Jamia Millia Islamia

Faculty of Law
Semester IV

CONSTITUTIONAL LAW OF INDIA

TOPIC : Freedom of Profession,

Occupation, Trade, or Business

Submitted To : Submitted By :
Dr. Mohammad Asad Malik  Dilshad Ahmed

TABLE OF CONTENTS
ACKNOWLEDGEMENTS
I would like to sincerely thank my faculty for Constitutional Law of India Mr.
Asad Malik Sir for giving me this opportunity and guiding me throughout the
project. Through this project I have learned a lot about the aforesaid topic and this
in turn has helped me grow as a student.

My heartfelt gratitude also goes out to the staff and administration of Faculty of
Law, Jamia Millia Islamia for the infrastructure in the form of our library and
Computer lab that was a source of great help in the completion of this project.

Dilshad Ahmed
INTRODUCTION
Article 19 (1) (g) guarantees the freedom to practice any profession, or to carry on
any occupation, trade or business. Under Article 19(6), however, the state is not
prevented from making a law imposing, in the interests of the general public,
reasonable restrictions on the exercise of the above right. A doubt was expressed in
the Constituent Assembly whether these were fundamental rights at all. Perhaps
the only other Constitutions which have given them the Status of fundamental
rights are those of Ireland and Switzerland.

It seems that the framers of the Indian Constitution had been influenced by the
complex social system that prevailed in India, in seeking to guarantee rights such
as these. It has been a bane of India's social life that professions were inherited
rather than acquired.

A society dominated by caste, and professions based upon caste or religion, have
little to offer for the building up of a community enlivened by social mobility and
dynamism. Such a society is often intolerant to persons who change the traditional
profession of their ancestors and is eager to maintain a petrified social order.

A constitutional guarantee of the right to take up the profession, calling, trade or

business of one's choice is indeed a significant aid to the building up of a dynamic
and democratic society. The framers of the Constitution have done well to
incorporate these rights in the chapter on Fundamental Rights and have thereby
helped the evolution of a truly democratic society.

The State's power to restrict the enjoyment of these freedoms is limited to the
making of any law imposing reasonable restrictions in the interests of the general
public in so far as it relates to (a) the prescribing of professional or technical
qualifications necessary for practicing any profession or carrying of any
occupation, trade or business or (b) the carrying on by the State or by a corporation
owned or controlled by the State, of any trade, business, industry or service.

RESEARCH METHODOLOGY

This research is descriptive and analytical in nature. Secondary and Electronic

resources have been largely used to gather information about the topic.

Websites, books, journals, articles and reports have been primarily helpful in
giving this project a firm structure.

Footnotes have been provided wherever needed to acknowledge the source.

OBJECTIVES

 To discuss about freedom of profession, occupation, trade or business as given

under Article 19(1)(g) of Constitution of India.

 To study and discuss about the meaning and difference between the term trade,
profession and business.

 To discuss the scope of Article 19(1)(g).

 To study the relation between Article 19(1)(g) and Article 301.

 To discuss the scope of Article 19(1)(g) in light of restrictions placed under
Article 19(6).

MEANING OF AND DIFFERENCE BETWEEN

PROFESSION, OCCUPATION, TRADE OR BUSINESS

Article 19(1)(g)1 guarantees that all citizens shall have the right “to practice any
profession, or to carry on any occupation, trade or business”. However, the right to
carry on any profession, trade or business is not unqualified. It can be restricted
and regulated by authority of law. Thus the State can under clause (6) of Article
19 make any law-

(a) Imposing reasonable restriction on this right ‘in the interest of public’,
(b) Prescribing professional or technical qualifications necessary for practicing
any profession or carrying on any occupation, trade or business,
(c) Enabling the State to carry on any trade or business to the exclusion of
citizens wholly or partially.

Profession
Profession ‟ defined in Concise Oxford Dictionary means, among other things,
vocation and calling, especially one that involves some branch of learning or
science, as the learned profession (divinity, law, and medicine). A profession is

1
The Constitution of India
 normally associated with the exercise of intellectual or technical equipment
resulting from learning or science2.

The term “profession” involves the idea of an occupation requiring either

purely intellectual skill or manual skill controlled, as in painting and sculpture,
or surgery, by the intellectual skill of the operator, as distinguished from an
operation which is substantially the production or sale of arrangements for the
production or sale of commodities3.The term originally contemplate only
theology, law and medicine, but as applications of science and learning are
extended to other departments of affairs, other vocations also receive the name,
which implies professed attainments in special knowledge as distinguished from
mere skill.

The words “trade” , “business”, “profession” in Article 19 (1) (g) have been
interpreted varyingly. The word “trade” as used in Article 19 (1) (g), has been
held in Safdarjung Hospital Case4 is of the widest scope. It includes the
occupation of men in buying and selling, barter or commerce, work, especially
skilled e.g. the trade of gold smiths. It even includes persons in a line of
business in which persons are employed as workmen.

In the case of T.M.A. Pai,5 it was held that Article 19 (1) (g) employs four
expressions viz. profession, occupation, trade and business. Their fields may
overlap, but each of them does have a content of its own. They cover all
activities of a citizen in respect of which income or profit is generated, and
which can consequently be regulated under Article 19 (6). Education has so far
not been regarded as a trade or business where profit is the motive. Even if
2
Sundranarayana Pillai v. Executive Officer; AIR 1966 Mad 262
3
I.R.C. v. Maxse,(1919)1 KB 647 (657)
4
The Management of Safdarjung Hospital v. Kuldip Singh Sethi; AIR 1970 SC 1407
5
T.M.A.Foundation v. State of Karnataka (2002) 8 SCC 481
 there is any doubt about whether education is a profession or not, it does appear
that education will fall within the meaning of the expression „occupation‟. The
establishment and running of an educational institution where a large number of
persons are employed as teachers or administrative staff, and an activity is
carried on that results in the imparting of knowledge to the students, must
necessarily be regarded as an occupation, even if there is no element of profit
generation. It is difficult to comprehend that education, per se, will not fall
under any of the four expressions in Article 19(1) (g). “Occupation” would be
an activity of a person undertaken as a means of livelihood or a mission in life.

Trade

The word “trade” means exchange of goods for goods or goods for money or
any business carried on with a view for profit, whether manual or mercantile
distinguished from liberal arts or learned professions and from
agriculture(Industrial Disputes Act, 1947 )6

Trade in its primary meaning is the exchanging of goods for goods or goods for
money, in its secondary meaning for goods, it is repeated activity in the nature
of business carried on with a profit motive, the activity manual or mercantile, as
distinguished from the liberal arts or learned professions or agriculture.7

Trade is an exchange of goods for goods or for money with the object of
making profits in the widest sense; it includes any business carried on with a
view to earn profit.

6
Madras Gymkhana Club Employees Union v. Management of the Gymkhana Club; AIR (1968)
SC 554
7
State of Punjab and Others. v M/s. Bajaj Electricals Limited; AIR 1968 SC 739
Business
The word “businesses” must be interpreted in the context of the statue in which it
occurs and not in the context of the other statutes or in a manner alien to the
context of the statute concerned. 8

“Business” includes any trade, commerce or manufacture or any adventure in the

nature of trade, commerce or manufacture, or any profession or vocation, calling
an immediate task or objective ; a commercial or industrial enterprise; and means
practically anything which is an occupation as distinguished from pleasure.

The expression “business” is a word of indefinite import. In taxing statutes it is

used in the sense of an occupation or profession which occupies the time, attention
and labour of a person normally with the object of making profit.9

Freedom to carry on any occupation

Article 19 (1) (g) confers a broad and general right which is available to all persons
to do work of any particular kind and of their choice. It does not confer the right to
hold a particular job or to occupy a particular post of one’s choice. The right to
pursue a calling or to carry on an occupation is not the same thing as the right to
work in any particular post under a contract of employment. In Fertilizer
Corporation v. Union of India10 the workmen challenged the validity of sale of
certain plants and equipments on the ground that they will be deprived of their
employment and their constitutional right under Article 19 (1) (g) will be violated.
The court held that Article 19 (1) (g) does not protect the right to work in a

8
S. Mohan Lal v. R. Kondiah; AIR (1979)SC 1132
9
State of Andhra Pradesh v. Abdul Bakhi; AIR 1965 SC 531
10
AIR 1981 SC 344
particular post under a contract or employment as such Article 19 (1) (g) cannot be
invoked against the loss of a job or removal from service. But this does not confer
the right to do anything considered illegal in the eyes of law or to hold a particular
job or to occupy a particular post of the choice of any particular person.11 Further
Article 19 (1) (g) does not mean that conditions be created by the State or any
statutory body to make any trade lucrative or to procure customers to the business/
businessman.12 Moreover Eviction of a person in unauthorized occupation or
premises belonging to Municipality or Panchayat is not illegal as a citizen whose
occupation at a place is unlawful cannot claim fundamental right to carry on
business in such place since the fundamental rights can not be availed in the
justification of an unlawful act or in preventing a statutory authority from lawful
discharging its statutory functions.13

Article 19 (1) (g) is Available against the

State and Not Against the Private
Individuals
For a considerable period, the approach of the Judiciary had been that the rights
which are given to the citizens by way of fundamental rights as included in Part III
of the Constitution are the guarantee to the citizens against State. But actions as
distinguished from violation ofsuch rights from private parties is the private action
and is sufficiently protected by the ordinary law. Article 19 (1) (g) does not
11
Fertilizer Corporation Kamgar Union, Sindri v. UOI; AIR 1981 SC 344.
12
Chaitanya Prakash v. Board of Secondary Education Rajasthan; 1960 Raj. L.W. 209.3
13
Footpath Khyudra Byabasai Sangh Bhubaneswar.v.State of Orissa & Ors; AIR NOC 2010.
abrogate the law under torts relating to private business between individuals and
individuals, and in case of individual disputes between individuals, inter se,
involving trade or business, the subject matter of disputes can be made liable to an
injunction from the Civil Court.14

A dispute between individuals concerning their civil rights has nothing to do with
infringement of fundamental right.15 The principle which follows is that in case of
infringement of any fundamental right on the part of the State, the aggrieved party
has three remedies; one at the ordinary law Courts; the second at the High Court
under Article 226, and the third at the Supreme Court under Article 32. It has been
accepted in Maneka Gandhi case that the rights, which though not named in Article
19, are yet such as would form an integral part of any of the rights specifically
named in Article 19, will be protected from infringement in the same ways as a
fundamental right.

Locus Standi
In A.B.S.K. Sangh (Rely) v. Union of India16 it has been held that even an
unregistered association can maintain a petition for relief under Article 32 of the
Constitution if there is a common grievance i.e. Article 32 is not to protect only
individual‟s fundamental rights but is capable of doing justice wherever it is found
and the society has an interest in it. In the historic judgment in Judge’s Transfer
case, 17 the seven judges Constitution Bench of the Supreme Court has set at rest
the controversy whether a person not directly involved can move the court for the
14
Dattamal Chiranjilal (M/s) v. Lodhi Prasad; AIR 1960 All 622.
15
Paika Padhani v. Pindiko Petro; AIR 1958 Orissa 15
16
AIR 1981 SC 298
17
S.P. Gupta v. President of India and Others; AIR 1982 SC 149
redressal of grievances. The court held that any member of the public having
„sufficient interest‟ can approach the court for enforcing constitutional or legal
rights of such persons or group of persons even through a letter. In the same case
the Hon’ble Court has held that it cannot be said that lawyers only have the right of
locus standi to file a petition in respect of every matter concerning judges, courts
and administration of justice. Again in Rice and Flour Mills v. N.T. Gowda18 the
Supreme Court held that a rice mill owner has no locus standi to challenge under
Article 226 for setting up of a new rice mill even if the setting up of such rice mill
is in contravention of the rule because no right vested in the applicant has been
infringed.

CHAPTER 4: ARTICLE 19(1)(G) WITH

REASONABLE RESTRICTION UNDER
ARTICLE 19 (6)
Article 19(1)(g) guarantees to all citizens the right to practise any profession, or to
carry on any occupation, trade or business. Nor is the state prevented from making-

i. a law relating to professional or technical qualifications necessary for

practicing a profession or carrying on any occupation, trade or business;
or
ii. ii. a law relating to the carrying on by the state, or by corporation owned
or controlled by it, of any trade, business, industry or service, whether to
the exclusion, complete or partial, of citizens or otherwise.

18
AIR 1971 SC 246
 For long India has believed in a regulated and planned economy and not in a
laissez faire economy. A number of constitutional provisions made under the
title of “Directive Principles of State Policy” bear testimony to this economic
philosophy. „Reasonable restrictions‟ on trade, commerce or business have to
be assessed keeping this factor in mind. Consequently, the right to carry on
trade is very much regulated in India and the Courts have upheld, in course of
time, a good deal of social control over private enterprise. By and large it is
correct to say that despite Article 19(1)(g), the government enjoys power to
regulate and order the economy in any way it pleases.

Article 19 (1) (g) of Constitution of India provides Right to practice any

profession or to carry on any occupation, trade or business to all citizens subject
to Article 19(6) which enumerates the nature of restriction that can be imposed
by the state upon the above right of the citizens. Sub clause (g) of Article 19(1)
confers a general and vast right available to all persons to do any particular type
of business of their choice. But this does not confer the right to do anything
consider illegal in eyes of law or to hold a particular job or to occupy a
particular post of the choice of any particular person. Further Art 19(1) (g) does
not mean that conditions be created by the state or any statutory body to make
any trade lucrative or to procure customers to the business/businesssman.
Moreover a citizen whose occupation of a place is unlawful cannot claim
fundamental right to carry on business in such place since the fundamental
rights cannot be availed in the justification of an unlawful act or in preventing a
statutory authority from lawfully discharging its statutory functions.19

Keeping in view of controlled and planned economy the Supreme Court in a

series of cases upheld the socially controlled legislation in the light of directive

19
State of Gujarat v. Dharamdass; AIR 1982 SC 781
principles and the activities of the private enterprises have been restricted to a
great extent. However under Article 19(6), the state is not prevented from
making a law imposing reasonable restrictions on the exercise of the
fundamental right in the interest of the general public or,

i. A law relating to professional or technical qualifications is necessary for

practicing a profession. A law laying down professional qualification will
be protected under Article 19(6). No person can claim as of right to
possess a certificate for the profession of acting as guide, and the
certificate once granted can be cancelled without hearing the person
concerned.
ii. ii. A law relating to the carrying on by the state, or by any corporation
owned or controlled by it, of any trade, business, industry or service,
whether to the exclusion, complete or partial, of citizens or otherwise.

Under article 19(6)(ii) nothing contained in Sub-clause(g) of Clause (1) of

Article 19 shall affect carrying on by the State any trade, business, industry or
service, whether to the exclusion, complete or partial of citizens or otherwise if
it is not in the interest of general public. Article 19(6)(ii) will have no
application if the State is not carrying on any trade. Clause 19(6) of the
Constitution authorizes the state to impose reasonable restrictions on –

i. The freedom of trade, business, occupation and profession, in the interest

of the general public.
ii. ii. Professional and technical qualifications necessary for practicing any
profession or carrying on any trade, occupation or business. The state
also has power to carrying on by the state, or by a corporation owned or
 controlled by the state, of any trade, business, industry or service,
whether to the exclusion, complete or partial, of citizens or otherwise.

Instances of Reasonable and

Unreasonable Restrictions
A law prohibiting advertisements relating to magic remedies was held valid
because the underlying purpose of the law was to prevent objectionable and
unethical advertisements in order to discourage self-medication and self-
treatment.20

Street Hawkers

In Bombay Hawkers Union v. Bombay Municipal Corporation,21 the Supreme

Court ruled, in answer to the claim of the hawkers that under Art. 19(1)(g) they
have a Fundamental Right to carry on their trade on public streets, that no one has
a right to do business so as to cause annoyance or inconvenience to members of the
public. Public streets are meant for use by the general public; they are not meant to
facilitate the carrying on of private trade or business. But the hawkers ought not to
be completely deprived of their right to carry on trade. So, the Court directed that
there should be hawking zones in the city where licenses should not be refused to
the hawkers except for good reasons.

Slaughter of Animals

To reconcile the right of butchers to carry on their trade, and restrictions imposed
on killing of animals through several State laws, the Supreme Court has adopted an
20
Hamdard Dawakhana v. Union of India, AIR 1960 SC 554
21
AIR 1985 SC 1206
economic approach, viz., killing of useful animals could be prohibited but not of
those animals who have become economically useless to the society. The Court has
emphasized that a prohibition imposed on the Fundamental Right to carry on trade
and commerce cannot be regarded as reasonable if it is imposed not in the interest
of general public, but merely to respect the susceptibilities and sentiments of a
section of the people. Thus, it is reasonable to prohibit slaughter of cows of all ages
and male or female calves of cows or buffaloes; prohibition of slaughter of bulls,
bullocks and she-buffaloes below the age of twenty-five years is an unreasonable
restriction on the butchers‟ right to carry on their trade as well as not in public
interest as these animals cease to be useful after the age of 15 years.22 The Court
observed in this connection in Quareshi:

“The maintenance of useless cattle involves a wasteful drain on the nation’s cattle
feed. To maintain them is to deprive the useful cattle of the much needed
nourishment. The presence of so many useless animals tends to deteriorate the
breed.”

A municipal corporation issued a standing order under a statute directing closure of

slaughter houses for seven holidays in a year. The order was challenged as putting
an unreasonable restriction on the trade of the butchers. The question before the
Court was whether the restriction was reasonable in the interest of the general
public. The question before the Court was whether the restriction was reasonable in
the interest of the general public. The Supreme Court took the view that the
expression “in the interest of general public” found in Art. 19(6) “is of wide import
comprehending public order, public health, public security, morals, economic
welfare of the community and the objects mentioned in the Directive Principles.”

22
M.H. Quareshi v. State of Bihar; AIR 1958 SC 731
The Court ruled that the order in question did not put any unreasonable restrictions
on the Fundamental Right of the petitioners under Art. 19(1)(g).23

23
Municipal Corporation, Ahmedabad v. Jan Mohammed, AIR 1986 SC 1205
CONCLUSION