81 62 63  3 of 1959
Petition under article 32 of the Constitution of India for enforcement of Fundamental rights
K M Munshi N C Chatterjee L R Das Gupta G K Munshi D N Mukherjee and R Gopalakrishnan for the petitioners
C K Daphtary Solicitor General of India H N Sanyal Additional Solicitor General of India B R L Iyengar R H Dhebar and T M Sen for respondents Nos 1 to 10 in Petn
No 81 of 59 Nos 1 to 3 in Petn
No 62 of 59 No 1 in Petns
Nos 63 and 3 of 59 and Nos 2 and 3 in Petn
No 3 of 59
GN Dikshit and C P Lal for respondent No 11 in Petn
No 81 of 59 and No 2 in Petn
No 63 of 59
R Gopalakrishnan for the intervener
December 18
The Judgment of the court was delivered by KAPUR J
These petitions under article 32 of the Constitution raise the question of the constitutionality of the Drug and Magic Remedies Objectionable Advertisement Act XXI of 1954 hereinafter referred to as the Act
As the petitions raise a common question of law they may conveniently be disposed of by one judgment
86 674 The allegation of the petitioners was that various actions had been taken against them by the respond which violated their fundamental rights under article 191a and 191f  g
They also challenged the Act because it contrvened the provisions of article 14 and articles 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 section 3 of the Act had been contravened by them and called upon them to recall their products sent to Bombay and other States
As a result of this correspondence ensued between the petitioners and the authorities
On December 4 1958 the Drugs Controller Delhi State stopped the sale of forty of their products set out in the petition
Subsequently objection was taken by the Drugs Controller to the advertisements in regard to other drugs
Similarly objections were taken by the Drugs Controllers of other States to various advertisements in regard to medicines and drugs prepared by the petitioners
They submitted that the various advertisements which had been objected to were pre pared in accordance with the Unani system and the drugs bore Unani nomenclature which had been recognised in the whole world for several centuries past
The Act is assailed on the ground of discrimination under article 14 excessive delegation and infringement of the right of free speech under article 191a and their right to carry on trade and business under 675 article 191f  g
Objection is also taken under articles 21 and 31
The petitioners therefore prayed for a declaration that the Act and the Rules made there under were ultra vires and void as violative of Part III of the Constitution and for the issuing of a writ of Mandamus and Prohibition and for quashing the proceedings and the notices issued by the various authorities the respondents
In their counter affidavit the respondents submitted that the method and manner of advertisement of drugs by the petitioners and others clearly indicated the necessity of having an Act like the impugned Act and its rigorous enforcement
The allegations in regard to discrimination and impairment of fundamental rights under article 191a f  g and any infringement of articles 21 and 31 were denied and it was stated   The restriction is about the advertisement to the people in general
I say that the main object and purpose of the Act is to prevent people from self medicating with regard to various serious diseases
Self medication in respect of diseases of serious nature mentioned in the Act and the Rules has a deleterious effect on the health of the community and is likely to affect the well being of the people
Having thus found that some medicines have tendency to induce people to resort to self medication by reason of elated advertisements it was thought necessary in the interest of public health that the puffing up of the advertisements is put to a complete check and that the manufacturers are compelled to route their products through recognised sources so that the products of these manufacturer could be put to valid and proper test and consideration by expert agencies
 It was also pleaded that the advertisements were of an objectionable character and taking into consideration the mode and method of advertising conducted by the petitioners the implementation of the provisions of the impugned Act was justified
Along with their counter affidavit the respondents have placed on record Ext
A which is a copy of the literature which 676 accompanied one of the various medicines put on sale by the petitioners andor 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 article 191a is exercised and the restrictions which are imposed by the Act are such that they are not covered by cl
2 of article 19  2That Act the Rules made thereunder and the schedule in the rules impose arbitrary and excessive restrictions on the rights guaranteed to the petitioners by article 191f  g 3 Section 3 of the Act surrenders unguided and uncanalised power to the executive to add to the diseases enumerated in section 3 4 Power of confiscation under section 8 of the Act is violative of the rights under articles 21 and 31 of the Constitution
In Petitions Nos 62 and 63 of 1939 which relate to two branches of Sadhana Ausadhalaya at Poona and Allahabad respectively Mr N C Chatterjee after giving the peculiar facts of those petitions and the fact that the petitioners  Poona branch was raided without a warrant a number of medicines had been seized and a complaint filed against the petitioners in that petition submitted that section 3b of the Act was meant to strike down abnormal sexual activities that advertisements in that case merely mentioned the names of the diseases and suggested the drug for the treatment 677 of those diseases that the prohibition of such adver tisements was an unreasonable restriction on their fundamental right that there was nothing indecent in saying that their medicine was a cure for a particular disease and that the Act was an undue interference with cure and treatment of diseases
We now proceed to consider the vitality of the arguments raised on behalf of the petitioners
Firstly it was submitted that the restriction on advertisements was a direct abridgement of the right of free speech and advertisements could not be brought out of the guaranteed freedom under article 191a because no dividing line could be drawn and freedom of speech could not be curtailed by making it subject to any other activity
The learned Solicitor General on the otherhand contended that it was necessary to examine the pith and substance of the impugned Act and if it was properly considered it could not be said to have in any way curtailed abridged or impaired the rights guaranteed to the petitioners under Art 191a
He also contended that the prohibited advertisements did not fall within the connotation of  freedom of speech 
The doctrine of pith and substance submitted Mr Munshi was created for the purpose of determining the legislative competence of a legislature to enact a law and he sought to get support from the following observation of Venkatarama Aiyar J in A section Krishna vs State of Madras 1   and the Privy Council had time and again to pass on the constitutionality of laws made by the Dominion and Provincial legislatures
It was in this situation that the Privy Council evolved the doctrine that for deciding whether an impugned legislation was intra vires regard must be had to its pith and substance  Though the doctrine of  pith and substance  was evolved to determine the constitutionality of an enactment in reference to the legislative competence of a legislature particularly under a federal constitution with a distributive system of powers it has been used in other contexts in some cases eg in connection 1  406410
678 with the determination of the constitutionality of statutes restricting the rights to carry on certain activities and the consequent infringement of article 191g  by Mahajan CJ in Cooverjee B Bharucha vs The Excise Commissioner  The Chief Commissioner of Ajmer 1 in the case of Excise Regulation of 1915 regulating the import export transport manufacture sale and possession of intoxicating drugs and liquor and imposing duties thereon by Das CJ in State of Bombay vs R M D Chamarbughwala 2 in connection with a statute which was held not to be interference with trade commerce or intercourse as such but to save it from anti social activities
It is unnecessary to decide in the present case whether in its scope it extends to the determination of the constitutionality of an enactment with reference to the various sub clauses of cl
1of article 19
A more appropriate approach to the question is in our opinion contained in the dictum of Mahajan J as he then was in Ms Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh 3
There he held that  in order to decide whether a particular legislative measure contravenes any of the provisions of Part III of the Constitution it is necessary to examine with some strictness the substance of the legislation in order to decide what the legislature has really done
Of course the legislature cannot bypass such constitutional prohibition by employing indirect methods and therefore the Court has to look behind the form and appearance to discover the true character and nature of the legislation
 Therefore when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part 111 of the Constitution the ascertainment of its true nature and character becomes necessary ie its subject matter the area in which it is intended to operate its purport and intent have to be determined
In order to do so it is legitimate to take into consideration all the factors such as history of the legislation the purpose thereof the 1   877
2  3   682
679 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 vs The State of Bihar 1 RMD Chamarbaughwala vs The Union of India 2 Mahant Moti Das  Ors
vs section P Sahi  3
Another principle which has to borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the need of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted
Presumption is therefore in favour of the constitutionality of an enactment
Charanjit Lal Chowdhuri vs The Union of India  Ors4 The State of Bombay vs FN Bulsara 5 Mahant Moti Das vs section P Sahi 3
What then was the history behind the impugned legislation and what was the material before the Parliament upon which it set to enact the impugned Act
1 In 1927 a resolution was adopted by then Council of State recommending to the Central and Provincial Governments to take immediate measures to control the indiscriminate use of medical drugs and for standardisation of the preparation and for the sale of such drugs
In August 1930 in response to the public opinion on the subject and in pursuance of that resolution the Government of India appointed the Drugs Enquiry Committee with Sir R N Chopra as its Chairman to enquire into the extent of the quality and strength of drugs imported manufactured or sold in India and to recommend steps for controlling such imports manufacture and sale in the interest of the public
This Committee made a report pointing out the necessity of exercising control over import 1  632  633
2   936
3 AIR 1959 SC 942 948
4   5   708
680 manufacture and sale of patent and proprietary medicines in the interest of the safety of the public and public health
The report pointed out in paragraph 256 259 how in other countries control was exercised and restrictive laws to achieve that end had been enacted
In the Appendix to this Report was given a list of a number of samples of advertisements of patent and proprietary medicines dealing with cures of all kinds of diseases
2 As a result of the Chopra Committee Report the Drugs act was passed in 1940
3In 1948 The Pharmacy Act was passed to regulate the provisions of pharmacy
As a result of these two enactments the State Governments were given the responsibility of controlling the manufacture of drugs and pharmaceuticals and their sales through qualified personnel and the Central Government was given the control on quality of drugs and pharmaceuticals imported into the country
4The Chopra Committee Report dealt with the popularity of the patent and proprietary medicines in the following words The pride of place must be accorded to ingenious propaganda clever and attractive dissemination of their supposed virtues and wide and alluring advertisements
The credulity and gullibility of the masses especially when certain cures  are assured in utterly hopeless cases can well be imagined
Perusal of the advertisements of cures  produces a great effect on patients who have tried treatment by medical men without success
Such patients resort to any and every drug that comes in their way
In an infinitesimal small number of cases spontaneous cures are also effected
Widest publicity is given to these and the preparations become invested with miraculous virtues
The reassurances of cure the force of argument advanced to guarantee it and the certificates of persons said to have been cured which are all set out in advertisements make a deep impression especially on those with weak nerves
The love of mystery and secrecy inherent in human nature the natural disinclination and 681 shyness to disclose details of one s illness especially those involving moral turpitude the peculiar temperament of the people who high and low rich and poor demand something in a bottle  for the treatment of every ailment and poverty of the people who cannot afford to pay the doctor s bills or the high prices current for dispensed medicines  have all been enlarged upon as tending to self diagnosis and self medication by patent and proprietary medicines 5Evidence 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
6The 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 11252 dated February 14 1953 and between March 1953 and end of that year it examined a large number of witnesses in different towns of India some of whom represented chemists and druggists some were leading medical practitioners and some were State Ministers for Health
The Bhatia Committee issued a Questionnaire to various organisations and witnesses
It contained questions in regard to advertisement of drugs and therefore one of the objects of this Committee which was inaugurated by the Health Minister on March 12 1953 was amongst other things to look into the control to be exercised over objectionable and unethical advertisements
8 There were a large number of objectionable advertisements in the Press in regard to patent medicines which were after the Act came into force pointed out by the Press Commission Report but it cannot be said that this fact was unknown to Parliament as this Committee also examined a number of witnesses
87 682 9 The Indian Medical Association had suggested to this Press Committee which was presided over by the late Mr Justice Rajadhyaksha the barring of advertisements of medicines which claim to cure or alleviate any of the following diseases Cancer Bright s disease Cataract Diabetes Epilepsy Glaucoma Locomotor ataxia Paralysis Tuberculosis
10 In the United Kingdom advertisements of drugs or treatment for these diseases are governed by the Cancer Act of 1939 and the Pharmacy and Medi
cines Act of 1941
Advertisement relating to the treatment of venereal diseases are governed by the Venereal Diseases Act of 1917
11 Wyndham EB Lloyd in his book  Hundred years of medicine  published in 1936 wrote about the outstanding evils which arise from the use of secret remedies and nostrums
It also drew attention to the dangers of advertisements in regard to them and what the British Medical Association had said about them
12The British Medical Association had in a book entitled Secret Remedies What they cost and contain  exposed ruthlessly the harmful effects of such remedies
The council on Pharmacy and Chemistry of American Medical Association had also given its opinion on the harmful effects of indiscriminate self medication by the public and the grave danger which ensued from such misdirected and inadequate treatment and the failure to recognise seriousness of the disease only when it was too late
It is not necessary to refer to the recommendations of the Bhatia Committee or the Press Enquiry Committee because they were published in June and July 1954 respectively
In England as far back as 1889 an Act called the Indecent Advertisements Act 52 and 53 Viet
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
21 was passed in England
This placed restrictions on 683 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 vs Shri Justice section R Tendolkar 1 Das CJ observed   that in order to sustain the presumption of con stitutionality the court may take into consideration matters of common knowledge the history of the times and may assume every state of facts which can be conceived existing at the time of legislation Thus it is open to the court for the purpose of determining the constitutionality of the Act to take all these facts into consideration and in the present case we find that there was the evil of self medication which both in this country and in other countries the medical profession and those who were conversant with its dangers had brought to the notice of the people at large and the Government in particular
They had also warned against the dangers of self medication and of the consequences of unethical advertisement relating to proprietary medicines particularising those diseases which were more likely to be affected by the evil
There is reason therefore for us to assume that the state of facts existed at the time of the legislation which necessitated the Act
These facts we have already set out and it is not necessary to reiterate them
With this background in view we proceed to examine the provisions of the Act and ascertain the predominant purpose true intent scope and the object of the Act
The preamble shows that the object of the Act was to control the advertisement of drugs in certain cases ie diseases and to prohibit advertisements relating to remedies pretending to have magic qualities and provide for other matters connected therewith 1   297
684 The title of the Act also shows that it is directed against objectionable advertisements
The definition section section 2 in cl
a defines advertisements and in cl
b drugs which include i medicines for use of human beings and animals ii substances for use of diagnosis treatment or prevention of diseases in human beings and animals iii articles other than food which affect the organic functions of the body of human beings or animals and iv articles intended for use as a component of any medicine etc
c defines magic remedies to include a talisman mantra kavacha and other charms and d relates to the publication of any advertisement and e what a venereal disease is
Section 3 prohibits advertisement of drugs for treatment of diseases and disorders
Clause a of section 3 deals with procurement of miscarriage in women for prevention of conception cl
b with maintenance or improvement of capacity of human beings for sexual pleasure cl
c with diagnosis and cure of venereal and other diseases
Section 4 prohibits misleading advertisements relating to drugs
Section 5 similarly prohibits advertisements of magic remedies efficacious for purposes specified in section 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 sections 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 section Krishna vs State of Madras 1
Thus 1   4060 410 685 examined it cannot be said that the object of the Act was merely to put a curb on advertisements which offend against decency or morality but the object truly and properly understood is to prevent self medication or treatment by prohibiting instruments which may be used to advocate the same or which tend to spread the evil
No doubt in section 3 diseases are expressly mentioned which have relation to sex and disorders peculiar to women but taken as a whole it cannot be said that the object of the Act was to deal only with matters which relate to indecency or immorality
The name and the preamble are indicative of the purpose being the control of all advertisements relating to drugs and the use of the word animals in cl
b of the definition section negatives the object being merely to curb the emphasis on sex and indecency
Section 4 further suggests that the legislature was trying to stop misleading advertisements relating to drugs
Section 5 also tends to support the object being prohibition of advertisements suggesting remedies for all kinds of diseases
Section 6 also points in the same direction ie to stop advertisements as to drugs
Sections 14 and 15 are a clearer indication that there should be no advertisements for drugs for certain diseases in order that the general public may not be misled into using them for ailments which they may imagine they are suffering from and which they might believe to be curable thereby
That this is so is shown by the fact that such advertisements can be sent to medical practitioners hospitals and laboratories
The exclusion of Government advertisements and the power to give exemption all point to the objective being the stopping of advertisements of drugs for the object above mentioned and not merely to stop advertisements offending against morality and decency
Mr Munshi s argument was that section 3 was the key to the Act and that the object and direct effect of the Act was to stop advertisements and thereby impair the right of free speech by directly putting a prohibition on advertisement
If the contention of Mr Munshi were accepted then the restriction to be valid must fall within cl
2 of article 19 of the Constitution
In 686 other words it must have relationship with decency or morality because the other restrictions of that clause have no application
If on the other hand the submission of the learned Solicitor General is accepted then the matter would fall under sub cls
f and g and the restriction under article 196
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 vs Shri Justice section R Tendolkar 1
Similarly in Kathi Raning vs The State of Saurashtra 2  and in Kavalap para Kottarathil Kochunni vs The State of Madras 3 affidavits were allowed to be filed setting out in detail the circumstances which led to the passing of the respective enactments
In support of his argument that any limitation of his right to advertise his goods was an infringement of his freedom of speech because advertisement was a part of that freedom Mr Munshi relied upon Alma Lovell vs City of Griffin 4
In that case the objection was taken to the validity of a municipal ordinance prohibiting the distribution without a permit of circulars handbooks advertising or literature of any kind on the ground that such ordinance violated the first and the 14th amendment by abridging the freedom of the Press and it was held that such prohibition was invalid at its face as infringing the constitutional freedom of the Press and constitutional guarantee of such freedom embraced pamphlets and leaflets
The actual violation which was complained of in that case consisted of the 1  2  3  4   687 distribution without the required permission of pamphlets and magazines in the nature of religious tracts
Chief Justice Hughes said   The ordinance in its broad sweep prohibits the distribution of circulars handbooks advertising or literature of any kind
 It manifestly applies to pamphlets magazines and periodicals
 No doubt the word advertisement was used both in the ordinance as well as in the opinion by the learned Chief Justice but the case actually related to the distribution of pamphlets and magazines
Mr Munshi also relied on Express Newspapers Private Ltd vs The Union of India 1 where the cases dealing with freedom of speech were discussed by Bhagwati J but the question of advertisements as such did not arise in that case
An advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed
It assumes the attributes and elements of the activity under article 191 which it seeks to aid by bringing it to the notice of the public
When it takes the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is not propagation of ideas social political or economic or furtherance of literature or human thought  but as in the present case the commendation of the efficacy value and importance in treatment of particular diseases by certain drugs and medicines
In such a case advertisement is a part of business even though as described by Mr Munshi its creative part and it was being used for the purpose of furthering the business of the petitioners and had no relationship with what may be called the essential concept of the freedom of speech
It cannot be said that the right to publish and distribute commercial advertisements advertising an individual s personal business is a part of freedom of speech guaranteed by the Constitution
In Lewis J Valentine vs F J Chrestensen 2
It was held that the constitutional right of free speech is not infringed by 1 123 133
2  688 prohibiting the distribution in city streets of handbills bearing on one side a protest against action taken by public officials and on the other advertising matter
The object of affixing of the protest to the advertising circularwas the evasion of the prohibition of a city ordinance forbidding the distribution in the city streets of commercial and business advertising matter
Mr Justice Roberts delivering the opinion of the court said  This court has unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that though the states and municipalities may appropriately regulate the privilege in the public interest they may not unduly burden or proscribe its employment in these public thoroughfares
We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising
If the respondent was attempting to use the streets of New York by distributing commercial advertising the prohibition of the Code provisions was lawfully invoked against such conduct
 It cannot be said therefore that every advertisement is a matter dealing with freedom of speech nor can it be said that it is an expression of ideas
In every case one has to see what is the nature of the advertisement and what activity falling under article 191 it seeks to further
The advertisements in the instant case relate to commerce or trade and not to propagating of ideas and advertising of prohibited drugs or commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of freedom of speech and would not fall within article 191a
The main purpose and true intent and aim object and scope of the Act is to prevent self medication or self treatment and for that purpose advertisements commending certain drugs and medicines have been prohibited
Can it be said that this is an abridgement of the petitioners  right of free speech
In our opinion it is not
Just as in Chamarbaughwalla s ease 1 it was said that activities undertaken and 1  689 carried on with a view to earning profits eg the business of betting and gambling will not be protected as falling within the guaranteed right of carrying on business or trade so it cannot be said that an advertisement commending drugs and substances as appropriate cure for certain diseases is an exercise of the right of freedom of speech
Das CJ in State Bombay vs RMD Chamarbaughwala s 1 case said at page 920 We have no doubt that there are certain activities which can under no circumstances be regarded as trade or business or commerce although the usual forms and instruments are employed therein
To exclude those activities from the meaning of those words is not to cut down their meaning at all but to say only that they are not within the true meaning of those words
 One has only to substitute for the words trade or business or commerce the phrase freedom of speech to see how it applies to the present case
Freedom of speech goes to the heart of the natural right of an organised freedom loving society to impart and acquire information about that common interest
If any limitation is placed which results in the society being deprived of such right then no doubt it would fall within the guaranteed freedom under article 191a
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 vs Van Deman  Lewis Company 2 Mr Justice McKenna dealing with advertisements said Advertising is merely identification and description apprising of quality and place
It has no other object than to draw attention to the article to be sold and the acquisition of the article to be sold constitutes the only inducement to its purchase
 As we have said above advertisement takes the same attributes as the object it seeks to promote or bring to the notice of the public to be used by it
Examples can be multiplied which would show that advertisement dealing with trade and business has relation 1  2   690 88 690 with the item business or trade and not with freedom of speech
Thus advertisements sought to be banned do not fall under article 191a
It was also contended that the prohibition against advertisements of the petitioners was a direct abridgement of the right of freedom of speech and Alice Lee Grosjean vs The American Press Co 1 was relied upon
That was a case in which a tax was levied based on gross receipts for the privilege of engaging in the business of public advertisements in newspapers magazines etc
having a specified circulation and it was there held that such a statute abridged the freedom of the press because its effect was not merely to reduce revenue but it had tendency to curtail circulation
This subject was discussed in Express Newspapers  case 2 at pages 128 to 133 where the question was whether the Wage Board Act specifying the wages and conditions of service of the working journalists and thus imposing certain financial burden on the press was an interference with the right of freedom of Press and Bhagwati J said at page 135  Unless these were the direct or inevitable consequences of the measures enacted in the impugned Act it would not be possible to strike down the legislation as having that effect and operation
A possible eventuality of this type would Dot necessarily be the consequence which could be in the contemplation of the legislature while enacting a measure of this type for the benefit of the workmen concerned
 In considering the constitutionality of a statute the Court has regard to substance and not to mere matters of form and the statute must be decided by its operation and effect JM Near vs State of Minnesota3
In the present case therefore 1 the advertisements affected by the Act do not fall within the words freedom of speech within article 191a 2 the scope and object of the Act its true nature and character is not interference with the right of freedom of speech 1  2  123 133
3 75 La Ed 1357 1363 4 691 but it deals with trade or business and 3 there is no direct abridgement of the right of free speech and a mere incidental interference with such right would no alter the character of the law Ram Singh vs The State of Delhi 1 Express Newspapers Private Ltd vs The Union of India2
It is not the form or incidental infringement that determines the constitutionality of a statute in reference to the rights guaranteed in article 191 but the reality and substance
The Act read as a whole does not merely prohibit advertisements relating to drugs and medicines connected with diseases expressly mentioned in section 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 article 191a of the Constitution
It was next argued that assuming that the matter was within clauses f  g of article 191 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 section 2a 2 the use of the word suggest  in section 3 3 the uncanalised delegated power to add diseases to the schedule 4 the existence of section 14c read with rule 6 of the Rules and 5 the procedural part in s8 of the Act all of which according to counsel showed that it was beyond  all allowable limits of restraint under cl 6 of article 19
Advertisement  in the Act it was argued included not only advertisements in newspapers and periodicals and other forms of publication but also on
cartons bottles and instructions inside a carton
Without this latter kind of advertisement it was submitted the user would be unable to know what the medicine was what it was to be used for and how  If the purpose 1 1951 SCR451 455
2  123133
692 of the Act is to prevent objectionable and unethical advertisements in order to discourage self medication and self treatment it cannot be said that the definition is too wide keeping in view the object and the purpose of the Act which have been set out above
It is these evils which the Act seeks to cure and if the definition of the word  advertisment  was not so broad and inclusive it would defeat the very purpose for which the Act was brought into existence
The argument that the word suggest  is something subjective is in our opinion also not well founded Suggest  has many shades of meaning and in the context it means commendatory publication
It connotes a direct approach and its use in section 3 does not support the contention
that the restraint is disproportionate
In another part of the judgment we shall discuss the constitutionality of the power of delegation reasonableness of the range of diseases added in the schedule and it is unnecessary to go over the same field here
Then we come to section 14c and r 6 ie prohibited advertisement is to be sent confidentially by post to a registered medical practitioner or to a wholesale and retail chemist or a hospital and laboratory and the following words have to be inscribed on the outside of every packet containing the advertisement ie  for the use only of registered medical practitioners or a hospital or a laboratory 
If the purpose is to discourage self medication and encourage treatment by properly qualified medical practitioners then such a regulatory provision cannot be considered an excessive restraint
The mere fact that in the corresponding English Act certain other persons are also mentioned and that such advertisements can be published in certain medical journals and scientific treatises is not a ground for holding the restriction to be disproportionate
It is not a proper method of judging the reasonableness of the restrictions to compare every section of the Act with the corresponding English Act and then to hold it unreasonable merely because the corresponding section of the two Acts are different
The evil may be the same but the circumstances and 693 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 section 8 and it was submitted that the power seizure and detention was unfettered and and there is no proper procedure laid down Criminal Procedure Code or the Drugs Act are no rules and safeguards in regard warrants or entry into premises as there Code of Criminal Procedure or the Drugs Act
In another part of the judgment we shall deal with this question and it is not necessary to do so here
It was next contended that the Act was not in the interest of the general public as it could not be said that the mention of the names of diseases or instructions as to the use of particular medicines for those diseases was not in the interest of the general public
Besides it would prevent the medicines being brought to the notice of the practising medical practitioners or distributing agencies
It would also prevent a properly worded advertisement suggesting cure of diseases to people who for the sake of prestige and other understandably valid reasons do not like to confide to any person the nature of their diseases and that it would prevent medical relief in a country where such relief is notoriously inadequate
We have already set out the purpose and scope of the Act the conditions in which it was passed and the evils it seeks to cure
If the object is to prevent self medication or self treatment as it appears to be then these are exactly the evils which such advertisements would subserve if a piece of legislation like the Act did not exist
It has not been shown that the restrictions laid down in the Act are in any manner disproportionate to the object sought to be attained by the Act nor has it been of 694 shown that the restrictions are outside the permissible limits
Mr Chatterjee in dealing with this point drew our attention to the test of reasonablenses as laid down in Chintaman Rao vs The State of Madhya Pradesh 1 where it was said by Mahajan J as he then was at pages 762 and 763  The question for decision is whether the statute under the guise of protecting public interests arbitrarily interferes with private business and imposes unreasonable and unnecessarily restrictive regulations upon lawful occupation in other words  whether the total prohibition of carrying on the business of manufacture of bidis within the agricultural season amounts to a reasonable restriction on the fundamental rights mentioned in article 191g of the Constitution
 It has not been shown in the present case that under the guise of protecting public interest the Act arbitrarily interferes with private business or imposes unreasonable restrictions
If the true intention of the Act is as indeed it is to stop objectionable and unethical advertisements for the purpose of discouraging self medication no question of unreasonable restrictions arises
Mr Chatterjee also relied upon the observation of Bose J in Dwarka Das Srinivas of Bombay vs The Sholapur Spinning  Weaving Company Limited 2 where the learned Judge said that  the provisions in the Constitution touching fundamental rights must be construed broadly and liberally in favour of those on whom the rights have been conferred 
With this statement we are in accord
The interpretation should be such as to subserve the protection of the fundamental rights of the citizen but that is subject to limitations set out in article 19 itself which are for the general welfare of all citizens taken as a whole and are therefore for the interest of the general public
Mr Chatterjee further contended that the restraint was excessive because the prohibition of a mere mention of the name of a disease and the suggestion of a cure for that could 1 2   733
695 not be a reasonable restriction
As submitted by the learned Solicitor General the objection is not to the names but to the advertisements commending certain medicines as a cure for the same and this is what the Act is endeavouring to eliminate
In our opinion it cannot be said that the restrictions either excessiveor disproportionate or are not in the interest of the general public
The third point raised by Mr Munshi was that thewords or any other disease or condition which maybe specified in the rules made under this Act  in cld of section 3 of the Act are delegated legislation and do not lay down any certain criteria or proper standardsand surrender unguided and uncanalised power to theexecutive to add to diseases in the schedule
Thelearned Solicitor General in reply supported theschedule as a case of conditional legislation and not the exercise of delegated legislative power and he further contended that even if it was held to be thelatter it was within the limits recognised by judicial decisions
The distinction between conditional legislation and delegated legislation is this that in the former the delegate s power is that of determining when a legislative declared rule of conduct shallbecome effective Hampton  Co vs US 1 and thelatter involves delegation of rule making power which constitutionally may be exercised by the admin istrative agent
This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority
In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditionallegislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend The Queen vs Burah 2  Russell vs The Queen 3 King Emperor vs 1  2  835
696 Benoarilal Sarma 1 Sardar Indar Singh vs State of Rajasthan 2  Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation
But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect it is conditional legislation
To put it in the language of another American case  To assert that a law is less than a law because it is made to depend upon a future event or act is to rob the legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed or to things future and impossible to fully know
 The proper distinction there pointed out was this  The legislature cannot delegate its power to make a law but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend
There are many things upon which wise and useful legislation must depend which cannot be known to the law making power and must therefore be subject of enquiry and determination outside the hall of legislatures In Lockes Appeal  Field vs Clark 143 U section 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 the legislative function Schwartz American Administrative Law page 21
In an Australian case relied upon by the learned Solicitor General the prohibition by proclamation of 1 1944 LR 72 IA 57 2  697 goods under section 52 of the Customs Act 1901 was held to be conditional legislation Baxter vs Ah Way 1 According to that case the legislature has to project its mind into the future and provide as far as possible for all contingencies likely to arise in the application of the law but as it is not possible to provide for all contingencies specifically for all cases the legislature resorts to conditional legislation leaving it to some specified authority to determine in what circumstances the law should become operative or to what its operation should be extended or the particular class of persons or goods to which it should be applied Baxter s case 1 at pp 637  638
Broadly speaking these are the distinguishing features of the two forms of delegation and these are their characteristics
The question is in which compartment does the power given in the Act fall
The power given to the authority under that provision section 3 of the Act is contained in cl
d in the following words S3  Subject to the provisions of this Act no person shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for                           d the diagnosis cure mitigation treatment or prevention of any venereal disease or any other disease or condition which may be specified in rules made under this Act And power to make rules is laid down in section 16 which is as follows section 16 1 The Central Government may by notification in the official gazette make rules for carrying out the purposes of this Act
2 In particular and without prejudice to the generality of the foregoing power such rules may a specify any disease or condition to which the provisions of section 3 shall apply 1  634 637 638
698 b prescribe the manner in which advertisement of articles or things referred to in cl
c of sub section
1 of section 14 may be sent confidentially
 For the petitioner it was argued that section 3d 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 section 3 and to those that may under the last part of clause d be specified in the rules made under section 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 section 3 shall apply
It is the first sub section of section 16 which confers the general rule making power ie 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 vs Sibnath Banerji 1
Therefore sub section 2a also has the same object as sub section
1 ie to carry out the purposes of the Act
Consequently when the rule making authority specifies conditions and diseases in the schedule it exercises the same delegated authority as it does when it exercises powers under sub section
1 and makes other rules and therefore it is delegated legislation
The question for decision then is is the delegation constitutional in that the administrative authority has been supplied with proper guidance
In our view the words impugned are vague
Parliament has established no criteria no standards and has not prescribed any principle on which a particular disease or condition is to be specified in the Schedule
It is not stated what facts or circumstances are to be taken into consideration to include a particular condition or disease
The power of specifying diseases and conditions as given in section 3d must therefore be held to be going beyond permissible boundaries 1 1945 LR 72 IA 241
699 of valid delegation
As a consequence the Schedule in the rules must be struck down
But that would not affect such conditions and diseases which properly fall within the four clauses of section 3 excluding the portion of cl
d which has been declared to be unconstitutional
In the view we have taken it is unnecessary to consider the applicability of Baxter vs Ah Way 1
We are of the opinion therefore that the words  or any other disease or condition which may be specified in the rules made under this Act  confer uncanalised and uncontrolled power to the Executive and are therefore ultra vires
But their being taken out  of cl
d of section 3 does not affect the constitutionality of the rest of the clause or section as they are severable R M D Chamarbaughwala vs The Union of India 2
The constitutionality of section 8 of the Act was challenged on the ground that it violated the petitioners  right under articles 21 and 31
That section when quoted runs as follows  Any person authorised by the State Government in this behalf may at any time seize  and detain any document article or thing which such person has reason to believe  contains any advertisement which contravenes any of the provisions of this Act and the court trying such contravention may direct that such document includingall copies thereof article or thing shall be forfeited to the Government
It was pointed out by Mr Munshi that there was nolimitation placed on no rules and regulations made for and no safeguards provided in regard to the powers of a person authorised in that behalf by Government to seize and detain any document article or anything which in the opinion of such person contains any advertisement contravening any of theprovisions of the Act
It was also submitted that in the corresponding English Act of 1939 in section 10 there are proper safeguards provided in regard to the exercise of the power of seizure etc
The first part of section 8 of the Act dealing with seizure and detention received slender support from the Solicitor General
It may 1  634 637 638 21957 SCR 930
700 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 eg the Indian Drugs Act is an unreasonable restriction on the fundamental rights of the petitioners and therefore the first portion of the section ie  any person authorised by any of the provisions of this Act is unconstitutional
What then is the consequence of this unconstitutionality  If this portion is excised from the rest of the section the remaining portion is not even intelligible and cannot be upheld
The whole of the section must therefore be struck down
By a portion of cl
d of section 3 and the whole of B 8 being declared unconstitutional the Act is not thereby affected as they are severable from the rest of the Act
As a consequence of excision of that portion and of section 8 from the Act the operation of the remaining portion of the Act remains unimpaired
R M D Chamarbaughwala vs The Union of India1
As a result of section 8 being declared invalid all the goods seized from the petitioners having been seized without the authority of law must be returned to the respective petitioners
It will be for the Government to take such action in regard to the proceedings taken or prosecutions commenced as is in accordance with the law laid down in this Judgment
We declare the portion of cl
d of section 3 indicated above and section 8 unconstitutional and direct therefore that a writ of mandamus shall issue directing the respondents to return the goods seized
As the petitioners  challenge to the constitutionality of the Act is partially successful the proper order as to costs is that the parties do pay their own costs
Petitions partly allowed


Summary:
The appellants who were holders of certain lands known as Lal liti  lands were assessed to land revenue under the provisions of the Bombay Land Revenue Code 1879 after the Bombay Taluqdari Tenure Abolition Act 3 1949 came into force
Lal liti  lands were granted originally by Taluqdars in Gujrat to cadets widows of the family and relations for maintenance and to village servants and others either in reward for past services or as remuneration for services to be performed
Before the establishment of British rule Taluqdars had the position of semi independent chiefs but subsequent to the establishment of British rule they became mere owners of proprietary estates holding lands directly from Government and in respect of such estates the Gujrat Taluq dars  Act 1888 was passed providing for their revenue administration
The appellants claimed that these lands had been enjoyed without payment of any  jama  since pre British times and that the exemption from payment of land revenue was not affected by the Bombay Taluqdari Tenure Abolition Act 1949
The High Court took the view that the lands were liable to be assessed under section 5 of that Act
It was contended for the appellants inter alia that no liability for payment of land revenue in respect of  Lal liti  lands could arise under section 5 of the Act because 1 the Taluqdar retained no interest in such lands after the grant and consequently such lands were not taluqdari lands within the meaning of section 23 of the Act 2 clause a of section 51 of the Act was merely declaratory 394 while cl
b was the operative clause by which the only persons liable for payment of land revenue were i a taluqdar holding any taluqdari land and ii a cadet of a taluqdari family holding any taluqdari land for maintenance and 3 even assuming thatcl
a made taluqdari lands liable to the payment of land revenue Code a  Lal liti  holder could not be made liable because he was not an occupant of unalienated land within the meaning of section 1361 of the Code
Held1 that having regard to the history of  Lal liti lands and the provisions of the Gujrat Taluqdar s Act 1888 such lands are lands which form part of a taluqdari estate even though no  jama  was actually paid to the taluqdar or to Government and are therefore taluqdari lands within the meaning of section 23 of the Bombay Taluqdari Abolition Act 1949 2that cl
a of section 51 of the Bombay Taluqdari Abolition Act was a general provision and applied the Bombay Land Revenue Code to all taluqdari lands while cl
b was a particular deeming Provision with regard to the taluqdar and his cadet and 3that whatever might have been the position of a  Lal liti  holder earlier on the abolition of the Taluqdari tenure by the Bombay Taluqdari Abolition Act he became a holder in actual possession of land in respect of which the Government had not transferred its rights to the payment of revenue wholly or partiallyto the ownership of any person