TMI Blog1959 (12) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and he sought to get support from the following observation of Venkatarama Aiyar, J., in A. S. Krishna v. State of Madras ([1957] S.C.R. 399,406,410) :- ...... 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 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 ([1954] S.C.R. 873, 877) in the case of Excise Regulation of 1915 regulating the import, export, transport, manufacture, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.( [1950] S.C.R. 869,); The State of Bombay v. F.N. Bulsara ((5) [1951] S.C.R. 682, 708); 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 Qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ([1959] S.C.R. 279, 297), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medies 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 ([1957] S.C.R. 399, 4060 410)). Thus examined it cannot be said that the object of the Act was merely to put a curb on advertisemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ([1959] S.C.R. 279). Similarly, in Kathi Raning v. The State of Saurashtra ((1952) S.C.R. 435. ) and in Kavalap- para Kottarathil Kochunni v. The State of Madras (A.I.R. (1959) S.C. 725) 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 adve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionship 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 (86 Law. Ed. 1262.). It was held that the constitutional right of free speech is not infringed by 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ganised 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 (60 Law Ed. 679, 690,), 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery 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 ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Bose, J., in Dwarka Das Srinivas of Bombay v. The Sholapur Spinning Weaving Company Limited ([1954] S.C. R. 674, 733) 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional 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.649.) 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ((1945) L.R. 72 I.A. 241). 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 disea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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