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TMI Blog1975 (5) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... by Art. 19(1) (g) of the Constitution have been illegally interfered with by these amendments in so far as the amendments impose additional restrictions upon these rights without having secured the Presidential sanction required by the proviso to Article 304(b) of the Constitution. Article 304 of the Constitution reads as follows : "304. Notwithstanding anything in Article 301 or article 303, the Legislature of a State may by law- (a) impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced ; and (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest : Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President". It will be seen that Article 301 of the Constitution provides "Subject to the other provisions of this Part, trade, commerce and intercourse throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onferred by Part III of the Constitution which can be enforced by a petition under Article 32". That was a case relating to a pre-Constitution enactment so that Article 305 of the Constitution was held to provide a complete answer to the petitioners' claim. We do not think that the mere fact that the- legality of an enactment is challenged for non- compliance with the proviso to Article 304(b) of the, Constitution would take away the character or substance of a petitioner's claim when a citizen comes to Court with the allegation that his fundamental right to carry on business or trade is affected adversely by a provision which does not legally exist. No doubt the restrictions contemplated by Article 304(b) may be of a character different from those on an individual citizen's rights to trade but it cannot be denied that their impact on individual rights is often very direct. The stage for considering the reasonableness of a direct or indirect restriction of a fundamental right arises only where the restriction is otherwise valid. As this Court has repeatedly held, restrictions which have no authority or sanction of law to back them would, per se, be bad restrictions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribution centers of silkworm seed ; (e) the grant of duplicate licences and the renewal of licences and fees for the same ; (f) appeals from any order under this Act, the authority to which such appeals shall lie, the time within which such appeals should be made and the procedure for dealing with such appeals ; (g) the forms of licences to be granted, returns to be submitted and accounts to be maintained under this Act; (h) the fee payable by the licensed buyer in respect of cocoons purchased by him in the cocoon market, such fee not exceeding two per cent of the purchase price; (i) the particulars to be furnished by any person of the occurrence of silkworm disease in silkworm or silkworm seed, and the steps to be taken for the prevention or eradication of such disease; (j) generally regulating the procedure to be followed in proceedings under this Act; (k) any other matter which may be prescribed under this Act. (3) All rules made under this Act shall he laid as soon as may be after they are made before each House of the State Legislature while it is in session for a total period of thirty days which may be comprised in one session of in two or more sessions and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll kinds (excluding cross-breed cocoons) used or reared for purposes of production. A rearer is a person defined as engaged in rearing silkworms for the production of silkworm cocoons, whether for reproduction or reeling. The preamble of the Act shows that it is intended to consolidate the laws "providing for the regulation, of the production, supply, and distribution of silkworm seed and cocoon in the State of Mysore it is urged on behalf of the State that the whole object of this machinery of regulation and control of production, supply, and distribution of silkworm seed and cocoons was that, by ensuring the high standard of purity and quality of Mysore silk, to promote the business and trade of the Mysore State in silk products, and, thereby, to contribute to the growth and freer flow of trade. It is stated by the petitioner-, themselves that almost 7 per cent of the population of Mysore State is engaged in various processes connected with the rearing of silkworms and reeling of silk, and that over two lakh acres of land in Mysore State are under mulberry cultivation and mulberry is used exclusively to feed silkworms. The raising and maintenance of the quality of silk was, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws No person shall engage in the rearing of silkworms for the production of silkworm cocoons except under and in accordance with the terms and conditions of a licence granted under this Act". On behalf of the State, it is pointed out that the amended Section 4(1) does not amplify the restrictions which had to be read with Section 3 of the Principal Act set out above and the detailed provisions of Rules 3, 4, and 5 read with definitions given. After going through these rules, the validity of which was not challenged, we are satisfied that no additional restriction is imposed by the Amending Section 4(1). We may here indicate the already stringent regulation or restrictions existing under the Principal Act and the rules framed thereunder which were not challenged. Rule 3(1) contained a prohibition against rearing silkworms by any person from silkworm seed other than silkworm seed obtained from a seed preparer licensed under these rules. Rule 3(2) imposed a duty upon a person who obtains silkworm seed from a licensed seed preparers to preserve the bill and the egg sheets issued by the licensed seed preparer in respect of the silkworm seed supplied by such seed preparers so that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the grievance that there has been any significant increase in restrictions. The new Section 7(2) merely makes evasion of the requirement to conduct business in the cocoon market of an area more difficult. The only amendments complained of are those in Section 12 which, in the Principal Act, read as follows :- "12. Penalties.-(1) Any person who contravenes the provisions of Section 3- or 4 shall be punishable with fine which may extend to one hundred rupees. (2) Any rearer who contravenes the provisions of Section 6 or 7 or any other provision of this Act or any rule, order or notification made thereunder, shall be punishable with fine which may extend to fifty rupees. (3) Any licensed buyer who contravenes the provisions of Section 7 or 8 or any other provision of this Act or any rule, order or notification made thereunder, shall be punish- able with fine which may extend to two hundred and fifty rupees. (4) Save as otherwise provided in sub- section (1), (2) and (3), any person who contravenes any of the provisions of this Act or of any rule, order or notification thereunder, shall be punishable with fine which may extend to two hundred and fifty rupees. (5)(a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognizable". It was contended that the increase in the penalties would, in any event, be additional restrictions. Learned Counsel for the State replied that penalties are merely sanctions provided for enforcing restrictions and are not additional restrictions on freedom of trade or commerce. It is true that, even without a change in the nature of violations punished, those who contravene the provisions of the Act are subjected to somewhat severer punishment. But, the increase in the penalties is such, in view of the change in the value of money, as not to amount to an appreciable increase in restriction even from the point of view of a person who wants to break the restrictive laws. Penalties are really part of the procedure for the enforcement of restrictions. They do not create new offenses. They only make violation of whatever restrictions on trade and commerce were there more onerous. We therefore, doubt very much whether they could really be looked upon as additional restrictions upon freedom of trade and commerce. We may now refer to the cases cited by learned Counsel. In Atiabari Tea Co. Ltd. V. the State of Assam & Ors., [1961] 1 S.C.R. 809 this Court held the Assam T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not impeded, but, on the other hand, promoted, by regulations creating conditions for the free movement of trade, such as, police regulations, provision for services, maintenance of roads, provision for aerodromes, Wharfs, etc., with or without compensation (3) Parliament may by law impose restrictions on such freedom in the public interest ; and the said law can be made by virtue of any entry with respect where-of Parliament has power to make a law. (4) The State also, in exercise of its legislative power, may impose similar restrictions, subject to the two conditions laid down in Art. 304(b) and subject to the proviso mentioned therein. (5) Neither Parliament nor the State Legislature can make a law giving preference to one State over another or making discrimination between one State and another, by virtue of any entry in the Lists, infringing the said freedom. ( 6) This ban is lifted in the ease of Parliament for the purpose of dealing with situations arising out of scarcity of goods in any part of the territory of India and also in the case of a State under Article 304(b), subject to the conditions mentioned therein. And (7) the State can impose a non-discriminator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustry and trade of Mysore may be maintained. Such "regulation", it is contended, ultimately contributes to greater flow and freedom of trade, even if it involves some inconvenience to those who have to take out license which, according to rules,. were granted to all those found qualified. We find considerable weight in these arguments. In any case, we are not satisfied that there has been a real increase in restriction upon commerce in silkworms and cocoons by the provisions of the Amending Act which mostly cover what was already laid down by the statutory rules. If the substance of statutory rules is converted into statutory provisions there could hardly be said to be an addition even in "regulation" imposed by the amending law. Learned Counsel for the petitioner cited Hughes and Vale Proprietary Ltd. v. State of New South Wales & Ors. [1955] A.C. 241, where provisions of the State Transport (Co-ordination) Act, of the State of New South Wales, requiring applications to be made for licences, which may be granted or refused by an official in the exercise of an uncontrolled discretion, and of all provisions consequential thereto, in so far as they were sought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Article 32 alleging infringement of the fundamental right guaranteed under Article 19(1) (g) of the Constitution would lie, yet, it has to be remembered that it cannot be allowed until such an infringement, falling outside Article 19(6) of the Constitution, has been established. Now, as we have mentioned earlier, learned Counsel for the petitioners stated that no question about reasonableness of any restriction was being raised by them before us. They rested their case solely on the want of Presidential sanction to Additional "restrictions" on freedom of business, trade, and commerce which are not, as we have indicated earlier, to be equated with a mere reduction of the area of freedom of choice of those who arc engaged or who want to engage in a business or trade. The passage cited in Hughes' case (supra), from the Bank of New South Wales case (supra) makes that clear. In other words, an allegedly additional restriction on trade and commerce is to be judged from a broader and more general angle of the freedom of a, particular trade. What may be a restriction of his choice, from the point of view of an individual citizen engaged in a trade, may not be a restrictio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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