The right to freedom, being a fundamental right, is guaranteed vide words of Article 19 of the Indian Constitution: "19 (1) All citizens shall have the right... (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India" and that nothing in sub-clauses, referred to above, "(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".
Clearly, therefore, the rights "to move freely throughout the territory of India" and "to reside and settle in any part of the territory of India" are not unfettered or unrestricted but are subject to "interests of the general public or for the protection of the interests of any Scheduled Tribe". Seen in this background, the four-day curb on citizens of India "to move freely throughout the territory of India" looks slightly out of tune with language of the Constitution. This was the ban on free movement imposed on citizens of India on a one-kilometre stretch of Red Road in Calcutta. Although this action may appear logical and justifiable, several unanswered questions have been raised by it.
What "interests of the general public" would be served by stopping all free movement of all citizens of India through a road as important as Red Road, which houses the Eastern Command of the Indian army? Which is the only (remaining) showpiece street of the erstwhile imperial capital of the British empire? The road through which the economic actors and state benefactors still move to the business and private enterprise hubs of BBD Bag and to all federal government establishments? Why create an avoidable inconvenience to the citizens of India? Also, what sudden plan of action for the "protection of the interests of any Scheduled Tribe" has been initiated requiring total closure of one of the main arterial roads for four days?
What does the Constitution of India have to say about it? From the records of the Constituent Assembly debates (1946 to 1949) it clearly emerges that the "object of Constitution makers was to bring about the economic unity of the country... to ensure people feel that they were members of one nation".
Understandably, the application and implementation of this article on the free movement of the people of India can be seen from two angles. For and against. Hence it would be in order to see at least one landmark judicial pronouncement to have a 'feel' of this provision in accordance with the angle of vision and conviction of an individual citizen. In Ebrahim Vazir Mavat versus the State of Bombay, the judgment under the Influx from Pakistan (Control) Act, 1949 showed that the Supreme Court would not be convinced regarding the existence of "emergent circumstances" to justify the denial of the right upon the subjective satisfaction of the government or any of its officers. Consequently, the apex court dealt with the validity of Section 7 of the said act.
On the other side, however, was the dissenting note on the same issue by the legendary chief justice, Sudhi Ranjan Das, who had this to say: "Suppose an Indian citizen, no matter whether a Hindu or a Muslim, had entered India from Pakistan without a permit and suppose he was... engaged in espionage in the interest of Pakistan; would it have been safe enough... to have only prosecuted him under section 5 and inflicted on him a fine of rupees one thousand or a term of imprisonment not exceeding a year and then to have left him free after the term of imprisonment was over, to surreptitiously carry on his nefarious activities of espionage and sabotage against our State while embarking upon a protracted judicial inquiry to ascertain the truth or otherwise of his claim to Indian citizenship?" The dissenting voice is fair and objective too. "In the interests of general public" free movement of citizens could be curbed. Is this the case today?
We may again see the types of citizens whose right to free movement have been curbed in the past. Thus restrictions to protect the interests of scheduled tribes have been stipulated for the aboriginal tribes with their distinct culture, language and customs. Unrestricted entry of 'outsiders' in areas inhabited by the tribal folks might jeopardize their very existence and interests, as is shown in Dhan Bahadur Ghorti versus State of Assam.
Restrictions on the free movement imposed on prostitutes to carry on their trade within a specified area and to reside in or move from particular areas have been held to be valid (The State of Uttar Pradesh versus Kaushaliya). Restrictions on residence imposed on habitual offenders have been upheld by the courts as being reasonable ( P. Arumugham versus the State of Madras). Again "restrictions on the movements of persons afflicted with by AIDS have been held by Bombay High Court to be valid" ( Lucy R. D'Souza versus State of Goa).
One can go on citing case laws to show that though no fundamental right can possibly, or realistically, be absolute, as each one operates in a society which has to be subject to certain conditions, it is equally important to have a justifiable reason behind any curb of a right like the right to free movement. Also the due process of law has to be followed by the concerned establishment, which would reveal that not only due diligence but proper application of mind have been resorted to.
The four-day ban on free movement of citizens of India on a Calcutta road once again brings to light the problems of fundamental rights, which more often than not have been flouted, arbitrarily, for enforcement of political strength. But West Bengal is not the only state to do what it has done regarding the Constitution. There are others too. And there is competition, as the show goes on.
