CIVIL

Reasonable restriction under Indian Constitution

 Under Article 19(1)(g) a citizen has a fundamental right to practise any profession or to carry on any occupation, trade or business. However, such right is subject to such reasonable restrictions that may be imposed by the State under Clause (6) of Article 19. Under Clause (6) the State has power either to completely prohibit or to permit with certain reasonable restrictions certain professions, which are not in the interests of the general public.

In Chintamanrao v. State of M.P. a Constitution Bench of five learned Judges of the Apex Court explaining the phrase ‘reasonable restrictions’, held:

The phrase ‘reasonable restriction’ in Article 19(6) connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word “reasonable” implies intelligent care and deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in that quality.

 Though a citizen has the fundamental right to carry on any business of his choice, there is no right to carry on any business, which is inherently dangerous to the society, and such business may be absolutely prohibited or permitted to be carried only under the licence of the State.

 In State of Bombay v. Balsara AIR 1951 SC 318, a Constitution Bench of the Apex Court held that a total prohibition on potable liquor would be reasonable. In T.B. Ibrahim Vs. Regional Transport Authority, Tanjore, , the Constitution Bench of the Supreme Court held that the restrictions placed upon the use of the bus-stand for the purpose of picking up or getting down passengers cannot be considered to be unreasonable and there is no fundamental right in a citizen to carry on business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interests of the public convenience.

 In Cooverjee B. Bharucha Vs. The Excise Commissioner and the Chief Commissioner, Ajmer and Others, , it was held:

In order to determine the reasonableness of the restriction regard must be had to the nature of the business and the conditions prevailing in the trade. It is obvious that these factors must differ from trade to trade and no hard and fast rules concerning all trades can be laid down. The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable conditions as may be deemed by the Government authority of the country essential to the safety, health, peace, order and morals of the community.

The Apex Court held:

Laws prohibiting trades in noxious or dangerous goods or trafficking in women cannot be held to be illegal as enacting a prohibition and not a mere regulation. The nature of the business is, therefore, an important element in deciding the reasonableness of the restrictions. The right of every citizen to pursue any lawful trade or businesses is obviously subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, order and morals of the community. Some occupations by the noise made in their pursuit, some by the odours they engender, and some by the dangers accompanying them, require regulations as to locality in which they may be conducted. Some, by the dangerous character of the articles used, manufactured or sold, require also special qualifications in the parties permitted to use, manufacture or sell them.

It was further held:

There is no inherent right in a citizen to sell intoxicating liquors by retail; it is not privilege of a citizen. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority. That authority may vest in such officers as it may deem proper the power of passing on applications for permission to carry it on, and to issue licences for that purpose. It is a matter of legislative will only.

 In The State of Bombay Vs. R.M.D. Chamarbaugwala, , another Constitution Bench of five learned Judges of the Supreme Court dealing with the provisions of Bombay Lotteries and Prize Competitions Control and Tax Act (Act 54 of 1948) held that nobody can be considered to have a fundamental right to carry on trade or business in activities which are inherently vicious and pernicious such as betting and gambling and a citizen cannot get protection under Article 19(1)(g) for the same. It was held that gambling activities from their very nature and in essence are extra-commercium although the external forms, formalities and instruments of trade may be employed and they are not protected either by Article 19(1)(g) or Article 301 of the Constitution.

 In Narendra Kumar and Others Vs. The Union of India (UOI) and Others, , which is also a decision of the Constitution Bench of five learned Judges of the Supreme Court; it was held that the word ‘restriction’ in Article 19(5) and (6) of the Constitution includes cases of prohibition also. It was, however, held that where the restriction reaches the stage of total restraint of rights, special care has to be taken by the Courts to see that the test of reasonableness is satisfied by considering the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, the beneficial effect reasonably expected to result to the general public, and whether the restraint caused by the law was more than what was necessary in the interests of the general public.

Another Constitution Bench of five learned Judges of the Apex Court in Krishan Kumar v. State of Jammu and Kashmir (supra) however, held that dealing in liquor is business and a citizen has a fundamental right to do business in liquor but the State can make a law imposing reasonable restrictions on the said right, in public interests.

 Referring to Krishan Kumar’s case, in Amar Chandra Chakraborty Vs. The Collector of Excise, Government of Tripura and Others, , the Apex Court held thus:

It is no doubt true that this Court in the case cited held that dealing in liquor is business and a citizen has a right to do business in that commodity but was added that the State can make a law imposing reasonable restrictions on the said right in public interest. In dealing with reasonable restrictions no abstract standard or general pattern is possible to lay down. In each case, regard has to be had to the nature of trade or business, the conditions prevailing in such trade or business, the nature of the infringement alleged, and the underlying purpose of restriction, the imposition of which is alleged to constitute an infringement.

 In Nashirwar and Others Vs. State of Madhya Pradesh and Others, , the Apex Court referring to Krishan Kumar’s case (supra) held that it was not correct to read the said decision to mean that there was a fundamental right to do business in liquor. According to the Court, the said decision was that dealing in liquor is business and citizen had a right to do business in that commodity and the State could impose reasonable restrictions on that right in public interest.

 In Khoday Distilleries Ltd. v. State of Karnataka (supra) the Supreme Court in extenso dealt with the issue and on a survey of all the decisions of the Constitution Benches right from the case in Chintamanrao v. State of Mandhya Pradesh (supra) held that the rights under Article 19 are not absolute but qualified and such rights do not extend to practising profession or carrying on business etc., which are inherently vicious or pernicious or obnoxious or injurious to health, safety and welfare of general public. Right to trade or business in potable liquor is not a fundamental or legal right. It was held:

The rights protected by Article 19(1) are not absolute but qualified. The qualifications are stated in Clauses (2) to (6) of Article 19. The fundamental rights guaranteed in Article 19(1)(a) to (g) are, therefore, to be read along with the said qualifications. Even the rights guaranteed under the Constitution of the other civilised countries are not absolute but are read subject to the implied limitations on them. Those implied limitations are made explicit by Clauses (2) to (6) of Article 19 of our Constitution. The right to practise any profession or to carry on any occupation, trade or business does not extend to practising a profession or carrying on an occupation, trade or business which is inherently vicious and pernicious and is condemned by all civilised societies. It does not entitle citizens to carry on trade or business in activities which are immoral and criminal and in articles or goods which are obnoxious and injurious to health, safety and welfare of the general public i.e., res extra commercium (outside commerce). There cannot be business in crime.

 It was also held that restrictions can be placed even by subordinate legislation or even by executive order provided it is issued by Governor of State. It was held:

Clauses (2) to (6) of Article 19 make no distinction between the law made by the Legislature and the subordinate legislation for purpose of placing the restrictions on the exercise of the respective fundamental rights mentioned in Article 19(1)(a) to (g). Clause (6) of Article 19, only speaks of operation of any existing law insofar as it imposes “from making any law imposing” reasonable restrictions on the exercise of the rights conferred by Article 19(1)(g). There is nothing in this provision which makes it imperative to impose the restrictions on trade or business only by a law enacted by the Legislature. Hence the restriction on trade or business in potable liquor and alcohol can also be imposed by any subordinate legislation so long as such legislation is not violative of any provisions of the Constitution. This is apart from the fact that the trade or business in potable liquor is a trade or business in res extra commercium and hence can be regulated and restricted even by executive order provided it is issued by the Governor of the State.

 The Apex Court has explained the view taken in Krishan Kumar’s case (supra) as under:

It will thus be obvious that all the decisions except the decision in Krishna Kumar Narula etc. Vs. The State of Jammu and Kashmir and Others, have unanimously held as shown above that there is no fundamental right to carry on trade or business in potable liquor sold as a beverage. As pointed out above, the proposition of law which is put in a different language in K.K. Narula’s case has been explained by the subsequent decisions of this Court including those of the Constitution Benches. The proposition of law laid down therein has to be read in conformity with the proposition laid down in that respect by other decisions of this Court not only to bring comity in the judicial decisions but also to bring the law in conformity with the provisions of the Constitution of India……. Whether one states as in K.K. Narula’s case that the citizen has a fundamental right to do business but subject to the State’s powers to impose valid restrictions under Clause (6) of Article 19 or one takes the view that a citizen has no fundamental right to do business but he has only a qualified fundamental right to do business, the practical consequence is the same so long as the former view does not deny the State the power to completely prohibit trade or business in articles and products like liquor as a beverage or such trafficking as in women and slaves. This Court in Krishna Kumar Narula etc. Vs. The State of Jammu and Kashmir and Others, has not taken such view.

Very recently in Secretary to Govj, Tamilnadu and Anr. v. K. Vinayagamurthy (supra), the Supreme Court reiterated the view taken by various Constitution Benches in the following terms:

So far as the trade in noxious or dangerous goods is concerned, no citizen can claim to have right in the same and intoxicating liquor being a noxious material, no citizen can claim any inherent right to sell intoxicating liquor by retail. It cannot be claimed as a privilege of a citizen of a State. That being the position, any restriction which the State brings forth, must be a reasonable restriction within the meaning of Article 19(6) and reasonableness of the restriction would differ from trade to trade and no hard and fast rule concerning all trades can be laid down.

 From an analysis of the aforesaid authorities of the Apex Court, the following points would emerge:

1. The right protected under Article 19(1)(g) is not an absolute right but only qualified and is subject to the restrictions that may be imposed under Clause (6) of Article 19 in general public interest.

2. The right to practise any profession or to carry on any occupation, trade or business does not extend to practising a profession or carrying on an occupation, trade or business which is inherently vicious and pernicious and which are obnoxious and injurious to health, safety and welfare of the general public. The State has power either to completely prohibit or to permit such trade or business with certain reasonable restrictions.

3. The right of every citizen to pursue lawful trade or business is subject to such reasonable restrictions that may be imposed by the Governing authority, which is essential to the safety, health, peace, order and morals of the community. Reasonableness of the restriction, however, differs from trade to trade and no hard and fast rule concerning all trades can be laid down.

4. Any imposition, which restricts a citizen’s right to carry on an occupation, trade or business, but is not authorised by law, cannot be covered by Clause 6 and must be held to be invalid. Restriction can be placed by subordinate legislation or even by executive order provided it is issued by Governor of State.

5. In order to determine reasonableness of the restriction regard must be had to the nature of the business or trade, the conditions prevailing in the said trade or business, the nature of infringement alleged, the manner and extent of regulation rest in the discretion of the governing authority.

6. Restriction includes prohibition also and in such cases special care has to be taken by the Courts to see that the test of reasonableness is satisfied by considering the question in the back ground of the facts and circumstances of the case, the nature of the evil sought to be remedied by law, the ratio of the harm caused to individual citizens by the proposed remedy, the beneficial effect reasonably expected to result to the general public, and whether the restraint caused by the law was more than what was necessary in the interests of the general public.

Advertisements

Categories: CIVIL

Tagged as: