Test of Reasonable Restrictions
Authored by Yukti Kohli
Keywords: Reasonableness, Restriction, Freedom, Public tranquility, Arbitrary, Absolute, Imposed.
The constitution of India provides for fundamental rights as well as for the restrictions that can be imposed on these rights. But these rights are not absolute and are subject to certain restrictions that may be established by the state according to the procedure established by law. The restrictions which the state can impose must be reasonable and not arbitrary. Article 19 provides for the fundamental freedoms and restrictions. In this article, all the six freedoms provided under article 19 are mentioned and also the restrictions are highlighted. This article throws light on the test to determine the reasonability of the restrictions imposed on the rights available. This article also covers various case laws that deal with reasonable restrictions.
Article 19- Protection of certain rights regarding freedom of speech etc.
All citizens shall have
a) The right to freedom of speech and expression;
b) To assemble peacefully 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;
g) and to practice any profession or to carry on any occupation trade or business.
These freedoms are the basic rights that an individual has and are recognized as natural rights inherited in the status of a citizen, but each of this freedom is subject to certain restrictions to be made by the state to the extent mentioned in clause (2) to (6) of Article 19. As per clause (2) to (6), the state can make laws for putting reasonable restrictions in the interest of the general public, security of the state, public order, decency, morality, or any other reasonable reason for the general welfare.
What is a Reasonable Restriction?
It is the limitation that has been imposed upon a person in the enjoyment of the right. The restrictions so imposed must not be arbitrary and must be in the interest of the public.
Test of reasonable restriction
Article 19 (2) to (6), impose a limitation on the freedoms guaranteed by Article 19 (1) (a) to (g).
In Lockner v. New York, the court observed that the test of reasonable restriction must be applied to see whether a reasonable man would necessarily consider the restriction unreasonable and not to see whether a judge personally considers, particular restriction unreasonable.
The reasonableness must be judged concerning the fundamental rights which are restricted rather than on the ground on which it can be imposed. For seeing if a restriction is reasonable, it is important to consider whether the law that imposes restriction is permanent or temporary. For example, where the state has to take a swift decision in an emergent situation of apprehended danger, restrictions so imposed will be considered reasonable which would not be considered reasonable otherwise.
Restrictions provided under article 19 (2) to (6)
The significant characteristics of restrictions provided under clause 19 (2) to (6) are
i. The restrictions can be imposed only by or under the authority of law.
ii. The restrictions so imposed must be reasonable.
iii. The restriction that the state is imposing must be concerning the purpose as mentioned in clause 19 (2) to (6).
Therefore, a double test is done to adjudicate the validity of the restriction;
Whether it is reasonable and whether it is for the purpose mentioned in clause 19 (2) to (6). The onus to prove that the restriction is reasonable is on the state.
The Supreme Court provided for some of the principles which the courts have used in ascertaining the reasonableness of the restriction.
Reasonableness demands proper balancing - There must be a proper balance between the restriction and legislation that seeks to achieve such restriction. That is to say, there must be a balance between the freedom granted under article 19 (1) (a) to (g) and clause (2) to (6). This is known as the principle of proportionality. Therefore, we can say that the court sees that whether the restriction imposed on the legislation is disproportionate to the situation or not.
Reasonableness; both substantive and procedural - The court must consider the nature of the restriction and the procedure provided in the statute. For enforcing restriction not only the substantive but the procedural provision must be considered while testing.
The reasonableness and objective concept - The test of reasonableness must be determined for the general public and not only for the person upon whom such restriction has been imposed.
Reasonableness of restriction and not of law – A law may be reasonable, but the restriction imposed by it on the exercise of freedom may not be reasonable. The court must consider the reasonableness of restriction and not of the law.
Reasonableness includes total prohibition - In Narendra Kumar v. Union, the court observed that the restriction does not mean that deprivation must be made between Article 19 (1) (d) and Article 21.
Reasonableness and directive principle of state policy
In Kasturi Lal Laxmi Reddy v State of Jammu and Kashmir, the court held that any action which is been taken by the government with the view to give effect to directive principles will be considered as reasonable.
Freedoms and restriction under Article 19
Freedom to speech - Article 19 (1) (a) and 19 (2)
Freedom of speech includes the right to express one's view and opinion on any issue by word of mouth, writing, printing, picture, film, movie, etc. This right includes the right to receive information and freedom of the press. The right to freedom to speech is subject to reasonable restrictions under Article 19 (2).
Reasonable restriction under Article 19 (2)
The objective of all the rights and restrictions so imposed by the state is to maintain public order. No right can be absolute as per Article 19 (2). The state can make any law that can impose reasonable restrictions on the right of freedom to speech and expression in the interest of the security of the state, public order, decency, morality, sovereignty, and integrity of India, in the national interest or the interest of the society.
Incitement to an offense
The right freedom of speech does not give you the license to incite people to commit offenses. The incitement of offenses will be punishable as it involves the security of the state, therefore, the restriction can be imposed against such incitement, and it would be considered valid under article 19 (2).
It is unreasonable to give absolute arbitrary discretion to regulate freedom of speech and expression. Such arbitrary restriction is considered as unreasonable under article 19 (2).
Freedom of assembly - Article 19 (b) and (3)
Article 19 (1) (b) provides that all the citizens of India have the right to assemble. This right is provided with two limitations.
i. The assembly must be unarmed and;
ii. It must be peaceful.
This freedom to assemble includes the right to hold public meetings and carry procession.
The state can impose reasonable restrictions in the interest of public order or sovereignty or integrity of India. Therefore, any assembly of five or more persons is considered as an unlawful assembly if the purpose of such assembly is for committing any act mentioned under section 141 of IPC. Thus, the restriction upon such assembly is considered reasonable for keeping public safety fees and tranquility.
Further, if any lawful assembly shows any sign of apprehended danger then the police can take necessary steps to prevent the breach of peace. Therefore, we can conclude that the rights are given under article 19 (1) (b) to assemble peacefully and to reside freely anywhere in India. The right to hold public meetings and to take out procession can be restricted reasonably for the public interest.
Freedom of association - Article 19 (1) (c) and (4)
Article 19 (1) (c) says that all the citizens have the right to form associations and unions. The right to form Association includes the right to continue it and it also allows an individual to refuse to be a member of any association.
Freedom of movement - Article 19 (1) (d) and (5)
Every citizen has the right to move freely throughout the territory of India. This means that an individual can move without any restrictions. An individual can move from one place to another whenever he likes, however, he likes and wherever he likes. Restrictions provided under article 19 (5) include restrictions that can be imposed in the interest of the public or for the protection of the interest of scheduled Tribes. As the state considers it necessary to impose barriers on the entry of outsiders in the area inhabited by scheduled tribes. Restrictions can be imposed on movement and traveling to prevent or control epidemic etc.
Freedom to residence - Article 19 (1) (e) and (5)
The purpose of this clause is to provide an individual with the right to reside anywhere within the territory of India. Here also the restriction can be imposed to protect the interest of scheduled tribes, but the restriction must be reasonable.
Freedom to property - Article 19 (1) (f)
The fundamental right of a citizen to acquire, hold, and dispose of property is provided under article 19 (1) (f). Although this sub-clause was deleted by the 44th amendment of the Constitution with the effect from date 20 June 1979.
Freedom of trade and occupation - Article 19 (1) (g) and (6)
It states that all the citizens of India have the right to practice any profession or to carry on any occupation or trade or business.
This right can be restricted in the interest of the general public. The nature of the business will be the basis for imposing restrictions and conditions prevailing in the trade that is illegal or immoral or injurious to the health and welfare of the public. This freedom can be restricted and such restriction will be considered as reasonable and in the interest of the general public.
The whole purpose of this article was to determine a suitable test for determining the reasonableness of the restriction imposed by the state on the citizen. The best test that came out of this determination of reasonableness is that any restriction can be imposed if it is in the interest of the general public. Restriction can be imposed to safeguard public tranquility, public health, public peace. Other than this if any restriction has been imposed such restriction will be unreasonable. Therefore, any restriction imposed according to clause (2) to (6) is considered as reasonable. The restriction so imposed must not go too far in linking itself with the object of the legislation; otherwise, the restriction will be unreasonable.