PETITIONER:
HAMDARD DAWAKHANA (WAKF) LAL KUAN,DELHI AND ANOTHER
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT:
18/12/1959
BENCH:
KAPUR, J.L.
BENCH:
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 self-
medication 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 practi-
tioner, 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 unintel-
ligible 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.
JUDGMENT:
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 pre-
pared 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 adver-
tisements 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.
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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 corres- ponds 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 con-
stitutionality 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 which- affect 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 Kavalap-
para 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 ideas-
social, 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 La- Ed. 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 self-
medication 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 operativeportions 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 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 subserve 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 reasonablenses 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 self-
medication 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 admin-
istrative 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:-
S. 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 ‘sub-
section 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 subserve 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 particular- condition 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 to- the 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 (includingall
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 theprovisions 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.
701