TMI Blog1999 (5) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the impugned Act cannot be sustained which is hereby quashed. Any decision of any court or any interim order contrary to the decision, as aforesaid, are hereby set aside. The various petitions which have been transferred and which are subject-matter of decision, as aforesaid, stand disposed of in terms of this decision. - Civil Appeal No. 2747-2768 of 1999, W.P. (Civil) No. 226 of 1998, 1689 of 1997 - - - Dated:- 7-5-1999 - VENKATASWAMI K. AND MISRA A.P. JJ. R.N. Trivedi and C.S. Vaidyanathan, Additional Solicitors General. A.K. Ganguli, F.S. Nariman, H.N. Salve, G.L. Sanghi, S.S. Ray, Dr. Rajeev Dhawan, Shanti Bhushan, R.F. Nariman, P.K. Goswami, Rakesh Dwivedi, S.K. Dholakia and K.K. Venugopal, Senior Advocates. Arvind Kr. Shukla, Mukesh K. Giri (A.K. Goel), Additional Advocate-General, U.P. Kamlendra Misra, R.B. Misra, Ashish Shukla, Ajay K. Agarwal (R.P. Goyal), Advocate-Generl for U.P., Ramesh Kumar Singh, Additional Advocate-General, U.P., Rakesh Bajpayee, Y.P. Mahajan, T.C. Sharma, R.V. Rathnam, P. Parmeswaran, Mrs. Sheela, Goel, H.A. Raichura, R. Bana, B.V. Balaram Das, A. Mariarputham, Mrs. Aruna Mathur, Prashant Kumar, Sushil Kr. Jain, Pradee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are raised, we are disposing of all, after hearing learned counsel for the parties, by this composite judgment. Apart from the common issues, we are not disposing of nor propose to dispose of any of the individual residuary points, if any, remain after our this adjudication. 3.. In order to adjudicate issues in this case, one of the fundamental question raised is, what is the character of State lotteries? If lotteries are gambling in nature, does it lose its character as such when it takes on the cloak of State lotteries? Whether such cloak dissolves its character as res extra commercium? In any case, even if it is legalised, would it qualify to be or can it be held to be a trade within the meaning of Chapter XIII of the Constitution of India? If it is a trade, are the provisions of the impugned Act violative of the articles of Chapter XIII? Challenge to some of the provisions are based on the ground of it being discriminatory and arbitrary, hence violative of article 14 of the Constitution. Finally, entrustment of power to the States under section 5 is attacked as it being unbridled without any guideline thus liable to be struck down. 4.. Before taking up for consideration t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court. This order was passed as an interim measure. In Writ Petition No. 2200 of 1997 filed before the Allahabad High Court (Lucknow Bench) by M/s. Ganga Agencies (Manipur State Lotteries), the High Court ordered that so long as the interim order of the Gauhati High Court is operative the sale of lottery tickets shall be permitted to be sold in U.P. 5.. This Court finally disposed of S.L.P. (C) Nos. 21304-21307 of 1997 (Civil Appeal Nos. 8858-8861 of 1997) by observing that Gauhati High Court is free to dispose of the petition pending before it in accordance with law, since hearing had already completed. As the Ordinance No. 20 was lapsing, Ordinance No. 31 of 1997 (second Ordinance) was promulgated. Under it, the notification dated October 29, 1997 of the State of U.P. was also stayed by the Gauhati High Court. Against this order, also S.L.P. (C) Nos. 4710-4712 of 1998 (State of U.P. v. State of Mizoram) was filed in this Court. Finally, the Gauhati High Court declared the Ordinance No. 20 to be unconstitutional on the ground that Ordinance was not legislation by the Parliament within article 298 of the Constitution of India, hence it could not restrict executive powers of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. The Gujarat High Court by its judgment and order dated October 24, 1997, dismissed the petition holding that instant lottery is gambling and can be restrained by the State Government. The High Court held the Ordinance No. 20 to be valid. Aggrieved by this, the aforesaid civil appeal arising out of S.L.P. (C) No. 22423 of 1997 was filed. Similar matter also came in the Delhi High Court, when it, by means of interim order dated December 3, 1997, in Civil Writ Petition No. 5105 of 1997 disagreed with the view of the Gauhati High Court and agreeing with the view of the Gujarat High Court, declined to stay the impugned Ordinance. Hence, the State Ordinance remained in operation within the National Capital Territory of Delhi. The Gauhati High Court on March 30, 1998 in Miscellaneous Case No. 310 of 1998 in C.R. No. 31 of 1998 (State of Nagaland v. Union of India) stayed the order of the Government of Delhi directing implementation of the aforesaid order passed by the Delhi High Court. Thereafter, on April 30, 1998 the Delhi High Court observed that the Delhi Government may move the appropriate forum against this order of the Gauhati High Court. This led to filing of transfer petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the State of U.P. against an interim order of Gauhati High Court staying the Ordinance No. 6 of 1998. Civil Appeals arising out of S.L.P. (C) Nos. 16021, 16617, 17566 and 17782 of 1998 are all filed against the interlocutory orders passed by the Gauhati High Court staying section 4(a), (g), (h), sections 5 and 7 of the Central Act No. 17 of 1998. The first and third of these S.L.P.s are filed by the State of U.P. and the second by Government of N.C.T. of Delhi. Remaining petitions are transfer petitions seeking transfer of the cases from Madras High Court, Karnataka High Court, Andhra Pradesh High Court and Delhi High Court to this Court. These also challenge either the Ordinances or the Lotteries (Regulation) Act, 1998 (Act No. 17 of 1998) (hereinafter referred to as "the Lotteries Act"). They all raise the same issues as aforesaid. For proper appreciation of the submissions of learned counsels for the parties, we herewith quote sections 4, 5 and 7 of the Act, which are the subject-matter of challenge: "4. A State Government may organise, conduct or promote a lottery, subject to the following conditions, namely: (a) prizes shall not be offered on any pre-announced number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agent or promoter or trader in any lottery organised, conducted or promoted in contravention of the provisions of this Act or sells, distributes or purchases the ticket of such lottery, he shall be punishable with rigorous imprisonment for a term which may extend to two years or with fine or with both." There are some changes in the various sub-clauses of section 4 and section 7, and also in section 5 from what was contained in the Ordinance. 10.. Before we proceed to consider the issues, we herewith refer to the short submissions poured by learned counsel for the parties. The first we refer to such set of submissions who challenge either the Ordinance or the Act. Learned Senior Counsel, Shri K.K. Venugopal, appearing on behalf of the State of Sikkim, submits that when there is sale of lottery tickets by the State it loses its pernicious nature, hence it is no more res extra commercium. Attacking section 5 of the Act, he submits that it violates article 303 of the Constitution as this authorizes the State Government to give preference to one State over the other. It can ban the lotteries of other States though it can run its own lotteries. Clause (2) of article 303, which is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness in the hands of the citizen would, therefore, for this reason be a trade or business in the hands of the State. (c) When the State undertakes any such venture, as State, it would ensure that sufficient safeguards are imposed on the carrying on of the trade by itself so that larger public interest is sub-served while reducing its deleterious effect to the extent necessary to safeguard public interest. Qualitatively, therefore, there is a difference between the same venture or enterprise being undertaken by the individual or the citizen, solely with profit-motive, as against the State which has no profit-motive but has the interest of its citizens at heart by raising revenue for the welfare of its citizens. (d) Entry 34 of List II 'betting and gambling' conferred authority on the State Legislatures to ban gambling, based on the morality aspect and based on the vice of gambling, for protecting its citizens against such a vice. By entry 40 of List I the Constitution has carved out lotteries of a particular nature even though they constitute gambling, namely, lotteries organised by the States, so as to prevent a State Legislature from using the morality or the vice aspect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich are covered by entry 40 of List I, can carry on the lottery business only in some States and not in others, thus impeding the free-flow of goods for a reason which is not traceable to clause (2) of article 303 of the Constitution. The only exception to article 303(1) of the Constitution is a situation arising out of scarcity of goods. The concept of reasonable classification present in article 14 would have no relevance to a preference or discrimination under article 303 of the Constitution. (i) Lotteries run by the State as a means of raising revenues have always been recognised as early as 1935 as seen in entry 48 of List I of the Seventh Schedule to the Government of India Act, 1935 covered under 'State Lotteries' while entry 36 of List II of the Seventh Schedule to the 1935 Act covered 'Betting and gambling'. Consequent upon the Government of India Act, 1935 the adoption of Laws Order, 1937 has included in section 294-A of the Indian Penal Code, 1860 an exception to the offence of keeping a lottery office by excluding from the scope thereof 'any lottery not being a State lottery'. It is submitted that a State lottery always stood on a different footing from a lottery run ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en found to result from the existence of lotteries: (1) it is hereby enacted, that in the territories subject to the Government of East India Company, all lotteries not authorised by Government, shall, from and after 31st day of March, 1844, be deemed, and are hereby declared common and public nuisances and against law"; (2) and it is hereby enacted, that from and after the day aforesaid, no person shall, in the said territories, publicly or privately, keep an office or place for the purpose of drawing any lottery not authorised by Government, or shall have any such lottery drawn, or shall knowingly suffer any such lottery to be drawn in his or her house; and any person so offending shall for every such offence, upon conviction, before a Justice of the Peace, or Magistrate, be punished by fine not exceeding Rs. 5,000." 14.. He referred to this judgment to make distinction between the State lotteries and other lotteries. He also referred to the amendment brought in the Indian Penal Code through Act 27 of 1870 (section 10) by introducing section 294A. This excludes the State lotteries from its penal purview, in contrast to the other lotteries. Similar distinction is to be found und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page 188 of STC) is recorded: "It should, however, not be understood to accept the position that if private lotteries are permissible and legal, a point which need not be decided in these cases, in such cases sale of goods was involved or not." 15.. Next, he challenged section 5 to be violative of articles 301, 302 and 303 of the Constitution. Article 302 is an exception to article 301 under which a Parliament is permitted to impose such restriction on freedom of trade, commerce or intercourse between one State and another as may be required in the public interest. He placed reliance on the case of Prag Ice and Oil Mills v. Union of India (1978) 3 SCC 459 at page 473, (7 Judges) in which it was held that the restrictions contemplated by article 302 must bear a reasonable nexus with the need to serve public interest. He contested the stand of the Union as referred in paragraph 5 of the letter dated November 27, 1998, reference of which is quoted hereunder: "Consequently, the Central Government decided to enact an appropriate legislation to regulate the conduct of lotteries so as to protect the poor and gullible persons......" 16.. He submits the discrimination, on the one ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Though the impugned Act imposes restrictions on the lotteries organised by the State it does not impose any restrictions on the lotteries organised by a foreign Government (Bhutan lotteries). Section 4 reveals itself with its opening words that the restrictions contained thereunder are to State organised lotteries, instead of restricting the lotteries organised by the Government of Bhutan, the Union has promoted its lotteries. He referred to the treaty dated February 28, 1995 to remain in force for a period of 10 years. He referred to the circular dated January 20, 1998 by Government of India which refers that section 5 applies to the State lotteries and not to the lotteries of Bhutan. He submits that the reason to justify the placing of restriction on lotteries organised by the State Government should equally be applicable to the lotteries organised by a foreign Government. It cannot be said that sale of lottery tickets by the State causes mischief or harm to the people of India but would not cause mischief or harm in case it is organised by a foreign Government. No defence could be made in meeting the challenge of discrimination under article 14 that there is difference betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he special reference was made with emphasis on clause (g). This clause requires that place of draw shall be located within the State concerned. With reference to State of Nagaland, it was submitted that in view of the situation prevailing there, it is not safe to draw lotteries within the State of Nagaland itself. 19.. Mr. R.F. Nariman, appearing for the respondent in civil appeal arising out of S.L.P. (C) No. 16021 of 1998, with reference to article 301, submits that trade, commerce and intercourse is free throughout the territory of India. Article 302 is an exception but only in public interest. Article 303 puts an embargo both on the Parliament and the legislation of the States not to make any law giving preference to one State over another with respect to any entry relating to trade and commerce in the Seventh Schedule. Thus, section 5 of the impugned Act which enables the State to prohibit the lotteries of others amount to restrict free trade and commerce hence violative both of articles 301 and 303 of the Constitution. It also discriminates inter se between one State and the other wherein the State which prohibits lotteries in its territory may have liberty to do trade and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution. He also referred to the case of Suman Enterprises (1994) 4 SCC 217, in which a distinction between lotteries organised by the State and lotteries authorised by the States has been made out. Lotteries organised by the State would fall under entry 40, List I and will not fall under the regulatory power of other States under entry 34, List II. It lays down certain conditions which would be essential for the lotteries organised by the State. He also made reference to Khoday Distilleries Ltd. v. State of Karnataka (1995) 1 SCC 574. The question raised therein was, whether the State could create monopoly for the manufacture, trade or business in liquor. In this case the argument was that the State cannot carry on trade in liquor in view of article 47 of the Constitution. Submission in this case was, if a citizen has no fundamental right to do an act including any trade, then article 19(6) cannot confer such right on the State. What a citizen cannot do under article 19(1), the State cannot do under article 19(6). Further, the State power to carry on trade in liquor de hors article 19(6) and article 298 of the Constitution cannot be extended to trade in liquor. This is so because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been contributed substantially in building of major European and American cities, even Art Galleries in U.K. Hence, it cannot be submitted that State lotteries are wholly against public morality or public conscience. He referred to 38. Am. Jur. 2nd p. 152, 57: "57. Generally-.............But experience demonstrated the evil tendency and effect of such schemes and the need for public control and regulations. At the present day, both State and private lotteries are forbidden, or at least regulated in some manner, by constitution or statute, or both, in many, if not all, States. Congress has closed the mails against them. Most of the Governments of the continent of Europe have at different periods raised money for public purposes by means of lotteries, and a small sum was raised in America during the revolution by a lottery authorised by the continental Congress." 22.. He also referred to Halsbury's Laws of England (4th Edition) Volume 4, paras 142, 143 and 144: "142. Offences in connection with unlawful lotteries. All lotteries in Great Britain which do not constitute gaming are, with the exception of those subsequently mentioned, unlawful. 143.. Statutory defences. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le or otherwise between the object of the prohibition and the actual prohibition. Hence, it is unreasonable, arbitrary and discriminatory. He also reiterates the submissions by other counsel that section 5 confers an unauthorised delegation of an essential legislative function without any guidelines. Negativing the submission by the Union and the State of U.P. that the State which as a policy prohibits sale of its own lottery tickets, could only prohibit the sale of lotteries of every other State, refers to the stand taken by the State of Tamil Nadu which though supports Union for upholding the provision but differ on interpretation that power under it is not conditional but absolute. It is open to a State to bring the prohibition of sale of lotteries in phased manner, hence while running its own lotteries could prohibit lotteries of other States. This reveals the sphere of discrimination which is absolute and remains as unguided delegation. Thus, this section is violative of article 14. Apart from this, it is also not in public interest. Further, sale of such lottery tickets are trade and business falling under Part XIII of the Constitution and is violative of articles 301 and 303 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Rajeev Dhawan, appearing for the respondents in civil appeal arising out of S.L.P. (C) No. 15196 of 1998 and Transfer Petition (Civil) Nos. 806-807 of 1998, reiterated the submissions made by the preceding Senior Counsel. He submits that there could be no dispute that the lottery tickets are "goods" hence res commercium. The lotteries can be conducted by the State, subject to the four conditions as laid down in the case of Suman Enterprises (1994) 4 SCC 217. Till Parliament makes the law it can do so under article 298 of the Constitution of India. The lotteries are commercial activity, therefore commercium which attract sales tax and the States are not competent to regulate its own State lotteries in their States. This power vests exclusively with the Union. The exclusionary principle, like res extra commercium have the effect of eliminating the invocation of a fundamental right at the threshold which has to be used rarely and always with circumspection and must be narrowly construed as a principle of public policy. The principle of constitutional unworthiness is that certain kind of rights are so morally repugnant that they are not entitled to constitutional protection at al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are a permissible trade and not res extra commercium, Part XIII of the Constitution is attracted. With reference to article 303 he submits that neither the Union nor the State can discriminate between one State and the others. This constitutional prohibition is absolute with only one exception under article 303(2), namely, scarcity of goods. Meeting the interpretation of the Union with reference to section 5 that it permits the total ban which is non-discriminatory, he submits that it is not the form but the substance which has to be considered. The effect of total ban could mean, it would affect some State more than others; it would affect the North Eastern States to make their lotteries unviable; and in any case this affects the free trade and public interest. Article 301 confers freedom of trade and it could only be curtailed for public interest under article 302 which the Union of India has not shown, pleaded and proved. With reference to Bhutan lotteries, he submits that validity and scope of Bhutan lotteries is not in issue. The State has no power under the Act or the Constitution to regulate Bhutan lotteries. Finally, with reference to the challenge of some of the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Punjab [1979] 1 SCR 845 at 855-856. He also made reference to the invalidity of the sub-section (g) of section 4 of the Act. This refers to the place of draw to be located within the State concerned. 30.. Mr. Rakesh Dwivedi, learned Senior Counsel appearing for the State of Manipur in civil appeals arising out of S.L.P. (C) Nos. 5224-5228 of 1998, submits by posing a question, namely, whether it is permissible to the Parliament under article 298 to delegate power to the State Government, vide section 5 of the impugned Act to impose ban on the State organised lottery of other States? Secondly, as has been submitted by other counsel, whether State organised lottery can be said to be res extra commercium? He referred to the Government of India Act, 1935, and also to the draft Constitution before the Constituent Assembly and also the debate which led to bring in article 298 in the present form. His submission is that the draft article 266 which is now article 289 provided for trade and business of States being subject-matter of Union taxation. To this, Provinces protested which led to the insertion of article 298 as a compromise to enable the States to carry on trade and busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower to the State Government with the consent of the State Government. This starts with the words, "notwithstanding anything in this Constitution". But article 258(2) does not begin with the non obstante clause thus, if article 298 inhibits delegation of powers to the State Government, then article 258(2) cannot be used by the Parliament for delegating the power to the State Government. 31.. Next, Shri A.K. Ganguli, learned Senior Counsel on behalf of the State of Tamil Nadu in Transfer Petition Nos. 806-807 of 1998, supported the interpretation of section 5 of the Act by Union of India for upholding its validity but differed partly its interpretation that the State Government can only exercise power to ban State lotteries of other States, if it does not have its own lottery tickets for sale. Submission is that on plain reading of section 5, once power is delegated to the State it can still be exercised even while having its own lottery. He submits that lotteries are a form of gambling hence such transaction does not belong to the commercial business of the country. He supported the submission made on behalf of the Union that such activities cannot be said to come within the purv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State cannot without obtaining licence under the provisions of the Industries Development and Regulation Act start an industry mentioned in the Schedule of the Industries Development and Regulation Act. Similarly, a State cannot insist as a matter of right to sell liquor in another State where there is complete prohibition. Thus, the extended executive power of the State to carry on any trade or business for any purpose should only be such trade or purpose, which, under the scheme of the Constitution is permissible and not prohibited. Article 298 is subject to the Parliamentary legislation, thus, is subject to provisions of articles 245 and 246. The provisions of article 298 should be read to be subject to the provisions of articles 53 and 258 of the Constitution. A State can carry on a trade, subject to the executive power of the Union under article 53 and any entrustment made under article 258. The submission was that article 298 is subject to the aforesaid limitations and it does not refer to trade or business which are not so recognised under article 19(1)(g). Thus, lotteries organised by the State would not be lawful in the absence of legislation by the Parliament or entrust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idelines can be found from the subject-matter of the Act itself. It can also be deduced from the Objects and Reasons of the Act. The circumstances leading to legislation can also be taken into account. So far as Bhutan lotteries are concerned they are not covered by the present Act. This lottery not being the lottery organised by the State, would not fall under entry 40, List I, but under entry 34 of List II. That is not a conscious legislation referable to entry 10 of List I or entry 14 of List I. The treaty itself is subject to laws in force in the territory of India. It would also be subject to legislation by the State so long as there is no legislation made by the Parliament with reference to entry 10 or 14 of List I. At present, in the State of Uttar Pradesh there is a legislation prohibiting the sale of lotteries which would also apply to Bhutan lotteries as they are not State organised lotteries. Defending the attack, it is submitted, section 12(3) does not amount to effacement or abdication of the power by the Parliament conferment of rule-making power on the State does not amount to exercise of legislative powers by the State but it acts as a delegate of the Parliament. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question next is whether a lottery which is not a State lottery, if it is gambling, does it lose its character as such when it becomes a State lottery. The lotteries as such are pernicious in nature cannot be denied. However, the submission is when it cloaks itself with the linen of State authority and is presented as State organised lottery, it loses its pernicious character and what could be said before it puts on the cloak to be res extra commercium becomes commercium. Hence, for this we have to understand what is trade and business, and what is lottery? Unless their true nature and character is understood, submissions cannot be properly appreciated. We are also conscious, the resultant conclusion of it would not be proper if based on views of one or two individual Judges but has to be based on what was and is understood at the common law. For this, we have to turn our pages to the ancient history to gather wholesome view as to what was understood then and what is understood now, which is revealed through the ancient texts and various decisions of our courts and courts of other countries. 37.. In this context, we may first refer to the Constitution Bench decision of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 Law Ed. 1030, judgment proceeded: "Is the State forbidden by the Supreme law of the land from protecting its people at all times from practices which it conceives to be attended by such ruinous results? Can the Legislature of a State contract away its power to establish such regulations as are reasonably necessary from time to time to protect the public morals against the evils of lotteries." 39.. In the said decisions, a reference was made to the decision of Australian High Court in King v. Connare (1939) 61 CLR 596, Evatt, J., did not think that lottery tickets can be regarded as goods or commodities entitled to protection of section 21 of the Commonwealth of Australian Constitution Act. He held at page 628: "If they are goods or commodities they belong to a very special category, so special in the interests of its citizens the State may legitimately exile them from the realm of trade, commerce of business. The indiscrimi- nate sale of such tickets may be regarded as causing business disturbance and loss which, on general grounds of policy, the State is entitled to prevent or at least minimize." 40.. In the same decision, McTiernan, J., held: "Some trades are more adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders, the question arose whether the making of the law was within the legislative competence of the Congress, that is to say whether it could be brought within the commerce clause. The question depended for its answer on the further question whether the gambling activities could be said to be commerce amongst the States. If it could, then it was open to Congress to make the law in exercise of its legislative powers under the commerce clause. More often than not gambling activities extend from State to State and, in view of the commerce clause, no State Legislature can make a law for regulating inter-State activities in the nature of trade. If betting and gambling does not fall within the ambit of the commerce clause, then, neither the Congress nor the State Legislature can in any way control the same. In such circumstances, the Supreme Court of America thought it right to give a wide meaning to the word 'commerce' so as to include gambling within the commerce clause and thereby enable the Congress to regulate and control the same. Thus, in Champion v. Ames (1903) 188 US 321; 47 Law Ed. 492(R) the carriage of lottery tickets from one State to another by an express company was h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... always in distress and the gambler on seeing the condition of his wife is also worried. Some of the historical background of the lottery is recorded in Encyclopedia Britannica 1980 Ed. at page 327-328 which is quoted hereunder: "Lottery a scheme for the distribution of prizes to be determined by chance, was reputedly an invention of the Romans. ............ Lottery in the modern sense originated in Italy during the middle ages spreading to France, Germany and Austria where rulers used them to raise revenue ........... First English lottery was drawn in 1569. ........... However, lotteries encouraged mass gambling and fraudulent drawing and after they had been attacked ........... Parliament provided for their discontinuance in 1823. Thereafter large scale lotteries contrived to inhibit prosecution by giving large sums to charities. .......... A century later following agitation for legalised lotteries, the Betting and Lotteries Act, 1934, adopted the recommendation of Royal Commission and continued the prohibition on all lotteries." 48.. In United States it records: "American colonial lotteries on the English pattern were used to raise money for public improvements and to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to be phased out in America, England abolished lotteries in that country." At page 32 it further records: "Until the early 1800s, there was little opposition to State conducted lotteries, State regulation, including bonding of operators and supervision of receipts, quieted opponents. Churches usually benefited from lotteries, so they were not quick to condemn. As the country's dependency on lotteries increased, however, so did the opportunity for abuse. Serious lottery opposition began to mount in the early to mid-1800s as part of general social reform that included movements for temperance, peace, women's rights, educational reform, prison reform and abolition of slavery. As one authority has noted: In 1842, Democrats swept to power because of their opposition to lotteries. The lotteries in turn were portrayed merely as an adjunct to a corrupt monopolistic banking system dominated by the wealthy whig power elite." At page 70 it further records: "Because legalised gambling leads to increased illegal gambling State sponsored lotteries inevitably increase crime. Legalised gambling's impact on criminal behaviour, however, is not limited to an increase in illegal gambli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ests in movable property. Lottery tickets, not as physical articles, but as slips of paper or memoranda evidence not one but both these beneficial interests in movable property which are capable of being transferred, assigned or sold and on their transfer, assignment or sale both these beneficial interests are made over to the purchaser for a price. .............The right to participate in the draw under a lottery ticket remains a valuable right till the draw takes place and it is for this reason that licensed agents or wholesalers or dealers of such tickets are enabled to effect sales thereof till the draw actually takes place and as such till then the lottery tickets constitute their stock-in-trade and therefore a merchandise and goods, capable of being bought or sold in the market." 53.. In this case, neither there was any issue nor any contest, whether the sale of such lottery tickets would be a "trade and commerce" or not within the meaning of Chapter XIII of our Constitution. This decision pro- ceeded as if it is trade and commerce, hence after applying various decisions of this Court, right from Atiabari Tea Co. Ltd. [1961] 1 SCR 491, to the later decisions on the touch st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration with no infusion of skill." Common Wealth v. Luad 15A. 2d 839, 840, 841, 843, 845: "An artifice, no matter how new, is within the condemnation of the law against lotteries if it, in effect, embodies the principle of a 'lottery' and operate as such." In Law Lexicon, P. Ramanatha Aiyar, 1997 Edition, at 1151: "Scheme for the disposal or distribution of property by chance. The term 'lottery' has not technical meaning in the law distinct from its popular signification. A lottery is a scheme for the distribution of prizes by chance." In Words and Phrases, Butterworths, 3rd Edition at page 70: "A lottery has been described as a scheme for distributing prizes by lot or chance." At page 71: "..........It must not be entirely forgotten in the construction of these Acts of Parliament [see now the Lotteries and Amusements Act, 1976] that the evil which the lottery law has sought to prevent was the evil which existed where poor people with only a few pence to feed their children would go and put these few pence into a lottery and lose them, and this sociologically was a bad thing........". In Stroud's Judicial Dictionary, 5th Edition, volume 3, at page 1507 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stinction to the learned professions, agriculture, or the liberal arts. People v. Polar Vent of America Inc. 10 Misc. 2d 378, 174 NYS 2d 789, 793. An occupation or regular means of livelihood and is business one practices or the work in which one engages regularly. One's calling; occupation, gainful employment; means of livelihood. People v. Carr. 163 Cal. App. 2d 568, 329 P2d 746, 752. Transaction involving purchase and sale of stocks, bonds, or other securities." 57.. Since it is relevant for the purpose of interpretation of Chapter XIII of the Constitution as it uses both the words "trade and commerce" to refer to the word "commerce". The Black's Law Dictionary, 6th edition, at page 269 the word "commerce" is defined: "The exchange of goods, productions, or property of any kind; the buying, selling and exchanging of articles." 58.. On the other hand, "trade" is an exchange of any article either by barter or for money or for service rendered. In other words, it is exchange between two parties one who tenders the consideration and the other who returns for this consideration, goods, money, service or such other thing. Party paying consideration in any trade is aware for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is free without any such limitations. This submission was taken note by our court in the case of RMDC [1957] SCR 874. The references of these judgments of these foreign courts were only to take the stock of the view as to with what vision they judged and what they meant and understood while dealing with the sale of lottery tickets. Nevertheless this apart, if reasoning of these decisions are to be tested, qua, our constitutional provisions, they should, of course, be tested with circumspection. As said, we have referred to these decisions, not for interpreting the provisions of our Constitution but only to know the nature and character of lotteries as understood in those countries to which we find there is no difference than what is understood in our country. It is in this background, this Court in RMDC [1957] SCR 874, after recording the activities of lotteries which is condemned in this country from the ancient times and also taking note of views of the courts of other countries, found that they equally condemned, discouraged and looked it down with disfavour, viz., in England, Scotland, the United States of America and in Australia. Our Court records: "........that those act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was not forbidden by law and an agreement collateral to such a contract was not unlawful within the meaning of section 23 of the Contract Act. What is narrowed down, if at all, was with reference to morality aspect based on ancient scriptures. It holds after referring the RMDC case [1957] SCR 874: "The moral prohibitions in Hindu law texts against gambling were not only not legally enforced but were allowed to fall into desuetude and it was not possible to hold that there was any definite head or principle of public policy evolved by courts or laid down by precedents directly applicable to wagering contracts." 65.. This decision has not diluted the law laid down with respect to the finding that gambling would not fall within the meaning of word "trade" under article 301 of the Constitution or to have diluted that such transaction would not get protection under article 19(1)(g). What is said is that moral prohibitions in Hindu law text against gambling were not legally enforced. It is true, within the moral format, in a strict sense, if it was to be legally enforced there could not have been any legalised gambling. But it cannot be doubted and it is recognised by all the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot per se prohibited for medicinal and industrial uses ; (b) even though trade in potable alcohol was res extra commercium the State itself may sell potable alcohol, set up a monopoly business for that purpose and maximise its revenue by any mode of sale ; and (c) the State may on a non-discriminatory basis permit sale of alcohol through private parties. In Khoday Distilleries (1995) 1 SCC 574 this Court held: The right to practice any profession or to carry on any occupation, trade or business does not extend to practising a profession or carrying on an occupation, trade or business which is inherently vicious and pernicious, and is condemned by all civilised societies. It does not entitle citizens to carry on trade or business in activities which are immoral and criminal and in articles or goods which are obnoxious and injurious to health, safety and welfare of the general public, i.e., res extra commercium (outside commerce). There cannot be business in crime. Potable liquor as a beverage is an intoxicating and depressant drink which is dangerous and injurious to health and is, therefore, an article which is res extra commercium being inherently harmful. A citizen has, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly lays down and demonstrates that manufacture, sale, purchase of potable liquor which State carries on at common parlance is trade and is a goods still held to be an article different from goods and article which are res commercium. This holds further that transactions in potable liquor by sale and in spite of levy of taxes, fees on this trade or business, it is held to be res extra commercium. Such transactions are also not prohibited, rather authorised by law. Hence, merely there is sanction in law for a transaction or is legalised not prohibited, it would not by itself make it to be commercium. Entry 62 of List II of the Seventh Schedule refers to taxes on betting and gambling which inherently permits gambling. Thus, it could be said that gambling is recognised and authorised by law, may be through regulations, licences, etc. Thus, imposition of tax on gambling conceives of gambling, of course has to be legal to impose tax on it. In this background, we proceed to examine State lotteries (gambling), whether could it still qualities to be "trade or commerce" within the meaning of Chapter XIII of our Constitution or could "trade" or such transactions seek protection under the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bour, hereditary service, etc., of the lender. It is because of this it was said to be a pernicious species of money lending flourishing in the rural and industrial areas of our country. In contrast it was held that money lending when through recognised financial institutions, banks, etc., it is legitimate and valid commercial credit and financial dealing which could not be said to be pernicious species of money lending. We do not find that there could be any equation or parity with this decision and with the question to which we are adverting to. This case itself records at page 850: "We do not downright denounce all money-lenders but the law-makers have based on socio-economic facts, picked out a special class of money-lenders whom they describe as unscrupulous." When this decision referred to about pernicious species of money- lending, it confined this adjective to a limited class of persons, but it did not hold, the business of money-lending as such to be pernicious in nature. It held that pernicious because some class of money-lenders made the poor artisan, bonded labourer, etc., a perpetual debtors. Thus, the submission, what otherwise was pernicious, was held in that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossibility of fraud, misappropriation or deceit and assure the hopeful recipients of high prizes that all is fair and safe. That assurance is from stage one to the last with full transparency. No doubt, holding of the State lotteries for public revenue has been authorised, legalised and once this having been done it is expected from the State to take such measure to see that people at large, faithfully and hopefully participate in larger number for the greater yield of its revenue with no fear in their mind. The Act further ensure by virtue of section 4(b) that the proceeds of the sale of such lottery tickets is credited to the public accounts of the State. This is to give clear message to the participants that the proceeds is not in the hands of individual group or association but is ensured to be credited in the State accounts. But, as we have said, this by itself would not take it outside the realm of gambling. It remains within the same realm. In this regard, there is no difference between lotteries under entry 34, List II and a lottery organised by the State under entry 40, List I. When character of both the State organised lotteries and other lotteries remains the same by mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate has to be treated as trade. Mr. Rakesh Dwivedi, learned counsel for the State of Manipur, further submits that under the Government of India Act, 1935 and the draft Constitution by the Constituent Assembly there was no provision like article 298. Draft article 266 (now article 289) provided for trade and business of States being subject to Union taxation. This led in the Constituent Assembly a considerable debate. The Provinces were protesting regarding this. As a consequence not only draft article 266 underwent modification, but during the last stages article 298 was inserted as a compromise. This was brought in, so that the States could carry on its "trade and business" throughout the country even with respect to subject-matter covered by List I and earn more revenue. He submits that proviso (b) to article 298 is not merely a repetition of article 246 read with entries of List I of the Seventh Schedule but was for a purpose to enhance the revenue earning of the States. Mr. R.N. Trivedi, learned Additional Solicitor-General, submitted that article 298 does not confer any plenary right on any State to carry on any trade or business, even though this article does not provide spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Union, in respect of lotteries. On this basis, the Government of Maharashtra banned the sale of lottery tickets in its State or other States. This was challenged. This Court held that the Government of Maharashtra cannot purport to ban the sale of lottery tickets of other States by virtue of entrustment of the executive power of the Union under article 258(1). This case records: "It appears that the Government of Maharashtra and various other State Governments requested the Union Government to authorise them to conduct lotteries for the purpose of 'finding funds for financing their development plans'. Such authorisation was, of course, strictly not necessary in the absence of a law made by Parliament pursuant to entry 40 of List I of the Seventh Schedule to the Constitution. Article 298 of the Constitution extends the executive power of the Union and each State to the carrying on of any trade or business and the acquisition, holding and disposal of property and the making of contracts for any purpose, with the stipulation that if the trade, business or purpose is not one with respect to which Parliament may make laws, the said executive power of Parliament shall be subject in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... President. 75.. This bring us back to article 298 to see whether there is any significant difference between the words used under article 298 and article 301. This difference could indicate the scope and periphery of the field of operation of these two articles. Relevant portion of article 298 is quoted hereunder: "298. Power to carry on trade, etc.- The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose: Provided that- ...................... (b) the said executive power of each State shall, in so far as such trade or business or such purpose is not one with respect to which the State Legislature may make laws, be subject to legislation by Parliament." [Emphasis supplied] The executive power of the State is referable in terms of words used therein "to the carrying on of any trade or business............. and the making of contracts for any purpose". Title of this article significantly is "power to carry on 'trade', etc." Article 301 is quoted hereunder: "301. Freedom of trade, commerce and intercourse.- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition: "The word business is of large signification, and in its broadest sense includes nearly all the affairs in which either an individual or a corporation can be actors." "Business" and "trade": "..............There may, however, be a 'business' without pecuniary profit being at all contemplated. In such a connection, 'business' is a very much larger word than 'trade' and the word 'business' is employed in order to include occupations which would not strictly come within the meaning of the word 'trade'. The words 'trade' and 'business' do not mean the same thing..... The word 'trade' is often confined to buying and selling commodities. Where to draw the line between what is a profession and what is a trade is a matter which it is not possible to deal with any general definition. 'Business' is a much wider term than trade. The word 'business' at least covers a continuous occupation involving liabilities to others. In re A Debtor, [1927] 1 Ch 9 = 96 LJ (Ch) 28 (CA)." All this clearly indicates, the word "business" is wider than the words "trade and commerce". This apart, article 298 further uses the words "contracts for any purpose", so far lottery tickets are concerned t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate or others could neither be a fundamental right nor a right under article 301. No one could seek it as a free "trade" like other "trades ", even though it may have the authority of law. This authorisation under the Act is solely for the purpose for the States to earn revenue. 77.. So far as Anraj case-II [1986] 61 STC 165 (SC); (1986) 1 SCC 414 is concerned, it held that "lottery tickets" to be "goods" and thus subject to sales tax. We have already held that there may be certain transactions or commodity which are goods and subject to sales tax but still it would not qualify to be "trade". In this Anraj case-II [1986] 61 STC 165 (SC); (1986) 1 SCC 414 also there was no issue, whether sale of such lottery tickets would be trade and commerce within the meaning of Chapter XIII of the Constitution or not. Once it was held to be goods, this case proceeded to adjudicate whether by different measure to tax on the lottery tickets of the home State and of other States there is any violation of article 304 or not. Neither there was any occasion nor it has referred to the Constitution Bench decision of this Court in RMDC case [1957] SCR 874. So far in the present case, neither we are co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of Bhutan lotteries in their States. Paragraph 47 of the affidavit of Union of India dated 27th November, 1998, referred and records, "consequently, the Central Government decided to enact an appropriate legislation to regulate the conduct of lotteries so as to protect the poor and gullible persons.............." The submission is, so far the sale of Bhutan lottery tickets, Union stand is clear that Bhutan lotteries are to be sold throughout India without any conditions contrary to the placing of stringent conditions on the State lotteries which is discriminatory. On the one hand, under the garb of regulating these lotteries, power to ban lotteries was delegated to the "State" so as to protect the poor and gullible persons, on the other hand to permit Bhutan lotteries to be sold throughout India without any condition clearly demonstrates that consideration for poor and gullible a lost sight. 80.. It is true that by perusal of these various office memorandum, circular letters and the affidavit of Union of India depicts the state of uncertainty in the Union and so took its oscillating stand, as it stood then and now. Then stand was, since Bhutan lottery is under a treaty, all St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be subjected to the laws of lotteries in India. But once treaty itself stipulates it to be subject to any law in India, then if the sale of Bhutan lottery tickets are not State organised lotteries, it necessarily falls under other lotteries under entry 34, List II. There is no other entry pertaining to lottery. Thus, it necessarily follows that its sale within India will be subject to the laws of the State as is applicable under this entry. In other words, if the State prohibits sale within its State not only sale of its own lottery but every other lottery, then the sale of lottery tickets of Bhutan will have to be subjected to the laws of that State. Thus, prohibition to other lotteries will equally be applicable to the sale of Bhutan lottery. In the present case, learned Additional-Solicitor General Mr. Vaidyanathan, also subscribed to this interpretation on behalf of the Union. As we have said, in the absence of law by the Parliament, so far the treaty with the said stipulation, there could possibly be no other interpretation. This interpretation further eliminates possible discrimination which is subject of attack in the present case. Thus, the Bhutan lottery could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tamil Nadu is on plain reading of section 5, a State without banning its own lottery can ban lotteries organised by other States. This may be to create monopoly or in the name of law and order or of moral or ethical grounds or may also be for political reason. Thus, to this large discretion left on the State is submitted it shows the delegation of unbridled power hence violative of article 14. Mr. Venugopal submits that even though the interpretation sought to be given by the Union may reduce the extent of discrimination to a great extent but cannot neutralise the violation of article 303(1) of the Constitution. There is nothing in the Act or its preamble to interpret that, it is only the State which decides not to run its own lottery that could impose such a ban. Learned counsel Mr. Shanti Bhushan also submitted that the State cannot take up a stand that the law which is applicable to other persons would not apply to the State as it would be inconsistent with the rule of law based on the doctrine of equality which introduce discrimination. Reliance was placed on the case of Superintendent of Rememberances of Legal Affairs, West Bengal v. Corporation of Calcutta [1967] 2 SCR 170 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation thus when a State wants to exercise such power, it is left to its wisdom having regard to its policy in public interest, P. Orr Sons (P) Ltd. v. Associated Publishers (Madras) Ltd. (1991) 1 SCC 301 (para 14). 86.. The legal principles which emerges, as submitted, is that delegation of essential legislative power of the principal to the delegatee would amount to abdication of its legislative power and if it is bereft of any guidelines then it is unsustainable in the eyes of law. The authorities cited by various learned counsel and the law on the subject, cannot be doubted. But this principle is to be tested by scanning the impugned legislation which may differ one from the other in its nature, setting up or other circumstances which may have bearing to conclude. It is also well-settled, first attempt should be made by the courts to uphold the charged provisions and not to invalidate it merely because one of the possible interpretation leads to such a result, howsoever attractive it may be. Thus, where there are two possible interpretations, one invalidating the law and the another upholding, the latter should be adopted. For this, the courts have been endeavouring, sometime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject-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 a consideration all the factors such as history of the legislation, the purpose thereof, the 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. State of Bihar [1955] 6 STC 446 (SC); [1955] 2 SCR 603, R.M.D. Chamarbaughwala v. Union of India [1957] SCR 930; Mahant Moti Das v. S.P. Sahi AIR 1959 SC 942. Another principle which has to be 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. Union of India [1950] SCR 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es with it the power to delegate. But excessive delegation may amount to abdication. Delegation unlimited may invite despotism uninhibited. So the theory has been evolved that the Legislature cannot delegate its essential legislative function. Legislate it must, by laying down policy and principle and delegate it may to fill in detail and carry out policy. The Legislature may guide the delegate by speaking through the express provision empowering delegation or the other provisions of the statute, such as the preamble, the scheme or even the very subject-matter of the statute. If guidance there is, wherever it may be found, the delegation is valid. A good deal of latitude has been held to be permissible in the case of taxing statutes and on the same principle a generous degree of latitude must be permissible in the case of welfare legislation, particularly those statutes which are designed to further the Directive Principles of State Policy." This case holds that guidelines can be gathered from the subject- matter of the Act. 87.. Before entering to decide the rival contentions within the approved wide field of interpretation, we look back to the history of the law pertaining to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a public purpose it has been legalised but cannot be equated with other trade or business. It is distinct and different kind in itself, i.e., a class of gambling. Thus, merely putting on the apparel of the State, the State lotteries cannot change from its basic character. 88.. As revealed from Anraj case-I (1984) 2 SCC 292, some of the States sought permission of the Union as a policy to raise its revenue through these lotteries, which was conferred by the Presidential Order under article 258(1), though it records, the State could have exercised their discretion as a policy to have their own lotteries without such permission in view of its extended executive power under article 298. It further reveals, till the Parliament makes any law, decision to start its lottery or to close it is exclusively within the executive power of each State. This is because it is the policy decision of a State which has to decide as a principle whether it desires to collect in this form the revenue or not. The benefit of article 298 is, it is extra territorial, applicable beyond its territory, it is for this State lotteries are placed in entry 40, List I. So in a federal structure, Union has to play ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eft to the policy of each State, for this the Act is silent. The only control is, in case it decides, then it must follow the conditions as laid down under section 4. Next comes section 5 which is subject-matter of challenge, the delegation of power to the State to prohibit the sale of lottery tickets organised by every other State. If a State desires not to subject its people to the lottery gambling, it has no power to restrict lotteries organised by other States. It is to remove this mischief the power is conferred through delegation to the States to do it in terms of its own policy. By virtue of this, now the State Government can prohibit sale of lottery tickets of every other States within its territory. Next, section 6 seeks strict compliance of section 4. Under this the Central Government may prohibit any State lottery which is being conducted in contravention of the conditions as laid down under section 4 or 5. Section 7 shows the rigor of this Act by making it a penal offence as against all, who violate the provisions of this Act, may be the Head of the Department of the Government or the agent, promoter or trader, to be punishable with two years rigorous imprisonment. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... free zone and for which the power is entrusted to such State, it cannot be said in this setting and background and the nature of the subject that such a delegation is of its essential legislative power. The only guideline necessary in such delegation is to see State does not pick and choose one State from the other, which guideline is already provided in this section. It provides that such a ban could only be if it is applied to every other State. Only residual field of attack so far this delegation could be, which has been attacked in this case, that State could on one hand ban lotteries of every other State but run its own lotteries. It is argued while a State bans lotteries of other States not to permit any gambling activity in the public interest as a policy but this very public interest is flouted by having lotteries of its own. It is true that unless this provision is read down to mean a State can only ban lotteries of other States when it bans as a policy its own lotteries it is bound to be subjected to the vagaries as pointed out and on deeper scrutiny it may not successfully stand. But by reading down the provision, which has to be read that it is only that State which de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion further is, if the ban of sale of lottery tickets of every other State is as a public policy, affecting the morality and resultant ill effect on its subject then there is no justification that State may run its own lottery affecting the very subject for which the power is exercised prohibiting the lotteries of other States. It is true, if such an interpretation is accepted then this submission has a force. On the other hand, on behalf of the Union the submission is that language of the section has to be read down. The decision to have its lottery or not to have its lottery has to be in the public interest. Every decision to have either lotteries authorised by the State or organised by the State has to be in public interest. May be for collection of public revenue or for a public purpose. It has been held in Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly AIR 1986 SC 1571 at para 93: "There must be no injury or harm to the public interest, public good and public welfare." Thus, the decision to run State lottery has to be made with the conscience of its evil consequences on its subject, thus before deciding the State has to equate the public welfare wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome of the North-Eastern States, Nagaland, etc., or the State of Sikkim that in the exigencies they are placed with the lack of harnessing their revenue, if this right is curtailed it would badly affect their revenue. It may be true to some extent so far as these States are concerned. However, we find that the impugned provision does not prohibit such State not to run its own lotteries. Such State can continue to have their own lotteries. Only where any State decides not to have any lottery the territorial area of such State is only curtailment. What would be the shortfall of the revenue, if any, the figure of which has not been effectively placed before us, whether there is going to be of any substantial loss, but if at all there is, it is for that State to find an alternative or for the Union to lend support if that is essential within its permissible limits. These again are matters in the realm of policy which this Court has no jurisdiction to enter into. But this cannot mean to permit any such State to have right to its lotteries (gambling) in other territory in spite of other State prohibiting such activity in its territory. That right could have been if State lotteries were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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