Right to Freedom — Articles 19 to 22 of the Indian Constitution

Article 19 originally had a seventh freedom — the right to acquire, hold and dispose of property, at 19(1)(f). It was removed by the 44th Amendment (1978), along with the Right to Property. This is why the freedoms jump from (e) to (g), with no (f) — a detail examiners love.

A restriction on a freedom must be reasonable and must fall within the specific grounds the Constitution lists for that freedom. The state cannot invent a new ground, and a court will strike down a restriction that goes further than necessary. Whether a restriction is reasonable is decided by the courts, not the government.

Freedom of the press is not mentioned separately in the Constitution. The Supreme Court has held it is part of the freedom of speech and expression under Article 19(1)(a). The same clause has been read to include the right to information and the right to remain silent.

In Shreya Singhal (2015) the Supreme Court struck down Section 66A of the IT Act for violating Article 19(1)(a). The section had allowed arrests for “offensive” online posts, and the Court held it was vague and overbroad.

Why do the six freedoms skip from 19(1)(e) to 19(1)(g)?

Because 19(1)(f), the freedom to acquire and hold property, was removed by the 44th Amendment in 1978 along with the Right to Property. The gap in the lettering was left behind.

The protection against self-incrimination is why narco-analysis, brain-mapping and polygraph tests cannot be forced on an accused. In Selvi v. State of Karnataka (2010) the Supreme Court held that conducting them without consent violates Article 20(3).

Through decades of judgments the Court has read a long list of rights into the single sentence of Article 21: the right to live with dignity, to livelihood, to a clean environment, to health, to shelter, to legal aid, to a speedy trial, to privacy, and to die with dignity (passive euthanasia, allowed in Common Cause, 2018). None of these is written in the text — all were read into it.

The phrase “procedure established by law” was taken from Japan, not the American “due process of law.” But after Maneka Gandhi, the Indian courts have effectively read due process into it anyway — the procedure must now be fair and reasonable, which is what due process means.

Detaining a person not for something they have done, but to stop something they might do. It is one of the most criticised features of the Indian Constitution, because it allows imprisonment without trial. Most democracies permit it only during war; India permits it in normal times. The safeguards in Article 22 are the only check on it.

The 24-hour rule and the right to a lawyer do not apply to a person held under preventive detention, or to an enemy alien. This is the sharpest limitation inside the Right to Freedom, and it is asked directly.

What is the maximum period a person can be held in preventive detention without an Advisory Board reviewing it?

Three months. Detention beyond three months requires the opinion of an Advisory Board that there is sufficient cause.

• Article 19 gives six freedoms — the seventh, property, was removed in 1978
• There is no clause 19(1)(f) — it was deleted, leaving the gap between (e) and (g)
• Article 19 is for citizens only; Articles 20 and 21 are for all persons
• Articles 20 and 21 can never be suspended, even during an Emergency
• Freedom of the press is not separate — it is part of Article 19(1)(a)
• Article 20(3) bars forced narco and polygraph tests — Selvi
• Maneka Gandhi (1978), not A.K. Gopalan, is the modern reading of Article 21
• “Procedure established by law” came from Japan, not the American due process
• The 24-hour rule does not apply to preventive detention
• Article 21A covers ages 6 to 14, added by the 86th Amendment

• The Right to Freedom runs across Articles 19 to 22
• Article 19 gives six freedoms to citizens only
• The six are speech, assembly, association, movement, residence and profession
• There were seven freedoms until 1978, when the right to property was removed
• There is no Article 19(1)(f) — the lettering skips it
• Every freedom under Article 19 carries reasonable restrictions
• Freedom of the press is part of Article 19(1)(a), not a separate right
• Shreya Singhal (2015) struck down Section 66A of the IT Act
• Article 20 gives three protections to a person accused of a crime
• Article 20(1) bars ex-post-facto criminal laws
• Article 20(2) bars double jeopardy for the same offence
• Article 20(3) bars self-incrimination
• Selvi (2010) held that forced narco and polygraph tests violate Article 20(3)
• Article 21 protects life and personal liberty
• Maneka Gandhi (1978) held that procedure must be fair, just and reasonable
• K.S. Puttaswamy (2017) held that privacy is part of Article 21
• Article 21 now includes the rights to dignity, livelihood, health and a clean environment
• Article 21A made education a Fundamental Right for children aged 6 to 14
• Articles 20 and 21 can never be suspended, even during an Emergency
• Article 22 gives rights on arrest, including production before a magistrate within 24 hours
• The 24-hour rule does not apply to preventive detention
• Preventive detention beyond three months needs an Advisory Board