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Are Trade, Commerce and Intercourse Free?

Written by: Raghvendra Singh Raghuvanshi - III Yr, NLIU, Bhopal
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This article/paper addresses the intricacies involved in the question that whether the freedom of trade, commerce and intercourse (Article 301, Constitution of India) is an absolute freedom or does it having any restrictions on it? For an absolute freedom of trade, commerce and intercourse may lead to economic confusion and misuse of the same. Therefore the wide amplitude of the freedom granted by Article 301 is limited by restrictions imposed on it under Articles 302-305.

The constitution makers desired to promote free flow of trade and commerce in India as they fully realized that economic unity and integration of the country provided the main sustaining force for the stability and progress of the political and cultural unity of the federal polity, and that the country should function as one single economic unit without barriers on internal trade. In order to ensure that the state legislatures subjected to local and regional pulls do not create trade barriers in future, Article 301 was incorporated in the constitution. According to this provision, "trade, commerce and intercourse throughout the territory of India shall be free".

The constitution makers were fully conscious of the need for maintaining economic unity and progress of federal polity while drafting the relevant Articles of part XIII. Article 301 is not a declaration of a mere platitude or the expression of a pious hope of a declaratory character. It embodies and enshrines a principle of paramount importance that economic unity will provide the main sustaining force for stability and the progress of the political and cultural unity of the country.

Legislative history

Article 301 and Section 297 of the Govt. of India Act, 1935

The content of freedom provided for by Article 301 is larger than the freedom contemplated by section 297 of the Government of India Act, 1935. the supreme court pointed out that the observations of the scope of Section 297 and Article 301 did not fall for consideration in an earlier and the observations therein could not be treated to restrict the scope of Article 301.

Content of Article 301

The scope and content of Article 301 depends on the interpretations of three expressions used therein, viz., 'trade, commerce and intercourse', 'free' and 'throughout the territory of India'.

Trade, commerce and intercourse

The framers of the Indian constitution, instead of leaving the idea of 'intercourse' to be implied by the process of judicial pronouncements, expressly incorporated the same in Article 301. The words trade and commerce have been broadly interpreted. In most of the cases, the accent has been on the movement aspect. For example, in the Atiabari Tea Co. v. State of Assam case, the court emphasized : "whatever else it (Art.301) may or may not include, it certainly includes movement of trade which is of the very essence of all trade and is its integral part," and, further, that "primarily it is the movement part of the trade" which Article 301 has in its mind, that "the movement or the transport of the trade must be free," and that "it is the free movement or the transport of goods from one part of the country to the other that is intended to be saved."

Again, in State of Madras v. Nataraja Mudaliar, the court stated that "all restrictions which directly and immediately affect the movement of trade are declared by Article 301 to be ineffective." Nevertheless cases are not wanting where movement has not been involved but other aspects of trade and commerce have been involved. The view now appears to be fairly settled that the sweep of the concept 'trade, commerce and intercourse' is very wide and that the word trade alone, even in its narrow sense, would include all activities in relation to buying and selling, or the interchange or exchange of commodities and that movement from place to place is the very soul of such trading activities.

In Koteswar v. K.R.B. & Co, a restriction on forward contracts was held to be violative of Article 301.The supreme court held that a power conferred on the state government to make an order providing for regulating or prohibiting any class of commercial or financial transactions relating to any essential Article, clearly permits restrictions on freedom of trade and commerce and, therefore, its validity has to be assessed with reference to Article 304(b).

In District Collector, Hyderabad v. Ibrahim, the Supreme Court has invalidated under Article 301 an attempt by a state to create by an administrative order a monopoly to deal in sugar in favour of cooperative societies. The order was issued while the proclamation of emergency was operative and so Article 19 (1)(g) could not be invoked. The court therefore took recourse to Article 301.

In Fatehchand Himmatlal v. State of Maharashtra, the Supreme Court considered the question that whether the Maharashtra debt relief act, 1976, was constitutionally valid vis--vis Article 301. This depended on the further question that whether money-lending to poor villagers which was sought to be prohibited by the Act could be regarded as trade, commerce and intercourse. The court answered in the negative although it recognised that the money-lending amongst the commercial community is integral to trade and therefore is trade.

Certain activities may not be regarded as trade, commerce and intercourse although the usual forms and instruments are employed therein, as for example, gambling, and thus an Act restricting betting and gambling is not bad under Article 301. In this case, the supreme court had expressed some sentiments of suggesting that unlawful activities opposed to public morality and safety would not be regarded as trade and commerce. But the court then resiled from this broad proposition saying that the wide proposition that a dealing against morals would not be business, involves the position that the meaning of the expression 'trade or business' would depend upon, and vary with, the general standards of morality accepted at a particular point of time in the country.
After an elaborate study of the scope of the meaning of these words, it can be said that the word "trade" cannot be confined to the movement of goods but extends to transactions linked with merchandise or flow of goods, the promotion of buying and selling, advances, borrowings, discounting bills and mercantile documents, banking and other forums of supply of funds. Money lending and trade financing also constitutes trade.

The word 'free' in Article 301 cannot mean an absolute freedom or that each and every restriction on trade and commerce is invalid. The Supreme Court has held in Atiabari that freedom of trade and commerce guaranteed by Article 301 is freedom from such restrictions as directly and immediately restrict or impede the free flow or movement of trade. Therefore Article 301 would not be attracted if a law creates an indirect or inconsequential impediment on trade, commerce and intercourse which may be regarded as remote. The word 'free' in Article 301 does not mean freedom from regulation. As has been observed by the supreme court: "there is a clear distinction between laws interfering with freedom to carry out the activities constituting trade and laws imposing on those engaged therein rules of proper conduct or other restraints directed to the due and orderly manner of carrying out the activities." Regulation of hours, equipment, weight, size of load, lights, traffic laws are some examples of regulatory laws which are not hit by Article 301.

Regulations like rules of traffic facilitate freedom of trade and commerce whereas restrictions impede that freedom. In State of Mysore v. Sanjeeviah , A rule banning movement of forest produce within the state between 10 p.m; and sunrise was held to be void under Art. 301 as it was not 'regulatory' but 'restrictive. Tax laws are not excluded from the scope of Art. 301. A tax which directly and immediately restricts trade would fall within the purview of Art. 301. From the trend of the case-law it appears that there is a greater readiness on the part of the courts to characterize an impediment on movement of commerce as 'direct' and so hold it bad under Art. 301, than the one not on movement which is usually held to be indirect or remote and so valid, e.g., octroi, sales tax, purchase tax, etc. But sales tax discriminating between goods of one state from those of another may affect free flow of trade and so offend Art. 301. A tax levied by Parliament on interstate sale would have offended Art. 301 as such a tax, in its essence, encumbers movement of trade or commerce because by its very definition an interstate sale is one which occasions movement of goods from one state to another. Nevertheless, it was held valid because of Art. 302.

Throughout the territory of India
The view is definitely held now that Article 301 applies not only to interstate but also to intrastate trade and commerce, i.e. trade within the state. Therefore, it means freedom of trade commerce and intercourse is there within the state and/or outside the state and/or any part within the territory of India.

Regulatory and Compensatory Tax

To smoothen the movement of interstate trade and commerce, the state has to provide many facilities by way of roads etc.. The concept of regulatory and compensatory taxation has been evolved with a view to reconcile the freedom of trade and commerce guaranteed by Art. 301 with the need to tax such trade at least to the extent of making it pay for the facilities provided to it by the state, e.g., a road net-work. If a charge is imposed not for the purpose of obtaining a proper contribution to the maintenance and upkeep of the road, but for the purpose of adversely affecting trade or commerce, then it would amount to, a restriction on the freedom of trade, commerce and intercourse.

The concept of regulatory and compensatory taxation has been applied by the Indian courts to the state taxation under entries 56 and 57 of List II.

Atiabari Tea Co. v. State of Assam,
Facts: A tax levied by the State of Assam on the carriage of tea by road or inland waterways was held bad for "the transport or movement of goods is taxed solely on the basis that the goods are thus carried or transported, and thus "directly affects the freedom of trade as contemplated by Art. 301."
The Supreme Court took the view that the freedom guaranteed by Art. 301 would become illusory if the movement, transport, or the carrying of goods were allowed to be impeded, obstructed or hampered by the taxation without satisfying the requirements of Art. 302 to 304. The court did not take into consideration the quantum .of tax burden which by no means was excessive. Simply because the tax was levied on 'movement' of goods, from one place to another, it was held to offend Art. 301.
The view propounded in Atiabari was bound to have great adverse effect upon the financial autonomy of the states. It would have rendered their taxing power under entries 56 and 57, List II.

Accordingly, the matter came to be re-considered by the Supreme Court in Automobile Transport v. Rajasthan.
Facts: The State of Rajasthan had levied a tax on motor vehicles (Rs. 60 on a motor car and Rs. 2000 on a goods vehicle per year) used within the state in any public place or kept for use in the state. The validity of the tax was challenged.

Taking the view that freedom of trade and commerce under Art. 301 should not unduly cripple state autonomy, and that it should be consistent with an orderly society, the Supreme Court now ruled that regulatory measures and compensatory taxes for the use of trading facilities were not hit by Art. 301 as these did not hamper, .but rather facilitated, trade, commerce and intercourse.

Issue: A working test to decide whether a tax is compensatory or not would be to enquire whether the trades people are having the use of certain facilities for the better conduct of their business and paying not patently much more than what is required for providing the facilities? A tax does not cease to be compensatory because the precise or specific amount collected is not actually used in providing facilities.

The concept of compensatory tax evolved in this case was something new as in Atiabari, the court had dismissed the argument that the money realized through the tax would be used to improve roads and waterways rather curtly by saying that there were other ways, apart from the tax in question, to realize the money, and that if the said object was intended to be achieved by levying a tax on the carriage of goods, the same could be done only by satisfying Art. 304(b).
Decision: The court ruled that the tax was not hit by Art. 301, as it was a compensatory tax having been levied for use of the roads provided for and maintained by the state.

Thus, to this extent, the majority view in Atiabari was now overruled by Automobile.
Since then the concept of regulatory and compensatory taxes has become established in India with reference to entries 56 and 57, List II, and the concept has been applied in several cases, and progressively the courts have liberalised the concept so as to permit state taxation at a higher level.

Bolani Iron Ores v. State of Orissa
A compensatory tax is levied to raise revenue to meet the expenditure for making roads, maintaining them and for facilitating the movement and regulation of traffic. The Supreme Court held that taxation under entry 57, List II, cannot exceed the compensatory nature which must have some nexus with the vehicles using the roads. The regulatory and compensatory nature of the tax is that taxing power should be used to impose taxes on motor vehicles which use the roads in the state or are kept for use thereon.

G.K. Krishnan v. State of Tamil Nadu
Facts: The State of Tamil Nadu increased the motor vehicles tax from Rs. 30 to 100 per seat per quarter and this was challenged as being violative of Art. 301.

Issue: whether a non-discriminatory tax levied by a state should be regarded as a restriction on trade and commerce because of the feeling that this would curtail state autonomy to levy taxes falling in the state legislative sphere?
But the Supreme Court upheld the tax. The court stated, "A compensatory tax is not a restriction upon the movement part of trade and commerce." The tax should not go beyond "a proper recompense to the State for the actual use made of the physical facilities provided in the shape of a road." In the instant case, the tax collections amounted to over Rs. 16 crores while the expenditure for the year amounted to Rs. 19.51 crores and this amount did not include the grants to local governments for the repair and maintenance of roads within their jurisdiction. The tax was thus held to be compensatory and hence valid.
The Supreme Court further liberalised the state taxing power by upholding a state tax on passengers and goods carried on national highways.

International tourist corporation v. State of Haryana
Facts: The state of Haryana levied a tax on transporters plying motor vehicles between Delhi and Jammu & Kashmir. They use national highway, pass through Haryana without picking up or setting down any passenger in the state. The responsibility for constructing and maintaining of national highways rests on the Centre. It was therefore argued by the transporters that the tax could hardly be regarded as compensatory, but the court rejected the contention.

The Supreme Court said that what is necessary to uphold such a tax is the existence of a specific, 'identifiable' object behind the levy and a 'sufficient nexus' between the 'subject and the object of the levy.' The court further said that a state incurs considerable expenditure for maintenance of roads and providing facilities for transport of goods and passengers. Even in connection with national highways, a state incurs considerable expenditure not directly by constructing or maintaining them but by facilitating the transport of goods and passengers along with them in various ways such as lighting, traffic control, amenities for passengers, halting places for buses and trucks. That part of a national highway which lies within municipal limits is to be developed and maintained by the state. There is thus sufficient nexus between the tax and the passengers and goods carried on the national highways to justify the imposition of the said tax.

Decision: the tax was held to be valid.

Malwa Bus Service v. State of Punjab
Facts: In this case, in the year 1981, the State of Punjab substantially increased the rate of tax on every stage carriage plying for hire and transport of passengers. The rates adopted were Rs. 500 per seat per year subject to a maximum of Rs. 35,000 per bus irrespective of the distance over which it operated daily. According to the budget figures for 1981-82, the revenue receipts of the government from motor vehicles tax was Rs. 50 crores as against the expenditure of Rs. 34 crores. The tax was challenged on the ground that it was not compensatory as the government was using it for augmenting its general revenues, but the court upheld the tax as compensatory.

In the instant case, the budget expenditure on the roads and bridges did not include the expenditure incurred by the state on other heads connected with road transport, such as, the directorate of transport, transport authorities, provision for bus stands, lighting, traffic police, grants to local authorities. Taking all this expenditure into account, it became clear that a substantial part of the levy on motor vehicles was being spent annually on providing facilities to motor vehicles operators. The court also pointed out that in later years, the government expenditure on roads and bridges had substantially increased. It also said that the figures of income and expenditure for only one year might present a distorted picture. In this case, cumulative figures of receipts and expenditure for nine years (1973-1982) presented a different picture. Describing the principle underlying such a tax, the court said: "what is essential is that the burden should not disproportionately exceed the cost of the facilities provided by the state."
Decision: Therefore the tax imposed by the state of Punjab was held to be valid.

Direct and immediate restrictions

The restrictions which will attract Article 301 must be those which directly and immediately restrict or impede the free flow or movement of trade. Only those taxes which directly and immediately restrict trade would fall within the purview of Article 301. the rational and workable test to apply would be: does the impugned restrictions operate directly or immediately on trade or its movement? what is prohibited is a tax whose direct effect is to hinder the movement of trade.
Restriction on freedom of trade, commerce and intercourse throughout the territory of India cannot be justified unless they fall within Article 304.

Inter-relation between Articles 301 and 19(1)(g)

Article 19(1)(g), a fundamental right, confers on the citizens the right to practice any profession or carry on any occupation, trade or business. The question of inter-relationship between Articles 19(1)(g) and 301 is somewhat uncertain.

One view is that while Article 19(1)(g) deals with the right of the individuals, Article 301 provides safeguards for the carrying on trade as a whole distinguished from an individuals right to do the same. This view is hardly tenable. Article 301 is based on section 92 of the Australian constitution which has been held to compromise rights of the individual as well, and the same should be the position in India. In actual practice, the view has never been enforced and individuals have challenged legislation on the ground of its effect on their right to carry on trade and commerce. The supreme court has denounced the theory that Article 301 guarantees freedom "in abstract and not of the individuals."

A difference between Arts. 19(1)(g) and 301, it has been said, is that Art. 301 could be invoked only when an individual, is prevented from sending his goods across the state, or from one point to another in the same state, while Art. 19(1)(g) can be invoked when the complaint is with regard to the right of an individual to carryon business unrelated to, or irrespective of, the movement of goods, i.e., while Art. 301 contemplates the right of trade in motion, Art. 19(1)(g) secures the right at rest.

Art. 301 covers many interferences with trade and commerce which may not ordinarily come within Art. 19(1)(g),
Freedom of trade and commerce is a wider concept than that of an individual's freedom to trade guaranteed by Art. 19(1)(g).

Art. 19(1)(g) can be taken advantage of by a citizen, while Art. 301 can be invoked by a citizen as well as a non-citizen. Also, while Art. 19(1)(g) is not available to a corporate person, Art.301 may be invoked by a corporation and even by a state on complaints of discrimination or preference which are outlawed by Art. 303, discussed below.

In emergency, Art. 19(1)(g) is suspended and so courts may take recourse to Art. 301 to adjudge the validity of a restriction on commerce.

In certain situations, only one of the two may be relevant, as for example when there is no direct burden on a trade but it may be a restriction in terms of Art. 19(1)(g) read with Art. 19(6). In some other situations, both provisions may become applicable and it may be possible to invoke them both.

Art. 301 is a mandatory provision and a law contravening the same is ultra vires, but it is not a fundamental right and hence is not enforceable under Article 32 . But if the right under Article 19(1)(g) is also infringed, then Article 32 petition may lie.

Is this freedom an absolute one?

A question arises here that whether the freedom of trade, commerce and intercourse is an absolute freedom or does it having any restrictions on it? For an absolute freedom of trade, commerce and intercourse may lead to economic confusion and misuse of the same. Therefore the wide amplitude of the freedom granted by Article 301 is limited by Articles 302-305. the exceptions to Article 301 are:

a. Parliament is given power to regulate trade and commerce in public interest under Article 302 subject to Article 303.

Article 302 empowers parliament to impose restrictions on the freedom of trade, commerce and intercourse between one state and another, or within any part of the territory of India, in the public interest. The reference of Article 302 to restriction on the freedom of trade within any part of the territory of India as distinct from freedom of trade between one state and another clearly indicates that the freedom granted by Article 301 covers both inter state and intra state trade and commerce, as Article 302 is in the very nature of an exception to Article 301.

The Essential Commodities Act has been held to impose reasonable restrictions on the right to carry on trade and commerce as guaranteed by Articles 19(1)(g) and 301.

In Prag Ice & Oil Mills v. India, the supreme court said that Article 302 does not speak of 'reasonable restrictions' yet the court further held that 'it is evident that restrictions contemplated by it must bear a reasonable nexus with the need to serve the public interest.'

b. The state legislatures are given power to regulate trade and commerce under Article 304 subject to Article 303.

Article 304 , which consists of two clauses, empowers the states to make laws to regulate and restrict the freedom of trade and commerce to some extent. According to 304 (a), a state legislature may by law impose on goods imported from other states any tax to which similar goods manufactured or produced within that state are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced.

* Article 304(a) thus says that state legislature may impose taxes but one condition is there, it shall not be discriminatory.

In Kalyani Stores v. State of Orrisa, The state of Orrisa levied a duty on foreign liquor. No such liquor was produced within the state and the whole of it was imported from other states. The supreme court ruled that if the goods of a particular description were not produced within a state, the power to legislate under Article 304(a) would not available to it. In the instant case as no liquor was produced within the state, the state could not use its legislative power under Article 304(a).

Basically the concept of equality in Article 304 (a) and 14 are, somehow, same. In Video Electronics Pvt Ltd. v. State of Punjab, the supreme court held that Article 304(a) enjoins the state not to discriminate with respect to imposition of tax on imported goods and locally made goods.

In Shri Mahavir Oil Mills Ltd. v. State of J&K, the supreme court further said that this clause bars states from creating tax barriers/fiscal barriers and/or insulating themselves by creating tariff walls.

* Article 304(b) authorizes a state legislature to impose by law such reasonable restrictions on the freedom of trade, commerce and intercourse with or within that state as may be required in public interest, provided that the bill or amendment for this purpose has received the previous sanction of the president before it is introduced or moved in the state legislature.

There is also a provision in this Article and that is "provided no bill or amendment for the purposes of clause (b) shall be introduced or moved in the legislature of a state without the previous sanction of the president."

In State of Karnataka v. Hansa Corporation, the Supreme Court said that:
Though Article 304(b) requires the prior assent of the president before the bill is introduced in the legislature yet, due to Article 255, if prior assent is not secured, the infirmity can be cured by subsequent assent of the president after the bill has been passed by the state legislature.

In Atiabari case, a state law imposing a tax on movement of goods in interstate commerce was held invalid because of the lack of presidential assent.

In Saghir Ahmed v. State of U.P, it was held that subsequent sanction is of no effect.
But in other cases it was held that proviso has to be read in a harmonious manner with Article 255, which says that if the Act receives the assent of the president, the non-compliance of the previous sanction to the introduction of the bill is cured.
c. Article 305 protects existing laws from the operation of Articles 301 and 303. it also saves nationalization laws from the operation of Article 301.

Restrictions and regulations

The contrast between "freedom under Article 301 and "restrictions " under Article 302 and 304 clearly appears: "that which in reality facilitates trade and commerce is not a restriction and that which in reality hampers or burdens trade and commerce is a restriction." it is the reality or the substance that has to be looked into and determined. If Article 301 is interpreted to cover all regulation, it will mean that the state legislature cannot control trade, commerce and intercourse even if it is to facilitate free movement. It must yet proceed to make a law under Article 304(b) and no such bill can be introduced or moved in the legislature of a state without the previous sanction of the president.

Necessity of reasonable restrictions

Now a question arises as to the necessity of such reasonable restrictions. To answer this, the constitutional framers were conscious of free trade, commerce and intercourse throughout the territory of India is necessary. At the same time, such freedom may require to be curtailed or curbed in public interest and the parliament and the state legislatures have been given powers under Articles 302, 303, 304.

The object of part XIII is not to make inter-state trade, commerce and intercourse absolutely free. Reasonable restrictions in public interest are permissible. Regulatory or compensatory measures cannot be regarded as violative of the freedom unless they are shown to be colorable measures to restrict the free flow of trade, commerce and intercourse. Therefore Article 304 allows imposition of such reasonable restrictions on the freedom of trade as are in public interest.

To conclude this research paper, I would like to say that part XIII is the most badly drafted part of the constitution of India. The constitution framers had just borrowed this part from the Australian constitution, (section 92) perhaps, without taking into consideration its further implications and consequences in a country like India.

Firstly, the freedom enshrined under the part XIII, is subject exception upon exception and thereby limiting the scope of the said freedom.
Secondly, the constitution framers could not have provided the words like "subject to the other provisions to this part". If this part is interpreted literally or the literal rule of common law is applied then it can be said that this part is to be read only with the other provisions of this part only and not the other provisions of the constitution. but practically it is not so, as supreme court, in many cases, as referred in this paper, has taken the help or read along with other provisions of the constitution as well.
Thirdly, these badly drafted provisions can only be cured by the amendment to the constitution. Therefore, it needs amendment.
Fourthly, it is not a self-contained code. May be the constitution has specifically provided that it will subject only to the part XIII, but it has to be read in a harmonious way. Therefore, it is to be read with the other provisions of the constitution.

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