Research Work: Constitutional Law

FACTS

Ms. B, a prostitute by profession, was restricted to move to different places citing moral reasons. To which she challenged the validity of the restriction orders on the ground that the same was violative of her fundamental rights guaranteed under Article 19(1) (d) of the constitution.

Citing the moral reasons, the movement of Ms. B has been restricted for her being a prostitute. Ms. B is certain that by restricting her movement, her right to move freely has been denied and that is violative of fundamental right enshrined in section 19 of the Indian Constitution. Ms. B files a case in the court of law in the light of Article 19(1)(d), stating this decision of the government against the principles of the Indian Constitution.

ISSUES

  1. Is the right to move freely throughout the territory of India, enshrined under Article 19, absolute?
  2. Can a citizen’s movement be restricted?
  3. Can a citizen’s movement be restricted by state just because she is a prostitute? If yes, under what circumstances.

JURISDICTION

Ms. B can approach the High Court under Article 226 [1]of the Indian Constitution or Ms. B can directly approach the Supreme Court under Article 32 [2]for the violation of her fundamental right stated in Article 19(1)(d). [3]Both the High Court and the Supreme Court help in safeguarding the fundamental rights.

WHAT ALL STATUTES AND PROVISIONS CAN ‘MS. B’ TAKE SHELTER OF?

Ms. B can take shelter of Article 19(1)(d) of the Indian Constitution which guarantees to all the citizens the right “to move freely throughout the territory of India”. Ms. B can also use the defense of Article 19(1)(e) which provides the citizens the right “to reside and settle in any part of the territory of India”[4] and Article 14 which states “Equality before law the state shall not deny to any person equality before law or the equal protection of the laws within the territory of India.” [5]

PRECEDENTS

The two important questions that arise out of this case are- can someone’s movement be restricted because of her being a prostitute and if yes, then under what circumstances.

In the case of N.B Khare V. State of Delhi[6]. it was held that reasonable restrictions could be placed on the individual’s movements under clause 5 of Article 19 and such restrictions will not be violative of fundamental right to move freely.

In the case of Kamla China V. State[7], the appellant was alleged to be a prostitute and was ordered by Sub-Magistrate of Delhi to evacuate G.B. Road and not to return without prior permission from the Magistrate of the jurisdiction as per Section 20 of Suppression of Immoral Traffic in Women and Girls Act, 1956. According to the Section 20 of the Act, before the order is passed, the profession of the girl or woman in question must be confirmed to be of prostitution and the evacuation was necessary in the interest of the general public. The court held that the restrictions placed were reasonable in the view of sub-clauses (5) and (6) of Article 19. The freedom to move and reside are not restricted completely but only channelized for the interest of the general public.

In the case of State of Uttar Pradesh V. Kaushalya[8], the petitioner was alleged to be a prostitute and was sent a notice under Section 20 of Suppression of Immoral Traffic in Women and Girls Act, 1956 to show reasons why they should not be evacuated from the place they were currently residing but the petitioners questioned the constitutionality of Section 20 of the Act. It was held that once the activities of the prostitute become subversive of public morals to a particular area, then the restrictions placed on their movement is not unreasonable since it was done as a necessity in the public interest. These restrictions are reasonable and do not infringe the fundamental rights under Art. 19(1)(d) of the Constitution.

CRITICAL ANALYSIS

The fundamental rights provided to the citizens are not absolute or certain and can be subjected to reasonable restrictions. Along with the six rights enshrined in the Constitution under Article 19 are also subject to restriction mentioned in the sub clauses of Article 19. Whether these restrictions are reasonable or not, depend upon the values and morals of the society and the degree and the urgency of the acts to be controlled. If in a particular society, the vice of prostitution is degrading to the existent morals and values, then placing restrictions on the movement of the prostitute would come under reasonable restrictions and the Legislature would have no choice but to implicate these restrictions. The word “reasonable” signifies that restrictions imposed on a person are not excessive in nature or beyond what is necessary for the society.

In the case of Chintaman Rao V. The State of Madhya Pradesh[9], Mahajan J., defined the expression” reasonable restriction”, “The phrase connotes the limitation imposed on a person in enjoyment of the right should not be arbitrary or of excessive nature, beyond what is required in the interest of the public.”

Therefore, the rights provided to the citizens in the Article 19(1)(d) must be read along with the restrictions mentioned in clause 5 of the article 19 which states,

“Nothing in [sub clauses (d) and (e)] of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.”[10]

CONCLUSION:

Rights mentioned under Article 19 of Constitution of India are not of absolute nature and therefore, can be subjected to reasonable restrictions from the state as stated in clause 5 of Article 19. Movement of a prostitute can be restricted if her presence is causing harm to the existing morals and values of the society and it will not be violative of her right to movement. These restrictions cannot be excessive in nature and beyond the interest of the society.


[1] Indian Const. Art 226.

[2] Indian Const. Art 32.

[3] Indian Const. Art 19 clause 1 sub clause d.

[4] Indian Const. Art 19 clause 1 sub-clause e.

[5] Indian Const. Art 14.

[6] N.B. Khare V. State of Delhi, AIR 1961 SC 211.

[7] Kamala China v. State, AIR 1963 Punjab.36.

[8] State of Uttar Pradesh v. Kaushalya, AIR 1964, SC 416.

[9] Chintaman Rao v. State of Madhya Pradesh, 1951 AIR 118, 1950 SCR 759.

[10] Indian Const. Art. 19 clause 5.

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