Topic: Hamdard Dawakhana v. Union of India - commercial advertisement do not fall within Article 19(1)(a)
Hamdard Dawakhana v. Union of India
Equivalent citations: 1960 AIR 554, 1960 SCR (2) 671 - Bench: Sinha, Bhuvneshwar P.(Cj), Imam, Syed Jaffer, Kapur, J.L., Wanchoo, K.N., Gupta, K.C. Das - Citation: 1960 Air 554 1960 Scr (2) 671 - Citator Info: RF 1961 SC 4 (15), D 1962 SC 305 (43), D 1962 SC 562 (7), R 1962 SC1006 (70), R 1962 SC1263 (10), R 1964 SC 925 (35,67), R 1964 SC 980 (9), RF 1967 SC 1 (138), RF 1967 SC 212 (26), RF 1967 SC1048 (20), RF 1968 SC1232 (17,53), E 1973 SC 106 (28,35,36,66,127), R 1978 SC 597 (189,202), RF 1983 SC1155 (20), E 1986 SC 515 (90), R 1990 SC 560 (13), RF 1991 SC 672 (33) - Date of Judgment: 18/12/1959
advertisement of a commercial nature cannot fall within the concept of Article 19(1)(a)
Advertisement, Control of-Advertisement, when relates to freedom of speech-Statute prohibiting advertisements of drugs for certain diseases-Constitutionality of-Whether curtails freedom of speech-Conferment of power on executive to add to diseases falling within mischief of statute-If amounts to delegation of legislative power-Statute empowering executive to seize offending articles, without providing safeguards-Whether imposes reasonable restrictions-Constitution of India, Arts. 19(1)(a), 19(1)(g), 19(1)(f) and 19(6). The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (21 of 1954), ss. 2(a), 3(d), 8 and 14(c).
When an enactment is challenged on the ground of violation of fundamental rights it is necessary to ascertain its true nature and character, i.e., its subject matter, the area in which it is intended to operate, its purport and intent. In order to do so it is legitimate to take into consideration all the factors such as the history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief intended to be suppressed, the remedy proposed by the legislature and the true reason for the remedy. Initially, there is a presumption in favour of the constitutionality of an enactment.
Bengal Immunity Company Ltd. v. The State of Bihar,  2 S.C.R. 603, R. M. D. Chamarbaughwala v. The Union of India,  S.C.R 930, Mahant Moti Das & Others v. S. P. Saki, A.I.R. 1959 S.C. 942, Charanjit Lal Chowdhuri v. The Union of India & Others,  S.C.R. 869 and The State of Bombay v. F. N. Bulsara,  S.C.R. 682, referred to. On examining the history of the legislation, the surrounding circumstances and the scheme of the Act it was clear that the object of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954, was the prevention of self- medication and self-treatment by prohibiting instruments which may be used to advocate the same or which tended to spread the evil. Its object was not merely the stopping of advertisements offending against morality and decency. Advertisement is no doubt a form of speech, but its true character is reflected by the object for the promotion of which it is employed. It is only when an advertisement is concerned with the expression or propagation of ideas that it can be said to relate to freedom of speech. But it cannot be said that the right
to publish and distribute commercial advertisements advertising an individual's personal business is a part of the freedom of speech guaranteed by the Constitution. The provisions of the Act which prohibited advertisements commending the efficacy, value and importance in the treatment of particular diseases of certain drugs and medicines did not fall under Art. 19(1)(a) of the Constitution. The scope and object of the Act its true nature and character was not interference with the right of freedom of speech but it dealt with trade and business. Lewis J. Valentine v. F. J. Chrestensen, 86 Law. Ed. 1262; R. M. D. Chamarbaughwala v. The Union of India,  S.C.R. 930, State of Bombay v. R. M. D. Chamarbaughwala,  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,  S.C.R. 12 and J. M. Near v. State of Minnesota, 75 Law. Ed. 1357, referred to. The definition of " advertisement " which included labels on cartons and bottles and instructions inside cartons was not too wide in view of the object of the Act. If the definition was not so broad and inclusive it would defeat the very purpose for which the Act was brought into' existence. The use of the word " suggest " in s. 3 did not support the contention that the restraint placed by that section was disproportionate. The provisions Of S. 14(c) and r. 6 which allowed the prohibited advertisements to be sent confidentially by post to a registered medical practi- tioner, to a wholesale or retail chemist, to a hospital or a laboratory only when the words " for-the use only of registered medical practitioners or a hospital or a laboratory " had been inscribed on the outside of every packet containing the advertisement did not impose excessive restraint. The provisions of the Act were in the interests of the general public and placed reasonable restrictions on the trade and business of the petitioners and were saved by Art. 19(6).
Chintaman Rao v. The State of Madhya Pradesh,  S.C.R. 759 and Dwarka Das Srinivas of Bombay v. The Sholapur Spinning & Weaving Company Limited,  S.C.R. 674, referred to.
The words " or any other disease or condition which may be specified in the rules made under this Act " in cl. (d) Of S. 3 which empowered the Central Government to add to the diseases falling within the mischief Of s. 3 conferred uncanalised and uncontrolled power on the executive and were ultra vires. The legislature had established no criteria or standards and had not prescribed any principle on which a particular disease or condition was to be specified. As a consequence the Schedule to the rules also become ultra vires. But the striking down of the impugned words did not affect the validity of the rest of cl. (d) or of the other clauses of S. 3 as these words were severable. 673
The first part of s. 8 which empowered any person authorised by the State Government in this behalf to seize and detain any document, article or thing which such person had reason to believe contained any advertisement contravening the provisions of the Act imposed an unreasonable restriction on the fundamental rights of the petitioners and was unconstitutional. This portion of s. 8 went far beyond the purpose for which the Act was enacted and failed to provide proper safeguards in regard to the exercise of the power of seizure and detention as had been provided by the legislature in other statutes. If this portion was excised from the section the remaining portion would be unintel- ligible and could not be upheld.
By a portion of cl. (d) of s. 3 and the whole of s. 8 being declared unconstitutional, the operation of the remaining portion of the Act remained unimpaired as these were severable.
R. M. D. Chamarbaughwala v. Union of India  S.C.R. 930, referred to.
ORIGINAL JURISDICTION: Petition Nos. 81, 62, 63 & 3 of 1959. Petition under Art. 32 of the Constitution of India for enforcement of Fundamental rights.
K. M. Munshi, N. C. Chatterjee, L. R. Das Gupta, G. K. Munshi, D. N. Mukherjee and R. Gopalakrishnan, for the petitioners.
C. K. Daphtary, Solicitor-General of India, H. N. Sanyal, Additional Solicitor-General of India, B. R. L. Iyengar, R. H. Dhebar and T. M. Sen, for respondents Nos. 1 to 10 (in Petn. No. 81 of 59), Nos. 1 to 3 (in Petn. No. 62 of 59), No. 1 (in Petns. Nos. 63 and 3 of 59) and Nos. 2 and 3 (in Petn. No. 3 of 59).
G.N. Dikshit and C. P. Lal, for respondent No. 11 (in Petn. No. 81 of 59) and No. 2 (in Petn. No. 63 of 59). R. Gopalakrishnan, for the intervener.
1959. December 18. The Judgment of the court was delivered by
KAPUR, J.-These petitions under Art. 32 of the Constitution raise the question of the constitutionality of the Drug and Magic Remedies (Objectionable Advertisement) Act (XXI of 1954) hereinafter referred to as the Act. As the petitions raise a common question of law they may conveniently be disposed of by one judgment.
The allegation of the petitioners was that various actions had been taken against them by the respond which violated their fundamental rights under Art. 19(1)(a) and 19(1)(f) & (g). They also challenged the Act because it contrvened the provisions of Art. 14 and Arts. 21 and 31. The Act passed on April 30, 1954, came into force on April 1, 1955, along with the rules made thereunder. As provided in its preamble it was
"An Act to control the advertisement of drugs in certain cases, to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith."
The petitioners in Writ Petition No. 81 of 1959, the Hamdard Dawakhana (Wakf) and another, alleged that soon after the Act came into force they experienced difficulty in the matter of publicity for their products and various objections were raised by the authorities in regard to their advertisements. On December 4, 1958, the Drugs Controller, Delhi, intimated to the petitioners that the provisions of s. 3 of the Act had been contravened by them and called upon them to recall their products sent to Bombay and other States. As a result of this, correspondence ensued between the petitioners and the authorities. On December 4, 1958, the Drugs Controller, Delhi State, stopped the sale of forty of their products set out in the petition. Subsequently, objection was taken by the Drugs Controller to the advertisements in regard to other drugs. Similarly objections were taken by the Drugs Controllers of other States to various advertisements in regard to medicines and drugs prepared by the petitioners. They submitted that the various advertisements which had been objected to were pre- pared in accordance with the Unani system and the drugs bore Unani nomenclature which had been recognised in the whole world for several centuries past. The Act is assailed on the ground of discrimination under Art. 14, excessive delegation and infringement of the right of free speech under Art. 19(1)(a) and their right to carry on trade and business under
Art. 19(1)(f) & (g). Objection is also taken under Arts. 21 and 31. The petitioners therefore prayed for a declaration that the Act and the Rules made there under were ultra vires and void as violative of Part III of the Constitution and for the issuing of a writ of Mandamus and Prohibition and for quashing the proceedings and the notices issued by the various authorities-the respondents.
In their counter affidavit the respondents submitted that the method and manner of advertisement of drugs by the petitioners and others clearly indicated the necessity of having an Act like the impugned Act and its rigorous enforcement. The allegations in regard to discrimination and impairment of fundamental rights under Art. 19(1)(a), (f) & (g) and any infringement of Arts. 21 and 31 were denied and it was stated :-
" The restriction is about the advertisement to the people in general. I say that the main object and purpose of the Act is to prevent people from self medicating with regard to various serious diseases. Self-medication in respect of diseases of serious nature mentioned in the Act and the Rules has a deleterious effect on the health of the community and is likely to affect the well-being of the people. Having thus found that some medicines have tendency to induce people to resort to self-medication by reason of elated advertisements, it was thought necessary in the interest of public health that the puffing up of the advertisements is put to a complete check and that the manufacturers are compelled to route their products through recognised sources so that the products of these manufacturer could be put to valid and proper test and consideration by expert agencies."
It was also pleaded that the advertisements were of an objectionable character and taking into consideration the mode and method of advertising conducted by the petitioners the implementation of the provisions of the impugned Act was justified. Along with their counter-affidavit the respondents have placed on record Ext.-A, which is a copy of the literature which
accompanied one of the various medicines put on sale by the petitioners and/or was stated on the cartons in which the medicine was contained. In their affidavit in rejoinder the petitioners reiterated that Unani and Ayurvedic systems had been discriminated against; that self-medication had no deleterious effect on the health of the community; on the contrary it-
" is likely to affect the well-being of the people, in the context of effective household and domestic remedies based on local herbs popularly known to them in rural areas. Self-medication has its permission (?) limits even in America and Canada where unlicensed itinerant vendors serve the people effectively."
For the petitioners in all the petitions Mr. Munshi raised four points:
(1) Advertisement is a vehicle by means of which freedom of speech guaranteed under Art. 19(1)(a) is exercised and the restrictions which are imposed by the Act are such that they are not covered by cl. (2) of Art. 19 ;
(2)That Act, the Rules made thereunder and the schedule in the rules impose arbitrary and excessive restrictions on the rights guaranteed to the petitioners by Art. 19(1)(f) & (g); (3) Section 3 of the Act surrenders unguided and uncanalised power to the executive to add to the diseases enumerated in s. 3;
(4) Power of confiscation under s. 8 of the Act is violative of the rights under Arts. 21 and 31 of the Constitution.
In Petitions Nos. 62 and 63 of 1939 which relate to two branches of Sadhana Ausadhalaya at Poona and Allahabad respectively, Mr. N. C. Chatterjee, after giving the peculiar facts of those petitions and the fact that the petitioners' Poona branch was raided without a warrant, a number of medicines had been seized, and a complaint filed against the petitioners in that petition, submitted that s. 3(b) of the Act was meant to strike down abnormal sexual activities, that advertisements in that case merely mentioned the names of the diseases and suggested the drug for the treatment
of those diseases, that the prohibition of such adver- tisements was an unreasonable restriction on their fundamental right; that there was nothing indecent in saying that their medicine was a cure for a particular disease and that the Act was an undue interference with cure and treatment of diseases.
We now proceed to consider the vitality of the arguments raised on behalf of the petitioners. Firstly it was submitted that the restriction on advertisements was a direct abridgement of the right of free speech and advertisements could not be brought out of the guaranteed freedom under Art. 19(1)(a) because no dividing line could be drawn and freedom of speech could not be curtailed by making it subject to any other activity. The learned Solicitor-General on the otherhand, contended that it was necessary to examine the pith and substance of the impugned Act and if it was properly considered it could not be said to have in any way curtailed, abridged or impaired the rights guaranteed to the petitioners under Art, 19(1)(a). He also contended that the prohibited advertisements did not fall within the connotation of " freedom of speech ". The doctrine of pith and substance,, submitted Mr. Munshi, was created for the purpose of determining the legislative competence of a legislature to enact a law and he sought to get support from the following observation of Venkatarama Aiyar, J., in A. S. Krishna v. State of Madras (1) :- "...... and the Privy Council had time and again to pass on the constitutionality of laws made by the Dominion and Provincial legislatures. It was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires regard must be had to its pith and substance. "
Though the doctrine of ' pith and substance' was evolved to determine the constitutionality of an enactment in reference to the legislative competence of a legislature particularly under a federal constitution with a distributive system of powers it has been used in other contexts in some cases, e.g., in connection
(1)  S.C.R. 399,406,410.
with the determination of the constitutionality of statutes restricting the rights to carry on certain activities and the consequent infringement of Art. 19(1)(g) : by Mahajan, C.J., in Cooverjee B. Bharucha v. The Excise Commissioner & The Chief Commissioner of Ajmer (1) in the case of Excise Regulation of 1915 regulating the import, export, transport, manufacture, sale and possession of intoxicating drugs and liquor and imposing duties thereon; by Das, C.J., in State of Bombay v. R. M. D. Chamarbughwala (2) in connection with a statute which was held not to be interference with trade, commerce or intercourse as such but to save it from anti-social activities.
It is unnecessary to decide in the present case whether in its scope it extends to the determination of the constitutionality of an enactment with reference to the various sub-clauses of cl. (1)of Art. 19. A more appropriate approach to the question is, in our opinion, contained in the dictum of Mahajan, J. (as he then was) in M/s. Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh (3). There he held that " in order to decide whether a particular legislative measure contravenes any of the provisions of Part III of the Constitution it is necessary to examine with some strictness the substance of the legislation in order to decide what the legislature has really done. Of course the legislature cannot bypass such constitutional prohibition by employing indirect methods and therefore the Court has to look behind the form and appearance to discover the true character and nature of the legislation. "
Therefore, when the constitutionality of an enactment is- ,challenged on the ground of violation of any of the articles in Part 111 of the Constitution, the ascertainment of its true nature and character becomes necessary, i.e., its subject matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the
(1)  S.C.R. 873, 877. (2)  S.C.R. 874. (3)  S.C.R. 674, 682.
surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy; Bengal Immunity Company Ltd. v. The State of Bihar (1); R.M.D. Chamarbaughwala v. The Union of India (2) Mahant Moti Das & Ors. v. S. P. Sahi ( 3). Another principle which has to borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the need of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment. Charanjit Lal Chowdhuri v. The Union of India & Ors.(4); The State of Bombay v. F.N. Bulsara (5); Mahant Moti Das v. S. P. Sahi (3).
What then was the history behind the impugned legislation and what was the material before the Parliament upon which it set to enact the impugned Act.
(1) In 1927 a resolution was adopted by then Council of State recommending to the Central and Provincial Governments to take immediate measures to control the indiscriminate use of medical drugs and for standardisation of the preparation and for the sale of such drugs. In August 1930, in response to the public opinion on the subject and in pursuance of that resolution the Government of India appointed the Drugs Enquiry Committee with Sir R. N. Chopra as its Chairman to enquire into the extent of the quality and strength of drugs imported, manufactured or sold in India and to recommend steps for controlling such imports, manufacture and sale in the interest of the public. This Committee made a report pointing out the necessity of exercising control over import,
(1)  2 S.C.R. 603, 632 & 633.
(2)  S.C.R. 930, 936.
(3) A.I.R. (1959) S.C. 942, 948.
(4)  S.C.R. 869,
(5)  S.C.R. 682, 708.
manufacture and sale of patent and proprietary medicines in the interest of the safety of the public and public health. The report pointed out in paragraph 256-259 how in other countries control was exercised and restrictive laws to achieve that end had been enacted. In the Appendix to this Report was given a list of a number of samples of advertisements of patent and proprietary medicines dealing with cures of all kinds of diseases.
(2) As a result of the Chopra Committee Report the `Drugs act, was passed in 1940.
(3)In 1948 The Pharmacy Act was passed to regulate the provisions of pharmacy. As a result of these two enactments the State Governments were given the responsibility of controlling the manufacture of drugs and pharmaceuticals and their sales through qualified personnel and the Central Government was given the control on quality of drugs and pharmaceuticals imported into the country. (4)The Chopra Committee Report dealt with the popularity of the patent and proprietary medicines in the following words: "The pride of place must be accorded to ingenious propaganda clever and attractive dissemination of their supposed virtues and wide and alluring advertisements. The credulity and gullibility of the masses, especially when 'certain cures' are assured in utterly hopeless cases, can well be imagined. Perusal of the advertisements of cures' produces a great effect on patients who have tried treatment by medical men without success. Such patients resort to any and every drug that comes in their way. In an infinitesimal small number of cases spontaneous cures are also effected. Widest publicity is given to these and the preparations become invested with miraculous virtues. The reassurances of cure, the force of argument advanced to guarantee it and the certificates of persons said to have been cured which are all set out in advertisements make a deep impression, especially on those with weak nerves. The love of mystery and secrecy inherent in human nature, the natural disinclination and
shyness to disclose details of one's illness especially those involving moral turpitude, the peculiar temperament of the people who, high and low, rich and poor, demand 'something in a bottle' for the treatment of every ailment and poverty of the people who cannot afford to pay the doctor's bills or the high prices current for dispensed medicines,' have all been enlarged upon as tending to self- diagnosis and self-medication by patent and proprietary medicines."
(5)Evidence was led before the Chopra Committee deprecating the increasing sale of proprietary medicines particularly those with secret formulae as such drugs were positively harmful and were a serious and increasing menace. There were advertisements and pamphlets issued in connection with these medicines which showed fraudulent practices and extravagant claims for these medicines.
(6)The Chopra Committee Report had also made a recommendation for a strict measure of control over proprietary medicines.
(7) The Bhatia Committee was set up in pursuance to a resolution No. CI-1(12)/52 dated February 14, 1953, and between March 1953, and end of that year it examined a large number of witnesses in different towns of India some of whom represented chemists and druggists, some were leading medical practitioners and some were State Ministers for Health. The Bhatia Committee issued a Questionnaire to various organisations and witnesses. It contained questions in regard to advertisement of drugs and therefore one of the objects of this Committee which was inaugurated by the Health Minister on March 12, 1953, was amongst other things to look into the control to be exercised over objectionable and unethical advertisements.
(8) There were a large number of objectionable advertisements in the Press in regard to patent medicines which were after the Act came into force pointed out by the Press Commission Report but it cannot be said that this fact was unknown to Parliament as this Committee also examined a number of witnesses.
(9) The Indian Medical Association had suggested to this Press Committee which was presided over by the late Mr. Justice Rajadhyaksha the barring of advertisements of medicines which claim to cure or alleviate any of the following diseases:
Cancer, Bright's disease, Cataract, Diabetes, Epilepsy, Glaucoma, Locomotor ataxia, Paralysis, Tuberculosis. (10) In the United Kingdom, advertisements of drugs or treatment for these diseases are governed by the Cancer Act of 1939 and the Pharmacy and Medi. cines Act of 1941. (Advertisement relating to the treatment of venereal diseases are governed by the Venereal Diseases Act of 1917). (11) Wyndham E.B. Lloyd in his book ' Hundred years of medicine' published in 1936 wrote about the outstanding evils which arise from the use of secret remedies and nostrums. It also drew attention to the dangers of advertisements in regard to them and what the British Medical Association had said about them.
(12)The British Medical Association had in a book entitled 'Secret Remedies What they cost and contain' exposed ruthlessly the harmful effects of such remedies. The council on Pharmacy and Chemistry of American Medical Association had also given its opinion on the harmful effects of indiscriminate self-medication by the public and the grave danger which ensued from such misdirected and inadequate treatment, and the failure to recognise seriousness of the disease only when it was too late. It is not necessary to refer to the recommendations of the Bhatia Committee or the Press Enquiry Committee because they were published in June and July 1954 respectively. In England as far back as 1889, an Act called the Indecent Advertisements Act (52 and 53 Viet. Ch. 18) was passed to suppress indecent advertisements in which advertisements relating to syphilis, gonorrhoea, nervous debility or other complaints or infirmity arising from intercourse was prohibited. In 1917 the Venereal Diseases Act (7 and 8 Geo. V Ch. 21) was passed in England. This placed restrictions on
advertisements relating to treatment for venereal diseases. In 1941, The Pharmacy and Medicine Act, 1941 (4 and 5 Geo. VI Ch. 42) was passed which corres- ponds in material particulars to the impugned Act. It cannot be said that there was no material before Parliament on the basis of which it proceeded to enact the impugned legislation. This material shows the bistory of the legislation, the ascertained evil intended to be cured and the circumstances in which the enactment was passed. In Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar (1), Das, C.J., observed :-
" that in order to sustain the presumption of con- stitutionality the court may take into consideration matters of common knowledge, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation;"
Thus it is open to the court for the purpose of determining the constitutionality of the Act to take all these facts into consideration and in the present case we find that there was the evil of self-medication, which both in this country and in other countries, the medical profession and those, who were conversant with its dangers, had brought to the notice of the people at large and the Government in particular. They had also warned against the dangers of self-medication and of the consequences of unethical advertisement relating to proprietary medicines particularising those diseases which were more likely to be affected by the evil. There is reason, therefore, for us to assume that the state of facts existed at the time of the legislation which necessitated the Act. These facts we have already set out and it is not necessary to reiterate them. With this background in view we proceed to examine the provisions of the Act and ascertain the predominant purpose, true intent, scope and the object of the Act. The preamble shows that the object of the Act was to control the advertisement of drugs in certain cases, i.e., diseases and to prohibit advertisements relating to remedies pretending to have magic qualities and provide for other matters connected therewith,
(1)  S.C.R. 279, 297.
The title of the Act also shows that it is directed against objectionable advertisements. The definition section (s. 2) in cl. (a) defines advertisements and in cl. (b) drugs which include (i) medicines for use of human beings and animals, (ii) substances for use of diagnosis, treatment or prevention of diseases in human beings and animals, (iii) articles other than food which- affect the organic functions of the body of human beings or animals and (iv) articles intended for use as a component of any medicine etc., cl. (c) defines magic remedies to include a talisman, mantra, kavacha and other charms and (d) relates to the publication of any advertisement and (e) what a venereal disease is. Section 3 prohibits advertisement of drugs for treatment of diseases and disorders. Clause (a) of s. 3 deals with procurement of miscarriage in women for prevention of conception; cl. (b) with maintenance or improvement of capacity of human beings for sexual pleasure; cl. (c) with diagnosis and cure of venereal and other diseases. Section 4 prohibits misleading advertisements relating to drugs. Section 5 similarly prohibits advertisements of magic remedies efficacious for purposes specified in s. 3. Section 6 prohibits the import into and export from India of certain advertisement. Section 14 is a saving clause which excludes registered practitioners, treatises or books,, advertisements sent confidentially to medical practitioners, wholesale or retail chemists for distribution among registered medical practitioners or to hospitals or laboratories. It also excludes advertisements printed or published by Government or with the previous sanction of the Government. Section 15 gives the Government the power to grant exemptions from the application of ss. 3, 4, 5 and 6 in certain cases.
As already stated when an enactment is impugned on the ground that it is ultra vires and unconstitutional what has to be ascertained is the true character of the legislation and, for that purpose regard must be had to the enactment as a whole, to its objects, purpose and true intention and to the scope and effect of its provisions or what they are directed against and what they aim at (A. S. Krishna v. State of Madras (1)). Thus
(1)  S.C.R. 399, 4060 410.
examined it cannot be said that the object of the Act was merely to put a curb on advertisements which offend against decency or morality but the object truly, and properly understood is to prevent self-medication or treatment by prohibiting instruments which may be used to advocate the same or which tend to spread the evil. No doubt in s. 3 diseases are expressly mentioned which have relation to sex and disorders peculiar to women but taken as a whole it cannot be said that the object of the Act was to deal only with matters which relate to indecency or immorality. The name and the preamble are indicative of the purpose being the control of all advertisements relating to drugs and the use of the word animals in cl. (b) of the definition section negatives the object being merely to curb the emphasis on sex and indecency. Section 4 further suggests that the legislature was trying to stop misleading advertisements relating to drugs. Section 5 also tends to support the object being prohibition of advertisements suggesting remedies for all kinds of diseases. Section 6 also points in the same direction, i.e., to stop advertisements as to drugs. Sections 14 and 15 are a clearer indication that there should be no advertisements for drugs for certain diseases in order that the general public may not be misled into using them for ailments which they may imagine they are suffering from and which they might believe to be curable thereby. That this is so is shown by the fact that such advertisements can be sent to medical practitioners, hospitals and laboratories. The exclusion of Government advertisements and the power to give exemption all point to the objective being the stopping of advertisements of drugs for the object above-mentioned and not merely to stop advertisements offending against morality and decency. Mr. Munshi's argument was that s. 3 was the key to the Act and that the object and direct effect of the Act was to stop advertisements and thereby impair the right of free speech by directly putting a prohibition on advertisement. If the contention of Mr. Munshi were accepted then the restriction to be valid, must fall within cl. (2) of Art. 19 of the Constitution. In
other words it must have relationship with decency or morality because the other restrictions of that clause have no application. If on the other hand the submission of the learned Solicitor-General is accepted then the matter would fall under sub-cls. (f) and (g) and the restriction under Art. 19(6). The object of the Act as shown by the scheme of the Act and as stated in the affidavit of Mr. Merchant is the prevention of self-medication and self- treatment and a curb on such advertisements is a means to achieve that end. Objection was taken that the preamble in the Act does not indicate the object to be the prevention of treatment of diseases otherwise than by qualified medical practitioners as the English Venereal Diseases Act 1917 does. In this Court in many cases affidavits were allowed to be given to show the reasons for the enactment of a law, the circumstances in which it was conceived and the evils it was to cure. This was done in the case of Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar (1). Similarly, in Kathi Raning v. The State of Saurashtra (2 ) and in Kavalap- para Kottarathil Kochunni v. The State of Madras (3) affidavits were allowed to be filed setting out in detail the circumstances which led to the passing of the respective enactments.
In support of his argument that any limitation of his right to advertise his goods was an infringement of his freedom of speech because advertisement was a part of that freedom Mr. Munshi relied upon Alma Lovell v. City of Griffin (4). In that case the objection was taken to the validity of a municipal ordinance prohibiting the distribution without a permit of circulars, handbooks, advertising or literature of any kind on the ground that such ordinance violated the first and the 14th amendment by abridging the freedom of the Press and it was held that such prohibition was invalid at its face as infringing the constitutional freedom of the Press and constitutional guarantee of such freedom embraced pamphlets and leaflets. The actual violation which was complained of in that case consisted of the (1)  S.C.R. 279.
(2) (1952) S.C.R. 435.
(3) A.I.R. (1959) S.C. 725.
(4) 82 Law Ed. 949; 303 U.S. 444.
distribution without the required permission of pamphlets and magazines in the nature of religious tracts. Chief Justice Hughes, said :-
" The ordinance in its broad sweep prohibits the distribution of "circulars, handbooks, advertising or literature of any kind." It manifestly applies to pamphlets, magazines and periodicals."
No doubt the word advertisement was used both in the ordinance as well as in the opinion by the learned Chief Justice but the case actually related to the distribution of pamphlets and magazines. Mr. Munshi also relied on Express Newspapers (Private) Ltd. v. The, Union of India (1), where the cases dealing with freedom of speech were discussed by Bhagwati, J., but the question of advertisements as such did not arise in that case.