Freedom of Profession, Occupation, trade and business.

Freedom of trade and commerce (under Article 19(1)(g) & Article 301 of Indian Constitution.)

Personal liberty is the most important of all fundamental rights. Article 19 to 22 deals with different aspects of this basic right.

The foremost among these are the six Fundamental Rights in the nature of the freedom which are guaranteed to the citizens by Article 19 of the Constitution.

The 6 freedoms -

Article 19 of the constitution guarantees to the citizen of India the following 6 freedom...

Article 19 (1) All citizens shall have the right-

(a) freedom of speech and expression.

(b) freedom of assembly

(c) Freedom to form associations.

(d) Freedom of movement.

(e) Freedom to reside and settle in any part of the territory of India.

(f) Omitted

(g) to practise any profession, or to carry on any occupation, trade or business.

Freedom of Profession, Occupation, Trade and Business

Article 19 (1) (g) guarantees that all citizens shall have the right to practice any profession, or to carry on occupation, trade or business. However, the right to carry on a profession, trade or business is not unqualified.  It can be restricted and regulated by authority of law. Thus the state can under clause ( 6 ) of article 19 may make any law .  whereas article 301 of the Constitution of India declared that trade commerce and intercourse to out if the territory of India shall be free.

Article 19 (6) says that , Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, 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 the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to...

(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

The right to carry on a business include the right not to start any business or if he chooses ,he has the right to close it down at anytime he likes. Thus the state cannot compel a citizen to carry on business against his will. A citizen can not insist upon the government or any other individual for doing business with him .However, like other rights , The right to close down a business is not an absolute right and can be restricted regulated or controled by the state in the interest of the general public. Thus the right to close down a business cannot be equated or placed at as per the high the right not to start and carry on business.  If a person does not start a business at all , he cannot be compelled to start it. but if he has started and has been carrying on business he tried to close it down maybe restricted by imposing reasonable restrictions.

Taxation not restriction

The fundamental right of citizen to practice any profession or carry on trade or business is not wholly free from the taxing power of the state. No citizen has right to carry on his trade without paying taxes lawfully levied by the government .

In Kailash Nath vs State of U.P. it was held that a tax law otherwise valid create no  unreasonable restrictions.

 

 

Case law

1) NaShivar vs State of Madhya Pradesh AIR 1975 SC 360, Supreme Court held that there was no fundamental right to carry on trade in liquor because of the reason of public morality public interest and harmful and dangerous character of liquor.

2) State of Andhra Pradesh vs Macdowell AIR 1996 SC 1627, court held that even if trade in  intoxicating liquor fall within the scope of article 19( 1) G the state could still imposer severe restrictions or even prohibition.  on the trade in intoxicating liquor.