Police Powers and the Constitution of India: the Inconspicuous Ascent of an Incongruous American Implant

• Citation: Vol. 28 No. 1
• Publication year: 2014

Police Powers and the Constitution of India: The Inconspicuous Ascent of an Incongruous American Implant

Arvind Datar

Shivprasad Swaminathan

POLICE POWERS AND THE CONSTITUTION OF INDIA: THE INCONSPICUOUS ASCENT OF AN INCONGRUOUS AMERICAN IMPLANT

Arvind Datar^*

Shivprasad Swaminathan^**

Res extra commercium is a doctrine introduced by Chief Justice Das of the Supreme Court of India in the 1957 case, State of Bombay v. R.M.D. Chamarbaugwala, which has the effect of constricting the scope of fundamental rights by rendering as constitutional outcasts certain purportedly "immoral" or "noxious " activities. It does this by blocking these activities from falling within the purview of the protection of fundamental rights. At the core of this paper are three claims. First, it will be argued that though the court did not expressly spell it out, it was the doctrine of "police powers " (the specific conception of the doctrine advanced by Justice Harlan of the U.S. Supreme Court in Mugler v. Kansas), which lies behind Chief Justice Das's invocation of res extra commercium. Second, it will be argued that Chief Justice Das did not openly invoke the police power doctrine in R.M.D. Chamarbaugwala because larger benches of the Supreme Court had earlier squarely rejected the import of the doctrine from American constitutional law (including one earlier abortive attempt by Chief Justice Das himself) because of the structural differences between the Constitutions of United States and India as a result of which, at the time the decision in R.M.D. Chamarbaugwala was handed down, the jurisprudential climate was positively hostile to the doctrine. Curiously, however, the police power doctrine, now masquerading, as the doctrine of res extra commercium has come to be well ensconced in the constitution law of India virtually unchallenged for over four decades now. The reasons for this anomaly will be explored. Finally, the paper argues why the police power doctrine sought to be imported by Chief Justice Das under the verbal dressing of res extra commercium is incongruous with the scheme of the Indian Constitution.

[Page 64]

I. Isolating the Issue...........................................................................65

II. Constitutional Outcasts and Ex Ante Restrictions on Fundamental Freedoms..................................................................72

III. Two Concepts of Res Extra Commercium......................................75

IV. The Invisible Hand of Police Powers............................................ 78

V. Police Powers and American Constitutional Law.................... 81

A. Two Readings of Police Powers...................................................81
B. Mugler v. Kansas..........................................................................84
C. Unpacking Mugler v. Kansas .......................................................85

1. The Valid Subject of the Exercise of Police Power................85
2. The Mode of the Exercise of Police Power.............................86
3. The Effect of Valid Exercise of Police Power: Constriction of the Fundamental Right..................................90

D. Mahon: Questioning Mugler........................................................91

VI. Res Extra Commercium: Police Powers by Another Name.........92

A. R.M.D. Chamarbaugwala: Mugler by Another Name?................92
B. Why Chief Justice Das Did Not Openly Invoke the Police Power Doctrine in R.M.D. Chamarbaugwala ..............................93
C. Chief Justice Das's Earlier Attempt to Introduce the Police Power Doctrine and the Supreme Court's Reaction ....................97
D. R.M.D. Chamarbaugwala: Mugler Reincarnate......................... 101

VII. Talking Past Each Other.............................................................. 103

VIII. The Conceptual Ambiguity...........................................................108

IX. The Impermissibility of ex ante constrictions in the Constitution of India....................................................................111

A. No Constrictions on Liberties or Freedoms Possible................. 112
B. Rendering Reasonable Restrictions Obsolete............................. 116
C. The Concerns That Led the U.S. Supreme Court to Constrict the Fundamental Right Contained in the Fifth Amendment Absent in the Constitution of India............................................. 118
Conclusion: Life Without Res Extra Commercium............................... 119

[Page 65]

If American decisions require to be used with caution, doctrines evolved by the U.S. Sup. Ct. in the context of the U.S. Constitution require to be scrutinised even more carefully before introducing them into our Constitution.

-H.M. Seervai¹

I. ISOLATING THE ISSUE

When a lawyer versed in the Constitutional Law of India-who is therefore no stranger to esoteric Latin incantations-hears the phrase res extra commercium,² she would undoubtedly know it is a perilously nebulous phrase. Her disquiet would deepen when she is told that the perilously nebulous phrase is a shell covering a doctrine imported from U.S. constitutional law which is treated with great circumspection by the lawyers and scholars there and has been squarely rejected by several early decisions of the Supreme Court of India: the doctrine of police powers.³ The disquiet would give way to perplexity upon learning that, despite the odds stacked up so heavily against the doctrine of res extra commercium, it is now so well ensconced in the constitutional law of India, that hardly anyone has questioned its soundness in the last seven decades.⁴

Res extra commercium is the verbal rubric for a doctrine that renders certain purportedly immoral or pernicious activities such as gambling, rural

[Page 66]

money-lending, and selling intoxicating liquor as constitutional outcasts.⁵ Therefore, these activities are not protected by Article 19(1)(g) of the Constitution of India, which guarantees citizens the fundamental right to, "practice any profession, or to carry on any occupation, trade or business."⁶ In arguments before the Supreme Court of India, the government has sought, though unsuccessfully, to extend the doctrine to the trade in tobacco, as well.⁷ Indeed, the government seems to invoke the doctrine in any matter that, by their estimate, involves an immoral activity.⁸

Introduced by Indian Supreme Court Chief Justice Das in 1957 in Bombay v. R.M.D. Chamarbaugwala,⁹ the doctrine of res extra commercium, in the context of the gambling business, has become firmly established in the constitutional law of India.¹⁰ The Supreme Court of India briefly threatened the ascent of the doctrine in Narula v. Jammu & Kashmir,¹¹ which involved the constitutionality of the trade in liquor. Not only did the Supreme Court in Narula turn down the state's invitation to extend the doctrine to trade in liquor, but the Court also expressed reservations about the congruity of the doctrine with India's constitutional scheme.¹² This, however, did little to halt the ascent of the doctrine: Narula has now, for long, been seen as somewhat of an

[Page 67]

aberration.¹³ It is only recently that some voices, in the form of dissenting Supreme Court opinions, can be heard calling to bring this well entrenched doctrine into question.¹⁴ Notwithstanding these dissenting voices, it is no exaggeration to say that the doctrine has assumed somewhat of an axiomatic status in the constitutional law of India.¹⁵

At the core of this Article are three claims. First, this Article will argue that though Chief Justice Das in R.M.D. Chamarbaugwala did not expressly spell it out, the police power doctrine, imported from the constitutional law of the United States, was the invisible hand behind the doctrine of res extra commercium. More precisely, the conception of police powers advanced by U.S. Supreme Court Justice Harlan in Mugler v. Kansas lies behind Chief Justice Das's invocation of res extra commercium.¹⁶ It is this conception of police powers, this Article argues, that serves to constrict the scope of fundamental rights and places certain forms of governmental regulations outside the purview of constitutional protection and judicial review.¹⁷ Second, this Article argues that Chief Justice Das did not openly invoke the police power doctrine in R.M.D. Chamarbaugwala because larger benches of the Supreme Court had earlier expressly rejected the import of the American doctrine due to the structural differences between the two constitutions¹⁸ as a result of which the jurisprudential climate was positively hostile to the doctrine.¹⁹ In fact, Chief Justice Das had made earlier failed attempts to import the doctrine,²⁰ only to be faced with strong opposition from his brethren on the bench.²¹ Thirdly, it will be argued that the police power doctrine Chief Justice

[Page 68]

Das sought to import under the verbal dressing of res extra commercium is incongruous with the scheme of the Indian Constitution; it cannot perform the role assigned to it by Chief Justice Das-namely of blocking certain activities from falling within the purview of constitutional protection and rendering them constitutional outcasts.

Part II begins by setting out the nature of the freedoms guaranteed under Article 19(1)(g) and the limitations that can be imposed on them under Article 19(6). This Part sets out the conceptual difference between two kinds of regulations of fundamental rights in the Constitution of India: exante "constrictions" of fundamental rights and ex post "restrictions" on fundamental rights imposable under Article 19(6).²² It will then be argued that the concept of res extra commercium seeks to impose ex ante constrictions on fundamental rights as opposed to ex post restrictions, thus purporting to obviate the need to impose ex post restrictions under Article 19(6).

Part III will seek to disambiguate the phrase res extra commercium. This Article argue that the Indian Supreme Court uses the term in...