HAMDARD DAWAKHANA (WAKF) LAL KUAN, DELHI AND ANOTHER versus UNION OF INDIA AND OTHERS

I959

December rs.

S.C.R.

SUPREME COURT REPORTS

671

HAMDARD DAWAKHANA (WAKF) LAL KUAN, DELHI AND ANOTHER v. UNION OF INDIA AND OTHERS (B. P. SINHA, C.J., JAFER IMAM, J. L. KAPUR, K. N. WANCHOO and K. C. DAS GUPTA, JJ.)

Advertisement, Control of-Advertis~ment, when relates to freedom of speech-Statute prohibiting advertisements of drugs f 01 certain diseases-Constitutionality of-Whether curtails freedom of speech-Conferment of power on executive to add to diseases falling within mischief of statute-If amouttis to delegation of legislative power-Statute empowering executive to seize off ending articles, without providing safeguards-Whether imposes reasonable restric tions-Constitution of India, Arts. r9(r)(a), I9(I)(g), r9(r)(j) and I9( 6). The Drugs and Magic Remedies (Objectionable Advertise ments) Act, I954 (2I of r954), ss. 2(a), 3(d), 8 and r4(c).

When an enactment is chall.enged 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 the~of, the surrounding circumstances and conditions, the mischief intended to be suppres sed, 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. Sahi, A.LR. 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 Adver tisem'ent) Act, 1954, was the prevention of self-medication and self-treatment by prohibiting instruments which may be nsed 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

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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 Dawakhana (Wakf) 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 UiJion °1 India 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.

Lal Kuan v.

Lewis]. Valentine v. F. ]. Chrcstensen, 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 0- Lewis Company, 60 Law. Ed. 679, Alice Lee Grosjean "./. The American Press Co., So Law. Ed. 660, Express Newspapers (P) Ltd. v. The Union of India, [1959] S.C.R. 12 and ]. 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. lf 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 suppmt the contention that the rest raint 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 advertise ment 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 Shotapur Spinning 0- 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.

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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 Dawakhana (Wakf) of the Act imposed an unreasonable restriction on the fundamen- ta! rights of the petitioners and was unconstitutional. This portion of s. 8 went far beyond the purpose for which the Act Union of India 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.

Lal Kuan v.

HamdariJ

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.

ORIGIN.AL JURISDICTION: Petition Nos. 81, 62, 63 &

3of1959 .

Petition under Art. 32 of the Constitution of India for

enforcement of ]'undamental rights.

K. M. 11funshi, N. 0. Chatterjee, L. R. Das Gupta, G. K. Munshi, D. N. MukherjeeandR. Gopalakrishnan,

. for the petitioners.

0. 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 0. 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 ques- tion. of law they may·conveni.ently be disposed of by one )Udgment.

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The allegation of the petitioners was that various actions had been taken against them by the respond- Dawak=:n:;Wakf) ents which violated their fundamental rights under Art. 19(l)(a) and 19(l)(f) & (g). They also challenged the Act because it contrvened the provisions of Art. 14

Lal Kuan v.

Upion of[ndia and Arts. 21 and 31.

Kapu_r ).

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 experienc in the matter of publicity for their ed difficulty products and various objections were raised by the authorities in regard to their advertisements. On December 4, 1958, the Drugs Controller, Delhi, intimat ed 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 advertise ments 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 discrimin ation under Art. 14, excessive delegation and infringe ment of the right of free speech under Art.19(l)(a) and their right to carry on trade a:nd business under

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Art. 19(l)(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- Daw:!:::,,a~7vakf) 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 Union of India proceedings and the notices issued by the various authorities-the respondents.

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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(l)(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 I say that the main object and people in general. 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-medic ation 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 manufacturers could be put to valid and proper test and consider- ation by expert agencies.'?

It was also pleaded that the advertisements were of an objectionable character and taking into consider ation the mode and method of advertising conducted by the petitioners the implementation of the provi sions of the impugned Act was justified. Along- with their counter-affidavit the respondents have placed on record Ext.-A, which is a copy o{ the literature which

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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 d Ayurvedic systems had been discriminated against; that self-medication had no deleterious effect on the health of the community ; on the contrary it-

e pe I 10ners re1 era e

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" 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 permis sion(?) limits even in America and Canada where unlicensed itinerant vendors serve the people effec tively."

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(l)(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 exe.cutive 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 peJitioners' Poona branch was raided with out 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 adver tisements in that case merely mentioned the names of the diseases and suggested the drug for the treatment

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of those diseases, that the prohibition of such adver- tisements was an unreasonable restriction on their fundamental right; that there was nothing indecent Daw:i.~:n:~Wakf) in saying that their medicine was a cure for a parti- cular disease and that the Act was an undue inter- ference with cure and treatment of diseases.

Lal Kuan v• Union of India

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We now proceed to consider the vitality of the arguments raised on behalf of the petitioners. Firstly it was submitted that the restriction on advertise- ments was a direct abridgement of the right of free speech and advertisements could not be brought out of the guaranteed freedom under Art. 19(l)(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 ex- amine 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(l)(a). He also contended that the prohibited advertise- ments did not fall within the connotation of " free- dom of speech". The doctrine of pith and substance, submitted Mr. Munshi; was created for the purpose of determining the legislative competence of a legis- lature 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 impugn ed 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 constitutio_nality of an enactment in reference to the legislative competence of a legislature particularly under a federal constitu tion with a distributive system of powers it has been used in other contexts in some cases, e.g., in connection

{l) [1957] S.C.R. 399, 406, 410.

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with the determination of the constitutionality of statutes restricting the rights to carry on certain Dawak:;;;,:;wakf)activities and the. consequ~nt infri?gement of Art. 19(l)(g) : byMahaJan, C.J., m CooverJee B. Boorucha v. The Excise Commissioner & The Chief Commissioner of Union of India Ajmer (')in the case of Excise Regulation I of 1915

Lal Kuan v.

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regulating the import, export, transport, manu facture, 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 (') 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. (l)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 legislature has really in order to decide what the 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 charac ter and nature of the legislation. "

Therefore, ·when the constitutionality of an enact ment is challenged on the ground of violation of any of the articles in Part III 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 In order to do so it is legiti have to be determined. mate to take into consideration all the factors such as history of the legislation, the purpose thereof, the

(1) [1954] s.c.R. Bn 877.

(2) [1957] S.C.R. 874.

(3) [•9541 s.c.R. 674, 682.

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surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure Dawak:::;,aa~Wakf) f!,nd the true reason for the remedy; Bengal Immunity Company Ltd. v. The State of Bihar (1 ); R._._M.D. Ohamar- baughwala v. The Union of India (2 & Ors. v. S. P. Saki (3).

) ; Mahant Moti Das Union °! India

z959 H a a

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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 represent- atives 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. Oharanjit Lal Ohowdhuri v. The Union of India & Ors.(4); The State of Bo;nbay v. F.N. Bulsara (5 ); Mahant Moti Das v. S. P. Saki (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 In August 1930, in response the sale of such drugs. 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 control ling 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.LR. (1959) S.C. 942, 948. (4) [1950] S.C.R. 869,

(~) [I9$rJ S.C,R. 6821 708,

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manufacture and sale of patent and propri~tary medi- cines in the interest of the safety of the public and ~:mda;~v k') public health. The report pointed out in paragraph aw~at':uan a • 256-259 how in other countries control was exercised and restrictive laws to achieve that end had been 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:

Union of India enacted.

Kapur J.

v.

(2) As a r!)sult 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 pharma ceuticals imported into the counpry.

(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 in vest ed 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

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involving moral

shyness to disclose details of one's illness especially turpitude, the peculiar those temperament of the people who, high and low, rich Dawak:;,aa~Wakf 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 Union of India or the high prices current for dispensed medicines, ha.ve all been enlarged upon as tending to self. diagnosis and self-medication by patent and pro- prietary medicines."

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(5) Evidence was led before the Chopra Committee deprecating the increasing sale of proprietary medi cines 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 practi~ioners 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 inaugurat ed by the Health Minister on March 12, 1953, was amongst other things to look into the control to be exercised over objectionable and unethical advertise ments.

(8) There were a large number of objectionable advertisements in the Press in regard to patent medi cines 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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(9) The Indian Medical Association had suggested. to this Press Committee which was presided over by Dawak::::.:;Wakf) the late Mr. Justice Rajadhyaksha the barring of advertisements of medicines which claim to cure or alleviate any of the following diseases :

Lal Kuan v. • Union of India

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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).

(ll) 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 vVhat 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 Com mittee 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 aris ing from intercourse was prohibited. In 1917 the Venereal Diseases Act (7 and 8 Geo. V Ch. 21) was restrictions on passed in England. This placed

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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- Daw:J:;,:a~~akf) ponds in material particulars to the impugned Act. It cannot be said that there was no material before Parlia- ment on the basis of which it proceeded to enact the Union of India impugned legislation. This material shows the history . of the legislation, the ascertained evil intended to be cured and the circumstances in which the enactment In Shri Ram Krishna Dalmia v. Shri was passed. Justice S. R. Tendolkar (1

), Das, C.J., observed:-

Lal Kuan v.

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"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 deter mining 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 relat ing 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 vie'w we proceed to examine ~

the provisions of the Act and ascertain the predomin ant 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.

(r) (1959] S.C.R. 279, 297,

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The title of the Act also shows that it is directed against objectionable advertisements. The definition Dawak~::;wakf)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 Union °! India 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, ka vacha and other charms and (d) relates to the publication of any aavertisement and (e) what a venereal disease is. ·Section 3 prohibits advertisement of drugs for treat ment of diseases and disorders. Clause (a) of s. 3 deals with procurement of miscarriage in women ror preven tion of conception; cl. (b) with maintenance or improve ment of capacity of human beings for sexual pleasure; cl. (c) with diagnosis and cure of venereal and other diseases. Section 4 prohibits misleading advertise ments relating to drugs. Section 5 similarly prohibits a,dvertiscments of magic remedies efficacious for pur poses 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 provi sions or what they are directed against and what they aim at (A. S. Krishna v. State of Madras (1 )). Thus

(1) [1957J s.c.R. 399, 406, 410.

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Hamdard

Kapur J.

t d . t

Lal Kuan v.

examined it cannot be said that the object of the Act was mer.ely to put a curb on advertisements which offend against decency or morality but the object truly 1 an proper y un ers oo IS o preven se -me ica ).On or treatment by prohibiting instruments which may be used to advocate the same or which tend to spread the Union of India evil. No doubt ins. 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 con- trol 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 advertise- ments 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 advertise- ments 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 advertise- ments 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

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686

SUPREME COURT REPORTS

[1960 (2)]

v.

z959

Kapur 1-

other wmds it must have relationship with decency or morality because the other restrictions of that clause D ~:mda;:V kf)have no application. If on the other hand the sub aw~az";;'uan a mission of the learned Solicitor-General is accepted then the matter would fall under sub-els. (f) and (g) Union of India 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 Vene real 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 ('). Similarly, in Kathi Raning v. The State of Saurashtra (2 ) and in Kavalap para Kottarathil Kochunni v. The State of Madras(') 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('). 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 the first and the 14th such ordinance violated 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.LR. (1959) S.C. 725. (4) 82 Law Ed. 949; 303 U.S. 444·

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687

distribution without the required permission of pamphlets and magazines in the n~ture of religious tracts. Chief Justice Hughes, said:-

x959

Hamdard Dawakhana (Wakf)

" The ordinance in its broad sweep prohibits the distribution of "circulars, handbooks, advertising or literature of any kind." It manifestly applies to Union of India pamphlets, magazines and periodicals."

Lal Kuan v.

Kapur J.

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 ques tion 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.

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[1960(2)]

I959

Lal Kuan v.

prohibiting the distribution in city streets of handbills bearing on one side a protest against action taken by Daw~::::~~akf) public ?fficials an~ on the other advertising m~t~er. The object of affixmg of the protest to the advert1smg circular was the evasion of the prohibition of a city Union of India ordinance forbidding the distribution in the city streets of commercial and business advertising matter. Mr. Justice Roberts, delivering the opinion of the court said:-

Kapur].

...

regulate

." This court has unequivocally held that the streets are pro per places for the exercise of the freedom of communicating information and dissemin the states and ating opinion and that, though the municipalities may appropriately 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 govern ment 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 advertise ment 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 propaga ting 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 mean ing of freedom of speech and would not fall within Art. 19(l)(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 medi cines 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 it was said that activities undertaken and case (1 )

(•l [1957J s.c.R. 930.

•

S.C.R.

SUPREME COURT REPORTS

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 carryingnawakhana(Wakf) on business or trade, so it cannot be said that an advertisement commending drugs and substances iseases is an exercise as appropriate cure 1or certam of the right of freedom of speech. Das, C.J., in State of Bombay v. R.M.D. Ohamarbaughwala's (1 ) case said at page 920:

Lal Kuan v. Union o/lndia

Kapur J.

Hamdard

· d"

r959

·

·

r

" 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 inform,ation 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 withip. 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(~), Mr. Justice McKenna, dealing with advertisements said:-

"Advertising is merely identification and descrip tion, 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 advertise ment dealing with trade and business has rela.tion

(I) (I957] S.C.R, 874;

~8

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SUPREME COURT REPORTS

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Hamdard

with the item "business or trade" and not with "freedom of speech". Thus advertisements sought to

Dawakhana (Wakf) be banned do not fall under Art. 19(l)(a).

Lal Kuan v. Union .of India

Kapur J.

f

d

f f

f h

· h t e rig t o

It was also contended that the prohibition against advertisements of the petitioners was a direct b d a ri gement o ree om o speech and Alice Lee Grosjean v. The American Press Co. (') 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 circula tion and it was there held that such a statute abridged the freedom of the press because its effect was not to merely to reduce revenue but it had tendency c'lrtail circulation. This subject was discussed in Express Newspapers' case(') at pages 128 to 133 where the question was whether the Wage Board Act speci fying the wages and conditions of service of the working journalists and thus imposing certain finan cial 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 con sequences 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 woul.d not neces sarily 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 con•titutionality 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('). In the present case therefore (1) the advertisements affocted by the Act do not fall wit bin the words freedom of speech within Art. 19(l)(a); (2) the scope and object of the Act its true nature and character is not interference with the right of freedom of speech

(I) So Law Ed. 660. (2) [1959] S.C.R. "· 123-133. (3) 75 Law Ed. 1~57, 1363-4.

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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 not Dawak~=n:~wakfl alter the character of the law; Ram Singh v. The State of Delhi(1); ExpressNewspapers(Private) Ltd. v. The Union of lndia(2).

Lal Kuan v. Union of India

x959

d d

H

Kapur].

It is not the form or incidental infringement that determines the constitutionality of a· statute in refer ence 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-treat- ment. This is the content of the Act. Viewed in this way, it does not select any of the elements or attri- butes 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 pro cedural part ins. 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. u, 123-133.

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SUPREME COURT REPORTS [1960(2)]

H

d d

'959

Lal Kuan v.

of the Act is to prevent objectionable and unethical advertisements in order to discourage self.medication Dawak~~n:~wakf) 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 Union °! India 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.

Kapur].

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 con notes a direct approach and its use in s. 3 does not support the contention that the restraint is dispropor tionate. 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 dis courage 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 dispropor tionate_ 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 si>mc but the circumstances and

...

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SUPREME COURT REPORTS

693

conditions in the two countries in regard to journals may be different and there are bound to be differences in the degree of restrictiveness in the operative portions Dawakhana (Wakf) 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 Union of India thought that it would not exclude advertisements in medical journals of the country would not be indic. ative of the disproportion of the restraint.

Lal Ku"" v.

Kap';'v J.

HamdaYll,

z959

Objection was then taken to the procedural part in s. 8 and it was submitted that the power of search, seizure and detention was unfettered and very wide and there is no proper procedure laid down as in the Criminal Procedure Code or the Drugs Act and there ' are no rules and safeguards in regard to search warrants or entry into premises as there are in the 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 instruc tions 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 under standably 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 trea tment, as it appear& 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 tliat 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

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SUPREME COURT REPORTS [1960(2)]

I959

Dawakha••(Wakf)/

Hamdard

shown that the restrictions are outside the permissible limits. r.

· d a erJee m ea mg wit

rew our attention to the test of reasonablenses as laid down in Ghintaman Rao v. The State of Madhya Pradesh (1 ) Union of India where it was said by Mahajan, J. (as he then was) at

Lal Kuan v.

M Ch tt

1s pomt

· h th"

d

l"

·

·

Kapur j.

pages 762 and 763 :-

"The question for decision is whether the statute under the guise of protecting public interests arbitra rily interferes with private business and imposes unreasonable and unnecessarily restrictive regul ations upon lawful occupation; in other words, whether the total prohibition of carrying . on the business of manufacture of bidis within the agri cultural 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 preeent case that under the guise of protecting public interest the Act arbit rarily 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 unreason able restrictions arises. Mr. Chatterjee also relied upon the observation of Bose,J.,in DwarkaDas Srini vas of Bombay v. The Sholapur Spinning & Weaving Company Limited(') 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. 759·

(2) [1954] S.C.R. 67~. 733·

SUPREME COURT REPORTS S.C.R. 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 certainnawak~:n:~wakf) 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 excessive Union °1 Indi~ or disproportionate or are not in the interest of the general public.

Lal Kuan v.

Kapur].

I959

d d

H

The third point raised by Mr. Munshi was that the · 1

words ' or any other disease or condition which may be 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 the executiv~ to add to diseases in the schedule. The learned Solicitor-General in reply supported the schedule 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 the latter it was within the limits recognised ,by judicial decisions. The distinction between conditional legis lation and delegated legislation is this that in the former the delegate's power is that of determining when a l<1giHlative declared rule of conduct shall become effective; Hampton & Go. v. U.S. (1) and the latter 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 legis lation by supplying details within the limits prescrib ed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carry ing its legislation · into effect as also the determin ation of the area to which it is to extend; (The Queen ); Russell v. The Queen (3 ); King-Emperor v. v. Burak (2

(r) 276 U.S. 394.

(2) (1878) 3 App. Cas. 889.

(3) (1882) 7 App. Cas. 829, 83~.

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[1960(2)]

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·1

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h d

d b

Hamdard Dawakhana (Wakf). Lal Kuan v.

Benoarilal Sarma ('); 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 f m t e eta1 s to carry ou a;i su . serve e pu:poses o the legislation the manner m wh10h the reqmrements Union of India 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:

Kapur J.

th

"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 legislation must depend which wise and useful which cannot be known to the law making power, and must therefore be subject of enquiry and determination outside the hall of legislature." (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

(I) (1944) L.R. 72 I.A. 57,

(2) [1957] S.C.R. 604.

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SUPREME COURT REPORTS

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H

x959

d d

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 Dawak:;,:~wakf) 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 Union °! India 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 ~aw should become operative or to what its operation should be extended, or the parti- cular class of persons ·or goods to which it should be applied: Baxter's case (1) at pp. 637 & 638.

Lal Kuan v.

Kapur].

Broadly speaking these are

the distinguishing features of the two forms of delegation and these are their characteristics. The question in which compartment does the power given in the Act fall. ·

is

•

The power given to the authority under that provi- sion (S. 3) of the Act is contained in cl. (d) in the following words :-

S. 3 "Subject to the provisions of this Act, no per son 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 ins. 16 which is as follows :-

S. 16 (1) "The Central Government may by notific. ation in the official gazette make rules for carrying out the purposes of this Act. (2) In particular and without prejudice the generality of the foregoing power, such rules may ( a) specify any disease or condition to which the provisions of s. 3 shall apply; (r) 8 Com. L.R. 626, 634, 637, 6J8.

to

89

, i •

.,.

--

/

I

..

'....-

698

SUPREME COURT REPORTS

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[1960(2)]

I959

Hamdard Dawakhana ( Wakf) Lal !(~an v. Union of India

(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 condi tions and diseases in the rules.

Kapur j.

•

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 s. 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 ~·.visions of s. 3 shall apply. It is the first sub-sec tion 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 autho rity aq it exercises powers under sub-q. (1) and m:tk 0 s othAr rules and therefore it is delegated legislation. The question for decision then -is, is the delegation constitutional in that the adminis trative authority has been supplied with propPr guid ance. In. our view the wol'ds impuguPd are vague. Parliament has established no criteria, no standards and has not prescribed any principle on which a parti cular disease or condition is to be specified in the Schedule. It is nots -•t.ed what facts or circumstances are to be taken into consideration to include a parti cular condition or disease. Tne powPr of specifying diseases and conditions as given in s. 3(d) must there fore be held to be going beyond permissible boundaries

it does

\vhen

(1) (1945) L.R. 72 I.A. 241.

'•

I

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S.C.R.

SUPREME COURT REPORTS

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 Dawak::,.:~wakf) fall within the four clauses of s. 3 excluding the portion of cl. (d) which has been declared to be unconsti- · tutional. to consider the applicability of Baxter v. Ah Way (1

In the view we have taken it is unnecessary Union °! India

z959 H a a

Lal Kuan v.

).

• Kapur].

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 ult,ra vires. But their being taken out of cl. (d) of s. 3 does not affect the constitutionality of the rest.ofthe clause or section as they are severable; R. M. D. Ohamarbaughwala v. The Union of India {2). The constitutionality of s. 8 of the Act was challeng ed 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 Govern- ment 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 provi- · sions of this Act and the court trying such contra vention may direct that such document,(including all copies thereof) article or thing shall be forfeited to the Government".

It was pointed out by Mr. Munshi that , there was no limitation placed on, no rules and regulations made for and no safeguards provided in regard to the powers of a person authorised in that behalf by Government to seize and detain any document, article or anything which in the opinion of such person contains any advertisement contravening any of the provisions of the Act. It was also submitted that in the corresponding English Act of 1939, in s. 10 there are proper safeguards provided in regard to the exer cise 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

(x) 8 Com. L.R. 626, 634, 637, 638.

(2) (1957] S.C.R. 930,

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700

· SUPREME COURT REPORTS

[1960(2)]

H

d d

'959

Kapur].

Lal K"an v. Union of India

be, he contended, that having regard to the purpose and object of the Act the Indian legislature did not Dawak:;,:~Wakf) think it necessary to provide any safeguards and that the legislature thought that nobody would be pre- judiced 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 s. 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. Ghamarbaughwala v. The Union of India('). As a result of s. 8 being declared in valid, 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 peti tioners' challenge to the constituti?nality of the Act is partially successful the proper order as to costs is that the parties do pay their own costs.

P etitiona partly allowed.

(1) (1957] S.C.R. 930.

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