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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

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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

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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

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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

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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

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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.

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(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

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credulity  and  gullibility of the masses,  especially  when ’certain  cures’ are assured in utterly hopeless cases,  can well  be imagined.  Perusal of the advertisements of  cures’ produces a great effect on patients who have tried treatment by medical men without success.  Such patients resort to any and every drug that comes in their way.  In an infinitesimal small  number of cases spontaneous cures are also  effected. Widest  publicity  is given to these  and  the  preparations become  invested with miraculous virtues.  The  reassurances of cure, the force of argument advanced to guarantee it  and the  certificates of persons said to have been  cured  which are  all set out in advertisements make a  deep  impression, especially  on those with weak nerves.  The love of  mystery and   secrecy   inherent  in  human  nature,   the   natural disinclination and 681 shyness  to  disclose details of  one’s  illness  especially those involving moral turpitude, the peculiar temperament of the  people  who,  high  and  low,  rich  and  poor,  demand ’something  in a bottle’ for the treatment of every  ailment and  poverty  of  the people who cannot afford  to  pay  the doctor’s  bills  or the high prices  current  for  dispensed medicines,’ have all been enlarged upon as tending to  self- diagnosis  and  self-medication by  patent  and  proprietary medicines." (5)Evidence was led before the Chopra Committee  deprecating the  increasing sale of proprietary  medicines  particularly those  with  secret formulae as such drugs  were  positively harmful  and  were a serious and increasing  menace.   There were advertisements and pamphlets issued in connection  with these  medicines  which  showed  fraudulent  practices   and extravagant claims for these medicines. (6)The   Chopra   Committee   Report   had   also   made   a recommendation   for  a  strict  measure  of  control   over proprietary medicines. (7)  The  Bhatia  Committee  was set up in  pursuance  to  a resolution  No.  CI-1(12)/52 dated February  14,  1953,  and between March 1953, and end of that year it examined a large number of witnesses in different towns of India some of whom represented  chemists  and  druggists,  some  were   leading medical  practitioners  and some were  State  Ministers  for Health.   The  Bhatia Committee issued  a  Questionnaire  to various organisations and witnesses.  It contained questions in regard to advertisement of drugs and therefore one of the objects  of  this  Committee which was  inaugurated  by  the Health Minister on March 12, 1953, was amongst other  things to look into the control to be exercised over  objectionable and unethical advertisements. (8)  There   were   a   large   number   of    objectionable advertisements  in the Press in regard to  patent  medicines which were after the Act came into force pointed out by  the Press Commission Report but it cannot be said that this fact was unknown to Parliament as this Committee also examined  a number of witnesses. 87 682 (9)  The  Indian Medical Association had suggested  to  this Press    Committee    which   was    presided    over     by the   late   Mr.  Justice  Rajadhyaksha   the   barring   of advertisements of medicines which claim to cure or alleviate any of the following diseases: Cancer,   Bright’s  disease, Cataract,  Diabetes,  Epilepsy, Glaucoma, Locomotor ataxia, Paralysis, Tuberculosis. (10)  In  the  United Kingdom, advertisements  of  drugs  or treatment for these diseases are governed by the Cancer  Act

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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

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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

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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

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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

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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

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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

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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

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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.

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(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

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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.

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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

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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