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, [1955] 2 S.C.R. 603, R. M. D. Chamarbaughwala v. The Union of India, [1957]    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, [1950] S.C.R. 869 and The State of Bombay v. F. N. Bulsara, [1951] 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, [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, 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, [1950] S.C.R. 759 and Dwarka Das Srinivas of Bombay v. The Sholapur Spinning & Weaving Company Limited,    [1954]    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 [1957] 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) [1957] 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) [1954] S.C.R. 873, 877. (2) [1957] S.C.R. 874. (3) [1954] 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) [1955] 2 S.C.R. 603, 632 & 633.

(2) [1957] S.C.R. 930, 936.

(3) A.I.R. (1959) S.C. 942, 948.

(4) [1950] S.C.R. 869,

(5) [1951] 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) [1959] 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) [1957] 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) [1959] 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.

Re: Hamdard Dawakhana v. Union of India - commercial advertisement do not fall within Article 19(1)(a)

An 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 assumes the attributes and elements of the activity under Art. 19(1) which it seeks to aid by bringing it to the notice of the public. When it takes     the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is not propagation of ideas- social,     political or economic or furtherance of literature or human thought ; but as    in the     present case     the commendation of the efficacy, value     and importance in treatment of particular diseases by     certain drugs     and medicines. In    such a case, advertisement is     a part of business even though as described by Mr. Munshi its creative part, and it was being used for the purpose of furthering the business of the petitioners and had no relationship with what may be called the essential concept of the freedom of speech.     It cannot be said that the right to    publish     and distribute commercial     advertisements advertising     an individual's personal    business is a part of     freedom of speech     guaranteed by     the Constitution. In Lewis     J. Valentine v. F. J. Chrestensen (2). It was held that     the constitutional right of free speech is not infringed by (1) (1959) S.C.R. 12,123-133.

(2) 86 Law. Ed. 1262.


prohibiting the distribution in city streets of handbills bearing on one side a protest against action taken by public officials and on the other advertising matter.     The object of affixing of the protest to the advertising     circularwas the evasion of the    prohibition of     a city ordinance forbidding the distribution    in the     city    streets     of commercial and     business advertising matter.    Mr. Justice Roberts, delivering the opinion of the court said:- " 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." It cannot be said therefore that every advertisement is a matter    dealing     with freedom of speech nor can it be    said that it is an expression of ideas. In every case one has to see what is the nature of the advertisement and    what activity falling under Art. 19(1) it seeks to further.     The advertisements    in the instant case relate to    commerce or trade and not to propagating of ideas; and advertising of prohibited drugs or commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of freedom of speech and would not fall within Art. 19(1)(a).     The main purpose and true intent and    aim, object and scope of the Act is to prevent self-medication or self-treatment     and for that purpose advertisements commending certain drugs and medicines have been prohibited. Can it     be said that     this is an abridgement of     the petitioners' right of free speech. In our opinion it is not. Just as in Chamarbaughwalla's ease (1) it was    said that activities undertaken and

(1) [1957] S.C.R. 930.


carried, on with a view to earning profits e.g. the business of betting and gambling will not be protected     as falling within    the guaranteed right of carrying on     business or trade, so it cannot be said that an advertisement commending drugs and substances    as appropriate     cure for certain diseases is an exercise of the right of freedom of speech. Das, C.J., in State Bombay v. R.M.D. Chamarbaughwala's     (1) case said at, page 920:

"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."

One has only to substitute for the words "trade or business or commerce" the phrase "freedom of speech" to see how it applies to the present case. Freedom of speech goes to     the heart of the natural right of an organised freedom-loving society to "impart and acquire information about that common interest". If any limitation is placed which results in the society being deprived of such right then no doubt it would fall within the guaranteed freedom under Art. 19(1)(a).     But if all it does is that it deprives a trader from commending his wares it would not fall within that term.    In John W. Rast v. Van Deman & Lewis Company (2), Mr. Justice McKenna, dealing with advertisements said:-

"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."

As we     have said above advertisement takes the    same attributes as the object it seeks to promote or bring to the notice    of the public to be used by it. Examples can be multiplied which would show that advertisement dealing    with trade and business has relation

(1) [1957] S.C.R. 874.

(2) 60 Law Ed. 679, 690,



with the item "business or trade" and not with "freedom of speech". Thus     advertisements sought to be banned do     not fall under Art. 19(1)(a).

It was also    contended that     the prohibition against advertisements    of the petitioners was a direct abridgement of the right of freedom of speech and Alice Lee Grosjean v. The American Press Co. (1) was relied upon. That was a case in which a tax was levied based on gross receipts for     the privilege of     engaging in    the business     of public advertisements    in newspapers,     magazines etc. having a specified circulation    and it was there held that such a statute abridged the freedom of the press because its effect was not merely to reduce revenue but it had    tendency to curtail circulation. - This subject was discussed in Express Newspapers' case (2) at pages 128 to 133 where the question was whether the Wage Board Act specifying the wages     and conditions of service of the working journalists and    thus imposing certain financial burden on     the press was an interference with the right    of freedom of     Press     and Bhagwati, J., said at page 135:-

" Unless these were the direct or inevitable consequences of the measures enacted in the impugned Act, it would not be possible to strike down the legislation as    having    that effect    and operation.    A possible eventuality of this    type would Dot necessarily be the consequence which could be in the contemplation of    the legislature while     enacting a measure     of this type     for the benefit of    the workmen concerned."

In considering the constitutionality of a statute the Court has regard to substance and not to mere matters of form     and the statute must be decided by its operation    and effect; J.M. Near v. State of Minnesota(3).

In the     present case    therefore (1)    the advertisements affected by the Act do not fall within the words freedom of speech within Art. 19(1)(a); (2) the scope and object of the Act its true nature and character is not interference    with the right of freedom of speech

(1) 80 Law Ed. 660.

(2) [1959] S.C.R. 12, 123-133.

(3) 75 La- Ed. 1357, 1363-4.


but it     deals with trade or business; and (3) there is no direct    abridgement of the right of free speech and a    mere incidental interference with such right would no alter     the character of the law; Ram Singh v. The State of Delhi    (1); Express Newspapers (Private) Ltd. v. The Union of India(2). It is not the form     or incidental     infringement    that determines the constitutionality of a, statute in reference to the rights guaranteed in Art. 19(1), but the reality     and substance. The Act read as a whole does not merely prohibit advertisements    relating to drugs and    medicines connected with diseases    expressly mentioned in s. 3 of the Act     but they cover all advertisements which are objectionable or unethical and are used to promote self-medication or self- treatment. This is the content of the Act. Viewed in    this way, it does not select any of the elements or attributes of freedom     of speech falling within Art. 19(1)(a) of     the Constitution.

It was next argued that assuming that the matter was within clauses     (f) &     (g) of Art.    19(1),    the restraint     was disproportionate to the purpose of the Act,     the object sought    to be achieved and the evil sought to be remedied. It was     further argued that it could not be said that     the restrictions imposed by the Act were in the interest of     the general public.     The basis of this argument was (1) the very wide definition of the word 'advertisement'in s. 2(a);     (2) the use of the word 'suggest' in s. 3; (3) the     uncanalised delegated power to add diseases to the schedule; (4)     the existence of s. 14(c) read with rule 6 of the Rules and     (5) the procedural     part in s.8 of the Act; all of which, according to counsel,     showed     that it was    beyond'     all allowable limits of restraint under cl. 6 of Art. 19. 'Advertisement' in the Act, it was argued, included not only advertisements in newspapers and periodicals and other forms of publication but    also on. cartons, bottles     and instructions inside a carton.    Without this latter kind of advertisement, it was submitted, the user would be unable to know what the medicine was, what it was to be used for     and how ? If the purpose

(1) [1951] S.C.R.451, 455.

(2) [1959] S.C.R. 12, 123,133.


of the     Act is to prevent objectionable and unethical advertisements    in order to discourage self medication     and self treatment it cannot be said that the definition is     too wide keeping in view the object and the purpose     of the Act which have been set out above.    It is these evils which the Act seeks to cure and if the definition of the word     ' advertisment '     was not so broad and    inclusive it would defeat    the very purpose for which the Act was brought    into existence.

The argument that the word 'suggest' is something subjective is, in our 'opinion, also not well-founded. 'Suggest'     has many shades of meaning and    in the     context it means commendatory publication. It connotes a direct approach and its use in s. 3 does not support the contention. that the restraint is disproportionate. In another part of     the judgment we shall discuss the constitutionality of the power of delegation reasonableness of the range of diseases added in the schedule and it is unnecessary to go over the    same field here.

Then we come    to s. 14(c) and r. 6, i.e., prohibited advertisement is to be sent confidentially by     post to a registered medical practitioner or to a wholesale and retail chemist or a hospital and laboratory and the following words have to be inscribed     on the outside of every packet containing the advertisement, i.e., " for the use only of registered medical practitioners or     a hospital or a laboratory ".    If the     purpose is to discourage self- medication and     encourage treatment by     properly qualified medical     practitioners    then such a regulatory provision cannot be considered an excessive restraint. The mere    fact that in the corresponding English Act certain other persons are also mentioned and that such advertisements can be published in    certain     medical journals and     scientific treatises is not a ground for holding the restriction to be disproportionate. It is not a proper method of judging     the reasonableness of the restrictions to compare every section of the Act with the corresponding English Act and then to hold it unreasonable    merely    because     the corresponding section of the two Acts are different.    The evil may be     the same but the circumstances and


conditions in the two countries in regard to journals     may be different and there are bound to be differences in the degree    of restrictiveness in the operativeportions of     the two Acts. The policy behind the Act is that     medication should be on the advice of qualified medical practitioners. Merely because     the legislature thought that it would     not exclude     advertisements in medical journals of    the country would not be    indicative of    the disproportion of     the restraint.

Objection was then taken to the procedural part in s. 8     and it was submitted that the power seizure and detention     was unfettered and and there is no proper procedure laid    down Criminal Procedure Code or the Drugs Act are no rules     and safeguards in    regard warrants or entry into    premises as there Code of     Criminal Procedure or    the Drugs Act. In another     part of the    judgment we shall deal with    this question and it is not necessary to do so here. It was next contended that the Act was not in the interest of the     general public as it could not be said that     the mention     of the names of diseases or instructions as to     the use of particular medicines for those diseases was not in the interest of the general    public.     Besides, it would prevent     the medicines being brought to the notice of     the practising medical practitioners or distributing agencies. It would also     prevent a properly worded advertisement suggesting cure of diseases to people who for the sake of prestige and other understandably valid reasons do not    like to confide to any person the nature of their diseases     and that it would prevent medical relief in a country where such relief    is notoriously inadequate. We have already set     out the purpose and scope of the Act, the conditions in which it was passed and the evils it seeks to cure. If the object is to prevent self-medication or self--treatment, as it appears to be then these are exactly the evils which    such advertisements would subserve if a piece of legislation like the Act did not exist. It has not been shown     that     the restrictions laid down in the Act are     in any manner disproportionate to the object sought to be attained by     the Act nor has it been of


shown that the restrictions are outside the     permissible limits.

Mr. Chatterjee in dealing with this point drew     our attention to the test of reasonablenses as laid down in Chintaman Rao v. The State of Madhya Pradesh (1) where it was said by Mahajan, J. (as he then was) at pages 762     and 763:-

" The question for decision is whether the statute under the guise of protecting public interests arbitrarily interferes with private     business and    imposes     unreasonable     and unnecessarily     restrictive regulations upon lawful occupation; in other words' whether the total prohibition of carrying on the business of manufacture of bidis within     the agricultural season amounts to a reasonable restriction on the fundamental rights mentioned in article 19(1)(g) of     the Constitution. "

It has     not been shown in the present case that under     the guise of protecting public interest the Act arbitrarily interferes with private business or imposes    unreasonable restrictions.    If the     true intention of the    Act is, as indeed     it is, to stop objectionable and unethical advertisements     for the purpose of    discouraging self- medication no question of unreasonable restrictions arises. Mr. Chatterjee also relied upon the observation of Bose, J., in Dwarka Das Srinivas of Bombay v. The Sholapur Spinning & Weaving     Company Limited (2) where the learned     Judge    said that " the provisions in the Constitution touching fundamental rights must be construed broadly and liberally in favour of those on whom the rights have been conferred ". With this statement we are in accord. The interpretation should    be such as to subserve the     protection of     the fundamental rights of the citizen but that is     subject to limitations set out in Art. 19 itself which are for     the general     welfare of all ,citizens taken as a whole and     are therefore for    the interest of the general public.     Mr. Chatterjee further contended     that the restraint     was excessive because the prohibition of a mere mention of     the name of a disease and the suggestion of a cure for    that could

(1) [1950] S.C.R. 739.

(2) [1954] S.C. R. 674, 733.


not be a reasonable restriction. As submitted by the learned Solicitor-General the objection is not to the names but to the advertisements commending certain medicines as a cure for the same and this is what the Act is endeavouring     to eliminate. In our opinion it cannot be said     that    the restrictions either excessiveor disproportionate or are not in the interest of the    general public.

The third point raised by Mr. Munshi was that thewords    'or any other disease or condition which maybe specified in the rules made under this Act' in cl.(d) of s. 3 of the     Act are delegated legislation and do not lay down    any certain criteria or proper standards,and surrender unguided    and uncanalised power to theexecutive to add to diseases in the schedule. Thelearned Solicitor-General in reply     supported theschedule as a case of conditional legislation and not the exercise of delegated legislative power and he further contended that even if it was held to be thelatter it    was within    the limits recognised by judicial decisions.     The distinction between conditional legislation and delegated legislation is this that in the former the delegate's power is that of determining when a legislative declared rule of conduct shallbecome effective; Hampton & Co. v. U.S. (1) and thelatter involves delegation of rule making power which constitutionally     may be exercised by     the admin- istrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the    details     to be     supplied by     the administrative    authority. In    other words by delegated legislation the delegate completes the legislation     by supplying details within the     limits prescribed by     the statute and in the case of conditionallegislation the power of legislation    is exercised by the     legislature conditionally leaving    to the discretion of    an external authority the time and manner -of carrying its     legislation into effect as also the determination of the area to which it is to extend; (The Queen v. Burah    (2 ); Russell v. The Queen (3); King-Emperor v. (1) 276 U.S. 394. (2) (1878) 3 App. Cas. 889. (1882) 7 App. Cas. 829, 835. 696

Benoarilal Sarma (1);     Sardar     Indar    Singh v. State of Rajasthan (2). ) Thus when the delegate is given the power of making rules and regulations in order to fill in     the details     to carry out and subserve the purposes of     the legislation the manner in which the requirements of     the statute     are to be met and the rights therein created to be enjoyed     it is an exercise of delegated legislation.     But when the legislation     is complete in itself and     the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation. To put it in the    language of another American case:

" To assert that a law is less than a law because it is made to depend upon a future event or act is    to rob     the legislature of     the power to act wisely for     the public welfare     whenever a law is passed relating to    a state of affairs     not yet developed,    or to    things    future     and impossible to fully know. "

The proper distinction there pointed out was this: " The legislature cannot delegate its power to make a    law, but it can make a law to delegate a power to determine    some fact or state of things upon which the law makes or intends to make its own action depend.     There are many things    upon which wise and useful legislation must depend which cannot be known to the law making power, and     must therefore be subject     of enquiry and determination outside the hall of legislatures

(In Lockes Appeal 72 Pa. 491 ; Field v. Clark     143 U. S.


But the discretion should not be so wide    that it is impossible to    discern its limits. There must instead be definite boundaries within which the powers of     the administrative authority are exercisable. Delegation should be not be so indefinite as to amount to an abdication of the legislative function-Schwartz American Administrative    Law, page 21.

In an Australian case relied upon by the learned Solicitor General     the prohibition by proclamation of (1) (1944) L.R.     72 I.A. 57, (2) [1957] S.C.R. 604, 697

goods under s. 52 of the Customs    Act 1901 was    held to be    conditional legislation: Baxter v. Ah Way (1) According to that case the legislature has to project     its mind into the future and provide as far as possible     for all contingencies likely to arise in the application of     the law, but as it is not possible to provide for     all contingencies specifically for all cases,, the     legislature resorts     to conditional legislation leaving    it to    some specified authority to determine in what circumstances     the law should become operative or to what its operation should be extended, or the particular class of persons or goods -to which it should be applied: Baxter's case (1) at pp. 637 &


Broadly     speaking these are the distinguishing    features of the two forms of delegation and     these     are their characteristics. The question is in which compartment    does the power given in the Act fall.

The power given to the authority under that provision (S. 3) of the Act is contained in cl. (d) in the following words:- S.3 " Subject to the provisions of this Act, no person shall take any part     in the publication of any advertisement referring to any drug in terms which suggest or     are calculated to lead to the use of that drug for .......................................... ......................................................... ......................................................... (d) the diagnosis,    cure,    mitigation, treatment     or prevention of any venereal disease or any other disease or condition which may be specified in rules made     under    this Act."

And power to make rules is laid down in s. 16 which is as follows:-

S. 16     (1) "The Central Government may by notification in the official gazette    make rules for carrying out     the purposes of this Act.

(2) In     particular and without prejudice to the generality of the     foregoing power, such     rules    may (a) specify any disease or condition to which the provisions of s. 3 shall apply;

(1) 3 Com. L. R. 626, 634, 637, 638.


(b) prescribe the manner in which advertisement of articles or things referred to in cl. (c) of sub-s. (1)     of s. 14 may be sent confidentially."

For the petitioner it was argued that s. 3(d) is delegated legislation and not conditional legislation as the power delegated therein is only to specify conditions and diseases in the rules.

The interdiction under the Act is applicable to conditions and diseases set out in the various clauses of s. 3 and to those that may under     the last part     of clause (d) be specified in the rules made under s. 16. The    first 'sub- section     of is. 16 authorises the making of rules to carry out the purposes of the Act and cl. (a) of sub-section     (2) of that section specifically authorises the specification of diseases or conditions to which the provisions of s. 3 shall apply.     It is the first sub-section of s. 16 which confers the general \rule making power, i.e., it delegates to     the administrative    authority the    power to frame rules     and regulations to subserve the object and purpose of the    Act. Clause (a) of the second sub-section is merely    illustrative of the power given under the first sub-section; King Emperor v. Sibnath Banerji (1).     Therefore, sub-s. 2(a) also has the same object as sub-s. (1), i.e, to carry out the purposes of the Act. Consequently, when the rule making authority specifies conditions and diseases in the schedule     it exercises the same delegated authority as it does when it exercises powers under sub-s. (1) and makes other rules     and therefore it is delegated legislation. The question     for decision then is, is the delegation constitutional in    that the administrative authority has been supplied with proper guidance. In    our view the    words impugned     are vague. Parliament has established no criteria, no standards and has not prescribed any principle on which a particular disease or condition is to be specified in the Schedule. It is     not stated    what facts or circumstances are to be     taken    into consideration to include a particular- condition or disease. The power of specifying diseases and conditions as given in s. 3(d) must     therefore be    held to be going beyond permissible boundaries

(1) (1945) L.R. 72 I.A. 241.


of valid delegation. As a consequence the Schedule in the rules must be struck down. But that would not    affect    such conditions and diseases which properly    fall within the four clauses of s. 3 excluding the portion of    cl. (d) which has been declared to be unconstitutional. In the    view we have taken it is unnecessary to    consider the applicability of Baxter v. Ah Way (1).

We are     of the opinion therefore that the words " or     any other disease    or condition which may be specified in     the rules    made under this Act    " confer uncanalised     and uncontrolled power to- the Executive and are therefore ultra vires.    But their being taken out' of cl. (d) of s. 3    does not affect the constitutionality of the rest of the clause or section as they are severable; R. M. D. Chamarbaughwala v. The Union of India (2).

The constitutionality of s. 8 of the Act was challenged on the ground that it violated the petitioners' right under Arts. 21 and 31. That section when quoted runs as follows: " Any    person authorised by the State    Government in    this behalf    may, at any time, seize............and     detain     any document, article or thing which such person has reason to believe' contains any advertisement which contravenes any of the provisions     of this Act and the     court    trying    such contravention may direct that such document (includingall copies    thereof) article or thing shall be forfeited to     the Government".It    was pointed out by Mr. Munshi that there was nolimitation placed on, no rules    and regulations made for and no safeguards provided in regard to the powers of a person authorised in that behalf by Government to seize and detain any document, article or anything which in     the opinion of such person contains     any     advertisement contravening any of theprovisions of the Act. It was also submitted that in the corresponding English Act of 1939, in s. 10 there are proper safeguards provided in regard to the exercise of the power of seizure etc. The first part of s. 8 of the Act dealing with seizure and detention received slender support from the Solicitor-General. It may (1) 8 Com. L.R. 626, 634, 637, 638,

(2)[1957] S.C.R. 930.


be, he contended, that having regard to the purpose     and object     of the Act    the Indian legislature did not think it necessary to provide any safeguards and that     the legislature thought that nobody would be prejudiced by reason of the want of safeguard previous to the seizure, In our opinion this portion of the     section goes far beyond the purpose for which the Act was enacted and, the absence of the safeguards which the legislature has     thought it necessary and expedient in other statutes, e.g., the Indian Drugs Act, is an unreasonable restriction on the fundamental rights of the petitioners and therefore the first portion of the section, i.e., " any person authorised by any of     the provisions of this Act" is unconstitutional. What then is the consequence of this unconstitutionality    ? If    this portion     is excised from the     rest of the    section     the remaining portion is not even intelligible and cannot be upheld.     The whole of the section 'must therefore be struck down.

By a portion of cl. (d) of s. 3 and the whole of B. 8 being declared unconstitutional the Act is not thereby affected as they are severable from the     rest of the    Act. As a consequence of excision of that portion and of s. 8 from the Act the operation of the remaining portion    of the     Act remains unimpaired. R. M. D. Chamarbaughwala v. The Union of India(1). As a result of s. 8 being declared invalid, all the goods seized from the petitioners having been seized without     the authority     of law must be returned to     the respective petitioners. It will be for the Government to take such action in regard to the proceedings taken or prosecutions commenced as is in accordance with the law laid down in this Judgment.

We declare the portion of cl. (d) of s. 3 indicated above and s. 8 unconstitutional and direct therefore that a    writ of mandamus shall issue directing the respondents to return the goods seized. As the petitioners' challenge to     the constitutionality of the Act is partially successful     the proper    order as to costs is that the parties do pay their own costs.

Petitions partly allowed.