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Published : March 05, 2017 | Author : nirali
Category : Law - lawyers & legal Profession | Total Views : 3402 | Rating :

My name is Nirali Deepak Parekh. I am a student of Shri Vile Parle Kelvani Mandal's Pravin Gandhi College Of Law,( 5 years course) at Vile Parle, Mumbai. I am currently in my third year of BLS;LLB.

Freedom of Business, Trade and Profession

With everyone seeming to be quite abreast of the famous saying “ An idle mind is a devil’s workshop,” and so alluding to this phrase we can deduce that it is pivotal for every individual to keep himself engrossed and occupied with some work or the other, for if not, it will lead to the generation of ulterior motives and evil ideas in his mind. An empty mind makes an individual feel restless which might provoke him to act in a perilous manner and the same can prove to be unsafe for the people around him. Lazy and unoccupied people are a menace to the society. “Idleness” would make an individual feel lethargic and trapped in monotomy.In this era of global competition , it has become indeed essential for every person to step out his cocoon, and make himself capable of doing some kind of work , so that he can earn his own bread and butter.

Engaging oneself into any sort of business or adopting a particular profession serves as a helping hand to an individual to attain prestige and dignity in the eyes of the society. When he indulges himself into any kind of a profession or takes up an occupation , it provides an assistance to him in acquiring reputation and status in the public realm. As we are all well conversant with the quote “Survival of the fittest” , we can conclude that today any individual in order to make a living and cater to the needs of himself as well as his family members , it has become crucial for him to keep himself employed in some or the other kind of occupation, start a business, or else endeavour to be a professional in fields like medicine, law, teaching, advertising, engineering and other numerous areas.

It is pertinent to note that an individual should choose a profession or business in accordance to his own skill, desire, capabilities , interests which will not only aid him in gaining a dignified recognition in the market comprising of constant competition and comparison , but also at the same time make him monetarily superior in relation to the existing masses in the society. When he engages himself in some work or profession , it helps him to keep himself updated, aware and informed of the various happenings and occurrences taking place across the globe. Undoubtedly it also provides him with the wisdom which in turn makes him competent to deal with the day to day struggles , and also increases the confidence in him as well as motivates him to keep growing and enhance the quality and quantity of his work. Employment be it in the public or private sector , all in all plays a massive role in strengthening the bond among everyone in the society and provides a boost to the economic growth of the country.

The Constitution of India, therefore taking into consideration the need and the importance of work , enshrines and has guaranteed a fundamental right under article 19( 1) (g) to practise any profession , or to carry on any occupation , trade or business , to all the citizens residing with the jurisdiction of the country. This right aims at the welfare and well being of the citizens as well as the nation as a whole. Under this article, every citizen has the right to choose an employment , or take up any trade or occupation etc as per his volition and free will, but at the same time the State has the right to impose certain limits , which it feels necessary for the interest of the public .This article does not guarantee a monopoly to any individual to carry on any occupation. The right to carry on a business also includes the right to close it, at any time depending upon the desire of the owner. The State cannot compel any citizen to run a business which is against his will. But as no right is absolute, the right to close a business is also not an absolute right. It is something which the State has the right to control by law for the welfare of the public. The right to close down a business cannot be equated with the right not to start and carry on a business. If a person does not wish or even plan to start any kind of business, he cannot be pressurized to start one, it is completely upto his discretion. However , if a person is involved in some business, he can be compelled by the State to close it down , for the concern of the general public.

The allocation of this privilege by the constitution to all its citizens does not imply that an individual can involve himself into any occupation or run a business which is not permissible by the norms and rituals of the society. It is vital for him to bear in mind the repercussions if at all his work does not meet the standards and the morals prevailing in the society at large. It is mandatory for him to follow certain code of conduct while doing any kind of business or practising any particular profession. While utilizing this fundamental right for his own benefit and personal good, it is essential to ensure that some other person is not placed in a situation of jeopardy which might result in the breach of public peace. He needs to be alert that he does not resort to activities which can give rise to unrest or conflict in the society. If not, the State will interfere with the individual’s fundamental right and take the necessary required steps and measures,for ceasing the immoral and the illegal activities indulged into by him, to prevent any kind of further hassle and as well as for the retention of the public safety. Every person should take into account that his professional activities do not inflict any harm and injury on others or disrupt the peace and order of the society. As an entrepreneur, or be it a trader , or a professional he needs to confirm that his actions are not hazardous in nature and it does not cause grievous hurt or even mental agony to anyone. Exercising consciousness while taking any kind of business decisions is extremely crucial and something which every citizen needs to pay heed at.

‘Work ethics’ and ‘ decorum’ are the two things which every citizen should focus at while in the course of their employment or be it during sole proprietorship. It is the duty of every citizen to practise his profession or carry out his business transactions , or either functions during his employment in a respectable fashion as well as in a modest way. Every citizen should have a genuine approach towards his profession or his business , that is, he should obey the necessary rules laid down and maintain the discipline and order of the society. Everyone has the “right to work” to make oneself independent, to suffice the daily needs along with the necessities and the various requirements of their respective families as well as to secure one’s future. Any trader, businessmen or be it a professional should not act as per his own whims and fancies while exercising this right for his own benefit or gain. One cannot act in a haphazard or erratic manner to earn profit and raise his financial status . The State plays a major role in governing the conduct of every citizen who is immersed in any occupation or has adopted any profession.

It is a well established fact that a trader or be it a business magnate will work with the main motive of earning lucrative rewards for it, but to achieve the same , it is not at all acceptable on his part to engage himself into any kind of criminal or anti- social activities. The State does not authorize any individual to assume this right for granted and take up any kind of wrongful and corrupt activities like gambling, smuggling etc. The Constitution has not granted this fundamental right to conduct business or carry on with any kind of trade involving substances which are dangerous in nature , fatal to public health , property and safety for example intoxicating drugs etc. The trades which are not injurious or unfair to public welfare cannot be suppressed or disallowed. They can be supervised and initiative can be taken for mitigating their malicious effects .If some occupations are noisy and dangerous by their very nature, they should be kept under proper control in the areas in which they should be practised and special conditions in which they should be carried on.

Under Article 19(6), the State may

(a) Impose reasonable restrictions upon the freedom of trade, business, occupation or profession in the interest of the general public.

Instances of reasonable restrictions
(1) There is no right to carry on business at a particular place. The State has the power to impose reasonable restrictions for the betterment of the general public. Thus, a competent authority has the right to fix a proper place be it for a bus stop, a cinema house, or a liquor shop.

(2) In Luxmi Khandsari .v . State of Uttar Pradesh, a Notification issued under Sugar Cane ( Control) Order stopping crushers from producing khandsari so that production of white sugar could be increased and thereby making the sugar available to consumers at a reasonable price was held to be imposing restriction in the interest of the public on the right of persons using crushers and therefore valid.

(3) In Bombay Hawkers Union v Bombay Municipal Corporation which had come for consideration before the Supreme Court , the provisions of the Bombay Municipal Corporation Act , 1888, were challenged on the ground that the authorities were conferred arbitrary power to grant or refuse licenses for hawkers on public streets and for removing unauthorized hawkers without giving them an opportunity to be heard. Rejecting this contention the Supreme Court observed that the public streets are by their very definition, meant for the use of the general public. No person, has the fundamental right to carry on any business which causes nuisance, annoyance or inconvenience to the public. It was, therefore, held that the provisions of the B.M.C Act were in the nature of reasonable restrictions in the interest of the general public and not violative of Art 19(1) (g) of the Constitution.

(4) In State of Kerala v. Joseph Antony, the State of Kerala had imposed a ban on the use of mechanised fishing nets and mid- water trawlers in territorial waters. This was done to protect the livelihood of other poorer fishermen , and to protect the pelagic fish wealth of the territorial waters. The Supreme Court held that the restriction was a reasonable restriction, and not violative of Art 19(6).

Instance of unreasonable restriction
(1) In Chintamanrao .v State of M.P, an Act of Madhya Pradesh Government empowered the Deputy Commissioner to prohibit the manufacture of bidis during the agricultural season in such villages as he might specify in his order. The Supreme Court held that such a provision is void , as it violates Art 19(1)(g) , since a total prohibition of the manufacture imposes an unreasonable and excessive restriction on the lawful profession of manufacturing bidis.

(b) Prescribe the professional or technical qualifications necessary for carrying on any occupation, trade or business.

The State is authorized by law to prescribe any professional or technical qualifications which it feels is essential for practising a particular profession or carrying on any occupation. For example , it can prescribe that one who wishes to practise in medicine has to have pursued and cleared the course for the same as well as passed the MBBS examination.Similarly one who desires to be an advocate has to clear the L.L.B examination from any established university.

(c) Carry on any trade, business, industry or service , by itself or through a corporation controlled by the State – to the exclusion of private citizens , wholly or in part.

In toto, we can conclude that the Constitution has granted this fundamental right under Art 19(1)(g), for the prosperity and well being of everyone in the society. The State ensures that no individual residing within the territorial boundaries of the country is deprived of this right and if at all he is , it will take the requisite measures to avail him of an appropriate remedy and make sure that justice is delivered. Every citizen should utilize this right to the best of his capabilities and for his moral as well as economic progress. He should make use of this right in a rational manner so that the State is not compelled to exercise force and also intervene with his business activities. He should carry out the required functions of his employment, or his own profession in an ethical and reasonable way, which will not only assist him in earning financial gains but also in turn make him knowledgeable and powerful enough to face the societal issues. For having been provided of this right by the Constitution, every citizen has an obligation to abide by certain etiquettes and proceed following a code of conduct so that the peace and harmony of the society is not hampered .No citizen should adopt any kind of profession or trade which is forbidden by law , immoral in its nature and which will incite violence and encourageanimosity among the masses. Law will take the necessary action if any citizen in the process of exercising this right for his own benefit, if at all is leading to create a situation of an infringement of this legal right of another individual or is making an attempt to inflict pain and damage on him. The State will assure that no individual goes scot free if he is found guilty of committing any malicious and illegal activities in the due course of his employment, trade, or practising any profession. Immoral and unlawful activities like trafficking, running of brothels etc do not come within the ambit of this provision and indulging into any of them as well instigating are both serious offences for which every person will have to face the ill consequences. The law does not approve nor tolerate of any sort of trade, or occupation, or business which it feels will lead to destruction of property and life. It will not permit the conducting of any activities which damages the health and safety of the society. It does not sanction the carrying on of any unscrupulous activities by which the peace and harmony of the country is endangered. Every citizen is expected to be honest while utilizing this freedom and also behavein a fair and responsible manner.

“ Bonafide usage of this freedom will help to foster a healthy relationship among everyone in the society. But on the contrary malafide usage will lead to havoc as well as cause a disturbance in the working of the democracy, which in turn will act as a hindrance to the growth and development of the economy.”

End Notes
1. Constitutional Law of India ( Dr J.N Pandey)
2. AIR 1981 SC 873
3. AIR 1985 SC 1206
4. AIR 1994 SC 721
5. 1950 S.C.R 759


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