IMPORTANT POINTS
1. Freedom guaranteed under Article 19(1)(g) of the Constitution of India cannot be violated on grounds which are not established to be in public interest or just on basis that it is permissible to do so.
2. In case of tourist guides, Clause 17 of the conditions of the identity card/licence issued by the Regional Director, Tourism, Government of India, fixing age beyond which no renewal of the identity card is permissible, held ultra vires.

Headnote:Constitution of India-Article 19(1)(g)-Ancient Monuments and Archaeological Sites and Remains Act, 1958-Sections 18 and 38-Right to practice any profession-Profession of approved guides by issue of identity cards by Regional Director, Tourism-Instructions and conditions for issuance of identity cards for approved guides-Condition that identity card was not to be renewed when a guide attained 60 years of age-Writ petition challenging condition dismissed by High Court-Appeal-Nature of power provided under Ancient Monuments Act was only regulatory and did not create relationship of master and servant between State and approved guides-Ordinarily there would be no good reason for State to completely prohibit at its choice to carry on a private profession on attaining certain age-Fixation of age beyond which identity card was not to be renewed was not within the scope of provisions of the Act-Phrase in the interest of general public in Article 19(1)(g) (6) of Constitution would comprise within its ambit interests like public health and morals-Age condition for renewal of card did not appear to be reasonable and ultra vires, liable to be quashed.
       Held : So far as the fixation of age beyond which it is provided under the Clause no. 17 that the identity card shall not be renewed, does not seem to be within the scope of the provisions indicated above. The guides profess their independent profession. Since they come in touch and have to deal with the members of public and the tourists from within and outside the country, the Government of India considered it necessary to regulate the conditions of their profession. For example the fee etc. which would be chargeable by them, the way they will conduct their profession and behave with the tourists and many do s and don t s have been provided. So far so good, since it is undoubtedly only regulatory in nature and they have to conform to certain norms laid necessarily suitable for the profession, which as a matter of fact is for the benefit and to protect the interest of the visitors and tourists seeking access to the protected monuments. But otherwise the State or the Government of India does not figure into the picture in any role whatsoever. There is no relationship of master and servant between them nor there exists any contractual relationship. No benefit is conferred nor any emolument etc. is payable to the guides by the Government. No kind of protection nor any other benefit is provided to them by the Government. This is as much a matter of self-employment and private profession, as many others. In absence of any such relationship as that of master and servant or contractual in nature, ordinarily there would be no good reason for the State to completely prohibit at its choice, to carry on a private profession or self-employment, on attaining a certain age. (Para 13)
       Further held : The freedom under Article 19(1)(g) can also be completely curtailed in certain circumstances eg. where profession chosen is so inherently pernicious that nobody can be considered to have a fundamental right to carry on such business, trade, calling or profession like gambling, betting or dealing in intoxicant or an activity injurious to public health and morals. It may be useful to refer to a few decisions of this Court on the point at this stage, viz. in 1955 (1) SCR p.707 = AIR 1954 SC 728, Saghir Ahmad & Anr. vs. State of U.P. & Ors. and 1996(6) SCC 665, J.K. Industries Ltd. & Ors. vs. Chief Inspector of Factories and Boilers & Ors. The main purpose of restricting the exercise of the right is to strike a balance between individual freedom and social control. The freedom, however, as guaranteed under Article 19(1)(g) is valuable and cannot be violated on grounds which are not established to be in public interest or just on the basis that it is permissible to do so. For placing a complete prohibition on any professional activity, there must exist some strong reason for the same with a view to attain some legitimate object and in case of non-imposition of such prohibition it may result in jeopardizing or seriously affecting the interest of the people in general. If it is not so, it would not be a reasonable restriction if placed on exercise of the right guaranteed under Article 19(1)(g). The phrase in the interest of general public has come to be considered in several decisions and it has been held that it would comprise within its ambit the interests like public health and morals. (Para 15)

Judgement Key Points

Key Points: - The clause restricting renewal of identity cards beyond a certain age (60/65) for approved guides was held ultra vires and quashed. (!) - The profession of guides is a private/self-employed activity with regulatory measures, but without creating master-servant or contractual relationships with the State. (!) (!) - Freedom under Article 19(1)(g) can be restricted only when there is a strong public interest; mere regulatory measures cannot amount to total prohibition without a strong nexus to public interest. (!) (!) (!) - The Act and Rules confer regulatory power to govern access and conduct in protected monuments, not to create employment relationships or ban practice on achieving a certain age. (!) (!) (!) - The judgment emphasizes balancing individual freedom with social control and requires direct nexus between restrictions and the object sought to be achieved. (!) (!) - The appeals were allowed and the specific age-based renewal restriction was struck down. (!) - Costs awarded to the appellants. (!)

What is the validity of age-based renewal restrictions for approved tourist guides under the regulatory framework?

What is the extent of the State’s power to regulate private professions under Article 19(1)(g) in the context of self-employment and public interest?

What are the grounds on which restrictions under the government’s rules can be considered reasonable or unreasonable?

JUDGMENT

Brijesh Kumar, J.-The above-noted civil appeals involve the same question of fact and law hence, they are being disposed of by this common judgment. The appellants are Guides by profession and held identity cards as "approved guides". The identity cards were issued by the Regional Director, Tourism, Government of India, Regional Tourist Office, 88, Janpath, New Delhi and counter-signed by the Director, Monuments, Archaeological Survey of India.

2. The guides as commonly known conduct the tourists to the historical monuments and other places of interest of tourists and explain the background and the importance of such places as well as acquaint them with the historical facts relating to the monuments and many landmarks of the area. This job developed into a kind of a specialized profession and they have to handle local tourists, foreign tourists, tourist parties and many dignitaries visiting the places. They charge for rendering such services. In this background it appears that it was thought necessary to regulate this profession and a need also seems to have been felt to issue identity cards to those persons who may act as authorized guides and charge fee for the service rendered. So as the guides may be presentable, well-up in their knowledge and their conduct towards the tourists may be cultured and ethical, certain conditions have been laid down including one relating to holding a test which any of such person is required to pass before being entitled to be issued an identity card as a guide. Detailed instructions in that connection have been issued in 1979 by the Ministry of Tourism and Civil Aviation, Department of Tourism. Government of India.

3. A few of the conditions are that they should charge their remuneration only at the rates fixed by the Department of Tourism; they would not solicit tips or other material gains from the tourists; they would maintain good conduct and behaviour; they would carry out the assignments as may be made by the Department of Tourism for conducting any tour or site seeing etc. and they are also supposed to undergo written and oral examination conducted by the Tourism Department. One of the conditions with which we are concerned in the present appeals is contained in clause 17. It provides "When a guide attains the age of 60 years the identity card issued to him/her will not be renewed further". It may be pertinent to note that sometime during the pendency of the litigation, it is informed that the age has been extended to 65 years.

4. The authorities, in accordance with the guidelines issued, declined to renew the identity cards of the appellants, on the ground of age hence the guides approached the High Court by filing petitions under Article 226 of the Constitution of India but failed. The present appeals have thus arisen from an order passed by the Allahabad High Court dismissing the writ petitions. The High Court, expressed its agreement with an earlier judgment of the Division Bench of the same Court in Virender Kumar Chadha vs. Union of India & Ors. rendered in W.P.No.10714 of 1991 on September 10, 1992. The judgment in the above noted case deals with and repels several points raised by the petitioners in that bunch of petitions including the challenge made to fixing of age. Learned counsel appearing for the appellants before us, has raised a grievance only in regard to fixation of age beyond which identity card is not liable to be renewed merely on the event of attaining a particular age.

5. In connection with fixing of age beyond which no renewal of identity card is permissible, the case of respondents is that job of a guide requires a lot of physical stamina as sometimes they have to take the tourist parties outside the station and they have also to climb steps and have to walk long distances in the monuments etc. It is further pleaded that normally a person after attaining the age of 60 years tends to lack physical stamina, which the nature of the job very much requires. T

Click Here to Read the rest of this document

2003 Supreme(SC) 763

What is the validity of age-based renewal restrictions for approved tourist guides under the regulatory framework?

What is the extent of the State’s power to regulate private professions under Article 19(1)(g) in the context of self-employment and public interest?

What are the grounds on which restrictions under the government’s rules can be considered reasonable or unreasonable?

Cases Referred (6)