RAJIV GANDHI NATIONAL UNIVERSITY OF

LAW

CONSTITUTIONAL LAW
(GROUP 18)
PROJECT:

RIGHTS TO CARRY OUT

TRADE, OCCUPATION
ARTICLE 19 (1) (g)
SUBMITTED BY- SUBMITTED TO-

Bhava Sharma Professor Siddharth Fuller

2ND year B.A LLB (Hons) Assistant Professor of Law

Section-B

Roll no-17108

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 ACKOWLEDGEMENT

I would like to express my gratitude to my teacher Professor Siddharth Fuller for

playing an instrumental role in my project and guiding me in times of difficulties. This
project helped me a lot in knowing the nuances of doing research with keeping
objectivity in my mind and the various problems it faces due to various interpretations.

I would also like to thank the library staff who assisted me in finding the appropriate
books for my project and also in collecting the relevant data that was vital for my
project.

Bhava Sharma

(17108)

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 CERTIFICATE

This is to certify that the Project Titled: Rights to carry out Trade and Occupation as
been prepared and well researched upon by the bona fide student Bhava Sharma, 2nd
year B.A LLB (Hons) of Rajiv Gandhi National University of Law under my
supervision.

___________________

Professor Siddharth Fuller

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 1. Table of Contents
1. BACKDROP OF ARTICLE 19.............................................................................................. 4
1.1 CONSTITUENT ASSEMBLY DEBATES................................................................................... 5
1.2 Violation of Article 19 .................................................................................................. 6
2. GENESIS OF TRADE AND OCCUPATION AS A RIGHT IN INDIAN CONTEXT ......................... 8
2.1 RESTRICTIONS .................................................................................................................... 8
2.1.1 What Constitutes a Restriction? ............................................................................... 9
2.1.2 Grounds on which a Restriction can be challenged: ............................................. 10
2.1.3 Reasonableness of Restrictions .............................................................................. 10
2.2 PROHIBITING THE SELL OF LIQUOR IN THE VICINITY OF HOLY PLACE.
.......................................................................................................................................... 12
3. RIGHT TO CARRY OUT LIQUOR TRADE, A RIGHT? .......................................................... 12
3.1 POWER OF THE STATE GOVERNMENT TO PROHIBIT TRADE IN LIQUOR ............................................ 13
4. CONCLUSION ............................................................................................................... 14

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 INTRODUCTION

1. BACKDROP OF ARTICLE 19

This project will strive towards explaining the genesis and evolution of the Article 19
and special focus on clause (1) sub-clause (g) which confers rights to practise any
profession, or to carry on any occupation, trade or business.

The primary purpose of Article 19 is to protect certain rights regarding freedom of

speech.

Every citizen has the right to freedom of speech and expression; assemble peacefully
(without arms); form associations or unions; move freely throughout the country;
reside and settle in any part of India; and practise any profession, or carry on any
occupation.

In the interests of the sovereignty, integrity, and security of India, the states can enact
any law that imposes “reasonable restrictions” on the exercise of the rights mentioned
in Article 19. Moreover, the Defamation clause under this Article prevents any citizen
from making any statement that injures the reputation of another. It is to be noted that
the privileges under this article remain suspended during the proclamation of
emergency.

Democracy is enshrined in the famous motto- “of the people, by the people and for the
people” and this motto of democracy is upheld with strong and effective establishment
of fundamental rights by the state.

The Indian Constitution is backed with six major fundamental rights and out of them
there is one important right which helps in opening the arena of true democratic
establishment and the said right is Freedom To Carry Trade, Occupation, Business and
Profession. This right is guaranteed by our constitution under Article 19(1)(g), which
states that all the citizens have right to practise any profession, or to carry on any
occupation, trade and business.

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This basic intention of this fundamental rights is to evolve socio-economic
strengthening throughout our country. However, this fundamental right is not
unregulated and cannot be looked in to isolation. Under Article 19(6) the state is not
prevented from making a law in interest of general public and thereby impose
reasonable restrictions on the exercise of the above right.
Time and again Indian Judiciary has been asked to check reasonableness and in the
light of the same situation Supreme Court has evolved several parameters to check
reasonability of the same. Also there are articles namely Article 301 which helps in
maintaining environment of economic unity in both aspects intra as well as inter states
in our country. The main objective behind these articles is to promote free trade,
commerce and inter-course activities within the territory of India.

Although the Constitution of India does not specifically mention the freedom of press,
it is implicitly defined under the Article 19 (1a). It has been included as part of
freedom of speech and expression. Therefore, the press is also subject to restrictions
that are provided under the Article 19 (2).

In fact, the Right to Information (RTI) emerges as a fundamental right under this
Article as the prerequisite for enjoying the freedom of speech and expression is access
to knowledge and information. Therefore, RTI becomes a constitutional right and an
important aspect of the right to free speech and expression. Access to information also
helps the citizens perform their fundamental duties mentioned in Article 51A.

1.1 CONSTITUENT ASSEMBLY DEBATES

The only part of the debates has been picked up that relate to the the sub clause (g) of
Article 19’s 1st clause.

A scrutiny of the debates in the Constituent Assembly on Article 19 (1) (g) as regards
the right to trade in general goes to show that there was reconciliation of two opposing
views, one for retaining that right and the other for not having such a provision. 1 The
scope of the restriction which could be imposed on the said right was also subjected to

1
Constituent Assembly Debates, p. 755.

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a lot of criticism7 The nature of the restriction to be imposed on the right was finally
resolved by substituting the word 'reasonable' before the word restriction and
importing the word 'general public' for `morality or health'

1.2 Violation of Article 19

Recently, there have been instances of individuals being arrested under section 66A of
the Information Technology (IT) Act for posting ‘objectionable comments and
caricatures’ of political figures on social media. This has led to a furore among the
citizens of the country who have claimed that Section 66A curbs freedom of speech
and expression and violates Articles 14, 19 and 21 of the Constitution.

Another form of violation of Article 19 that’s rampant in India is the hate speeches that
we often get to hear from the political leaders. These hate speeches come with
malicious intention of “outraging the religious feelings” and hence they incite
communal violence and endanger public tranquility, which is against the principle of
Article 19.

The six(originally seven) rights provided by this article are-

1. Right to freedom of speech and expression.(the state can impose

restrictions on this right on the grounds of sovereignty and integrity of India,
security of the state, friendly relations with foreign states, public order,
decency or morality, contempt of court, defamation and incitement to an
offence).
2. Right to assemble peaceably and without arms. (It does not include the
right to strike and does not protect violent armed assemblies).
3. Right to form association or union or cooperative societies. (the state can
impose restrictions on this right on the grounds of sovereignty and integrity
of India, public order and morality).
4. Right to move freely throughout the territory of India. ( the restrictions
can be on the basis of interest of general public and the protection of the
interests of any scheduled tribes).
5. Right to reside and settle in any part of the territory. (same as the
restrictions on movement).

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 6. Right to practice any profession or to carry on any trade occupation or
business. (This does not protect the right to carry on any business which is
immoral or dangerous).

The seventh right was the right to own property but this right led to various judicial
issues so this right was deleted by the 44th Amendment Act, 1978 and now it is just a
legal right.

Article 19(1)(f) has been omitted by the 44th Constitutional Amendment. Right to
property was removed from fundamental right, now right to property is legal
right inserted under Article 301A.

So the main focus of the project is based on comprehensive elucidation of Sub clause
(g) of Article 19 (1) that confers a general and vast right available to all persons to do
any particular type of business of their choice. But this does not confer the right to do
anything consider illegal in eyes of law or to hold a particular job or to occupy a
particular post of the choice of any particular person.2

Further Article 19(1) (g) does not mean that conditions be created by the state or any
statutory body to make any trade lucrative or to procure customers to the
business/businessman.3

Moreover a citizen whose occupation of a place is unlawful cannot claim fundamental

right to carry on business in such place since the fundamental rights cannot be availed
in the justification of an unlawful act or in preventing a statutory authority from
lawfully discharging its statutory functions.4

2
Fertilizer Corporation kamgar Union, Sindri v.UOI; AIR 1981 SC 344.

3
Chaitanya Prakesh v. Board of secondary Education rajasthan; 1960 Raj L.W. 209.

4
State of Gujarat v.Dharamdass; AIR 1982 SC 781.

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Keeping in view of controlled and planned economy, the Supreme Court in a series of
cases upheld the socially controlled legislation in the light of directive principles and
the activities of the private enterprises have been restricted to a great extent..

However, under Article 19(6), the state is not prevented from making a law imposing
reasonable restrictions on the exercise of the fundamental rights in the interest of the
general public or,

(i) A law relating to professional or technical qualifications is necessary for practicing

a profession. A law laying down professional qualification will be protected under
Article 19(6).

No person can claim as of right to possess a certificate for the profession of acting as
guide, and the certificate once granted can be cancelled without hearing the person
concerned.

(ii) A law relating to the carrying on by the state, or by any corporation owned or
controlled by it, of any trade, business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise.

Under article 19(6)(ii) nothing contained in Sub-clause(g) of Clause (1) of Article 19

shall affect carrying on by the State any trade, business, industry or service, whether to
the exclusion, complete or partial of citizens or otherwise if it is not in the interest of
general public.

Article 19 (6)(ii) will have no application if the State is not carrying on any trade.

2. Genesis of trade and Occupation as a Right in Indian context

The oldest professions in the world goes back to farming when people used to grow
food for their own sustenance and feed their families. The objective was to groe food
that would be adequate for them but as people started growing crop which was surplus
for them then they started practicing barter system, wherein the goods are exchanged
for goods or commodities of other types.

2.1 RESTRICTIONS

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Clause 19(6) of the Constitution authorizes the state5

i) To impose reasonable restrictions on the freedom of trade, business, occupation and

profession, in the interest of the general public.

ii) Professional and technical qualifications.

iii) To carry on any trade or business.

A proper understanding of the following areas is essential:

1) Reasonable restrictions.

2) In the interest of general public

3) Professional/Technical Qualifications under Article 19(6) (i)

4) Trading by the state under Article 19(6)(ii)

2.1.1 What Constitutes a Restriction?

(a) Restriction means – to put a limit. 6

A restriction is a rule or order that limits what you can do or that limits the amount or
size of something; a fact or situation that limits you or prevents you from doing what
you want to do. 5

(b) Meaning of implied restriction – A power to impose restriction upon the right
guaranteed under Article 19 (1) (g) must be plainly expressed in a statute. A power
which is not given expressly to impose restrictions cannot be implied.

5 5
--, Comprehensive study of Fundamental right to occupation, Available at :
http://shodhganga.inflibnet.ac.in/bitstream/10603/7957/8/08_chapter%202.pdf, Last Accessed: 10th
September 2018.
6
Ibid.

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2.1.2 Grounds on which a Restriction can be challenged:

Any restriction imposed by the state by any law on the right guaranteed under Article
19(1) (g) can be challenged on the ground either that the restriction is unreasonable, or
that the restriction is in excess of the right, or that even activities which are not
pernicious or that the procedure laid down for curbing any activity is unjust, arbitrary
or unreasonable.

2.1.3 Reasonableness of Restrictions

Reasonable’ means that which is in accordance with reason, and which is associated
with logic and not arbitrariness. It implies intelligent care and deliberation that which
reason dictates,The expression “reasonable restriction” signifies that the limitation
imposed on a person in the enjoyment of the right should not be arbitrary or of an
excessive nature beyond what is required in the interest of the public. 7

There has to be a nexus between the restriction and the object sought to be achieved
and the object must not, itself, be repugnant to the letter or the spirit of the
Constitution.

In order to be reasonable the restriction must have a reasonable relation with the object
which the legislation seeks to achieve, and must not go in excess of that object. 8

The reasonableness of a restriction has to be determined in an objective manner and

the standpoint of the interest of the general public and not from the point of view of the
person upon whom the restrictions are imposed. In other words, a law cannot be said to

7
P.P. Enterprises V. Union of India. 1982 S.C.C.(Cr.)341.

8
Kochuni v State of Madras, (196)3 SCR 887 (1914).

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be unreasonable merely because, in a given case, it operate harshly, even of the
persons affected by petty traders.9

Reasonable’ means that which stems from reason. Which is not arbitrary or
capricious? A restriction, in order to be ‘reasonable’ must be one that has a reason to
be imposed. There has to be, thus, a nexus between the restriction and the object
sought to be achieved and the object must not, itself, be repugnant of the letter or the
spirit of the Constitution .

The expression ‘reasonable restriction” signifies that the limitation imposed on a

person in the enjoyment of the right should not be arbitrary or of an excessive nature
beyond what is required in the interest of the public.10

The expression ‘reasonable restriction’ seeks to strike a balance between the Freedom
guaranteed by sub-clause (1)(g) of the Article 19 and the social control Permitted by
the Clause (6). It cannot be said that the limitation imposed on a person in the
enjoyment of a right should not be public. In order to be reasonable the restriction must
have a reasonable relation to the object which the legislation seeks to achieve, and
must not go in excess of that object. The twin requirements of clause (6) of Article 19
are:
(1) The reasonableness of the restriction upon the fundamental right to trade and

(2) The measure to the reasonableness being the compelling need to promote the
interests of general public.

The concept of restrictions on fundamental rights has been subjected to serious debates
by the judiciary. The main problem was whether restriction will amount to prohibition.
In other words, the question was whether the state can totally deprive a person of his

9
Pathumma v. State of Kerala; AIR 1978 Sc 771 (para 14).

10
Supra 7.

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fundamental right on the grounds detailed in various provisions relating to imposing
reasonable restrictions.11

2.2 PROHIBITING THE SELL OF LIQUOR IN THE VICINITY OF

HOLY PLACE.

Excise Law Prohibits the use of liquor and its vending in the vicinities of schools,
hospitals and holy places. Excise Laws which states that any liquor vend/ bar should
be at a distance of 75 meter or more from a major educational institution, religious
place and hospital with 50 bed and above in public interest.

Such restriction is not unreasonable and it does not infringe the fundamental rights of
citizens. A club located at 20, Bhai Vir Singh Marg is next to the Delhi Bible
Fellowship Society. The society had appealed against granting of the license to the
club, contending that the club was within 75 meters of the society’s premises and thus
violated the Excise Law. The distance between the both premises is not even 20
meters. However, while measuring distance, distance is measured from the club’s
second floor entrance, upper building’s spiral staircase-which obviously comes to
more than 75 meters. This has been objected by the society and hence Excise
Department has cancelled the license .

3. RIGHT TO CARRY OUT LIQUOR TRADE, A RIGHT?

Courts in India, have from the inception of the Constitution considered the scope of
fundamental right to trade in liquor. The scope of this right has to be analysed in the
light of constitutional obligation to bring about prohibition.' The question whether the
nature of a transaction can affect the quality of trade also has to be pondered over in a
discussion on the subject.

11
--, Freedom of trade in Liquor-a Fundamenta right?, Cochin University Law Review Vol. XV, 1991 p.
100-115.

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There are certain sectors which are termed as grievously injurious to public policy and
in lieu of the said fact the Supreme Court has removed such sectors from the ambit as
well as protection of Article 19(1)(g). In case of Nashirwar12 liquor trading case , the
Supreme court without any error interpreted that there was no inherent right to carry on
trade in liquor because it was clearly in against of interest of general public and also it
was properly abridged with the essence laid down in Part IV of our constitution i.e
Article 47 of Directive Principle of State Policy. Clearly, Court opened the gates for
the state to exercise any kind of restrictions as well as prohibition on the trade of
liquor, but this does not mean they have lost their all fundamental rights in total but
they can approach court if any restriction imposed on liquor trade is found to be
arbitrary, irrational or unreasonable.8

3.1 Power of the State government to Prohibit trade in liquor

In a discussion on Fundamental Right to trade in liquor the power of the state

government in imposing prohibition deserve consideration. Apart from the legislative
competence to enact a prohibition law the Directive Principles of State Policy also
throw light on the topic. The power of the state government to impose prohibition can
be traced to Entry 8 of List II of the VIIth Schedule of the Constitution.13

The Kerala High Court has held in Moni Sevan v. State of Kerala that the Kerala
Abkari Act and the Rules made thereunder is in truth and substance within the
legislative competence of the state falling under entry 8 of List II of the VIIth Schedule
of the Constitution.

12
Nashirwar v. State of Madhya Pradesh AIR 1975 SC 1368.

13
Entry 8 of List II of the VIIth Schedule of the Constitution deals with intoxicating liquors, that is to
say the production, manufacture, transport, purchase and sale of intoxicating liquors.

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Article 47 of the Constitution speaks about the obligation14 to bring about prohibition
of the consumption except for medicinal purposes, of intoxicating drinks and of drugs
which are injurious to health. When this Article was debated in the Constituent
Assembly reference was made to the teaching of Mahatma Gandhi and the religious
instruction against drinking in every community. A feeble opinion was also expressed
that it was premature and that prohibition was against the religious practice of the
tribal peoples. However, Dr. Ambedkar interfered and said that whether to act on the
principle and when to do so and in what stages to do so are questions left to the state
and to public opinion.15

Prohibition found a place in the Constitution because of the puritanical thinking which
predominated the Constituent Assembly, drawing inspirations from the teachings of
Mahatma Gandhi. It is submitted that a socio-economic problem however should find
a pragmatic solution only; it cannot be resolved by preconceived notions and beliefs.

Even if it is admitted that there is a fundamental right to trade in liquor, prohibition is

only a reasonable restriction which can be justified under Article 19 (6) in the interests
of general public. Moreover the state has a constitutional obligation under Article 47 to
bring about prohibition of the consumption of liquor.

In State of Bombay v. F. N. Balsara16 the Supreme Court held that absolute

prohibition of manufacture or sale of liquor is permissible and the only exception can
be for medicinal preparation. So there is no legal impediment in enacting a prohibition
law.

4. CONCLUSION

14
C.A.D. Vol. 7, pp. 496 et Seq.

15
Id. at pp. 563-564.

16
A.I.R. 1951 S.C. 318.

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The Article19(1)(g) in detail tries to cover all ambits of any economic activity at large
and restrictions laid down tries to create “level playing field”. This provision also
ensures that economic equality and true spirit of democracy our constitution at large is
upheld. It is believed that state imposes restrictions upon its citizens considering the
said fact that the citizens are still not mature enough to declassify for them, what is apt
for them or not. Recent nature of Indian Government of banning everything portrays
inefficiency on part of her Indian citizens that despite being independent for last six
decades they are not able to grow out of their infancy and the said contention is true
then serious question will be raised on the failure of the state’s mechanism in regards
to nurturing of her citizens. There are three major grey area which state and judiciary
needs to reaffirm of Article19(1)(g) :-
The interpretation of the phrase “in the interest of general public.”

 Effective restriction and not mere normative completeness.

 Try to simply intricate regulatory procedure.

Thus these are major contentions which will help in making the impact of
Article19(1)(g) more effective and help in accomplishing the ambition of our
constitution makers in relation to the same.

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