Understanding Right to Freedom (Article 19-22)

Article 19-22 talks about right to freedom is considered as the heart of constitution as it gives the basic and most vital rights to the citizens of India.

Article 19(1) provides that 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;
f) Omitted by 44thamendment act. (it was right to acquire, hold and dispose of property)
g) To practice any profession, or to carry on any occupation, trade or business.

However, freedom of speech and expression is not absolute. As of now, there are 8 restrictions on the freedom of speech and expression under Article 19(2). These are in respect of the sovereignty and integrity of the country.

The restrictions are: Security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, incitement to offence, sovereignty and integrity of India(Sovereignty and integrity of India was added by 16th constitutional amendment act of 1963).

Case: 1 These restrictions were embodied in their current form in the constitution First Amendment Bill 1951, this was necessitated by Romesh Thapar Vs State of Madras (1950). In this case the entry and circulation of the English journal “Cross Road”, printed and published in Bombay, was banned by the Government of Madras.

The Supreme court held in this case that, unless a law restricting the freedom of speech and expression were directed solely against the undermining of the security of the state or its overthrow, the law could not be held a reasonable restriction though it sought to impose a restraint for the maintenance of public order.

Case: 2 Shreya Singhal Vs Union of India case 2015- In this case the Section 66A of the Information Technology Act, 2000 was struck down in its entirety for being in violation of Article 19(1) (a) and not falling under the scope of 'reasonable restriction', under Article 19(2) of the Indian Constitution. Section 66-A of the Act stipulates punishment for sending offensive messages through communication service.

Case: 3 Shatrughan Chauhan & Anr. Vs Union of India & Ors. This is a landmark case in death penalty jurisprudence of many reasons.it examined in detail certain circumstances under which death sentence under which death sentence could be commuted to life imprisonment. The circumstances are delay, solitary confinement, judgment declared without referring to earlier judgments and procedural lapses.

The court also held that 'Article 21 of the constitution does not end with the pronouncement of sentence but extends to the stage of execution of the sentence'. This means that every convict has the right to be free from uncertainty.

A prolonged delay in execution of the death sentence has dehumanizing effect on those condemned. The stand of the respondents that delay by itself cannot entitle the person under the sentence of death to request of the death sentence was rejected by the court.

when there is inordinate and unexplained delay in execution of the death sentence or if the relevant executive and constitutional authorities have failed to consider the relevant aspects then the court can commute the death sentence solely on this ground.

Case: 4 Aruna Ramchandra Shanbaug Vs Union of India
The Constitution of India guarantees ‘Right to Life’ to all its citizens. The constant, ever-lasting debate on whether ‘Right to Die’ can also be read into this provision still lingers in the air. On the other hand, with more and more emphasis being laid on the informed consent of the patients in the medical field, the concept of Euthanasia in India has received a mixed response.

The Hon’ble Supreme Court of India, in the present matter, was approached under Article 32 of the Indian Constitution to allow for the termination of the life of Aruna Ramchandra Shanbaug, who was in a permanent vegetative state. The petition was filed by Pinki Virani, claiming to be the next friend of the petitioner.

The Court in earlier cases has clearly denied the right to die and thus legally, there was no fundamental right violation that would enable the petitioner to approach the court under Article 32. Nonetheless, the Supreme Court taking cognigance of the gravity of the matter involved and the allied public interest in deciding about the legality of euthanasia accepted the petition.

The Hon’ble Division Bench of the Supreme Court of India, comprising Justice Markandey Katju and Justice Gyan Sudha Mishra, delivered this historic judgment on March 7, 2011. The Court opined that based on the doctors’ report and the definition of brain death under the Transplantation of Human Organs Act, 1994, Aruna was not brain dead.

She could breathe without a support machine, had feelings and produced necessary stimulus. Though she is in a PVS, her condition was been stable. So, terminating her life was unjustified. The Supreme Court allowed passive euthanasia in certain conditions, subject to the approval by the High Court following the due procedure.

When an application for passive euthanasia is filed the Chief Justice of the High Court should forth with constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit.

Simultaneously with appointing the committee of doctors, the High Court Bench shall also issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor’s committee to them as soon as it is available. After hearing them, the High Court bench should give its verdict. The above procedure should be followed all over India until Parliament makes legislation on this subject.

Case: 5 Suresh kumar kaushal Vs NAZ foundation case
Section 377, of the Indian Penal Code which criminalises sexual activity ‘against the order of nature’.
The Delhi High Court passed a judgment in favor of the LGBTs in the year 2009 in the landmark judgment of NAZ Foundation v Government of N.C.T Delhi, declaring Section 377 of the Indian Penal Code which criminalises homosexuality in India to be unconstitutional and violative of Articles 14, 15 and 21 and read down the section, allowing consensual sexual activity between two homosexuals above 18 years of age.

The matter went to appeal to the Supreme Court of India in Suresh Kumar Koushal and another v NAZ Foundation where the Supreme Court struck down the decision by the High Court in the NAZ Foundation Case.

The Yogyakarta Principles are a set of principles on the application of international human rights law in relation to sexual orientation and gender identity. The Principles affirm binding international legal standards with which all States must comply. They promise a different future where all people born free and equal in dignity and rights can fulfil that precious birthright.