 |
| Ancient Chineese Customs Post on Silk Road near Dunhuang by Leon Petrosyan. |
Article 301 promises that there shall be no hindrance for conducting
meaningful trade, commerce and intercourse throughout
the territory of India subject to the authorized restrictions U/A 302-307.
Art. 302 confers power
on Parliament to restrict Freedom u/a 301 in public interest from one state to another or within any part of the
territory of India. Here to curtail the freedom all that is needed by
parliament is to justify the law in public
interest.
Article 303 (1)
restricts the legislative powers (including sub- delegation) of Parliament
& State Legislatures to give preferential treatment to any state by virtue
of any entry relating to trade and commerce in any of the Lists in the Seventh
Schedule (re: Article 246). It must be highlighted that this restriction on
legislative power does not extend to freedom of intercourse, hence, weakens the
Freedom of intercourse throughout the Indian Territory.
Article 303 (2), bends a
little in favour of Legislative Powers of parliament. Parliament is allowed to make/
authorize any discriminatory law {as per Art. 303 (1)} if it is declared by such law that it is necessary to do so for
dealing scarcity of goods in any part of India. This power is very sweeping as
it only requires a declaration in the law itself that the law is necessitated
by scarcity of goods, without going into the reality of it. The Essential
Commodities Act, 1955 is probably justified under this Article.
Article 304, again bends
in favour of Legislative powers of States. It supersedes Article 301 & 302. Art. 304 (a) allows the States to impose tax on goods imported from other States/ Union territories, to which similar
goods manufactured in that State are subject. But this should not be done in a
manner so as not to discriminate between goods- imported or manufactured.
Besides this clause deals with taxes on goods only. One peculiar point to note
is that, Union Territory has appeared for the first time in this Chapter. And
to the disadvantages of Union Territory, while the goods originating from Union
Territories can be taxed by other states, no such corresponding power has been
conferred upon the Union Territories to protect its domestic manufacturers.
Though Art. 304 (a)
seems a fair power conferred on states to create a level playing field for
Domestic manufacturers by subjecting all competitors to same tax regime in the
same market, thereby keeping it competitive, Art. 304 (b) on the other hand is
quite sweeping in nature. It authorizes the State Legislatures to impose reasonable restrictions in the public
interest on the freedom of trade, commerce or intercourse with or within
that State. Hence, the only requirements needed to curtail the Freedoms under
Art. 301 is that the law should be in Public Interest and impose reasonable
restrictions.
However, U/A 304 (b) there is a bit of hierarchal- procedural hiccup for
the States in form of Presidential assent,
which also acts as a leash on its legislative power. Without previous sanction of
the President, no Bill/ amendment can be introduced/ moved in the Legislature
of a State.
Article 305 upholds
existing laws as valid irrespective of Articles 301 & 303, unless otherwise
directed by the President. Article 305 was amended by the Constitution (Fourth Amendment) Act, 1955 and it was added that
laws made before the Amendment will also be saved
despite Art. 301. Furthermore Article 301 will not come in the way of the laws
enacted by Parliament & State Legislatures u/a 19 (6) (ii) {which itself
was amended by Constitution (Fourth
Amendment) Act, 1955}, which includes
restricting freedom on practise any trade & profession to the extent of
State Monopoly of any trade, business, industry or service under the State’s
power.
This amendment was
brought in light of the question raised in Saghir
Ahmed v. the State of U.P. as to whether an Act providing for a State
monopoly in a particular trade or business conflicts with the freedom of trade
and commerce guaranteed by article 301, though the Supreme Court left the
question undecided.
Article 306 dealt with
the Power of Part
B States of the First Schedule to impose restrictions on trade and commerce,
which was repealed by the Constitution (Seventh Amendment) Act, 1956.
Article 307 envisages
National/ Inter-state authority for carrying out the purposes of articles 301,
302, 303 and 304, and conferring of corresponding powers and duties under
parliamentary law. Observing closely, I wonder if the word ‘authorizing’ in
Article 303 refers to the Authority contemplated under this Article. At present
no such Authority is in existence in India.
[Though an Inter- State Transport Commission was enacted under Section 63A in The Motor
Vehicles Act, 1939. But since this law has been replaced by the Motor Vehicles Act, 1988, its no
more in existence.]
“PART
XIII
TRADE,
COMMERCE AND INTERCOURSE WITHIN THE TERRITORY OF INDIA
301. Freedom of trade, commerce and intercourse.—Subject
to the other provisions of this Part, trade, commerce and intercourse
throughout the territory of India shall be free.
302. Power of Parliament to impose restrictions on
trade, commerce and intercourse.—Parliament may by law impose such restrictions
on the freedom of trade, commerce or intercourse between one State and another
or within any part of the territory of India as may be required in the public
interest.
303. Restrictions on the legislative powers of the Union
and of the States with regard to trade and commerce.—(1) Notwithstanding
anything in article 302, neither Parliament nor the Legislature of a State
shall have power to make any law giving, or authorising the giving of, any
preference to one State over another, or making, or authorising the making of,
any discrimination between one State and another, by virtue of any entry
relating to trade and commerce in any of the Lists in the Seventh Schedule.
(2) Nothing in clause (1) shall prevent Parliament from
making any law giving, or authorising the giving of, any preference or making,
or authorising the making of, any discrimination if it is declared by such law
that it is necessary to do so for the purpose of dealing with a situation
arising from scarcity of goods in any part of the territory of India.
304. Restrictions on trade, commerce and intercourse
among States.—Notwithstanding anything in article 301 or article 303, the
Legislature of a State may by law—
(a) impose on goods imported from other States or the
Union territories any tax to which similar goods manufactured or produced in
that State are subject, so, however, as not to discriminate between goods so imported
and goods so manufactured or produced; and
(b) impose such reasonable restrictions on the freedom
of trade, commerce or intercourse with or within that State as may be required
in the public interest:
Provided that 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.
305. Saving of existing laws and laws providing for
State monopolies.—Nothing in articles 301 and 303 shall affect the provisions
of any existing law except in so far as the President may by order otherwise
direct; and nothing in article 301 shall affect the operation of any law made
before the commencement of the Constitution (Fourth Amendment) Act, 1955, in so
far as it relates to, or prevent Parliament or the Legislature of a State from
making any law relating to, any such matter as is referred to in sub-clause
(ii) of clause (6) of article 19.
306. [Power of certain States in Part B of the First
Schedule to impose restrictions on trade and commerce.] Rep. by the
Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch.
307.
Appointment of authority for carrying
out the purposes of articles 301 to 304.—Parliament may by law appoint such
authority as it considers appropriate for carrying out the purposes of articles
301, 302, 303 and 304, and confer on the authority so appointed such powers and
such duties as it thinks necessary.”
No comments:
Post a Comment