# HAMDARD DAWAKHANA (WAKF) LAL KUAN, DELHI AND ANOTHER v. UNION OF INDIA AND OTHERS

- **Citation:** [1960] 2 S.C.R. 671
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Bench:** B. P. Sinha, Jafer Imam, J. L. Kapur, K. N. Wanchoo, K. C. Das Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hamdard-dawakhana-wakf-lal-kuan-delhi-and-another-v-union-of-india-and-others-1767
- **Pages:** 30

## Headnote

Advertisement, Control
of-Advertis~ment, when relates to
freedom of speech-Statute prohibiting advertisements of drugs f 01
f'
certain diseases-Constitutionality of-Whether curtails freedom of
speech-Conferment of power on executive to add to diseases falling
within mischief of statute-If amouttis to delegation of legislative
power-Statute empowering executive to seize off ending articles,
without providing safeguards-Whether imposes reasonable restrictions-Constitution of India, Arts. r9(r)(a), I9(I)(g), r9(r)(j) and
I9( 6).
The Drugs and Magic Remedies (Objectionable Advertisements) Act, I954 (2I of r954), ss. 2(a), 3(d), 8 and r4(c).
When an enactment is chall.enged on the ground of violation
of fundamental rights it is necessary to ascertain its true nature
and character, i.e., its subject matter, the area in which it is
intended to operate, its purport and intent. In order to do so it
is legitimate to take into consideration all the factors such as the
history of the legislation, the purpose the~of, the surrounding
circumstances and conditions, the mischief intended to be suppressed, the remedy proposed by the legislature and the true reason
for the remedy. Initially, there is a presumption in favour of
the constitutionality of an enactment.
Bengal Immunity Company Ltd. v. The State of Bihar, [1955]
2 S.C.R. 603, R. M. D. Chamarbaughwala v. The Union of India,
[1957] S.C.R 930, Mahant Moti Das & Others v. S. P. Sahi, A.LR.
1959 S.C. 942, Charanjit Lal Chowdhuri v. The Union of India &
Others, [1950] S.C.R. 869 and The State of Bombay v. F. N. Bulsara,
[1951] S.C.R. 682, referred to.
On examining the history of the legislation, the surrounding
circumstances and the scheme of the Act it was clear that the
object of the Drugs and Magic Remedies (Objectionable Advertisem'ent) Act, 1954, was the prevention of self-medication and
self-treatment by prohibiting instruments which may be nsed to
advocate the same or which tended to spread the evil. Its
object was not merely the stopping of advertisements offending
against morality and decency.
Advertisement is no doubt a form of speech, but its true
character is reflected by the object for the promotion of which it
is employed. It is only when an advertisement is concerned
with the expression or propagation of ideas that it can be said to
relate to freedom of speech. But it cannot be said that the right
I959
December rs.
672
SUPREME COURT REPORTS [1960(2)]
r959
to publish and distribute commercial advertisements advertising
an individual's personal business is a part of the freedom of
Hamda'd
speech guaranteed by the Constitution. The provisions of the
Dawakhana (Wakf) Act which prohibited advertisements commending the efficacy,
Lal Kuan
value and importance in the treatment of particular diseases of
v.
certain drugs and medicines did not fall under Art. 19(1)(a) of the
UiJion °1 India
Constitution.
The scope and object of the Act its true nature
and character was not interference with the right of freedom of
speech but it dealt with trade and business.
Lewis]. Valentine v. F. ]. Chrcstensen, 86 Law. Ed. 1262;
R. M. D. Chamarbaughwala v. The Union of India, [1957] S.C.R.
930, State of Bombay v. R. M. D. Chamarbaughwala, [1957] S.C.R.
874; john W. Rast v. Van Deman 0- Lewis Company, 60 Law.
Ed. 679, Alice Lee Grosjean "./. The American Press Co., So Law.
Ed. 660, Express Newspapers (P) Ltd. v. The Union of India,
[1959] S.C.R. 12 and ]. M. Near v. State of Minnesota, 75 Law.
Ed. 1357, referred to.
The definition of "advertisement" which included labels on
cartons and bottles and instructions inside cartons was not too
wide in view of the object of the Act. lf the definition was not
so broad and inclusive it would defeat the very purpose for which
the Act was brought into existence. The use of the word
"suggest" in s. 3 did not suppmt the contention that the restraint placed by that section was disproportionate. The provisions
of s. 14(c) and r. 6 which allowed the prohibited advert

## Text

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S.C.R.
SUPREME COURT REPORTS
671
HAMDARD DAWAKHANA (WAKF) LAL KUAN,
DELHI AND ANOTHER
v.
UNION OF INDIA AND OTHERS
(B. P. SINHA, C.J., JAFER IMAM, J. L. KAPUR,
.,
K. N. WANCHOO and K. C. DAS GUPTA, JJ.)
Advertisement, Control
of-Advertis~ment, when relates to
freedom of speech-Statute prohibiting advertisements of drugs f 01
f'
certain diseases-Constitutionality of-Whether curtails freedom of
speech-Conferment of power on executive to add to diseases falling
within mischief of statute-If amouttis to delegation of legislative
power-Statute empowering executive to seize off ending articles,
without providing safeguards-Whether imposes reasonable restrictions-Constitution of India, Arts. r9(r)(a), I9(I)(g), r9(r)(j) and
I9( 6).
The Drugs and Magic Remedies (Objectionable Advertisements) Act, I954 (2I of r954), ss. 2(a), 3(d), 8 and r4(c).
When an enactment is chall.enged on the ground of violation
of fundamental rights it is necessary to ascertain its true nature
and character, i.e., its subject matter, the area in which it is
intended to operate, its purport and intent. In order to do so it
is legitimate to take into consideration all the factors such as the
history of the legislation, the purpose the~of, the surrounding
circumstances and conditions, the mischief intended to be suppressed, the remedy proposed by the legislature and the true reason
for the remedy. Initially, there is a presumption in favour of
the constitutionality of an enactment.
Bengal Immunity Company Ltd. v. The State of Bihar, [1955]
2 S.C.R. 603, R. M. D. Chamarbaughwala v. The Union of India,
[1957] S.C.R 930, Mahant Moti Das & Others v. S. P. Sahi, A.LR.
1959 S.C. 942, Charanjit Lal Chowdhuri v. The Union of India &
Others, [1950] S.C.R. 869 and The State of Bombay v. F. N. Bulsara,
[1951] S.C.R. 682, referred to.
On examining the history of the legislation, the surrounding
circumstances and the scheme of the Act it was clear that the
object of the Drugs and Magic Remedies (Objectionable Advertisem'ent) Act, 1954, was the prevention of self-medication and
self-treatment by prohibiting instruments which may be nsed to
advocate the same or which tended to spread the evil. Its
object was not merely the stopping of advertisements offending
against morality and decency.
Advertisement is no doubt a form of speech, but its true
character is reflected by the object for the promotion of which it
is employed. It is only when an advertisement is concerned
with the expression or propagation of ideas that it can be said to
relate to freedom of speech. But it cannot be said that the right
I959
December rs.
672
SUPREME COURT REPORTS [1960(2)]
r959
to publish and distribute commercial advertisements advertising
an individual's personal business is a part of the freedom of
Hamda'd
speech guaranteed by the Constitution. The provisions of the
Dawakhana (Wakf) Act which prohibited advertisements commending the efficacy,
Lal Kuan
value and importance in the treatment of particular diseases of
v.
certain drugs and medicines did not fall under Art. 19(1)(a) of the
UiJion °1 India
Constitution.
The scope and object of the Act its true nature
and character was not interference with the right of freedom of
speech but it dealt with trade and business.
Lewis]. Valentine v. F. ]. Chrcstensen, 86 Law. Ed. 1262;
R. M. D. Chamarbaughwala v. The Union of India, [1957] S.C.R.
930, State of Bombay v. R. M. D. Chamarbaughwala, [1957] S.C.R.
874; john W. Rast v. Van Deman 0- Lewis Company, 60 Law.
Ed. 679, Alice Lee Grosjean "./. The American Press Co., So Law.
Ed. 660, Express Newspapers (P) Ltd. v. The Union of India,
[1959] S.C.R. 12 and ]. M. Near v. State of Minnesota, 75 Law.
Ed. 1357, referred to.
The definition of "advertisement" which included labels on
cartons and bottles and instructions inside cartons was not too
wide in view of the object of the Act. lf the definition was not
so broad and inclusive it would defeat the very purpose for which
the Act was brought into existence. The use of the word
"suggest" in s. 3 did not suppmt the contention that the restraint placed by that section was disproportionate. The provisions
of s. 14(c) and r. 6 which allowed the prohibited advertisements
to be sent confidentially by post to a registered medical practitioner, to a wholesale or retail chemist, to a hospital or a
laboratory only when the words "for the use only of registered
medical practitioners or a hospital or a laboratory" had been
inscribed on the outside of every packet containing the advertisement did not impose excessive restraint. The ·provisions of the
Act were in the interests of the general public and placed
reasonable restrictions on the trade and business of the petitioners
and were saved by Art. 19(6) ..
Chintaman Rao v. The State of Madhya Pradesh, [1950] S.C.R.
759 and Dwarka Das Srinivas of Bombay v. The Shotapur Spinning
0- Weaving Company Limited. [1954] S.C.R. 674, referred to.
The words " or any other disease or condition which may be
specified in the rules made under this Act " in cl. ( d) of s. 3
which empowered the Central Government to add to the diseases
falling within the mischief of s. 3 conferred uncanalised and
uncontrolled power on the executive and were ultra vires.
The
legislature had established no criteria or standards and had not
prescribed any principle on which a particular disease or condition
was to be specified. As a consequence the Schedule to the rules
also become ultra vires. But the striking down of the impugned
words did not affect the validity of the rest of cl. (d) or of the
other clauses of s. 3 as these words were severable.
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SUPREME COURT REPORTS
673
The first part of s. 8 which empowered any person authorised
r959
by the State Government in this behalf to seize and detain any
document, article or thing which such person had reason to
HamdariJ
believe contained any advertisement contravening the provisions Dawakhana (Wakf)
of the Act imposed an unreasonable restriction on the fundamenLal Kuan
ta! rights of the petitioners and was unconstitutional. This
v.
portion of s. 8 went far beyond the purpose for which the Act
Union of India
was enacted and failed to provide proper safeguards in regard
to the exercise of the power of seizure and detention as had been
provided by the legislature in other statutes. If this portion was
excised from the section the remaining portion would be unintelligible and could not be upheld.
By a portion of cl. ( d) of s. 3 and the whole of s. 8 being
declared unconstitutional, the operation of the remaining portion
of the Act remained unimpaired as these were severable.
R. M. D. Chamarbaughwala v. Union of India [1957] S.C.R.
930, referred to.
ORIGIN.AL JURISDICTION: Petition Nos. 81, 62, 63 &
3of1959 .
Petition under Art. 32 of the Constitution of India for
enforcement of ]'undamental rights.
K. M. 11funshi, N. 0. Chatterjee, L. R. Das Gupta,
G. K. Munshi, D. N. MukherjeeandR. Gopalakrishnan,
. for the petitioners.
0. K. Daphtary, Solicitor-General of India, H. N.
Sanyal, Additional Solicitor-General of India, B. R. L.
Iyengar, R. H. Dhebar and T. M. Sen, for respondents
Nos. 1 to 10 (in Petn. No. 81 of 59), 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).
G. N. Dikshit and 0. P. Lal, for respondent No. 11
(in Petn. No. 81 of 59) and No. 2 (in Petn. No. 63 of 59).
R. Gopalakrishnan, for the intervener.
1959. December 18, The Judgment of the court
was delivered by
KAPUR, J.-These petitions under Art. 32 of the
Constitution raise the question of the constitutionality
of the Drug and Magic Remedies (Objectionable
Advertisement) Act (XXI of 1954) hereinafter referred
to as the Act. As the petitions raise a common question. of law they may·conveni.ently be disposed of by
one )Udgment.
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Kapur],
674
SUPREME COURT REPORTS [1960(2)]
1959
The allegation of the petitioners was that various
H
d d
actions had been taken against them by the respondDawak=:n:;Wakf) ents which violated their fundamental rights under
Lal Kuan
Art. 19(l)(a) and 19(l)(f) & (g).
They also challenged
v.
the Act because it contrvened the provisions of Art. 14
Upion of[ndia and Arts. 21 and 31.
Kapu_r ).
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
other 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(l)(a) and
their right to carry on trade a:nd business under
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SUPREME COURT REPORTS
675
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Art. 19(l)(f) & (g).
Objection is also taken under
Arts. 21 and 31. The petitioners therefore prayed for
a declaration that the Act and the Rules made there- Daw:!:::,,a~7vakf)
under were ultra vires and void as violative of Part III
Lal Kuan
of the Constitution and for the issuing of a writ of
v.
Mandamus and Prohibition and for quashing the Union of India
proceedings and the notices issued by the various
authorities-the respondents.
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(l)(a), (f) & (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 selfmedicating 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 are
compelled to route their products through recognised
sources so that the products of these manufacturers
could be put to valid and proper test and consideration by expert agencies.'?
It was also pleaded that the advertisements were of
an objectionable character and taking into consideration the mode and method of advertising conducted
by the petitioners the implementation of the provisions of the impugned Act was justified. Along- with
their counter-affidavit the respondents have placed on
record Ext.-A, which is a copy o{ the literature which
Kapur J.
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676
SUPREME COURT REPORTS [1960(2)]
accompanied one of the various medicines put on sale
by the petitioners and/or was stated on the cartons in
Hamdard
which the medicine was contained. In their affidavit
Dawakhana (Wakj) ·
· · d
th
t•t•
•t
t d th t U
·
d
Lal Kuan
m reiom er
e pe I 10ners re1 era e
a
nam an
•
v.
Ayurvedic systems had been discriminated against;
Union of India that self-medication had no deleterious effect on the
Kapur].
health of the community ; on the contrary it-
" is likely to affect the well-being of the people, in
the context of effective household and domestic
remedies based on local herbs popularly known to
them in rural areas. Self-medication has its permission(?) limits even in America and Canada where
unlicensed itinerant vendors serve the people effectively."
For the petitioners in all the petitions Mr. Munshi
raised four points:
(1) Advertisement is a vehicle by means of which
(
freedom of speech guaranteed under Art. 19(l)(a) is
exercised and the restrictions which are imposed by
the Act are such that they are not covered by cl. (2)
of Art. 19;
(2) That Act, the Rules made thereunder and the
schedule in the rules impose arbitrary and excessive.
restrictions on the rights guaranteed to the petitioners
by Art. 19(1 )(f) & (g);
(3) Section 3 of the Act surrenders unguided and
uncanalised power to the exe.cutive to add to the
diseases enumerated in s. 3;
(4) Power of confiscation under s. 8 of the Act is
violative of the rights under Arts. 21 and 31 of the
Constitution.
In Petitions Nos. 62 and 63 of 1939 which relate to
two branches of Sadhana Ausadhalaya at Poona and
Allahabad respectively, Mr. N. C. Chatterjee, after
giving the peculiar facts of those petitions and the fact
that the peJitioners' Poona branch was raided without a warrant, a number of medicines had been seized,
and a complaint filed against the petitioners in that
petition, submitted that s. 3(b) of the Act was meant
to strike down abnormal sexual activities, that advertisements in that case merely mentioned the names of
the diseases and suggested the drug for the treatment
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S.C.R.
SUPREME COURT REPORTS
677
of those diseases, that the prohibition of such adverI959
tisements was an unreasonable restriction on their
d d
fundamental right; that there was nothing indecent Daw:i.~:n:~Wakf)
in saying that their medicine was a cure for a partiLal Kuan
cular disease and that the Act was an undue interv•
ference with cure and treatment of diseases.
Union of India
We now proceed to consider the vitality of the
arguments raised on behalf of the petitioners. Firstly
it was submitted that the restriction on advertisements was a direct abridgement of the right of free
speech and advertisements could not be brought out
of the guaranteed freedom under Art. 19(l)(a) because
no dividing line could be drawn and freedom of speech
could not be curtailed by making it subject to any
other activity. The learned Solicitor-General on the
otherhand, contended that it was necessary to examine the pith and substance of the impugned Act and
if it was properly considered it could not be said
to have in any way curtailed, abridged or impaired the
rights guaranteed to the petitioners under Art. 19(l)(a).
He also contended that the prohibited advertisements did not fall within the connotation of " freedom of speech". The doctrine of pith and substance,
submitted Mr. Munshi; was created for the purpose
of determining the legislative competence of a legislature to enact a law and he sought to get support
from the following observation of Venkatarama
Aiyar, J., in A. S. Krishna v. State of Madras (1) :-
" ...... and the Privy Council had time and
again to pass on the constitutionality of laws made
by the Dominion_ and Provincial legislatures. It
was in this situation that the Privy Council evolved
the doctrine, that for deciding whether an impugned legislation was intra vires regard must be had
to its pith and substance. "
Though the doctrine of ' pith and substance' was
evolved to determine the constitutio_nality of an
enactment in reference to the legislative competence
of a legislature particularly under a federal constitution with a distributive system of powers it has been
used in other contexts in some cases, e.g., in connection
{l) [1957] S.C.R. 399, 406, 410.
Kapur].
678
SUPREME COURT REPOR1'S [1960 (2)]
z959
with the determination of the constitutionality of
H
d d
statutes restricting the rights to carry on certain
Dawak:;;;,:;wakf)activities and the. consequ~nt infri?gement of Art.
Lal Kuan
19(l)(g) : byMahaJan, C.J., m CooverJee B. Boorucha v.
v.
The Excise Commissioner & The Chief Commissioner of
Union of India Ajmer (')in the case of Excise Regulation I of 1915
Kapur].
regulating the import, export, transport,
manufacture, sale and possession of intoxicating drugs
and liquor and imposing duties thereon; by Das, C.J.,
in State of. Bombay v. R. M. D. Chamarbughwala (') in
connection with a statute which was held not to be
interference with trade, commerce or intercourse as
such but to save it from anti-social activities.
It is unnecessary to decide in the present case
whether in its scope it extends to the determination
of the constitutionality of an enactment with
reference to the various sub-clauses of cl. (l)of Art. 19.
A more appropriate approach to the question is, in our
opinion, contained in the dictum of Mahajan, J. (as
he then was) in M/s. Dwarka Prasad Laxmi Narain v.
The State of Uttar Pradesh (3). There he held that" in
order to decide whether a particular legislative
measure contravenes any of the provisions of Part
III of the Constitution it is necessary to examine
with some strictness the substance of the legislation
in order to decide what the legislature has really
done. Of course the legislature cannot bypass such
constitutional prohibition by employing indirect
methods and therefore the Court has to look behind
the form and appearance to discover the true character and nature of the legislation. "
/
Therefore, ·when the constitutionality of an enactment is challenged on the ground of violation of any
of the articles in Part III of the Constitution, the
ascertainment of its true nature and character
becomes necessary, i.e., its subject matter, the area in
which it is intended to operate, its purport and intent
have to be determined. In order to do so it is legitimate to take into consideration all the factors such
as history of the legislation, the purpose thereof, the
(1) [1954] s.c.R. Bn 877.
(2) [1957] S.C.R. 874.
(3) [•9541 s.c.R. 674, 682.
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S.C.R.
SUPREME COURT REPORTS
679
surrounding circumstances and
conditions,
the
z959
mischief which it intended to suppress, the remedy
H
a a
for the disease which the legislature resolved to cure Dawak:::;,aa~Wakf)
f!,nd the true reason for the remedy; Bengal Immunity
Lal Kuan
Company Ltd. v. The State of Bihar (1 ); R._._M.D. Ohamarv.
baughwala v. The Union of India (2); Mahant Moti Das
Union °! India
& Ors. v. S. P. Saki (3).
Another principle which has to borne in mind in
examining the constitutionality of a statute is that
it must be assumed that the legislature understands
and appreciates the need of the people and the laws
it enacts are directed to problems which are made
manifest by experience and that the elected representatives assembled in a legislature enact laws which
they consider to be reasonable for the purpose for
which they are enacted. Presumption is, therefore,
in favour of the constitutionality of an enactment.
Oharanjit Lal Ohowdhuri v. The Union of India &
Ors.(4); The State of Bo;nbay v. F.N. Bulsara (5); Mahant
Moti Das v. S. P. Saki (3).
What then was the history behind the impugned
legislation and what was the material before the
Parliament upon which it set to enact the impugned
Act.
(1) In 1927 a resolution was adopted by then·
Council of State recommending to the Central and
Provincial Governments to take immediate measures
to control the indiscriminate use of medical drugs
and for standardisation of the preparation and for
the sale of such drugs. In August 1930, in response
to the public opinion on the subject and in pursuance
of that resolution the Government of India appointed
the Drugs Enquiry Committee with Sir R. N. Chopra
as its Chairman to enquire into the extent of the
quality and strength of drugs imported, manufactured
or sold in India and to recommend steps for controlling such imports, manufacture and sale in the interest
Kapur].
of the public. This Committee made a report pointing
out the necessity of exercising control over import,
'
(1) [1955] 2 S.C.R. 603, 632 & 633.
(3) A.LR. (1959) S.C. 942, 948.
(2) (1957] S.C.R. 930, 936.
(4) [1950] S.C.R. 869,
(~) [I9$rJ S.C,R. 6821 708,
680
SUPREME COURT REPORTS [1960 (2)]
z959
manufacture and sale of patent and propri~tary medicines in the interest of the safety of the public and
D
~:mda;~v k') public health. The report pointed out in paragraph
aw~at':uan a • 256-259 how in other countries control was exercised
v.
and restrictive laws to achieve that end had been
Union of India enacted. In the Appendix to this Report was given
a list of a number of samples of advertisements of
Kapur J.
patent and proprietary medicines dealing with cures
of all kinds of diseases:
(2) As a r!)sult of the Chopra Committee Report
the Drugs Act was passed in 1940.
(3) In 1948 The Pharmacy -.Act was passed to
regulate the provisions of pharmacy. As a result of
these two enactments the State Governments were
given the responsibility of controlling the manufacture
of drugs and pharmaceuticals and their sales through
qualified personnel and the Central Government was
given the control on quality of drugs and pharmaceuticals imported into the counpry.
(4) The Chopra Committee Report dealt with the
popularity of the patent and proprietary medicines in
the following words :
"The pride of place must be accorded to ingenious
propaganda clever and attractive dissemination of
their supposed virtues and wide and alluring
advertisements. The credulity and gullibility of the
masses, especially when 'certain cures' are assured
in utterly hopeless cases, can well be imagined.
Perusal of the advertisements of 'cures' produces a
great effect on patients who have tried treatment
by medical men without success.
Such patients
resort to any and every drug that comes in their
way. In an infinitesimal small number of cases
spontaneous cures are also effected. Widest publicity
is given to these and the preparations become in vested with miraculous virtues. The reassurances of
cure, the force of argument. advanced to guarantee
it and the certificates of persons said to have been
cured which are all set out in advertisements make
a deep impression, especially on those with weak
nerves. The love of mystery and secrecy inherent
in human nature, the natural disinclination and
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681
shyness to disclose details of one's illness especially
t959
those involving moral turpitude, the peculiar
H
a a
temperament of the people who, high and low, rich Dawak:;,aa~Wakf
and poor, demand 'something in a bottle' for the
Lal Kuan
treatment of every ailment and poverty ·of the
v.
people who cannot afford to pay the doctor's bills
Union of India
or the high prices current for dispensed medicines,
ha.ve all been enlarged upon as tending to self.
diagnosis and self-medication by patent and proprietary medicines."
(5) Evidence was led before the Chopra Committee
deprecating the increasing sale of proprietary medicines particularly those with secret formulae as such
drugs were positively harmful and were a serious and
increasing menace. There were advertisements and
pamphlets issued in connection with these medicines
which showed fraudulent practices and extravagant
claims for these medicines.
(6) The Chopra Committee Report had also made
a recommendation for a strict measure of control over
proprietary medicines .
(7) The Bhatia Committee was set up in pursuance
to a resolution No. CI-1(12)/52 dated February 14,
1953, and between March 1953, and end of that year it
examined a large number of witnesses in different
towns of India some of whom represented chemists
and druggists, some were leading medical practi~ioners
and some were State Ministers for Health. The
Bhatia Committee issued a Questionnaire to various
organisations and witnesses. It contained questions
in regard to advertisement of drugs and therefore one
of the objects of this Committee ·which was inaugurated by the Health Minister on March 12, 1953, was
amongst other things to look into the control to be
exercised over objectionable and unethical advertisements.
(8) There were a large number of objectionable
advertisements in the Press in regard to patent medicines which were after the Act came into force pointed
out by the Press Commission Report but it cannot be
said that this fact was unknown to Parliament as this
Committee also examined a number of witnesses.
Kapur].
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SUPREME COURT REPORTS [1960 (2)]
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(9) The Indian Medical Association had suggested.
H
d d
to this Press Committee which was presided over by
Dawak::::.:;Wakf) the late Mr. Justice Rajadhyaksha the barring of
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advertisements of medicines which claim to cure or
v. •
alleviate any of the following diseases :
Union of India
Cancer, Bright's disease, Cataract, Diabetes,
Kapur].
Epilepsy, Glaucoma, Locomotor ataxia, Paralysis,
Tuberculosis.
(10) In the United Kingdom, advertisements of
drugs or treatment for these diseases are governed by
the Cancer Act of 1939 and the Pharmacy and Medi·
cines Act of 1941. (Advertisement relating to the
treatment of venereal diseases are governed by the
Venereal Diseases Act of 1917).
(ll) Wyndham E.B. Lloyd in his book 'Hundred
years of medicine' published in 1936 wrote about the
outstanding evils which arise from the use of secret
remedies and nostrums. It also drew attention to the
dangers of advertisements in regard to them and what
the British Medical Association had said about them.
(12) The British Medical Association had in a book
entitled 'Secret Remedies vVhat they cost and contain'
exposed ruthlessly the harmful effects of such remedies.
The council on Pharmacy and Chemistry of American
Medical Association had also given its opinion on the
harmful effects of indiscriminate self-medication by
the public and the grave danger which ensued from·
such misdirected and inadequate treatment, and the
failure to recognise seriousness of the disease only
when it was too late.
It is not necessary to refer to the recommendations
of the Bhatia Committee or the Press Enquiry Committee because they were published in June and July
1954 respectively.
In England as far back as 1889, an Act called the
Indecent Advertisements Act (52 and 53 Viet. Ch. 18)
was passed to suppress indecent advertisements in
which advertisements relating to syphilis, gonorrhoea,
nervous debility or other complaints or infirmity arising from intercourse was prohibited. In 1917 the
Venereal Diseases Act (7 and 8 Geo. V Ch. 21) was
passed in England. This placed restrictions on
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683
I959
advertisements relating to treatment for venereal
diseases. In 1941, The Pharmacy and Medicine Act,
1941 (4 and 5 Geo. VI Ch. 42) was passed which corres- Daw:J:;,:a~~akf)
ponds in material particulars to the impugned Act. It
Lal Kuan
cannot be said that there was no material before Parliav.
ment on the basis of which it proceeded to enact the Union of India
impugned legislation. This material shows the history
. of the legislation, the ascertained evil intended to be
cured and the circumstances in which the enactment
was passed. In Shri Ram Krishna Dalmia v. Shri
Justice S. R. Tendolkar (1), Das, C.J., observed:-
"that in order to sustain the presumption of constitutionality the court may take into consideration
matters of common knowledge, the history of the
times and may assume every state of facts which
can be conceived existing at the time of legislation;"
Thus it is open to the court for the purpose of determining the constitutionality of the Act to take all these
facts into consideration and in the present case we find
that there was the evil of self-medication, which both
in this country and in other countries, the medical
profession and those, who were conversant with its
dangers, had brought to the notice of the people at
large and the Government in particular. They had
also warned against the dangers of self-medication and ·
of the consequences of unethical advertisement relating to proprietary medicines particularising those
diseases which were more likely to be affected by the
evil. There is reason, therefore, for us to assume that
the state of facts existed at the time of the legislation
which necessitated the Act. These facts we have
already set out and it is not necessary to reiterate
them.
With this background in vie'w we proceed to examine
~
the provisions of the Act and ascertain the predominant purpose, true intent, scope and the object of the
Act. The preamble shows that the object of the Act
was to control the advertisement of drugs in certain
cases, i.e., diseases and to prohibit advertisements
relating to remedies pretending to have magic qualities
and provide for other matters connected therewith.
(r) (1959] S.C.R. 279, 297,
Kapur J .
684
SUPREME COURT REPORTS [1960 (2)]
'959
The title of the Act also shows that it is directed
H
d d
against objectionable advertisements. The definition
Dawak~::;wakf)Section (s. 2) in cl. (a) defines advertisements and in
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cl. (b) drugs which include (i) medicines for use of
v.
human beings and animals, (ii) substances for use of
Union °! India diagnosis, treatment or prevention of diseases in
J(a.pur ].
human beings and animals, (iii) articles. other than
food which affect the organic functions of the body of .
human beings or animals and (iv) articles intended for
use as a component of any medicine etc., cl. (c) defines
magic remedies to include a talisman, mantra, ka vacha
and other charms and (d) relates to the publication of
any aavertisement and (e) what a venereal disease is.
·Section 3 prohibits advertisement of drugs for treatment of diseases and disorders. Clause (a) of s. 3 deals
with procurement of miscarriage in women ror prevention of conception; cl. (b) with maintenance or improvement of capacity of human beings for sexual pleasure;
cl. (c) with diagnosis and cure of venereal and other
diseases.
Section 4 prohibits misleading advertisements relating to drugs. Section 5 similarly prohibits
a,dvertiscments of magic remedies efficacious for purposes specified in s. 3. Section 6 prohibits the import
into and export from India of certain advertisement .
. Section 14 is a saving clause which excludes registered
practitioners, treatises or books, advertisements sent
confidentially to medical practitioners, wholesale or
retail chemists for distribution among registered
medical practitioners or to hospitals or laboratories. It
also excludes advertisements printed or published by
Government or with the previous sanction of the
Government. Section 15 gives the Government the
power to grant exemptions from the application of
ss. 3, 4, 5 and 6 in certain cases.
As already stated when an enactment is impugned
on the ground that it is ultra vires and unconstitutional
what has to be ascertained is the true character of the
legislation and. for that purpose regard must be had to
the enactment as a whole, to its objects, purpose and
true intention and to the scope and effect of its provisions or what they are directed against and what they
aim at (A. S. Krishna v. State of Madras (1)). Thus
(1) [1957J s.c.R. 399, 406, 410.
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SUPREME COURT REPORTS
685
examined it cannot be said that the object of the Act
r959
was mer.ely to put a curb on advertisements which
offend against decency or morality but the object truly
Hamdard
d
1
d
t
d . t
t
lf
d' t'
Dau:akhana (Wakf)
an proper y un ers oo
IS o preven se -me ica ).On
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or treatment by prohibiting instruments which may be
v.
used to advocate the same or which tend to spread the Union of India
evil. No doubt ins. 3 diseases are expressly mentioned
which have relation to sex and disorders peculiar to
Kapur J.
women but taken as a whole it cannot be said that the
object of the Act was to deal only with matters which
relate to indecency or immorality. The name and the
preamble are indicative of the purpose being the control of all advertisements relating to drugs and the use
of the word animals in cl. (b) of the definition section
negatives the object being merely to curb the emphasis
on sex and indecency. Section 4 further suggests that
the legislature was trying to stop misleading advertisements relating to drugs. Section 5 also tends to
support the object being prohibition of advertisements
suggesting remedies for all kinds of diseases. Section 6
also points in the same direction, i.e., to stop advertisements as to drugs. Sections 14 and 15 are a clearer
indication that there should be no advertisements for
drugs for certain diseases in order that the general
public may not be misled into using them for ailments
which they may imagine they are suffering from and
which they might believe to be curable thereby. That
this is so is shown by the fact that such advertisements
can be sent to medical practitioners, hospitals and
laboratories. The exclusion of Government advertise-
'
ments and the power to give exemption all point to
the objective being the stopping of advertisements of
drugs for the object above-mentioned and not merely
to stop advertisements offending against morality and
decency.
Mr. Munshi's argument was that s. 3 was the key to
the Act and that the object and direct effect of the Act
was to stop advertisements and thereby impair the
right of free speech by directly putting a prohibition
on advertisement. If the contention of Mr. Munshi
were accepted then the restriction to be valid must
fall within cl. (2) of Art. 19 of the Constitution. In
686
SUPREME COURT REPORTS [1960 (2)]
z959
other wmds it must have relationship with decency or
morality because the other restrictions of that clause
D
~:mda;:V kf)have no application. If on the other hand the subaw~az";;'uan a
mission of the learned Solicitor-General is accepted
v.
then the matter would fall under sub-els. (f) and (g)
Union of India and the restriction under Art. 19(6). The object of
the Act as shown by the scheme of the Act and
Kapur 1as stated in the affidavit of Mr. Merchant is the
prevention of self-medication and self-treatment and
a curb on such advertisements is a means to achieve
that end. Objection was taken that the preamble
in the Act does not indicate the object to be the
prevention of treatment of diseases otherwise than by
qualified medical practitioners as the English Venereal Diseases Act 1917 does. In this Court in many
cases affidavits were allowed to be given to show the
reasons for the enactment of a law, the circumstances
in which it was conceived and the evils it was to cure.
This was done in the case of Shri Ram Krishna Dalmia
v. Shri Justice S. R. Tendolkar ('). Similarly, in Kathi
Raning v. The State of Saurashtra (2) and in Kavalappara Kottarathil Kochunni v. The State of Madras(')
affidavits were.allowed to be filed setting out in detail
the circumstances which led to the passing of the
respective enactments.
In support of his argument that any limitation of his
right to advertise his goods was an infringement of his
freedom of speech because advertisement was a part of
that freedom Mr. Munshi relied upon Alma Lovell v.
City of Griffin('). In that case the objection was taken
to the validity of a municipal ordinance prohibiting the
distribution without a permit of circulars, handbooks,
advertising or literature of any kind on the ground that
such ordinance violated the first and the 14th
amendment by abridging the freedom of the Press
and it was held' that such prohibition was invalid at
its face as infringing the constitutional freedom of the
Press and constitutional guarantee of such freedom
embraced pamphlets and leaflets. The actual violation
which was complained of in that case consisted of the
(1) [1959] S.C.R. 279.
(3) A.LR. (1959) S.C. 725.
(2) (1952) S.C.R. 435.
(4) 82 Law Ed. 949; 303 U.S. 444·
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687
distribution without the required permission of
x959
pamphlets and magazines in the n~ture of religious
Hamdard
tracts. Chief Justice Hughes, said:-
Dawakhana (Wakf)
" The ordinance in its broad sweep prohibits the
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distribution of "circulars, handbooks, advertising or
v.
literature of any kind." It manifestly applies to Union of India
pamphlets, magazines and periodicals."
Kapur J.
No doubt the word advertisement was used both in the
ordinance as well as in the opinion by the learned Chief
Justice but the case actually related to the distribution
of pamphlets and magazines. Mr. Munshi also relied
on Express Newspapers (Private) Ltd. v. The Union
of India (1 ), where the cases dealing with freedom of
. speech were discussed by Bhagwati, J., but the question of advertisements as such did not arise in that
case.
An advertisement is no doubt a form of speech but
its true character is reflected by the object for the
promotion of which it is employed. It assumes the
attributes and elements of the activity under Art. 19(1)
which it seeks to aid by bringing it to the notice of
the public. When it takes the form of a commercial
advertisement which has an element of trade or
commerce it no longer falls within the concept of
freedom of speech for the object is not propagation of
ideas-social, political or economic or furtherance of
literature .or human thought ; but as in the present
case the commendation of the efficacy, value and
importance in treatment of particular diseases by
certain drugs and medicines. In such a
case,
advertisement is a part of business even though as
described by Mr. Munshi its creative part, and it was
being used for the purpose of furthering the business
of the petitioners and had no relationship with what
may be called the essential concept of the freedom of
speech. It cannot be said that the right to publish_,
and distribute commercial advertisements advertising
an individual's personal business is a part of freedom
of speech guaranteed by the Constitution. In Lewis J. '
Valentine v. F. J. Chrestensen (2). It was held that the
constitutional right of free speech is not infringed by
\1) \1959) S.C.R. 12, 123-133.
(2) 86 Law. Ed. 1262.
688
SUPREME COURT REPORTS [1960(2)]
prohibiting the distribution in city streets of handbills
bearing on one side a protest against action taken by
Daw~::::~~akf) public ?fficials an~ on the other advertising m~t~er.
Lal Kuan
The object of affixmg of the protest to the advert1smg
I959
v.
circular was the evasion of the prohibition of a city
Union of India ordinance forbidding the distribution in the city streets
Kapur].
•
of commercial and
business advertising matter.
Mr. Justice Roberts, delivering the opinion of the court
said:-
." This court has unequivocally held that the
streets are pro per places for the exercise of the
freedom of communicating information and disseminating opinion and that, though the states and
municipalities may appropriately
regulate the
privilege in the public interest, they may not unduly
burden or proscribe its employment in these public
thoroughfares. We are equally clear that the
Constitution imposes no such restraint on government as respects purely commercial advertising ......
.. . ...