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ARTICLE 19(1)(g) AND ARTICLE 19(6)

FREEDOM TO CARRY ON TRADE AND COMMERCE

CONSTITUTIONAL LAW PROJECT

STUDENT NAME: YELISETTY VINAYA

ROLL NUMBER: 18LLB102

SEMESTER III

FACULTY NAME: Prof A. Nageswara Rao

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM

OCTOBER 2018

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ACKNOWLEDGEMENT

I would sincerely like to put forward my heartfelt appreciation to our respected Constitutional Law
professor Mr. A. Nageswara Rao sir, for giving me this golden opportunity to take up this project
regarding Aricle 19(1)(a) and Article 19(6). I have tried my best to collect information about the project
in various possible ways to depict clear picture about the given project topic. I would also like to
express my gratitude to Mr. A. Nageswara Rao sir for his great support, guidance, help and lectures
which helped me in doing the project.

I am also grateful to the office, librarian and library staff of DSNLU, Visakhapatnam for allowing me
to use their library whenever I needed to. Further I am grateful to my learned teachers for their
academic patronage and persistent encouragement extended to me.

SIGN OF THE RESEARCHER:

SIGN OF THE FACULTY:

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TABLE OF CONTENTS

INTRODUCTION………………………………………………………………………….……………4

FREEDOM OF PROFESSION, OCCUPATION, TRADE, OR BUSINESS…………….…………….5

RIGHT TO CARRY ON BUSINESS INCLUDES THE RIGHT TO CLOSE THE BUSINESS….…..6

GOVERNMENT DOCTORS - NO RIGHT OF PRIVATE PRACTICE……….………………………7

TRADE OR BUSINESS IN LIQUOR………………………………………………..…………………8

HAWKERS RIGHT TO TRADE ON PAVEMENT OF ROADS…………………………..…………..8

RESTRICTION ON OTHER PROFESSIONALS ENTRY INTO LEGAL PROFESSION…...……….9

STATE LOTTERIES - NOT TRADE OR BUSINESS BUT GAMBLING…………………………….9

INCREASE IN NUMBER OF HOLIDAYS………………………….………………………………..10

GROUNDS OF RESTRICTIONS………………………………………..…………………………….12

REASONABLE RESTRICTIONS……………………………………………………………………..12

DANGEROUS AND NOXIOUS GOODS……………………………………………………………..13

MINIMUM WAGES……………………………………………………………………………………16

THE CLOSURE OF SHOPS AND ESTABLISHMENTS FOR A DAY IN A WEEK………………..16

UNREASONABLE RESTRICTIONS………………………………………………..………………..17

THE CLOSURE OF SHOPS AND ESTABLISHMENTS FOR A DAY IN A WEEK………………..17

PROFESSIONAL AND TECHNICAL QUALIFICATIONS…………………………………………18

STATE TRADING AND NATIONALIZATION……………………………….………….…………18

CONCLUSION…………………………………………………………….…………….…………….19

BIBLIOGRAPHY…………………………………………………….………………………….…….20

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INTRODUCTION

The Framers of the Indian constitution were fully conscious of the importance of maintaining the
economic unity of the Union of India. Free movement and exchange of goods throughout the territory
of India was essential for the country which alone could sustain the progress of the country. Before
India's independence and the new constitution, there existed a large number of Indian states that had
established customs barriers between themselves and the rest of India in the exercise of their sovereign
powers, thereby hindering the free flow of trade at several points that formed the borders of these
Indian states. Thus, the main object of Article 301 was obviously to break down the border barriers
between the states and to create one unit with a view to encouraging the free-flow of stream of trade
and commerce throughout the territory of India. So, there is Article 19 which deals with the Right to
Freedom.

Clauses (a) to (g) of Art. 19(1) guarantees to the citizens of India six freedoms, viz., of ‘speech and
expression’, ‘peaceable assembly’ ‘association’, ‘free movement’, ‘residence’, and ‘practising any
profession and carrying on any business’. These freedoms are very necessary not only to promote
certain basic rights of the citizens but also certain democratic values in and the oneness and unity of,
the country. Article 19 guarantees some of the basic, valued and natural rights inherent in a person. The
scheme of Article 19 shows that a group of rights are listed as clauses (a) to (g) and are recognized as
Fundamental Rights conferred on citizens. Originally, this article guaranteed seven freedoms. The
freedom to hold and acquire property was deleted in 1978. However, the freedoms guaranteed by Art.
19(1) are not absolute as no right can be. Each of these rights is liable to be controlled, curtailed and
regulated to some extent by laws made by the government or state legislatures. Accordingly, clauses (2)
to (6) of Art. 19 lay down the grounds and the purposes for which a legislature can impose ‘reasonable
restrictions’ on the rights guaranteed by the Art. 19(1)(a) to (g).

ARTICLE 19(1)(a)

Article 19(1)(a) guarantees to all citizens the right to ‘freedom of speech and expression’. Under Art.
19(2), ‘reasonable restrictions can be imposed on the exercise of this right for certain purposes’. any
limitation on the exercise of the right under Art. 19(1)(a) not falling within the four corners of Art. 19(2)
cannot be valid.

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ARTICLE 19(1)(b)

Article 19(1)(b) guarantees to the citizens of India the right to assemble peaceably and without arms.
Under Art. 19(3), however, the state can make any law imposing restrictions on the exercise of this
right in the interests of public order, and sovereignty and integrity of India.

ARTICLE 19(1)(c )

Article 19(1)(c ) guarantees to the citizens of India the right to form associations or unions or
co-operative societies. Under Art. 19(4), reasonable restrictions in the interests of public order or
morality or sovereignty and integrity of India may be imposed on this right by law.

ARTICLE 19(1)(d) and 19(1)(e)

Article 19(1)(d) guarantees to every citizen the right to move freely throughout the territory of India.
Article 19(1)(e) guarantees to a citizen the right to reside and settle in any part of India. According to
Art. 19(5), however, the State may impose reasonable restrictions on these rights by law in the interests
of general public or for the protection of the interests of any Scheduled Tribe.

ARTICLE 19(1)(f)

Article 19(1)(f) guaranteed to the Indian citizens a right to acquire, hold and dispose of property.
Article 19(5), however, permitted the state to impose by law reasonable restrictions on this right in the
interests of the general public or for the protection of the interest of any Scheduled Tribe. Articles
19(1)(f) and 19(5) have been repealed by the Constitution (Fourty-fourth Amendment) Act, 1979.

ARTICLE 19(1)(g)

The Article 19 (1) (g) guarantees to all citizens the right ‘to practice any profession or to carry on any
occupation, trade or business’. However, the right to carry on a profession, trade or business is not
unqualified. It can be restricted and regulated by authority of law under Article 19(6).

NINE GUIDELINES GIVEN BY THE SUPREME COURT

 It is the courts and not the Legislature which has to judge finally whether a restriction is reasonable or
not.

 The reasonable restrictions should not be excessive in nature

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 There is no exact standard that can be laid down for all cases each case is to be judged on its own
merit

 The restriction must be reasonable from substantive as well as procedural standard point

 The restriction which is imposed for securing the object as laid down in DPSP may be regarded as
reasonable restriction

 The court must determine the reasonableness of restriction by objective standard and not by
subjective

 Restriction to be reasonable must have rational relation with the object which the legislature seeks to
avail and not in excessive of that object on the grounds mentioned in Article 19 tw0 19 6

 Reasonableness must be determined by Court not by law

 Restrictions may amount to prohibitions

However, the scope of this project is only limited to Article 19(1)(g) and Article 19(6).

FREEDOM OF PROFESSION, OCCUPATION, TRADE, OR BUSINESS

Article 19(1)(g) guarantees that all citizens shall have the right "to practise any profession, or to carry
on any occupation, trade or business". However, the right to carry on a profession, trade or business is
not unqualified. It can be restricted and regulated by authority of law. Thus the State can under clause
(6) of Article 19 make any law—(a) imposing reasonable restriction on this right ‘in the interest of
public’, (b) prescribing professional or technical qualifications necessary for practising any profession
or carrying on any occupation, trade or business, (c) enabling the State to carry on any trade or business
to the exclusion of citizens wholly or partially.

In P.A. lnamdar v. State of Maharashtra1, it has been held that the right to establish an educational
institution, for charity or for profit, being an occupation is guaranteed under the Constitution to all
citizens under Article 19 (1) (g) and to minorities under Article 30. ‘Education’ even though is an
occupation but it cannot be equated with trade or business. In short, education is national wealth
essential for the nation's progress and prosperity. Notwithstanding the fact that the right of a minority to
establish and administer an educational institution would be protected by Article 19 (1) (g) yet the
Founding Fathers of the Constitution felt the need of enacting Article 30. The reason is obvious. Article

1
AIR 2005 SC 3226

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30 is intended to instil confidence in minorities against any encroachment by the executive or

legislature. Article 19 (1) (g) is subject to reasonable restrictions under Clause (6) of Article 19. Article
30 has been therefore enacted to give them additional protection. However, merely because Article 30
(1) has been enacted, minority educational institutions do not become immune from the operation of
regulatory measures because the right to administer does not include the right to mal-administer. The
real purpose sought to be achieved by Article 30 is to give minorities some additional protection.

RIGHT TO CARRY ON BUSINESS INCLUDES THE RIGHT TO CLOSE THE

BUSINESS

The right to carry On a business includes a right to close it at anytime the owner likes. So, the State
cannot compel a citizen to carry on business against his will. But as no right is absolute, the right to
close a business is also not an absolute right. It can be restricted, regulated or controlled by law in the
interest of public. The right to close down a business cannot be equated or placed at par as high as the
right not to start and carry on business. If one does not start a business at all then, under the
circumstances, he cannot be compelled to start one. But if one has started or been carrying on a
business, he has no absolute right to close it. He can be compelled not to close down his business in the
interest of general public. In Excel Wear v. Union of India2, the petitioner "Excel Wear" was a
registered firm. It had a factory at Bombay where it manufactured garments for exports. Due to serious
labour trouble, the factory was running into a recurring loss. The petitioners finding it almost
impossible to carry on business of the factory, served a notice on the State Government for prior
approval for its closure. The Government refused approval in the public interest. The Government
refused approval under Sections 25-0, 25-R, of the Industrial Disputes Act, 1947. Section 25-0 of the
Industrial Disputes Act requires an employer to take permission from the Government for closure of his
industrial undertaking. The employer is required to give a three months notice to the Government. The
Government could refuse the permission to close down the business if it is satisfied that the reasons
given by the employer “were not adequate and sufficient” or that “such closure is prejudicial to the
public interest”. Section 25-R provides punishment for violation of Section 25-0. The Supreme Court
held—Section 25-0 of the Act as a whole and Section 25-R in so far as it relates to the awarding of
punishment for violation of the provisions of Section 25-0 are unconstitutional and invalid for violation
of Article 19(1)(g) of the Constitution. Nobody has got a right to carry on the business if he cannot pay
even minimum wages to the labourers. He must then close down his business. The refusal not to close
down business, even if he cannot pay, is not a reasonable restriction in the public interest within the
meaning of Article 19(6) of the Constitution. In Fertilizer Corporation Kamgar Union v. Union of

2
AIR 1979 SC 25

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India3, it has been held that Article 19(1)(g) does not guarantee the right to work in a particular post of
one's own choice. The closure of an establishment in which a workman is employed does not by itself
infringe the fundamental right to carry on an occupation under Article 19(1)(g). If workers are
retrenched in a factory, they can pursue any other occupation. In this case, the Workers Union had
challenged the validity of the sale of certain plants of the corporation, namely, the Sindri Fertilizer
Factory on the grounds, inter alia, that it would result in the retrenchment of 11,000 workers employed
in the company and thus the sale would deprive them of their right to carry on their occupation as
industrial workers.

GOVERNMENT DOCTORS—NO RIGHT OF PRIVATE PRACTICE

In Sukumar Mukherjee v. State of W.B.4, the appellants challenged the validity of West Bengal State
Health Service Act, 1990 on the ground that it imposes unreasonable restriction on their right to carry
on any occupation, trade or business under Article 19(1)(g) of the Constitution. Section 9 of the Act
prohibited private practice by teacher doctors of W.B. Medical Education Service and not by the
doctors of W.B. Health Service. When these services were separated the doctors were given an option
to join either the WBMES or WBHS. The Court held - The restriction imposed by Section 9 is
reasonable and in the interest of the general public. The restriction is not on the freedom to practise the
medical profession. This applies to those doctors who voluntarily join the Government service. Those
who join the government service are bound by the terms and conditions of service and will have no
right to private practice.

BOTTOM TRAWLING—PROHIBITION OF

In Kerala SMT Feb. v. Kerala T.B.O. Association5, the validity of two orders made by the
Government of Kerala under Section 4 of the Kerala Marine Fishing Regulation Act, 1980 was
challenged by the owners and operators of mechanized boats as violative of their rights to move freely
under Art. 19(1)(g) (which includes territorial waters). By these orders bottom trawling was prohibited
altogether within the territorial waters for a period of 44 days—monsoon period—in the year 1992, and
thus their boats were practically confined to the seashore during this period and not to go to sea. The
object of this order was to protect the interests of the larger sections of the fishermen and assuring
livelihood of traditional fishermen and also conservation of fish wealth and to avoid possible law and

3
AIR 1981 SC 344
4
(1993) 3 SCC 724
5
(1994) 5 SCC 28

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order problem in coastal area and the sea. The Court held the two orders valid as they imposed
reasonable restrictions in public interest. The Government of Kerala was justified in protecting the
economic interest of the traditional fishermen and to ensure that they were not deprived of their slender
means of livelihood. The bottom trawling was not prohibited altogether but only during the monsoon
period and if their boats were capable of bottom-trawling beyond territorial waters they were free to go
beyond territorial waters.

TRADE OR BUSINESS IN LIQUOR

In Khoday Distilleries Ltd. v. State of Karnataka6, the Supreme Court has set at rest the controversy
arising out of conflicting decisions on the matter whether a citizen has fundamental right to trade or
business in liquor. It held - The rights under Article 19(1) are not absolute but qualified and the State is
authorised under clauses (2) to (6) of Article 19 to impose reasonable restrictions on this right in the
public interest. A citizen has no fundamental rights to trade or business in activities which are immoral
and criminal and in articles or goods which are abnoxious and injurious to health, safety and welfare of
general public, i.e., res extra commercium (outside commerce). Hence, a citizen has no right to carry on
trade or business in liquors as beverage. The State has power to prohibit the manufacture, sale,
possession, distribution and consumption both because it is dangerous article of consumption and also
because the directive principle contained in Article 47, except when it is used for medicinal purposes.
The State can create monopoly in such business either in itself or in any agency created for this purpose.
The restrictions on the right to trade in liquor can be imposed not only by a law enacted by the
legislature but it can be imposed by any subordinate legislation. It can be regulated and restricted even
by executive order provided it is issued by the Governor of the State. The word “business” is more
comprehensive than the word 'trade' since it includes ma nufacture while the word
'trade' may not ordinarily include. The argument that the law in the present case only provide for taking
over of ‘trade’ and not ‘business’ hence petitioners cannot be prevented from carrying on business is
not tenable as business includes ‘trade’ also. The Court accordingly upheld the validity of A.P.
(Regulation of Wholesale Trade, Distribution and Retail Trade in Indian Liquor and Foreign Liquor,
Wine and Beer) Act, 1993, under which the Government had imposed ban on trade or business in
liquor by any private person.

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(1995) 1 SCC 574

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HAWKERS RIGHT TO TRADE ON PAVEMENT OF ROADS

In Sodan Singh v. New Delhi Municipal Committee7, a five Judge Bench of the Supreme Court has
held that hawkers have a fundamental right to carry on trade on pavement of roads, but, subject to
reasonable restrictions under Article 19(6) of the Constitution. The petitioners who were poor hawkers
were carrying on business on the pavements of roads of Delhi and New Delhi. They alleged that they
were permitted by the respondent Municipal authorities to carry on their business by occupying a
particular area on the pavements on payment of certain charges described as Tehbazari, but they
refused them to continue with their trade and thereby they were violating their fundamental right
guaranteed under Articles 19(1)(g) and 21 of the Constitution. The Supreme Court held - The right to
carry on trade or business mentioned in Article 19(1)(g) on pavement of roads, if properly regulated,
cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and for
no other use. The right if properly regulated would help both the small traders and the general public by
making available ordinary articles of every day use for a comparatively lesser price. If the
circumstances are appropriate and a small trader can do some business for personal gain on the
pavement to the advantage of the general public and without any discomfort or annoyance to the others,
there cannot be any objection to his carrying on the business. Proper regulation is, however, a necessary
condition as otherwise the very purpose of laying down roads to facilitate traffic may be defeated. This
sight is subject to reasonable restrictions under clause (6) of Article 19. Though the hawkers have a
fundamental right to carry on the business of their choice yet they have no right to do so on a particular
place. They cannot claim that they may be permitted to trade on every road in the city. If a road is not
wide enough to conveniently manage the traffic on it, no hawkering may be permitted at all, or may be
sanctioned only once a week. Hawkering may also be prohibited near hospitals or where necessity of
security reasons so demands. Public streets are primarily to be used by the public generally as pathways
for passing and re-passing but there are other ancillary purposes for which the public streets can be
used as of right. ‘Street trading’ is an age-old vocation adopted by human beings to earn living. ‘Street
trading’ is accepted as one of the legitimate modes of earning livelihood in the most affluent countries
of the world. This is prevalent in countries where there is a complete social security and no compulsion
on the citizens to be driven to street trading out of poverty or unemployment. Extreme poverty in India
warrants outright rejection of the argument that nobody has a right to engage himself in ‘Street trading’.
However, the State is empowered to regulate by making necessary enactments under Article 19(6) of
the Constitution. The Court suggested for framing proper schemes for regulating the hawkering
business by creating hawkering and non-hawkering zones.

7
AIR 1989 SC 1988

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SHIFTING OF SHOP ON TAHBAZARI DUE TO SECURITY REASONS

In Dharam Chand v. Chairman. New Delhi Municipal Council8, the appellant who had been
squatting in the area of Chandni Chowk, as a hawker selling cloths since 1965 was given tehbazari of
selling tea by the Enforcement Department of New Delhi Municipal Council (NDMC) at Rhagwan Das
Road but thereafter he was shifted opposite to the Supreme Court towards Bhagwan Das Road
persuannt to allocation of a shop by the Director (Enforcement) NDMC after the decision of the
Supreme Court in Sodan Singh v. New Delhi Municipal Corporation9, to identify the pavements
where the street hawking could be regulated without any hindrance to the public. In September 2011,
the NDMC temporarily suspended tehbazari orders including the appellant for serious safety and
security reasons and decided to relocate him from the existing site to a site near Gate of Baroda House,
adjacent to the existing stalls. Against the order, the appellant's writ petition w as dismissed by the
Single Judge of Delhi High Court and then the appeal was also dismissed by the Division Bench. The
appellant's case was that he had been carrying on his trade/occupation at very place since 1982 and
regularly paying the rent on the Kiosk allotted to him. He over a long period of time had developed a
goodwill and very strong customer base. His shifting for security reasons had the effect of taking away
his customers and would be a restriction on his right to trade, profession and occupation guaranteed
under Article 19(I)(g) of the Constitution. The appellant also contended that there was no threat to the
safety and security of the Supreme Court due to appellant's carrying on business there and after
bomb-blast in the Delhi High Court in 2011, no such incident happened till date. The Supreme Court
dismissed the appeal and held - The purpose of general interest of community as opposed to the interest
of individual directly or indirectly has to be balanced. Merely because after the incident of bomb-blast
in the Delhi High Court, no such incident took place till date, it cannot be presumed that no such
incident will happen in near future. The Court cannot assume and presume that there is no threat to the
safety or the security of the Supreme Court and its vicinity and allow the appellant to continue the said
business.

RESTRICTION ON OTHER PROFESSIONALS ENTRY INTO LEGAL

PROFESSION

In Dr. Haniraj L Chuhani v. Bar Council of Maharashtra and Goa10, the appellant who was a
doctor had applied for enrolment as an Advocate. The rule made by the Bar Council prevented him

8
AIR 2015 SC 2819
9
AIR 1989 SC 1988
10
(1996) 3 SCC 342

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from being enrolled as an Advocate. The appellant challenged the validity of the rule on the ground that
it was violative of his fundamental right under Art 19(1)(g) of the Constitution. The appellant claimed
that even though he was a medical practitioner, he was entitled to simultaneously carry on the
profession as an Advocate. The Supreme Court held the State Bar Council justified in framing the
impugned rule prohibiting the entry of a professional in carrying on other profession. The legal
profession requires full attention and would not countenance an Advocate riding two horses or more at
a time. He has to he a full time advocate or not at all. The right to practise any profession, or to carry on
any occupation, trade or business is not an absolute right but subject to reasonable restrictions specified
in clause (6) of Art. 19.

STATE LOTTERIES - NOT TRADE OR BUSINESS BUT GAMBLING

In B. R. Enterprises v. State of U.P.11, the petitioners had challenged the Validity of Lotteries
(Regulation) Act, 1998, and the order passed by the State of U.P. in exercise of power vested under
Section 5 of the Act banning sale of lottery tickets of other States in the State of Uttar Pradesh as
violative of Art. 19 (1) (g) and Arts. 301, 302 and 303 of the Constitution. The Supreme Court
held—The lottery contains an element of chance and therefore cannot be trade or commerce but is
gambling. Sale of lottery tickets organised by the State cannot be construed to be trade and commerce
within the meaning of Arts. 301 to 303 or trade or business under Art. 19 (1) (g) of the Constitution.
The Constitution makers could never have conceived to give protection to gambling either under Art.
19 (1) (g) or as trade under Art. 301 of the Constitution. The difference between gambling and trade is
that a gambling inherently contains a chance with no skill, while trade contains skill with no chance.
What makes lottery a pernicious is its gambling nature. Even in the State run lotteries the same element
of chance remains with no skill. The ban imposed by the State of Uttar Pradesh on the sale of lotteries
is constitutional and not violative of Art. 19 (1) (g) of the Constitution.

INCREASE IN NUMBER OF HOLIDAYS

In MRE Ltd. v. Inspector, Kerala Govt.12, the petitioners challenged the constitutional validity of the
Kerala Industrial Establishment (National and Festival Holidays) Amendment Act, 1990, on the ground
that the increase in number of national and festival holidays were violative of the fundamental rights
guaranteed to them under Art. 19 (1) (g) to carry on their trade, business or profession. By the
Amending Act, the original Act was amended and the national holidays were increased from three to

11
AIR 1999 SC 1867
12
AIR 1999SC 188

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four (with the addition of 2nd of October as Mahatma Gandhi’s Birth day) and festival holidays were
increased from four to nine. The total number of compulsory paid holidays were thus raised from 7 to
13. They contended that the increase in the number of national holidays was wholly arbitrary and
without any reasonable basis as such increase compelled them to pay their labour and other employees
salary even during the period of closure. The Court held - The compulsory closure of the industrial
concern on National and Festival holidays cannot be treated as unreasonable and therefore the
Amendment Act of 1990 which has increased the total number of holidays from 7 to 13 is not voilative
of Art. 19 (1) (g) of the Constitution and is valid. The Act is a social for gi,ing effect to directive
principles of State policy contained in Art. 43 of the Constitution enjoying the State to secure to all
workers a decent standard of life. The idea is that he workers would not he compelled to work on all
days. As human beings. they are also entitled to a period of rest which enable them to fully enjoy
their !mute and participation in social and cultural activities. The Amending Act imposes reasonable
restriction on the appellant's right to carry on trade, business or 'profession wider Art. 19 (1) (g) of the
Constitution and is, therefore, valid.

REQUIREMENT OF LICENCE FOR NURSING HOMES

In Chakresh Kumar Jain v. State of U.P.13, the petitioners sought to quash the bye-laws framed by
Nagar Palika Parishad, Badaun under which the owners of Nursing Homes, Private Clinics, Pathology
Centres and Maternity Homes were required to obtain licence and pay fee for the same. The Supreme
Court held that condition of obtaining licence and pay fee by medical practitioner or Nursing Homes
etc. did not amount to any impediment in the right of medical practitioner to practice and therefore the
bye-law was valid and constitutional.

ESTABLISHMENT OF EDUCATIONAL INSTITUTION

In Uni Krishnan v. State of A.P.14, it has been held that the right to establish an educational institution
and imparting education is not a commercial activity. Such activity can neither be a trade or business
nor can it be a profession within the meaning of Article 19(1)(g). Traci., or business normally connotes
an activity carried on with a profit motive. Education has never been commerce in this country. Right
to establish institutions for imparting medical and technical education is a right but not a fundamental
right.

13
AIR 2001 SC 2856
14
(1993) 1 SCC 645

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ILLEGAL OR IMMORAL PROFESSION

The right to practise any “profession” does not include right to carry on any illegal or immoral
profession. The State has right to prohibit trades, which are illegal or immoral or injurious to the health
and welfare of the public.

GROUNDS OF RESTRICTIONS

Under clause (6) of Article 19, the State is authorised to impose reasonable restrictions on the right to
carry on a trade, profession or business. The condition is that the restrictions must be-

(1) reasonable, and

(2) in the interest of general public. The right to carry on business, being a fundamental right, its
exercise is subject only to the restrictions imposed by law in the interest of the general public under
Article 19(6).

REASONABLE RESTRICTIONS

In determining the reasonableness of the restriction imposed by law under Article 19(6), the Court
cannot proceed on a general notion of what is reasonable in the abstract or even on consideration of
what is reasonable from the point of view of the persons on whom the restrictions are imposed. The
expression 'in the interest of general public' in Article 19(6) is of wide import comprehending public
order, public health, public security, morals, economic welfare of the community and the objects
mentioned in Part, IV of the Constitution. Nobody can dispute a law providing for basic ameneties for
the dignity labour as a social welfare measure. The tests of reasonableness have to be viewed in the
context of the issues which faced the legislature. In judging their validity the court must approach the
problem from the point of view of furthering the social interest which it is the purpose of the legislation
to promote. In Nagar Rice and Flour Mills v. N.T.G. and Bros.15, the Government issued an order
under Section 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958. sanctioning the change in
the location of the rice mill from its original site to the new site. The respondent challenged the order
on the ground that appellant's mill was moved to a place in the vicinity of their rice mill and in
consequence of the removal of the appellant's mills their business was likely to be adversely affected
and this amounted to unreasonable restriction on his right to carry on business. The Court held the order
valid. The owners of the rice mill shifted its existing location and obtained the necessary permission for
the change of location from the Director of Food and Civil Supplies. Even if, it be assumed that the
15
AIR 1971 SC 246

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previous sanction has to be obtained from the authorities before the machinery is moved from existing
site the competitor in business (owner of another rice mill) can have no grievance against the grant of
permission permitting the installation on a new site. The exercise of right under Article 19(1)(g) is
subject only to the restrictions imposed in the interest of ‘general public’ and not that it adversely
affects other’s business.

The persuit of any lawful trade or business may be made subject to such conditions and restrictions as
may be deemed essential by the legislature to be in the interest of general public. In order to determine
the reasonableness of the restriction for the purposes of clause (6) of Article 19 regard must be had to
the nature of the business and condition prevailing in the particular trade. It is obvious, the nature of
business must differ from trade and no hard and fast rule concerning all trades can be laid down. The
facts and circumstances present in trade, the type of the evil attempted to be remedied, the degree of
harm likely to be caused to the citizens should determine the scope of restrictions to be imposed by the
State. All the attendant circumstances should enter into legislative prescription of reasonableness of a
restriction.

DANGEROUS AND NOXIOUS GOODS

There is no fundamental right to carry on trade or business in noxious and dangerous goods like
intoxicating drugs or liquors. Thus trade in noxious and dangerous goods, adulterated food, traffiking in
women may be prohibited altogether by the State in the interest of the general public. The trades which
are neither immoral nor injurious to the health and public welfare cannot lie suppressed or prohibited.
They can only be regulated and their evil effects, if any, be mitigated. Some occupations by their very
nature of being noisy and dangerous may require regulation as regards the locality in which they should
be practised and special conditions in which they should be carried on. No citizen has right to carry on
his business at place of his choice if his doing injurious it; the public health or even cause
inconvenience to others. The State has power to enforce an absolute prohibition of manufacture for sale
of intoxicating liquor. The state has the exclusive right or privilege to manufacture, store and sale of
liquor and to grant that to its license holders on payment of considerations with such conditions and
restrictions for its regulation as may be necessary in the public interest.

MINIMUM WAGES

The Minimum Wages Act empowers the Government to fix minimum wages to be given to the laborers
in a particular industry. In Bijoy Cotton Mills Ltd. v. State of Ajmer16, the Act was challenged as

16
AIR 1995 SC 33

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being in violation of Article 19( l)(g). The Court held the restrictions imposed by the Act to be
reasonable as being imposed in the interest of general public. The Court observed : In an
under-developed country which faces the problem of unemployment on a very large scale, it is not
unlikely that labour may offer to work even on starvation wages. The policy of the Act is to prevent the
employment of such sweated labour in the interest of general public.

THE CLOSURE OF SHOPS AND ESTABLISHMENTS FOR A DAY IN A

WEEK

The Punjab Trade Employees Act, 1949, provided that shops and establishments shall remain closed for
a day in a week. In Monohar Lal v. State of Punjab17, the Supreme Court held the restriction to be
reasonable because the purpose of the Act was to improve the health and efficiency of the workers who
form an essential part of the community and in whose welfare the community was vitally interested.
The contention of the petitioner that the Act did not apply to him because he did not employ any other
person and was conducting the business himself was also rejected by the Court. Similarly, if the idea is
to improve thy; condition of working classes and with that end in view the State Government imposes a
condition that workmen will be entitled to bonus for the past period, the law can be held valid as
imposing reasonable restrictions in the interest of general public.

The word ‘restriction’ includes ‘prohibition’ also. In Narendra kumar v. Union of India18, the Non
-Ferrous Metal Order, 1958, which completely excluded the dealers in a trade of imported copper, was
held valid as imposing reasonable restriction in the interest of general public. The Court said that
prohibition was only a kind of restriction provided it satisfied the test of reasonableness.

REQUIREMENT OF LICENSE

In Chandra Kant Saha v. Union of India19, it has been held that Section 5 and 6 of the Rice Milling
Industry (Regulation) Act, 1958 as amended in 1968 which require the petitioners, the owners of
existing rice mills, to make an application for obtaining a new license for husking rice, imposes
reasonable restrictions on the right to carry on their trade and business. Section 5 requires permit to he
taken for a new or defunct rice mill. Section 6 requires the owner of an existing rice mill to make an
application to he licensing officer for the grin, r.f a licence for carrying on Rice Milling operation in the
rice mill. The petitioners contended that the provisions of the Act which require the petitioners to take
17
AIR 1961 SC 418
18
AIR 1960 SC 430
19
AIR 1979 SC 314

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licence for operating the mills amount to complete destruction of their right to carry on business. The
Supreme Court, however, held that the provisions of Sections 5 and 6 were purely regulatory in
character and were in public interest and were meant to carry out the purposes of the Act, (that is to say,
to preserve and protect the indigenous and hand pounding industry of rice growers) and hence
amounted to reasonable restriction on the right to carry on their trade and business. The Act does not
leave any discretion in the licensing officer to grant or to refuse to grant a licence. He has a mandatory
duty under Section 6(3) to grant a licence, if the conditions required by the Act are complied with, as is
clear from the word “shall” used in that section. Section 7 lays down the conditions on which the
licensing officer can revoke or suspend the licence, after giving the licensee an opportunity to show
cause against the action proposed to he taken. Thus the provisions of the Act contain sufficient
guidelines for the exercise of the power given to the licensing officer.

UNREASONABLE RESTRICTIONS

In Chintaman Rao v. State of M.P.20, law authorised the Government to prohibit all persons residing
in certain areas from engaging themselves in the manufacture of biri during the agricultural season. The
object of the law was to provide adequate labour for agricultural purposes in biri-making areas. The
Supreme Court held—The law is invalid as it imposes unreasonable restriction on the biri-making
business of the area. The Act is much in excess of the object which the la, seeks to achieve. It not only
compels those who are engaged in agricultural work from taking other vocation but also prohibits
persons such as infirm, disabled, old women and children incapable of working as agricultural laborers
from engaging themselves in the business of biri-making and thus earning their livelihood, hence it was
arbitrary and wholly unreasonable.

THE CLOSURE OF SHOPS AND ESTABLISHMENTS FOR A DAY IN A

WEEK

A law or order which gives arbitrary powers to the Government and its officials to grant, refuse or
cancel a licence without assigning any reason and without giving any opportunity to the applicant to be
heard, impose unreasonable restriction on the right of the citizens to carry on any profession, trade or
business. Thus in Dwarka Prasad v. State of U.P.21, the U.P. Coal Control Order, 1953, required a
person to take a licence for stocking, selling or storing for sale of coal. Under the Order the licensing
authority (the District Magistrate) may “grant, refuse to grant, or refuses to renew a licence and may

20
AIR 1955 SC 118
21
AIR 1954 SC 224

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suspend, cancel, revoke or modify any licence on any terms thereof”. The Court held the order invalid
on the ground that it gave unrestricted discretionary power to the licensing authority who could grant,
refuse or cancel licenses in any way he liked. “There was nothing in the order which could check him
in arbitrarily exercising his powers. Any uncontrolled, arbitrary administrative disrection to restrict a
citizen's right in respect of trade, business, industry cannot be permitted as it would be imposing an
unreasonable restriction outside the scope of clause (6) of Article l9”.

PROFESSIONAL AND TECHNICAL QUALIFICATIONS

The State can by law prescribe professional or technical qualifications necessary for practising any
profession or carrying on any occupation, trade or business. For example, it can prescribe that one who
wants to set up in medical practice should have studied a course in medicine and surgery and should
have passed MBBS examination or one who wishes to be a lawyer must have passed LL.B.
examination from any established university. Following arc some of the existing Indian Acts which
regulate professions requiring qualification, discipline, etc.

1. The Advocates Act, 2. The Bar Councils Act, 3. The Legal Practitioners Act, 4. Indian Medical
Degrees Act, 5. Indian Medical Councils Act, 6. The Pharmacy Act, 7. The Provincial Money Lenders
Act, 8. The Usurious Loans Act, 9. The Bengal Touts Act, 10. The Bengal Dentists Act.

The right to practise any profession or carry on any occupation, trade or business is a fundamental right
but it is subject to any law relating to professional or technical qualification. Right to practise medical
profession is subject to regulatory measures with regard to standard of professional qualification and
professional conduct keeping in view not only right of medical practitioners but also right to life and
proper health care of .ts who reed medical care and treatment.

STATE TRADING AND NATIONALIZATION

Clause (6) (ii) enables the State to nationalize any trade or business and carry it on itself to the
exclusion of all citizens wholly or partially. This clause was added by the Constitution (1st Amendment)
Act, 1951. This amendment had become necessary as a result of the decision in the case of Motilal v.
Uttar Pradesh Government22. In that case, the Government of Uttar Pradesh had refused to issue
permits to private owners of road transport vehicles in order to enable the State to take over particular
services. The Motor Vehicles Act required Private owners of road transport vehicles to obtain permits
from the regional authority. But it exempted the State-owned buses from the necessity of taking permit.

22
AIR 1951 AII 257

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The Allahabad high Court held that if the State carried on a commercial undertaking, it could not claim
any special treatment and refusal of permit by the State was held to be in violation of equal protection
guaranteed by Article 14. The creation of a State monopoly could neither be justified under the power
of regulation of traffic nor under the cover of putting restrictions under clause (6) of Article 19 except
in the interest of the general public. Nationalization of the road transport business, it was declared,
could not be brought about by indirect means and abuse of statutory discretion to grant new permits, or
to renew the existing permits under the Motor Vehicles Act, 1939.

The amended clause (6) of Article 19, now provides that : (i) “nothing shall affect the operation of any
existing law in so far as it relates to, or prevents the State from making any law relating to, (ii) the
carrying on by the State or by a corporation owned or controlled by the State of any trade, business,
industry or services, whether to the exclusion complete or partial, of citizens or otherwise”. This clause
makes it possible for a State to create a monopoly in its favour in respect of any trade or business by
excluding similar right of citizens. It removes the obligation of the State to justify its monopoly in trade
or business as a reasonable restriction of citizen’s right to carry on the same business or trade. The
amendment excludes all arguments in regard to the ouster of private citizens from any trade or business
which the State decides to carry on itself to the entire or partial exclusion of the citizens”. This means
that the creation of State monopolies shall not be considered to deprive a citizen of the freedom of trade
or occupation. The validity of a law creating State monopoly or permitting nationalization of a trade or
business shall not be open to challenge either on the ground that the restrictions imposed by it are
unreasonable or that they are not in the interest of the general public.3 Thus the FE,F.. of ow. citizen is
constitutionally subjected to the overriding right of the State to create a monopoly in any trade or
business.

CONCLUSION

In toto, we can conclude that the Constitution has granted this fundamental right under Art 19(1)(g), for
the prosperity and well being of everyone in the society. The State ensures that no individual residing
within the territorial boundaries of the country is deprived of this right and if at all he is , it will take the
requisite measures to avail him of an appropriate remedy and make sure that justice is delivered. Every
citizen should utilize this right to the best of his capabilities and for his moral as well as economic
progress. He should make use of this right in a rational manner so that the State is not compelled to
exercise force and also intervene with his business activities. He should carry out the required functions
of his employment, or his own profession in an ethical and reasonable way, which will not only assist
him in earning financial gains but also in turn make him knowledgeable and powerful enough to face
the societal issues. For having been provided of this right by the Constitution, every citizen has an
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obligation to abide by certain etiquette and proceed following a code of conduct so that the peace and
harmony of the society is not hampered .No citizen should adopt any kind of profession or trade which
is forbidden by law , immoral in its nature and which will incite violence and encourage animosity
among the masses. Law will take the necessary action if any citizen in the process of exercising this
right for his own benefit, if at all is leading to create a situation of an infringement of this legal right of
another individual or is making an attempt to inflict pain and damage on him. The State will assure that
no individual goes scot free if he is found guilty of committing any malicious and illegal activities in
the due course of his employment, trade, or practising any profession. Immoral and unlawful activities
like trafficking, running of brothels etc do not come within the ambit of this provision and indulging
into any of them as well instigating are both serious offenses for which every person will have to face
the ill consequences. The law does not approve nor tolerate of any sort of trade, or occupation, or
business which it feels will lead to destruction of property and life. It will not permit the conducting of
any activities which damages the health and safety of the society. It does not sanction the carrying on of
any unscrupulous activities by which the peace and harmony of the country is endangered. Every
citizen is expected to be honest while utilizing this freedom and also behave in a fair and responsible
manner.

“ Bonafide usage of this freedom will help to foster a healthy relationship among everyone in the
society. But on the contrary malafide usage will lead to havoc as well as cause a disturbance in the
working of the democracy, which in turn will act as a hindrance to the growth and development of the
economy.”

BIBLIOGRAPHY

V. N Shukhla’s Constitution of India 12th Edition

M.P Jain, Indian Constitutional Law, 6th Edition, 2009

Dr. J. N. Pandey, Constitutional Law of India, 55th Edition, 2018

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