Rest of A-19 Flashcards
A-19 (1) ( b &c )
Significance:
1. Enable citizens to achieve collective aims.
2. Enable engagement of citizens with one another.
3. Help in political mobilisation and organisation.
4. Backbone of Right to protest.
Freedom of Assembly:
Prior permission norm:
1. Required largely in big cities.
2. You require NOC in some ares from the police.
3. Police can also direct the conduct of the direction/path of proccessions.
5. The SC has upheld the prior permission norm. ( You can’t assemble anywhere )
6. Section 163 of the BNSS. Certain parts of Delhi are permanently under Section-163. The SC has upheld it’s constitutionality but has not laid down any guidelines for it’s usage.
Freedom of Association:
1. Under the UAPA, the government can declare associations to be unlawful.
2. The paex court has maintained that while declaring any organisation as unlawful, due process has to be followed. ( Give notice and opportunity to defend itself )
3. Right to form association also includes right not to join one as well.
4. RIght to form association does not include the right to fulfilment of the aims of the organisation.
Membership of unlawful association?
-> Arup Bhuyan Case (2011) - The court held no guilt by association. Prosecution of a member can be done only when it’s found that they have actively contributed to the unlawful act.
-> The same was upheld in the Indira Das and Raneef case 2011.
-> 2023 review of the Arup Bhuyan case - Mere membership will make you liable for prosecution.
-> Section-10 of the UAPA states any person associated with an association declared unlawful can be punished upto 2 years. NO COOLING OFF PERIOD HERE.
Right to protests:
-> Derived through A-19(1)(a, b & c).
-> The Madras HC in 2023 said right to peaceful protest is a FR.
-> The court’s approach has been to strike a balance between people’s right to protest and the state’s duty to regulate such protests in the interest of public order and to ensure smooth flow of traffic.
Himmat Shah (1973):
-> Right to protest does not include right to protest anywhere yet the state can’t take away this right by prohibiting assmebly in every street or public place.
Ranga Rajan Case (1989):
-> Such freedoms cannot be suppressed unless situations arise where community interest are in danger and the danger should be real.
Amit Sahwney/Shaheen Bagh case (2020):
-> Protestors can’t occupy public place indefinitely. ( Court become more executive minded than the executive itself )
-> A-19(1)(a, b and c) are not any ordinary rights. THey are the very pollars of democratic accountability ensureing effective and functional democracy therefore the state’s control over these rights should operate in the narrowest of margins. WHEN IT COMES TO SUCH RIGHTS, IT’S BETTER TO ERR ON THE SIDE OF FREEDOM AS OPPOSED TO CAUTION.
A-19(1)(d&e)
-> The two rights were envisages as protections against any sub-naitonal restrictions on movement and residence to promote the idea of India.
-> As per 2011 census only 12% migrants were inter-state:
1. Restrictions on acquisition of property in several states. Ex. HP, UK
2. Residence based quotas in educational institutions.
3. State’s policies discriminating against outsiders. Ex. Haryana 75% quota.
Restrictions:
General public:
1. Quarantine restrictions under epidemic diseases act (1897)
2. Curfew for public order
3. Gunda Acts of various states provide for the externment of persons who are likely to commit a crime. The courts have upheld these acts but without insisting on minimal procedural safeguards.
STs:
1. Restriction on entry into places occupied primarily by tribals. Ex. Schedule 5 and 6 areas.
2. An inner line permit is required to enter several NE states.
3. This is a legacy of Bengal eastern frontier regulation of 1873 which the Britishers implemented to protect their commercial interests. We continue them today to protect tribals from exploitation and to protect such areas from overtourism.
A-19(1)(g)
In the interests of General public:
1. Ex. Liquor trade, Arms trade.
-> The protection from you to get from courts is only applicable for a legitimate POTD. The court shall approach this question by looking at the following 3 things:
1. How the profession was viewed historically
2. How it was perceived morally.
3. It’s social effects.
-> In 1979 SC held that money lending in rural areas can’t be considered a liegitimate POTD even though providing credit is considered a ligetimate POTD. Court used the social effets arguement but the same didn’t prevail in the Indian Hotels and Restaurants Association case with respect to dance bard in Mumbai. The SC over here lifted the ban imposed by the Maharashtra government.
Reasonableness in A-19
The court didn’t give any formula as such but provided some guidelines as to how it’ll approach this question.
1. Circumstances test - Some restrictions under certain circumstances are required.
2. Proportionality test - Restriction must not go beyond requirement. It must be proportionate with the mischief you are trying to control
3. Nexus test - The restriction imposed should have a clear nexus with the objective sought to be secured.
