Hamdard Dawakhana (Wakf) Lal... vs Union Of India And Others

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

Court: supreme-court

Case Number: Petition Nos. 81, 62, 63 and 3 of 1959

Decision Date: 18 December, 1959

Coram: J.L. Kapur, Bhuvneshwar P. Sinha, Syed Jaffer Imam, K.N. Wanchoo, K.C. Das Gupta

In the matter titled Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and another versus Union of India and others, the Supreme Court of India delivered its judgment on 18 December 1959. The opinion was authored by Justice J.L. Kapur, who sat together with Justices Bhuvneshwar P. Sinha, Syed Jaffer Imam, K.N. Wanchoo and K.C. Das Gupta. The petitioners were the Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and a co-petitioner, while the respondents were the Union of India and other parties. The judgment is reported in 1960 AIR 554 and 1960 SCR (2) 671, and has subsequently been cited in a series of reports, including RF 1961 SC 4, D 1962 SC 305, D 1962 SC 562, R 1962 SC 1006, R 1962 SC 1263, R 1964 SC 925, R 1964 SC 980, RF 1967 SC 1, RF 1967 SC 212, RF 1967 SC 1048, RF 1968 SC 1232, E 1973 SC 106, R 1978 SC 597, RF 1983 SC 1155, E 1986 SC 515, R 1990 SC 560, and RF 1991 SC 672. The dispute concerned the Advertisement Control Act, specifically the prohibition of advertisements of drugs for certain diseases, and raised constitutional questions about whether the statute curtailed the freedom of speech, whether it improperly delegated legislative power to the executive, and whether the power given to the executive to seize offending articles without safeguards imposed reasonable restrictions under Articles 19(1)(a), 19(1)(g), 19(1)(f) and 19(6) of the Constitution of India. The statute in question was the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (21 of 1954), particularly sections 2(a), 3(d), 8 and 14(c). In its headnote the Court explained that when an enactment is challenged on the ground of violating fundamental rights, it is necessary to determine the true nature and character of the law, including its subject matter, intended field of operation, purpose and intent. To make that determination, the Court may consider factors such as the legislative history, the purpose of the law, the surrounding circumstances, the mischief the law seeks to suppress, the remedy the legislature proposes, and the real reason for that remedy. The Court noted that there is a presumption in favour of the constitutionality of any enactment. It referred to earlier decisions, namely Bengal Immunity Company Ltd. v. State of Bihar [1955] 2 SCR 603, R.M.D. Chamarbaughwala v. Union of India [1957] SCR 930, Mahant Moti Das & others v. S.P. Saki AIR 1959 SC 942, Charanjit Lal Chowdhuri v. Union of India & others [1950] SCR 869 and State of Bombay v. F.N. Bulsara [1951] SCR 682. Upon examining the legislative history, the circumstances surrounding the passage of the Act, and its overall scheme, the Court concluded that the object of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954, was to prevent self-medication and self-treatment by prohibiting instruments that might encourage such practices or spread associated dangers. The Court emphasized that the purpose of the legislation was not merely to stop advertisements that offend morality, but to address a public health concern by restricting commercial promotion that could mislead the public about the efficacy of certain drugs for specific diseases.

Advertisement is undeniably a form of speech, yet its essential character depends on the purpose for which it is employed. Only when an advertisement seeks to express or propagate ideas can it be said to fall within the domain of freedom of speech. The Court held that the right to publish and distribute commercial advertisements that promote an individual’s personal business does not form part of the freedom of speech guaranteed by the Constitution. Accordingly, the provisions of the Act that prohibited advertisements praising the efficacy, value or importance of particular drugs or medicines in treating specific diseases were not covered by Article 19 (1)(a) of the Constitution. The Court observed that the true nature and object of the Act was not to interfere with the right of free speech, but rather to regulate trade and business. In support of this view, the Court referred to several authorities, namely 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. The Court further held that the definition of “advertisement”, which embraced labels on cartons and bottles as well as instructions placed inside cartons, was not overly broad given the purpose of the Act; a narrower definition would defeat the very purpose for which the legislation was enacted. The use of the word “suggest” in Section 3 did not, in the Court’s view, make the restraint imposed by that section disproportionate. Likewise, the provisions of Section 14(c) and Rule 6, which allowed prohibited advertisements to be sent confidentially by post to a registered medical practitioner, a wholesale or retail chemist, a hospital or a laboratory provided that the words “for-the use only of registered medical practitioners or a hospital or a laboratory” were inscribed on the outside of each packet, were not considered excessive. The Court concluded that the provisions of the Act served the interests of the general public, imposed reasonable restrictions on the trade and business of the petitioners, and were saved by Article 19 (6). For this reasoning the Court cited Chintaman Rao v. The State of Madhya Pradesh, [1950] S.C.R. 759 and Dwarka Das Srinivas of Bombay v. The Sholapur Spinning & Weaving Company Limited, [1954] S.C.R. 674. Finally, the Court found that the words “or any other disease or condition which may be specified in the rules made under this Act” in clause (d) of Section 3, which empowered the Central Government to add diseases to the mischief of Section 3, conferred un-channelled and uncontrolled power on the executive and were therefore ultra vires.

The Court observed that the legislature had failed to lay down any criteria or standards and had not set out any principle for designating a particular disease or condition within the Act. Because of this omission, the Schedule that formed part of the rules was also beyond the authority granted by the statute and therefore ultra vires. The Court clarified, however, that striking down the specific wording that was challenged did not impair the validity of the remaining portion of clause (d) of section 3 or the other clauses of that section, since those provisions were severable from the invalid language. The Court further held that the first part of section 8, which authorised any person appointed by the State Government to seize and detain any document, article, or thing that such person had reason to believe contained an advertisement violating the Act, imposed an unreasonable restriction on the petitioners’ fundamental rights and was therefore unconstitutional. This portion of section 8 was found to exceed the purpose for which the Act had been enacted and to lack the procedural safeguards that the legislature had provided in other statutes when exercising similar powers. The Court noted that if this offending portion were removed, the remaining language of section 8 would become unintelligible and could not be sustained. By declaring the offending portion of clause (d) of section 3 and the entire section 8 unconstitutional, the Court affirmed that the rest of the Act continued to operate unharmed because those provisions were also severable. The decision referenced the precedent set in R. M. D. Chamarbaughwala v. Union of India [1957] S.C.R. 930 in support of its reasoning.

The judgment was issued in the original jurisdiction in response to petition numbers 81, 62, 63 and 3 of 1959, each filed under article 32 of the Constitution for enforcement of fundamental rights. Counsel for the petitioners were represented by senior advocates, while the respondents were defended by the Solicitor-General of India, the Additional Solicitor-General, and other senior counsel appointed for the respective respondent numbers. An intervenor was also represented by counsel. The judgment was dated 18 December 1959 and was delivered by Justice Kapur. The Court noted that all the petitions raised a common question of law concerning the constitutionality of the Drug and Magic Remedies (Objectionable Advertisement) Act, 1954, and therefore could be disposed of in a single judgment. The petitioners alleged that actions taken against them by the respondents infringed their fundamental rights under article 19(1)(a) as well as article 19(1)(f) and (g). They also contended that the Act violated the guarantees of equality under article 14 and the rights to life and personal liberty under articles 21 and 31. The Act, which had been passed on 30 April 1954 and came into force on 1 April 1955 together with the rules framed thereunder, was therefore subject to the challenges articulated in the writ petitions.

The Drug and Magic Remedies (Objectionable Advertisement) Act, XXI of 1954, came into force on 1 April 1955 together with the rules made under it. Its preamble declares that the legislation is “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.” In Writ Petition No. 81 of 1959, Hamdard Dawakhana (Wakf) and another petitioner alleged that shortly after the Act became operative they encountered difficulties in promoting their products and that various authorities raised objections to their advertisements. On 4 December 1958, the Drugs Controller of Delhi informed the petitioners that they had contravened the provisions of section 3 of the Act and instructed them to recall the products that had already been dispatched to Bombay and other states. This communication gave rise to a series of correspondences between the petitioners and the authorities. On the same date, the Delhi State Drugs Controller halted the sale of forty of the petitioners’ products that were listed in the petition. Later, the Delhi Drugs Controller objected to advertisements relating to other medicines, and the Drugs Controllers of several other states also raised objections to advertisements concerning medicines and drugs prepared by the petitioners. The petitioners contended that the advertisements that were objected to had been prepared in accordance with the Unani system of medicine and that the drugs bore Unani nomenclature, a system that has been recognised worldwide for several centuries. The petitioners challenged the Act on the grounds of discrimination in violation of article 14, alleged excessive delegation of authority, and claimed that the Act infringed the fundamental right to free speech under article 19(1)(a) as well as the right to carry on trade, business and profession under articles 19(1)(f) and (19)(g). They also raised objections under articles 21 and 31. Consequently, the petitioners prayed for a declaration that the Act and the rules made thereunder were ultra vires and void for being inconsistent with Part III of the Constitution, and they sought the issuance of writs of mandamus and prohibition, together with the quashing of the proceedings and notices issued by the various authorities, who were the respondents.

In response, the respondents filed a counter-affidavit asserting that the manner in which the petitioners and others advertised their drugs demonstrated the necessity of the impugned Act and its strict enforcement. They denied the allegations of discrimination and the alleged infringement of fundamental rights under articles 19(1)(a), (19)(f) and (19)(g), as well as articles 21 and 31. The respondents further explained that the restriction concerned advertisements addressed to the general public, and that the principal object and purpose of the Act was to prevent people from self-medicating for serious diseases. They argued that self-medication in relation to the serious diseases enumerated in the Act and the rules has a deleterious effect on the health of the community and is likely to impair the well-being of the people. Based on this view, they maintained that the Act was justified in order to curb exaggerated advertising, to ensure that medicines were obtained through recognised channels, and to enable proper testing and evaluation of products by expert agencies. The respondents supported their position by attaching as Exhibit A a copy of the literature that accompanied one of the medicines sold by the petitioners, which they claimed demonstrated the objectionable character of the advertisements. In their rejoinder, the petitioners reiterated that the Unani and Ayurvedic systems had been discriminated against and contested the respondents’ claim that self-medication posed a danger to public health.

The respondents argued that certain medicines encouraged people to self-medicate because of overly enthusiastic advertisements, and therefore it was necessary for public health to stop such puffery. They maintained that manufacturers should be required to supply their products only through recognized channels so that expert agencies could examine the medicines properly. The respondents also contended that the advertisements in question were objectionable in nature and that, given the manner in which the petitioners advertised, the application of the provisions of the impugned Act was justified. In support of these contentions, the respondents attached as Exhibit-A a copy of the literature that accompanied one of the medicines sold by the petitioners, as well as the statements that appeared on the cartons containing the medicine.

The petitioners, in their rejoinder affidavit, repeated their claim that the Unani and Ayurvedic systems had been discriminated against. They asserted that self-medication did not have a harmful effect on community health; on the contrary, they argued that it could promote the well-being of people by allowing the use of effective household and domestic remedies based on locally known herbs, especially in rural areas. The petitioners further pointed out that even in countries such as the United States and Canada, self-medication was permitted within certain limits, and that unlicensed itinerant vendors served the public effectively in those jurisdictions.

For all the petitions, the petitioner’s counsel, Mr. Munshi, raised four principal points. First, he said that advertisement was a means of exercising the freedom of speech guaranteed under Article 19(1)(a), and that the restrictions imposed by the Act were not covered by clause (2) of Article 19. Second, he claimed that the Act, the Rules made under it, and the Schedule in the Rules imposed arbitrary and excessive restrictions on the rights guaranteed to the petitioners by Articles 19(1)(f) and 19(1)(g). Third, he argued that Section 3 of the Act gave the executive unchecked and unlimited power to add diseases to the list contained in that section. Fourth, he contended that the power of confiscation under Section 8 of the Act violated the rights protected by Articles 21 and 31 of the Constitution.

In petitions numbered 62 and 63 of 1939, which concerned two branches of Sadhana Ausadhalaya at Poona and Allahabad, counsel Mr. N. C. Chatterjee presented the specific facts of those cases. He noted that the Poona branch had been raided without a warrant, that several medicines had been seized, and that a complaint had been filed against the petitioners. He submitted that Section 3(b) of the Act was intended to curb abnormal sexual activities, and that the advertisements in those cases merely named the diseases and suggested the drug for treating those diseases. He argued that prohibiting such advertisements amounted to an unreasonable restriction on the petitioners’ fundamental right, and that there was nothing indecent in stating that their medicine was a cure for a particular disease.

In this case, the Court observed that the impugned Act represented an undue interference with the cure and treatment of diseases. The Court then turned to the substance of the arguments presented on behalf of the petitioners. The petitioners contended that the restriction imposed on advertisements directly abridged the fundamental right to free speech guaranteed by Article 19(1)(a) of the Constitution. They argued that advertisements could not be excluded from the protection of that freedom because no clear dividing line could be drawn, and that the freedom of speech could not be limited by subjecting it to any other activity. In response, the learned Solicitor-General asserted that it was necessary to examine the pith and substance of the challenged Act. He maintained that, when properly examined, the Act could not be said to have curtailed, abridged or impaired the rights of the petitioners under Article 19(1)(a). He further submitted that the prohibited advertisements did not fall within the meaning of “freedom of speech”. Mr. Munshi then explained that the doctrine of pith and substance was devised to determine whether a legislature possessed the competence to enact a particular law. He sought support for this proposition from the observation of Justice Venkatarama Aiyar in A. S. Krishna v. State of Madras, wherein the Privy Council evolved the doctrine to assess whether an impugned piece of legislation was intra vires by focusing on its pith and substance. Although the doctrine was originally created to test legislative competence under a federal system of distributed powers, the Court noted that it has been applied in other contexts, for example in cases dealing with the constitutionality of statutes restricting certain activities and thereby affecting Article 19(1)(g). Citations included Mahajan, C.J., in Cooverjee B. Bharucha v. The Excise Commissioner & The Chief Commissioner of Ajmer concerning the Excise Regulation of 1915, and Das, C.J., in State of Bombay v. R. M. D. Chamarbughwala, where a statute was held to be a measure to prevent anti-social activities rather than an interference with trade. The Court indicated that it was unnecessary to decide in the present matter whether the doctrine extends to every sub-clause of Article 19(1). Instead, a more suitable approach was identified in the dictum of Mahajan, J., in M/s. Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh, where it was held that “in order to decide whether a particular …”.

In this case the Court explained that whenever a legislative measure is alleged to contravene any provision of Part III of the Constitution, it is essential to examine the substance of the legislation with strict scrutiny in order to determine precisely what the legislature has done. The Court emphasized that the legislature cannot avoid a constitutional prohibition by employing indirect methods, and therefore the Court must look behind the formal wording and appearance of the enactment to discover its true character and nature. Accordingly, when the constitutionality of an enactment is challenged on the ground of violation of any article in Part III, it becomes necessary to ascertain the enactment’s true nature and character, which includes identifying its subject-matter, the field in which it is intended to operate, its purpose and its intent. To achieve that determination the Court may legitimately consider all relevant factors such as 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 to provide for that mischief, and the genuine reason for that remedy. The Court cited earlier authorities including Bengal Immunity Company Ltd. v. The State of Bihar (1); R.M.D. Chamarbaughwala v. The Union of India (2); and Mahant Moti Das & Ors. v. S.P. Sahi (3) in support of this approach. Another principle that must be borne in mind, the Court observed, is that the legislature is presumed to understand and appreciate the needs of the people; the laws it enacts are directed at problems that have become manifest through experience, and the elected representatives enact statutes they consider reasonable for the purpose for which they are made. Consequently, there is a presumption in favour of the constitutionality of an enactment, a presumption affirmed in Charanjit Lal Chowdhuri v. The Union of India & Ors. (4); The State of Bombay v. F.N. Bulsara (5); and Mahant Moti Das v. S.P. Sahi (3). The Court then turned to the factual background of the legislation under scrutiny. It noted that in 1927 the Council of State adopted a resolution recommending that the Central and Provincial Governments take immediate measures to control the indiscriminate use of medical drugs and to standardise their preparation and sale. In August 1930, responding to public opinion on the subject and pursuant to that resolution, the Government of India 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 interest of the public. The Committee’s report stressed the necessity of exercising control over the import, manufacture and sale of patent and proprietary medicines in order to protect public safety and health. The report, in paragraphs 256-259, described how other countries exercised control and enacted restrictive laws to achieve that end, and it included an appendix containing numerous advertisements of patent and proprietary medicines claiming cures for a variety of diseases. The Court therefore concluded that the history and purpose of the impugned legislation must be examined in light of these facts, and it noted that the report highlighted the need for control over import, (1) [1955] 2 S.C.R. 603, 632 & 633. (2) [1957]

The record cited several authorities, including S.C.R. 930 and 936, and A.I.R. (1959) S.C. 942 and 948, respectively. Additional citations comprised the 1950 S.C.R. 869 and the 1951 S.C.R. 682 and 708, all concerned with the manufacture and sale of patent and proprietary medicines for the safety of the public and public health.

The Committee’s report noted, in paragraphs 256 to 259, that other countries exercised control over medicines through restrictive statutes that had been enacted for similar purposes. An appendix to the report listed numerous advertisements of patent and proprietary medicines that claimed to cure a wide variety of diseases.

As a direct consequence of the Chopra Committee’s findings, the Drugs Act was enacted in 1940. Subsequently, the Pharmacy Act was passed in 1948 to regulate the practice of pharmacy. These two statutes assigned to the State Governments the responsibility for supervising the manufacture of drugs and pharmaceuticals and for ensuring their sale by qualified personnel, while the Central Government was entrusted with controlling the quality of drugs and pharmaceuticals imported into India.

The Report described the popularity of patent and proprietary medicines in great detail. It observed that clever and attractive propaganda gave these medicines a place of honour, and that wide-reaching advertisements highlighted their alleged virtues. The Committee remarked that the credulity and gullibility of the masses, especially when “certain cures” were promised in hopeless cases, could be readily imagined. It further noted that patients who had not succeeded with treatment by medical practitioners were deeply affected by such advertisements and tended to try any drug that was available. In a very small number of instances, spontaneous cures occurred, and these rare successes were given the widest publicity, leading the preparations to be regarded as possessing miraculous powers.

The Report added that the assurances of cure, the forceful arguments presented to guarantee it, and the certificates of individuals claimed to have been cured, all set out in advertisements, left a strong impression, particularly on persons of weak nerves. It also identified a love of mystery and secrecy inherent in human nature, a natural reluctance to disclose details of one’s illness—especially when moral turpitude was involved—and a temperament common to people of all classes who demanded “something in a bottle” for every ailment. Poverty, which prevented many from paying physicians’ fees or purchasing expensive medicines, further encouraged self-diagnosis and self-medication with patent and proprietary medicines.

Evidence presented before the Chopra Committee condemned the growing sale of proprietary medicines, especially those formulated as secret recipes, describing them as positively harmful and constituting a serious and increasing menace. The Committee highlighted that advertisements and pamphlets accompanying these medicines displayed fraudulent practices and extravagant claims.

The Committee’s report also recommended the adoption of strict measures of control over proprietary medicines. Following this recommendation, the Bhatia Committee was constituted pursuant to a resolution identified as No.

In February 1953 the Committee identified as CI-1(12)/52 issued its terms of reference, and during the months of March 1953 through the end of that year the Committee examined a substantial number of witnesses in various towns across India. Among those examined were representatives of chemists and druggists, leading medical practitioners, and State Ministers for Health. The Bhatia Committee subsequently sent a questionnaire to a range of organisations and individual witnesses. The questionnaire included queries concerning the advertisement of drugs, and one of the Committee’s principal objectives—established when the Committee was inaugurated by the Health Minister on 12 March 1953—was to investigate the control that should be exercised over objectionable and unethical advertisements. The Committee discovered that, after the relevant Act had come into force, the Press Commission Report identified a large number of objectionable advertisements in the press concerning patent medicines. It could not be said that Parliament was unaware of this situation, because the Committee had also examined many witnesses on the matter.

The Indian Medical Association made a recommendation to the Press Committee, which was chaired by the late Mr Justice Rajadhyaksha, that advertisements for medicines claiming to cure or alleviate certain serious diseases be prohibited. The diseases listed were cancer, Bright’s disease, cataract, diabetes, epilepsy, glaucoma, locomotor ataxia, paralysis and tuberculosis. In the United Kingdom, advertisements of drugs or treatments for these diseases are regulated by the Cancer Act of 1939 and the Pharmacy and Medicines Act of 1941, while advertisements relating to the treatment of venereal diseases are governed by the Venereal Diseases Act of 1917. Wyndham E B Lloyd, in his 1936 book “Hundred Years of Medicine,” described the grave evils that arise from the use of secret remedies and nostrums, highlighted the dangers of their advertising, and noted the position taken by the British Medical Association. The British Medical Association, in a publication entitled “Secret Remedies What they cost and contain,” exposed the harmful effects of such remedies. Likewise, the Council on Pharmacy and Chemistry of the American Medical Association expressed its view on the harmful consequences of indiscriminate self-medication by the public, warning of the serious danger that results from misdirected and inadequate treatment and the failure to recognise the seriousness of a disease until it is too late.

The Court noted that it was unnecessary to refer in detail to the recommendations of the Bhatia Committee or the Press Enquiry Committee, since those reports were published in June and July 1954 respectively. Historically, England had enacted legislation as early as 1889—the Indecent Advertisements Act (52 and 53 Vict. Ch. 18)—to suppress indecent advertisements, expressly prohibiting advertisements concerning syphilis, gonorrhoea, nervous debility or other complaints arising from sexual intercourse. Subsequently, in 1917 the Venereal Diseases Act (7 and 8 Geo. V Ch. 21) was passed, placing restrictions on advertisements related to the treatment of venereal diseases. Later, in 1941, the Pharmacy and Medicine Act, 1941 (4 and 5 Geo. VI Ch. 42) was enacted, which corres-

The Court observed that the material placed before Parliament formed the factual basis on which the impugned legislation was enacted and therefore it could not be said that Parliament acted without any material. The material disclosed the history of the legislation, identified the evil that the statute sought to eradicate, and described the circumstances under which the enactment was passed. Referring to Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar (1), the Court noted that, as observed by Das, C.J., “in order to sustain the presumption of constitutionality 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.” Consequently, the Court held that it was permissible to consider all those facts for the purpose of judging the constitutionality of the Act. In the present case, the Court found that self-medication constituted an evil recognised both in India and abroad, and that the medical profession together with those aware of its dangers had alerted the public and the Government to the hazards of self-medication and of unethical advertising of proprietary medicines, especially for diseases most vulnerable to such abuse. The Court therefore assumed that the factual situation existing at the time of the legislation justified the enactment, and it need not repeat the facts already set out. With that background, the Court proceeded to examine the provisions of the Act in order to discern its predominant purpose, true intent, scope and object. The preamble, the Court said, demonstrated that the object of the Act was to control advertisements of drugs in certain cases—particularly those relating to diseases—and to prohibit advertisements of remedies claiming magical qualities, while providing for related matters. The title of the Act, the Court added, further indicated that it targeted objectionable advertisements. Section 2, the definition clause, defined “advertisements” in clause (a) and “drugs” in clause (b), the latter encompassing (i) medicines for human and animal use, (ii) substances for diagnosis, treatment or prevention of diseases in humans and animals, (iii) articles other than food that affect the organic functions of the body of humans or animals, and (iv) articles intended as components of any medicine. Clause (c) defined “magic remedies” to include talismans, mantras, kavachas and other charms, clause (d) related to the publication of any advertisement, and clause (e) defined a venereal disease. Section 3 prohibited advertisements of drugs for the treatment of diseases and disorders. Clause (a) of section 3 dealt with advertisements concerning procurement of miscarriage in women for prevention of conception; clause (b) dealt with advertisements concerning maintenance or improvement of human capacity for sexual pleasure; and clause (c) dealt with advertisements concerning diagnosis and cure of venereal and other diseases.

The judgment explained that Section 4 of the Act forbids any advertisement that is misleading in relation to drugs, while Section 5 bans advertisements of magic remedies that are claimed to be effective for the purposes enumerated in Section 3. Section 6 further prohibits the import into and export from India of certain advertisements. Section 14 operates as a saving clause and specifically excludes from the prohibition advertisements that are sent confidentially to registered medical practitioners, treatises or books, and those distributed by wholesale or retail chemists to registered medical practitioners, hospitals or laboratories; it also excludes advertisements that are printed or published by the Government or that have previously obtained Government sanction. Section 15 empowers the Government to grant exemptions from the operation of Sections 3, 4, 5 and 6 in particular cases where such exemption is deemed appropriate. The Court then observed that when a statute is challenged on the ground that it exceeds the constitutional power of the legislature, the true character of the legislation must be examined by looking at the Act as a whole, its objects, purpose, true intention and the scope and effect of its provisions, that is, what the provisions are directed against and what they aim to achieve, as stated in A.S. Krishna v. State of Madras. The Court cited the earlier decision in (1) [1957] S.C.R. 399, 406-410, and held that it could not be said that the sole object of the Act was merely to curb advertisements that offend decency or morality; rather, the proper object is to prevent self-medication or self-treatment by prohibiting instruments that may be used to advocate such practices or that tend to spread the associated evils. Although Section 3 expressly mentions diseases related to sex and disorders peculiar to women, the Court emphasized that, when read in its entirety, the Act does not limit itself to issues of indecency or immorality. The name of the Act and its preamble indicate that the purpose is the control of all advertisements relating to drugs, and the inclusion of the word “animals” in clause (b) of the definition section negates the notion that the Act is aimed merely at curbing sexual or indecent content. Section 4, the Court noted, further demonstrates the legislature’s intention to stop misleading advertisements concerning drugs. Section 5 supports the view that the Act seeks to prohibit advertisements suggesting remedies for all kinds of diseases, and Section 6 likewise points in the same direction, namely, to stop advertisements about drugs. Sections 14 and 15 provide a clearer indication that advertisements for drugs for certain diseases should be prohibited so that the general public is not misled into using them for ailments they may imagine they have and believe to be curable. The Court observed that this purpose is shown by the fact that such advertisements may be sent to medical practitioners, hospitals and laboratories, and that the exclusion of Government advertisements together with the power to grant exemptions underscores the objective of stopping drug advertisements for the aforementioned reasons.

The Court observed that the purpose of the legislation was not merely to stop advertisements offending against morality and decency. Counsel for the petitioner, Mr. Munshi, argued that section 3 constituted the nucleus of the Act and that its object and direct effect were to prohibit advertisements, thereby impairing the constitutional right to free speech. He further contended that if his submission were accepted, the restriction could be justified only if it fell within clause (2) of Article 19 of the Constitution. Consequently, the restriction would have to bear a relationship to decency or morality, because the other permissible grounds in that clause did not apply. Conversely, the learned Solicitor-General maintained that the matter should be examined under sub-clauses (f) and (g), invoking the limitation provision of Article 19(6). The Court noted that the object of the Act, as indicated by its scheme and as stated in the affidavit of Mr. Merchant, was to prevent self-medication and self-treatment, and that curbing such advertisements served that purpose. An objection was raised that the preamble of the Act did not expressly express the objective of preventing treatment of diseases by anyone other than qualified medical practitioners, unlike the English Venereal Diseases Act of 1917. The Court explained that Indian jurisprudence often admits affidavits to demonstrate the reasons for enacting a law, the circumstances of its conception, and the evils it sought to remedy. It cited the decision in Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar (1) [1959] S.C.R. 279 as an example where such affidavits were permitted. Similar allowances were referenced in Kathi Raning v. The State of Saurashtra (2) (1952) S.C.R. 435 and in Kavalap-para Kottarathil Kochunni v. The State of Madras (3) A.I.R. (1959) S.C. 725, where detailed affidavits explained the legislative background. To support his claim that any limitation on his right to advertise his goods infringed freedom of speech, Mr. Munshi relied on Alma Lovell v. City of Griffin (4) 82 Law Ed. 949; 303 U.S. 444. In that American case, a municipal ordinance prohibiting the distribution of circulars, handbooks, advertisements or literature without a permit was challenged as violating the First and Fourteenth Amendments. The United States Supreme Court held that the ordinance was facially invalid because it infringed the constitutional guarantee of press freedom, which encompassed pamphlets and leaflets. The specific violation complained of involved distribution without permission of pamphlets and magazines that were essentially religious tracts, as described in the cited opinions. Chief Justice Hughes observed that the ordinance, in its broad sweep, prohibited the distribution of “circulars, handbooks, advertising or literature of any kind,” and that this manifestation of restriction was plainly inappropriate.

The Court observed that the phrase “applies to pamphlets, magazines and periodicals” shows that although the term “advertisement” appeared in both the ordinance and the learned Chief Justice’s opinion, the matter before the Court concerned the distribution of pamphlets and magazines. The petitioner also cited Express Newspapers (Private) Ltd. v. The Union of India (1), wherein Justice Bhagwati discussed cases involving freedom of speech, but the specific issue of advertisements did not arise in that decision. The Court noted that an advertisement is undeniably a form of speech, yet its true nature is determined by the purpose for which it is used. An advertisement acquires the characteristics of the activity contemplated in Article 19(1) when it seeks to bring a particular object to public notice. However, when the advertisement is commercial in nature and includes an element of trade or commerce, it ceases to fall within the concept of freedom of speech because its purpose is not the propagation of social, political, economic ideas or the advancement of literature or human thought; rather, as in the present case, it concerns the commendation of the efficacy, value and importance of certain drugs and medicines in treating specific diseases. In such circumstances, the advertisement forms part of business activity even though, as described by the petitioner, it may involve a creative component, and it is employed to further the petitioner's commercial interests without any connection to the essential notion of freedom of speech. Accordingly, the Court held that the right to publish and distribute commercial advertisements promoting an individual’s personal business does not constitute a freedom of speech guaranteed by the Constitution. In Lewis J. Valentine v. F. J. Chrestensen (2), the Court held that the constitutional right to free speech is not violated by (1) (1959) S.C.R. 12,123-133 and (2) 86 Law. Ed. 1262, which prohibited the distribution on city streets of handbills that combined a protest against public officials with advertising material. The purpose of attaching the protest to the advertising circular was to evade a municipal ordinance that barred the distribution of commercial and business advertising in the streets. Justice Roberts, delivering the opinion of the Court, stated: “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.” The Court concluded that it cannot be said that every advertisement constitutes a matter falling within the ambit of freedom of speech.

It was observed that an advertisement could not be automatically classed as a form of freedom of speech nor treated as an expression of ideas. In each instance, the nature of the advertisement and the activity that it sought to further under Article 19 (1) had to be examined. The advertisements involved in the present matter were found to pertain to commerce or trade rather than to the propagation of ideas, and advertisements for prohibited drugs or other commodities whose sale was not considered to be in the public interest could not be characterised as speech within the meaning of freedom of speech. Consequently, such advertisements did not fall within the protection of Article 19 (1)(a). The principal purpose and true intent of the Act under consideration was to prevent self-medication or self-treatment; for that purpose, advertisements endorsing certain drugs and medicines had been prohibited. The question therefore arose whether this prohibition constituted an abridgement of the petitioners’ right to free speech. It was concluded that it did not. The judgment referred to the earlier decision in Chamarbaughwala’s case, where it had been held that activities undertaken with a view to earning profits, such as the business of betting and gambling, were not protected as a guaranteed right to carry on trade or business. The same principle was applied to advertising that praised drugs and substances as cures for particular diseases, stating that such advertising could not be regarded as an exercise of the right of freedom of speech. Chief Justice Das, quoting the earlier judgment, remarked: “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.” Substituting “freedom of speech” for “trade or business or commerce” demonstrated that the present advertisements did not fall within the scope of Article 19 (1)(a).

The concept of freedom of speech was described as the natural right of an organised, freedom-loving society to impart and acquire information concerning common interests. Any limitation that deprived society of that right would fall within the guaranteed freedom of Article 19 (1)(a). However, a restriction that merely prevented a trader from praising his wares would not be covered by that provision. In the case of John W. Rast v. Van Deman & Lewis Company, Justice McKenna explained the nature of advertising, stating: “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.” The judgment therefore held that an advertisement possessed the same attributes as the object it sought to promote or bring to public notice, and that such attributes related to trade and business rather than to the core concept of freedom of speech. Accordingly, advertisements that were intended to be banned did not fall within the ambit of Article 19 (1)(a).

The Court observed that advertisements which deal with trade and business are connected with the term “business or trade” as reflected in citation (1) [1957] S.C.R. 874 and citation (2) 60 Law Ed. 679, and that they are not connected with the expression “freedom of speech.” Accordingly, the advertisements that the petitioners sought to prohibit do not fall within the protection guaranteed by Article 19(1)(a). The petitioners also contended that the prohibition on their advertisements amounted to a direct infringement of the right to freedom of speech and relied upon the decision in Alice Lee Grosjean v. The American Press Co. (1). In that case a tax had been imposed on gross receipts for the privilege of engaging in public advertising in newspapers, magazines and other periodicals having a specified circulation, and the Court held that the statute abridged the freedom of the press because its effect was not merely to reduce revenue but tended to curtail circulation. The same subject was examined in the Express Newspapers case (2) at pages 128 to 133, where the question was whether the Wage Board Act, by specifying wages and conditions of service for working journalists and thereby imposing a financial burden on the press, interfered with the freedom of the press. Bhagwati J. observed at page 135 that unless such consequences were direct or inevitable, the legislation could not be struck down as having that effect, noting that a possible eventuality of this type would not necessarily be contemplated by the legislature when enacting a measure intended for the benefit of the workmen concerned. In reviewing the constitutionality of a statute, the Court has emphasized that substance, not mere form, is the relevant consideration and that a statute must be examined according to its operation and effect, as stated in J.M. Near v. State of Minnesota (3). Applying this principle to the present matter, the Court concluded: (1) the advertisements affected by the Act do not fall within the phrase “freedom of speech” in Article 19(1)(a); (2) the true nature and character of the Act, as indicated by its scope and object, is not an interference with the right of freedom of speech, as supported by citations (1) 80 Law Ed. 660, (2) [1959] S.C.R. 12 pp. 123-133, and (3) 75 La-Ed. 1357 pp. 1363-1364, but rather it deals with trade or business; and (3) there is no direct abridgement of the right to free speech, and a mere incidental interference does not alter the character of the law, as affirmed in Ram Singh v. State of Delhi (1) and Express Newspapers (Private) Ltd. v. Union of India (2). The Court stressed that it is not the form or incidental infringement that determines the constitutionality of a statute in relation to the rights guaranteed by Article 19(1), but the reality and substance of the law. Consequently, the Act, when read as a whole, does not merely prohibit advertisements relating to drugs and medicines connected with diseases expressly mentioned in section 3, but extends to all advertisements that are objectionable or unethical and are used

The Act was enacted to prevent advertisements that promote self-medication or self-treatment, and that purpose forms the substantive content of the legislation. When the provision is read in that light, it does not single out any of the elements or attributes of the freedom of speech guaranteed by Article 19(1)(a) of the Constitution. The parties then argued that, even if the matter fell within clauses (f) and (g) of Article 19(1), the restriction imposed by the Act was disproportionate to the purpose that the statute seeks to achieve, to the object it intends to accomplish, and to the evil it strives to remedy. They further contended that it could not be said that the restrictions were made in the interest of the general public. The foundation of that submission rested on five points: (1) the very wide definition of “advertisement” in Section 2(a); (2) the use of the word “suggest” in Section 3; (3) the unchannelled 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 factors demonstrated that the law went beyond all permissible limits of restraint under clause 6 of Article 19. The argument advanced regarding the term “advertisement” was that the definition under the Act covered not only advertisements appearing in newspapers, periodicals and other publications but also those printed on cartons, bottles and the instructions placed inside a carton. Counsel submitted that without such forms of advertisement the user would be unable to know what the medicine was, what it was to be used for, and how it should be administered. The purpose of the Act, as identified by the parties, is to prevent objectionable and unethical advertisements so as to discourage self-medication and self-treatment; this purpose is supported by the judgments cited at [1951] S.C.R. 451, 455 and [1959] S.C.R. 12, 123, 133. In that context, it cannot be said that the definition of “advertisement” is overly broad, because a narrow definition would defeat the very object for which the Act was enacted. The contention that the word “suggest” is merely subjective was also rejected as ill-founded. “Suggest” possesses many shades of meaning, and within the context of Section 3 it signifies a commendatory publication, indicating a direct approach; its use therefore does not support the claim that the restriction is disproportionate. The judgment indicated that a separate discussion would address the constitutionality of the delegated power, the reasonableness of the range of diseases added to the schedule, and that it was unnecessary to revisit those points at this stage. The analysis then turned to Section 14(c) and Rule 6, which require that a prohibited advertisement be sent confidentially by post to a registered medical practitioner, or to a wholesale and retail chemist, or to a hospital or laboratory. Moreover, the exterior of every packet containing such an advertisement must bear the words “for the use only of registered medical practitioners or…”

The Court observed that the words “a hospital or a laboratory” were required to be printed on the outside of any packet containing an advertisement, and noted that if the purpose of such a requirement was to discourage self-medication and to encourage treatment by properly qualified medical practitioners, then the provision could not be characterised as an excessive restraint. The Court further held that the mere fact that the corresponding English legislation also mentions other categories of persons and permits advertisements to appear in certain medical journals and scientific treatises did not provide a basis for declaring the Indian restriction disproportionate. It was explained that comparing each provision of the Indian Act with the parallel provision in the English Act and declaring the Indian law unreasonable solely because the two sections differ was not a proper method of assessing reasonableness. The Court pointed out that although the evil sought to be avoided might be the same, the circumstances and conditions relating to medical journals in the two countries are different, and consequently there are bound to be variations in the degree of restrictiveness found in the operative parts of the two statutes. The policy underlying the Indian Act, the Court said, is that medication should be obtained only on the advice of qualified medical practitioners. The fact that the legislature chose not to exclude advertisements that appear in domestic medical journals therefore could not, by itself, demonstrate a disproportionate restraint.

Objections were then raised to the procedural provisions in section 8, with the contention that the powers of seizure and detention were unfettered and that no proper procedure was laid down in the Code of Criminal Procedure or the Drugs Act, leaving no rules or safeguards concerning warrants or entry into premises. The Court noted that this issue would be addressed in another portion of the judgment and that it was unnecessary to consider it at this point. The next argument advanced was that the Act did not serve the interest of the general public because it could be said that mentioning the names of diseases or giving instructions on the use of particular medicines for those diseases was not in the public interest. The Court observed that such a restriction would also prevent medicines from being brought to the notice of practising medical practitioners or distribution agencies. Moreover, it would prevent a properly worded advertisement that suggested a cure for diseases from reaching persons who, for reasons of prestige or other understandable motives, prefer not to disclose the nature of their illnesses, and it would therefore impede medical relief in a country where such relief is notoriously inadequate. The Court reiterated that it had already set out the purpose and scope of the Act, the conditions prevailing when it was passed, and the evils it intended to cure. If the object of the legislation was indeed to prevent self-medication or self-treatment, as appeared, then the advertisements that the Act seeks to restrain are precisely the means by which those evils would be propagated in the absence of the law. Consequently, the Court concluded that it had not been shown that the restrictions imposed by the Act are in any manner disproportionate to the objective the Act seeks to achieve, nor has any justification been advanced to demonstrate that the restrictions exceed permissible limits.

It had not been demonstrated that the restrictions imposed by the Act exceeded the limits that are permissible under the Constitution. In addressing this issue, counsel for the petitioner, Mr. Chatterjee, referred the Court to the test of reasonableness articulated in the decision of Chintaman Rao v. The State of Madhya Pradesh. In that case, Justice Mahajan, then serving on the bench, explained that the essential question is whether a statute, while claiming to protect public interests, arbitrarily interferes with private business and imposes regulations that are unreasonable or unnecessarily restrictive of a lawful occupation. He illustrated the point by asking whether an absolute ban on the manufacture of bidis during the agricultural season would constitute a reasonable restriction on the fundamental right guaranteed by article 19(1)(g) of the Constitution. The Court observed that, in the present matter, no evidence had been placed before it to show that, under the pretext of protecting public interest, the Act arbitrarily meddles with private enterprise or imposes unreasonable constraints. If, as the Act indeed intends, the purpose is to suppress objectionable and unethical advertisements that encourage self-medication, then no question of an unreasonable restriction arises. Counsel also cited the observation of Justice Bose in Dwarka Das Srinivas of Bombay v. The Sholapur Spinning & Weaving Company Limited, wherein the learned judge stated that constitutional provisions concerning fundamental rights must be interpreted broadly and liberally in favour of those to whom the rights are granted. The Court concurred with this approach, emphasizing that interpretation must protect citizens’ fundamental rights while remaining subject to the limitations set out in article 19, which are designed for the general welfare of all citizens taken collectively and therefore serve the public interest. Mr. Chatterjee further argued that the restraint was excessive because prohibiting even a simple mention of a disease name together with a suggestion of a cure might not constitute a reasonable restriction, as noted in the cited reports. However, as the Solicitor-General submitted, the objection is not to the mere use of disease names but to advertisements that promote specific medicines as cures, which is precisely what the Act seeks to eliminate. The Court held that the restrictions cannot be said to be excessive, disproportionate, or contrary to the public interest. A further point raised by counsel for the respondent, Mr. Munshi, concerned the wording in clause (d) of section 3 of the Act, which refers to “or any other disease or condition which may be specified in the rules made under this Act.” He claimed that this language constituted delegated legislation lacking clear criteria or standards and thus gave the executive unfettered power to add diseases to the schedule. The Solicitor-General responded that the schedule represents conditional legislation rather than an exercise of delegated legislative authority, and even if it were characterised as delegated legislation, the Court noted that such a classification would still fall within the constitutional limits recognised by judicial precedent.

The Court observed that the power in question fell within the limits recognised by judicial decisions. It then explained the difference between conditional legislation and delegated legislation. In conditional legislation the delegate’s authority consists only of deciding when a rule of conduct that the legislature has declared shall become effective, as illustrated in Hampton and Co. v. United States. By contrast, delegated legislation involves the delegation of rule-making power that may constitutionally be exercised by an administrative agent. This means that the legislature may set out the broad principles of its policy in the primary statute and may subsequently allow the administrative authority to supply the detailed provisions. In other words, delegated legislation permits the delegate to complete the primary legislation by providing details that are confined within the limits prescribed by the statute, whereas conditional legislation leaves to an external authority the discretion to determine the time, manner and geographic scope of the law’s operation, as seen in cases such as The Queen v. Burah, Russell v. The Queen, King-Emperor v. United States, Benoarilal Sarma and Sardar Indar Singh v. State of Rajasthan. Accordingly, when the delegate is empowered to make rules and regulations that fill in the details necessary to achieve the purposes of the principal legislation, to meet the statutory requirements and to create the rights intended to be enjoyed, that exercise is classified as delegated legislation. Conversely, when the primary legislation is complete in itself and the legislature has already enacted the law, and the only remaining function of the delegate is to apply the law to a particular area or to decide the time and manner of its enforcement, that situation constitutes conditional legislation. The Court quoted an American decision to illustrate that deeming a law inferior because it depends on a future event would deprive the legislature of the ability to act wisely for the public welfare in circumstances that are not yet developed or are inherently uncertain. The proper distinction, the Court explained, is that the legislature may not surrender its power to make law, but it may enact a law that delegates authority to determine certain facts or conditions on which the law’s operation depends. Many necessary considerations for sound legislation cannot be known at the time of enactment and must therefore be examined and resolved outside the legislature, as noted in cases such as Lockes Appeal and Field v. Clark. However, the delegated discretion must not be so expansive as to make its limits indiscernible; instead, clear and definite boundaries must be established within which the administrative authority may act.

It was observed that the authority of an administrative body may exercise its powers only within the boundaries set by law, and that any delegation of legislative power must not be so open-ended as to amount to a surrender of the legislative function. This principle was cited from a well-known treatise on administrative law, which warns that delegation should not be indefinite. The learned Solicitor General relied on an Australian decision, Baxter v. Ah Way, in which the court held that a proclamation prohibiting the import of certain goods under section 52 of the Customs Act 1901 constituted conditional legislation. That case explained that the legislature, when drafting a statute, must try to anticipate all likely future contingencies, but because it cannot enumerate every possible situation, it may resort to conditional legislation. Under such an approach the statute leaves it to a designated authority 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.

Having set out these general principles, the Court turned to the question of the nature of the power conferred by the present Act. The specific power granted to the administrative authority is contained in clause (d) of Section 3, 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 … 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.” The authority’s power to frame those rules is set out in Section 16. Section 16(1) provides that the Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of the Act. Section 16(2) adds, without limiting the general rule-making power, that such rules may, in particular, (a) specify any disease or condition to which the provisions of Section 3 shall apply, and (b) prescribe the manner in which advertisement of articles or things referred to in clause (c) of sub-section (1) of Section 14 may be sent confidentially.

The petitioner argued that Section 3(d) should be characterised as delegated legislation rather than conditional legislation because the power it confers is limited to the specification of diseases and conditions in the rules made under Section 16. According to this view, the prohibition within the Act applies to the conditions and diseases enumerated in the various clauses of Section 3, as well as to those that may later be added under the final part of clause (d) by rules made pursuant to Section 16. The first sub-section of Section 16, therefore, authorises the making of rules that are intended to give effect to the purposes of the Act.

The Court explained that the provision of the Act allowing the central government to make rules under section 16 (1) granted a general power to formulate regulations necessary to achieve the purpose of the legislation. Clause (a) of subsection (2) of the same section was described as merely an illustration of that general power, showing that the rule-making authority could specify the diseases or conditions to which the provisions of section 3 would apply. The Court cited the decision in King Emperor v. Sibnath Banerji to support the view that subsection 2(a) shared the same objective as subsection 1, namely the implementation of the Act’s purpose. Consequently, when the authority framed a schedule listing particular diseases and conditions, it exercised the same delegated authority that it exercised when issuing other rules under subsection 1. The Court therefore classified the schedule as delegated legislation. The pivotal issue, the Court noted, was whether such delegation was constitutionally valid, that is, whether the legislature had supplied sufficient guidance to the administrative authority. In the Court’s opinion, the challenged wording was vague because Parliament had failed to lay down any criteria, standards, or principles for determining which disease or condition could be placed in the schedule. No facts or circumstances were identified that would guide the inclusion of a specific condition or disease. As a result, the power to specify diseases and conditions under section 3(d) was held to exceed the limits of permissible delegation. Consequently, the Court ruled that the schedule contained in the rules must be struck down, although this would not affect conditions and diseases that fall within the other four clauses of section 3, except for the portion of clause (d) that had been declared unconstitutional. The Court also stated that it was unnecessary to examine the relevance of the case cited as Baxter v. Ah Way. It concluded that the phrase “or any other disease or condition which may be specified in the rules made under this Act” conferred an unbounded and uncontrolled power on the Executive and was therefore ultra vires. However, the removal of this phrase from clause (d) of section 3 did not undermine the constitutionality of the remaining part of the clause or of the section, as the severability principle applied, referencing the decision in R. M. D. Chamarbaughwala v. The Union of India.

The Court further addressed the challenge to section 8 of the Act, which was alleged to infringe the petitioners’ rights under Articles 21 and 31. The provision, when read in full, empowered any person authorized by the State Government to seize and detain any document, article, or thing that the authorized person believed contained an advertisement contravening any provision of the Act. The provision also allowed a court hearing such a contravention to order that the seized item, together with all its copies, be forfeited to the Government. The Court noted that counsel had pointed out the absence of any limitation, rule, or safeguard governing the exercise of this seizure and detention power. It was observed that, unlike the corresponding English Act of 1939 where section 10 provided specific safeguards for the exercise of seizure powers, the Indian legislation contained no such protective measures. The Solicitor-General had argued that, given the purpose and object of the Act, the legislature deemed safeguards unnecessary and believed that no prejudice would result from the lack of safeguards prior to seizure. The Court, however, expressed the view that this portion of section 8 extended beyond the intended purpose of the legislation, thereby raising constitutional concerns.

It was observed that the legislation did not impose any limitation, did not prescribe any rules or regulations, and did not provide any safeguards concerning the authority granted to any person authorized by the Government to seize and detain any document, article or any other item that, in the opinion of that person, contained an advertisement contravening any provision of the Act. The petitioners further pointed out that the corresponding English Act of 1939, in section 10, contained appropriate safeguards governing the exercise of seizure powers. The first part of section 8 of the Indian Act, which dealt with seizure and detention, received only limited support from the Solicitor-General. He argued that, given the purpose and object of the Act, the Indian legislature had not deemed safeguards necessary and presumed that no prejudice would arise from the absence of safeguards prior to seizure. In the Court’s view, this portion of the section extended far beyond the purpose for which the Act was enacted. The Court held that the lack of safeguards, which the legislature had deemed necessary and expedient in other statutes such as the Indian Drugs Act, constituted an unreasonable restriction on the petitioners’ fundamental rights and therefore rendered the first part of the section—namely the phrase “any person authorised by any of the provisions of this Act”—unconstitutional. The Court then considered the consequence of this unconstitutionality. It concluded that if the offending portion were removed, the remaining language of the section would become unintelligible and could not be sustained; consequently, the entire section had to be struck down. The Court noted that declaring a portion of clause (d) of section 3 and the whole of section 8 unconstitutional did not affect the rest of the Act because those provisions were severable. As a result of excising the unconstitutional portion, the operation of the remaining provisions of the Act continued unimpaired. Because section 8 was held invalid, all goods that had been seized from the petitioners without legal authority were required to be returned to them. The Court further directed that the Government should pursue any further action or prosecutions in accordance with the law laid down in this judgment. Accordingly, the Court declared the indicated portion of clause (d) of section 3 and section 8 unconstitutional and ordered that a writ of mandamus be issued directing the respondents to return the seized goods. Since the petitioners’ challenge to the constitutionality of the Act was only partially successful, the Court ordered that each party bear its own costs and that the petitions be partly allowed.