Hamdard Dawakhana (Wakf) Lal
Kuan,Delhi & ANR Vs. Union of India & Ors [1959] INSC 157 (18 December
1959)
KAPUR, J.L.
SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION: 1960 AIR 554 1960 SCR (2) 671
CITATOR INFO :
RF 1961 SC 4 (15) D 1962 SC 305 (43) D 1962
SC 562 (7) R 1962 SC1006 (70) R 1962 SC1263 (10) R 1964 SC 925 (35,67) R 1964
SC 980 (9) RF 1967 SC 1 (138) RF 1967 SC 212 (26) RF 1967 SC1048 (20) RF 1968
SC1232 (17,53) E 1973 SC 106 (28,35,36,66,127) R 1978 SC 597 (189,202) RF 1983
SC1155 (20) E 1986 SC 515 (90) R 1990 SC 560 (13) RF 1991 SC 672 (33)
ACT:
Advertisement, Control of-Advertisement, when
relates to freedom of speech-Statute prohibiting advertisements of drugs for
certain diseases-Constitutionality of-Whether curtails freedom of
speech-Conferment of power on executive to add to diseases falling within
mischief of statute-If amounts to delegation of legislative power-Statute
empowering executive to seize offending articles, without providing
safeguards-Whether imposes reasonable restrictions-Constitution of India, Arts.
19(1)(a), 19(1)(g), 19(1)(f) and 19(6). The Drugs and Magic Remedies
(Objectionable Advertisements) Act, 1954 (21 of 1954), ss. 2(a), 3(d), 8 and
14(c).
HEADNOTE:
When an enactment is challenged on the ground
of violation of fundamental rights it is necessary to ascertain its true nature
and character, i.e., its subject matter, the area in which it is intended to
operate, its purport and intent. In order to do so it is legitimate to take
into consideration all the factors such as the history of the legislation, the
purpose thereof, the surrounding circumstances and conditions, the mischief
intended to be suppressed, the remedy proposed by the legislature and the true
reason for the remedy. Initially, there is a presumption in favour of the
constitutionality of an enactment.
Bengal Immunity Company Ltd. v. The State of
Bihar, [1955] 2 S.C.R. 603, R. M. D. Chamarbaughwala v. The Union of India,
[1957] S.C.R 930, Mahant Moti Das & Others v. S. P. Saki, A.I.R. 1959 S.C.
942, Charanjit Lal Chowdhuri v. The Union of India & Others, [1950] S.C.R.
869 and The State of Bombay v. F. N. Bulsara, [1951] S.C.R. 682, referred to.
On examining the history of the legislation,
the surrounding circumstances and the scheme of the Act it was clear that the
object of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954,
was the prevention of selfmedication and self-treatment by prohibiting
instruments which may be used to advocate the same or which tended to spread
the evil. Its object was not merely the stopping of advertisements offending
against morality and decency.
Advertisement is no doubt a form of speech,
but its true character is reflected by the object for the promotion of which it
is employed. It is only when an advertisement is concerned with the expression
or propagation of ideas that it can be said to relate to freedom of speech. But
it cannot be said that the right 672 to publish and distribute commercial
advertisements advertising an individual's personal business is a part of the
freedom of speech guaranteed by the Constitution. The provisions of the Act
which prohibited advertisements commending the efficacy, value and importance
in the treatment of particular diseases of certain drugs and medicines did not
fall under Art. 19(1)(a) of the Constitution. The scope and object of the Act
its true nature and character was not interference with the right of freedom of
speech but it dealt with trade and business.
Lewis J. Valentine v. F. J. Chrestensen, 86
Law. Ed. 1262;
R. M. D. Chamarbaughwala v. The Union of
India, [1957] S.C.R. 930, State of Bombay v. R. M. D. Chamarbaughwala, [1957]
S.C.R. 874; John W. Rast v. Van Deman & Lewis Company, 60 Law. Ed. 679, Alice
Lee Grosjean v. The American Press Co., 80 Law. Ed. 660, Express Newspapers (P)
Ltd. v. The Union of India, [1959] S.C.R. 12 and J. M. Near v. State of
Minnesota, 75 Law. Ed. 1357, referred to.
The definition of " advertisement "
which included labels on cartons and bottles and instructions inside cartons
was not too wide in view of the object of the Act. If the definition was not so
broad and inclusive it would defeat the very purpose for which the Act was
brought into' existence. The use of the word " suggest " in s. 3 did
not support the contention that the restraint placed by that section was
disproportionate. The provisions Of S. 14(c) and r. 6 which allowed the
prohibited advertisements to be sent confidentially by post to a registered
medical practitioner, to a wholesale or retail chemist, to a hospital or a
laboratory only when the words " for-the use only of registered medical
practitioners or a hospital or a laboratory " had been inscribed on the
outside of every packet containing the advertisement did not impose excessive
restraint. The provisions of the Act were in the interests of the general
public and placed reasonable restrictions on the trade and business of the
petitioners and were saved by Art. 19(6).
Chintaman Rao v. The State of Madhya Pradesh,
[1950] S.C.R.
759 and Dwarka Das Srinivas of Bombay v. The
Sholapur Spinning & Weaving Company Limited, [1954] S.C.R. 674, referred
to.
The words " or any other disease or
condition which may be specified in the rules made under this Act " in cl.
(d) Of S. 3 which empowered the Central Government to add to the diseases
falling within the mischief Of s. 3 conferred uncanalised and uncontrolled
power on the executive and were ultra vires. The legislature had established no
criteria or standards and had not prescribed any principle on which a
particular disease or condition was to be specified. As a consequence the
Schedule to the rules also become ultra vires. But the striking down of the
impugned words did not affect the validity of the rest of cl. (d) or of the
other clauses of S. 3 as these words were severable.
673 The first part of s. 8 which empowered
any person authorised by the State Government in this behalf to seize and
detain any document, article or thing which such person had reason to believe
contained any advertisement contravening the provisions of the Act imposed an
unreasonable restriction on the fundamental rights of the petitioners and was
unconstitutional. This portion of s. 8 went far beyond the purpose for which
the Act was enacted and failed to provide proper safeguards in regard to the
exercise of the power of seizure and detention as had been provided by the
legislature in other statutes. If this portion was excised from the section the
remaining portion would be unintelligible and could not be upheld.
By a portion of cl. (d) of s. 3 and the whole
of s. 8 being declared unconstitutional, the operation of the remaining portion
of the Act remained unimpaired as these were severable.
R. M. D. Chamarbaughwala v. Union of India
[1957] S.C.R. 930, referred to.
ORIGINAL JURISDICTION: Petition Nos. 81, 62,
63 & 3 of 1959.
Petition under Art. 32 of the Constitution of
India for enforcement of Fundamental rights.
K. M. Munshi, N. C. Chatterjee, L. R. Das
Gupta, G. K. Munshi, D. N. Mukherjee and R. Gopalakrishnan, for the
petitioners.
C. K. Daphtary, Solicitor-General of India,
H. N. Sanyal, Additional Solicitor-General of India, B. R. L. Iyengar, R.
H. Dhebar and T. M. Sen, for respondents Nos.
1 to 10 (in Petn. No. 81 of 59), Nos. 1 to 3 (in Petn. No. 62 of 59), No. 1 (in
Petns. Nos. 63 and 3 of 59) and Nos. 2 and 3 (in Petn. No. 3 of 59).
G.N. Dikshit and C. P. Lal, for respondent
No. 11 (in Petn. No. 81 of 59) and No. 2 (in Petn. No. 63 of 59).
R. Gopalakrishnan, for the intervener.
1959. December 18. The Judgment of the court
was delivered by KAPUR, J.-These petitions under Art. 32 of the Constitution
raise the question of the constitutionality of the Drug and Magic Remedies
(Objectionable Advertisement) Act (XXI of 1954) hereinafter referred to as the
Act. As the petitions raise a common question of law they may conveniently be
disposed of by one judgment.
86 674 The allegation of the petitioners was
that various actions had been taken against them by the respond which violated
their fundamental rights under Art. 19(1)(a) and 19(1)(f) & (g). They also
challenged the Act because it contrvened the provisions of Art. 14 and Arts. 21
and 31.
The Act passed on April 30, 1954, came into
force on April 1, 1955, along with the rules made thereunder. As provided in
its preamble it was "An Act to control the advertisement of drugs in
certain cases, to prohibit the advertisement for certain purposes of remedies
alleged to possess magic qualities and to provide for matters connected
therewith." The petitioners in Writ Petition No. 81 of 1959, the Hamdard
Dawakhana (Wakf) and another, alleged that soon after the Act came into force
they experienced difficulty in the matter of publicity for their products and
various objections were raised by the authorities in regard to their
advertisements. On December 4, 1958, the Drugs Controller, Delhi, intimated to
the petitioners that the provisions of s. 3 of the Act had been contravened by
them and called upon them to recall their products sent to Bombay and other
States. As a result of this, correspondence ensued between the petitioners and
the authorities. On December 4, 1958, the Drugs Controller, Delhi State,
stopped the sale of forty of their products set out in the petition. Subsequently,
objection was taken by the Drugs Controller to the advertisements in regard to
other drugs. Similarly objections were taken by the Drugs Controllers of other
States to various advertisements in regard to medicines and drugs prepared by
the petitioners. They submitted that the various advertisements which had been
objected to were prepared in accordance with the Unani system and the drugs
bore Unani nomenclature which had been recognised in the whole world for
several centuries past. The Act is assailed on the ground of discrimination
under Art. 14, excessive delegation and infringement of the right of free
speech under Art. 19(1)(a) and their right to carry on trade and business under
675 Art. 19(1)(f) & (g). Objection is also taken under Arts. 21 and 31. The
petitioners therefore prayed for a declaration that the Act and the Rules made
there under were ultra vires and void as violative of Part III of the
Constitution and for the issuing of a writ of Mandamus and Prohibition and for
quashing the proceedings and the notices issued by the various authorities-the
respondents.
In their counter affidavit the respondents
submitted that the method and manner of advertisement of drugs by the
petitioners and others clearly indicated the necessity of having an Act like
the impugned Act and its rigorous enforcement. The allegations in regard to
discrimination and impairment of fundamental rights under Art. 19(1)(a), (f)
& (g) and any infringement of Arts. 21 and 31 were denied and it was stated
:" The restriction is about the advertisement to the people in general. I
say that the main object and purpose of the Act is to prevent people from self
medicating with regard to various serious diseases. Self-medication in respect
of diseases of serious nature mentioned in the Act and the Rules has a
deleterious effect on the health of the community and is likely to affect the
well-being of the people. Having thus found that some medicines have tendency
to induce people to resort to self-medication by reason of elated advertisements,
it was thought necessary in the interest of public health that the puffing up
of the advertisements is put to a complete check and that the manufacturers are
compelled to route their products through recognised sources so that the
products of these manufacturer could be put to valid and proper test and
consideration by expert agencies." It was also pleaded that the
advertisements were of an objectionable character and taking into consideration
the mode and method of advertising conducted by the petitioners the
implementation of the provisions of the impugned Act was justified. Along with
their counter-affidavit the respondents have placed on record Ext.-A, which is
a copy of the literature which 676 accompanied one of the various medicines put
on sale by the petitioners and/or was stated on the cartons in which the
medicine was contained. In their affidavit in rejoinder the petitioners
reiterated that Unani and Ayurvedic systems had been discriminated against;
that self-medication had no deleterious effect on the health of the community;
on the contrary it" is likely to affect the well-being of the people, in
the context of effective household and domestic remedies based on local herbs
popularly known to them in rural areas.
Self-medication has its permission (?) limits
even in America and Canada where unlicensed itinerant vendors serve the people
effectively." For the petitioners in all the petitions Mr. Munshi raised
four points:
(1) Advertisement is a vehicle by means of
which freedom of speech guaranteed under Art. 19(1)(a) is exercised and the
restrictions which are imposed by the Act are such that they are not covered by
cl. (2) of Art. 19 ;
(2)That Act, the Rules made thereunder and
the schedule in the rules impose arbitrary and excessive restrictions on the
rights guaranteed to the petitioners by Art. 19(1)(f) & (g);
(3) Section 3 of the Act surrenders unguided
and uncanalised power to the executive to add to the diseases enumerated in s.
3;
(4) Power of confiscation under s. 8 of the Act
is violative of the rights under Arts. 21 and 31 of the Constitution.
In Petitions Nos. 62 and 63 of 1939 which
relate to two branches of Sadhana Ausadhalaya at Poona and Allahabad
respectively, Mr. N. C. Chatterjee, after giving the peculiar facts of those
petitions and the fact that the petitioners' Poona branch was raided without a
warrant, a number of medicines had been seized, and a complaint filed against
the petitioners in that petition, submitted that s.
3(b) of the Act was meant to strike down
abnormal sexual activities, that advertisements in that case merely mentioned
the names of the diseases and suggested the drug for the treatment 677 of those
diseases, that the prohibition of such advertisements was an unreasonable
restriction on their fundamental right; that there was nothing indecent in
saying that their medicine was a cure for a particular disease and that the Act
was an undue interference with cure and treatment of diseases.
We now proceed to consider the vitality of
the arguments raised on behalf of the petitioners. Firstly it was submitted
that the restriction on advertisements was a direct abridgement of the right of
free speech and advertisements could not be brought out of the guaranteed
freedom under Art. 19(1)(a) because no dividing line could be drawn and freedom
of speech could not be curtailed by making it subject to any other activity.
The learned Solicitor-General on the otherhand, contended that it was necessary
to examine the pith and substance of the impugned Act and if it was properly
considered it could not be said to have in any way curtailed, abridged or
impaired the rights guaranteed to the petitioners under Art, 19(1)(a).
He also contended that the prohibited
advertisements did not fall within the connotation of " freedom of speech
". The doctrine of pith and substance,, submitted Mr. Munshi, was created
for the purpose of determining the legislative competence of a legislature to
enact a law and he sought to get support from the following observation of
Venkatarama Aiyar, J., in A. S. Krishna v. State of Madras (1) :"......
and the Privy Council had time and again to pass on the constitutionality of
laws made by the Dominion and Provincial legislatures. It was in this situation
that the Privy Council evolved the doctrine, that for deciding whether an
impugned legislation was intra vires regard must be had to its pith and
substance. " Though the doctrine of ' pith and substance' was evolved to
determine the constitutionality of an enactment in reference to the legislative
competence of a legislature particularly under a federal constitution with a
distributive system of powers it has been used in other contexts in some cases,
e.g., in connection (1) [1957] S.C.R. 399,406,410.
678 with the determination of the constitutionality
of statutes restricting the rights to carry on certain activities and the
consequent infringement of Art. 19(1)(g) : by Mahajan, C.J., in Cooverjee B.
Bharucha v. The Excise Commissioner & The Chief Commissioner of Ajmer (1)
in the case of Excise Regulation of 1915 regulating the import, export,
transport, manufacture, sale and possession of intoxicating drugs and liquor
and imposing duties thereon;
by Das, C.J., in State of Bombay v. R. M. D.
Chamarbughwala (2) in connection with a statute which was held not to be
interference with trade, commerce or intercourse as such but to save it from
anti-social activities.
It is unnecessary to decide in the present
case whether in its scope it extends to the determination of the
constitutionality of an enactment with reference to the various sub-clauses of
cl. (1)of Art. 19. A more appropriate approach to the question is, in our
opinion, contained in the dictum of Mahajan, J. (as he then was) in M/s. Dwarka
Prasad Laxmi Narain v. The State of Uttar Pradesh (3). There he held that
" in order to decide whether a particular legislative measure contravenes
any of the provisions of Part III of the Constitution it is necessary to
examine with some strictness the substance of the legislation in order to
decide what the legislature has really done. Of course the legislature cannot
bypass such constitutional prohibition by employing indirect methods and
therefore the Court has to look behind the form and appearance to discover the
true character and nature of the legislation. " Therefore, when the
constitutionality of an enactment is challenged on the ground of violation of
any of the articles in Part 111 of the Constitution, the ascertainment of its
true nature and character becomes necessary, i.e., its subject matter, the area
in which it is intended to operate, its purport and intent have to be
determined. In order to do so it is legitimate to take into consideration all
the factors such as history of the legislation, the purpose thereof, the (1)
[1954] S.C.R. 873, 877. (2) [1957] S.C.R. 874.
(3) [1954] S.C.R. 674, 682.
679 surrounding circumstances and conditions,
the mischief which it intended to suppress, the remedy for the disease which
the legislature resolved to cure and the true reason for the remedy; Bengal
Immunity Company Ltd. v. The State of Bihar (1); R.M.D. Chamarbaughwala v. The
Union of India (2) Mahant Moti Das & Ors. v. S. P. Sahi ( 3).
Another principle which has to borne in mind
in examining the constitutionality of a statute is that it must be assumed that
the legislature understands and appreciates the need of the people and the laws
it enacts are directed to problems which are made manifest by experience and
that the elected representatives assembled in a legislature enact laws which they
consider to be reasonable for the purpose for which they are enacted.
Presumption is, therefore, in favour of the constitutionality of an enactment.
Charanjit Lal Chowdhuri v. The Union of India & Ors.(4); The State of
Bombay v. F.N. Bulsara (5); Mahant Moti Das v. S. P. Sahi (3).
What then was the history behind the impugned
legislation and what was the material before the Parliament upon which it set
to enact the impugned Act.
(1) In 1927 a resolution was adopted by then
Council of State recommending to the Central and Provincial Governments to take
immediate measures to control the indiscriminate use of medical drugs and for
standardisation of the preparation and for the sale of such drugs. In August
1930, in response to the public opinion on the subject and in pursuance of that
resolution the Government of India appointed the Drugs Enquiry Committee with
Sir R. N. Chopra as its Chairman to enquire into the extent of the quality and
strength of drugs imported, manufactured or sold in India and to recommend
steps for controlling such imports, manufacture and sale in the interest of the
public. This Committee made a report pointing out the necessity of exercising
control over import, (1) [1955] 2 S.C.R. 603, 632 & 633.
(2) [1957] S.C.R. 930, 936.
(3) A.I.R. (1959) S.C. 942, 948.
(4) [1950] S.C.R. 869, (5) [1951] S.C.R. 682,
708.
680 manufacture and sale of patent and
proprietary medicines in the interest of the safety of the public and public
health.
The report pointed out in paragraph 256-259
how in other countries control was exercised and restrictive laws to achieve
that end had been enacted. In the Appendix to this Report was given a list of a
number of samples of advertisements of patent and proprietary medicines dealing
with cures of all kinds of diseases.
(2) As a result of the Chopra Committee
Report the `Drugs act, was passed in 1940.
(3)In 1948 The Pharmacy Act was passed to
regulate the provisions of pharmacy. As a result of these two enactments the
State Governments were given the responsibility of controlling the manufacture
of drugs and pharmaceuticals and their sales through qualified personnel and
the Central Government was given the control on quality of drugs and
pharmaceuticals imported into the country.
(4)The Chopra Committee Report dealt with the
popularity of the patent and proprietary medicines in the following words:
"The pride of place must be accorded to
ingenious propaganda clever and attractive dissemination of their supposed
virtues and wide and alluring advertisements. The credulity and gullibility of
the masses, especially when 'certain cures' are assured in utterly hopeless
cases, can well be imagined. Perusal of the advertisements of cures' produces a
great effect on patients who have tried treatment by medical men without
success. Such patients resort to any and every drug that comes in their way. In
an infinitesimal small number of cases spontaneous cures are also effected.
Widest publicity is given to these and the
preparations become invested with miraculous virtues. The reassurances of cure,
the force of argument advanced to guarantee it and the certificates of persons
said to have been cured which are all set out in advertisements make a deep
impression, especially on those with weak nerves. The love of mystery and
secrecy inherent in human nature, the natural disinclination and 681 shyness to
disclose details of one's illness especially those involving moral turpitude,
the peculiar temperament of the people who, high and low, rich and poor, demand
'something in a bottle' for the treatment of every ailment and poverty of the
people who cannot afford to pay the doctor's bills or the high prices current
for dispensed medicines,' have all been enlarged upon as tending to self diagnosis
and self-medication by patent and proprietary medicines." (5)Evidence was
led before the Chopra Committee deprecating the increasing sale of proprietary
medicines particularly those with secret formulae as such drugs were positively
harmful and were a serious and increasing menace. There were advertisements and
pamphlets issued in connection with these medicines which showed fraudulent
practices and extravagant claims for these medicines.
(6)The Chopra Committee Report had also made
a recommendation for a strict measure of control over proprietary medicines.
(7) The Bhatia Committee was set up in
pursuance to a resolution No. CI-1(12)/52 dated February 14, 1953, and between
March 1953, and end of that year it examined a large number of witnesses in
different towns of India some of whom represented chemists and druggists, some
were leading medical practitioners and some were State Ministers for Health.
The Bhatia Committee issued a Questionnaire to various organisations and
witnesses. It contained questions in regard to advertisement of drugs and
therefore one of the objects of this Committee which was inaugurated by the
Health Minister on March 12, 1953, was amongst other things to look into the
control to be exercised over objectionable and unethical advertisements.
(8) There were a large number of
objectionable advertisements in the Press in regard to patent medicines which
were after the Act came into force pointed out by the Press Commission Report
but it cannot be said that this fact was unknown to Parliament as this
Committee also examined a number of witnesses.
87 682 (9) The Indian Medical Association had
suggested to this Press Committee which was presided over by the late Mr.
Justice Rajadhyaksha the barring of advertisements of medicines which claim to
cure or alleviate any of the following diseases:
Cancer, Bright's disease, Cataract, Diabetes,
Epilepsy, Glaucoma, Locomotor ataxia, Paralysis, Tuberculosis.
(10) In the United Kingdom, advertisements of
drugs or treatment for these diseases are governed by the Cancer Act of 1939 and
the Pharmacy and Medi. cines Act of 1941.
(Advertisement relating to the treatment of
venereal diseases are governed by the Venereal Diseases Act of 1917).
(11) Wyndham E.B. Lloyd in his book ' Hundred
years of medicine' published in 1936 wrote about the outstanding evils which
arise from the use of secret remedies and nostrums. It also drew attention to
the dangers of advertisements in regard to them and what the British Medical
Association had said about them.
(12)The British Medical Association had in a
book entitled 'Secret Remedies What they cost and contain' exposed ruthlessly
the harmful effects of such remedies. The council on Pharmacy and Chemistry of
American Medical Association had also given its opinion on the harmful effects
of indiscriminate self-medication by the public and the grave danger which
ensued from such misdirected and inadequate treatment, and the failure to
recognise seriousness of the disease only when it was too late.
It is not necessary to refer to the
recommendations of the Bhatia Committee or the Press Enquiry Committee because
they were published in June and July 1954 respectively.
In England as far back as 1889, an Act called
the Indecent Advertisements Act (52 and 53 Viet. Ch. 18) was passed to suppress
indecent advertisements in which advertisements relating to syphilis,
gonorrhoea, nervous debility or other complaints or infirmity arising from
intercourse was prohibited. In 1917 the Venereal Diseases Act (7 and 8 Geo. V
Ch. 21) was passed in England. This placed restrictions on 683 advertisements
relating to treatment for venereal diseases.
In 1941, The Pharmacy and Medicine Act, 1941
(4 and 5 Geo.
VI Ch. 42) was passed which corresponds in
material particulars to the impugned Act. It cannot be said that there was no
material before Parliament on the basis of which it proceeded to enact the
impugned legislation. This material shows the bistory of the legislation, the
ascertained evil intended to be cured and the circumstances in which the
enactment was passed. In Shri Ram Krishna Dalmia v. Shri Justice S. R.
Tendolkar (1), Das, C.J., observed :" that in order to sustain the
presumption of constitutionality the court may take into consideration matters
of common knowledge, the history of the times and may assume every state of
facts which can be conceived existing at the time of legislation;" Thus it
is open to the court for the purpose of determining the constitutionality of
the Act to take all these facts into consideration and in the present case we
find that there was the evil of self-medication, which both in this country and
in other countries, the medical profession and those, who were conversant with
its dangers, had brought to the notice of the people at large and the
Government in particular. They had also warned against the dangers of
self-medication and of the consequences of unethical advertisement relating to
proprietary medicines particularising those diseases which were more likely to
be affected by the evil. There is reason, therefore, for us to assume that the
state of facts existed at the time of the legislation which necessitated the
Act. These facts we have already set out and it is not necessary to reiterate
them.
With this background in view we proceed to
examine the provisions of the Act and ascertain the predominant purpose, true
intent, scope and the object of the Act. The preamble shows that the object of
the Act was to control the advertisement of drugs in certain cases, i.e.,
diseases and to prohibit advertisements relating to remedies pretending to have
magic qualities and provide for other matters connected therewith, (1) [1959]
S.C.R. 279, 297.
684 The title of the Act also shows that it
is directed against objectionable advertisements. The definition section (s. 2)
in cl. (a) defines advertisements and in cl.
(b) drugs which include (i) medicines for use
of human beings and animals, (ii) substances for use of diagnosis, treatment or
prevention of diseases in human beings and animals, (iii) articles other than
food whichaffect the organic functions of the body of human beings or animals
and (iv) articles intended for use as a component of any medicine etc., cl. (c)
defines magic remedies to include a talisman, mantra, kavacha and other charms
and (d) relates to the publication of any advertisement and (e) what a venereal
disease is. Section 3 prohibits advertisement of drugs for treatment of
diseases and disorders. Clause (a) of s. 3 deals with procurement of
miscarriage in women for prevention of conception; cl. (b) with maintenance or
improvement of capacity of human beings for sexual pleasure;
cl. (c) with diagnosis and cure of venereal
and other diseases. Section 4 prohibits misleading advertisements relating to
drugs. Section 5 similarly prohibits advertisements of magic remedies
efficacious for purposes specified in s. 3. Section 6 prohibits the import into
and export from India of certain advertisement. Section 14 is a saving clause
which excludes registered practitioners, treatises or books,, advertisements
sent confidentially to medical practitioners, wholesale or retail chemists for
distribution among registered medical practitioners or to hospitals or
laboratories. It also excludes advertisements printed or published by
Government or with the previous sanction of the Government. Section 15 gives
the Government the power to grant exemptions from the application of ss. 3, 4,
5 and 6 in certain cases.
As already stated when an enactment is
impugned on the ground that it is ultra vires and unconstitutional what has to
be ascertained is the true character of the legislation and, for that purpose
regard must be had to the enactment as a whole, to its objects, purpose and
true intention and to the scope and effect of its provisions or what they are
directed against and what they aim at (A. S. Krishna v. State of Madras (1)).
Thus (1) [1957] S.C.R. 399, 4060 410.
685 examined it cannot be said that the
object of the Act was merely to put a curb on advertisements which offend
against decency or morality but the object truly, and properly understood is to
prevent self-medication or treatment by prohibiting instruments which may be
used to advocate the same or which tend to spread the evil. No doubt in s. 3
diseases are expressly mentioned which have relation to sex and disorders peculiar
to women but taken as a whole it cannot be said that the object of the Act was
to deal only with matters which relate to indecency or immorality. The name and
the preamble are indicative of the purpose being the control of all
advertisements relating to drugs and the use of the word animals in cl. (b) of
the definition section negatives the object being merely to curb the emphasis
on sex and indecency. Section 4 further suggests that the legislature was
trying to stop misleading advertisements relating to drugs. Section 5 also
tends to support the object being prohibition of advertisements suggesting
remedies for all kinds of diseases. Section 6 also points in the same
direction, i.e., to stop advertisements as to drugs. Sections 14 and 15 are a
clearer indication that there should be no advertisements for drugs for certain
diseases in order that the general public may not be misled into using them for
ailments which they may imagine they are suffering from and which they might
believe to be curable thereby. That this is so is shown by the fact that such
advertisements can be sent to medical practitioners, hospitals and
laboratories. The exclusion of Government advertisements and the power to give
exemption all point to the objective being the stopping of advertisements of
drugs for the object above-mentioned and not merely to stop advertisements
offending against morality and decency.
Mr. Munshi's argument was that s. 3 was the
key to the Act and that the object and direct effect of the Act was to stop advertisements
and thereby impair the right of free speech by directly putting a prohibition
on advertisement. If the contention of Mr. Munshi were accepted then the
restriction to be valid, must fall within cl. (2) of Art. 19 of the
Constitution. In 686 other words it must have relationship with decency or
morality because the other restrictions of that clause have no application. If
on the other hand the submission of the learned Solicitor-General is accepted
then the matter would fall under sub-cls. (f) and (g) and the restriction under
Art. 19(6). The object of the Act as shown by the scheme of the Act and as
stated in the affidavit of Mr. Merchant is the prevention of self-medication
and self treatment and a curb on such advertisements is a means to achieve that
end. Objection was taken that the preamble in the Act does not indicate the
object to be the prevention of treatment of diseases otherwise than by
qualified medical practitioners as the English Venereal Diseases Act 1917 does.
In this Court in many cases affidavits were allowed to be given to show the
reasons for the enactment of a law, the circumstances in which it was conceived
and the evils it was to cure. This was done in the case of Shri Ram Krishna
Dalmia v. Shri Justice S. R. Tendolkar (1). Similarly, in Kathi Raning v. The
State of Saurashtra (2 ) and in Kavalappara Kottarathil Kochunni v. The State
of Madras (3) affidavits were allowed to be filed setting out in detail the
circumstances which led to the passing of the respective enactments.
In support of his argument that any
limitation of his right to advertise his goods was an infringement of his
freedom of speech because advertisement was a part of that freedom Mr.
Munshi relied upon Alma Lovell v. City of
Griffin (4). In that case the objection was taken to the validity of a
municipal ordinance prohibiting the distribution without a permit of circulars,
handbooks, advertising or literature of any kind on the ground that such
ordinance violated the first and the 14th amendment by abridging the freedom of
the Press and it was held that such prohibition was invalid at its face as
infringing the constitutional freedom of the Press and constitutional guarantee
of such freedom embraced pamphlets and leaflets. The actual violation which was
complained of in that case consisted of the (1) [1959] S.C.R. 279.
(2) (1952) S.C.R. 435.
(3) A.I.R. (1959) S.C. 725.
(4) 82 Law Ed. 949; 303 U.S. 444.
687 distribution without the required
permission of pamphlets and magazines in the nature of religious tracts. Chief
Justice Hughes, said :" The ordinance in its broad sweep prohibits the
distribution of "circulars, handbooks, advertising or literature of any
kind." It manifestly applies to pamphlets, magazines and
periodicals." No doubt the word advertisement was used both in the
ordinance as well as in the opinion by the learned Chief Justice but the case
actually related to the distribution of pamphlets and magazines. Mr. Munshi
also relied on Express Newspapers (Private) Ltd. v. The, Union of India (1),
where the cases dealing with freedom of speech were discussed by Bhagwati, J.,
but the question of advertisements as such did not arise in that case.
An advertisement is no doubt a form of speech
but its true character is reflected by the object for the promotion of which it
is employed. It assumes the attributes and elements of the activity under Art.
19(1) which it seeks to aid by bringing it to the notice of the public. When it
takes the form of a commercial advertisement which has an element of trade or
commerce it no longer falls within the concept of freedom of speech for the
object is not propagation of ideassocial, political or economic or furtherance
of literature or human thought ; but as in the present case the commendation of
the efficacy, value and importance in treatment of particular diseases by
certain drugs and medicines. In such a case, advertisement is a part of
business even though as described by Mr. Munshi its creative part, and it was
being used for the purpose of furthering the business of the petitioners and
had no relationship with what may be called the essential concept of the
freedom of speech. It cannot be said that the right to publish and distribute
commercial advertisements advertising an individual's personal business is a
part of freedom of speech guaranteed by the Constitution. In Lewis J. Valentine
v. F. J. Chrestensen (2). It was held that the constitutional right of free
speech is not infringed by (1) (1959) S.C.R. 12,123-133.
(2) 86 Law. Ed. 1262.
688 prohibiting the distribution in city
streets of handbills bearing on one side a protest against action taken by
public officials and on the other advertising matter. The object of affixing of
the protest to the advertising circularwas the evasion of the prohibition of a
city ordinance forbidding the distribution in the city streets of commercial
and business advertising matter. Mr. Justice Roberts, delivering the opinion of
the court said:" This court has unequivocally held that the streets are
proper places for the exercise of the freedom of communicating information and
disseminating opinion and that, though the states and municipalities may
appropriately regulate the privilege in the public interest, they may not
unduly burden or proscribe its employment in these public thoroughfares. We are
equally clear that the Constitution imposes no such restraint on government as
respects purely commercial advertising...... If the respondent was attempting
to use the streets of New York by distributing commercial advertising, the
prohibition of the Code provisions was lawfully invoked against such
conduct." It cannot be said therefore that every advertisement is a matter
dealing with freedom of speech nor can it be said that it is an expression of
ideas. In every case one has to see what is the nature of the advertisement and
what activity falling under Art. 19(1) it seeks to further. The advertisements
in the instant case relate to commerce or trade and not to propagating of
ideas; and advertising of prohibited drugs or commodities of which the sale is
not in the interest of the general public cannot be speech within the meaning
of freedom of speech and would not fall within Art. 19(1)(a). The main purpose
and true intent and aim, object and scope of the Act is to prevent self-medication
or self-treatment and for that purpose advertisements commending certain drugs
and medicines have been prohibited.
Can it be said that this is an abridgement of
the petitioners' right of free speech. In our opinion it is not. Just as in
Chamarbaughwalla's ease (1) it was said that activities undertaken and (1)
[1957] S.C.R. 930.
689 carried, on with a view to earning
profits e.g. the business of betting and gambling will not be protected as
falling within the guaranteed right of carrying on business or trade, so it
cannot be said that an advertisement commending drugs and substances as
appropriate cure for certain diseases is an exercise of the right of freedom of
speech.
Das, C.J., in State Bombay v. R.M.D.
Chamarbaughwala's (1) case said at, page 920:
"We have no doubt that there are certain
activities which can under no circumstances be regarded as trade or business or
commerce although the usual forms and instruments are employed therein. To
exclude those activities from the meaning of those words is not to cut down
their meaning at all but to say only that they are not within the true meaning
of those words." One has only to substitute for the words "trade or
business or commerce" the phrase "freedom of speech" to see how
it applies to the present case. Freedom of speech goes to the heart of the
natural right of an organised freedom-loving society to "impart and
acquire information about that common interest". If any limitation is
placed which results in the society being deprived of such right then no doubt
it would fall within the guaranteed freedom under Art. 19(1)(a). But if all it
does is that it deprives a trader from commending his wares it would not fall
within that term. In John W.
Rast v. Van Deman & Lewis Company (2),
Mr. Justice McKenna, dealing with advertisements said:"Advertising is
merely identification and description apprising of quality and place. It has no
other object than to draw attention to the article to be sold and the
acquisition of the article to be sold constitutes the only inducement to its
purchase." As we have said above advertisement takes the same attributes
as the object it seeks to promote or bring to the notice of the public to be
used by it. Examples can be multiplied which would show that advertisement
dealing with trade and business has relation (1) [1957] S.C.R. 874.
(2) 60 Law Ed. 679, 690, 88 690 with the item
"business or trade" and not with "freedom of speech". Thus
advertisements sought to be banned do not fall under Art. 19(1)(a).
It was also contended that the prohibition
against advertisements of the petitioners was a direct abridgement of the right
of freedom of speech and Alice Lee Grosjean v. The American Press Co. (1) was
relied upon. That was a case in which a tax was levied based on gross receipts
for the privilege of engaging in the business of public advertisements in
newspapers, magazines etc. having a specified circulation and it was there held
that such a statute abridged the freedom of the press because its effect was
not merely to reduce revenue but it had tendency to curtail circulation. This
subject was discussed in Express Newspapers' case (2) at pages 128 to 133 where
the question was whether the Wage Board Act specifying the wages and conditions
of service of the working journalists and thus imposing certain financial
burden on the press was an interference with the right of freedom of Press and
Bhagwati, J., said at page 135:" Unless these were the direct or
inevitable consequences of the measures enacted in the impugned Act, it would
not be possible to strike down the legislation as having that effect and
operation. A possible eventuality of this type would Dot necessarily be the
consequence which could be in the contemplation of the legislature while
enacting a measure of this type for the benefit of the workmen concerned."
In considering the constitutionality of a statute the Court has regard to
substance and not to mere matters of form and the statute must be decided by
its operation and effect;
J.M. Near v. State of Minnesota(3).
In the present case therefore (1) the
advertisements affected by the Act do not fall within the words freedom of
speech within Art. 19(1)(a); (2) the scope and object of the Act its true
nature and character is not interference with the right of freedom of speech
(1) 80 Law Ed. 660.
(2) [1959] S.C.R. 12, 123-133.
(3) 75 LaEd. 1357, 1363-4.
691 but it deals with trade or business; and
(3) there is no direct abridgement of the right of free speech and a mere
incidental interference with such right would no alter the character of the
law; Ram Singh v. The State of Delhi (1);
Express Newspapers (Private) Ltd. v. The
Union of India(2).
It is not the form or incidental infringement
that determines the constitutionality of a, statute in reference to the rights
guaranteed in Art. 19(1), but the reality and substance. The Act read as a
whole does not merely prohibit advertisements relating to drugs and medicines
connected with diseases expressly mentioned in s. 3 of the Act but they cover
all advertisements which are objectionable or unethical and are used to promote
self-medication or self treatment. This is the content of the Act. Viewed in
this way, it does not select any of the elements or attributes of freedom of
speech falling within Art. 19(1)(a) of the Constitution.
It was next argued that assuming that the
matter was within clauses (f) & (g) of Art. 19(1), the restraint was
disproportionate to the purpose of the Act, the object sought to be achieved
and the evil sought to be remedied.
It was further argued that it could not be
said that the restrictions imposed by the Act were in the interest of the
general public. The basis of this argument was (1) the very wide definition of
the word 'advertisement'in s. 2(a); (2) the use of the word 'suggest' in s. 3;
(3) the uncanalised delegated power to add diseases to the schedule; (4) the
existence of s. 14(c) read with rule 6 of the Rules and (5) the procedural part
in s.8 of the Act; all of which, according to counsel, showed that it was
beyond' all allowable limits of restraint under cl. 6 of Art. 19.
'Advertisement' in the Act, it was argued,
included not only advertisements in newspapers and periodicals and other forms
of publication but also on. cartons, bottles and instructions inside a carton.
Without this latter kind of advertisement, it was submitted, the user would be
unable to know what the medicine was, what it was to be used for and how ? If
the purpose (1) [1951] S.C.R.451, 455.
(2) [1959] S.C.R. 12, 123,133.
692 of the Act is to prevent objectionable
and unethical advertisements in order to discourage self medication and self
treatment it cannot be said that the definition is too wide keeping in view the
object and the purpose of the Act which have been set out above. It is these evils
which the Act seeks to cure and if the definition of the word ' advertisment '
was not so broad and inclusive it would defeat the very purpose for which the
Act was brought into existence.
The argument that the word 'suggest' is
something subjective is, in our 'opinion, also not well-founded. 'Suggest' has
many shades of meaning and in the context it means commendatory publication. It
connotes a direct approach and its use in s. 3 does not support the contention.
that the restraint is disproportionate. In another part of the judgment we
shall discuss the constitutionality of the power of delegation reasonableness
of the range of diseases added in the schedule and it is unnecessary to go over
the same field here.
Then we come to s. 14(c) and r. 6, i.e.,
prohibited advertisement is to be sent confidentially by post to a registered
medical practitioner or to a wholesale and retail chemist or a hospital and
laboratory and the following words have to be inscribed on the outside of every
packet containing the advertisement, i.e., " for the use only of
registered medical practitioners or a hospital or a laboratory ". If the
purpose is to discourage selfmedication and encourage treatment by properly
qualified medical practitioners then such a regulatory provision cannot be
considered an excessive restraint. The mere fact that in the corresponding
English Act certain other persons are also mentioned and that such
advertisements can be published in certain medical journals and scientific
treatises is not a ground for holding the restriction to be disproportionate.
It is not a proper method of judging the reasonableness of the restrictions to
compare every section of the Act with the corresponding English Act and then to
hold it unreasonable merely because the corresponding section of the two Acts
are different. The evil may be the same but the circumstances and 693
conditions in the two countries in regard to journals may be different and
there are bound to be differences in the degree of restrictiveness in the operative
portions of the two Acts. The policy behind the Act is that medication should
be on the advice of qualified medical practitioners.
Merely because the legislature thought that
it would not exclude advertisements in medical journals of the country would
not be indicative of the disproportion of the restraint.
Objection was then taken to the procedural
part in s. 8 and it was submitted that the power seizure and detention was
unfettered and there is no proper procedure laid down Criminal Procedure Code
or the Drugs Act are no rules and safeguards in regard warrants or entry into
premises as there Code of Criminal Procedure or the Drugs Act. In another part
of the judgment we shall deal with this question and it is not necessary to do
so here.
It was next contended that the Act was not in
the interest of the general public as it could not be said that the mention of
the names of diseases or instructions as to the use of particular medicines for
those diseases was not in the interest of the general public. Besides, it would
prevent the medicines being brought to the notice of the practising medical
practitioners or distributing agencies.
It would also prevent a properly worded
advertisement suggesting cure of diseases to people who for the sake of prestige
and other understandably valid reasons do not like to confide to any person the
nature of their diseases and that it would prevent medical relief in a country
where such relief is notoriously inadequate. We have already set out the
purpose and scope of the Act, the conditions in which it was passed and the
evils it seeks to cure. If the object is to prevent self-medication or
self--treatment, as it appears to be then these are exactly the evils which
such advertisements would sub serve if a piece of legislation like the Act did
not exist. It has not been shown that the restrictions laid down in the Act are
in any manner disproportionate to the object sought to be attained by the Act
nor has it been of 694 shown that the restrictions are outside the permissible
limits.
Mr. Chatterjee in dealing with this point
drew our attention to the test of reasonable nses as laid down in Chintaman Rao
v. The State of Madhya Pradesh (1) where it was said by Mahajan, J. (as he then
was) at pages 762 and 763:" The question for decision is whether the
statute under the guise of protecting public interests arbitrarily interferes
with private business and imposes unreasonable and unnecessarily restrictive
regulations upon lawful occupation; in other words' whether the total
prohibition of carrying on the business of manufacture of bidis within the
agricultural season amounts to a reasonable restriction on the fundamental
rights mentioned in article 19(1)(g) of the Constitution. " It has not
been shown in the present case that under the guise of protecting public
interest the Act arbitrarily interferes with private business or imposes
unreasonable restrictions. If the true intention of the Act is, as indeed it
is, to stop objectionable and unethical advertisements for the purpose of
discouraging selfmedication no question of unreasonable restrictions arises.
Mr. Chatterjee also relied upon the
observation of Bose, J., in Dwarka Das Srinivas of Bombay v. The Sholapur
Spinning & Weaving Company Limited (2) where the learned Judge said that
" the provisions in the Constitution touching fundamental rights must be
construed broadly and liberally in favour of those on whom the rights have been
conferred ".
With this statement we are in accord. The
interpretation should be such as to subserve the protection of the fundamental
rights of the citizen but that is subject to limitations set out in Art. 19
itself which are for the general welfare of all ,citizens taken as a whole and
are therefore for the interest of the general public. Mr. Chatterjee further
contended that the restraint was excessive because the prohibition of a mere
mention of the name of a disease and the suggestion of a cure for that could
(1) [1950] S.C.R. 739.
(2) [1954] S.C. R. 674, 733.
695 not be a reasonable restriction. As
submitted by the learned Solicitor-General the objection is not to the names
but to the advertisements commending certain medicines as a cure for the same
and this is what the Act is endeavouring to eliminate. In our opinion it cannot
be said that the restrictions either excessiveor disproportionate or are not in
the interest of the general public.
The third point raised by Mr. Munshi was that
thewords 'or any other disease or condition which maybe specified in the rules
made under this Act' in cl.(d) of s. 3 of the Act are delegated legislation and
do not lay down any certain criteria or proper standards,and surrender unguided
and uncanalised power to theexecutive to add to diseases in the schedule.
Thelearned Solicitor-General in reply supported theschedule as a case of
conditional legislation and not the exercise of delegated legislative power and
he further contended that even if it was held to be thelatter it was within the
limits recognised by judicial decisions. The distinction between conditional
legislation and delegated legislation is this that in the former the delegate's
power is that of determining when a legislative declared rule of conduct
shallbecome effective; Hampton & Co. v. U.S. (1) and thelatter involves
delegation of rule making power which constitutionally may be exercised by the
administrative agent. This means that the legislature having laid down the
broad principles of its policy in the legislation can then leave the details to
be supplied by the administrative authority. In other words by delegated
legislation the delegate completes the legislation by supplying details within
the limits prescribed by the statute and in the case of conditionallegislation
the power of legislation is exercised by the legislature conditionally leaving
to the discretion of an external authority the time and manner -of carrying its
legislation into effect as also the determination of the area to which it is to
extend; (The Queen v. Burah (2 ); Russell v. The Queen (3); King-Emperor v. (1)
276 U.S. 394. (2) (1878) 3 App. Cas. 889. (1882) 7 App. Cas. 829, 835.
696 Benoarilal Sarma (1); Sardar Indar Singh
v. State of Rajasthan (2). ) Thus when the delegate is given the power of
making rules and regulations in order to fill in the details to carry out and
subserve the purposes of the legislation the manner in which the requirements
of the statute are to be met and the rights therein created to be enjoyed it is
an exercise of delegated legislation. But when the legislation is complete in
itself and the legislature has itself made the law and the only function left
to the delegate is to apply the law to an area or to determine the time and
manner of carrying it into effect, it is conditional legislation. To put it in
the language of another American case:
" To assert that a law is less than a
law because it is made to depend upon a future event or act is to rob the
legislature of the power to act wisely for the public welfare whenever a law is
passed relating to a state of affairs not yet developed, or to things future
and impossible to fully know. " The proper distinction there pointed out
was this:
" The legislature cannot delegate its
power to make a law, but it can make a law to delegate a power to determine
some fact or state of things upon which the law makes or intends to make its
own action depend. There are many things upon which wise and useful legislation
must depend which cannot be known to the law making power, and must therefore
be subject of enquiry and determination outside the hall of legislatures (In
Lockes Appeal 72 Pa. 491 ; Field v. Clark 143 U. S. 649.) But the discretion
should not be so wide that it is impossible to discern its limits. There must
instead be definite boundaries within which the powers of the administrative authority
are exercisable. Delegation should be not be so indefinite as to amount to an
abdication of the legislative function-Schwartz American Administrative Law,
page 21.
In an Australian case relied upon by the
learned Solicitor General the prohibition by proclamation of (1) (1944) L.R. 72
I.A. 57, (2) [1957] S.C.R. 604, 697 goods under s. 52 of the Customs Act 1901
was held to be conditional legislation: Baxter v. Ah Way (1) According to that
case the legislature has to project its mind into the future and provide as far
as possible for all contingencies likely to arise in the application of the
law, but as it is not possible to provide for all contingencies specifically
for all cases,, the legislature resorts to conditional legislation leaving it
to some specified authority to determine in what circumstances the law should
become operative or to what its operation should be extended, or the particular
class of persons or goods -to which it should be applied: Baxter's case (1) at
pp. 637 & 638.
Broadly speaking these are the distinguishing
features of the two forms of delegation and these are their characteristics.
The question is in which compartment does the power given in the Act fall.
The power given to the authority under that
provision (S. 3) of the Act is contained in cl. (d) in the following words:S.3
" Subject to the provisions of this Act, no person shall take any part in
the publication of any advertisement referring to any drug in terms which
suggest or are calculated to lead to the use of that drug for
..........................................
.........................................................
.........................................................
(d) the diagnosis, cure, mitigation,
treatment or prevention of any venereal disease or any other disease or
condition which may be specified in rules made under this Act." And power
to make rules is laid down in s. 16 which is as follows. 16 (1) "The
Central Government may by notification in the official gazette make rules for
carrying out the purposes of this Act.
(2) In particular and without prejudice to
the generality of the foregoing power, such rules may (a) specify any disease
or condition to which the provisions of s. 3 shall apply;
(1) 3 Com. L. R. 626, 634, 637, 638.
698 (b) prescribe the manner in which
advertisement of articles or things referred to in cl. (c) of sub-s. (1) of s.
14 may be sent confidentially." For the petitioner it was argued that s.
3(d) is delegated legislation and not conditional legislation as the power
delegated therein is only to specify conditions and diseases in the rules.
The interdiction under the Act is applicable
to conditions and diseases set out in the various clauses of s. 3 and to those
that may under the last part of clause (d) be specified in the rules made under
s. 16. The first 'subsection of is. 16 authorises the making of rules to carry
out the purposes of the Act and cl. (a) of sub-section (2) of that section
specifically authorises the specification of diseases or conditions to which
the provisions of s. 3 shall apply. It is the first sub-section of s. 16 which
confers the general \rule making power, i.e., it delegates to the
administrative authority the power to frame rules and regulations to sub serve
the object and purpose of the Act.
Clause (a) of the second sub-section is
merely illustrative of the power given under the first sub-section; King
Emperor v. Sibnath Banerji (1). Therefore, sub-s. 2(a) also has the same object
as sub-s. (1), i.e, to carry out the purposes of the Act. Consequently, when
the rule making authority specifies conditions and diseases in the schedule it
exercises the same delegated authority as it does when it exercises powers
under sub-s. (1) and makes other rules and therefore it is delegated legislation.
The question for decision then is, is the delegation constitutional in that the
administrative authority has been supplied with proper guidance. In our view
the words impugned are vague.
Parliament has established no criteria, no
standards and has not prescribed any principle on which a particular disease or
condition is to be specified in the Schedule. It is not stated what facts or
circumstances are to be taken into consideration to include a particularcondition
or disease.
The power of specifying diseases and
conditions as given in s. 3(d) must therefore be held to be going beyond
permissible boundaries (1) (1945) L.R. 72 I.A. 241.
699 of valid delegation. As a consequence the
Schedule in the rules must be struck down. But that would not affect such
conditions and diseases which properly fall within the four clauses of s. 3
excluding the portion of cl. (d) which has been declared to be
unconstitutional. In the view we have taken it is unnecessary to consider the
applicability of Baxter v. Ah Way (1).
We are of the opinion therefore that the
words " or any other disease or condition which may be specified in the
rules made under this Act " confer uncanalised and uncontrolled power tothe
Executive and are therefore ultra vires. But their being taken out' of cl. (d)
of s. 3 does not affect the constitutionality of the rest of the clause or
section as they are severable; R. M. D. Chamarbaughwala v. The Union of India
(2).
The constitutionality of s. 8 of the Act was
challenged on the ground that it violated the petitioners' right under Arts. 21
and 31. That section when quoted runs as follows:
" Any person authorised by the State
Government in this behalf may, at any time, seize............and detain any
document, article or thing which such person has reason to believe' contains
any advertisement which contravenes any of the provisions of this Act and the
court trying such contravention may direct that such document (including all
copies thereof) article or thing shall be forfeited to the Government". It
was pointed out by Mr. Munshi that there was nolimitation placed on, no rules
and regulations made for and no safeguards provided in regard to the powers of
a person authorised in that behalf by Government to seize and detain any
document, article or anything which in the opinion of such person contains any
advertisement contravening any of the provisions of the Act. It was also
submitted that in the corresponding English Act of 1939, in s. 10 there are
proper safeguards provided in regard to the exercise of the power of seizure
etc. The first part of s. 8 of the Act dealing with seizure and detention
received slender support from the Solicitor-General. It may (1) 8 Com. L.R.
626, 634, 637, 638, (2)[1957] S.C.R. 930.
700 be, he contended, that having regard to
the purpose and object of the Act the Indian legislature did not think it
necessary to provide any safeguards and that the legislature thought that
nobody would be prejudiced by reason of the want of safeguard previous to the
seizure, In our opinion this portion of the section goes far beyond the purpose
for which the Act was enacted and, the absence of the safeguards which the
legislature has thought it necessary and expedient in other statutes, e.g., the
Indian Drugs Act, is an unreasonable restriction on the fundamental rights of
the petitioners and therefore the first portion of the section, i.e., "
any person authorised by any of the provisions of this Act" is
unconstitutional. What then is the consequence of this unconstitutionality ? If
this portion is excised from the rest of the section the remaining portion is
not even intelligible and cannot be upheld. The whole of the section 'must
therefore be struck down.
By a portion of cl. (d) of s. 3 and the whole
of B. 8 being declared unconstitutional the Act is not thereby affected as they
are severable from the rest of the Act. As a consequence of excision of that
portion and of s. 8 from the Act the operation of the remaining portion of the
Act remains unimpaired. R. M. D. Chamarbaughwala v. The Union of India(1). As a
result of s. 8 being declared invalid, all the goods seized from the
petitioners having been seized without the authority of law must be returned to
the respective petitioners. It will be for the Government to take such action
in regard to the proceedings taken or prosecutions commenced as is in
accordance with the law laid down in this Judgment.
We declare the portion of cl. (d) of s. 3
indicated above and s. 8 unconstitutional and direct therefore that a writ of
mandamus shall issue directing the respondents to return the goods seized. As
the petitioners' challenge to the constitutionality of the Act is partially
successful the proper order as to costs is that the parties do pay their own
costs.
Petitions partly allowed.
(1) [1957] S.C.R. 930.
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