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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

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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 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.

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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 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.

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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.

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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 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.

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682

(9) The Indian Medical Association had suggested to this

Press Committee which was presided over by

the late Mr. Justice Rajadhyaksha the barring of

advertisements of medicines which claim to cure or alleviate

any of the following diseases:

Cancer, Bright's disease, Cataract, Diabetes, Epilepsy,

Glaucoma, Locomotor ataxia, Paralysis, Tuberculosis.

(10) In the United Kingdom, advertisements of drugs or

treatment for these diseases are governed by the Cancer Act

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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 ule 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.

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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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 20

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