education
Article 22 – Protection from arrest and detention

right to freedom

Article 19 – Protection of certain rights regarding freedom of expression etc.

to all citizens under Article 19(1),

(a) freedom of expression,
(b) peacefully and without arms conference,
(c) to form association or faction,
(d) to roam freely anywhere in India,
(e) to settle anywhere in India, and
(f) ***
(g) to carry on business anywhere in India.

*** Article 19 mentioned 7 rights under the original constitution, but (f) which pertained to the right to buy or sell property; It was removed in 1978 through the 44th Constitutional Amendment. and laid down under article 300A. Where it is expressly written that no person shall be deprived of his property except by authority of law.

The main reason behind its removal was that it was inconsistent with other Fundamental Rights in the Indian conditions of that time.

The matter was such that earlier there used to be big landlords and the ownership of the land was with him. And Article 19 also protected his property.
In such a situation, the problem of the poor remaining poor and his always working as a bonded laborer with the landlord could give rise to a new type of slavery.
That is why it was removed from the Fundamental Right and made a constitutional right so that the Zamindari system would end, the poor could also get their land and the availability of land to the government for any work in the public interest should be maintained.
There was another right related to this in Article 31, that too was removed by the 44th Constitutional Amendment itself. This whole episode can be understood from Kesavananda Bharati ^️case.

(a) Freedom of Expression

The Supreme Court has included the following in the freedom of expression;

(1) The right to disseminate one’s own or any other’s views.
(2) Freedom of press and advertisement.
(3) Right to information about government activities.
(4) Right to peace
(5) Right to protest and protest, but not right to strike. e.t.c.

Remember that all these things are not written in this way in the constitution, it has been assumed that all these rights will come under the freedom of expression.

The State may, if it so desires, impose reasonable restrictions under Article 19(2) on the freedom of expression with respect to the unity and sovereignty of India, the security of the State, the establishment of morality, friendly relations with foreign States, contempt of court, etc.

(b) Right to conference peacefully and without arms

It includes the right to organize without arms, to participate in public meetings and to demonstrate.

This system is not meant for violence, disorder and disturbance of public peace. The State may, if it so desires, impose reasonable restrictions on it under Article 19(3).

(c) Right to form federation or faction

Under this – the right to form political parties, companies, partnership firms, societies, clubs, organizations or any other type of association is included. Along with this, the right to operate it is also included under it.

The State can also impose reasonable restrictions on this under Article 19(4). Because under this, no one can be given the freedom to form a terrorist organization.

(d) Right to roam freely anywhere in India

As the name suggests, it ensures the right to roam freely in India and not outside India.

Even within India, there may be many such places where free movement can be stopped or allowed to go with a permit. This is usually done in tribal areas with the aim of preserving its culture.

Apart from this, if someone has a disease that can spread to others, then that too can be prevented by uninterrupted transmission.

The State is empowered to impose reasonable restrictions in this matter under Article 19(5).

(e) Right to settle anywhere in India

Here also it is clear from the name that it is related to the right to settle anywhere in India and not outside India. It also gives the right to settle in India both temporarily and permanently.

But here also the State can impose reasonable restrictions under Article 19(5) if it so desires. It is also usually related to tribal areas or any other such sensitive areas where it is not appropriate to settle.

(g) Right to do business anywhere in India

Under this, exemption has been given to adopt, do any business in India.

However, the State may here also impose reasonable restrictions under Article 19(6) and (1) make any special qualification necessary for any profession or occupation. (2) Reserve any business or industry for conducting itself.

Article 20 – Protection in respect of conviction for an offense

If you are alive, it is possible that you may have committed an offense or you may have done it intentionally, but still you will get the following three protections from offense under Article 20.

(1) If you have done any such act which is not an offense in the eyes of law, then no matter how bad you may have done, it will not be called a crime . And if you have been proved guilty, then you cannot get more punishment than what is already prescribed for that crime.

For example, if there is a prison sentence of 1 year for theft, then you cannot get more punishment than this. But if you have stolen someone’s heart then you will not get any punishment because it is not a crime.

(2) An offense cannot be punished more than once. For example, if you have committed theft and have been sentenced to one year, then you cannot be punished again for the same theft.

(3) You cannot be produced as a witness against yourself. That is, you have committed theft but as a witness you cannot be produced to testify against yourself.

Article 21 – Protection of life and personal liberty

One of the most important articles of the entire constitution is freedom of life and personal liberty or freedom to live.

Article 21 states that – No person shall be deprived of his life or personal liberty except according to procedure established by law .

Actually it means that if any law has been made by adopting the correct procedure of making law, then a person can be deprived of life or personal liberty under it. That is, whether the law is right or not, it does not matter, just the process of making law should be correct.

But according to Article 13, if any law violates a fundamental right, then it can be struck down to that extent. That is, Article 13 talks about due process of law, that is, if there is something wrong in the law, then it should be rejected and it is applicable to all the fundamental rights. But only Article 21 talks about procedure established by law.

So the question was, can it be so that all fundamental rights can be exercised on due process of law while only one on the procedure established by Article 21 law?

[The term which is Process established by law and Due process of Law has a very broad meaning. That is why it is explained in a separate article. Do read it to understand the basic element of Article 21.]

To understand the above paradox correctly, it is very important to understand the case of AK Gopalan (1950) and Maneka Gandhi (1978). This is explained in a separate article, do read it.

The Maneka Gandhi case was the case in which it was established that the right to life is not limited to physical constraints but it also extends to human dignity and other aspects related to it. As a result, gradually the Supreme Court began to include in the right to life all those aspects which were related to human dignity and other aspects.

Such as –
1. Right to privacy (which was added in 2017)
2. Right to health
3. Right to free education till the age of 14 years
4. right to free legal aid
5. Right to Information (which was added in 2005)
6. Right to sleep
7. Right to eat
8. Right to electricity
9. Right to freedom from pollution
10. Right of reputation
11. Right of hearing
12. Right to social, economic security
13. Right to treat women with respect and dignity
14. Right to travel abroad
15. Right to emergency medical facility etc.

Meaning, understand that earlier there used to be only bread, cloth and house to live. But now only that much does not work, that’s why whatever becomes necessary to live with the times, is included in it.

Article 21A – Right to Education

Article 21 ‘a’ –

The state will ensure the right of free and compulsory education to the child in the age group of 6 to 14 years.

It was not always a part of the Constitution, but was added by the 86th Constitutional Amendment in 2002.

Although Article 45 provided for free and compulsory education for children under the Directive Principle of Part IV of the Constitution, but being a Directive Principle, it was not enforceable. That is why it was made enforceable by adding it to the Fundamental Right.

In order to implement Article 21A properly, in 2009, the Central Government also passed an Act “The Right of Children to Free and Compulsory Education Act”. Under which it was given a proper legal form.

Article 22 – Detention and protection from arrest

Detention means deprivation of liberty. Mainly there are two types of detention – (1) Punitive detention – It means arresting a person after a crime and depriving him of liberty. (2) Preventive Detention – It means to take away the liberty of a person by arresting him in advance so that he does not commit a crime in future.

Article 22 can be divided into two parts, the first part [article 22 (1 to 3)] deals with a person who has been arrested under ordinary law or who is known to have committed an offence. The second part [Article 22 (from 4 to 7)] deals with cases of preventive detention.

The first part provides the following rights to the person taken into custody:

(1) Right to seek information as to why the arrest is being made
(2) Right to choose a lawyer of choice to speak on his behalf
(3) Right to appear before the Magistrate within 24 hours (except travel time)

If he is proved innocent before a magistrate, he can be released.

However, this does not work if the person is detained under a preventive detention law or if the person is from an enemy country.

The second part deals with the cases of preventive detention. Under which the following three protections are included –

(1) The detention of a person shall not be extended beyond three months, unless the Advisory Board asks it to be extended.

Remember; The advisory board consists of persons who are either judges or judges of the High Court or are qualified to be appointed judges.

(2) On what grounds has the detention been made? The answer should be given to the person concerned. Although against the public interest, it need not be disclosed.

(3) The person in detention has the right to make a representation against the order of detention.

Article 22(7) authorizes Parliament to specify any method providing for preventive detention, procedure to be followed by the Advisory Board in inquiry, etc.

Many preventive detention laws related to this have been made such as –
Preventive Detention Act 1950 (which ended in 1969),
Internal Security Act i.e. MISA 1971 (which was abolished in 1978), COFEPOSA 1974,
National Security Act 1980,
UAPA 1967 (which was further tightened after the 2008 Mumbai attacks) etc.

A famous case related to this is the Habeas corpus case 1976 ; Which is an important case in the field of preventive detention.

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