Article 19(6) and the 'General Public' Qualification: Implementing Directive Principles as a Reasonable Restriction
- Umang
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Table of Contents
Introduction: The Architecture of Article 19(1)(g) and Its Limitation Clause
Article 19(1)(g) of the Constitution of India guarantees to every citizen the right to practise any profession, or to carry on any occupation, trade or business. This freedom is broad by design: the Supreme Court has held that the object of using four analogous and overlapping words is to make the guaranteed right as comprehensive as possible, to include all the avenues and modes through which a citizen may earn a livelihood — Sodan Singh v. New Delhi Municipal Committee, (1989) 4 SCC 155. Every activity that enables a citizen to generate economic benefit falls within its sweep — Alagaapuram Mohanraj v. Tamil Nadu Legislative Assembly, (2016) 6 SCC 82.
But like all freedoms under Part III of the Constitution, Article 19(1)(g) is not absolute. Its limitation clause is Article 19(6). That clause permits both existing laws and new legislation that impose reasonable restrictions in the interests of the general public — or that relate to professional qualifications or State trading — to operate without constitutional invalidation.
The phrase 'in the interests of the general public' is the operative standard for most Article 19(6) restrictions, and it is under this standard that the implementation of Directive Principles of State Policy has found its most significant constitutional home. The Supreme Court has held unambiguously that the implementation of Directive Principles contained in Part IV of the Constitution is within the expression of restrictions in the interests of the general public under Article 19(6) — Indian Handicrafts Emporium v. Union of India, (2003) 7 SCC 589. Article 19(1)(g) and Article 19(6) together constitute the constitutional joint between individual commercial freedom and the State's social policy obligations.
The Text of Article 19(6): Three Distinct Limbs
Article 19(6) is structured across three conceptually distinct limbs. Each operates differently and produces different consequences for the right to trade or profession.
Limb One: The General Restriction Power
The opening portion of Article 19(6) provides that nothing in sub-clause (g) shall affect the operation of any existing law 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 that sub-clause.
This is the general restriction power: its operative standard is both that the restriction must be in the interests of the general public and that it must be reasonable. Both conditions must be satisfied simultaneously. In order to constitute a reasonable restriction under Clause (6), both the law and any order made thereunder must satisfy the test of reasonableness — Oudh Sugar Mills v. Union of India, AIR 1970 SC 1070.
Limb Two: Professional and Technical Qualifications — Clause (6)(i)
The second limb provides that, 'in particular', nothing in sub-clause (g) shall affect any existing law insofar as it relates to — or prevent the State from making any law relating to — the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business. By virtue of Article 19(6), a statute can lay down qualifications for practising any profession or carrying on any occupation — Udai Singh Dagar v. Union of India, (2007) 10 SCC 306. Fixation of professional standards is a constitutional requirement — Mukhtiar Chand (Dr.) v. State of Punjab, (1998) 7 SCC 579.
This limb, introduced by the Constitution (First Amendment) Act, 1951, removes the requirement of reasonableness for laws laying down professional qualifications. The fact that a qualification requirement restricts entry into a trade or profession does not, of itself, render the restriction unreasonable — provided it is genuinely related to professional or technical fitness.
Limb Three: State Monopoly — Clause (6)(ii)
The third limb, also introduced by the 1951 Amendment, permits the State — or a corporation owned or controlled by it — to carry on any trade, business, industry or service, whether to the complete or partial exclusion of citizens. The result of the 1951 amendment is that this clause now exempts the State from the condition of reasonableness, by laying down that the carrying on of any trade, business, industry or service by the State would not be questionable on the ground that it infringes Article 19(1)(g), even though by law the State excludes citizens wholly or partially — Narayanappa v. State of Mysore, AIR 1960 SC 1073. The State shall be free either to compete with private traders or to create a monopoly in favour of itself without being called upon to justify its action in court as 'reasonable' — Saghir Ahmed v. State of U.P., 1955 (1) SCR 707 : AIR 1954 SC 728.
The Meaning of 'Interests of the General Public'
A Wide Expression of Definite Connotation
The phrase "in the interests of the general public" is a phrase of definite connotation and a known concept — it is not vague or of very wide amplitude — Orissa Textile and Steel Ltd. v. State of Orissa, (2002) 2 SCC 578. It is, however, a wide expression, and its width is directed at one category of persons: the 'general public' means the rest of the citizens, with reference to the free citizen claiming the right in question — State of U.P. v. Kartar Singh, AIR 1964 SC 1135. It does not refer to any particular group or class as distinguished from people generally. A legislation may be in the interests of the general public even though it affects or causes hardship to particular individuals, owing to the peculiar conditions in which they are placed — Narendra Kumar v. Union of India, AIR 1960 SC 430.
Critically, a restriction in public interest cannot be said to be unreasonable merely because in a given case it operates harshly on a person or some persons — Krishnan Kakkanth v. Government of Kerala, (1997) 9 SCC 495. Government policy in the public interest would override the business interests of an individual — State of Orissa v. Radhey Shyam Meher, (1995) 1 SCC 652.
Specific Instances Recognised by the Courts
The Supreme Court has judicially confirmed numerous categories of restriction as falling within the 'interests of the general public' for the purposes of Article 19(6):
Interests of public health and morals — State of Maharashtra v. Himmatbhai Narbheram Rao, AIR 1970 SC 1157.
Economic stability of the country — State of Assam v. Sristikar Dowerah, AIR 1957 SC 414; Glass Chatons Importers and Users Association v. Union of India, AIR 1961 SC 1514.
Equitable distribution of essential commodities at fair prices — Narendra Kumar v. Union of India, AIR 1960 SC 430.
Maintenance of purity in public life — Sakhawant Ali v. State of Orissa, AIR 1955 SC 166.
Prevention of fraud — Jan Md. v. State of Gujarat, AIR 1966 SC 385.
Protection of workmen — Ramdhandas v. State of Punjab, AIR 1961 SC 1559.
Implementation of the Directive Principles in Part IV — Municipal Corporation v. Jan Md. Usmanbhai, AIR 1986 SC 1205.
The last category — implementation of Directive Principles — is the most constitutionally fertile of all, and it receives the most extensive judicial treatment.
Directive Principles and the 'General Public' Standard: The Core Connection
The Mirzapur Formulation
The most complete statement of the relationship between Article 19(6) and the Directive Principles is found in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534. The Supreme Court held, in terms that are now axiomatic in service of the constitutional text:
"Implementation of Directive Principle is within the expression 'restriction in the interests of the general public' in Article 19(6)."
And further, fixing the conditions:
"A restriction placed on any Fundamental Right, aimed at securing Directive Principles will be held as reasonable and hence intra vires subject to two limitations: first, that it does not run in clear conflict with the Fundamental Right, and secondly, that it has been enacted within the legislative competence of the enacting legislature under Part XI Chapter I of the Constitution."
Mirzapur itself concerned the constitutional validity of a Gujarat law prohibiting the slaughter of cows and calves — justified by reference to the Directive in Article 48 (organisation of agriculture and animal husbandry on modern and scientific lines). The Supreme Court upheld the restriction on the trade in animal slaughter as a reasonable restriction under Article 19(6), taking Article 48 as a directly relevant justification within the 'interests of the general public' standard.
In judging the reasonableness of the restriction imposed by Article 19(6), the Court has to bear in mind Directive Principles of State Policy — Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461. Faced with the question of testing the constitutional validity of any statutory provision, the directive principles of State policy and fundamental duties enshrined in Article 51A of the Constitution play a significant role — Mirzapur, supra.
Indian Handicrafts Emporium: Directives Explicitly Within Article 19(6)
Indian Handicrafts Emporium v. Union of India, (2003) 7 SCC 589, is the most explicit judicial statement of the connection. The Supreme Court held that the implementation of the Directive Principles contained in Part IV of the Constitution is within the expression of restrictions in the interests of the general public under Article 19(6). This is not a peripheral observation — it is a statement of constitutional principle. The Directives, though themselves non-justiciable, enter the constitutional arena of Article 19(6) through the 'general public' gateway.
This connection has profound practical consequences. A law whose purpose is the implementation of a specific Directive comes to Article 19(6) equipped with a constitutional mandate — it is not merely a policy choice but a constitutional obligation being discharged. This shifts the weight of the constitutional scales in favour of the restriction.
The Presumption of Reasonableness
The Supreme Court has also established that where a restriction has the effect of promoting or effectuating a Directive Principle, it can ordinarily be presumed to be a reasonable restriction in the public interest — Workmen v. Meenakshi Mills Ltd., (1992) 3 SCC 336. This presumption is neither irrebuttable nor a licence for the State to claim Directive compliance without scrutiny. But it reverses the default scepticism with which courts approach restrictions on fundamental rights. In the ordinary case, the onus to justify the restriction lies on the State. Where the restriction implements a Directive, that justification is presumptively in place — the challenger must then discharge the burden of demonstrating that the restriction nonetheless fails the reasonableness test.
Furthermore, restrictions imposed for the purpose of securing the objectives enjoined by the Directives are to be regarded as 'reasonable' restrictions within the meaning of Clauses (2) to (6) of Article 19 — because the Directive Principles embody the ideal of socio-economic justice as assured in the Preamble — State of Bombay v. Balsara, 1951 SCR 628 : AIR 1951 SC 318; Union of India v. Hindustan Development Corporation, AIR 1994. Even though the implementation of a Directive Principle may cause hardship to a few individuals, it should be upheld in the larger interests of the community — Sonia Bhatia v. State of U.P., AIR 1981.
The Two Limitations Formula: When Directive Principles Do Not Automatically Justify
The Mirzapur two-limitations formula is the essential qualification on the Directive-as-justification principle. The presumption of reasonableness for Directive-implementing restrictions is not absolute. Two conditions must be satisfied:
First — the restriction must not run in clear conflict with the Fundamental Right. The Directive can shade, qualify, and justify a restriction on the right to trade; it cannot extinguish the right altogether or produce a restriction so disproportionate to the Directive's purpose that it crosses the line from reasonable restriction into rights-abridgement. The right to carry on trade is a natural right of every citizen as a member of a civilised society, anterior to and independent of any legislation — Saghir Ahmed v. State of U.P., supra. Where a trade is not inherently dangerous or pernicious, a blanket prohibition cannot be justified merely by pointing to a Directive — the intensity of restriction must be commensurate with the Directive's objective.
Second — the restriction must have been enacted within the legislative competence of the legislature under Part XI Chapter I of the Constitution. The Directive Principles do not confer legislative competence — they merely guide its exercise. A State cannot legislate on a Union List subject merely because doing so would implement a Directive, nor can the Union encroach on a State List subject on the same basis. The distribution of legislative powers in the Seventh Schedule governs competence; the Directives do not expand it.
Specific Directives That Have Sustained Article 19(6) Restrictions
Article 47 and the Liquor Prohibition Cases
Article 47 directs the State to endeavour to bring about prohibition of the consumption of intoxicating drinks and drugs injurious to health, except for medicinal purposes. This Directive has been the most potent single justification for restrictions on the liquor trade under Article 19(6).
The law on trade in potable liquor is now comprehensively settled — Khoday Sugar Works Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574; Kerala Bar Hotels Assn. v. State of Kerala, (2015) 16 SCC 421:
Potable liquor as a beverage is res extra commercium — inherently harmful. There is therefore no fundamental right to carry on trade in liquor; the trade can be completely prohibited.
Article 47's direction to prohibit consumption of intoxicating drinks provides constitutional sanction for complete prohibition, both because liquor is inherently a dangerous article of consumption and because of the Directive itself.
For the same reason, the State can impose restrictions on trade in potable liquor that are more stringent in nature than those imposed on trade in legitimate articles res commercium.
The State can create a monopoly in itself or in an agency for the manufacture, possession, sale, and distribution of liquor — under Article 19(6) or otherwise — and sell licences to citizens for this purpose.
The State cannot, however, prohibit trade in medicinal and toilet preparations containing alcohol, nor in industrial alcohol used legitimately for industrial purposes — though restrictions short of prohibition may be imposed on both.
In view of the absolute prohibition on consumption of liquor in Article 47, there can be no fundamental right to manufacture and sell intoxicating liquor — Nashirwar v. State of M.P., AIR 1975. The State carries on trade in liquor to restrict and regulate production, supply and consumption — which is itself an aspect of reasonable restriction in the interests of the general public — State of Maharashtra v. Nagpur Distillers, (2006) 5 SCC 112.
Article 39(b): Equitable Distribution and Nationalisation
Article 39(b) directs the State to secure that the ownership and control of the material resources of the community are distributed as best to subserve the common good. This Directive has sustained sweeping restrictions on private trade through nationalisation and State monopoly.
Where Parliament enacts a law taking over the management of textile mills pending nationalisation, on a genuine apprehension that there might be large-scale frittering away of assets grossly detrimental to the public interest, it is not open for the Court to examine whether other remedies could have been taken — Union of India v. Elphinstone Spinning and Weaving Co. Ltd., (2001) 4 SCC 139. The wisdom of Parliament in taking over management in the larger public interest is a policy decision into which courts do not ordinarily inquire.
The nationalisation of bus routes, with the exclusion of private operators, has been upheld as a reasonable restriction under Article 19(6) — Gajraj Singh v. State of U.P., (2001) 5 SCC 762. Coal India Ltd. and its subsidiaries enjoy monopoly of the production, distribution, and sale of coal under Nationalisation Acts and constitute monopolies within the provisions of Article 19(6)(ii) — Ashoka Smokeless Coal India (P) Ltd. v. Union of India, (2007) 2 SCC 640.
Article 43: Minimum Wages and Labour Standards
Article 43 directs the State to secure a living wage, conditions of work ensuring a decent standard of life, and full enjoyment of leisure and social and cultural opportunities for all workers. Restrictions imposed by the Minimum Wages Act, 1948, have been upheld as reasonable restrictions in the interests of the general public, with Article 43 being specifically relied upon to sustain their reasonableness — Bijoy Cotton Mills v. State of Ajmer, AIR 1955 SC 33. The right to carry on trade is subject to the directives contained in Part IV, Part III and the Preamble of the Constitution — L.I.C. of India v. Consumer Education and Research Centre, (1995) 5 SCC 482.
Article 38: Economic Stability and Import Controls
Article 38 requires the State to strive to promote the welfare of the people by securing and protecting as effectively as possible a social order in which justice — social, economic and political — shall inform all the institutions of national life. Restrictions imposed by the Imports and Exports (Control) Act, 1947, under the imperative necessity to control export and import trade for the economic stability of the country, have been upheld as reasonable restrictions in the interests of the general public — Glass Chatons Importers and Users Association v. Union of India, AIR 1961 SC 1514.
Even where a restriction involves the refusal of licences to traders other than an agency created or recognised by the State, it has been upheld where vital interests of the community — such as the distribution of essential commodities affected by black-marketing, profiteering, or hoarding — are concerned — Prabhant Transport Co-operative Society Ltd. v. R.T.A., AIR 1960 SC 801.
State Monopoly Under Article 19(6)(ii): When Citizens Can Be Excluded from Trade
The 1951 Amendment and Its Purpose
The addition of clause (6)(ii) by the Constitution (First Amendment) Act, 1951, was directed specifically at enabling the State to enter trade and industry — even to the complete exclusion of private citizens — without having to justify such exclusion as 'reasonable'. The political context was the drive toward a planned, socialist economy in which State enterprises would play a commanding role.
The State may enter into trade or industry causing a partial or complete elimination of private traders:
for reasons of administrative policy — for example, the manufacture of salt or alcohol;
for mitigating the evils arising from the competitive system — for example, better control of prices or quality;
for the administration of public utility services; or
simply for the making of profit just as a private trader would do — for example, carrying on the business of motor transport — Ramchandra Palai v. State of Orissa, 1956 SCR 28 : AIR 1956 SC 298.
There is no infringement of Article 19(1)(g) where the State enters a trade merely as a competitor — Ram Jawaya Kapur v. State of Punjab, 1955 (2) SCR 225 : AIR 1955 SC 549.
No Requirement of Reasonableness for State Trading
The key consequence of clause (6)(ii) is that the condition of reasonableness does not apply to State trading. The State shall be free to compete with private traders or to create a monopoly in favour of itself without being called upon to justify its action in court as reasonable — Saghir Ahmed, supra. A challenge to State monopoly on the ground of contravention of Article 14 or Article 31(1) is also of no avail, even though citizens are totally excluded — Satyanarayanamurthy v. A.P.S.R.T.C., (1961) 1 SCR 643 : AIR 1961 SC 82. There are no limitations upon this power of the State to create a monopoly in its favour — Kondala Rao v. A.P.S.R.T.C., AIR 1961 SC 82.
The 'Essentially Related' Requirement
While clause (6)(ii) is broad, its protection extends only to laws and provisions essentially related to the creation or carrying on of State monopoly or State trade. In a law creating a State monopoly, only those provisions which are basically and essentially necessary for creating the monopoly will be saved by the latter part of Clause (6). Provisions which are subsidiary, incidental, or merely helpful to the operation of the monopoly do not fall under clause (6)(ii) and their validity must be judged under the first part of Clause (6) — Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047.
Equally, if a law not only violates Article 19(1)(g) but also affects, not indirectly but directly, any other fundamental right, the protection of Clause (6) will not be available, and the law will have to be sustained by reference to the requirements of the corresponding clauses in Article 19 for those other rights.
The Benefit Must Flow to the State, Not to Private Parties
The action of the Government under clause (6)(ii), if conceived and executed in the interests of the general public, is not open to judicial scrutiny — but it is not open to the Government to use State monopoly as a cloak for conferring private benefit upon a limited class of persons. The entire benefit arising from a State monopoly must go to the State; the Government cannot create a monopoly in favour of third parties from its own monopoly position — Association of Registration Plates v. Union of India, (2004) 5 SCC 364.
The Doctrine of Res Extra Commercium: Trades Outside the Right
Before any question of restriction under Article 19(6) arises, the Court must determine whether the trade in question is res commercium — a subject of lawful commerce at all. The right to practise any profession or to carry on any occupation, trade or business does not extend to practising a profession or carrying on an occupation, trade or business which is inherently vicious and pernicious, condemned by all civilised societies — Khoday Sugar Works Distilleries Ltd., supra. It does not entitle citizens to carry on trade in activities which are immoral and criminal, or in articles obnoxious and injurious to health, safety and welfare of the general public — articles that are res extra commercium (outside commerce).
Examples of res extra commercium include: betting and gambling — Chamarbaughwala R.M.D. v. Union of India, 1957 SCR 930 : AIR 1957 SC 628; dealing in intoxicants — Khoday v. State of Karnataka, (1995) 1 SCC 574; trading in dangerous goods such as explosives — Har Shankar v. Dy. Excise Commissioner, AIR 1975 SC 1121; trafficking in women — Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220; and trade dangerous to ecology — Pratap Pharma (Pvt.) Ltd. v. Union of India, (1997) 5 SCC 87.
Where a trade is res extra commercium, there is no Article 19(1)(g) right to protect, and the question of restriction under Article 19(6) does not even arise. The Directive in Article 47 providing the social justification for prohibition of the liquor trade works in tandem with the res extra commercium classification of potable liquor to place the entire regulatory regime outside the ordinary trade right framework.
Can Prohibition Constitute a Reasonable Restriction Under Article 19(6)?
One of the most litigated questions under Article 19(6) is whether a total prohibition — as opposed to regulation — can constitute a reasonable restriction. The answer depends on the nature of the trade and the public interest concerned.
Three propositions are settled: (i) 'restriction' includes 'prohibition', and to determine whether total prohibition would be reasonable, the Court must balance the direct impact on the fundamental right against the greater public or social interest — R.C. Cooper v. Union of India, AIR 1970 SC 564; (ii) the standard for judging reasonableness of restriction or restriction amounting to prohibition remains the same, except that a total prohibition must additionally satisfy the test that a lesser alternative would be inadequate; and (iii) whether a restriction in effect amounts to total prohibition is a question of fact to be determined in light of the facts and circumstances of each case — Mirzapur, supra.
Where a business or trade is inherently dangerous, total prohibition thereof would be reasonable — Har Shankar, supra. The same principle applies to trading in essential commodities affected by black marketing and profiteering — Narendra Kumar v. Union of India, AIR 1960 SC 430. However, outside these exceptional categories, a total prohibition of the right to carry on a business would be regarded as an unreasonable restriction, and greater the restriction, the more the need for strict scrutiny by the Courts — Narendra Kumar, supra.
For this reason, the prohibition of trade in non-vegetarian food items in localities with a cultural and religious background requiring such protection — such as Rishikesh or Haridwar — has been viewed from the perspective of those prevailing cultural and religious conditions and upheld — Om Prakash v. State of U.P., (2004) 3 SCC 402. The reasonableness of a complete restriction imposed on trade has to be viewed from the cultural and religious background of the community affected — a highly contextual inquiry.
Balancing Article 19(6) and Article 19(1)(g): Social Control and Individual Freedom
Article 19(1)(g) and Article 19(6) together are intended to strike a balance between individual freedom and social control — J.K. Industries Ltd. v. Chief Inspector of Factories and Boilers, (1996) 6 SCC 665. This is the constitutional deal: the right to trade is guaranteed, but it must be exercised subject to the community's legitimate interest in social welfare, public health, economic equity, and the implementation of constitutional social policy.
The test of reasonableness is not wholly subjective — its contours are fairly indicated by the Constitution itself. The lofty ideals of social and economic justice, the advancement of the nation as a whole, and the philosophy of distributive justice — economic, social and political — cannot be given short shrift in the name of undue stress on fundamental rights and individual liberty — Dharam Dutt v. Union of India, (2004) 1 SCC 712. The right to carry on trade by public authorities or private persons is subject to the directives contained in Part IV, Part III and the Preamble of the Constitution — L.I.C. of India, supra.
The balance is dynamic and context-specific. A restriction reasonable in one social and economic climate may become unreasonable as conditions change — and equally, a restriction that was once disproportionate may become necessary in the light of new facts. In order to judge the reasonableness of restrictions, no abstract or general pattern or fixed principle can be laid down so as to be of universal application — the assessment 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 surrounding circumstances — M.R.F. Ltd. v. Inspector Kerala Government, (1998) 8 SCC 297.
Conclusion: Article 19(6) as the Constitutional Joint Between Commerce and Social Policy
Article 19(6) is one of the Constitution's most important enabling clauses. It is the legal mechanism through which the State translates its social welfare obligations — expressed in the non-justiciable Directive Principles of Part IV — into enforceable regulatory regimes without infringing the fundamental right to trade and profession in Article 19(1)(g). By treating the implementation of Directive Principles as falling squarely within the 'interests of the general public', the Supreme Court has given the Directives indirect but real operative force in the domain of commercial regulation.
The three-limbed structure of Article 19(6) — general restriction, professional qualifications, and State monopoly — provides the State with a graduated set of instruments, ranging from licensing and qualification requirements through price controls and trade regulation to complete nationalisation and monopoly. Each is calibrated to the nature of the public interest at stake.
The constitutional balance is maintained through the reasonableness requirement (for general restrictions), the 'essentially related' test (for State monopoly provisions), the res extra commercium doctrine (for inherently pernicious trades), and the two-limitations formula (ensuring Directives justify restrictions without running into clear conflict with the right they limit).
For the practitioner, Article 19(6) is therefore both a shield and a framework: a shield for the State when it acts in furtherance of the constitutional mandate of social justice, and a framework of discipline ensuring that the exercise of that mandate remains within constitutional bounds.
Frequently Asked Questions
Q: What is the basic structure of Article 19(6)?
Article 19(6) has three limbs. The first permits reasonable restrictions on Article 19(1)(g) in the interests of the general public. The second — Clause (6)(i) — permits laws laying down professional or technical qualifications without requiring those to be separately justified as reasonable. The third — Clause (6)(ii), added by the First Amendment Act, 1951 — permits the State or State-owned corporations to carry on trade to the complete or partial exclusion of citizens, without any requirement of reasonableness.
Q: Is implementing a Directive Principle sufficient to justify a restriction under Article 19(6)?
Implementing a Directive Principle is within the expression 'restriction in the interests of the general public' under Article 19(6) — Indian Handicrafts Emporium v. Union of India, (2003) 7 SCC 589. A restriction implementing a Directive is presumed to be reasonable — Workmen v. Meenakshi Mills Ltd., (1992) 3 SCC 336. However, the restriction must still satisfy two conditions: it must not run in clear conflict with the fundamental right, and it must have been enacted within the legislative competence of the enacting legislature — Mirzapur, (2005) 8 SCC 534.
Q: What is res extra commercium and how does it affect Article 19(6) analysis?
Res extra commercium refers to trades or articles that are outside the domain of lawful commerce — inherently vicious, pernicious, dangerous, or condemned by all civilised societies. Where a trade is res extra commercium (such as dealing in potable liquor as a beverage, gambling, or trafficking in dangerous substances), there is no Article 19(1)(g) right in the first place, and the Article 19(6) justification framework is not even required. The question of reasonable restriction does not arise.
Q: Can the State create a complete monopoly excluding private citizens from a trade?
Yes, under Article 19(6)(ii) inserted by the First Amendment, 1951. The State or a State-owned corporation may carry on any trade, business, industry or service to the complete or partial exclusion of citizens without having to justify this as 'reasonable'. There are no limitations upon the power of the State to create a monopoly in its favour — Kondala Rao v. A.P.S.R.T.C., AIR 1961 SC 82. The protection applies only to provisions essentially related to the State trading activity; subsidiary or incidental provisions must still satisfy the general reasonableness test under the first part of Clause (6).
Q: Can a total prohibition on a trade qualify as a 'reasonable restriction' under Article 19(6)?
Yes, in appropriate cases. The Supreme Court has held that 'restriction' includes 'prohibition', but a total prohibition must additionally satisfy the test that a lesser alternative would be inadequate — Mirzapur, supra. Where a trade is inherently dangerous to public health or ecology, or is res extra commercium, total prohibition is constitutionally permissible. Outside exceptional categories, however, total prohibition would ordinarily be treated as an unreasonable restriction — greater the restriction, the greater the scrutiny.
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