Important Points
1. Kerala Industrial Establishment (National and Festival Holidays) Amendment Act which raised compulsory holidays from seven to thirteen is neither violative of Article 19(1)(g) nor offends Article 14.
2. Directive principles of State policy have to be regarded as “wisdom” of nation manifested in the `paramount’ law of the country.
3. Principles of natural justice cannot be imported in the matter of legislative action and as such a piece of legislation cannot be challenged on ground that opportunity of being heard was not given before enactment.

Headnote:(i) Kerala Industrial Establishment (National and Festival Holidays (Amendment) Act, 1990-Constitution of India-Article 19(1) (g)-Raising of compulsory paid holidays from seven to thirteen-Constitutional validity-Plea that increasement violative of Article 19 (1)(g) and also arbitrary-Not sustainable-Amendment protected by clause (6) of Article 19-Amendment not violative of Article 14.
       Held : Article 19(1)(g) protects the freedom of each individual citizen to practice any profession or carry on any occupation, trade or business. This is a right distinct from Article 301 which relates to trade, commerce or intercourse both with and within the State. The Right under Article 19(1)(g) is not absolute in terms but is subject to reasonable restrictions contemplated by Clause (6) thereof. (Paras 4 & 5)
       The State of Kerala in its counter-affidavit pleaded that in order to introduce the amendments in the Parent Act by which the number of the national and festival holidays were increased, the Government took into consideration the change in social conditions, the developments in the State and the number of holidays enjoyed by other sectors. It was pleaded that the outlook towards labour has undergone a drastic change since the enactment of the Parent Act in 1958. The contention of the appellants that the increase in holidays would result in the loss of production was refuted by the State on the ground that the power to increase production required healthy labour force. Some recreation and rest would make the labour more fit and capable of doing their work more efficiently and satisfactorily which would result in more production. The Kerala Institute of Labour and Employment had already made a study of paid holidays available to industrial workers in Kerala State in 1982 and after studying the conditions prevailing in about one hundred and eighty public and private industrial establishments as to the national and festival holidays available to their workers had published a report. As per the analysis made in that report, it was noticed that the number of paid holidays available to industrial workers in the public sector in Kerala ranged from seven to twenty one days and in private sector, from seven to seventeen days. It was also noticed that the Government of India had declared sixteen holidays while Government of Kerala had declared eighteen holidays for the year 1990 which were repeated in 1991. (Para 19)
       Having regard to the factors enumerated in the counter-affidavit as also to the Directive Principles of State Policy contained in Article 43, we are of the opinion that the Act by which the national and festival holidays have been increased is fully constitutional and does not, in any way, infringe the right of the appellants to carry on their trade or business under Article 19(1)(g). The compulsory closure of the industrial concern on national and festival holidays cannot be treated as unreasonable. It is protected by Clause (6) of Article 19 and, therefore, cannot be treated to be violative of the Fundamental Right under Article 19(1)(g). (Para 20)
       The plea under Article 14 also cannot be entertained. The decision by legislative amendment to raise the national and festival holidays is based upon relevant material considered by the Government, including the fact that the holidays allowed by the Central Government and other public sector undertakings were far greater in number than those prescribed under the Act. As pointed out earlier, the Act is a social legislation to give effect to the Directive Principles of State Policy contained in Article 43 of the Constitution. The law so made cannot be said to be arbitrary nor can it be struck down for being violative of Article 14 of the Constitution. (Para 21)
       (ii) Constitution of India-Art. 19(1) and (6)-Fundamental Rights -Reasonable restrictions through legislative enactments - Constitutionality-Test for determination of -Principles.
       Held : Fundamental Rights guaranteed by Article 19 are the basic and natural Rights inherent in the citizen of a free country but none of the seven Rights, guaranteed by Article 19(1), is an absolute Right as each of the Rights is liable to be controlled, curtailed and regulated by laws made by the State to the extent set out in Clauses (2) to (6) of the Article. This is based on the old principle enunciated by this Court that “LIBERTY has to be limited in order to be effectively possessed”. Article 19, therefore, while guaranteeing some of the most valued elements of LIBERTY to every citizen, as Fundatmental Rights, provides for their regulation for the comnon good by the State imposing certain restrictions on their exercise. (Para 3)
       On a conspectus of various decisions of this Court, the following principles are clearly discernible:
        (1) While considering the reasonableness of the restrictions, the Court has to keep in mind the Directive Principles of State Policy.
        (2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public.
        (3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances.
        (4) A just balance has to be struck between the restrictions imposed and the social control envisaged by Clause (6) of Article 19.
        (5) Prevailing social values as also social needs which are intended to be satisfied by restrictions have to be borne in mind.
        (6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions, and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise. (Para 12)
       (iii) Constitution of India-Art. 43-Living wage etc. for workers-State’s duty to legislate law-Directive principles of State policy are not enforceable-Nevertheless fundamental in governance of country-They have to be regarded as ‘wisdom’ of nation manifested in the ‘paramount’ law of country.
       Held : The Directive Principles of State Policy are not enforceable but are nevertheless fundamental in the governance of the country and have to be applied by the State in making the laws. They are essential articles of faith of the country and as such the Legislature, the Executive and the Judiciary have to follow them unless there is likely to be an infringement of any express provision of the Constitution. They have to be regarded as the “Wisdom” of the Nation manifested in the “paramount” law of the country. (Para 15)
       Article 43 enjoins the State to endeavour to secure to all workers, be they agricultural, industrial or otherwise, a living wage and proper conditions of work so as to assure to them a decent standard of life and full enjoyment of leisure and social and cultural opportunities. The idea, therefore, is that the workers would not be compelled to work on all days. While other employees may enjoy national and festival holidays, the workers in an industry or an agricultural farm must work throughout and should not avail of any holiday is not the philosophy of Article 43. As human beings, they are entitled to a period of rest which would enable them to fully enjoy their leisure and participate in social and cultural activities. (Para 17)
       (iv) Constitution of India-Article 245-Enactment of legislation-Application of principles of natural justice of being heard-Could not be imported in the matter of legislative action.
       Held : Principles of natural justice cannot be imported in the matter of legislative action. If the Legislature, in exercise of its plenary power under Article 245 of the Constitution, proceeds to enact a law, those who would be affected by that law cannot legally raise a grievance that before the law was made, they should have been given an opportunity of hearing. This principle may, in limited cases, be invoked in the case of sub-ordinate legislation specifically where the main legislation itself lays down that before the sub-ordinate legislation is made, a public notice shall be given and objections shall be invited as is usually the case, for example, in the making of municipal bye-laws. But the Principle of Natural Justice, including right of hearing, cannot be invoked in the making of law either by the Parliament or by the State Legislature. (Paras 22 & 23)

Judgment

S. Saghir Ahmad, J.-The classic Judgment of Patanjali Sastri, C.J. in State of Madras v. V.G. Row1, has again to be referred to and relied upon in this case to settle the controversy regarding the constitutional validity of the Kerala Industrial Establishments (National and Festival Holidays) (Amendment) Act, 1990 (for short, ‘the Amending Act’) which has already been upheld by a Single Judge, and in appeal, by the Division Bench of the Kerala High Court.

2. By the Amending Act, national and festival holidays, fixed under the Principal Act, namely, the Kerala Industrial Establishments (National and Festival Holidays) Act, 1958 (for short, ‘the Parent Act’) were altered. The national holidays were increased from three to four (with the addition of 2nd of October as Mahatma Gandhi’s Birthday) and festival holidays were increased from four to nine. The total number of compulsory paid holidays were thus raised from seven to thirteen. This alteration was challenged by the appellants on the ground that the holidays, national and festival, so increased were violative of the Fundamental Right guaranteed to them under Article 19(1)(g) to carry on their trade, business or profession. It was also challenged on the ground of arbitrariness as the contention was that the increase in the number of national and festival holidays was wholly arbitrary, without there being any reasonable basis for such increase which has compelled the appellants to pay to their labour and other employees salary even for closed days on which they do not work.

Article 19(1)(g) provides as under:

“19. Protection of certain rights regarding freedom of speech, etc.- (1) All citizens shall have the right -

(a) ................

(b) ................

(d) ................

(e) ................

(f) ................

(g) to practice any profession, or to carry on any occupation, trade or business.”

Sub-clause (6) of this Article provides as under :-

“(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to -

(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii) the 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.”

3. Fundamental Rights guaranteed by Article 19 are the basic and natural Rights inherent in the citizen of a free country but none of the seven Rights, guaranteed by Article 19(1), is an absolute Right as each of the Rights is liable to be controlled, curtailed and regulated by laws made by the State to the extent set out in Clauses (2) to (6) of the Article. This is based on the old principle enunciated by this Court that “LIBERTY has to be limited in order to be effectively possessed”. Article 19, therefore, while guaranteeing some of the most valued elements of LIBERTY to every citizen, as Fundamental Rights, provides for their regulation for the comnon good by the State imposing certain restrictions on their exercise.

4. Article 19(1)(g) protects the freedom of each individual citizen to practice any profession or carry on any occupation, trade or business. This is a right distinct from Article 301 which relates to trade, commerce or intercourse both with and within the State.

5. As pointed out earlier, the Right under

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1998 Supreme(SC) 1129

Cases Referred (15)