Restrictions and Right to Freedom

A law which authorises the deprivation of personal liberty did not fall within the purveiw of Article 19 and its validity was not to be judged by the criteria indicated in that article but depended on its compliance with the requirments of Article 21 and 22 of the Constitution.

The expression “personal liberty” as used in Article 21, it was said, was sufficiently comprehensive to include the particular freedoms enumerated in Article 19 (1) and its deprivation therefore in accordance with the provision of Article 21 would result in automatic extinction of the other freedom also. In this connection reference was made to the several sub-clauses of Article 19 and Patanjali Sastri, J. expressed his views in the following words:

“The use of the word ‘restrictions’ in the various sub-clauses seems to imply, in the context, that the rights guaranteed by the Article are still capable of being exercised, and to exclude the idea of incarceration though the words ‘restriction and deprivation’ are sometimes used as inter-changeable terms, as restriction may reach a point where it may well amount to deprivation. Read as a whole and viewed in its setting among the group of provisions relating to ‘Right to Freedom’, Article 19 seems to my mind to pre-suppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum of personal freedom on which alone the enjoyment of these rights necessarily rests.”

18. The point for consideration in that case was undoubtedly different from the one that has arisen in the present case and the question whether the restrictions enumerated in the several sub-clauses of Article 19 could go to the length of total deprivation of these liberties was neither raised nor decided in that case. But a distinction was drawn by the majority of learned Judges between negation or deprivation of a right and a restriction upon it and although it was said that restriction may reach a point where it might amount to deprivation, yet restrictions would normally pre-suppose the continued existence—no matter even in a very thin and attenuated form—of the thing upon which the restrictions were imposed. Kania, C. J. in his judgment (vide page 106) expressly said: “Therefore Article 19 (5) cannot apply to a substantive law depriving a citizen of personal liberty. I am unable to accept the contention that the word ‘deprivation’ includes within its scope ‘restrictions’ when interpreting Article 21’.

19. Against this view it may be urged that the use of the words “deprivation” and “restrictions” as interchangeable expressions is not altogether unusual in ordinary language and the nature and extent of restrictions might in some cases amount to a negation of the right. The Orissa High Court in the case of – ‘Lokanath Mishra vs. State of Orissa’, AIR 1952 Orissa 42 (H) accepted this view and made a distinction between “regulation” and “restriction” . In the opinion of the learned Judges the observations of Lord Davey in – ‘(1896) A.C. 88 (F)’, referred to above could be distinguished on the ground that the expression used in that article was not ‘restriction’ but ‘regulation’ and ‘governing’. It is said that the framers of the Constitution were aware of the distinction between the power to ‘regulate’ and the power to ‘restrict’ and this would be apparent from a scrutiny of sub-clause (a) of clause(2) of Article 25 of the Constitution where the words “regulating “ and “restricting” occur in juxtaposition indicating thereby that they were not intended to convey the same meaning.

In Cooverjee Bharucha vs. Excise Commr., AIR 1954 SC 220 it is observed :

The State has certainly the right to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public. The relevant portion of the judgment runs as follows:

“Article 19 (1)(g) of the Constitution guarantees that all citizens have the right to practice any profession or to carry on any occupation or trade or business, and clause (6) of the article authorises legislation which imposes reasonable restrictions on this right in the interest of the general public. It was not disputed that in order to determine the reasonableness of the restriction regard must be had to the nature of the business and the conditions prevailing in that trade ……. It can also not be denied that the State has the power to prohibit trades which are illegal or immoral or injurious to health and welfare of the public. Law 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”.

It is contended on behalf of the respondents that these observations clearly indicate that the expression “reasonable restriction” as used in Article 19(6) of the Constitution might, in certain circumstances, include total prohibition. It may be mentioned here that the Excise Regulation is not a prohibitory statute which prohibits trading in liquor by private citizens altogether. It purports to regulate the trade in a particular way, namely, by putting up the right of trading in liquor in specified areas to the highest bidder in auction sale. The general observations occurring in the Judgment cited above must therefore have to be taken with reference to the facts of that case.

21. Be that as it may although in our opinion the normal use of the word “restriction” seems to be in the sense of ‘limitation’ and not ‘extinction’, we would on this occasion prefer not to express any final opinion on this matter. If the word, ‘restriction’ does not include total prohibition then the law under review cannot be justified under Article 19(6). In that case the law would be void unless it can be supported by Article 31. That point will be dealt with under the other point raised in the appeal. If however the word “restriction” in Article 19 (6) of the Constitution be taken in certain circumstances to include prohibition as well, the point for consideration then would be, whether prohibition of the right of all private citizens to carry on the business of motor transport on public roads within the State of Uttar Pradesh as laid down by the Act can be justified as reasonable restrictions imposed in the interests of the general public.

Connection with Directive principles

It may be pointed out in this connection that in Part IV of the Constitution which enunciates the directive principles of State policy, Article 39(a) expressly lays down that the State shall direct its policy towards securing “that the citizens, men and women equally, have the right to an adequate means of livelihood.” The new clause in Article 19(6) has no doubt been introduced with a view to provide that a State can create a monopoly in its own favour in respect of any trade or business but the amendment does not make the establishment of such monopoly a reasonable restriction within the meaning of the first clause of Art. 19(6). The result of the amendment is that the State would not have to justify such action as reasonable at all in a court of law and no objection could be taken to it on the ground that it is an infringement of the right guaranteed under Article 19(1)(g) of the Constitution. It is quite true that if the present statute was passed after the coming into force of the new clause in Article 19(6) of the Constitution, the question of reasonableness would not have arisen at all and the appellants’ case on this point, at any rate, would have been unarguable. These are however considerations which cannot affect our decision in the present case. The amendment of the constitution, which came later, cannot be involved to validate an earlier legislation which must be regarded as unconstitutional when it was passed. As Professor Cooley has stated in his work on Constitutional Limitations Vide Vol. I, page 384 note, “a statue void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted”. We think that this is sound law and our conclusion is that the legislation in question which violates the fundamental right of the appellants under Article 19(1)(g) of the Constitution and is not shown to be protected by the Clause (6) of the Article as it stood at the time of the enactment, must be held to be void under Article 13(2) of the Constitution.

Trade freedom

Guarantee of freedom of inter-State and intra-State trade, commerce and intercourse provided for by Article 301 of the Constitution .

Article 301 runs as follows:

“Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free.”

Article 302 authorises the Parliament to impose such restrictions on the freedom of trade, commerce and intercourse between one State and another or within any part of the territory of India as may be required in the public interests. Under Article 304 (b) it is competent even for the Legislature of a State to impose reasonable restrictions upon freedom of trade, commerce and intercourse mentioned above in the interest of the public, but it is necessary that any bill or amendment for this purpose should first receive the sanction of the President before it is moved or introduced in the Legislature of a State. Article 301 corresponds to Section 92 of the Australian Constitution and is even wider than the latter inasmuch as the Australian Constitution provides for the freedom of inter-State trade only.

What is said is, that the Article 301 provides safeguards for carrying on trade as a whole as distinguished from the rights of an individual to carry it on. In other words, this article is concerned with the passage of commodities or persons either within or outside the State frontiers but not directly with individuals carrying on the commerce or trade. The right of individuals, it is said, is dealt with under Article 19(1)(g) of the Constitution and the two articles have been framed in order to secure two different objects.

31. We desire to point out that in regard to section 92 of the Australian Constitution, which so far as inter-State trade is concerned adopts almost the same language as Article 301 of our Constitution, it has been difinitely held by the Judicial Committee in the case of ‘1950 AC 235 (J)’ that the rights of individuals do come within the purview of the section. It is true, as Lord Porter observed, that section 92 does not create any new juristic rights but it does give the citizens of the State or the Common-Wealth, as the case may be, the right to ignore and, if necessary, to call on the judicial power to help him to resist legislative or executive actions which offend against the section. It follows from this as His Lordship pointed out, that the application of section 92 does not involve calculations as to the actual present or possible future effect upon the total value of inter-State trade, the difficulty in applying such a criterion being too obvious. If this view is adopted in regard to Article 301 of our Constitution it can plausibly be argued that the legislation in the present case is invalid as contravening the terms of the article. The question of reasonable restrictions could not also arise in this case, as the bill was not introduced with the previous sanction of the President as required by the proviso to the Section 304 (b). It is true that the consent of the President was taken subsequently but the proviso expressly insists on the sanction being taken previous to the introduction of the bill.

32. It may be argued that freedom of trade does not, as Lord Portor observed in the—’Australian Bank case, (J)’ referred to above, mean unrestricted or unrestrained freedom and that regulation of trade is quite compatible with its freedom. As against this it may be pointed out that the constitution itself has provided in Art.302 and 304 (b) how reasonable restrictions could be imposed upon freedom of trade and commerce and it would not be proper to hold that restrictions can be imposed ‘aliunde’ these provisions in the Constitution. The question would also arise as to what interpretation should be put upon the expression “reasonable restrictions” and whether or not as would have to apply the same tests as we have applied in regard to Article 19(6) of the Constitution. One material thing to consider in this connection would be that although the constitution was amended in 1951 by insertion of an additional clause in Article 19(6) by which State monopoly in regard to trade or business was taken out of the purview of Article 19(1)(g) of the Constitution, yet no such addition was made in Article 301 or Article 304 of the Constitution and Article 301, as it stands, guarantees freedom of trade, commerce and intercourse subject only to Part XIII of the Constitution and not the other parts of the Constitution including that dealing with fundamental rights.

33. The Australian Constitution indeed has no provision like Article 19(1)(g) of the Indian Constitution and it is certainly an arguable point as to whether the rights of individuals alone are dealt with in Article 19(1)(g) of the Constitution leaving the freedom of trade and commerce, meaning by that expression ‘only the free passage of persons and goods, within or without a State to be dealt with under Article 301 and the following articles.

Saghir Ahmad and another-AIR 1954 SC 728 : (1955) 1 SCR 707