Case: M/s. Sable Waghire &amp; Company &amp; Others Vs. Union of India &amp; Others

of that name. A similar recommendation has since been received also from the World Health Organisation for prevention of the use of its name (and abbreviations), emblem and official seal. Instances have also come to light of the use in India (and abroad) of the Indian National Flag and emblem and of the names or pictorial representations of Mahatma Gandhi and other national leaders, for commercial and trade purposes and in a manner likely to offend the sentiments of the people. The provisions of the Indian Trade Marks Act, 1940, Indian Patents and Designs Act- 1911, Indian Merchandise Marks Act, 1889, and the Indian Companies Act, 1913, are not adequate to prevent these abuses. The Bill seeks to prevent the improper use of these names, emblems, etc., for the purpose of trade, business, calling, profession patent or design, and to impose a penalty for misuse of emblems, etc., specified in the schedule and empowers the Central Government to make additions and amendments in the schedule as and when necessary. 16. What is in a name may not always be innocent. Logically proper names are not connotative but have often gathered a content, a halo, around them sometimes or for all times to come. National or international significance gets attached to certain names or institutions over the years or ages and then they belong to the nation or to all nations. Human sentiments and often a deep sense of religiosity pervade through and provide a sacred mantle as it were to the nomenclature. In order to arouse national sentiments every where invocation of "Chhatrapati shivaji" in manifold ways in the era of struggle for independence of our country is now, by turn of history repealed by an ardent worship of the proud heritage by a grateful nation. I am reflecting the national consciousness, therefore, forbids ordinary commercial use of the sacred name by individuals in their own interest as opposed to national interest. 17. We take it that the scheme disclosed in the provisions of the Act read with the preamble, and the Objects and Reasons make it clear that there was imperative necessity for regulating the use of certain emblems and names. The fact that only improper use of the names and emblems is prohibited itself provides guidance. The original entries in the Schedule would also point to the nature and character of the names, emblems and entities. It is not possible for the Parliament to envisage the possibility of improper use of all names and emblems as time goes on. Nor is it possible to enumerate in the Schedule an exhaustive list of all the names, emblems and entities. Section 8. therefore, makes provision for empowering the Central Government to add to or alter the Schedule. In the nature of things, there is no abdication of legislative function by Parliament in delegating its power under Section 8 in favour of the Central Government which will be the appropriate authority to consider from time to time as to the items to be included in or omitted from the Schedule in the light of knowledge and experience gathered from the nook and corner of the entire country. There is, therefore, no excessive delegation of legislative power by Parliament in favour of the Central Government. From the Objects and Reasons, the preamble and the provisions of the Act with the built-in limitations in Section 3 taken with the schedule, a policy is clearly discernible and there is sufficient guidance therein to enable the Central Government to exercise its power under the Act. The relevant matters mentioned above are sufficiently informative of the policy of the law to rob the efficacy of an argument on the score of scantiness in the Act. The impugned Notification dated March 16,1968 of the Central Government under Section 8 cannot, therefore, be invalid. The objection on the score of Article 14 is of no avail. 18. There is also no merit in the contention that Sections 3 and 4 violate the provisions of Article 19 (1) (f) and (g) of the Constitution. The petitioners right to trade in bidis is not at all interfered with by the legislation, Section 3 in terms provides for enabling the affected persons to adjust their business or affairs inasmuch as the Central Government can permit some time to alter their emblems, designs, etc. to carry on with their trade, Indeed in the present case the petitioners on their own application obtained an extension of time presumably under Section 3 of the Act and, therefore, cannot complain on that score. There is built-in safe guard in Section 3 itself for mitigating any hardship to persons or any rigour of the law. The provisions are accordingly regulatory in nature and even if at all, impose only reasonable restrictions on the exercise of the petitioners right under Article 19 (1) (f) and (g). Section 4 is a consequential provision and validly co-exists with Section 3. 19. It is also contended by the petitioners that no rules have been framed under Section 9 of the Act which make the same unworkable. We are not impressed by this argument. From the scheme and machinery of the Act there is nothing to indicate that absence of rules will make the Act unworkable. The submission is devoid of substance. 20. Lastly it was submitted that the Notification under Section 8 was not published in the name of the President and was issued by the. Under Secretary who was not authorised to do so. The Notification is not an executive order but is a piece of subordinate legislation made by the Central Government under Section 8 of the Act. It was duly published in the Gazette of India over the signature of the Under Secretary who was authorised for the purpose. The question of violation of Article 77 does not arise. 21. Since the Act and the impugned provisions are constitutionally valid, objection to the Notice of the Joint Registrar dated October 16, 1969. is also of no avail.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. In considering the question of competency of legislation and, for the matter of that, in interpreting the entries in the Lists of the Seventh Schedule a broad and liberal approach has been a well-settled rule of the Court. The subject matter of the legislation is also to be gathered from the totality of the provisions of the Act read with the preamble and the Schedule. So read it is clear that the Act does not concern itself directly or even substantially with trade or commerce13. Entry 49 of List I may well supply the coverage for the Union legislative field so far as the Act is concerned. Trade marks, designs and merchandise marks may legitimately take in matters relating to their abuses and improper uses. Even otherwise the residuary entry 97 of List is of wide amplitude to take care of the particular subject matter of legislation, namely prevention of improper use of certain emblems and names for professional and/or commercial purposes. The objection on the score of legislative incompetency of Parliament is, therefore, devoid of merit17. We take it that the scheme disclosed in the provisions of the Act read with the preamble, and the Objects and Reasons make it clear that there was imperative necessity for regulating the use of certain emblems and names. The fact that only improper use of the names and emblems is prohibited itself provides guidance. The original entries in the Schedule would also point to the nature and character of the names, emblems and entities. It is not possible for the Parliament to envisage the possibility of improper use of all names and emblems as time goes on. Nor is it possible to enumerate in the Schedule an exhaustive list of all the names, emblems and entities. Section 8. therefore, makes provision for empowering the Central Government to add to or alter the Schedule. In the nature of things, there is no abdication of legislative function by Parliament in delegating its power under Section 8 in favour of the Central Government which will be the appropriate authority to consider from time to time as to the items to be included in or omitted from the Schedule in the light of knowledge and experience gathered from the nook and corner of the entire country. There is, therefore, no excessive delegation of legislative power by Parliament in favour of the Central Government. From the Objects and Reasons, the preamble and the provisions of the Act with the built-in limitations in Section 3 taken with the schedule, a policy is clearly discernible and there is sufficient guidance therein to enable the Central Government to exercise its power under the Act. The relevant matters mentioned above are sufficiently informative of the policy of the law to rob the efficacy of an argument on the score of scantiness in the Act. The impugned Notification dated March 16,1968 of the Central Government under Section 8 cannot, therefore, be invalid. The objection on the score of Article 14 is of no avail18. There is also no merit in the contention that Sections 3 and 4 violate the provisions of Article 19 (1) (f) and (g) of the Constitution. The petitioners right to trade in bidis is not at all interfered with by the legislation, Section 3 in terms provides for enabling the affected persons to adjust their business or affairs inasmuch as the Central Government can permit some time to alter their emblems, designs, etc. to carry on with their trade, Indeed in the present case the petitioners on their own application obtained an extension of time presumably under Section 3 of the Act and, therefore, cannot complain on that score. There is built-in safe guard in Section 3 itself for mitigating any hardship to persons or any rigour of the law. The provisions are accordingly regulatory in nature and even if at all, impose only reasonable restrictions on the exercise of the petitioners right under Article 19 (1) (f) and (g). Section 4 is a consequential provision and validly co-exists with Section 3We are not impressed by this argument. From the scheme and machinery of the Act there is nothing to indicate that absence of rules will make the Act unworkable. The submission is devoid of substanceThe Notification is not an executive order but is a piece of subordinate legislation made by the Central Government under Section 8 of the Act. It was duly published in the Gazette of India over the signature of the Under Secretary who was authorised for the purpose. The question of violation of Article 77 does not arise21. Since the Act and the impugned provisions are constitutionally valid, objection to the Notice of the Joint Registrar dated October 16, 1969. is also of no avail.