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PETITIONER: CHINTAMAN RAO

       Vs.

RESPONDENT: THE STATE OF MADHYA PRADESHRAM KRISHNAV.THE STATE OF MADHYA

DATE OF JUDGMENT: 08/11/1950

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND KANIA, HIRALAL J. (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA

CITATION:  1951 AIR  118            1950 SCR  759  CITATOR INFO :  E&D        1951 SC 318  (25)  D          1952 SC  75  (16)  F          1954 SC 224  (16)  F          1954 SC 229  (6)  R          1956 SC 559  (4)  F          1956 SC 676  (51)  RF         1957 SC 620  (6)  RF         1957 SC 628  (12,16,21)  R          1957 SC 896  (14)  R          1958 SC 578  (168)  R          1959 SC 300  (5)  R          1959 SC1124  (55A)  R          1960 SC 430  (13,16)  R          1960 SC 554  (28)  F          1960 SC 633  (16)  R          1961 SC 448  (9)  R          1962 SC1621  (109)  R          1963 SC 996  (5)  R          1964 SC 416  (11)  R          1970 SC1157  (12)  RF         1974 SC 366  (67)  F          1978 SC 771  (14)

ACT:     Central Provinces and Berar Regulation of Manufacture of Bidis  (Agricultural  Purposes) Act(LXIV of  1948),  ss.  3, 4--Law  prohibiting  bidi  manufacture  during  agricultural season--  Validity  --Restriction of  fundamental  right  to carry    on    trade    or    business-Reasonableness     of restrictions--Test of reasonableness--Jurisdiction of  court to  consider whether restrictions are  reasonable--Constitu- tion of India, 1950, Art. 19(1)(g), 19(6).

HEADNOTE:     The  Central Provinces and Berar Regulation of  Manufac- ture  of Bidis (Agricultural Purposes) Act, LXIV of 1948,  a law which was in force at the commencement of the  Constitu- tion of India, provided that" the Deputy Commissioner may by notification fix  a period to be an agricultural season with

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respect  to such villages as may be specified  therein"  and that  "the  Deputy Commissioner may by general  order  which shall  extend to such villages as he may  specify,  prohibit the  manufacture of bidis during the  agricultural  season." The  Act  provided further that" no person  residing  in  a, village specified in such order shall during the agricultur- al season engage himself in the manufacture of bidis, and no manufacturer shall during the said season employ any  person for  the manufacture of bidis."  An order was issued by  the Deputy Commissioner under the provisions of the Act  forbid- ding all persons residing in certain villages from  engaging in  the manufacture of bidis during a. particular season.  A manufacturer  of  bidis and an employee in  a  bidi  factory residing  in one of the said villages applied under Art.  32 of  the Constitution for a writ  of mandamus  alleging  that since  the  Act prohibited the petitioners  from  exercising their fundamental right to carry on their trade or  business which  was guaranteed to them by cl. (1) (g) of Art.  19  of the Constitution, the Act was void:     Held,  (i)  that the object of the statute,  namely,  to provide  measures  for  the supply of  adequate  labour  for agricultural  purposes  in bidi manufacturing areas  of  the Province  could well have been achieved by  legislation  re- straining  the  employment  of agricultural  labour  in  the manufacture of bidis during the agriculrural season  without prohibiting  altogether  the manufacture of bidis.   As  the provisions of the Act had no reasonable relation 760 to  the  object  in view, the Act was  not  a  law  imposing "reasonable  restrictions" within the meaning of cl. (6)  of Art-19 and was   therefore void. (ii)  The  law even to the extent that it could be  said  to authorize the imposition of restrictions in regard to  agri- cultural  labour  cannot  be held to be  valid  because  the language employed was wide enough to cover restrictions both within and without the limits of constitutionally  permissi- ble  legislative action affecting the right, and so long  as the possibility of its being applied for purposes not  sanc- tioned  by the Constitution cannot be ruled out, it must  be held to be wholly void.      The  phrase "reasonable restriction" connotes that  the limitation  imposed  on a person in enjoyment of  the  right should  not be arbitrary or of an excessive  nature,  beyond what  is required in the interests of the public.  The  word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates.   Legisla- tion  which  arbitrarily or excessively  invades  the  right cannot be said to contain the quality of reasonableness  and unless  it  strikes  a proper balance  between  the  freedom guarnteed in Art. 19 (1) (g) and the social control  permit- ted by el. (6) of Art. 19, it must be held to be wanting  in that quality.       Held  also, that the determination by the  Legislature of  what constitutes a reasonable restriction is  not  final and  conclusive.  The Supreme Court has  power  to  consider whether  the  restrictions imposed by the   Legislature  are reasonable  within  the meaning of Art. 19, cl. (6)  and  to declare the law void if in its opinion the restrictions  are not reasonable.

JUDGMENT: ORIGINAL JURISDICTION: Petitions Nos. 78 and 79 of 1950.

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     Application  under article 32 of the  Constitution  of India for a writ of mandamus.     G.N. Joshi, for the petitioners.     S.M. Sikri, for the respondent.   1950.  November 8.  The judgment 0 the Court was  delivered by        MAHAJAN J.--These two applications for enforcement of the fundamental right guaranteed under article 19 (1) (g) of the Constitution of India have been made by a proprietor and an employee respectively of a bidi manufacturing concern  of District  Sagar (State of Madhya Pradesh).  It is  contended that the law in force in the State authorizing it to prohib- it  the manufacture of bidis in certain  villages  including the one 761 wherein  the  applicants  reside is  inconsistent  with  the provisions  of  Part III of the Constitution and  is  conse- quently void.     The Central Provinces and  Berar Regulation of  Manufac- ture  of Bidis (Agricultural  Purposes) Act, LXIV  of  1948, was passed on 19th October 1948 and was the law in force  in the State at the commencement of the Constitution.  Sections 3 and 4 of the Act are in these terms;-     "  3. The Deputy Commissioner may by notification fix  a period  to  be an agricultural season with respect  to  such villages as may be specified therein.     4.  (1)  The Deputy Commissioner may, by  general  order which  shall  extend  to such villages as  he  may  specify, prohibit  the manufacture of bidis during  the  agricultural season.     (2)  No person residing in a village specified  in  such order shall during the agricultural season engage himself in the  manufacture of bidis, and no manufacturer shall  during the  said  season employ any person for the  manufacture  of bidis."     On the 13th June 1950 an order was issued by the  Deputy Commissioner  of Sagar under the provisions of the Act  for- bidding all persons residing in certain villages from engag- ing  in  the manufacture of bidis.  On the  19th  June  1950 these  two  petitions  were presented to  this  Court  under article  32 of the Constitution challenging the validity  of the  order  as it prejudicially  affected  the  petitioners’ right  of  freedom of occupation and  business.  During  the pendency of the petitions the season mentioned in the  order of  the 13th June ran out.  A fresh order  for the   ensuing agricultural season--8th October to 18th November  1950--was issued on 29th September 1950 in the same terms. This  order was also  challenged in a supplementary petition. Article 19 (1) (g) runs as follows :--     "All  citizens  shall  have the right  to  practise  any profession,  or to carry on any occupation, trade  or  busi- ness." 762     The  article guarantees freedom of occupation and  busi- ness. The freedom guaranteed herein is, however, subject  to the  limitations imposed by clause (6) of article  19.  That clause is in these terms :--     "Nothing  in  sub-clause (g) of the  said  clause  shall affect  the  operation of any existing law in so far  as  it imposes, or prevent the State from making any law  imposing, in the interests of the general public, reasonable  restric- tions  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 in  so far as it prescribes or empowers any authority to prescribe,

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or  prevent  the State from making any  law  prescribing  or empowering  any authority to prescribe, the professional  or technical  qualifications necessary for practising any  pro- fession or carrying on any occupation, trade or business."     The  point  for consideration in these  applications  is whether  the  Central Provinces and Berar Act LXIV  of  1948 comes within the ambit of this saving clause or is in excess of its provisions.  The learned counsel for the  petitioners contends  that the impugned Act does not  impose  reasonable restrictions on the exercise of the fundamental right in the interests of the general public but totally negatives it. In order to judge the validity of this contention it is  neces- sary to examine the impugned Act and some of its provisions. In  the preamble to the Act, it is stated that it  has  been enacted  to  provide  measures for the  supply  of  adequate labour  for  agricultural  purposes  in  bidi  manufacturing areas.   Sections  3 and 4 cited above  empower  the  Deputy Commissioner to prohibit the manufacture of bidis during the agricultural  season.  The  contravention of  any  of  these provisions  is made punishable by section 7 of the Act,  the penalty  being imprisonment for a term which may  extend  to six months or with fine or with both. It was enacted to help in the grow more food campaign and for the purpose of bring- ing under the plough considerable areas of fallow land.      The question for decision is whether the statute  under the guise of protecting public interests arbitrarily      763 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. Unless it is shown that there is a reason- able relation of the provisions of the Act to the purpose in view, the right of freedom of occupation and business cannot be curtailed by it.     The  phrase "reasonable restriction" connotes  that  the limitation  imposed  on a person in enjoyment of  the  right should  not be arbitrary or of an excessive  nature,  beyond what  is required in the interests of the public.  The  word "reasonable" implies intelligent care and deliberation, that is,  the choice of a course which reason dictates.  Legisla- tion  which  arbitrarily or excessively  invades  the  right cannot be said to contain the quality of reasonableness  and unless  it  strikes  a proper balance  between  the  freedom guaranteed  in  article 19 (1) (g) and  the  social  control permitted by clause (6) of article 19, it must be held to be wanting in that quality.     Clause  (6) in the concluding  paragraph  particularizes certain  instances  of the nature of the  restrictions  that were  in the mind of the constitution-makers and which  have the  quality of reasonableness.  They afford a guide to  the interpretation of the clause and illustrate the extent   and nature of the  restrictions  which according to the  statute could  be imposed  on the freedom guaranteed in clause  (g). The statute in substance  and  effect  suspends   altogether the  right mentioned in article 19 (1) (g) during the  agri- cultural  seasons and  such suspension  may  lead   to  such dislocation  of the industry as to prove its ultimate  ruin. The  object  of the statute is to provide measures  for  the supply of adequate labour for agricultural purposes in  bidi manufacturing  areas  of the Province and it could  well  be achieved by legislation restraining the employment of  agri- cultural labour in the manufacture

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764 of  bidis during the agricultural season.  Even in point  of time  a restriction may well have been reasonable  if     it amounted  to a regulation of the hours of work in the  busi- ness.  Such legislation though it would limit the field  for recruiting persons for the manufacture of bidis and regulate the  hours  of the working of the industry, would  not  have amounted to a complete stoppage of the business of  manufac- ture  and  might well have been within the ambit  of  clause (6).  The effect of the provisions of the Act, however,  has no  reasonable  relation  to the object in view  but  is  so drastic in scope that it goes much in excess of that object. Not only are the provisions of the statute in excess of  the requirements of the case but the language employed prohibits a  manufacturer  of bidis from employing any  person  m  his business,  no matter wherever that person may  be  residing. In  other  words, a manufacturer of bidis residing  in  this area  cannot import labour from neighbouring places  in  the district  or province or from outside the province.  Such  a prohibition  on  the face of it is of  an  arbitrary  nature inasmuch  as  it has no relation whatsoever  to  the  object which the legislation seeks to achieve and as such cannot be said  to be a reasonable restriction on the exercise of  the right.   Further the statute seeks to prohibit  all  persons residing  in the notified villages during  the  agricultural season from engaging themselves in the manufacture of bidis. It  cannot be denied that there would be a number of  infirm and  disabled persons, a number of children, old  women  and petty shop keepers residing in these villages who are  inca- pable  of  being  used for agricultural  labour.   All  such persons  are prohibited by law from engaging  themselves  in the  manufacture  of bidis; and are thus being  deprived  of earning their livelihood. It is a matter of common knowledge that there are certain classes of persons residing in  every village who do not engage in agricultural operations.   They and  their  womenfolk and children in  their  leisure  hours supplement  their  income  by engaging  themselves  in  bidi business.   There seems no reason for prohibiting them  from carrying on this occupation,  The statute as     765 it  stands,  not only compels those who can  be  engaged  in agricultural  work from not taking to other avocations,  but it also prohibits persons who have no connection or relation to agricultural operations from engaging in the business  of bidi making and thus earning their livelihood.  These provi- sions  of  the statute, in our opinion, cannot  be  said  to amount to reasonable restrictions on the right of the appli- cants  and that being so, the statute is not  in  conformity with  the provisions of Part III of the  Constitution.   The law  even to the extent that it could be said  to  authorize the  imposition  of restrictions in regard  to  agricultural labour cannot be held valid because the language employed is wide  enough to cover restrictions both within  and  without the  limits  of  constitutionally  permissible   legislative action  affecting the right.  So long as the possibility  of its being applied for purposes not sanctioned by the Consti- tution  cannot  be ruled out, it must be held to  be  wholly void.     Mr. Sikri for the Government of Madhya Pradesh  contends that the legislature of Madhya Pradesh was the proper  judge of  the  reasonableness of the restrictions imposed  by  the statute,  that  that legislature alone knew  the  conditions prevailing in the State and it alone could say what kind  of legislation  could effectively achieve the end in  view  and would help in the grow more food campaign and would help for

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bringing in fallow land under the plough and that this Court sitting  at this great distance could not judge by  its  own yardstick of reason whether the restrictions imposed in  the circumstances  of  the  case were reasonable  or  not.  This argument  runs counter to the clear provisions of the   Con- stitution.   The  determination by the legislature  of  what constitutes a reasonable restriction is not final or conclu- sive;it is subject to the supervision by this Court.  In the matter of fundamental rights, the Supreme Court watches  and guards  the  rights guaranteed by the  Constitution  and  in exercising  its functions it has the power to set  aside  an Act of the Legislature if it is in violation of the freedoms guaranteed by the Constitution.  We are therefore of opinion 98 766 that the impugned statute does not stand the test of reason- ableness and is therefore void.     The  result therefore is that the orders issued  by  the Deputy  Commissioner  on 13th June 1950 and  26th  September 1950  are  void, inoperative and ineffective.  We  therefore direct  the respondents not to enforce the  provisions  con- tained  in section 4 of the Act against the  petitioners  in any  manner  whatsoever.  The petitioners  will  have  their costs of these proceedings in the two petitions.                        Petitions allowed.       Agent for the petitioners in Nos. 78 and 79:          Rajinder  Narain.       Agent for the respondent in Nos. 78 and 79:           P.A. Mehta.