From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023
(p. 867) Chapter 48 Profession, Occupation, Trade, or Business
One of the most heavily litigated provisions of the Indian Constitution is Article 19(1)(g), which grants every citizen the right, with some limitations, to practise any profession, or to carry on any occupation, trade, or business.1 This seemingly simple statement of a fundamental right has spawned an impressive array of case law covering a wide range of activities. Such an industrious constitutional provision merits careful discussion and analysis. In this chapter, I describe the analytical structure applied to this provision, examine how certain limitations on the right are assessed, identify key debates and themes, and provide some thoughts on its interaction with the political economy in India.
Article 19(1)(g) appears in Part III of the Indian Constitution, granting it the status of a fundamental right. However, like many rights, these are not without limits. Article 19(6) allows the State to impose reasonable restrictions on these rights in the interests of the general public.2
The structure of Articles 19(1)(g) and (6) suggests competing interests at play. Indeed, protecting the liberty of individuals in pursuing their livelihoods, enhancing the legitimacy of restrictive laws, and public safety concerns may cut in opposite directions at times. For (p. 868) example, if it is easy for the State to regulate economic activity via Article 19(6), then groups may try to influence the State so that it regulates in a manner that benefits them. This raises the spectre of private interests driving regulation and sparks concerns about rent seeking and crony capitalism.3 On the other hand, limiting the State’s ability to regulate in the public interest may harm public safety and allow for parties to impose costs on others. Moreover, if the State is able to put tight limits on certain activities, then that is likely to have an impact on economic growth by deterring or channelling entry into that activity. In light of this, it is not surprising that much of the case law involves a delicate balancing of interests and effects and in this sense bears some similarity to substantive due process jurisprudence in the US.4
This kind of balancing raises many issues one might examine, but this chapter focuses on four key questions. First, when is an activity treated as a profession, occupation, trade, or business (POTB) because only such activities are protected under Article 19(1)(g). The courts rely on a mélange of morality, historical, and social effects to come to conclusions about the status of a given activity, but, as we will see, this multi-factor analysis has hardly been a model of clarity or predictability. Indeed, there are good reasons to prefer a very broad definition of POTB for Article 19(1)(g) and then rely on the social, historical, and morality factors in assessing the reasonableness of any restrictions under Article 19(6), as the courts have increasingly been doing.
Secondly, when are restrictions considered ‘reasonable’? The breadth of factors considered by the courts is vast, leaving commentators with a rather disorienting state of affairs. The most common recurrent themes appear to be that the restriction must be reasonably connected to the stated purposes of the legislation (or regulation) creating the restriction and the restriction must not be arbitrary. These suggest a desire to reduce the possibility of misuse of the legislative and regulatory processes in order, at least in part, to reduce the prospect of regulation being used to serve private interests and exacerbate rent seeking. However, as discussed below, the more recent applications of these considerations suggest that the scope for rent seeking may be increasing.
Thirdly, how do analyses of Articles 19(1)(g) and 19(6) apply to a particularly timely and critical issue: the development of private educational institutions? The jurisprudence here leaves the reader in something of an analytical quagmire as the Supreme Court has moved between different bases for regulating such institutions. This is not entirely surprising, given that the Court is regulating an increasingly private educational sector with tools more suited for a State-supported sector. However, the experiences here are instructive as India is increasingly relying on private parties to provide services (either alone or in conjunction with the State) that were previously provided primarily by the State.
Fourthly, the above analysis raises intriguing jurisprudential and political economy questions. At a jurisprudential level, the case law has been moving towards broadening (p. 869) the concept of POTB, which means more activities will receive the protection of Article 19(1)(g)—thereby constraining State discretion. However, at the same time, the case law on what is a reasonable restriction under Article 19(6) seems to be edging towards weakening the protection—thereby enhancing State discretion. The somewhat contradictory developments in the case law appear, at first cut, to be a puzzle. This chapter suggests that these moves may have more to do with enhancing judicial discretion as a way to counterbalance the heavy role of the State in society at that time. However, replacing State discretion with judicial discretion may simply be replacing one type of whimsy for another, unless the courts provide some guidance on how their discretion will be exercised.
However, the case law also raises questions related to how the law might adapt to changes in the role of the State. For example, post-liberalisation, we might expect private parties to play a larger role in the provision of products or services. In this situation the prospect of State regulation being either outdated or motivated by private interests might increase. Whether, and how, the understanding of Articles 19(1)(a) and 19(6) might change to reflect the changing role of the State is of considerable importance both as a matter or law and as a matter of political economy. After all, much of the Articles 19(1)(g) and 19(6) jurisprudence developed at a time when the State had a very heavy hand in Indian life. As that role changes, perhaps it is time to consider whether the Articles 19(1)(g) and 19(6) case law should also adjust.5 This chapter begins an exploration of this question, but leaves more fulsome discussion for future work.
Section II begins by examining the case law that defines the key terms in Article 19(1)(g)— profession, occupation, trade, or business. Section III explores what a ‘reasonable restriction’ is under Article 19(6) and how that interacts with Article 19(1)(g). Section IV examines how the analyses from earlier sections apply in the context of setting up and running a private educational institution—a matter that has been the subject of many recent Supreme Court decisions. Section V delves into the broad themes and trends witnessed in the case law and what implications these have, and Section VI concludes.
II. Article 19(1)(g)—What is a Profession, Occupation, Trade, or Business?
Article 19(1)(g) protects activities that are POTB, but these terms are not defined in the Indian Constitution. Rather, case law has taken up the gauntlet and provided a series of factors that are relevant in deciding whether an activity is a POTB. In particular, the case law focuses on how the activity was perceived historically and morally and what its likely social effects might be. Although courts have erred towards being inclusive in defining POTB,6 unless the activity was very harmful (eg, trading in adulterated food, trafficking in (p. 870) women),7 there has been considerable uncertainty about the application of these factors to some activities. To obtain a deeper understanding of these uncertainties let us explore some of the better-known examples.
In Fatehchand Himmatlal v State of Maharashtra,8 the Supreme Court held that moneylending in rural environments—which was often unscrupulous and at usurious rates—need not be considered a POTB, even though providing credit was a trade with a lengthy history. Thus, an activity that is generally considered a trade can be demoted, so to speak, where it has socially pernicious effects or is otherwise ‘diabolic’ in the Court’s language.9
Although social effects could be important, it appears the courts do not always follow them in defining a POTB. For example, in State of Maharashtra v Indian Hotel and Restaurants Association (hereinafter IHRA)10 the Supreme Court was faced with a law—the Bombay Police Act 1951—which prohibited dance performances in certain venues (eg, beer bars), but allowed it in other venues (eg, three-star or higher hotels). The argument in favour of such disparate treatment was that dancing in beer bars was likely associated with trafficking in women and an entry point to prostitution, amongst other things, whereas dancing in the ‘higher-end’ venues was not. This tracks the arguments in Fatehchand (rural moneylending is pernicious, but not general lending). The Court rejected this argument and held that dancing is a POTB and that any concerns with its social effects in particular contexts should be addressed under the Article 19(6) analysis of ‘reasonable’ restrictions in the public interest, rather than in the definition of POTB in Article 19(1)(g).11 The Court then further found that the restriction in the Bombay Police Act 1951 was not reasonable and hence invalid.12
Thus, social effects were important in assessing whether a restriction on an activity was reasonable (under Article 19(6)), but not in defining whether an activity was a POTB (under Article 19(1)(g)). This move—changing the stage of analysis when a factor (eg, social effects, history) is considered is something we also see in cases concerning liquor trading.Page Id: 870ReferencesMaharashtra Debt Relief Act (Maharashtra) Act No 3 of 1976(p. 871)
In Coovergee B Bharucha v Excise Commissioner, the Supreme Court held that liquor trading was not a POTB because it was outside the realm of regular commerce.13 Moral and social factors influenced the Court in reaching its decision. A decade later the Supreme Court expressed concern—in Krishna Kumar Narula v State of Jammu and Kashmir—that sole reliance on morality as the basis for POTB status was problematic.14 Rather, the Court preferred treating moral concerns as relevant considerations in assessing whether a restriction on a POTB was reasonable under Article 19(6). This is consistent with IHRA.
Later Supreme Court decisions—perhaps taking a cue from Krishna Kumar Narula—have increasingly relied on history and social effects, rather than morality, in deciding whether liquor trading was a POTB.15 In addition, later decisions appear more inclined to hold that the social, moral, and historical considerations could be used either at the POTB definitional stage or at the stage of assessing a restriction’s reasonableness.16
Thus, we are witnessing a shift in when the social, moral, and historical factors are being considered from the POTB definitional stage to the reasonable restriction stage. That, of course, raises the question of whether this movement is simply aesthetic or whether it carries some practical import. One suspects this shift is a subtle, but important, change.
To see this, let us note that when something is not a POTB then any restrictions the State imposes upon it are not required to be ‘reasonable’ under Article 19(6), but if an activity is a POTB, then restrictions on it must meet the reasonableness language. Thus, by taking these factors out of the POTB definitional stage, it is more likely that an activity will be considered a POTB, thereby requiring the State to justify its restrictions as reasonable. This might be a good way to curtail the State’s discretion and may be valuable if one is concerned that the State’s discretion could be used capriciously, or perhaps that the State might act to further private interests rather than public interests. This is particularly palpable when looking at moral concerns. For example, in a country as heterogeneous as India, relying on moral concerns to decide on whether something is a POTB seems fraught with trouble (as the Court in Krishna Kumar Narula indicated). One can imagine that one group could lobby the State to prohibit an activity carried on by other groups on the grounds that it is not a POTB. If so, then the State would not need to justify its prohibition of the activity. However, if the activity were a POTB, then any restrictions on it—even if motivated by moral concerns—would still need to meet the reasonableness test. This, however, presumes that the reasonableness language is not an easy standard to satisfy. It is to that question that we now turn.
(p. 872) III. Restrictions on Activities Within Article 19(1)(g)
If an activity is a POTB, then the key question becomes what kinds of restrictions may be placed on it. Article 19(6) provides the broad framework for assessing such restrictions. Generally speaking:
The primary focus of this section is on what ‘reasonable’ restrictions mean under Articles 19(6) and 19(6)(i), and thus nationalised industries (under Article (19)(6)(ii)) are not discussed because restrictions on them are not required to be ‘reasonable’. The Supreme Court has held that what is ‘reasonable’ is likely to vary by context and is based, in some measure, on the nature of the activity and conditions in that industry.19
Thus noxious items may be prohibited altogether, but activities of lesser concern would require stronger justifications for more restrictive regulation.20
The general approach can perhaps best be summarised in Chintaman Rao v State of Madhya Pradesh
, where the Court says:
The balancing indicated in this quote can be seen in the case law, where judicial scrutiny focuses on two questions.
The first is whether the restriction seems likely to obtain the stated objectives of the law creating it. If it does not, then the courts seem likely to invalidate the restriction. If it does, then the courts often ask whether a less restrictive alternative may have also obtained the objectives of the law creating the restriction.22 If a lesser restriction will do, the courts may find the current restriction unreasonable.
Holding restrictive laws to this test may have desirable attributes, because by requiring that the restriction be related to the stated objectives of the law we reduce the prospect for arbitrary laws that can be easily misused by officials or those hoping to benefit from the behaviour of officials. Cases developing this jurisprudence are explored below.
The second question the courts focus on is when a restrictive law allows for substantial discretion to government or its officials, does it provide significant guidance on how to exercise that discretion and how a decision could be reviewed? If it does, then the courts are likely to find the restrictive law reasonable, but if it does not, then the courts seem inclined to strike down the law as being unreasonable and arbitrary. This also seems desirable because granting someone unfettered power with little guidance on how to use it seems like a recipe for that person using the power to benefit themselves rather than the public interest (eg, rent seeking). Cases exploring this idea are explored in Section II below.23
1. Excessive or Drastic Restrictions
A series of important cases lay out the excessive or drastic effects jurisprudence. One of the earliest is Chintaman Rao v State of Madhya Pradesh,24 where the State Act granted the State government the power to prohibit people in certain areas from engaging in the manufacture of bidis. The stated objective of this law was to ensure the supply of adequate labour for agricultural purposes in areas where bidi manufacturing was an alternative source of employment to those likely to be otherwise engaged in agricultural labour. The Court held that to satisfy this stated objective, the State need not have prohibited all labourers from engaging in bidi manufacturing throughout the year. Instead, the State could (i) have prohibited those (p. 874) people from engaging in bidi manufacturing who are likely to be involved in agricultural activity (because not all labourers are agricultural workers); and (ii) prohibit bidi manufacturing only during agricultural seasons, not all year round. In light of this, the restriction was held to be excessive and hence unreasonable under Articles 19(1)(g) and (6).25
The reasoning from this case has perhaps had its most interesting applications in a series of highly contested ‘cow slaughter’ cases. In Mohd Hanif Quareshi v State of Bihar
) the Court was faced with a series of State legislation that prohibited or restricted the slaughter of various categories of cows and other animals belonging to the bovine species.26
This legislation was apparently enacted to implement Article 48 of the Constitution (part of the Directive Principles of State Policy), which states:
The Court held that the concern for cows and cattle is in the public interest because ‘[t]he country is in short supply of milch cattle, breeding bulls and working bullocks’.28A total ban on the slaughter of these was a reasonable restriction in the interests of the general public.
Following this reasoning, the Court upheld the prohibition on slaughtering cattle that provide, or are capable of providing, milk and can work as draught cattle.29 However, for those cattle that cannot, or can no longer, provide these services there is little reason to prohibit their slaughter under Article 48. This led the Court to hold that the total ban on slaughtering ‘she-buffaloes, bulls and bullocks (cattle or buffalo) after they ceased to be capable of yielding milk or of breeding or working as draught animals’ was unreasonable.30 This decision tracks the reasoning in Chintaman Rao by requiring the courts to compare the restrictive law with its stated objectives (and asking whether there is a less restrictive alternative) to determine whether it is unreasonable.
However, this decision also highlights a few more points of significance. First, it indicates that a total prohibition on certain things (eg, slaughter of milk-producing cows of any age throughout the year) can be reasonable even if the activity itself is not noxious per se. Secondly, the decision indicates that although the Directive Principles (like Article 48) are subject to the fundamental rights contained in Part III of the Constitution (such as Article 19), those principles can influence a court’s judgment on what amounts to a reasonable restriction of a fundamental right.31
Quareshi has been followed many times,32 but in more recent years courts have increasingly held stronger restrictions on slaughterhouses to be reasonable. Perhaps the most significant case in this regard is State of Gujarat v Mirzapur Moti Kureshi Kassab Jamat (hereinafter Mirzapur Moti).33 In this case the Court, a constitutional bench of seven justices, (p. 875) had to decide whether Quareshi should be reconsidered with respect to slaughter of cow progeny.
The Court held that the state of knowledge had changed since Quareshi was decided in 1958 and that now, the available evidence suggested that bulls and bullocks were useful even as they got older.34 This meant that the State’s total prohibition on the slaughter of cows and cow progeny could be seen as reasonable under the tests laid down in Quareshi.
The Court went further and put a gloss on the interaction between fundamental rights and Directive Principles. Thus, restrictions designed to further a Directive Principle would be considered presumptively reasonable unless the restriction was in direct conflict with a fundamental right. On the facts here, Articles 48 (prohibiting slaughter of certain types of cows), 48A (protecting and improving the environment), and 51A(g) (improving the environment and having compassion for living entities) all suggest that restricting the rights of butchers to slaughter cow progeny is reasonable (especially in light of what the Court describes as changed knowledge).
The holding and reasoning in Mirzapur Moti could have been limited to the situation where scientific evidence had provided new or additional information. However, later cases seem to have expanded the holding even further.
In a string of cases, the Supreme Court upheld bans on cow slaughter for limited periods of time, even when there was no change of scientific evidence (eg, Municipal Corporation of the City of Ahmedabad v Jan Mohammed Usmanbhai35) and where a prohibition was put in place for nine days to avoid offending the sensibilities of certain religious groups during a festival (Hinsa Virodhak Sangh v Mirzapur Moti Kureshi Jamat36). Further, the desire to avoid offending certain groups’ sensibilities has been used to extend the prohibition from a short time (eg, nine days) to an indefinite time and to extend it from cow slaughter to other activities.
For example, in Om Prakash v State of Uttar Pradesh
the Court upheld as reasonable a complete ban on the sale of eggs in public in the city of Rishikesh throughout the year due to the religious sensibilities of the inhabitants (who were primarily Hindu vegetarians). It underscored this by noting that Articles 51A(e) and (f) (part of the Directive Principles) state that individuals should seek:
This seems inconsistent with Mohd Faruk v State of Madhya Pradesh, where the Court held that prohibiting an activity simply because a section of the community might be (p. 876) offended would be unreasonable.38 Both Om Prakash and Hinsa Virodhak overcame this objection by referring to the Directive Principles in Mirzapur Moti (specifically Article 51A(e) and (f)), which encourage citizens to promote harmony and common brotherhood.39
The move towards relying more on the Directive Principles—especially Article 51A(e)—is intriguing. It is quite broad and appears to depend on how large a percentage of the residents in an area might feel offended by the behaviour of others and whether that might result in some disharmony or public unrest. Of course, public unrest is important, but it seems somewhat unusual that the courts are interpreting the Constitution—which has many provisions designed to protect minorities—in this manner. Moreover, allowing for limits on fundamental rights because of the sensibilities of certain groups of residents may appear expedient, but it seems to set up incentives for people to become more disruptive (ie, engage in more public unrest) in order to achieve their ends. This raises concerns akin to those in the ‘Heckler’s veto’ context discussed in the US.40 Indeed, there seems little limit on what restrictions might be imposed on the right to a POTB in the name of preventing public unrest or giving respect to one’s neighbours.
The courts have also examined whether the restrictive law has appeared arbitrary or granted unconstrained discretion to authorities. In some cases that involved the grant of, or conditions attached to, licences (ie, the growth of the ‘licence raj’), the courts have held these laws to be arbitrary and hence unreasonable.41
Consider RM Seshadri v District Magistrate, Tanjore
In this case, the State of Madras had issued two notifications under section 8 of the Cinematograph Act 1952 that led the District Magistrate to impose conditions on the licence granted to the petitioner (a cinema theatre owner). The condition at issue required that:(p. 877)
The Court held this condition was unreasonable because it was drafted in very broad language without guidance as to what kinds of films should be shown (eg, educational) and was likely to operate ‘harshly’ on the owner.
The absence of guidance has been held to invalidate restrictions in spheres as diverse as coal,44 gold trading,45 as well as in assessing labour restrictions (eg, restrictions on the ability to close businesses).46 Further, if there is no opportunity (or a limited opportunity) to review an official’s decision, then that too can amount to arbitrariness.47 On the other hand, it is noteworthy that the courts have upheld restrictions that appear narrowly drafted (ie, limiting discretion and the potential for arbitrariness) and targeted to concerns associated with conducting the business at issue (eg, conditions on ticket prices and the number of daily shows), such that the restrictions appear associated with the stated objectives of the regulation.48
It is understandable that the courts would recoil against laws that granted largely unfettered powers to officials with little guidance on how to use them and little ability for review. This seems like a recipe for inducing rent-seeking behaviour, enhancing idiosyncratic decision making, and generally undermining respect for the law.
IV. Is Setting Up and Running a Private Educational Institution Protected Under Articles 19(1)(g) and (6)?
Articles 19(1)(g) and 19(6) have received a great deal of attention recently because of how they have been used by the Supreme Court in assessing restrictions on the setting up and running of private educational institutions. The Court has had to address both whether this is a POTB and whether the restrictions are reasonable.
The Court has held on multiple occasions that because education has historically not been pursued as a means of commerce in India, it cannot be considered a profession, trade, (p. 878) or business as all of these imply commerce (see Unni Krishnan v State of Andhra Pradesh49 and TMA Pai Foundation v State of Karnataka50). Instead, setting up an educational institution could be considered an ‘occupation’ and in that capacity protected under Article 19(1)(g),51 but that did not grant the institution the right to be recognised, or accredited, by the State.52 Further, the right to set up educational institutions did not depend on whether the institution was funded by the State.53
This approach reflects the Court’s deep concern with the ‘commercialisation’ of education. The concern seems to be that a profit-oriented educational institution might be inclined to ‘sell’ admissions to those who were willing to pay the most, rather than take candidates who possessed the most merit (however defined). Moreover, if education was a business, then there may be high variance in quality and often ‘fake’ products (ie, degrees) being sold or fake universities being established.54 The Court seemed aghast at these possibilities, given how they might undermine one of the only ways in which people can improve their lives—by obtaining an education.
The Court’s concern with these issues is to be applauded. However, one may find it useful to maintain a distinction between the harms noted above (eg, ‘purchased’ admissions, fake degrees) and the identity of the entity offering educational services (ie, public or private). These harms—‘profiting’ on education, fake degrees, and general dysfunction—are possible at both public and private universities, although the likelihood might appear higher at one kind of institution. Moreover, there are many examples of private educational institutions throughout the world that have stellar reputations, while some public universities run into quite impressive problems.55
Nonetheless, these harms may be reduced through sensible and effective regulation that can serve to monitor quality, reduce the likelihood of fake degrees, and make it more difficult to ‘sell’ seats at institutions. Perhaps in light of this, the Court has on multiple occasions laid Page Id: 878ReferencesIndustrial Disputes Act (India [in]) Act No 14 of 1947(p. 879) down guidelines for what might be reasonable restrictions on institutions. The key concerns are usually ensuring fair and equal treatment in admissions and sufficient quality education.56
The TMA Pai Court, a constitutional bench of eleven justices, provides detailed guidance on this issue. The Court held:
Thus, regulation of capitation fees, profiteering, and an objective admissions process are within the kinds of restrictions that courts will entertain. However, if the State nominates specific individuals to be on a private unaided institution’s governing board (or to be a teacher) or sets a rigid fee structure, then that would be considered an unreasonable restriction on the institution’s autonomy and a violation of Article 19(6).58
The balance established in TMA Pai has decidedly shifted in the past few years towards greater micromanagement. Thus (i) the fee structure of these institutions can be micromanaged to assuage concerns about commercialisation so that only a ‘reasonable surplus’ could be had;59 (ii) curriculum and textbooks can be regulated;60 (iii) the conditions under which private unaided institutions can be set up are subject to regulation;61 (iv) special provisions can be promulgated for admission of Scheduled Castes or Tribes or socially and educationally backward classes to private unaided institutions;62 and (v) a seemingly countless array of other items as well.63 It thus appears that the Supreme Court has become one of the most important regulators of educational services in India.
The greater judicial involvement is likely triggered by the fact that, due to the under-provision of educational institutions by the State, we have witnessed the rather dramatic growth of private institutions over the past twenty years and litigation against them (as (p. 880) documented in recent work by Kapur and Khosla).64 Although judicial monitoring may prove useful in curtailing the worst abuses, one should note that heavily restricting the private educational sector would probably deter entry into it (thereby exacerbating the underprovision concern),65 while potentially giving the opportunity for very high profits to the lucky few who are approved to run such institutions by the State (thereby creating rent-seeking opportunities). This doesn’t mean regulation is a bad idea, but rather that the type of regulation needs to be carefully considered to target the key concerns in the current context.
These developments, however, have left the judiciary in an unenviable position. It is left to struggle with developing rules for an increasingly private educational sector when the tools at its disposal seem more suited to a State-supported sector. Examples of this tension, and consequent uncertainty, abound.
For example, the courts are not terribly consistent in how they conceptualise educational services. If a private unaided institute offers degrees or certificates, then many of the restrictions on fees, admissions standards and so forth apply. However, if a private entity offers coaching services for admission into a degree programme at a private unaided institute, but not the degree itself, then there is little if any regulation imposed on it (eg, coaching institutes to help students clear the Common Admission Test to enter the IIMs). Indeed, fees charged to students and salaries paid to teachers are often an order of magnitude greater at coaching institutes than at degree-granting institutions.66 But why should the presence or absence of an immediate degree matter if our concerns are about commercialisation, fraud, profiteering, charity, and autonomy?
Generally speaking, some of these concerns might be reduced if students had many good options to choose from in deciding where to receive their education. In such an environment, competition amongst these educational institutions for students may reduce (but not necessarily eliminate) undesirable and predatory behaviour.67 Competition may also generate some of its own concerns that merit regulation. However, the more conditions and restrictions imposed on private educational institutions (especially if not targeted to the core concerns in the current context), the more likely it is that there will be fewer of them. If the State cannot (or will not) fill this gap with its own institutions, then there is less competition, which is likely to worsen the behaviour courts are concerned about. Indeed, as the State increasingly pulls out (or reduces its size) in certain sectors of India’s economy, the gaps will likely be filled by private actors. If, however, those newly opened sectors are made unattractive for private actors, the gaps will remain, and perhaps widen.(p. 881)
This underscores one of the key issues moving forward—as the role of the Indian State changes from being the primary provider of many services to working with the private sector to provide these services, one imagines that the regulation of activity (and the judicial review of it) may need to change accordingly as well. An exploration of that issue is pursued in Section V.
V. Some Trends and Themes
The jurisprudence related to the right to practice a POTB is voluminous and provides many avenues for further inquiry. However, this section focuses on two broad themes that are likely to have an influence on this area going forward.
1. Jurisprudential Themes
At a jurisprudential level the courts seem to be moving in opposite directions at times. The cases defining a POTB seem to be making it easier for something to be considered a POTB, thereby requiring the State to justify any restrictions as reasonable—this curtails State discretion. On the other hand, the cases assessing ‘reasonableness’ seem to be allowing for more factors to be considered (eg, Directive Principles of State Policy, public unrest), thereby making it somewhat easier for the State to impose restrictions that are found to be reasonable. Simultaneously limiting State discretion and then permitting more of it seems puzzling at first glance.
One potential explanation is that the courts are in essence increasing judicial discretion through these tests.68 This may be quite a sensible approach when the State plays a heavy role in society (as was the case prior to the onset of liberalisation) because there may be little else to counterbalance the State in such a situation besides the judiciary. Although a plausible explanation, it raises the spectre of judicial ‘whimsy’ replacing State ‘whimsy’. To constrain this possibility one would hope the judiciary would be willing to provide some guidelines for how it will exercise its enhanced discretion.
For example, in the more recent cow slaughter cases the courts have held that maintaining harmony (and thereby avoiding public unrest) can be an important consideration in limiting or prohibiting cow slaughter. Some guidance from the courts on how to use ‘public unrest’ would be very valuable because it is such a broad term that it threatens to swallow the right (and worse yet, people might generate ‘public unrest’ to achieve their ends). Similarly, when using morality with respect to defining an activity as a POTB, the courts could provide guidance on how to ascertain what morality means in a place as heteroge- neous as India and how to address the fact that morality tends to change over time in difficult-to-predict ways (eg, social views on smoking, private educational institutions).
(p. 882) 2. Role of the State and Articles 19(1)(g) and 19(6)
Another important issue is what impact should the changing role of the State have on the analysis under Articles 19(1)(g) and 19(6). When the State was the primary provider of many goods and services and directed the economy, then it might have made good sense for the judiciary to act as a strong counterbalance to the State with respect to protecting fundamental rights.69 However, as the State reduced its influence in many sectors with the onset of liberalisation and allowed private parties to become important players, then the identity of the key actors was changing and so might the constraints on these actors.70 Thus, with a more lively market we might witness it constraining some undesirable behaviours, while exacerbating others. As re-regulation of these sectors continues, one might anticipate that the jurisprudence protecting fundamental rights may adjust to reflect the concerns present in the changing environment.71
Thus, as the State takes a lesser role as a provider of key products and services, we witness courts having to contend with the issues that arise. An example of this is the growth of private educational institutions noted in Section IV. The courts have struggled mightily with concerns about the ‘selling of seats’ and poor-quality education on the one hand, and with the underprovision of educational services on the other. If one prohibits the opportunity for open profit, then one might curtail the establishment of private educational institutions (thereby worsening underprovision concerns) while trying to assuage concerns with the ‘selling’ of seats.
Here it seems that consideration of additional factors in a ‘reasonableness’ inquiry are likely to be important. First, the identity of the provider (ie, public or private) is only a partial indicator of the likely concerns of selling seats and poor-quality education as all types of providers are open to abuse. Moreover, even among private providers there is considerable variety (eg, non-profit as opposed to for-profit private providers). This suggests that regulation policing the key concerns while taking into account the different incentives of the providers may be valuable.
Another worthy consideration is that when private parties enter the fray the prospect of competition amongst these players may influence the degree of State regulation. If competition reduces some of the concerns with a particular activity (as perhaps it might in the (p. 883) education sector), then certain State restrictions on that activity may be less valuable than before, and hence perhaps the courts might consider them less likely to be reasonable.
However, the presence of a more competitive market may also generate new concerns of its own that justify other State regulation, which in turn may influence how courts assess the reasonableness of a restriction. For example, private provision of educational services might lead to different salaries for professors across parts of the country. Some of this may reflect cost of living differences, but some may not. If so, then one might be concerned about some parts of the country not being able to obtain access to quality education. How might this influence an assessment of reasonableness? Further, if regulation limited the salaries of professors (to address the concerns noted above) that might deter some talented individuals from entering academia or lead them towards other sectors of education (eg, coaching institutes).72
Although these considerations urge us towards examining what factors might be relevant in reasonableness assessments in the changed environment, thus far courts do not appear to be moving quickly to explore these factors. The discussion here is not intended to be fulsome, but rather to encourage greater analysis. Greater discussion of these factors will be critical for the judiciary as it deals with restrictive laws in an environment where the State is no longer the primary provider for many goods and services. Indeed, education may just be one of the early areas of concern—health care, infrastructure, and other areas of reduced State involvement all appear to be racing to the horizon.
The right to practise any profession or carry on any occupation, trade, or business in Article 19(1)(g) of the Indian Constitution is a fundamental right. The jurisprudence on it and the acceptable restrictions on it (under Article 19(6)) are vast and have played an important role in defining the contours of the right. This chapter explored the case law in this area, analysed how it has developed over time, identified key debates and themes, and provided some thoughts on its interaction with the political economy in India.
The case law in this area has spanned a number of different sectors and left the courts with the hefty task of defining what is a profession, occupation, trade, or business and explaining what restrictions on these activities might be considered reasonable and why. The courts have relied on an amalgam of social effects, morality, history, and concerns with arbitrariness in coming to their decisions. This chapter highlighted these concerns and how they have influenced the case law, as well as provided critiques on these decisions (and suggested potential reforms, at times). It also provides an extended discussion of how the case law influences an increasingly important topic that has occupied many reams of pages in Supreme Court decisions—the right to start and run a private educational institution. These decisions are important not only because education is a critical issue for India with its large and young population, but also because it highlights two broad themes associated with this jurisprudence: increasing judicial discretion and how the changing role of the State may be (p. 884) influencing this area of law. Moreover, the experience with the education sector may foretell important insights for likely judicial oversight of legislation or regulation addressing other sectors where the State traditionally played a dominant role, but is now more welcoming of private involvement.
This chapter then explored the implications of these two broad themes. Growing judicial discretion in this area is the result, in large part, of an increasing number of factors, often difficult to define precisely, which are considered by courts in their decisions, but with little guidance on how to use or balance those factors. This increases the likelihood that decisions will depend on an individual judge’s views, resulting in the somewhat ironic situation that the discretion of the State is being limited by increasing the discretion of the judiciary. One way to address this problem is to encourage courts to provide more guidance on how these factors are defined as well as on how they may influence the final analysis.
The changing role of the State can have a large influence on jurisprudence in this area. If the objective of judicial review here is to contain State interference with a fundamental right, then if the State’s role or influence changes, that might be expected to influence how the judiciary contains it. This would suggest that courts should begin to consider how changes, such as the advent of liberalisation, may influence its analyses. Although courts have not made large strides in this area yet, they are increasingly being required to face these issues. This chapter makes a few suggestions on how courts may begin to bring newer factors into the analyses, but these are necessarily speculative and tentative at this stage—leaving more detailed and sustained inquiry for future work.
* I thank Varun Srikanth for excellent research assistance and the editors and the participants at the NYU-CPR Conference held in July 2014 in New Delhi, India, for helpful comments and suggestions.
1 For excellent commentaries on cases in this area, see Durga Das Basu, Commentary on the Constitution of India, vol C (6th edn, JN Ghose & Sons 1977) 315–68; HM Seervai, Constitutional Law of India, vol 1 (4th edn, Universal Book Traders 2002) 907–47; Arvind P Datar, Commentary on the Constitution of India, vol 1 (2nd edn, LexisNexis Butterworths Wadhwa Nagpur 2010) 326–45; MP Jain, Indian Constitutional Law, eds Justice Ruma Pal and Samaraditya Pal (updated 6th edn, LexisNexis 2013) 1493–526; MP Singh (ed) VN Shukla’s Constitution of India (12th edn, Eastern Book Company 2013) 172–91.
2 Article 19(6) provides a little more detail for restrictions applying to the qualifications to practise a profession and on the ability of the State to nationalise certain industries. See Constitution of India 1950, art 19(6)(i) and (ii).
3 See eg, James M Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (University of Michigan Press 1962); Cass R Sunstein, ‘Naked Preferences and the Constitution’ (1984) 84 Columbia Law Review 1689; Herbert Hovenkamp, ‘The Political Economy of Substantive Due Process’ (1988) 40 Stanford Law Review 379; Robert D Cooter, The Strategic Constitution (Princeton University Press 2002).
4 See Hovenkamp (n 3). However, Articles 19(1)(g) and (6) jurisprudence is not the same as US due process jurisprudence. See Arvind P Datar, ‘Privilege, Police Power and Res Extra Commercium—Glaring Conceptual Errors’ (2009) 21(1) National Law School of India Review 133.
6 In Sodan Singh v New Delhi Municipal Committee (1989) 4 SCC 155  Kuldeep Singh J said: ‘The object of using four analogous and overlapping words in Article 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the avenues and modes through which a man may earn his livelihood.’ This broad approach has found favour in many other decisions. See eg, Saghir Ahmad v State of Uttar Pradesh AIR 1954 SC 728; Excel Wear v Union of India (1978) 4 SCC 224; Fertilizer Corporation Kamgar Union v Union of India (1981) 1 SCC 568.
7 The Supreme Court has held that trading in adulterated food (State of Uttar Pradesh v Kartar Singh AIR 1964 SC 1135; trafficking in women and slavery (Khoday Distilleries Ltd v State of Karnataka (1995) 1 SCC 574) and gambling (State of Bombay v RMD Chamarbaugwala AIR 1957 SC 699) are not POTB for purposes of Article 19(1)(g).
8 (1977) 2 SCC 670. See Maharashtra Debt Relief Act 1976. This holding was followed in approving a parallel statute in Gujarat. See State of Gujarat v Vora Saiyedbhai Kadarbhai (1995) 3 SCC 196.
9 Fatehchand Himmatlal (n 8) .
12 This is because the restriction (prohibition) imposed on the practice (beer bar dancing) was not targeted to the perceived problem (ie, it seemed counterproductive for the women likely affected by it because the Court thought it might induce them to enter prostitution). Maharashtra has recently put forward a Bill making dancing illegal in both beer bars and other venues. See Chittaranjan Tembhekar, ‘Maharashtra Assembly passes law to ban dance bars across the State’ Times of India (New Delhi, 13 June 2014) <http://timesofindia.indiatimes.com/india/Maharashtra-assembly-passes-law-to-ban-dance-bars-across-the-state/articleshow/36502595.cms>, accessed November 2015.
13 AIR 1954 SC 220. Other judgments have held that trade in noxious items is res extra commercium. Datar (n 4).
14 AIR 1967 SC 1368 .
15 Har Shankar v Excise & Taxation Commissioner (1975) 1 SCC 737 (this tracks the Court’s ruling in RMD Chamarbaugwala (n 7) (with respect to gambling)); Nashirwar v State of Madhya Pradesh (1975) 1 SCC 29 (holding that it was clear that liquor had always been treated differently to other trades).
16 See PN Kaushal v Union of India (1978) 3 SCC 558 (holding that social effects and moral and historical considerations might be used to decide whether liquor trading is a POTB or assuming liquor trading is a POTB, use these considerations in assessing any restrictions imposed (including total prohibition)).
17 There are, broadly speaking, two types of qualifications restrictions. First are professions created by statute (such as the legal profession), where Article 19(1)(g) goes to protect the rights granted in that statute (subject to the terms of that statute). See Mulchand Gulabchand v Mukund Shivram Bhide AIR 1952 Bom 296; AN Rangaswami v Industrial Tribunal AIR 1954 Mad 553; Devata Prasad Singh Chaudhuri v Chief Justice AIR 1962 SC 201. Thus, if the creating statute has restrictions on the profession, then Article 19(6)(i) is generally not used to assess those restrictions. Second are activities that are not created by statute per se and their qualifications restrictions are required to be reasonable under Article 19(6)(i). See Taracharan Mukherjee v BC Das Gupta AIR 1954 Cal 138; Udai Singh Dagar v Union of India (2007) 10 SCC 306; Rajasthan Pradesh Vaidya Samiti Sardarshahar v Union of India (2010) 12 SCC 609.
18 See Saghir Ahmad (n 6); JY Kondala Rao v AP State Road Transport Corporation AIR 1961 SC 82; Akadasi Padhan v State of Orissa AIR 1963 SC 1047; Rashbihari Panda v State of Orissa (1969) 1 SCC 414; Virajlal Manilal and Co v State of Madhya Pradesh (1969) 2 SCC 248; Rustom Cavasjee Cooper v Union of India (1970) 1 SCC 248;
19 A number of decisions have held that public interest is a very capacious concept and covers ‘public order, public health, public security, morals, economic welfare of the community, and the objects mentioned in Part IV of the Constitution’. Municipal Corporation of the City of Ahmedabad v Jan Mohammed Usmanbhai (1986) 3 SCC 20 .
20 Basu (n 1) 315–68; MP Singh (n 1) 172–91.
21 AIR 1951 SC 118  (emphasis added). See also Oudh Sugar Mills Ltd v Union of India AIR 1970 SC 1070.
22 Chintaman Rao (n 21) . Orders related to how to transport commodities, fixing of maximum prices, and how much of a commodity a dealer can hold might be valid if the process (or formula) for determining these restrictions is not unreasonable. See Dwarka Prasad Laxmi Narain v State of Uttar Pradesh AIR 1954 SCC 224; State of Rajasthan v Nath Mal AIR 1954 SC 307 (freezing stock); Harishankar Bagla v State of Madhya Pradesh AIR 1954 SC 465 (on transport); Suraj Mal Kailash Chand v Union of India (1981) 4 SCC 554 (on how much a dealer can hold).
23 Before discussing these cases, it is noteworthy that courts do not generally look behind the stated objectives of the statute (to examine whether these are, in reality, the true objectives) or whether the stated purposes of the law are in the public interest or not. Thus, courts generally take the stated objectives for granted when beginning their assessment of the reasonableness of the restriction.
25 A similar approach was followed in MRF Ltd v Inspector, Kerala Government (1998) 8 SCC 227 (with the test of reasonableness being connected to the stated objective of the restrictive law). One might also view this analysis as being representative of the less restrictive alternative as well.
27 Constitution of India 1950, art 48.
31 In this regard, the opinion explicitly follows State of Madras v Smt Champakam Dorairajan AIR 1951 SC 226 and is consistent with the thirteen-justice constitutional bench decision in Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.
32 See eg, Mohd Faruk v State of Madhya Pradesh (1969) 1 SCC 853.
34 Mirzapur Moti (n 33) . First, their urine and dung can serve useful purposes, such as being used as manure and other things. Secondly, due to scientific progress, cattle’s life expectancy had increased and they appeared to be useful for some tilling and draught work even as putative senior citizens. Mirzapur Moti (n 33) , , .
35 (1986) 3 SCC 20. The Court held this was a reasonable restriction because the State could require that certain days be holidays for the staff working in these slaughterhouses and if these holidays coincided with festivals where people did not eat meat, then closure on these days was in the public interest and also reasonable.
39 In Hinsa Virodhak, the Court, while referencing Mohd Faruk, mentioned the Mirzapur Moti case and its use of Directive Principles, which provided a basis for taking into account the views of the majority of residents in an area. See Hinsa Virodhak (n 36) – These cases suggest that the views of a majority may carry greater weight, perhaps not only because of their sentiments, but also because of a desire to live in harmony.
40 See Harry Kalven, Jr, The Negro and the First Amendment (University of Chicago Press 1966); Robert M O’Neil, Free Speech, Responsive Communication Under Law (2nd edn, Bobbs-Merrill Press 1972).
41 In Diwan Sugar & General Mills (P) Ltd v Union of India AIR 1959 SC 626, the Court held that the imposition of a licence fee or the requirement of obtaining a licence to engage in certain activity is a restriction on Article 19(1)(g), but it may well be reasonable if the conditions for the grant of a licence are reasonable. See also Dwarka Prasad Laxmi Narain (n 22).
43 RM Seshadri (n 42) .
44 Dwarka Prasad Laxmi Narain (n 22).
45 Harakchand Ratanchand Banthia v Union of India (1969) 2 SCC 166.
46 In Excel Wear (n 6), the Court held certain restrictions related to the ability of an employer to close down her business under the Industrial Disputes Act 1947 (IDA) to be unreasonable.
47 In Dwarka Prasad Laxmi Narain (n 22) , the Court was much concerned by the fact that the decision to grant or cancel a coal-mining licence fell within the unguided and unreviewable discretion of one individual. Similarly, in Corporation of Calcutta v Liberty Cinema AIR 1965 SC 1107, the Court held that a law making orders of the Corporation of Calcutta conclusive and non-justiciable was unreasonable and invalid. On the other hand, in Mineral Development Ltd v State of Bihar AIR 1960 SC 468, the Court held the right to cancel a licence under the relevant legislation was reasonable because cancellation could occur only for specified reasons and the licensee was given an opportunity to have a hearing.
48 Deepak Theatre v State of Punjab (1992) Supp (1) SCC 684 (on ticket prices); Minerva Talkies v State of Karnataka (1988) Supp SCC 176 (on daily number of shows). However, if a narrowly written condition bears little connection to issues of importance to the relevant sector it is likely to be struck down. See Raja Video Parlour v State of Punjab (1993) 3 SCC 708.
49 (1993) 1 SCC 645 , where the Court said: ‘The Parliament too has manifested its intention repeatedly (by enacting the UGC Act, IMC Act and AICTE Act) that commercialisation of education is not permissible and that no person shall be allowed to steal a march over a more meritorious candidate because of his economic power.’ The Court notes that even though educational institutions may be treated as an ‘industry’ for purposes of the Industrial Disputes Act 1947 (Bangalore Water Supply and Sewerage Board v Rajappa (1978) 2 SCC 213 (Krishna Iyer J)), that does not appear relevant in determining whether they are a POTB. Finally, individuals engaged in teaching may be engaged in a profession. Unni Krishnan v State of Andhra Pradesh (1993) 1 SCC 645 .
50 (2002) 8 SCC 481. A number of later decisions have followed: TMA Pai Foundation: Islamic Academy of Education v State of Karnataka (2003) 6 SCC 697; PA Inamdar v State of Maharashtra (2005) 6 SCC 537; Indian Medical Association v Union of India (2011) 7 SCC 179; Society for Unaided Private Schools of Rajasthan v Union of India (2012) 6 SCC 1; Pramati Educational and Cultural Trust v Union of India (2014) 8 SCC 271.
51 TMA Pai Foundation (n 50) .
52 TMA Pai Foundation (n 50) .
53 TMA Pai Foundation (n 50) .
54 See Shubhankar Dam, ‘Unburdening the Constitution: What Has the Indian Constitution Got to Do With Private Universities, Modernity and Nation-States?’ (2006) 48(1) Singapore Journal of Legal Studies 108.
55 A recent example in India underscores this point—Delhi University’s going back on its decision to create a four-year undergraduate programme. See Aditi Vatsa, Shikha Sharma, and Apurva, ‘FYUP rollback: Why Delhi University rolled back its most ambitious reform so far’ Indian Express (New Delhi, 29 June 2014) <http://indianexpress.com/article/india/india-others/du-fyup-rollback/>, accessed November 2015.
56 Unni Krishnan (n 49) –.
57 TMA Pai Foundation (n 50) .
58 TMA Pai Foundation (n 50) . Indeed, the Court held that the restrictions and guidelines put in place under Unni Krishnan were unreasonable because they did not appear to achieve the stated objective of the Unni Krishnan decision (and hence were excessive), while depriving private educational institutions of their autonomy in contravention of Article 19(6). TMA Pai Foundation (n 50) –.
59 Modern School v Union of India (2004) 5 SCC 583 .
60 Aruna Roy v Union of India (2002) 7 SCC 368.
61 Prof. Yashpal v State of Chattisgarh (2005) 4 SCC 420.
62 In Pramati Educational and Cultural Trust (n 50), a constitutional bench of five Justices held that Article 15(5) of the Constitution was valid and permitted the State to compel private unaided institutions to admit candidates from Scheduled Castes, Scheduled Tribes, or socially or economically backward classes. This appeared to contradict the Court’s holding a few years earlier in PA Inamdar v State of Maharashtra (n 50).
63 See Datar (n 1) 336–37. In Pramati Educational and Cultural Trust (n 49), one can imagine that the Court might have been concerned about some kind of educational segregation (though it does not discuss this).
64 Devesh Kapur and Madhav Khosla, ‘The Supreme Court and Private Higher Education: Litigation Patterns and Judicial Trends’ (forthcoming 2016) (on file with author).
65 TMA Pai Foundation (n 50) –.
67 For a broader discussion of Indian Higher Education, see Devesh Kapur and Pratap Bhanu Mehta, ‘Indian Higher Education Reform: From Half-baked Socialism to Half-baked Capitalism’ (2004) Centre for International Development, Harvard University, Working Paper No 108; Devesh Kapur, ‘Indian Higher Education’ in Charles T Clotfelter (ed) American Universities in a Global Market (University of Chicago Press 2010); Shyam Sunder, ‘Higher Education Reforms in India’ (2011) Yale School of Management Working Paper <http://ssrn.com/abstract=1975844>, accessed November 2015.
68 For an interesting and related discussion in the European context, see Daniel Halberstam, ‘Desperately Seeking Europe: On Comparative Methodology and the Conception of Rights’ (2007) 5 International Journal of Constitutional Law 166.
69 Prior to the onset of the 1991 liberalisation, there were many cases testing the State’s ability to legislate as deeply as it did across such a broad array of areas. The judiciary’s response was to constrain the State’s power in several ways by requiring that the restrictive laws be targeted to the perceived ills of the activity, that they provide guidance to government officials when exercising their discretion, and that they give individuals subject to those laws some sense of certainty about what the laws mean and power to review decisions made by those who held their livelihood in their hands. Although some may have wanted the courts to play an even stronger role, there is little doubt that the judiciary did work as a counterbalance to the State in some measure.
70 Moreover, around the same time national elections in India often had regional parties picking up many seats resulting in coalition governments where no single party had a majority of seats. This also likely affected the ability of the State to interfere with rights. For brevity and expositional ease, the focus will be on how liberalisation might lead to a need to adjust the analysis under Articles 19(1)(g) and (6).
71 From a comparative perspective, scholars have argued that the substantive due process jurisprudence in the US has changed over time as the role of the State (and perceptions of economic theory) have changed and to address changes in the risks associated with rent-seeking legislation. See Sunstein (n 3); Hovenkamp (n 3).