Abstract
The Constitution of India, unlike its predecessor, the Government of India Act, 1935, enacted by the Parliament of the United Kingdom, was adopted, enacted and given to themselves by the people of India with a view to constituting India into a sovereign democratic republic and to securing, among other things, liberty of thought and expression for all its citizens.1 Part III of this basic law deals with fundamental rights; it contains, to quote the Supreme Court of India, “the express constitutional provisions limiting the legislative powers and controlling the temporary will of the majority by a permanent and paramount law settled by the deliberate wisdom of the nation.”2 Some of these rights are guaranteed to the citizens only, while others, like protection of life and personal liberty, are guaranteed to all persons, whether citizens or aliens, residing within the territory of India and subject to its jurisdiction. Article 19 in this Part guarantees to all citizens what Indian legal literature usually calls the seven freedoms, namely, freedom of speech and expression, of assembly, of association, of movement, of residence, of ownership and disposal of property, and of profession or occupation. This Article declares and protects “those great and basic rights which are recognised and guaranteed as the natural rights inherent in the status of a citizen of a free country.”3 But individual rights of an absolute nature cannot exist in a modern state. “The liberty of the individual to do as he pleases, even in innocent matters, is not absolute.
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References
A. K. Gopalan v. The State of Madras, (1950) S.C.J. 174
State of West Bengal v. Subodh Gopal, (1954) S.C.R. 65 at 74
Adkins v. Children’s Hospital, (1923) 261 U.S. 525
Liberty of the press… is included in the right of freedom of speech and expression guaranteed by Article 19(1) (a)“ Brij Bhushan v. State of Delhi, (1950) S.C.J. 425 at 426
a Panhandle Pipeline v. State Htighway, (1935) 79 L. Ed. 1090 at p. 1097
Eubank v. Richmond, (1912) 226 U.S. 137
Pattammal v. Chief Presidency Magistrate, Egmore, A.I.R. 1951 Mad. 950
a Amarnath Bali v. The State, A.I.R. 1951 Panjab 18
Indu Kumar Shankerlal Saherwala v. The State, A.I.R. 1951 Saura. 9
State of Bihar v. Shailabala Devi, 1952 S.C.J. 465 at 467
A dissenting voice is occasionally heard, as, for example, that of Teja Singh, C. J., in Jang Bahadur Sant pal v. Principal, Mohindra College, Patiala,(A. I. R. 1951 Pepsu 59) where he said that he was of the opinion that “apart from the qualifications enumerated in clauses (2) to (6) of the Article they (the fundamental rights) are also subject to the qualification that the exercise of these rights should not infringe the rights of others.”
Rain Manohar Lohia v. Superintendant, Central Prison, A.I.R. 1955 All. 193 at p. 203.
Romesh Thappar v. State of Madras,1950 S.C.R. 594; Sodhi Shamseer v. State of Pepsu, A.I.R. 1954 S.C. 276; Express Newspapers v. Union of India, 1958 S.C.J. 1113.
N. B. Khane v. State of Delhi, A.I.R. 1950 S.C. 211 at 217
Chintanzan Rao y. State of Madhya Pradesh, 1950 S.C.J. 571
Ram Singh v. State of Delhi, 1951 S.C.J. 374 at 383
Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh A.I.R. 1954 S.C. 224 at 227.
One is reminded of Mr Justice Holmes’s observation in Schenck IT U.S. (249 U.S. 52) “The character of every act depends upon the circumstances in which it is done… The most stringent protection of free speech would not protect a man in falsely shouting ”fire“ in a theatre and causing a panic.”
State of Madras v. V. G. Row, A.I.R. 1952 S.C. 196 at 200
N. B. Khare v. State of Delhi, A.I.R. 1950 S.C. 211 at 217
id. at 214; see also State v. Baboo Lal, A.I.R. 1956 All. 571
N. B. Xhave v. State of Delhi, A.I.R. 1950 S.C. 211 at 217
See State of Bombay y. F. N. Balsam, A.I.R. 1951 S.C. 318
Sodhi Shamser v. State of Pepsu, A.I.R. 1954 S.C. 276 4s A.I.R. 1951 S.C. 118
Barucha v. Excise Commissioner, 1954 S.C.J. 246 at 249
A.I.R. 1952 Orissa 42. See also the observations of Changez, J., of the West Pakistan High Court to the same effect: “Restrictions may be complete or partial. If, in the circumstances of a case, total prohibition of the exercise of a fundamental right is reasonable for achieving a purpose for which the imposition of restriction is permissible, then even the total prohibition of the exercise of such a right will be legal and valid.” (Abdul Hameed v. Distri_t Magistrate, Lahore, P.L.D. 1957 (W.P.) Lahore 213 at 217 )
Ismail v. State of Orissa, A.I.R. 1951 Orissa 86
N. B. Khare v. State of Delhi, A.I.R. 1950 S.C. 211 at 214
A.I.R. 1952 S.C. 196
A.I.R. 1956 Patna 188
) S.C.R. 605. The same opinion was expressed in In re Venugopal (A.I.R. 1954 Madras 901) and in Trilokchand y. The State (A.I.R. 1951 Ajmer 100).
a The Press and Registration of Books (Amendment) Act, 1960, section 2
In re Alavandar, A.I.R. 1957 Madras 427
D. D. Basu, Constitutional Protection of Civil Rights in India, Journal of the International Commission of Jurists, Vol. I. No. 2, p. 170.
The comparison, it would seem, is not particularly apt. The registration of births and deaths is made after the event. The declaration under section 5 has to be made before publication.
Thomas v. Collins, (1945) 323 U.S. 516
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Minattur, J. (1961). Constitutional Provisions. In: Freedom of the Press in India. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9103-6_2
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