Freedom of Profession, Occupation, Trade or Business.



Article 19(1) of the Constitution, guarantees certain fundamental rights, subject to the power of the State to impose restrictions on the exercise of those rights. Article 19 (1) (g) provides all the citizens of the country the right to practice any profession, or to carry on any occupation, trade or business.


However, this right is subject to certain restrictions as laid down under Article 19(6) (2). In simpler terms, it does not involve the right to carry on any business, trade, occupation, or profession which is unlawful or to hold a particular job or to occupy a particular post of the choice of any particular person. A citizen whose occupation of a place is unlawful cannot claim the fundamental right to carry on business in such place since the fundamental rights cannot be availed in the justification of an unlawful act or in preventing a statutory authority from lawfully discharging its statutory functions.


Rights under Article 19 (1) (g): Whether available to a citizen only?


The right to do business under Article 19 (1) (g) is available only to the Citizens of India. For the purpose of this Section, citizens include:

  • A Company incorporated under the Companies Act

  • A religious sect

  • A deity or any juristic person


Rights against the State and not an individual:

The Court in various stances has upheld that the fundamental rights given to the citizens of India under Article 19 (1) (g) are available against any state or state body. Any claim for violation of any such rights against an individual cannot be claimed under this article and has to be subjected under different civil laws or tort law.


Restriction under Article 19 (1) (g)

The rights provided under Article 19 (1) (g) are not absolute and are subject to certain restrictions. The restrictions as per Article 19 (6) can be summarized as under:

  • Restrictions in the interest of the general public: The State is empowered under the Article to impose such restrictions which may affect the interest of the public. This is subjected to further interpretations by the Court.

  • Prescribe any professional or technical qualifications: A law relating to professional or technical qualifications is necessary for practicing a profession. A law laying down professional qualification will be protected under Article 19(6). For instance, the lawyer needs to get an educational degree as well as pass the Bar Council Exam in order to practice in court. However, this restriction also needs to pass the test of reasonableness and objective test.

  • State Monopoly: Article 19(6) (ii) was added by the First constitutional amendment, 1951. Article 19 (6) (ii) enables the state to make laws for creating state monopolies either partially or completely in respect of any trade or business or industry or service by excluding the private citizen- wholly or in part. The state may enter into any trade like any either for administrative reasons, or with the object of mitigating the evils in the trade, or even for the purpose of making profits in order to enrich the exchequer.

Article 19 (1) (g) and Environmental Concerns

Environment threat is also one of the factors under which rights to business provided under Article 19 (1) (g) can be regulated. However, the attitude of courts is always of balancing environmental interest with the fundamental right to carry on any occupation, trade, or business. Most of the industrial sectors like tanneries, acid factories, tie, and dye factories, distilleries are the cause of environmental pollution.

Therefore, any trade, occupation, or business which adversely affects the environment or human beings cannot be permitted to be carried on in the name of fundamental rights. In the case of M.C. Mehta v. Kamal Nath, the Supreme Court held that any interruption of the basic environmental elements such as, air, water, and soil, which are necessary for “life” would be hazardous to life and such regulations will be protected under Article 19(1) (g).


Whether Carrying on Liquor Trade is a Fundamental Right?

The right to engage in any profession, trade, or business under Article 19(1) (g) cannot go against the public interest. The Supreme Court in some cases has recognized this stance and clarified that no one has the inherent right to sell intoxicating liquors in retail sales. A citizen has no such privilege. As it is a business that is dangerous to the community, the state may entirely prohibit it or permit it under conditions. The manner and extent of regulation rest within the discretion of the State.


Doctrine of Res Extra Commercium

The Court in Khoday Distilleries v State of Karnataka introduced the concept of Res Extra Commercium. The doctrine allows the State to keep the standard of morality static and infringe the civil rights of the citizens, without having to satisfy the test of reasonableness at all. It allowed the States to govern private rights of citizens in public interest. Following this, the Court observed that a citizen has no Fundamental Right to trade or business in intoxicating liquors and that trade or business in such liquors can be completely prohibited. Because of its pernicious and vicious nature, dealing in intoxicating liquors is considered to be outside the scope of rights. However, there is an imperative need for the State to balance its welfare obligations with the civil rights of the stakeholders.

Judicial Interpretation of Rights provided under Article 19 (1) (g)

  • Office of MLA cannot be termed as an occupation under art. 19(1) (g): The Court in the case of Alagaapuram R. Mohanraj v Tamil Nadu Legislative Assembly held that The right to contest an election to the legislative bodies established by the Constitution is held not to be a fundamental right. Therefore, logically it would be difficult to accept the submission that the right to participate in the proceedings of the legislative bodies can be a fundamental right falling under Article 19(1)(g).

  • Street Hawking under Article 19(1) (g): The Court in Sodan Singh v NDMC held that the right to carry on a trade or business mentioned in Article 19(1)(g) of the Constitution, on street pavements if properly regulated, cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and for no other use. Allowing the right to trade without appropriate control is likely to lead to unhealthy competition and quarrels between traders and traveling public and sometimes amongst the traders themselves resulting in chaos.

  • Cow Slaughter Ban as a restriction: On examining the restriction imposed on the slaughtering of cow, challenged by the petitioner to be against the freedom provided under Article 19(1) (g) in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab, the Court by upholding such restriction held that a total prohibition must also satisfy the test that a lesser alternative would be inadequate and it must be in the interest of the general public.

  • Taxation not restriction: The fundamental right of citizens to practice any profession or carry on trade or business is not wholly free from the taxing power of the state. No citizen has the right to carry on his trade without paying taxes lawfully levied by the government as stated in Kailash Nath v. State of U.P.

Reconciling Article 301 with Article 19(1) (g)

Article 301 aims at preventing restrictions on the amount of trade flowing within the states and territory of India. Article 19(1) (g) is a fundamental right and can only be evoked by citizens of India. While Article 301 is an explanatory provision to Article 19(1) (g) and also Article 301 is very limited because it can be invoked only when the free flow of trade, commerce, and intercourse is hampered through any direct impediment from the state. The main objective behind this constitutional right is to establish economic unity and equality in all parts of India. The restrictions laid down should have indirect consequences and they should not directly curtail the freedom laid down in Article 19(1) (g).


Conclusion

Unlimited powers may lead to arbitrary actions. The same is the case with the rights provided under Article 19 of the Constitution. It must be regulated within reasonable restrictions. The Constitution has granted this fundamental right under Art 19(1) (g), for the prosperity and well-being of everyone in the society. The law does not approve nor tolerate any sort of trade, or occupation, or business that it feels will lead to the destruction of property and life. It will not permit the conducting of any activities which damage the health and safety of society.


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