“The tests relating to COVID-19 either in approved Government Laboratories or approved private Laboratories shall be free of cost.”[1]

This interim order was passed by the Supreme Court in wake of Government’s decision to fix the cost of the COVID-19 testing in private labs at Rs. 4500.

So the immediate issues of law that arises are:

1. Whether directing Private Laboratories to conduct COVID-19 tests free of cost amounts to a violation of their fundamental right to carry on any trade or profession as provided in Article 19(1)(g) or the directions are in the nature of restrictions covered under Article 19(6).
2. Whether the Supreme Court is competent to impose restrictions i.e., can it be classified as State under Article 12 of the Constitution.
3. Whether the order passed by Supreme Court amounts to Law, the Law which is required to impose reasonable restrictions.

Issue-I

The fundamental freedom of trade and commerce has been enshrined under Article 19(1)(g) of the Constitution of India. It guarantees all the citizens the right to freedom of trade and commerce. But the guaranteed right is not absolute. The Constitution allows the appropriate government, to put reasonable restrictions on the exercise of this right in the interest of the general public.[2]

As we know restrictions to be imposed by State should be reasonable and in the interest of the general public and the constitution of India also makes provisions for social control under Article 19(6).

The word reasonable is elusive and vague and it implies intelligent care and deliberation that is the choice of course which reason dictates. There cannot be any absolute standard of what constitutes reasonableness. It may obviously depend upon the nature of the right claimed, the object to be achieved, the means employed and limitation imposed the standard of reasonableness laid down in one case may not be applicable in another case with relation to another clause. Article 19(6) of the Constitution allows reasonable restrictions on the exercise of the right in the interest of the general public. Public interest is also vague. The surrounding circumstances are to be taken into serious consideration under which the law comes to be made along with the underlying purpose of the enactment and extent and the urgency of the evil sought to be remedied.

In order to be reasonable, the restriction must have a reasonable relation to the object which the legislation seeks to achieve, and must not go in excess of that object.^[3] The reasonableness of a restriction has to be determined in an objective manner and the standpoint of the interest of the general public and not from the point of view of the person upon whom the restrictions are imposed or upon abstract consideration.^[4] In other words, a law cannot be said to be unreasonable merely because, in a given case, it operate harshly,^[5] even if the persons affected be petty traders.

The judicial philosophy in this regard is that a law which imposes a restriction upon a fundamental right for carrying out the objectives of the Directive Principles of State Policy cannot be challenged as imposing unreasonable restriction because what the State is required to do by the Constitution itself cannot be regarded unreasonable. Standard of reasonableness is relative and not absolute. They are related to time and place.

In deciding on the reasonableness of the restriction, it is not possible to think only in the abstract. Several circumstances must be taken into consideration and in particular:

(a) the purpose of the Act;

(b) the conditions prevailing in the country at the time;

(c) the duration of the restriction;

(d) its extent and nature.

The purpose of the present order seems to be providing testing facilities to a large mass of society for whom it will not be possible to approach private players and pay Rs. 4500. Moreover, with the rising number of cases, it will not be possible for government labs to tackle all the traffic alone. So, without private laboratories, the objective of mass testing can’t be achieved.

Moreover, the conditions prevailing in the country also demands such a step. The restriction can’t be said to take away the freedom of private players completely to carry their trade. With regard to other medical tests, they are free to charge their rates.

Since the order equally applies to both public and private sector laboratories there is no room for it to be arbitrary, mala-fide and violative of equality.

In Katashailiya’s Case[6] Subba Rao, C.J. elaborated that “the reasonableness of restriction depends upon the values of life in society the circumstances obtaining at a particular point of time the degree and urgency of the evil sought to be controlled.” In the words of V.N. Shukla[7] “There is no absolute or fixed standard conformity to which would be tested for determining the reasonableness of the restriction. It, therefore, follows that the determinations of reasonableness depend upon a valuation derived from social facts and conditions.

Issue –II

This case is a very novel case. The cases that we had seen in past were those in which government by law imposed restrictions on Freedom of Trade, Profession and Occupation and its validity and reasonableness were judged by superior courts. But in the present case, the restrictions are imposed by the Supreme Court itself.

It is well settled that restriction may be imposed by any of the authorities who are included in the definition of State in Article 12 and competent to make a law.[8]

Article 12 defines the term “State” as used in different Articles of Part III of the Constitution. It says that unless the context otherwise requires the term “State” includes the following:-

1. The Government and Parliament of India
2. The Government and the Legislature of each of the States
3. All local or other authorities within the territory of India
4. All local and other authorities under the control of the Government of India^[9]

The mention of these authorities in the given provision means that they are capable of violating the fundamental rights of the citizens, and therefore, a writ petition can be filed against them under the Article 32 or 226.

The present-day scenario on whether the Judiciary can be regarded as ‘State’ depends on the judicial and non-judicial functions of the Judiciary.

In the case of Naresh Shridhar Mirajkar v. State of Maharashtra[10], a 9-judge bench of the Supreme Court held that a judicial decision pronounced by a judge of competent jurisdiction in or in relation to a matter brought before him for adjudication cannot affect the fundamental rights of the citizens since what the judicial decision purports to do is to decide the controversy between the parties brought before the court and nothing more.

So it comes out that, administrative side and the quasi-legislative (rule-making side as exercised under Article 145 and 146) of the judiciary are “state” within the meaning of Article 12 of the Constitution of India. However, the judicial side of the judiciary is not “state” within the meaning of Article 12 of the Constitution.

In the case of Ujjam Bai v. State of U.P.[11], where it was held that any judicial or quasi-judicial authority in the exercise of its jurisdiction cannot violate fundamental rights, and hence a writ of certiorari cannot be issued against the High Court. It has been held that if an order passed by the Supreme Court violates the constitutional rights of the citizens and is against the principles of natural justice, it should be corrected by ex dibito justitiae (i.e. as a matter of right), and it is not amenable to be corrected by the writ jurisdiction under Article 32 of the Constitution.[12]

The Constitution bench of the Supreme in Ashok Hurra vs. Rupa Hurra[13], concluded that “superior courts of justice do not fall within the ambit of State or other authorities under Article 12 of the Constitution.”

So in the present case, it is very much evident that the order passed by Supreme Court is in its Judicial Capacity and since it has been passed on the judicial side, the apex court can’t be classified as state and its order is also not amenable to writ jurisdiction. So it is high time that the Supreme Court once again consider the definition of State and clarify its stance.

Issue-III

As laid down in Article 19 itself and in a catena of Judgements that restrictions on Fundamental Right of Freedom of Trade can be imposed by law only and there is nothing in this provision which makes it imperative to impose the restrictions in question only by a law enacted by the legislature. Hence the restrictions in question can also be imposed by any subordinate legislation (Quasi-Legislative in character) so long as such legislation is not violative of any provisions of the Constitution.[14] As it is clear that the order is passed by the Supreme Court while adjudicating the case (In its judicial capacity). At this point it is necessary to look into some provisions:

Article 141 reads as: The law declared by the Supreme Court shall be binding on all courts within the territory of India.

Article 144 reads as:  All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.

It is the combined effect Article 141 and 144 that gives the order and rulings of the Supreme Court real binding force. So if seen from this point of view the Order of Supreme Court amounts to a valid binding law.

Now let us take another view

Article 13(3) reads as: In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law.

In Ashok Kumar Gupta v. State of Uttar Pradesh[15], the Supreme Court held that Article 13 deals with statute law and not with the law declared by the courts, or with the directions or orders made by the Supreme Court under Article 142.

So the open issue here is whether the “Law” that is used to impose restrictions on Fundamental Rights need to be law within the ambit of Article 13(3) or can it be judiciary made law as provided under Article 141. And if by Judiciary made law restrictions can also be imposed on fundamental rights than who will judge the validity and reasonableness of restrictions.

[1] Shanshak Deo Sudhi vs. Union of India & Ors, WRIT PETITION (CIVIL) Diary No(s). 10816/2020

[2] Indian Constitution (First Amendment) Act, 1951.

[3] Kochuni v. State of Madras, (1960) 3 SCR S87 (1914).

[4] Pathumma v. State of Kerala, AIR 1978 SC 771 (Para 14)

[5] Ardnachala v. State of Madras, AIR 1959 SC 306-3.

[6] State of U.P. v. Katashiliya, AIR 1964 AC 416.

[7] Shukla, V.N., The Constitution of India, 1964, p. 49.

[8] State of Karnataka v. Hansa Corporation. AIR 1981 SC 463.

[9] Dr. J. N. Pandey, The Constitutional Law of India, 49th Ed., Central Law Agency, at p.59.

[10] AIR 1967 SC 1.

[11] (1963) 1 SCR. 778.

[12] Dr. J. N. Pandey, The Constitutional Law of India, 49th Ed., Central Law Agency, at p.59.

[13] (2002) 4 SCC 388.

[14] Khoday Distilleries Ltd vs State Of Karnataka, Appeal (Civil) 4708 of 1989.

[15] (1997) 5 SCC 201.

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ABOUT THE AUTHOR

Harshit Sharma

Harshit Sharma has done his B.A.LL.B (Criminal Law Hons.) from National Law University, Jodhpur (Batch of 2019) and currently pursuing LLM I Year in (Criminal Law) from Mahatma Jyoti Rao Phule University, Jaipur. He has also qualified NTA NET (Dec. 2019). Harshit has a keen interest in Criminal and Constitutional Law and he is currently preparing for Judicial Services.