Khoday Distilleries Ltd. Vs. State of Karnataka [1994] INSC 527 (19 October 1994)
Sawant, P.B. Sawant, P.B. Venkatachalliah, M.N.(Cj) Verma, Jagdish Saran (J) Ramaswamy, K. Jeevan Reddy, B.P. (J)
CITATION: 1995 SCC (1) 574 JT 1994 (6) 588 1994 SCALE (4)528
ACT:
HEAD NOTE:
The Judgment of the Court was delivered by P.B. SAWANT, J.- This is a bunch of appeals, special leave petitions and writ petitions. The first group consists of CA Nos. 4708-12 of 1989, 4718-27 of 1989, WP (C) Nos. 666, 667, 693, 694, 774, and 910 of 1990 wherein constitutional validity of the
(i) Karnataka Excise (Distillery and Warehouse) (Amendment) Rules, 1989,
(ii) Karnataka Excise (Manufacture of Wine from Grapes) (Amendment) Rules, 1989,
(iii) Karnataka Excise (Brewery) (Amendment) Rules, 1989,
(iv) Karnataka Excise (Sale of Indian and Foreign Liquors) (Amendment) Rules, 1989 and
(v) Karnataka Excise (Bottling of Liquor) (Amendment) Rules, 1989 was unsuccessfully challenged by various parties before the Karnataka High Court, inter alia on the ground that the Rules in question affected adversely the fundamental right of the parties to carry on trade or business in liquor and that the said Rules were violative of Articles 14, 19(1)(g), 47, 300-A, 301, and 304 of the Constitution of India. A Bench of three learned Judges of this Court which heard this group of matters has referred them to the Constitution Bench.
2.The second group consists of CA Nos. 6043-50, 6051 and 6052 of 1993. These appeals arise out of the decision of the Kerala High Court upholding the validity of the government order dated 9-12-1992 passed by the Government of Kerala deciding to cancel all foreign liquor licences issued under Rule 13(3) of the Kerala Foreign Liquor Rules, 1974 to Hotels, Restaurants and Tourist Homes. A Bench of two learned Judges has referred the said matters also to the Constitution Bench for decision on the question whether appellants have a fundamental right to carry on trade in liquor.
580 3.The third group consists of SLP (C) Nos. 13817-28, 16208, 16601-02, 17935, 17953 of 1993, 185, 2479, 2962-63, 5898 of 1994 and WP (C) Nos. 587, 591, 592, 608, 612 and 625 of 1993. These matters arise out of various decisions of the Andhra Pradesh High Court upholding the validity of the amendments to the Andhra Pradesh Foreign Liquor and Indian Liquor Rules, 1970 from time to time and A.P (Regulation of Wholesale Trade, Distribution and Retail Trade in Indian Liquor and Foreign Liquor, Wine and Beer) Act, 1993 (hereinafter referred to as the "A.P. 1993 Act"). The High Court has held that the Rules and the amendments thereto as well as the Act are not invalid on the ground that they violate the right to carry on trade in liquor which is not fundamental.
4.It appears that some of the parties affected by the decision of the Andhra Pradesh High Court upholding the validity of the enactments and rejecting the argument that the petitioners have a fundamental right to carry on trade in liquor, filed writ petitions in the High Court for a declaration that though the validity of the enactments had been upheld by the High Court the A.P. 1993 Act deals only with the taking over of trade but not business in liquor and, therefore, the State had no right to prevent the writ petitioners from carrying on with the business of liquor during the validity of their licences. The argument was that 'trade' is different from 'business'. The High Court dismissed the petitions. SLP (C) Nos. 9422-24 of 1994 filed against the said decision, forming the fourth group, has also been referred to the Constitution Bench to be decided along with the matters in the above three groups.
5.Thus in matters in the first three groups, this Bench has to answer one question, viz., whether the appellants/petitioners have a fundamental right to carry on trade in liquor. The question involved in matters in the fourth group is different, viz., since the A.P. 1993 Act referred to above, deals only with the taking over of trade in liquor but not business, whether the State can prevent the petitioners from carrying on with the business of liquor as apart from trade, during the unexpired period of the licences.
6.We will first deal with the matters in groups 1, 2 and 3 and, therefore, with the question whether the appellants/petitioners have a fundamental right to carry on business in liquor.
7.Before we proceed to examine the question, it is necessary at the outset to focus our attention on the precise controversy raised before us and which,it is claimed, arises out of the conflicting decisions of this Court. For the purposes of contentions advanced before us, liquor covers not only those alcoholic liquids which are generally used as beverages and produce intoxication but also all liquids containing alcohol. Liquor is classified broadly into three classes, viz., (i) potable liquor which is used as beverage, (ii) liquor used in medicinal and toilet preparations and (iii) industrial liquor used for industrial purpose. Two rival contentions of law are canvassed before us. One, that there is no fundamental right to trade or business in liquor and that the State has power to regulate the trade or business by 581 placing restrictions on such trade or business in the interests of the general public even to the extent of prohibiting completely such business or trade. The incidental consequence which flows from this contention is that the State has the exclusive privilege to sell liquor and this privilege can be sold under the relevant law. The State can, therefore, have also a monopoly in manufacturing, possessing and distributing liquor. The other contention is that a citizen has a fundamental right to trade or business in liquor and the State can only place reasonable restrictions on the said right in the interests of general public by law made for the purpose under Article 19(6) of the Constitution. The State cannot, therefore, prohibit completely the said trade or business in liquor in the garb of regulating it, and the limitations or restrictions placed have to pass the test of reasonableness as in the case of trade or business in any other article. It is in the light of these rival contentions that we have to examine the question raised before us.
8. Two incidental questions which, therefore, arise are (i) whether a monopoly for the manufacture, trade or business in liquor can be created in favour of the State and (ii) whether reasonable restrictions under Article 19(6) of the Constitution can be placed only by Act of Legislature or by a subordinate legislation as well.
9. It is contended that the State cannot carry on trade in liquor under Article 47 of the Constitution. If the law on the subject is considered to be law under Article 19(6), it has to be on the basis that a citizen had got a fundamental right to trade in liquor. If the law is that a citizen has no fundamental right, then Article 19(6) cannot be applied because the said article applies only to those rights which a citizen possesses. What a citizen cannot do under Article 19(1), the State cannot do under Article 19(6). Secondly, it is submitted that assuming that the State has got the power to carry on trade in liquor dehors Article 19(6) and under Article 298 of the Constitution, the power under Article 298 cannot extend to trade in liquor. This is so because the Union Government has no executive power to trade in a commodity which under Article 47 it is enjoined to prohibit.
10. In support of the contention that the appellants/petitioners have a fundamental right to trade in liquor, it is argued firstly, that Entry 51 of List 11 specifically accepts the fact that the manufacture of alcohol can be for human consumption. The said entry, among others, provides as follows: "Duty of Excise on intoxicating liquor for human consumption." Entry 8 of List II specifically provides for production, manufacture, purchase and sale of intoxicating liquor. The implication of this entry is that till prohibition is introduced by applying Article 47, there is no prohibition on consumption of liquor, and hence there is no prohibition for manufacture and sale of liquor. Secondly, it is submitted that there are other substances like tobacco which are more harmful to health than alcohol and they are being sold freely. A majority of the States did not introduce prohibition and some States which purported to do it, failed and reverted to the earlier pre-prohibition condition. On the other hand, the revenue from the auction of excise, vend fees, liquor and other levies forms a major source of the revenue of the State. Hence the 582 trade in liquor cannot be looked upon as an obnoxious trade.
Thirdly, the Union Government itself has recognised under its Industrial Policy Resolution as early as in 1956 that the production of potable alcohol as an industry has to be recognised though regulated and the licences have to be freely granted for the manufacture of potable liquor.
During the last several years, a large number of distillery, brewery and winery licences have been granted all over the country. For all these reasons, it is submitted that there is no warrant for excluding liquor from the ambit of the words "any occupation, trade or business" under Article 19(1)(g) of the Constitution.
11.We will first refer to the relevant provisions of the Constitution which have a bearing on the subject.
12.Article 19(1)(g) provides that all citizens shall have the right to practise any profession or to carry on any occupation, trade or business. This right conferred by the aforesaid provision is circumscribed by the provisions of clause (6) of the very article which reads as follows:
"(6). Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law insofar as it relates to, or prevent the State from making any law relating to,- (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii)the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise." Thus Article 19(1)(g) read with Article 19(6) spells out a fundamental right of the citizens to practise any profession or to carry on any occupation, trade or business so long as it is not prohibited or is within the framework of the regulation, if any, if such prohibition or regulation has been imposed by the State by enacting a law in the interests of the general public. It cannot be disputed that certain professions, occupations, trades or businesses which are not in the interests of the general public may be completely prohibited while others may be permitted with reasonable restrictions on them. For the same purpose, viz., to subserve the interests of general public, the reasonable restrictions on the carrying on of any profession, occupation, trade, etc., may provide that such trade, business etc., may be carried on exclusively by the State or by a Corporation owned or controlled by it. The right conferred upon the citizens under Article 19(1)(g) is thus subject to the complete or partial prohibition or to regulation, by the State. However, under the provisions of Article 19(6) the prohibition, partial or complete, or the regulation, has to be in the interests of the general public.
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13.Article 47 which is one of the Directive Principles of the State Policy reads as follows:
"47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health." This article enjoins upon and in turn enables the State to take measures to raise the level of nutrition and the standard of living of its people and to improve the public health. Towards this end, the State is required to bring about prohibition of the consumption of intoxicating drinks and drugs which are injurious to health. The prohibition may be complete or partial and it would also include regulation. It cannot be disputed that liquor is one such drink.
14. Article 298 of the Constitution provides as follows:
"298. Power to carry on trade, etc.- The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose:
Provided that- (a) the said executive power of the Union shall, insofar as such trade or business or such purpose is not one with respect to which Parliament may make laws, be subject in each State to legislation by the State; and (b) the said executive power of each State shall, insofar as such trade or business or such purpose is not one with respect to which the State Legislature may make laws, be subject to legislation by Parliament." Thus both the Union and the State Governments have within their respective spheres, power to carry on trade or business.
15.Article 300-A provides that no person shall be deprived of his property save by authority of law. It is undisputed that if a citizen is carrying on the business according to the provisions of law, his business cannot be taken away save by authority of law, if such a law is enacted to further the purpose whether of Article 19(6) or Article 47.
16. Article 301 reads as:
"301. Freedom of trade, commerce and intercourse.-Subject to the other provisions of this part, trade, commerce and intercourse throughout the territory of India shall be free." The right given by this article to freely carry on trade, commerce and intercourse throughout the territory of India is undisputedly subject to the same restrictions as is the right under Article 19(1)(g).
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17.Apart from the restrictions placed on the right under Article 301, by the provisions of Articles 19(6), 47, 302 and 303, the provisions of Article 304 also place such restrictions on the said right. So do the provisions of Article 305, so far as they protect existing laws and laws creating State monopolies. The provisions of the aforesaid articles, so far as they are relevant for our purpose, read together, therefore, make the position clear that the right conferred by Article 19(1)(g) is not absolute. It is subject to restrictions imposed by the other provisions of the Constitution. Those provisions are contained in Articles 19(6), 47, 302, 303, 304 and 305.
18.We may now refer to the relevant entries of List 11 of the Seventh Schedule to the Constitution which give power to the State Governments to make the laws in question. Entry 8 reads as follows:
"8. Intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors." Entry 51 reads as follows:
"51. Duties of excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India:
(a) alcoholic liquors for human consumption;
(b) opium, Indian hemp and other narcotic drugs and narcotics;
but not including medicinal and toilet preparations containing alcohol or any substance included in sub- paragraph (b) of this entry." Thus a State has legislative competence to make laws in respect of the above subjects.
19. The relevant entry in List I which has a bearing on the subject is Entry 52 which reads as follows:
"52. Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest." Under this entry, Parliament has enacted the Industries (Development and Regulation) Act, 1951 (for short 'IDR Act') and Item 26 of Schedule I of that Act reads as "Fermentation Industries (1) Alcohol, (2) Other products of Fermentation and Distillery". Read with Section 2 of the IDR Act, the said entry would mean that the alcohol industry dealing in potable or nonpotable alcohol is a controlled industry within the meaning of the said Act. We are not in this reference concerned with the question as to whether there is any conflict between the relevant Acts of the respective State Legislatures and the Rules, Regulations, Notifications and Orders issued under the said Acts and the provisions of the IDR Act. It cannot further be denied that the pith and substance of the IDR Act is to provide the Central Government with the means of implementing their industrial policy which was announced in their resolution of 6-4-1948 and approved by the Central Legislature. That brings under Central control the development and regulation of a number of important industries, the activities of which affect the country as a whole and the development of which must be governed by economic factors of all-India 585 import. The development of the industries on sound and balanced lines is sought to be secured by the licensing of all new undertakings. Hence the IDR Act confers on the Central Government power to make rules for the registration of existing undertakings and for regulating the production and development of the industries mentioned in the Schedule and also for consultation with the Provincial (now State) Governments in these matters. The Act does not in any way denude the power of the State Governments to make laws regulating and prohibiting the production, manufacture, possession, transport, purchase and sale of intoxicating liquors meant for human consumption (but not for medicinal or toilet preparations) and levying excise on them under Entries 8 and 51 of List 11. If there is any incidental encroachment by the relevant State Acts on the area occupied by the IDR Act, that will not invalidate the State Acts.
The impugned judgments of the High Courts also mention that the State Acts have received the assent of the President.
Be that as it may.
20.We may now refer to the relevant authorities cited at the Bar. In State of Bombay v. EN. Balsara1 which is a decision of the Constitution Bench of five learned Judges, what fell for consideration was the validity of the Bombay Prohibition Act, 1949. In that case, this Court held that in view of the provisions of Article 47 of the Constitution, the total prohibition on potable liquor would be reasonable.
It does not appear that any contentions were raised there on the basis of Article 19(1)(g) and hence there is no discussion with reference to the said provision.
21.In TB. Ibrahim v. Regional Transport Authority2 what fell for consideration was the validity of the amendment in 1950 to Rule 268 of the Madras Motor Vehicles Rules, 1940 to empower the Transport Authority to alter from time to time the starting place and termini for motor vehicles. The appellant was the owner of a bus-stand in the municipal limits which was being used for several years as a starting place and terminus for buses plying to and from the said limits. The Transport Authority passed a resolution changing the starting place and terminus for convenience of the public. The appellant challenged the said resolution and consequently the amendment to Rule 268, among others, as repugnant to Article 19(1)(g) of the Constitution. A Constitution Bench of five learned Judges dealing with this contention held that the restrictions placed upon the use of the bus-stand for the purpose of picking up or setting down passengers cannot be considered to be unreasonable. It may be that the appellant by reason of the shifting of the bus- stand has been deprived of the income he used to enjoy when the bus stand was used for outward journeys. There is no fundamental right in a citizen to carry on business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interests of the public convenience. The restriction imposed has the effect of terminating the use to which the stand has been put hitherto. The 1 1951 SCR 682 : AIR 1951 SC 318 : 52 Cri LJ 1361 2 1953 SCR 290: AIR 1953 SC 79 586 restriction cannot be regarded as being unreasonable if the authority imposing such restriction has the power to do so.
Whether the abolition of the stand was conducive to public convenience or not is a matter entirely for the Transport Authority to judge and it is not up to the Court to substitute its opinion with that of the authority which is in the best position having regard to its knowledge of local conditions, to appraise the situation.
22.In Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner3, where the vires of Excise Regulation I of 1915 was under challenge on the ground of violation of Article 19(1)(g), the Constitution Bench of five learned Judges, among other things, held that:
(a)In order to determine the reasonableness of restrictions, envisaged by Article 19(6), regard must be had to the nature of the business and the conditions prevailing in that trade.
These factors would differ from trade to trade and no hard and fast rule concerning all trades can be laid down. It cannot also be denied that the State has the power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public. Laws prohibiting trades in noxious or dangerous goods or trafficking in women cannot be held to be illegal as enacting a prohibition and not a mere regulation. The nature of the business is, therefore, an important element in deciding the reasonableness of the restrictions. The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, order and morals of the community.
Some occupations by the noise made in their pursuit, some by the odours they engender, and some by the dangers accompanying them require regulation as to the locality in which they may be conducted. Some, by the dangerous character of the articles used, manufactured or sold, require also special qualification in the parties permitted to use them, manufacture or sell them. The Court in this connection referred to the observations of Field, J. in P. Crowley v. Henry Christensen4 a part of which is as follows:
"The sale of such liquors in this way has, therefore been, at all times, by the courts of every State, considered as the proper subject of legislative regulation. ... Their sale in that form may be absolutely prohibited. It is a question of public expediency and public morality and not of federal law. The police power of the State is fully competent to regulate the business to mitigate its evils or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. ... It is a matter of legislative will only." 3 1954 SCR 873 : AIR 1954 SC 220 4 34 L Ed 620: 137 US 86 (1890) 587 (b)The elimination and exclusion from business is inherent in the nature of liquor business and it will hardly be proper to apply to such a business principles applicable to trade which all could carry on. The provisions of the law cannot be attacked merely on the ground that they create a monopoly. Properly speaking, there can be a monopoly only when a trade which could be carried on by all persons is entrusted by law to one or more persons to the exclusion of the general public. Such, however, is not the case with the business of liquor. The Court for this purpose relied upon the following observations of Lord Porter in Commonwealth of Australia v. Bank of New South Wales5:
"Yet about this, as about every other proposition in this field, a reservation must be made, for their Lordships do not intend to lay it down that in no circumstances could the exclusion of competition so as to create a monopoly either in a State or Commonwealth agency, or in some other body, be justified. Every case must be judged on its own facts and its own setting of time." (c)When the contract is thrown open to public auction, it cannot be said that there is exclusion of competition and thereby monopoly is created.
23.In State of Assam v. A.N. Kidwai, Commissioner of Hills Division and Appeals6 which is also a decision of the Constitution Bench of five learned Judges, the validity of the notification by which the Commissioner of Hills Division and Appeals was appointed the Appellate Authority under Assam Revenue Tribunal (Transfer of Powers) Act, 1948, was under challenge. The rival claimants had applied for grant of licences and setting up of country spirit shops and the parties who were dissatisfied with the orders of the Deputy Commissioner and those of the Excise Commissioner in appeals therefrom, appealed to the Appellate Authority whose orders were quashed by the High Court on the ground that the notification concerned was void. While dealing with the contentions raised therein, the Court held that a perusal of the Act and the Rules made it clear that no person had any absolute right to sell liquor, and the purpose of the Act and the Rules was to control and restrict the consumption of intoxicating liquors, such control and restriction being obviously necessary for the preservation of public health and morals, and to raise revenue.
24.In State of Bombay v. R.M.D. Chamarbaugwala7 which is also a decision of a Constitution Bench of five learned Judges, the challenge was to the Bombay Lotteries and Prize Competition Control and Tax Act, 1948 as amended by the Bombay Lotteries and Prize Competition Control and Tax (Amendment) Act, 1952. After referring to the observations made in the American decision in Phalen v. Virginia8, the Court held as follows: (SCR p. 925) 5 1950 AC 235 :(1949) 2 All ER 755 6 1957 SCR 295 : AIR 1957 SC 414 7 1957 SCR 874: AIR 1957 SC 699 8 12 L Ed 1030: 49 US 163 (1850) 588 "It will be abundantly clear from the foregoing observations that the activities which have been condemned in this country from ancient times appear to have been equally discouraged and looked upon with disfavour in England, Scotland, the United States of America and in Australia in the cases referred to above. We find it difficult to accept the contention that those activities which encourage a spirit of reckless propensity for making easy gain by lot or chance, which lead to the loss of the hard earned money of the undiscerning and improvident common man and thereby lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home could possibly have been intended by our Constitution makers to be raised to the status of trade, commerce or intercourse and to be made the subject-matter of a fundamental right guaranteed by Article 19(1)(g). We find it difficult to persuade ourselves that gambling was ever intended to form any part of this ancient country's trade, commerce or intercourse to be declared as free under Article 301. It is not our purpose nor is it necessary for us in deciding this case to attempt an exhaustive definition of the word 'trade', 'business', or 'intercourse'.
We are, however, clearly of opinion that whatever else may or may not be regarded as falling within the meaning of these words, gambling cannot certainly be taken as one of them. We are convinced and satisfied that the real purpose of Articles 19(1)(g) and 301 could not possibly have been to guarantee or declare the freedom of gambling. Gambling activities from their very nature and in essence are extra commercium although the external forms, formalities and instruments of trade may be employed and they are not protected either by Article 19(1)(g) or Article 301 of our Constitution." The Court further held, relying on the observations in United States v. Kahriger9, Lewis v. United States of America10 and Mann v. Nash11 that the fact of issuing a licence or imposing a tax means nothing except that the licensee shall be subject to no penalties under the law if he pays it. The Government may tax what it also forbids and that nobody has a constitutional right to gamble but that if he elects to do so, though it be unlawful, he must pay tax.
The revenue authorities are merely taxing the individual with reference to certain facts. They are not partners or sharers in the illegality. The crime is not a business and the fact that regulatory provisions have been enacted to control gambling by issuing licences and by imposing taxes does not in any way alter the nature of gambling which is inherently vicious and pernicious. The Court further held that the same result can be arrived at by applying the doctrine of pith and substance. When Article 19(1)(g) guarantees or Article 301 declares the freedom of trade, they describe human activities in a specific aspect. They single out attributes 9 97 L Ed 754: 345 US 22 (1952) 10 99 L Ed 475 : 348 US 419 (1954) 11 (1932) 1 KB 752: 1932 All ER Rep 956: 101 LJKB 270 589 which the act or transaction may wear and make the freedom, which they confer, depend upon those attributes. The freedom secured by the two articles implies that no unreasonable restraint or burden shall be placed upon the act falling under that description because it is trade or commerce or intercourse. The Court, then held that the Act impugned there did not purport directly to interfere with trade, commerce or intercourse as such, for the criterion of its application was the specific gambling nature of the transaction which it restricted. The purpose of the Act was not to restrict anything which brought the transactions under the description of trade, commerce or intercourse.
The Act was in pith and substance, an Act with respect to betting and gambling and to control and restrict betting and gambling was not to interfere with trade, commerce or intercourse as such but to keep their flow free and unpolluted and to save them from antisocial activities.
Hence the validity of that Act had not to be decided by the yardstick of reasonableness and public interest laid down in Articles 19(6) and 304. The appeal against the stringency and harshness, if any, of the law does not lie to court of law. In that view of the matter, the Court felt that it was not necessary to consider or express any opinion with regard to the vexed question whether restriction contemplated under Articles 19(6) and 304(b) may extend to total prohibition.
This was so because, the Court felt that it could not persuade itself to hold that Article 19(1)(g) or Article 301 comprises all activities undertaken with a view to profit as 'trade' within the meaning of those articles. In this view of the matter, the Court held that the prize competition which the respondents there were carrying on being of a gambling nature, could not be regarded as trade or commerce and as such, the respondents could not claim any fundamental right under Article 19(1)(g) in respect of such competitions nor were they entitled to the protection of Article 301.
25.In Nagendra Nath Bora v. Commissioner of Hills Division & Appealsl2 the appeals arose out of the orders passed by the revenue authorities under the provisions of Eastern Bengal and Assam Excise Act, 1910. The dispute was between the rival claimants who had tendered for the settlement of country spirit shops. While dealing with the matters in question, the Constitution Bench of five learned Judges observed by referring to the State of Assam v. A.N. Kidwai6 and the observations made therein that no one had an inherent right to settlement of liquor shops. When the State by public notice invites candidates for settlement to make their tenders and in pursuance of such a notice, a number of persons make such tenders, each one makes a claim for himself in opposition to the claims of the others, and the public authorities concerned have to choose from amongst them. The question whether an administrative authority on such occasions functions merely in an administrative or quasi-judicial capacity must be determined on an examination of the statute and its rules. The Court held 12 1958 SCR 1240: AIR 1958 SC 398 590 that the authorities cannot be said to pass purely administrative orders which were beyond the ambit of High Court's power of supervision and control.
26.In Narendra Kumar v. Union of India13 which is a decision of the Constitution Bench of five learned Judges, the question whether restriction on fundamental rights includes their prohibition, fell for consideration squarely.
On different dates prior to 3-4-1958, the petitioners in that case had entered into contracts of purchase of copper with importers at Bombay and Calcutta, but before they could take delivery from the importers, the Government of India in exercise of its powers under Section 3 of the Essential Commodities Act, 1955, issued on 2-4-1958 Non-ferrous Metal Control Order, 1958. Clause (3) of the Order provided that no person shall sell or purchase any non-ferrous metal at a price which exceeded the amount represented by an addition of 3.5 per cent to its landed cost, while clause (4) prohibited any person from acquiring any non-ferrous metal except under and in accordance with the permit issued in that behalf by the Controller in accordance with such principles as the Central Government may from time to time specify. No such principles were, however, published in the Gazette nor laid before the Houses of Parliament. The Court held that the word 'restriction' in Article 19(5) and (6) of the Constitution includes cases of prohibition also. Where the restriction reaches the stage of total restraint of rights, special care has to be taken by the courts to see that the test of reasonableness is satisfied by considering the question in the background of the facts and circumstances under which the Order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, the beneficial effect reasonably expected to result to the general public, and whether the restraint caused by the law was more than what was necessary in the interests of the general public.
The Court, in this connection referred to Chintaman Rao v. State of M. p 14, cooverjee case3 and Madya Bharat3 Cotton Assn. Ltd. v. Union of India15. The prohibition, according to the Court, has to be treated as only a kind of restriction. The Court then observed as follows: (SCR pp. 386-87) "After Article 19(1) has conferred on the citizen the several rights set out in its seven sub-clauses, action is at once taken by the Constitution in clauses 2 to 6 to keep the way of social control free from unreasonable impediment. The raison d'etre of a State being the welfare of the members of the State by suitable legislation and appropriate administration, the whole purpose of the creation of the State would be frustrated if the conferment of these seven rights would result in cessation of legislation in the extensive fields where these seven rights operate. But without the saving provisions that would be the exact result of the Article 13 of the Constitution. It was to guard against this position 13 (1960) 2 SCR 375 : AIR 1960 SC 430 14 1950 SCR 759: AIR 1951 SC 11 8 15 AIR 1954 SC 634 591 that the Constitution provided in its clauses 2 to 6 that even in the fields of these rights new laws might be made and old laws would operate where this was necessary for general welfare. Laws imposing reasonable restriction on the exercise of the rights are saved by clause 2 in respect of rights under sub-clause (a) where the restrictions are 'in the interests of the security of the State;' and of other matters mentioned therein; by clause 3 in respect of the rights conferred by sub-clause (b) where the restrictions are 'in the interests of the public order'; by clauses 4, 5 and 6 in respect of the rights conferred by sub-clauses (c), (d), (e), (f) & (g) the restrictions are 'in the interest of the general public' in clause 5 which is in respect of rights conferred by sub-clauses (d), (e) & (f) also where the restrictions are 'for the protection of the interests of any scheduled tribe'. But for these saving provisions such laws would have been void because of Article 13, which is in these words:
'All laws in force in the territory of India immediately before the commencement of this Constitution, insofar as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency be void; (2 The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void As it was to remedy the harm that would otherwise be caused by the provisions of Article 13, that these saving provisions were made, it is proper to remember the words of Article 13 in interpreting the words ` reasonable restrictions' on the exercise of the right as used in clause (2). It is reasonable to think that the makers of the Constitution considered the word 'restriction' to be sufficiently wide to save laws 'Inconsistent' with Article 19(1), or 'taking away the rights' conferred by the article, provided this inconsistency or taking away was reasonable in the interests of the different matters mentioned in the clause. There can be no doubt therefore that they intended the word 'restriction' to include cases of 'prohibition' also. The contention that a law prohibiting the exercise of a fundamental right is in no case saved, cannot therefore be accepted."
27. In A.B. Abdulkadir v. State of Keralal6, which is a decision of Constitution Bench of five learned Judges, the Court observed that the system of auctioning of the right to possess excisable goods like country liquor, ganja, and bhang was only a method of realising duty through grant of licences to those who made the highest bid at the auctions and thus to raise revenue. In that case, what was under challenge was the system of auctions under the Cochin Tobacco Act, 1084 (M.E.) with the object of controlling the cultivation, production, manufacture, storage and sale of tobacco. By majority, the Court held that the income realised from such auction was in the nature of excise duty.
16 1962 Supp (2) SCR 741 : AIR 1962 SC 922 592
28. In Krishna Kumar Narula v. State of J & K17, the question whether the right to carry on business of liquor is a fundamental right fell directly for consideration before a Constitution Bench of five learned Judges.
29. Since heavy reliance is placed on behalf of the appellants/petitioners on this case to contend that the right to carry on business in liquor is fundamental, it is necessary to examine this case a little more in detail.
30. The facts were that the appellant was carrying on business in liquor in his hotel under an annual licence issued under Section 20 of the Jammu & Kashmir Excise Act, 1958. He had applied for a fresh licence for another year.
Meanwhile, the Excise Department received complaints from the inhabitants of the locality objecting to the location of the bar in that locality. The complaints were inquired into and the appellant was informed by the Commission that the licence will not be issued unless he shifted the premises to some other approved locality. Writ Petition filed by the appellant for quashing the order of the Commissioner was dismissed by the High Court. While dealing with the appeal against the High Court's order, this Court commenting on the combined reading of clauses (1) and (6) of Article 19 observed as follows: (SCR pp. 53-54) "A combined reading of clauses (1) and (6) of Article 19 makes it clear that a citizen has a fundamental right to carry on any trade or business, and the State can make a law imposing reasonable restrictions on the said right in the interests of the general public.
It is, therefore, obvious that unless dealing in liquor is not trade or business, a citizen has a fundamental right to deal in that commodity. The learned Advocate General contended that dealing in liquor was not business or trade, as the dealing in noxious and dangerous goods like liquor was dangerous to the community and subversive of its morals.
The acceptance of this broad argument involves the position that the meaning of the expression 'trade or business' depends upon and varies with the general acceptance of the standards of morality obtaining at a particular point of time in our country. Such an approach leads to incoherence in thought and expression. Standards of morality can afford a guidance to impose restrictions, but cannot limit the scope of the right. So too, a legislature can impose restrictions on, or even prohibit the carrying on of a particular trade or business and the Court, having regard to the circumstances obtaining at a particular time or place may hold the restrictions or prohibition reasonable. The question, therefore, is, what is trade or business? Though the word 'business' is ordinarily more comprehensive than the word 'trade', one is used as synonymous with the other. It is not necessary to bring out the finer points of distinction between the said two concepts in this case. In the words of S.R. Das, J., as he then was, in Narain Swadeshi Weaving Mills v. Commissioner of Excess Profits Tax' 8, the word 'business' connotes some real, substantial and systematic 17 (1967) 3 SCR 50 : AIR 1967 SC 1368 18 1955 SCR 952, 961 : AIR 1955 SC 176, 181 593 or organised course of activity or conduct with a set purpose. Even accepting this test, if the activity of a dealer, say, in ghee is business; then how does it cease to be business if it is in liquor? Liquor can be manufactured, brought or sold like any other commodity. It is consumed throughout the world, though some countries restrict or prohibit the same on economic or moral grounds. The morality or otherwise of a deal does not affect the quality of the activity though it may be a ground for imposing a restriction on the said activity. The illegality of an activity does not affect the character of the activity but operates as a restriction on it. If a law prohibits dealing in liquor, the dealing does not cease to be business, but the said law imposes a restriction on the said dealing." 31.The Court then referred to the decision in TB. Ibrahim case2. According to the respondent-State there, it was held in that case that dealing in liquor was not a business or trade within the meaning of Article 19 of the Constitution and there is no fundamental right in a citizen to carry on the business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interests of public convenience.
The Court observed that in that case this Court did not say that there was no fundamental right to do business but only held that a citizen could not claim that his fundamental right could not be restricted in public interests.
32.Nor, according to the Court, did the decision in Cooverjee case3 lay down any such proposition. According to the Court, in that case this Court held that the impugned regulation was a reasonable restriction within the meaning of Article 19(6). Referring to the extract from the judgment of Field, J. in Crowley v. Christensen4 referred to in that judgment (which we have already quoted above) and the concurrence expressed by the Court there with the said observations, the Court observed that the said passage from the judgment of Field, J. had nothing to do with the construction of Article 19(1)(g) of the Constitution.
According to the Court, there the learned Judge was considering the scope of the "police power" and the said observations were made in that context and those observations were applied by this Court in Cooverjee case3 in considering the reasonableness of the restrictions imposed upon the fundamental rights. According to the Court, the perusal of the entire judgment shows that the Court had indeed conceded the fundamental right but held that the said regulation operated as reasonable restriction on the said rights.
33.Similarly, according to the Court the following observations of this Court in A.N. Kidwai case6 had no relevance to the inquiry, viz., whether there was a fundamental right to carry on business in liquor. The said observations are as follows: (SCR p. 30 1) "A perusal of the Act and rules will make it clear that no person has any absolute right to sell liquor and that the purpose of the Act and the rules is to control and restrict the consumption of intoxicating liquors, 594 such control and restriction being obviously necessary for the preservation of public health and morals, and to raise revenue."
34.According to the Court, the said observations only mean that no absolute right to sell liquor was given to any person under the Act and that the said right was controlled by the provisions of the said Act. The Court further held that the respondent State could not draw any support from the decision of this Court in Nagendra Nath case12 because the question there was in regard to the scope of Articles 226 and 227 of the Constitution vis-avis the orders passed by the appropriate authorities under the Eastern Bengal and Assam Excise Act, 1910 although in that case two decisions of this Court, viz., Cooverjee case3 and A.N. Kidwai case6 were noticed, and it was observed that there was no inherent right to the settlement of liquor shops. According to the Court no question of fundamental right under Article 19(1) arose in that case and hence the said observations were unhelpful to the State.
35.The Court also found that the following observations made in the R.M.D. Chamarbaugwala case7 were also not helpful to the State because that decision only laid down that gambling was not business or trade: (SCR p. 925) "We find it difficult to accept the contention that those activities which encourage a spirit of reckless propensity for making easy gain by lot or chance, which lead to the loss of the hard earned money of the undiscerning and improvident common man and thereby lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home could possibly have been intended by our Constitution- makers to be raised to the status of trade, commerce or intercourse and to be made the subjectmatter of a fundamental right guaranteed by Article 19(1)(g)." Since the Court was not concerned with gambling, the said observations were not relevant. The Court then concluded with the scrutiny of the earlier decisions of this Court referred to above, that they did not support the contention that dealing in liquor was not business or trade. According to the Court, in those decisions this Court was only considering the provisions of the various Acts which conferred a restricted right to business. None of the decisions held that a right to do business in liquor was not a fundamental right. The Court, therefore, held that dealing in liquor was business and a citizen has a right to do business in that commodity; but a State can make a law imposing reasonable restrictions on the said right in public interest. We will have an occasion to deal with the Court's observations and conclusions in this case at the appropriate stage hereinafter.
36.To proceed further with the decisions of this Court in chronological order, we may now refer to the next decision, viz., State of Orissa v. Harinarayan Jaiswal19 which is a decision of two learned Judges. The facts were that the first respondent was carrying on business of country liquor in 19 (1972) 2 SCC 36: (1972) 3 SCR 784 595 exercise of the powers conferred by Section 29(2) of the Bihar and Orissa Excise Act, 1915. The appellant State issued an order and in pursuance of that order a date was notified for selling by public auction the exclusive privilege of selling by retail, country liquor in eight shops. The respondent was the highest bidder-but his bid was rejected because the Government was of the view that inadequate prices had been offered as a, result of collusion between the bidders. Thereafter, tenders were called for and the appellant accepted the tender in respect of one shop and rejected the others as it was again of the opinion that price offered was inadequate. Thereafter, the remaining seven shops were sold by private negotiations for substantially higher prices. The High Court had allowed the writ petition filed by the respondent and in appeal this Court referred to the decisions which we have cited above including the decision in K.K. Narula case 17. Hegde, J.
speaking for the Court held as follows: (SCC p. 43, para 12) "It is true that this Court has ruled that the right to trade in intoxicating drugs is also a right to carry on any trade or business within the meaning of Article 19(1)(g) see Krishna Kumar Narula v. Jammu and Kashmir State17. At the same time, it was held by this Court in Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner3 that for determining reasonable restrictions within the meaning of Article 19(6) of the Constitution on the right given under Article 19(1)(g), regard must be had to the nature of the business and the conditions prevailing in a particular trade; State has power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public and there is no inherent right in a citizen to sell intoxicating liquors by retail." 37.In Amar Chandra Chakraborty v. Collector of Excise2O which is a decision of Constitution Bench of five learned Judges, the challenge was to the Excise Collector's order withdrawing liquor licence before expiry of time.
Referring to the decision in K.K. Narula case17, the Court held there as follows: (SCC p. 449, para 13) "It is no doubt true that this Court in the case cited held that dealing in liquor is business and a citizen has a right to do business in that commodity but it was added that the State can make a law imposing reasonable restrictions on the said right in public interest. In dealing with reasonable restrictions no abstract standard or general pattern is possible to lay down. In each case, regard has to be had to the nature of trade or business, the conditions prevailing in such trade or business, the nature of the infringement alleged, and the underlying purpose of the restriction, the imposition of which is alleged to constitute an infringement." 38.The Court then referred to the contention on behalf of the appellant that the provisions of Section 43 of the Bengal Excise Act, 1909 which empowered the licensing authority to withdraw the licence for any reason 20 (1972) 2 SCC 442: (1973) 1 SCR 533 596 whatsoever not falling under Section 42 of that Act, were unreasonable and violative of the appellant's fundamental right under Article 19, and held as follows: (SCC pp. 449- 50, para 15) .lm15 "It is no doubt true that in Section 43, there is no express mention of the precise grounds on which the licence can be withdrawn. But in our opinion keeping in view the nature of the trade or business for which the grant of licence under the Act is provided the cause contemplated by Section 43 must be such as may have reasonable nexus with the object of regulating this trade or business in the general interest of the public. In the determination of reasonableness of restrictions on trade or business regard must be had to its nature, the conditions prevailing in it and its impact on the society as a whole. These factors must inevitably differ from trade to trade and no general rule governing all trades or businesses is possible to lay down. The right to carry on lawful trade or business is subject to such reasonable conditions as may be considered essential by the appropriate authority for the safety, health, peace, order and morals of the society. Article 47 of our Constitution directs the State to endeavour to prohibit consumption of intoxicating drinks and of drugs which are injurious to health except for medicinal purposes. In the case of country liquor, therefore, the question of determining reasonableness of the restriction may appropriately be considered by giving due weight to the increasing evils of excessive consumption of country liquor in the interests of health and social welfare. Principles applicable to trades which all persons carry on free from regulatory controls do not apply to trade or business in country liquor: this is so because of the impact of this trade on society due to its inherent nature." 39.In Nashirwar v. State of M. p.21 which is a judgment of three learned Judges,while dealing with the question whether the State has power to grant liquorlicence by public auction and whether the said power violated fundamental right under Article 19(1)(g) of the Constitution, the Court held as follows: (SCC pp. 36-37, paras 23-25) "There are three principal reasons to hold that there is no fundamental right of citizens to carry on trade or to do business in liquor. First, there is the police power of the State to enforce public morality to prohibit trades in noxious or dangerous goods. Second, there is power of the State to enforce an absolute prohibition of manufacture or sale of Intoxicating liquor. Article 47 states that the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Third, the history of excise laws shows that the State has the exclusive right or privilege of manufacture or sale of liquor.
In Balsara case' this Court referred to Article 47 and said that the idea of prohibition was connected with public health. The challenge to a prohibition law under our Constitution was made under Articles 14 and 21 (1975) 1 SCC 29 :(1975) 2 SCR 861 597 19 in Balsara case1. This Court held that absolute prohibition of manufacture or sale of liquor is permissible and the only exception can be for medicinal preparations.
The concept of inherent right of citizens to do business in liquor is antithetical to the power of the State to enforce prohibition laws in respect of liquor.
Das, C.J. in State of Bombay v. R.M.D. Chamarbaugwala7 said that gambling could not be regarded as trade or business within the meaning of Article 19(1)(f) and (g) and Article 301. Inherently vicious activities cannot be treated as entitling citizens to do business or trade in such activities. No one can deal in counterfeit coins or currency notes. Das, C.J. held that activities which are criminal, or dealing in articles or goods which are res extra commercium could not have been intended to be permitted by Article 19(1)(f) and (g) relating to fundamental rights to trade or business." 40.Referring to K.K. Narula case17 the Court held that it was not correct to read the said decision to mean that there was a fundamental right to do business in liquor. According to the Court, the said decision was that dealing in liquor is business and a citizen had a right to do business in that commodity and the State could impose reasonable restrictions on that right in public interest.
If the State could prohibit business in liquor as held in EN. Balsara case1 that established that the State had exclusive right or privilege to manufacture, possess, or sell intoxicating liquor and, therefore, the State granted a right or privilege to persons in the shape of licence or lease. The Court then referred to Harinarayan Jaiswal case19 and stated that that case had explained K.K. Narula case17. The Court then observed as follows: (SCC p. 39, para 35) "Trade in liquor has historically stood on a different footing from other trades. Restrictions which are not permissible with other trades are lawful and reasonable so far as the trade in liquor is concerned. That is why even prohibition of the trade in liquor is not only permissible but is also reasonable. The reasons are public morality, public interest and harmful and dangerous character of the liquor. The State possesses the right of complete control over all aspects of intoxicants, viz., manufacture, collection, sale and consumption. The State has exclusive right to manufacture and sell liquor and to sell the said right in order to raise revenue. That is the view of this Court in Bharucha case3 and Jaiswal case19 The Court also held that since in Cooverjee case3, in no uncertain terms this Court had repelled the citizens' contention of inherent right to sell intoxicating liquor and since Cooverjee case3 was a Constitution Bench decision, K.K. Narula case17 which is also a Constitution Bench decision, cannot be said to have overruled the decision in Cooverjee case3.
41.In Har Shankar v. Dy. Excise and Taxation Commr22 which is a decision of Constitution Bench of five learned Judges, the question whether 22 (1975) 1 SCC 737 : (1975) 3 SCR 254 598 a citizen had a fundamental right to trade in intoxicants and whether State had power to prohibit absolutely every form of activity relating to intoxicants, fell directly for consideration. While dealing with it, after referring to all the earlier decisions including the decision in K.K.
Narula case17, the Court held as follows: (SCC pp. 755-56, paras 47-48) "These unanimous decisions of five Constitution Benches uniformly emphasised after a careful consideration of the problem involved that the State has the power to prohibit trades which are injurious to the health and welfare of the public, that elimination and exclusion from the business is inherent in the nature of liquor business, that no person has an absolute right to deal in liquor and that all forms of dealings in liquor have, from their inherent nature, been treated as a class by themselves by all civilised communities. The contention that the citizen had either a natural or a fundamental right to carry on trade or business in liquor thus stood rejected.
But, in spite of the weight of this authority, a Constitution Bench struck a different note in Krishna Kumar Narula v. State of J & K17.... It would, however, appear that the learned Judges of the High Court had differed on the question whether the appellant had a fundamental right to do business in liquor and this Court desired 'to make the position clear' in order to 'avoid further confusion in the matter'. The decisions in Cooverjee case3, Kidwai case6 and Nagendra Nath case12 were cited before the Court but it took the view that they did not support the contention that dealing in liquor was not business or trade or that a right to do business in liquor was not a fundamental right." The Court then referred to the decision in R.M.D. Chamarbaugwala case7 and observed as follows: (SCC pp. 757-759, paras 50, 53 & 54) "This decision was also cited before the Court in Krishna Kumar case17 but it said: 'This decision only lays down that gambling is not business or trade. We are not concerned in this case with gambling.' With great respect, the reasons mentioned by Das, C.J. for holding that there can be no fundamental right to do trade or business in an activity like gambling apply with equal force to the alleged right to trade in liquor and those reasons may not be brushed aside by restricting them to gambling operations.
In our opinion, the true position governing dealings in intoxicants is as stated and reflected in the Constitution Bench decisions of this Court in Balsara case1, Cooverjee case3, Kidwai case6, Nagendra Nath case12, Amar Chakraborty case2O and the R.M.D.C. case7, as interpreted in Harinarayan Jaiswal case19 and Nashirwar case21. There is no fundamental right to do trade or business in intoxicants. The State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants its manufacture, storage, export, import, sale and possession. In all their manifestations, these rights are 599 vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants. In American Jurisprudence, Volume 30 it is stated that while engaging in liquor traffic is not inherently unlawful, nevertheless it is a privilege and not a right, subject to governmental control (page 538). This power of control is an incident of the society's right to self protection and it rests upon the right of the State to care for the health, morals and welfare of the people.
Liquor traffic is a source of pauperism and crime (pp. 5 39, 540, 54 1).
It was unnecessary in Krishna Kumar Narula case17 to examine the question from this broader point of view, as the only contention bearing on the constitutional validity of the provision impugned therein was not permitted to be raised as it was not argued in the High Court. The discussion of the question whether a citizen has a fundamental right to do trade or business in liquor proceeded in that case, avowedly, from a desire to clear the confusion arising from the 'different views' expressed by the two Judges of the High Court. This may explain why the Court restricted its final conclusion to holding that dealing in liquor is business and the citizen has a right to do business in that commodity. The Court did not say, though such an implication may arise from its conclusion, that the citizen has a fundamental right to do trade or business in liquor. If we may repeat, Subba Rao, C.J. said:
'We, therefore, hold that dealing in liquor is business and a citizen has a right to do business in that commodity; but the State can make a law imposing reasonable restrictions on the said right, in public interests.' It is significant that the judgment in Krishna Kumar Narula case17 does not negate the right of the State to prohibit absolutely all form s of activities in relation to intoxicants. The wider right to prohibit absolutely would include the narrower right to permit dealing in intoxicants on such terms of general application as the State deems expedient."
42.In Lakhanlal v. State of Orissa23 which is a decision of two learned Judges,the Court after referring to the decisions in Cooverjee case3, K.K. Narulacase17 and Har Shankar case22 reiterated that there was no fundamental right to trade or business in intox
