The Freedom of Profession, Occupation, Trade or Business as specified by Indian Constitution

Article 19 (1) (g) guarantees the freedom to practice any profession, or to carry on any occupation, trade or business. A doubt was expressed in the Constituent Assembly whether these were fundamental rights at all. Perhaps the only other Constitutions which have given them the Status of fundamental rights are those of Ireland and Switzerland.

It seems that the framers of the Indian Constitution had been influenced by the complex social system that prevailed in India, in seeking to guarantee rights such as these. It has been a bane of India’s social life that professions were inherited rather than acquired.

A society dominated by caste, and professions based upon caste or religion, have little to offer for the building up of a community enlivened by social mobility and dynamism. Such a society is often intolerant to persons who change the traditional profession of their ancestors and is eager to maintain a petrified social order.

A constitutional guarantee of the right to take up the profession, calling, trade or business of one’s choice is indeed a significant aid to the building up of a dynamic and democratic society! The framers of the Constitution have done well to incorporate these rights in the chapter on Fundamental Rights and have thereby helped the evolution of a truly democratic society.

The State’s power to restrict the enjoyment of these freedoms is limited to the making of any law imposing reasonable restrictions in the interests of the general public in so far as it relates to (a) the prescribing of professional or technical qualifications necessary for practicing any profession or carrying of any occupation, trade or business or (b) the carrying on by the State or by a corporation owned or controlled by the State, of any trade, business, industry or service.

In Rashid Ahmed vs. The Municipal Board, Kairana, the Supreme Court had occasion to discus: in detail the scope of the rights guaranteed under the clause regarding the freedom of profession Rashid Ahmed was carrying on wholesale business in fruits and vegetables in one of the bazars ol Kairana, a town in Uttar Pradesh.

In April 1949, a set of new by-laws framed by the Kairana municipality came into force. Anticipating the coming into force of the by-laws, the Board had auctioned the contract for wholesale trade in vegetables on the basis of a monopoly right. The contract was given to one Habib Ahmed. Subsequently the Board notified a specified place as the market for wholesale business in vegetables.

There upon the petitioner applied for a license to carry on his business at his shop. The Board rejected the application and the decision was communicated to the petitioner. It said: “According to resolution No. 188, dated 22nd December 1949, the application of Mr. Rashid Ahmed is rejected and he is informed accordingly”.

The resolution contained no reason for the rejection of the application. Soon after, notice was served on the petitioner by the Board asking him to stop selling vegetables at the appointed market or at his own shop where he had been doing business at least for two years prior to the coming into effect of the by-laws.

His business has been wholly stopped and he was being prosecuted for alleged breach of the by-laws. By-law 2 ran thus: “No person shall establish any new market or place for wholesale transaction without obtaining the previous permission of the Board and no person shall sell or expose for sale any vegetable, fruit, etc., at any place other than fixed by the Board for the purpose.”

Speaking on behalf of a unanimous Court, Justice S.R. Das observed:

“The Constitution by Article 19 (1) (g) guarantees to the Indian citizen the right to carry on trade or business subject to such reasonable restrictions as are mentioned in clause 6 of that Article. The position, however, under by-law 2 is that while it provided that no person shall establish a market for wholesale transactions in vegetables except with the permission of the Board, there is no by-law authorising the respondent to issue the licence.

The net result is that the prohibition of this by-law, in the absence of any provision for issuing licenses, becomes absolute. Further, the Board has granted a monopoly to Habib Ahmed and has put it out of its power to grant a license to the petitioner to carry on wholesale business in vegetables either at the fixed market or at any other place within the municipal limits of Kairana.

We are satisfied that in this case the petitioner’s fundamental rights have been infringed and he is entitled to have his grievance redressed. The proper order in such circumstances would be to direct the respondent board not to prohibit the petitioner from carrying on the trade of wholesale dealer and commission agent of vegetables and fruits within the limits of the Municipal Board of Kairana, except in accordance with the by-laws as and when framed in future according to law and further to direct the respondent Municipal board to withdraw the pending prosecution of the petitioner and we order accordingly.”

In Chintaman Rao vs. the State of Madhya Pradesh the Supreme Court held invalid the Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural Purpose) Act, 1948, because it totally prohibited the manufacture of bidis during the agricultural season in certain parts of the State.

The Court said that such a prohibition, on the face of it, was of an arbitrary nature and, therefore, could not be said to be a reasonable restriction on the exercise of the right to carry on a profession, trade or business. But in another decision the Court held that the requirement of a permit as required by the law cannot be regarded as an unreasonable restriction on the citizen’s right under the freedom of profession clause.

In Kapur vs the State of Punjab the Court upheld the nationlisation of text-books by the Government of the Punjab. “The action of the Government may be good or bad. It may be criticised and condemned in the Houses of Legislature or outside but this does not amount to an infringement of the fundamental right guaranteed by Article 19 (g).”

As a whole, the tendency of the judiciary with regard to the freedom of profession has been not to block in any way the increasing State activity that is bound to take place in a welfare State but, at the same time, to give the individual maximum protection from high-handed executive actions or discriminatory legislative enactments.

Whenever the action of the State was in the interest of the general public, even if it involved the restriction of the individual’s freedom of action in the economic sphere, the Courts did not seem hesitant to support it.

This was the main reason that impelled them to uphold many legislative enactments of nationalisation of public utilities such as road transport, electricity, etc., even before the First Amendment had made a special provision in support of such State actions and the consequent expansion of the economic and commercial activities of the State.