Hamdard Dawakhana And Anr., Kalipada... vs The Union Of India (Uoi) And Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Writ Petition No. 81 of 1959

Decision Date: 18 December 1959

Coram: B.P. Sinha, J.L. Kapur, K.C. Das Gupta, K.N. Wanchoo, S.J. Imam

The matter before the Supreme Court was titled Hamdard Dawakhana and Another versus the Union of India, and it was decided on 18 December 1959. The bench hearing the case comprised Justice B. P. Sinha, Justice J. L. Kapur, Justice K. C. Das Gupta, Justice K. N. Wanchoo and Justice S. J. Imam, and the judgment was delivered by Justice Kapur. The petitioners filed two writ petitions under article 32 of the Constitution, seeking a declaration that the Drug and Magic Remedies (Objectionable Advertisement) Act of 1954, hereinafter referred to as “the Act,” was unconstitutional. Because both petitions raised the same question of law, the Court agreed that they could be disposed of in a single judgment.

The petitioners alleged that the respondents had taken various actions against them that infringed upon their fundamental rights. Specifically, they claimed violations of the freedoms guaranteed by article 19(1)(a) relating to free speech, and articles 19(1)(f) and 19(1)(g) relating to the right to practice any profession, carry on any trade or business, and to acquire, hold, and dispose of property. In addition, the petitioners contended that the Act was inconsistent with the equality clause in article 14 and with the rights to life and personal liberty under article 21 and the right to acquire and hold property under article 31.

The Act had been passed by Parliament on 30 April 1954 and came into force on 1 April 1955 together with the rules made thereunder. Its preamble described the purpose of the legislation as “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, identified as Hamdard Dawakhana (Wakf) and another entity in Writ Petition No. 81 of 1959, asserted that shortly after the Act became operative they encountered difficulties in publicising their products. They reported that various authorities had raised objections to their advertisements.

On 4 December 1958, the Drugs Controller of Delhi issued a notice to the petitioners stating that they had contravened section 3 of the Act and demanded that they recall products that had been dispatched to Bombay and other states. This notice prompted a series of correspondences between the petitioners and the regulatory authorities. On the same day, the Delhi Drugs Controller ordered the cessation of sales of forty of the petitioners’ products listed in the petition. Subsequent to that order, the Drugs Controllers of Delhi and other states raised further objections to advertisements concerning additional medicines prepared by the petitioners.

The petitioners argued that the advertisements in question were prepared in accordance with the Unani system of medicine and that the nomenclature used for the drugs had been recognised worldwide for several centuries. They maintained that the Act discriminated against them in violation of article 14, delegated excessive authority to the regulators, and infringed upon their freedom of speech under article 19(1)(a) as well as their right to carry on trade and business under articles 19(1)(f) and 19(1)(g). They also raised objections on the grounds of articles 21 and 31. Consequently, the petitioners prayed for a declaration that the Act and the rules made thereunder were ultra vires, void, and violative of Part III of the Constitution, and they sought the issuance of appropriate writs.

The petitioners prayed that the Court issue a writ of mandamus and a writ of prohibition and that it set aside the proceedings and the notices that had been issued by the various authorities who were respondents in the matter. In the counter‑affidavit filed by the respondents, it was submitted that the manner in which the petitioners and other parties advertised their drugs clearly demonstrated the necessity for having a statute such as the impugned Act and for enforcing it strictly. The respondents denied each of the allegations advanced by the petitioners that the Act discriminated against them or impaired the fundamental rights guaranteed under article 19 (1) (a), (f) and (g), and they also rejected the claim that the Act infringed the rights protected by articles 21 and 31. They explained that the restriction contemplated by the Act concerned advertisements directed to the general public. According to the respondents, the principal purpose of the legislation was to prevent people from self‑medicating for a range of serious diseases enumerated in the Act and its Rules. They argued that self‑medication with respect to such serious ailments has a deleterious effect on the health of the community and is likely to endanger the well‑being of the people. Having observed that certain medicines tend to encourage self‑medication because of exaggerated or “puffed‑up” advertisements, the respondents said it was necessary, in the interest of public health, to put a complete stop to such promotional excesses and to compel manufacturers to route their products through recognised channels so that expert agencies could subject the products to valid and proper testing and evaluation. The respondents further pleaded that the advertisements in question were of an objectionable character and, given the mode and method of advertising employed by the petitioners, the implementation of the provisions of the impugned Act was justified. In support of their position, the respondents placed on record an exhibit identified as Ext‑A, which was a copy of the literature that accompanied one of the medicines put on sale by the petitioners and which was also printed on the cartons containing the medicine. In their affidavit in rejoinder, the petitioners reiterated the contention that the Unani and Ayurvedic systems of medicine had been discriminated against and asserted that self‑medication did not have a harmful effect on community health; on the contrary, they claimed it could be beneficial in the context of effective household and domestic remedies based on locally known herbs in rural areas. The petitioners further suggested that even in jurisdictions such as the United States and Canada, self‑medication is permitted within certain limits, where unlicensed itinerant vendors serve the public effectively. For the petitioner, counsel Mr Munshi articulated four principal points. First, he argued that advertisement is a vehicle for exercising the freedom of speech guaranteed under article 19 (1) (a) and that the restrictions imposed by the Act are not covered by clause (2) of article 19. Second, he maintained that the Act, the Rules made thereunder and the Schedule in the Rules impose arbitrary and excessive restrictions on the rights guaranteed to the petitioners by article 19 (1) (f) and (g). Third, he contended that section 3 of the Act confers unguided and unchecked power on the executive to add to the list of diseases enumerated in the statute.

It was argued that the power of confiscation conferred by section 8 of the Act violated the rights guaranteed under Articles 21 and 31 of the Constitution, and that this constituted an unlawful infringement of personal liberty and property rights. In the matters identified as Petitions Nos 62 and 63 of 1939, which concerned two separate branches of Sadhana Ausadhalaya located in Poona and Allahabad, counsel for the petitioners presented the specific facts of each case. They highlighted that the Poona branch had been entered and searched without a valid warrant, resulting in the seizure of a substantial quantity of medicines and the filing of a criminal complaint against the petitioners. The petitioners contended that section 3(b) of the Act was intended to suppress abnormal sexual practices, and that the advertisements in question merely named the diseases and suggested the relevant drug for treating those conditions. They maintained that prohibiting such advertisements imposed an unreasonable restriction on their fundamental rights, that no indecency was involved in stating that their medicine cured a particular ailment, and that the Act unduly interfered with the legitimate cure and treatment of disease. The Court then turned to examine the strength of the arguments raised on behalf of the petitioners. The petitioners first submitted that the restriction on advertising constituted a direct abridgment of the freedom of speech protected by Article 19(1)(a), arguing that no clear dividing line could be drawn between permissible speech and commercial advertisement, and that speech could not be curtailed by subjecting it to another activity. In response, the learned Solicitor‑General argued that the proper approach required an analysis of the pith and substance of the impugned legislation, and that such an analysis would show that the Act did not in any manner curtail, abridge, or impair the rights guaranteed under Article 19(1)(a). He further maintained that the prohibited advertisements did not fall within the meaning of “freedom of speech.” Counsel for the petitioners, citing the doctrine of pith and substance, explained that this legal principle was developed to determine the legislative competence of a legislature to enact a law. He sought support from the observation of Justice Venkatarama Aiyar in A. S. Krishna v. State of Madras, which stated that the Privy Council, when reviewing the constitutionality of laws made by Dominion and Provincial legislatures, evolved the doctrine that the intra‑vires nature of legislation should be judged by its pith and substance. Although originally formulated to address questions of legislative competence under a federal constitutional scheme, the doctrine of pith and substance has been applied in other contexts, including cases concerning the constitutionality of statutes that restrict the right to carry on certain activities and potentially infringe Article 19(1)(g), as noted in decisions of Mahajan, C.J., and others.

In this case, the Court observed that the doctrine of “pith and substance” has been applied in several earlier decisions to determine the true character of legislation. For example, the Court cited Cooverjee B. Bharucha v. The Excise Commissioner & The Chief Commissioner of Ajmer, reported in [1954] S.C.R. 873 at page 877, where the Excise Regulation I of 1915 was examined for its regulation of the import, export, transport, manufacture, sale and possession of intoxicating drugs and liquor and the imposition of duties thereon. The Court also referred to the judgment of Das, C.J., in State of Bombay v. R. M. D. Chamarbughwala, reported in [1957] S.C.R. 874, in which a statute was held not to interfere with trade, commerce or intercourse as such but to protect them from anti‑social activities. The Court then stated that it was unnecessary to decide in the present matter whether the doctrine necessarily extends to the determination of the constitutionality of an enactment with reference to the various sub‑clauses of clause (1) of Article 19. Instead, the Court found a more appropriate approach in the dictum of Mahajan,, delivered in M/s Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh, reported in [1954] S.C.R. 674 at page 682. In that passage, Mahajan, J. explained that to decide whether a particular legislative measure contravenes any provision of Part III of the Constitution, it is necessary to examine with some strictness the substance of the legislation in order to determine what the legislature really did. He emphasized that a legislature cannot bypass such constitutional prohibition by employing indirect methods, and therefore the Court must look behind the form and appearance to discover the true character and nature of the legislation. Accordingly, the Court held that when the constitutionality of an enactment is challenged on the ground of violation of any article in Part III of the Constitution, it becomes essential to ascertain the true nature and character of the enactment—that is, its subject‑matter, the field in which it is intended to operate, its purport and its intent. To achieve this ascertainment, the Court may legitimately consider a range of factors, including the history of the legislation, the purpose for which it was enacted, the surrounding circumstances and conditions, the mischief it was intended to suppress, the remedy the legislature sought for the disease it identified, and the true reason underlying that remedy. The Court cited several authorities that adopted this approach, such as Bengal Immunity Company Ltd. v. The State of Bihar, reported in [1955] 2 S.C.R. 606 at pages 632 and 633; R. M. D. Chamarbaughwala v. The Union of India, reported in [1957] S.C.R. 930 at page 935; and Mahant Moti Das & Ors. v. S. P. Sahi. The Court further declared another guiding principle: it must be assumed that the legislature understands and appreciates the needs of the people, and that the laws it enacts are directed at problems that have become manifest through experience. Elected representatives, the Court said, pass laws they consider reasonable for the purposes for which they are enacted, and consequently a presumption in favour of the constitutionality of an enactment arises. To illustrate this presumption, the Court referred to Charanjit Lal Chowdhuri v. The Union of India & Ors., reported in [1950] S.C.R. 869, and to The State of Bombay v. F. N. Bulsara, reported in [1951] S.C.R. at page 682.

The Court noted the authorities cited at pages 682 and 708 and the decision in Mahant Moti Das v. S. P. Sahi, and then turned to the historical background of the legislation that was being challenged. It explained that in 1927 the Council of State adopted a resolution urging the Central and Provincial Governments to take immediate measures to control the indiscriminate use of medical drugs and to standardise their preparation and sale. In response to public opinion on the matter, the Government of India, in August 1930, appointed a Drugs Enquiry Committee chaired by Sir R. N. Chopra to investigate 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 public interest. The Committee’s report highlighted the necessity of exercising control over the import, manufacture and sale of patent and proprietary medicines for the safety of the public and public health. In paragraphs 256‑259 of that report it described how other countries exercised control through restrictive laws, and the appendix listed numerous advertisements of patent and proprietary medicines claiming to cure a wide range of diseases. As a direct result of the Chopra Committee report, Parliament enacted the Drugs Act in 1940. Subsequently, in 1948, the Pharmacy Act was passed to regulate the provisions relating to pharmacy. Together these two statutes assigned to the State Governments the responsibility for controlling the manufacture and sale of drugs and pharmaceuticals through qualified personnel, while the Central Government was given authority over the quality of drugs and pharmaceuticals imported into the country. The Chopra Committee also commented on the popularity of patent and proprietary medicines, observing that they were promoted by ingenious propaganda, clever and attractive dissemination of their supposed virtues, and wide‑reaching advertisements. It noted that the credulity and gullibility of the masses, especially when “certain cures” were assured in hopeless cases, could be imagined, and that such advertisements produced a strong effect on patients who had tried medical treatment without success, leading them to resort to any drug that came their way. The Committee further observed that occasional spontaneous cures were heavily publicised, giving these preparations a reputation for miraculous virtues, and that the reassurances of cure, forceful arguments, and certificates of purportedly cured persons all left a deep impression, particularly on those with weak nerves.

The Court noted that the tendency of people from all walks of life, whether rich or poor, to seek “something in a bottle” for every illness, together with the inability of those who cannot afford doctors’ fees or the high cost of medicines, had been described as encouraging self‑diagnosis and self‑medication through patent and proprietary drugs. Evidence was presented before the Chopra Committee, which condemned the growing sale of proprietary medicines, especially those with secret formulas, as harmful and a serious, increasing menace. The Committee observed that advertisements and pamphlets associated with these medicines displayed fraudulent practices and exaggerated claims. Accordingly, the Chopra Committee Report recommended the imposition of strict controls over proprietary medicines.

The Court further explained that the Bhatia Committee was constituted following resolution No CI‑1(12)/52 dated 14 February 1953. Between March and the end of that year, the Committee examined many witnesses in various Indian towns, including chemists, druggists, leading medical practitioners, and State Ministers for Health. The Committee issued a questionnaire to a range of organisations and individuals, which included queries concerning drug advertisements. One of the Committee’s objectives, inaugurated by the Health Minister on 12 March 1953, was to examine the control that should be exercised over objectionable and unethical advertisements. The Court observed that, after the Act came into force, the Press Commission Report identified a large number of objectionable advertisements concerning patent medicines in the press. However, the Court held that Parliament could not claim ignorance of this fact, because the Committee had also examined many witnesses on the matter.

The Court recorded that the Indian Medical Association, through the Press Committee chaired by the late Mr Justice Rajadhyaksha, had suggested prohibiting advertisements that claimed to cure or alleviate specific diseases, namely cancer, Bright’s disease, cataract, diabetes, epilepsy, glaucoma, locomotor ataxia, paralysis, and tuberculosis. The Court cited that, in the United Kingdom, advertisements for drugs or treatments of these diseases are regulated by the Cancer Act of 1939 and the Pharmacy and Medicines Act of 1941, while advertisements concerning general diseases are governed by the Venereal Diseases Act of 1917. The Court also referred to Wyndham E. B. Lloyd’s 1936 book “Hundred Years of Medicine,” which highlighted the serious evils arising from secret remedies and nostrums, and noted the British Medical Association’s critique of such products in its publication “Secret Remedies – What They Cost and Contain.” Furthermore, the Council on Pharmacy and Chemistry of the American Medical Association had expressed its opinion on the harmful effects of these secret remedies.

In this case the Court observed that the public often engaged in indiscriminate self‑medication and that such behaviour created a grave danger because the treatment was misdirected, inadequate and often delayed until the disease had become serious. The Court noted that it was unnecessary to refer to the recommendations of the Bhatia Committee or the Press Enquiry Committee, since those reports had been issued only in June and July 1954 respectively and were therefore not relevant to the legislative history under consideration. The Court then turned to the English experience, recalling that as early as 1889 Parliament had passed the Indecent Advertisements Act (52 and 53 Vict. Ch. 18) which prohibited advertisements relating to syphilis, gonorrhoea, nervous debility or other complaints arising from sexual intercourse. Later, in 1917, the General Diseases Act (7 and 8 Geo. V Ch. 21) placed further restrictions on advertisements concerning the treatment of venereal diseases. Subsequently, the Pharmacy and Medicine Act of 1941 (4 and 5 Geo. VI Ch. 42) was enacted, and its substantive provisions correspond closely to those of the impugned legislation. The Court therefore concluded that Parliament was not acting without material background; the legislative history revealed a clear recognition of an existing evil, namely the danger of self‑medication, and the circumstances that prompted the enactment of the law. Citing the decision in Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, the Court stated that to preserve the presumption of constitutionality a court may consider matters of common knowledge, the historical context and any conceivable factual situation that existed at the time the statute was passed. Accordingly, the Court held that the existence of the problem of self‑medication, which had been pointed out by the medical profession both in India and abroad, provided a factual backdrop that justified the legislation. Medical experts and authorities had repeatedly warned the public and the Government about the perils of unregulated self‑medication and about unethical advertisements for proprietary medicines that claimed to cure diseases that were especially susceptible to such abuse. The Court therefore assumed that the factual conditions which motivated the enactment were present at the time the law was framed and needed not be restated in detail. With this backdrop the Court proceeded to examine the provisions of the Act to discern its dominant purpose, true intent, scope and object. The preamble, the Court noted, expressly indicates that the Act was intended to control advertisements of drugs in certain disease contexts, to prohibit advertisements that suggested magical or miracle cures, and to provide for related matters. The title of the Act further confirms that its focus is on objectionable advertisements. The definition section, particularly clause (2), delineates the terms that are essential for interpreting the statute.

Section 2 of the Act provided several definitions. Clause (a) defined the term “advertisements.” Clause (b) described “drugs” to include four categories: (i) medicines intended for use by humans or animals; (ii) substances used for diagnosis, treatment or prevention of diseases in humans or animals; (iii) articles other than food that affect the organic functions of the bodies of humans or animals; and (iv) articles intended to be components of any medicine. Clause (c) defined “magic remedies” to cover items such as talismans, mantras, kavacha and other charms. Clause (d) related to the publication of any advertisement, and clause (e) gave a definition of “venereal disease.” Section 3 prohibited the advertisement of drugs for the treatment of diseases and disorders, and it was divided into three sub‑clauses: sub‑clause (a) dealt with advertisements concerning procurement of miscarriage in women or prevention of conception; sub‑clause (b) addressed advertisements aimed at maintaining or improving human capacity for sexual pleasure; and sub‑clause (c) covered advertisements concerning the diagnosis and cure of general and other diseases. Section 4 made it unlawful to publish misleading advertisements relating to drugs. Section 5 similarly banned advertisements of magic remedies that were claimed to be efficacious for the purposes specified in section 3. Section 6 prohibited the import into and export from India of certain advertisements. Section 14 acted as a saving clause, excluding from the operation of the Act advertisements that were sent confidentially to registered medical practitioners, wholesale or retail chemists for distribution among such practitioners, or to hospitals or laboratories; it also excluded advertisements printed or published by the Government or those issued with prior Government sanction. Section 15 empowered the Government to grant exemptions from the operation of sections 3, 4, 5 and 6 in particular cases.

When an enactment was challenged on the ground that it was ultra vires or unconstitutional, the Court explained that the true character of the legislation had to be examined by looking at the enactment as a whole, its objects, purpose, true intention, and the scope and effect of its provisions, as articulated in A. S. Krishna v. State of Madras (1957 S.C.R. 399, 406, 410). Applying this approach, the Court held that the Act’s purpose could not be reduced merely to curbing advertisements that offended decency or morality. Instead, the proper object was to prevent self‑medication and treatment by prohibiting instruments that might advocate such practices or spread related harms. Although section 3 specifically mentioned diseases linked to sexual activity and disorders peculiar to women, the Court concluded that, taken together, the Act was not confined to matters of indecency or immorality. The title and preamble indicated a broader aim of controlling all drug‑related advertisements, and the inclusion of “animals” in the definition of drugs further demonstrated that the Act was not limited to sexual or moral concerns. Section 4 reinforced the legislative intent to stop misleading drug advertisements, supporting the conclusion that the Act sought comprehensive regulation of drug advertising rather than merely addressing moral objections.

The Court observed that the legislature had intended to prohibit misleading advertisements that concerned drugs. It noted that Section 5 reinforced the purpose of forbidding advertisements that claimed to offer remedies for any disease. Section 6 was also cited as supporting the same objective, namely, to halt advertisements that dealt with drugs. Moreover, Sections 14 and 15 were described as clear indications that advertisements for drugs intended to treat certain diseases should be banned so that the public would not be misled into believing they suffered from ailments that could be cured by such products. The Court explained that this purpose was further demonstrated by the fact that the prohibited advertisements could be sent to medical practitioners, hospitals, and laboratories. The exclusion of Government advertisements and the authority to grant exemptions were interpreted as pointing to the goal of stopping drug advertisements for the reasons mentioned, rather than merely preventing advertisements that offended morality or decency.

The Court then turned to the argument presented by counsel for the petitioner, who contended that Section 3 was the key provision of the Act and that its object and direct effect were to stop advertisements, thereby impairing the right to free speech by imposing a direct prohibition on advertising. The Court held that if this contention were accepted, any restriction would have to satisfy clause (2) of Article 19 of the Constitution, meaning it would need to be connected with decency or morality, because the other grounds for restriction in that clause did not apply. Conversely, the Court noted that if the submission of the Solicitor‑General were accepted, the matter would fall under sub‑clauses (f) and (g) and the restriction would be analyzed under Article 19(6). The Court emphasized that the purpose of the Act, as shown by its overall scheme and as stated in the affidavit of the respondent, was to prevent self‑medication and self‑treatment, and that curbing such advertisements was a means to achieve that end. An objection was raised that the preamble of the Act did not expressly state the object of preventing treatment of diseases by anyone other than qualified medical practitioners, unlike the English Venereal Diseases Act 1917. The Court recalled that, in several earlier decisions, affidavits had been permitted to explain the reasons for enacting a law, the circumstances of its conception, and the evils it intended to cure, citing precedents such as Shri Ram Krishna Dalmia v. Justice S. R. Tendolkar and Kathi Raning v. State of Saurashtra, as well as Kavalappara Kottarathil Kochunni v. State of Madras.

Finally, the Court addressed the petitioner’s reliance on a foreign decision to support the claim that any limitation on the right to advertise goods infringed the freedom of speech because advertising formed part of that freedom. The petitioner cited Alma Lovell v. City of Griffin, arguing that the prohibition of advertisements in that case violated constitutional guarantees of press freedom. The Court noted the relevance of that authority to the issues before it.

In the United States case that Mr Munshi cited, the challenge was directed against a municipal ordinance that prohibited the distribution of circulars, handbooks, advertising or any kind of literature without obtaining a permit. The objection was based on the contention that the ordinance violated the First and Fourteenth Amendments because it curtailed the freedom of the press. The court held that the prohibition was invalid on its face because it infringed the constitutional guarantee of press freedom, a guarantee that also embraced pamphlets and leaflets. The specific violation complained of involved the distribution, without the required permission, of pamphlets and magazines that were essentially religious tracts. Chief Justice Hughes observed that the ordinance, in its broad language, prohibited the distribution of “circulars, handbooks, advertising or literature of any kind,” and that this language clearly applied to pamphlets, magazines and periodicals. Although the term advertisement appeared both in the ordinance and in Chief Justice Hughes’s opinion, the actual dispute concerned the distribution of pamphlets and magazines rather than commercial advertisements. Mr Munshi also referred to the decision in Express Newspapers (Private) Ltd. v. The Union of India, where Justice Bhagwati discussed cases involving freedom of speech; however, that case did not address the issue of advertisements. An advertisement is undoubtedly a form of speech, but its true nature is shown by the purpose for which it is used. When an advertisement is intended to promote a commercial activity, it acquires the attributes of the activity covered by Article 19(1) of the Constitution, rather than serving to propagate social, political or economic ideas, literature or human thought. In the present matter, the advertisements sought to commend the efficacy, value and importance of particular drugs and medicines in treating specific diseases. Accordingly, the advertisements were part of the petitioners’ business, even if they involved a creative element, and they were not related to the essential concept of freedom of speech. It therefore cannot be said that the right to publish and distribute commercial advertisements that promote an individual’s business falls within the constitutional freedom of speech. In the decision of Lewis J. Valentine v. F. J. Chrestensen, the court held that the constitutional right of free speech is not violated by prohibiting the distribution in city streets of handbills that combine a protest against public officials on one side with advertising material on the other side. The purpose of attaching the protest to the advertising circular was to evade a city ordinance that prohibited the distribution of commercial advertising in city streets.

In addressing whether the public streets may be used for the distribution of commercial advertisements, the Court quoted the earlier decision of Mr. Justice Roberts, who delivered the opinion of the Court. He observed that the Court had unequivocally held that streets are proper places for the exercise of freedom to communicate information and to disseminate opinion, and that while states and municipalities may appropriately regulate that privilege in the public interest, they may not unduly burden or proscribe its use in public thoroughfares. He further noted that the Constitution imposes no restraint on the government concerning purely commercial advertising, and that if a respondent attempted to use the streets of New York for distributing commercial advertisements, the prohibition contained in the Code could lawfully be invoked against such conduct. The Court then concluded that it could not be said that every advertisement falls within the scope of freedom of speech, nor that each advertisement constitutes an expression of ideas. Each case must be examined to determine the nature of the advertisement and the activity covered by Article 19(1) that it seeks to further. The advertisements before this Court relate to commerce or trade rather than to the propagation of ideas; consequently, advertising prohibited drugs or commodities whose sale is not in the interest of the general public does not qualify as speech within the meaning of freedom of speech and does not fall within Article 19(1)(a). The primary purpose and true intent of the Act is to prevent self‑medication or self‑treatment, and for that purpose advertisements praising certain drugs and medicines have been prohibited. The Court held that this restriction does not amount to an abridgment of the petitioners’ right to free speech. In a similar vein, the Court referred to Chamarbaughwala’s case, [1957] S.C.R. 930, where it was observed that activities undertaken with a view to earning profit, such as the business of betting and gambling, are not protected as falling within the guaranteed right of carrying on business or trade; likewise, an advertisement that commends drugs and substances as cures for diseases cannot be characterised as an exercise of the right of freedom of speech. Das, C.J., in State of Bombay v. R. M. D. Chamarbaughwala, said at page 920 of the Supreme Court Reporter that certain activities cannot under any circumstances be regarded as trade, business, or commerce, even though the usual forms and instruments are employed, and that to exclude those activities from the meaning of those words does not shrink their meaning but simply acknowledges that they are not within the true meaning of those words. Substituting the phrase “trade or business or commerce” with “freedom of speech” shows how the principle applies here. Freedom of speech lies at the heart of the natural right of a organised, freedom‑loving society to impart and acquire information of common interest. A limitation that deprives society of that right would fall within the guaranteed freedom under Article 19(1)(a), but a limitation that merely deprives a trader of the ability to commend his wares does not fall within that term.

In this case the Court observed that when a restriction deprives society of its right to obtain information, such a restriction clearly falls within the guarantee of freedom of speech provided by Article 19(1)(a). However, the Court explained that a measure which merely prevents a trader from praising his own goods does not fall within the ambit of that constitutional protection. The Court referred to the decision in John W. Rast v. Van Deman & Lewis Company, where Justice McKenna described advertising as “identification and description, apprising of quality and place,” whose sole purpose is to attract attention to an article for sale, with the purchase of the article being the only inducement for the consumer. The Court reiterated that advertising carries the same attributes as the product it seeks to promote or bring to public notice. It noted that numerous examples demonstrate that advertising concerned with trade and business is related to the concept of “business or trade” rather than to “freedom of speech.” Accordingly, the Court concluded that advertisements which the statute seeks to prohibit are not protected by Article 19(1)(a). The Court further addressed the argument that the prohibition on the petitioners’ advertisements amounted to a direct abridgment of the freedom of speech, citing Alice Lee Grosjean v. The American Press Co. In that case a tax imposed on the gross receipts of entities engaged in public advertising was held to abridge press freedom because its effect extended beyond mere revenue reduction and tended to curtail circulation. The Court also discussed the observations in Express Newspapers (Private) Ltd. v. The Union of India, where the issue was whether the Wage Board Act, by prescribing wages and conditions for journalists and imposing a financial burden on the press, interfered with press freedom. Bhagwati J. warned that unless such consequences were direct or inevitable, the legislation could not be struck down solely on that ground. The Court emphasized that when assessing the constitutionality of a law, it must consider the substance of the statute rather than its form, evaluating its operation and effect, as articulated in J. M. Near v. State of Minnesota. Consequently, the Court held that (1) the advertisements targeted by the Act do not fall within the expression protected by Article 19(1)(a); and (2) the true nature and purpose of the Act is not an interference with the right of freedom of speech.

The Court observed that the restriction did not amount to a direct abridgment of the right to free speech because it concerned trade or business rather than speech itself, and any incidental interference with that right did not change the nature of the law. The Court cited the decisions in Ram Singh v. The State of Delhi ([1951] S.C.R. 451, 455) and Express Newspapers (Private) Ltd. v. The Union of India ([1959] S.C.R. 12, 123‑133) to support this view. It further explained that the constitutionality of a statute is not decided by its formal description or by any incidental infringement of Article 19(1), but by its actual reality and substance. Accordingly, the Act, when read as a whole, was held not merely to forbid advertisements that dealt with drugs and medicines for the diseases listed in section 3, but to cover all advertisements that are objectionable or unethical and that promote self‑medication or self‑treatment. This substantive content, the Court said, does not pick out any element of freedom of speech that falls within Article 19(1)(a) of the Constitution. The respondents then argued that, assuming the matter fell within clauses (f) and (g) of Article 19(1), the restraint was disproportionate to the purpose of the Act, to the object it sought to achieve and to the evil it intended to remedy. They further contended that the restrictions could not be said to be in the interest of the general public. To support this contentions they relied on five specific points: (1) the very wide definition of “advertisement” in section 2(a); (2) the use of the word “suggest” in section 3; (3) the un‑channelled delegated power to add diseases to the schedule; (4) the existence of section 14(c) read with rule 6 of the Rules; and (5) the procedural provisions in section 8 of the Act. According to counsel, each of these aspects showed that the law exceeded the permissible limits of restriction under clause 6 of Article 19.

The counsel also argued that the term “advertisement” under the Act was intended to include not only notices in newspapers, periodicals and other publications but also labels on cartons, bottles and instructions printed inside a carton. It was submitted that without such packaging‑side advertisements a user would be unable to know the identity of the medicine, its intended use and the method of administration. The Court noted that if the purpose of the Act was to prevent objectionable and unethical advertisements so as to discourage self‑medication and self‑treatment, the definition could not be described as overly wide when viewed in light of that purpose. The Act sought to eradicate the very evils of misleading promotion, and a narrow definition of “advertisement” would defeat the objective for which the legislation was enacted. The Court further rejected the contention that the word “suggest” was merely subjective, stating that “suggest” possesses many shades of meaning and, in the context of section 3, carries a specific import. “Suggest” has many shades of meaning and in the context it means

The Court observed that the term “commendatory publication” signifies a direct approach and that its inclusion in section 3 does not establish that the restriction imposed by the statute is disproportionate. It noted that a separate part of the judgment would address the constitutionality of the delegation of power and the reasonableness of the range of diseases listed in the schedule, and therefore it was unnecessary to revisit that subject in the present discussion. The Court then turned to section 14(c) and rule 6, which require that any prohibited advertisement be sent confidentially by post to a registered medical practitioner, a wholesale or retail chemist, a hospital or a laboratory, and that each packet containing such advertisement must bear the inscription “for the use only of registered medical practitioners or a hospital or a laboratory” on its outer surface. The Court held that, if the statutory purpose is to discourage self‑medication and to promote treatment by properly qualified medical practitioners, this regulatory requirement cannot be characterised as an excessive restraint on liberty. The Court further rejected the argument that the presence of additional categories of persons in the equivalent English legislation, or the allowance for advertisements in medical journals and scientific treatises under that law, automatically renders the Indian restriction disproportionate. It explained that comparing each provision of the Indian Act with its English counterpart and declaring a provision unreasonable solely on the basis of difference is an improper method of assessing reasonableness, because the underlying evils may be similar while the circumstances, conditions, and journal environments in the two countries differ, leading inevitably to variations in the degree of restrictiveness. The policy rationale behind the Act, the Court affirmed, is that medication should be administered only on the advice of qualified medical practitioners, and the fact that the legislature did not exclude advertisements in domestic medical journals does not, by itself, demonstrate a disproportionate restraint. The Court then addressed objections raised concerning the procedural aspects of section 8, where it was contended that the powers of search, seizure and detention were overly broad, lacking the safeguards and procedural rules present in the Code of Criminal Procedure or the Drugs Act, such as detailed provisions on search warrants and entry into premises. The Court indicated that this procedural question would be examined in a later segment of the judgment and did not require discussion at this stage. Finally, the Court considered the argument that the Act was contrary to the public interest because it allegedly prevented the public from learning the names of diseases and the appropriate use of specific medicines, and that it would hinder the dissemination of such information to practising medical practitioners or distribution agencies, as well as impede a properly worded advertisement suggesting a cure. The Court noted these contentions but reserved further analysis for subsequent portions of the judgment.

The Court noted that prohibiting the reference to diseases would affect persons who, for reasons of prestige or other understandable motives, are reluctant to disclose the nature of their ailments to anyone. Such a prohibition would also impede medical assistance in a nation where the availability of health care is widely recognised as severely insufficient. The Court reminded that it had earlier outlined the purpose and scope of the Act, the circumstances of its enactment, and the societal evils it intended to eradicate. If the genuine object of the legislation is to curb self‑medication and self‑treatment, as appears to be the case, then these very practices constitute the harms that the prohibited advertisements would otherwise promote in the absence of such a law. No evidence has been placed before the Court to show that the restrictions imposed by the Act are disproportionate to the goal it seeks to achieve, nor that they exceed the limits permissible under the Constitution. Mr. Chatterjee, addressing this point, referred the Court to the test of reasonableness articulated in Chintaman Rao v. State of Madhya Pradesh ([1950] S.C.R. 759). He cited the passage from Mahajan, J. at pages 762‑763, which framed the enquiry as whether a statute, under the pretext of protecting public interest, arbitrarily interferes with private enterprise and imposes unreasonable, unnecessary restrictions on lawful occupations, such as the total ban on bidi manufacturing during the agricultural season, thereby testing the reasonableness of a restriction on the fundamental right guaranteed by article 19(1)(g) of the Constitution. The Court found that, in the present matter, no submission demonstrated that the Act, under the guise of safeguarding public health, arbitrarily intrudes upon private business or imposes unreasonable constraints. If, as the Court accepts, the true purpose of the legislation is to eliminate objectionable and unethical advertisements so as to discourage self‑medication, then the question of an unreasonable restriction does not arise. Mr. Chatterjee also relied on an observation by Bose, J. in Dwarka Das Srinivas of Bombay v. Sholapur Spinning & Weaving Co. Ltd. ([1954] S.C.R. 674, p.733), wherein the learned judge affirmed that constitutional provisions relating to fundamental rights must be interpreted broadly and liberally in favour of the right‑holders. The Court agreed with this view, emphasizing that interpretation should aim to protect citizens’ fundamental rights, while recognising that Article 19 itself imposes limitations that serve the general welfare of the entire community. Mr. Chatterjee further argued that the restraint was excessive because prohibiting even the mere mention of a disease name and a suggested cure could not be deemed a reasonable restriction. The learned Solicitor‑General, however, clarified that the objection does not lie with the use of disease names, but with advertisements that promote specific medicines as cures for those diseases.

It was observed that the purpose of the Act was to eradicate the kind of advertisements that the learned Solicitor‑General described. The Court held that the restrictions imposed by the Act could not be characterised as excessive, disproportionate, or contrary to the public interest. The third contention raised by counsel for the petitioner, Mr Munshi, concerned the wording “or any other disease or condition which may be specified in the rules made under this Act” in clause (d) of section 3. He argued that this language created delegated legislation, because it failed to set definite criteria or standards and therefore gave the executive unfettered power to add diseases to the schedule without guidance. In response, the learned Solicitor‑General maintained that the schedule represented conditional legislation rather than an exercise of delegated legislative power. He further submitted that even if the schedule were to be regarded as delegated legislation, such delegation fell within the limits recognised by judicial precedent.

The Court then explained the distinction between conditional legislation and delegated legislation. It noted that under conditional legislation the delegate’s authority is limited to determining the moment at which a legislative rule of conduct becomes effective, as illustrated in Hampton & Co. v. U.S. (276 U.S. 394). By contrast, delegated legislation involves the delegation of rule‑making power that may constitutionally be exercised by an administrative agent. In delegated legislation the legislature sets out the broad policy principles and then entrusts an administrative authority with the task of furnishing the detailed rules needed to implement those principles. Thus, the delegate completes the legislative scheme by supplying details within the boundaries prescribed by the enabling statute. Conditional legislation, on the other hand, leaves to an external authority the discretion to decide the time, manner, and geographical scope of the law’s operation, while the substantive law itself remains complete. The Court cited several authorities to illustrate this point, including The Queen v. Burah (1878) 3 App. Cas. 889; Russell v. The Queen (1882) 7 App. Cas. 829, 835; King Emperor v. Benoarilal Sarma (1944) L.R. 72 L.A. 57; and Sardar Indar Singh v. State of Rajasthan ([1957] S.C.R. 604).

According to this analysis, when a delegate is authorised to make rules and regulations that fill in the details necessary to give effect to the purposes of the statute, the exercise is one of delegated legislation. Conversely, where the statute is otherwise complete and the legislature’s only remaining task is to empower an external body to apply the law to a particular area or to determine the appropriate time and manner of its implementation, the resulting power is conditional legislation. The Court also referred to an American case that observed, “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 …”. This statement underscored the view that conditional legislation does not diminish the validity of the law, provided the delegation remains within lawful limits.

In this passage the Court explained that a law cannot be said to be less than a law merely because it depends upon a future circumstance or an event that has not yet occurred. The Court quoted a previous statement that the legislature is prohibited from delegating its core law‑making power, but it may enact a statute that authorises a delegate to determine a fact or a condition on which the operation of the law will rest. The quotation further observed that many facts upon which sensible legislation must rely are unknown at the time the law is enacted, and therefore those facts must be investigated and decided by an authority outside the legislative chamber. The passage cited Lockes Appeal, 72 Pa. 491 and Field v. Clark, 143 U.S. 649 to support this principle.

Following that principle, the Court stressed that the discretion given to a delegate must not be so broad that it becomes impossible to ascertain its limits. The Court required that there be clear and definite boundaries within which the administrative authority may exercise its power. The Court warned that a delegation that is overly indefinite would amount to an abdication of the legislature’s essential function. This observation was drawn from the treatise Schwartz on American Administrative Law, page 21.

The Court then referred to an Australian decision, cited by the learned Solicitor General, in which the prohibition of goods by proclamation under section 52 of the Customs Act 1901 was characterised as conditional legislation. The case, Baxter v. Ah Way, reported in the Commonwealth Law Reports at pages 626, 634, 637, 638, held that the legislature must anticipate future situations and provide, as far as practicable, for all contingencies that may arise in the application of the law. Because it is impossible to foresee every possible scenario, the legislature may resort to conditional legislation, leaving to a specified authority the power to decide the circumstances in which the law will become operative, the extent of its operation, or the particular class of persons or goods to which it will apply. The Court cited the relevant passages of Baxter’s case at pages 637 and 638.

Summarising these authorities, the Court identified the distinguishing characteristics of delegated legislation and conditional legislation. Delegated legislation involves the authority to fill in details for the implementation of a complete statutory scheme, whereas conditional legislation involves the authority to determine when and how the law will take effect based on future events. The Court posed the question of which category the power conferred by the present Act falls into.

The Court then examined the specific provision of the Act that grants power to the authority. Section 3 of the Act contains clause (d), which reads: “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 general disease or any other disease or condition which may be specified in rules made under this Act.” This clause conveys a restriction on advertising that can only be lifted or defined by rules.

Finally, the Court outlined the rule‑making power granted by section 16 of the Act. Section 16(1) states: “The Central Government may by notification in the official gazette make rules for carrying out the purposes of this Act.” Section 16(2) adds: “In particular and without prejudice to the generality of the foregoing …” The passage ended at this point, leaving the remainder of subsection 2 unfinished.

The provision authorises rules to (a) designate any disease or condition to which section 3 shall be applicable and (b) determine the method by which advertisements of articles or items mentioned in clause (c) of sub‑section (1) of section 14 may be transmitted confidentially. The petitioner contended that the language of section 3(d) constitutes delegated legislation rather than conditional legislation because the delegated power is limited to the specification of diseases and conditions within the rules. The Court observed that the prohibition imposed by the Act extends to conditions and diseases enumerated in the various clauses of section 3 and also to those that may, under the final part of clause (d), be specified in the rules made pursuant to section 16. The first sub‑section of section 16 empowers the Central Government to make rules for the purposes of the Act, and clause (a) of sub‑section (2) expressly permits the specification of diseases or conditions to which the provisions of section 3 shall apply. It is the first sub‑section of section 16 that confers the general rule‑making authority, thereby delegating to the administrative authority the power to frame rules and regulations that further the object and purpose of the Act. Clause (a) of the second sub‑section is merely illustrative of the power conferred by the first sub‑section; this principle was affirmed in King Emperor v. Sibnath Banerji ((1945) L.R. 72 I.A. 241). Consequently, sub‑section 2(a) shares the same objective as sub‑section (1), namely to implement the purposes of the Act. Therefore, when the rule‑making authority lists conditions and diseases in the schedule, it exercises the same delegated authority as when it enacts other rules under sub‑section (1), and such rule‑making constitutes delegated legislation. The Court then considered whether the delegation is constitutionally valid, i.e., whether the administrative authority has been provided with adequate guidance. It held that the challenged wording is vague because Parliament has supplied no criteria, standards, or principles for determining which disease or condition may be placed in the schedule. No facts or circumstances are specified for inclusion of a particular condition or disease. Accordingly, the power to specify diseases and conditions under section 3(d) exceeds the permissible limits of valid delegation and must be struck down. However, this invalidation does not affect conditions and diseases that fall within the four other clauses of section 3, apart from the portion of clause (d) declared unconstitutional. The Court deemed it unnecessary to examine the relevance of Baxter v. Ah Way (8 Com. L.R. 626, 634, 637, 638). Ultimately, the Court concluded that the phrase “or any other disease or condition which may be specified in the rules made under this Act” grants an un‑channelled and unchecked power to the Executive and is therefore ultra vires.

In this case, the Court observed that removing the offending language from clause (d) of section 3 does not disturb the constitutionality of the remainder of that clause or of the whole section, because the provisions are severable, as previously held in R. M. D. Chamarbaughwala v. The Union of India. The petitioners then challenged the validity of section 8 of the Act, contending that it infringed the guarantees protected by Articles 21 and 31 of the Constitution. The text of section 8, when read in full, states: “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 (including all copies thereof) article or thing shall be forfeited to the Government.” Counsel for the petitioners, Mr. Munshi, pointed out that the statute provides no limitation, no rule‑making authority, and no safeguards concerning the power granted to a person authorised by the Government to seize and detain any material that, in that person’s opinion, contains an advertisement violating the Act. He further submitted that the analogous English legislation of 1939, in section 10, contains explicit safeguards governing the exercise of seizure powers. The Solicitor‑General offered only modest support for the first part of section 8 that deals with seizure and detention, arguing that, given the purpose and object of the Act, the legislature may have deemed safeguards unnecessary and may have believed that the absence of such safeguards would not prejudice anyone before a seizure took place. The Court, however, held that this part of the provision exceeds the intended purpose of the legislation. The lack of safeguards, which the legislature has deemed essential in other statutes such as the Indian Drugs Act, constitutes an unreasonable restriction on the petitioners’ fundamental rights; consequently, the opening phrase “any person authorised … by any of the provisions of this Act” is unconstitutional. The Court then considered the effect of this declaration of unconstitutionality. It concluded that if the offending portion is removed, the remaining language of the section becomes unintelligible and cannot stand. Therefore, the entire section must be struck down. The Court further noted that because a portion of clause (d) of section 3 and the whole of section 8 have been declared unconstitutional, the Act as a whole is not rendered void, since those provisions are severable from the remaining parts of the legislation. As a result of excising the invalid portions, the operation of the rest of the Act continues unhindered, a view consistent with the earlier decision in R. M. D. Chamarbaughwala v. The Union of India ([1957] S.C.R. 930). As a result of section 8 being

The Court observed that because section 8 of the Act had been declared invalid, every item that had been taken from the petitioners without legal authority had to be handed back to the individual petitioners who owned them. The Court further explained that it was now the responsibility of the Government to decide, in accordance with the legal principles set out in this judgment, what steps should be taken with respect to any proceedings that had already been initiated or any prosecutions that had been started against the petitioners. In the same vein, the Court declared that the specific portion of clause (d) of section 3 that had been identified earlier, together with the entirety of section 8, were unconstitutional. Consequently, the Court directed that a writ of mandamus be issued, commanding the respondents to return all seized goods to their rightful owners. The Court noted that the petitioners had achieved a partial victory in challenging the constitutionality of the Act, and therefore ordered that each party bear its own costs of the litigation. The final order was then recorded, directing that the reliefs set out above be carried out as directed.