INTER-RELATION BETWEEN ARTICLE. 301 AND ARTICLE. 19(1)(G)

Article submitted by Aprajita Priyadarshini, Indian Institute of Legal Studies, Siliguri.

Abstract

The democracy is rightly what it has been defined by Abraham Lincoln as the government of the people, by the people, for the people at his Gettysburg Address. This definition of democracy finds its meaning secure in India with the effectively enshrined fundamental rights in the Constitution. The ‘People of India’ are been guaranteed by several fundamental rights by the Part-III of the Indian Constitution, right from freedom of speech and expression, to choosing and professing one’s religion, from the rights to equality to freedom of choosing and professing one’s occupation-which in India is considered to be the second religion of the people. The Freedom of Trade can be seen enshrined at two Articles of the Constitution- in Articles 19(1)(g) and in Article 301. There has always been turmoil in establishing the relationship between these two Articles. This essay is an attempt of briefly defining the Inter-relation between Articles 301 and 19(1)(g). It deals in outlining the similarities as well as the differences in the scope of these two Articles of the Constitution.

Keywords: Trade, Freedom, Inter-relation, Article 301, Article 19(1)(g), Differences, Overlapping.

Introduction

The laws regulating trade in India has been as old as the Smritis and Arthashastra which had been made to provide goods at fair price to all. The aim was the all-round prosperity of the state as well as all classes of the people along with harmonious development. Trade in the ancient times began when livelihood based on cattle breeding and farming could no longer be sufficient. People learnt the ways of exchange of goods for goods which was then popularly known as the barter system. The practice then developed when goods were exchanged for monetary value. This was not limited to one town and slowly the exchanges and transportations began taking place inter-towns and then across country borders via roadways and waterways. All these basic transportations and trading systems gradually developed and grew into a vast structured network system of trade, commerce and inter-course.

The Constitution of India enshrines the freedom of trade, commerce and intercourse under Article 301. The Article declares that the trade, commerce and intercourse throughout India shall be free, subject to some ristrictions. This freedom is assured not only for inter-state trade, commerce and intercourse but also for intra-state trades. The constitution also guarantees under Article 19(1)(g) that all citizens shall have the right to practise any profession, or to carry on any occupation, trade or business. While on the very face of it the two Articles seem to be employed with the same purposes, but there are various points of contradiction between the two and that is the main reason these two have been granted separate positions in the Constitution.

Inter-Relation Between Article 19(1)(g) And Article 301

The words trade, commerce and intercourse incorporated in Article 301 have been specifically defined. Trade means the buying or selling of the goods, commerce means the transportation by air, water or land while intercourse means the movement of goods from one place to another. Though the Article declares all of these free movement across the country, this freedom is not granted in the complete sense and is restricted by certain provisions laid under Art 302-307. Also, the very nature of these restrictions must not curtail the right of freedom under Article 19(1)(g).

The articles 19(1)(g) and 301 though appear to be similar in nature and scope, there are very basic but important point of differences between the two. These are:

· While Art 19(1)(g) is a fundamental right under the Constitution, Art 301 is a constitutional right.

· Owing to the above, while the right to freedom under Art 19(1)(g) can be invoked only by the citizens of India, Art 301 grants the freedom to citizens as well as non-citizens and corporate person or private entity.

· During the times of emergency, Art 19(1)(g) automatically gets suspended but Art 301 still is enforce and a recourse can be taken to Art 301 for the validation of a restriction.

· Art 301 can be invoked when there is a restriction to the trade or movement of goods while Art 19(1)(g) is invoked in cases where the right to carry on a trade or profession is in question.

When it comes to the overlapping of these two Articles in their scope, the views of the Court in the case of Motilal vs State of U.P.[1] can be referred to. The Judge observed that while Art. 301 contemplate the right of trade, business or intercourse in motion, Article 19(1)(g) secures the right of occupation, trade or business at rest. To the extent that a business consists of an activity of movement from one place to another, it is covered by both and in that respect they overlap.

The harmonious construction of both the Articles in the manner that Art 19(1)(g) provides right to trade and profession which necessarily includes the element of movement and inter-state movement of goods is also the dominant purpose of Art 301 gives way to the conclusion that both the Articles share similar objectives and are supplementary to each other.

In State of-Bombay v. Chamarbaughwala[2], Supreme Court developed this view and observed that Art. 19(l)(g) and Art 301 are two facts of the same thing of freedom of trade. Art. 19(1)(g) looks at the matter from the point of view of individual right to carry on their trade or business while Art. 301 look at the matter from the point of view of country’s trade and commerce as a whole.[3]

In Saghir Ahmed v. State of U.P.[4] where the validity of U.P. Road Transport Act 1950 was challenged on the ground that among other thing: it contravened Art. 301, it was argued that the article safeguards the rights of citizens to engage in inter-state as well as intra-state trade. Accepting the contention, Supreme Court observed that Art. 301 is concerned with the passage of commodities or persons either within or outside the state frontiers but not directly with individual carrying on commerce or trade. This view cannot be accepted completely as the Court fails to notice that the trade or occupation are activities conducted by individuals or groups of individuals and enjoyment of right under Article 301 without visualizing the individual’s role raises absurdities.

Conclusion

The fundamental right guaranteed under Article 19(1)(g) and the constitutional right under Article 301 though appear to be working on the same front, are mere supplementary to each other. They are different at vital aspects but also cohabit to ensure the overall smooth functioning of trade, commerce and intercourse in the country owing to the nation’s economic development. The right under Art 19(1)(g) provides rights to the citizens while right under Art 301 though not fundamental in nature, extends to all individuals. Therefore, the view that Article 301 guarantees freedom in abstract and not of the individuals had been rightly denounced by the Supreme Court in the case of District Collector, Hyderabad v. Ibrahim[5]. The Court herein stated that the view that while Article 19(1)(g) deals with the right of the individuals, Article 301 provides safeguards for the carrying on trade as a whole distinguished from an individual’s right to do the same. This view is hardly tenable.

The overlapping scope of the two Articles leads us to believe that these are both supplementary to each other. Tough there apparently seems an overlapping between the two Articles, the absence of some concrete authoritative statement by the Supreme Court leaves it open to criticisms and examination. Yet it is assumed that though they are apparently overlapping they work and function in their own distinctive areas.

[1] AIR 1951 All 257 [2] AIR 1957 SC 699 [3] Automobiles Transport Ltd. v. State of Rajasthan, AIR 1958 Raj 114 [4] AIR 1954 SC 728 [5] AIR 1970 SC 1275