1. Challenge to the constitutionality of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 — alleged violation of fundamental rights regarding drug advertisements. (Para 1 , 2 , 3 )
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1960 Supreme(SC) 41
SUPREME COURT OF INDIA
B.P. SINHA, C.J.I., S.J. IMAM, J.L. KAPUR, K.N. WANCHOO AND K.C. DAS GUPTA, JJ.
Advocates appeared
Dr. K. M. Munshi and Mr. N. C. Chatterjee, Senior Advocates (M/s. L. R. Das Gupta, G. K. Munshi, D. N. Mukherjee and R. Gopalkrishnan, Advocates, with them), for Petitioners; Mr. C. K. Daphtary, Solicitor General of India and Mr. H. N. Sanyal, Additional Solicitor General of India (M/s. B. R. L. Iyengar, R. H. Dhebar and T. M. Sen, Advocates, with them), for Respondents Nos. 1 to 10 (In Petn. No. 81 of 1959), Nos. 1 to 3 (In Petn. No. 62 of 59), No. 1 (In Petns. Nos. 63 and 3 of 59) and Nos. 2 and 3 (In Petn. No. 3 of 59); M/s. G. N. Dikshit and C. P. Lal Advocates, for Respondent No. 11 (In Petn. No. 81 of 59) and No. 2 (In Petn. No. 63 of 59).
Mr. R. Gopalakrishnan, Advocate, for Intervener.
The following Judgment of the Court was delivered by
Commercial advertisements for trade do not constitute "freedom of speech" under Article 19(1)(a). Additionally, legislative delegation without guiding standards and search/seizure powers lacking procedural safeguards are unconstitutional.
Headnote:(A) Constitution of India - Articles 14, 19(1)(a), 19(1)(f), 19(1)(g), 19(2), 19(6), 21, 31; Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 - Sections 3, 8, 16 - Commercial advertisement - Freedom of speech - Reasonable restrictions - Commercial advertisements aimed at promoting trade or business do not fall within the concept of freedom of speech under Article 19(1)(a) as their object is not the propagation of ideas, social, political or economic, but the commendation of the efficacy of products for business purposes (Paras 17, 18). Restrictions imposed to prevent self-medication and protect public health are reasonable and in the interest of the general public under Article 19(6) (Paras 27, 28).
(B) Delegated Legislation - Power conferred upon the executive to specify diseases or conditions in the rules without providing any criteria, standards, or guiding principles constitutes uncanalised and uncontrolled power, rendering such delegation ultra vires (Paras 33, 34, 35).
(C) Fundamental Rights - Power of Seizure - A provision allowing the seizure and detention of documents or articles without providing safeguards or a proper procedure is an unreasonable restriction on fundamental rights and is therefore unconstitutional (Para 36).
Facts of the case:
Petitioners challenged the constitutionality of an Act controlling the advertisement of drugs and magic remedies, alleging violations of fundamental rights to free speech and trade. The authorities had taken action against the petitioners, including the seizure of products and stopping sales, for contravening prohibitions on advertisements for certain diseases and disorders.
Findings of Court:
The court held that commercial advertisements for business purposes are not protected as freedom of speech. The Act's objective to prevent self-medication is a valid public interest. However, the power to add diseases to the schedule via rules and the unfettered power of seizure were found to be unconstitutional.
Issues: Whether commercial advertisements are covered by Article 19(1)(a); whether the restrictions on trade are reasonable and in the interest of the general public; whether the delegation of power to specify diseases in the rules is valid; and whether the power of seizure under Section 8 is constitutional.
Ratio Decidendi: Commercial speech for trade is not "freedom of speech" under the Constitution. Legislative delegation must be guided by standards; without them, it is an abdication of legislative function. Search and seizure powers must have procedural safeguards to be considered reasonable restrictions on fundamental rights.
Result: Portion of clause (d) of Section 3 and the whole of Section 8 declared unconstitutional; writ of mandamus issued for return of seized goods.
Legal Category Hierarchy
- constitutional law
- administrative law
- health law
Table of Contents
2. Whether restrictions on drug advertisements violate freedom of speech and trade — whether delegated power to specify diseases and seizure powers are unconstitutional. (Para 4 , 5 )
3. Commercial advertisements for business promotion are not protected speech — restrictions to prevent self-medication are reasonable — delegation without standards is invalid. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 )
4. Commercial speech for trade is not freedom of speech under Article 19(1)(a) — legislative delegation requires definite boundaries and standards to be valid. (Para 17 , 18 , 34 , 35 , 36 )
5. Portion of Section 3(d) and Section 8 declared unconstitutional — direction to return seized goods. (Para 37 , 38 )
6. Does the freedom of speech under Article 19(1)(a) protect commercial advertisements?
No. Commercial advertisements used to further business or trade, such as commending the efficacy of drugs, do not fall within the concept of freedom of speech as their object is not the propagation of ideas but the promotion of wares. (Para 17 , 18 , 20 , 21 )
7. What is the requirement for a valid delegation of legislative power to the executive?
The legislature must provide definite boundaries, criteria, or standards to guide the administrative authority. Delegation without such guidance amounts to an abdication of legislative function and is ultra vires. (Para 29 , 34 , 35 )
8. Is a power of seizure without procedural safeguards constitutionally valid?
No. The absence of safeguards in the exercise of power to seize and detain documents or articles constitutes an unreasonable restriction on fundamental rights and is therefore unconstitutional. (Para 36 )
9. How does the court determine if a statute violates fundamental rights under Part III of the Constitution?
The court examines the true nature and character of the legislation—its subject matter, purpose, and intent—looking behind the form to discover the substance of what the legislature has done. (Para 7 , 8 )
Judgement
KAPUR, J. : These petitions under Art. 32 of the Constitution raise the question of the constitutionality of the Drugs and Magic Remedies (Objectionable Advertisements) Act (Act XXI of 1954) hereinafter referred to as the Act. As the petitions raise a common question of law they may conveniently be disposed of by one judgment.
2. The allegation of the petitioners was that various actions had been taken against them by the respondents which violated their fundamental rights under Art. 19(1)(a) and Art. 19 (1)(f) and (g). They also challenged the Act because it contravened the provisions of Art. 14 and Arts. 21 and 31.
3. The Act passed on April 30, 1954 came into force on April 1, 1955 along with the rules made thereunder. As provided in its preamble it was
"An Act to control the advertisement of drugs in certain cases, to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith."
The petitioners in Writ Petition No. 81 of 1959, the Hamdard Dawakhana (wakf) and another, alleged that soon after the Act came into force they experienced difficulty in the matter of publicity for their products and various objections were raised by the authorities in regard to their advertisements. On December 4, 1958 the Drugs Controller, Delhi intimated to the petitioners that the provisions of S. 3 of the Act had been contravened by them and called upon them to recall their products sent to Bombay and others States. As a result of this, correspondence ensued between the petitioners and the authorities. On December 4, 1958 the Drugs Controller, Delhi State stopped the sale of forty of their products set out in the petition. Subsequently objection was taken by the Drugs Controller to the advertisements in regard to other drugs. Similarly objections were taken by the Drugs Controllers of other States to various advertisements in regard to medicines and drugs prepared by the petitioners. They submitted that the various advertisements which had been objected to were prepared in accordance with the Unani system and the drugs bore Unani nomenclature which had been recognised in the whole world for several centuries past. The Act is assailed on the ground of discrimination under Art. 14, excessive delegation and infringement of the right of free speech under Art. 19(1)(a) and their right to carry on trade and business under Art. 19 (1)(f) and (g). Objection is also taken under Arts. 21 and 31. The petitioners therefore prayed for a declaration that the Act and the Rules made thereunder were ultra vires and void as violative of Part III of the Constitution and for the issuing of a writ of mandamus and Prohibition and for quashing the proceedings and the notices issued by the various authorities - the respondents.
4. in their counter affidavit the respondents submitted that the method and manner of advertisement of drugs by the petitioners and others clearly indicated the necessity of having an Act like the impugned Act and its rigorous enforcement. The allegations in regard to discrimination and impairment of fundamental rights under Art. 19(1)(a), (f) and (g) and any infringement of Arts. 21 and 31 were denied and it was stated :-
"The restriction is about the advertisement to the people in general. I say that the main object and purpose of the Act is to prevent people from self-medicating with regard to various serious diseases. Self-medication in respect of diseases of serious nature mentioned in the Act and the Rules has a deleterious effect on the health of the community and is likely to affect the well-being of the people. Having thus found that some medicines have tendency to induce people to resort to self-medication by reason of elated advertisements, it was thought necessary in the interest of public health that the puffing up of the advertisements is put to a complete check and that the manufacturers and compelled to route their products through recog
