CASE COMMENT

NAME OF THE CASE : Humdard Dawakhana v. Union of India

EQUIVALENT CITATION: AIR 1960 SC 554

The Drug and Magic Remedies (Objectionable Advertisements) Act, 1954, has been enacted,
according to its preamble, to control the advertisements of drugs in certain cases, to prohibit
advertisements relating to remedies pretending to have magic qualities and to provide for
other matters connected therewith. The title of the Act also shows that it is directed against
objectionable advertisements. The definition section (s.2) in clause (a) defines
advertisements and in clause (b) drugs which include—(i) medicines for use of human beings
and animals, (ii) substances for use of diagno- sis, treatment or prevention of diseases in
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. Clause (c) defines magic re- medies to include a talisman, mantra, kavacha
and other charms and (d) relates to the publication of any advertisement and (e) what a
venereal disease is. Section 3 prohibits advertisements of drugs for treatment of diseases and
disorders. Clause (a) of section 3 deals with procurement of miscarriage in women or
prevention of concep- tion; clause (b) with maintenance or improvement of capacity of hu-
man beings for sexual pleasure; clause (c) with diagnosis and cure of venereal and other
diseases. Section 4 prohibits misleading adver- tisements relating to drugs. Section 5
similarly prohibits advertise- ments of magic remedies efficacious for purposes specified in
section 3. Section 6 prohibits the, import into and export from India of certain
advertisements. 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 hospi- tals or
laboratories. It also excludes advertisements printed or pub- lished by the Government or
with its previous sanction. Section 15 gives the Government the power to grant exemptions
from the appli cation of sections 3, 4, 5, and 6 in certain cases. Section 16(1) autho- rises the
making of rules to carry out the purposes of the Act and 16(2)(a) specifically authorises the
specification of diseases or conditions to which the provisions of section 3 shall apply.

The constitutional validity of the above Act was challenged in Hamdard Dawakhana v.
Union of India on the following grounds:
 1. Advertisement is a vehicle by means of which freedom of speech guaranteed under
Art. 19 (1) (a) is exercised and restrictions imposed thereon by the Act are not
covered by Art. 19(2).
2. The Act and the rules made thereunder impose arbitrary and excessive restrictions
on the petitioners' rights under Art. 19 (1) (f) and (g).
3. The power of delegated legislation under section 3 is un-guided and uncanalised.
4. Power of confiscation under section 8 of the Act violates the rights under Arts. 21
and 31.
The Supreme Court has laid down in the instant case the following propositions with
respect to adjudication of the constitutionality of an Act under Part III of the Constitution:

1. It is necessary to ascertain the true nature and character of the Act, i. e. its
subject-matter, the area in which it is intended to operate, and its purport and intent.
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 surrounding circumstances and
conditions, the mischief which it is intended to sup- press, the remedy for the disease
which the legislature resolved to cure and the true reason for the remedy.1
2. Affidavits may be allowed to be given to show the reasons for the enactment
of the law, the circumstances in which it was conceived and the evils it was to cure.2
3. 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.3
4. To sustain the presumption of constitutionality the court may take into
consideration matters of common knowledge, the history of the times and may

2. The following cases were mentioned in support of this proposition : Dwarka Pd. Laxmi Narain v. State of
U.P., [1954] S.C.R. 674 ; Bengal Immunity Co. Ltd. v. State of Bihar, [1955] 2. S.C.R. 603 ; R.M.D.C. v. Union
of India, [1957] S.C.R. 930 ; Mahant Moti Das v. Sahi, A.I.R. 1959. S.C. 942 ; A.S. Krishna v. State of Madras
[1957] S.C.R. 399.

3
This was done in the following cases: R.K. Dalmia v. Justice S.R Tandolkar t [1959] S.C.R. 279; Kaihi
Raning v. State of Saurashtra, [1952] S.C.R. 435 ; K.K. Kochunni v. State of Madras, A.I.R. 1959 S.C. 725.
 assume every state of facts which can be conceived of as existing at the time of
legislation.4

Going into the history of the Act the Court found that " it can- not be said that the object of
the Act was merely to put a curb on Advertisements which offend against decency or morality
but the object truly and properly understood is to prevent self-medication or treatment by
prohibiting instruments which may be used to spread the same or which tend to spread the evil.
" The Act curbed advertisements with a view to prevent self-medication and self-treatment. The
Court stated that an advertisement was no doubt a form of speech but its true character was
reflected by the object for the promotion of which it was employed. A commercial
advertisement having an element of trade and commerce does not fall within the concept of
freedom of speech for its object is not the propagation of ideas—social, political or economic—
or furtherance of literature or human thought, but it is a part of the business and cannot be called
to have any relationship with the essential concept of freedom of speech. 5n the instant case, the
advertisement commending the efficacy and value of certain medicines and drugs has been held
to fall within Art. 19(1) (g) and not within Art. 19(1) (a). The Court refused to characterise an
advertisement commending drugs and substances as appropriate cure for certain diseases as an
exercise of the right of freedom of speech. The restrictions imposed by the Act were thus held to
be in the interest of the general public and Reason- able, keeping in view the purpose of the Act.

A part of Section 3 of the Act was, however declared unconsti- tutional on the ground of
excessive delegation of legislative power. The section banned publication of any advertisement
calculated to the use of drug for diagnosis, cure, etc. of any venereal disease or 'any other disease
or condition which may be specified in rules made under this Act'. The Court distinguished
between 'conditional legislation' and 'delegated legislation'. In the former the delegate's power is
that of determining when a legislative declared rule of conduct shall become effective; 5 the latter
involves delegation of rule-making power which constitutionally may be exercised by the
administrative agent which means that " the Legislature having laid down the broad principles of
its policy in the legislation can then leave the details to be supplied by the administrative
authority". Referring to the words within inverted commas in Section 3, the Court characterised
them as vague. Parliament has established no criteria, no standards and has not prescribed any

4. R.K. Dalmia v. Justice Tandolkar, [1959] S.C.R. 279.

6. Cases cited are: Queen v. Burah, L.R. 3 A.C. 889 ; Russell v. Queen, 7 A.C. 829 ; Emperor v. Benoarilal, 72
I.A. 57 ; Inder Singh v. State of Rajasthan, [1957] S.C.R. 604.
principle on which a particular disease or condition is to be specified, nor it is stated what facts
or circumstances are to be taken into consideration to include a particular condition or disease.
The power of specifying diseases and conditions as given in Section 3 therefore was held as
going beyond permissible boundaries of valid delegation.

Section 8 of the Act conferring powers of seizure and detention of articles, documents
or anything have also been held by the Court as going far beyond the purpose of the Act
and imposing an unreason- able restriction on the fundamental rights of the petitioner and
so has been declared to be unconstitutional.

The case is sui generis so far as the question of the nature of advertisements is concerned
for the question has never figured before in any High Court or Supreme Court case. The
view adopted by the Court on this question, it is humbly suggested, appears to be
reasonable for an advertisement meant to promote sale of wares of commodities should be
regarded as promoting trade and commerce and should therefore fall under Art. 19 (1) (g).
As the Supreme Court itself has stated, an .advertisement to propagate social, political,
economic or literary ideas may be regarded as falling under Art. 19(1)(a) . It is thus
necessary to decide the nature of the advertisement itself before its validity can be judged
with reference to Art. 19(1)(a) or 19(1) (g).
From the above brief summary it will appear that the case constitutes an important
judicial pronouncement for, besides clarifying the nature of advertisements vis-a-vis the
fundamental rights, it is one of the very few cases where power of delegated legislation
conferred by Parliament on the Executive has been held to be unconstitutional on the
ground of being uncanalised and uncontrolled.