This article has been written by Ms. Nainci rani studying B. A. LL. B. (H.) from teerthanker mahaveer college of law and legal studies, moradabad. The author is a 3rd year law student.
Introduction
Article 19 (1) (g) of Constitution of india provides right to practice any profession or to carry on any occupation, trade or business to all citizens subject to article 19 (6) which enumerates the nature of restrictions that can be imposed by the state upon the above right to the citizens. Sub clause (g) of article 19 (1) confers a general and vast right available to all persons to do any particular type of business of their choice. But this does not confer the right to do anything consider illegal in eyes of law or to hold a particular job or to occupy a particular past of the choice of any particular person. Further article 19 (1) (g) does not mean that conditions be created by the state or any statutory body to make any trade lucrative or to procure customers to the business/businessman. under article 19 (6) (ii) nothing contained in sub -clause (g) of clause (1) of article 19 shall affect carrying on by the state any trade, business, industry or service, whether to the exclusion, complete or partial of citizens or otherwise if it is not in the interest of general public. Article 19 (6) (ii) will have no application if the state is not carrying on any trade.
- Freedom to practice any profession, occupation, trade or business :
In P. A inamdar v. State of Maharashtra, it has been held that the right to establish an educational institution, for charity or for profit, being an occupation is guaranteed under the Constitution to all citizens under article 19(1) (g) and to minorities under article 30. ‘Education’ even though is an occupation but it cannot be equated with trade of business. In short, education is national wealth essential for the nation’s progress and prosperity. Notwithstanding the fact that the right of a minority to establish and administer an educational institution world be protected by article 19 (1) (g) yet the founding fathers of the Constitution felt the need of enacting article 30. The reason is obvious. Article 30 is intended to instil confidence in minorities against any encroachment by the executive or legislature. Article 19 (1) (g) is subject to reasonable restrictions under clause (6) of article 19. Article 30 has been therefore enacted to give them additional protection.
- 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 and individual cannot be claimed under this article and has to be subjected under different civil laws or tort law.
- Doctrine of res extra commercium :
The court in khoday distillerles v. State of karnataka introduced the concept 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 state to govern private rights of citizens in public interest. Following this, the court observed that a citizens has no fundamental rights 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 obligation with the civil rights of the stakeholders.
- Grounds of restrictions :
Under clause (6) of article 19,the state is authorised to impose reasonable restrictions on the right to carry on a trade, profession or business. The condition is that the restrictions must be –
- Reasonable, and
- In the interest of general public.
The right to carry on business, being a fundamental right, it’s exercise is subject only to the restrictions imposed by law in the interest of the general public under article 19(6) .
It determining the reasonableness of the restrictions imposed by law under article 19(6) , the court cannot proceed on a general notion of what is reasonable in the abstract or even on consideration of what is reasonable from the point of view of the perons or whom the restrictions are imposed. The expression ‘in the interest oglf general public’ in article 19(6) is of wide import comprehending public order, public health, public security, morals, economic welfare of the community and the objects mentioned in part IV of the Constitution. Nobody can dispute a law providing for basic amenities for the dignity of human labour as a social welfare measure. The tests of reasonableness have to be viewed in the context of the issues which faced the legislature. In judging their validity the court must approach the problem from the point of view of furthering the social interest which it is the purpose of the legislation to promote.
In nagar rice and flour mills v. N. T. G. And bros., the government issued an order under section 8(3)( c) of the rice milling industry (regulation) act, 1958, sanctioning the change in the location of the rice mill from its original site to the new site. The respondent challenged the order on the ground that appellate’s mill was moved to a place in the vicinity of their rice mill and in consequences of the removal of the appellate’s mills their business was likely to be adversely affected and this amounted to unreasonable restriction on his right to carry on business. The court held that the order valid. The owners of the rice mill shifted its existing location and obtained the necessary permission for the change of location from the director of food and civil supplies. Even is, it be assumed that the previous sanction has to be obtained from the authorities before the machinery is moved from existing site the competitor in business (owner of another rice mill) can have no grievance against the grant of permission permitting the installation on a new site.
- Conclusion :
Unlimited powers may lead to arbitary 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 article 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. He should make use of this right in a rational manner so that the state is not compelled to exercises force and also intervene with his business activities. He should carry out the required functions of his employment, or his own profession in an ethical and reasonable way, which will not only assist him in earning financial gains but also in turn make him knowledgeable and powerful enough to face the societal issues. For having been provided of this right by the Constitution, every citizens has an obligation to abide by certain etiquetts and proceed following a code of conduct so that the peace and harmony of the society is not hampered.
- Reference :
- Dr. J. N. Pandey
- Fundamental rights and their enforcement
- https://www.defactolaw.in/post/freedom-of-profession-occupation-trade-article-19-1-g
- https://www.legalservicesindia.com/article/2272/Freedom-of-Business,-Trade-and-Profession.html
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