THE ROLE OF 1 REASONABLE RESTRICTIONS* IN THE INDIAN CONSTITUTION TIRUKKATTUPALLI KALYANA KRISHNAMURTHY IYER JUNE, 1974 ProQuest Number: 11010392 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010392 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 x. CONTENTS Page No. Acknowledgements i. Preface ii. List of Abbreviations viii. INTRODUCTION: THE NATURE OF THE SUBJECT-MATTER GENERALLY 1. •Subjectivity* and •Objectivity* in Reas onableness 1 0 . An Introduction to Article 19 CHAPTER 1: HISTORY AND COMPARISONS Section Is The Indian Constituent Assembly and Limitation of Rights 17. Proceedings of the Advisory Committee 20. Assembly Proceedings - Stage 1 3 2 . Assembly Proceedings - Stage 2 39. Section 2 : »Due Process1 in American Law and •Reasonableness* in India 44. Indian Constituent Assembly and •Due Process* : In Outline 45. The *Ghost* of * Due Process* 49. Vagueness and Unreasonableness 68. Section 3 : The Role of Reasonableness in English Law 76. English Law on * Reasonableness* 83. Liversidge v# Anderson 87. Bye-laws and Indian Courts 1 0 2 . Section 4: The European Convention Introduction 106. •Margin of Appreciation* 109 Judicial Deference to legislative policies 113 CHAPTER 2 : NATURE AND SCOPE OP JUDICIAL REVIEW OF THE REASONABLENESS OF RESTRICTIONS ON FUNDA­ MENTAL RIGHTS Section 1 (a): Scope of Review of Article 19 118 Reasonableness, Object of Legisla- tion and the Directive Principles of State Policy 139 Retrospectiveness and Reasonableness 154 (b): Burden of Proof under Article 19 158 Distinction between Articles 14 and 19 166 Section 2 (a): Reasonableness of Discriminatory Classification under Article 14 171 S.R. Das J. and Reasonable Classi­ fication 184 Discriminatory Procedures 188 Where Presumption of Constitution­ ality Neutralised 191 Criticisms of the ’Nexus’ Test 193 Reasonableness of ’Protective Dis­ crimination* and an Aspect of Welfare State in India 197 (b): The Relation of Article 14 to Article 19 207 Section 3 : Reasonable Restrictions on Inter-State Trade 211 CHAPTER 3: THE COURTS AND THE RESTRICTIONS - ILLUSTRATIONS Section 1 (a): Reasonableness of Restrictions on the Freedom of Speech and Expres­ sion - Article 19(1)(a) 217 xii. Page No. Preventive Detention, Article 19 and (in particular) Freedom of Speech 219. Reasonable Restrictions on the Press in India 246. Press and Economic and Industrial Regu- lat ions 257. •Decency and Morality’ 272. The Indian Supreme Court on Obscenity 276. Restrictions on Account of Contempt of Court 280. Sedit ion 292. Free Expression and Cinema Films 308. (b): Reasonable Restrictions on the Freedom of Assembly - Article 19(1)(b) 310. Rights of Government Servants to Demon­ strate 323. (c): Reasonable Restrictions on the Freedom of Association - Article 19(1)(c) and 19(4) 331. (d): Reasonable Restrictions on the Freedom of Movement - Article 19(l)(d) and 19(5) 346. Section 2 (a) Reasonable Restrictions on the Freedom of Free Pursuit of Trade, Business or Profession 357. Res extfa commercium in India 374. , Monopoly Rights 380. (b) Licensing Measures as Restrictions on the Right under Article 19(1)(g) 396. (c) Reasonable Restrictions on the Free­ dom to Acquire, Hold and Dispose of Property 401. xiii. Page No, CONCLUSION 432. APPENDIX I 447. APPENDIX II: PART III - FUNDAMENTAL RIGHTS 449. Bibliography 460. Table of Cases 471. ACKNOWLEDGEMENTS It is my pleasant duty to record my thanks to Professor J.D.M. Derrett, LL.D. (Lond.), D.C.L. (Oxon.) for the encouragement he has given me during the prepa­ ration of this thesis. His supervision has been extremely valuable to me and I am aware that this acknowledgement is far from adequate. I wish to thank my wife for assisting me in the preparation of the Table of Cases, the Bibliography, and in checking references. For the excellent typing done so quickly and cheerfully by Mrs. Baker, I thank her. The Library Staff at the School of Oriental and African Studies, particularly the two most concerned with Indian legal material, Miss Rosemary Stevens and Mr. Romesh Dogra, have been co-operative and friendly in meeting my many frequent requests. I should also like to thank the Library Staff at The Institute of Advanced Legal Studies, Russell Square, for their able assistance. T.K.K. Iyer, LL.M. (Lond.), School of Oriental & African Studies London. PREFACE atoMiar e#judicial review of written constitu­ tions is seen by most modern researchers as a value-ridden, policy-making exercise. A rapid (I do not say superficial) analysis of the judicial process tenas to see it, in the end, m terms of judicial activism or restraint. In explanations of such ’activism* or ’restraint’ it is not uncommon to see references to factors personal to the judges such as their preferences on social and economic matters. Studies of the ’irrational factors’ in judicial policy-making, convincing as many of them are, could easily become exaggerated and tend to become one-sided. It is fair to ask that judges should be ’conscious’ of their pre­ ferences in whatever choices they make, but it may not be right to ask them to transcend themselves in a totally un­ realistic fashion. Admitting that judicial policy-making exists and that presuppositions pervade decisions interpreting a written Constitution, it still remains to be said that judges do, in the course of their work, try to express their concept of ’justice’ , albeit legal justice. Every general, unspecific expression in a written legislative document gives rise to judicial review and there constantly arise opportunities for the Judges to express their notion of ’justice' in the ciruumstances of the cases before them. Such a flexible expression as ’reasonable restrictions' (on Fundamental Rights) used in Article 19 of the Indian Constitution provides a good field in which to see how Judges develop the notion^of 'reasonableness' or 'fairness' which are inseparable from the very idea of judicial review. Among the many valuable and comprehen­ sive treatments of the constantly shifting subject of Indian constitutional law, there appears no treatise de­ voted to 'reasonableness' • It is not hard to see why (as will be explained below). One often hears that the notion of 9reasonableness' varies from case to case, from one set of circumstances to another. This platitude is true so far as it goes, but not being the product of detailed research into judicial attitudes, it has no secure foundation and thus cannot dispense with the need for an inquiry into the acute problem it poses with regard to judicial method. The notion of reasonable restrictions is a vital and growing area of the law relating to fundamental rights guaran­ teed by the Indian Constitution. The potentiality of this notion has already been realized in such areas as freedom of the press in India, freedom of assembly and freedom of associ­ ation. Further growth, we find, is possible in the area of free movement and free pursuit of profession. Needless to say there are considerable pressures in an underdeveloped country of India's complexity and size. A hypothetical judicial notion of reasonableness may be but one of hundreds of factors that constitute the basis of the Indian nation. The immediate impact of judicial attitudes expressed in decisions is felt by the administration and the State. Only indirectly does the citizen perceive the effects. Nevertheless, a link must exist between the judicial view of 'reasonable restrictions* on the basic freedoms ana the evolving notions of society ana government in India. It would take more than a thesis to explore such a coup lex subject. As long as Courts are taken seriously in India, in the sense in which they have been since 1772, the constitu­ tional requirement of reasonableness esqpressly referred to in Article 19 will play a vital role. It is not too much to speculate that in the long run the Courts could by being sensitive to the problems faced both by the public and the executive when the latter seeks to curtail the established rights of the former (the'litigation situation'), repel the charge presently levelled against them that they represent, as in other underdeveloped countries, the values of an elite. India's judiciary undoubtedly works a Constitution that has borrowed ideas from the West. But the 'liberal' democratic view of fundamental rights and permissible limitations on themj may not be incompatible with perfecting the admini­ stration and erecting new institutions to help raise the standard of living. Already the impact of Article 19 on the administration cam be seen. The result has amounted to a pruning of statutory rules and administrative regula­ tions. No unwieldy or casually-framed rule could survive on the touchstone of procedural or substantive reasonableness. Further Indian Courts have insisted on subordinate legisla­ tion keeping strictly to the purpose of the statute under which they were framed. Judicial attempts to e2q>and their jurisdiction under Article 19 to other areas of the fundamental rights part have not been successful so far. The Supreme Court's claiip,for example, to review the reasonableness of expropriatory legis­ lation has been consistently thwarted by Constitutional Amend­ ments • Thus, the accident of one party domination in Parlia­ ment and its command of the required majority to pass the amendments to the Constitution have stultified a natural growth of the Courts' jurisdiction.