October 4, 2022

Which type of law may curtail Fundamental Rights?

Art. 19(1)(a) of Indian Constitution guarantees to all citizens freedom of speech and expression and Art. 19(2) provides that nothing in Art. 19(1)(a) shall prevent a State from making any law, in so far as such law impose reasonable restrictions on the exercise of the right conferred by Art. 19(1)(a) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

The law is now well settled that any law which may be made under clauses (2) to (6) of Art. 19 to regulate the exercise of the right to the freedoms guaranteed by Art. 19(1)(a) to (e) and (g) must be ‘a law’ having statutory force and not a mere executive or departmental instruction.

The Kharak Singh Case

In Kharak Singh v. State of U.P[1], the question arose whether a police regulation which was a mere departmental instruction, having no statutory basis could be said to be a law for the purpose of Art. 19(2) to (6). The Constitution Bench answered the question in the negative and said,

“Though learned Counsel for the respondent started by attempting such a justification by invoking s. 12 of the Indian Police Act he gave this up and conceded that the regulations contained in Ch. XX had no such statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would not therefore be “a law” which the State is entitled to make under the relevant cls. (2) to (6) of Art. 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of Art. 19(1), nor would the same be “a procedure established by law” within Art. 21.

The position therefore is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks, to restrain the State from taking action under the regulations. “

Kameshwar Parsad Case

In Kameshwar Prasad v. The State of Bihar[2], a Constitution Bench of the court had to consider the validity of Rule 4A of the Bihar Government Servants’ Conduct Rules which prohibited any form of demonstration even if such demonstration was innocent and incapable of causing a breach of public tranquillity. The court said,

“No doubt, if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquillity or which would fall under the other limiting criteria specified in Art. 19(2) the validity of the rule could have been sustained. The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration-be the same however innocent and however incapable of causing a breach of public tranquillity and does not confine itself to those forms of demonstrations which might lead to that result.”

[1] AIR 1963 SC 1295

[2] [1962] SUPP. SCR 369