Holding

Clause 17, which prevents renewal of approved guide identity cards after the age of 60, is ultra vires and unconstitutional as it is not a reasonable restriction on the right to practice a profession under Article 19(1)(g).

Summary

The appellants, professional tourist guides, held identity cards issued by the Department of Tourism that permitted them to charge visitors for guiding services. Clause 17 of the governing instructions stipulated that the identity card would not be renewed once a guide turned 60 years old, leading to the denial of renewal for the appellants. After the High Court dismissed their writ petitions, the Supreme Court examined whether this age bar constituted a reasonable restriction on the fundamental right to practice a profession under Article 19(1)(g) of the Constitution and whether it fell within the regulatory scope of the Ancient Monuments and Archaeological Sites and Remains Act, 1958. The Court held that the age restriction was a total prohibition lacking any demonstrable public interest, was not supported by the Act or its Rules, and therefore was ultra vires. Consequently, the appeals were allowed, the order refusing renewal was set aside, and Clause 17 was struck down.

Issues considered

Whether the age restriction in Clause 17, which bars renewal of guide identity cards after the age of 60, is a reasonable restriction on the right to practice a profession under Article 19(1)(g) of the Constitution.
Whether Clause 17 is within the regulatory powers conferred by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 and its Rules.
Whether the restriction satisfies the test of reasonableness and nexus with public interest as required by Article 19(6).

Legislation cited

Ancient Monuments and Archaeological Sites and Remains Act, 1958s. 18, s. 38

Subjects

Article 19(1)(g)Professional freedomAge discriminationLicensingTourist guidesConstitutional lawReasonable restrictionAncient Monuments ActRegulatory powerUltra vires

Judgment

A B.P. SHARMA
v.
UNION OF INDIA AND ORS.

AUGUST 18, 2003

B [BRIJESH KUMAR AND ARUN KUMAR, JJ.]

Constitution of India, 1950-Article 19(/)(g) and(6)-Professional
Guides-Grant of licence by the Government on fulfillment of certain
C conditions-Renewal of identity cards/licence-Condition therein that on
attaining 60 years identity card issued will not be renewed-Validity of-
Held: Condition of age bar for renewal of identity card issued to approved
Guides is not a reasonable restriction-ft amounts to total prohibition to
carry on profession of one's own choice after attaining a particular age, thus
the condition quashed being ultra vires-Ancient Monuments and
D Archaeological Sites and Remains Act, 1958·-Ancient Monuments and
Archaeological Sites and Remains Rules, 1959.

Appellants-Guides by profession, conduct the tourists to historical
monuments and other places of interest of tourists. They are the holders of
identity cards as 'Approved Guides' which are issued by the Department of
E Tourism. Appellants applied for renewal of their identity cards, which was
refused by virtue of clause 17 of the instructions issued by Department of
Tourism that when guides attain the age of 60 years identity card issued to
them will not be renewed further. Appellants then filed writ petitions. High
Court relying on Virender Kumar Chadha 's case dismissed the petitions.
F Hence the present appeals.

Respondents contended that by statutory rules framed under the
provisions of the Ancient Monuments and Archaeological Sites and Remains
Act, 1958, the profession of such persons who may take the visitors around
for monetary consideration can be regulated by laying down conditions of a
G licence granted for the purpose and that normally a person after attaining
the age of 60 years tends to lack physical stamina, which the nature of the
job very much requires.

Allowing the appeals, the Court
HELD: 1Clause17 of the instructions· issued by Department of Tourism
H 684
B.P. SHARMA v. U.O.I. 685
that when guide attains the age of 60 years, identity card issued to him/her - A
will not be renewed further, is ultra vires. The order refusing to renew the
'identity cards' of the appellants is quashed. (697-G)

2.1. The whole reading of Sections 18 and 38 of the Ancient Monuments
and Archaeological Sites and Remains Act, 1958 dealing with the right of
public access to any protected monument and rules in respect of the right B
and the fee charged therefor; and Rule 8(d) of the Ancient Monuments and
Archaeological Sites and Remains Rules, 1959 provides certain prohibitions,
that no person shall show a visitor around for monetary consideration except
under the authority or conditions of licence granted by an archaeological
officer, lead only to the conclusion that the nature of power is only regulatory. C
So far as the fixation of age beyond which it is provided under Clause 17 that
the identity card shall not be renewed, does not seem to be within the scope of
the Section 18, 38 and Rule 8(d). (691-A, B]

2.2. No benefit is conferred nor any emolument is payable to the Guides
by the Government. No kind of protection nor any benefit is provided by the D
Government. This is as much a matter of self-employment and private
profession, as many others. Therefore, in absence of any such relationship
as that of master and servant or contractual in nature between the State and
the approved Guides, ordinarily there would be no good reason for the State
to completely prohibit at its choice, to carry on a private profession or self-
employment, on attaining a certain age. (693-E, F] E
2.3. The Regulatory measures may be for better efficiency, conduct and
behaviour in the public interest, but ordinarily it cannot prohibit a person
totally debarring him from carrying on his profession at an age chosen by
the Government unless there may be special reasons for it. The right F
guaranteed to all citizens under Article 19(1)(g) of the Constitution is to
practice any profession or to carry on any calling, trade or business. Clause
(6) of Article 19(1) however, places a restriction that nothing would prevent
the State from making any law imposing reasonable restrictions in exercise
of the right in the interest of general public. Thus, the freedom, guaranteed
under Article 19(l)(g) is valuable and cannot be violated on grounds which G
are not established to be in public interest or just on the basis that it is
permissible to do so. For placing a complete prohibition on any professional
activity, there must exist some strong reason for the same with a view to attain
some legitimate object and in case of non-impositipn of such prohibition it
may result in jeopardizing or seriously affecting the interest of the people in H
686 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A general. If it is not so, it would not be reasonable restriction if placed on
exercise of the right guaranteed under Article 19(l)(g). 1694-F-H; 695-E, Fl

2.4. Restriction of age, stipulated under clause no.17 of the conditions
of the identity card/licence issued by the respondent, does not seem to be a
reasonable restriction. It -amounts to total prohibition to carry on the
B profession of one's own choice after attaining a particular age. It is true, even
total prohibition upon carrying on one's profession can be imposed by way of
regulatory measure but for doing so condition of public interest must be
fulfilled. It is not to be taken lightly; it must pass through a stringent test.
There are a number of callings and professions in which people are engaged
C even after attaining the age of 60 or 65 years and in pursuing such self-
employment and private profession they find means of their livelihood, without
causing any harm to public interest. Such is the instant case too.
1696-G, H; 697-A, BJ

2.5. It is always better, nay, necessary too that the freedoms as
D guaranteed under the Constitution should be allowed to be enjoyed by the
citizens to the fullest possible extent without putting shackles of avoidable
cobweb of rules and regulations putting check and restrictions in the
enjoyment of such freedoms. There is no reasonable ground to have put a
condition of age bar, whereafter a Guide may not be allowed to continue his
profession as it does not fall in any of such categories which may justify
E placing such restrictions completely debarring him to act as Guide.
Curtailment of freedom must have some strong reasons and real nexus with
the purpose sought to be achieved. It would not be imposed merely because it
is permissible for the State to do so. 1697-E, F)

F Saghir Ahmed and Anr. v. State of U.P. and Ors., (1955) 1 SCR 728;
J.K. Industries ltd. and Ors. v. Chief Inspector of Factories and Boilers and
Ors., [1996) 6 SCC 665; State ofMaharashtra and Anr. etc. etc. v. Himmatbhai
Narbheram Rao and Ors,. etc. AIR (1970) SC 1157; State ofAssam and Ors.
etc. etc. v. Sristikar Dowerah and Ors. etc. etc. AIR (1957) SC 414; Union of
India and Ors. v. Mis. Bhanama/ Gu/zarima/ ltd. and Ors., AIR (1960) SC
G 475 and MR.F. Ltd. v. Inspector, Kera/a Government and Ors., 1199818 SCC
227, referred to.

V.K. Chadha v Union of India, W.P.No. 10714 of 1991 decided by
Allahabad High Court on I 0.9.1992 and J.K Agarwal v Union ofIndia, W.P.No
948of1970, disapproved.
H
B.P. SHARMA v. U.0.1. [BRIJESH KUMAR, J.] 687
CIVIL APPEL LA TE JURISDICTION : Civil Appeal No. 2539 of 1998. A
From the Judgment and Order dated 28.4.95 of the Allahabad High Court
in C.M.W.P. No. 5149of1991.

WITH
B
C.A. No. 2540of1998.

Amit S. Chadha and Ms. Rekha Pandey for the Appellant.

Kailash Vasudev, Y.P. Mahajan, S.N. Tredole and D.S. Mehra for the
Respondents. c
The Judgment of the Court was delivered by

BRIJESH KUMAR, J. The above-noted civil appeals involve the same
question of fact and law hence, they are being disposed of by this common
judgment. The appellants are Guides by profession and held identity cards D
as "approved guides". The identity cards were issued by the Regional Director,
Tourism, Government oflndia, Regional Tourist Office, 88, Janpath, New Delhi
and counter-signed by the Director, Monuments, Archaeological Survey of
India.

The guides as commonly known conduct the tourists to the historical E
monuments and other places of interest of tourists and explain the background
and the importance of such places as well as acquaint them with the historical
facts relating to the monuments and many landmarks of the area. This job
developed into a kind of a specialized profession and they have to handle
local tourists, foreign tourists, tourist parties and many dignitaries visiting the F
places. They charge for rendering such services. In this background it appears
that it was thought necessary to regulate this profession and a need also
seems to have been felt to issue identity cards to those persons who may
act as authorized guides and charge fee for the service rendered. So as the
guides may be presentable, well-up in their knowledge and their conduct
towards the tourists may be cultured and ethical, certain conditions have G
been laid down including one relating to holding a test which any of such
person is required to pass before being entitled to be issued an identity card
as a guide. Detailed instructions in that connection have been issued in 1979
by the Ministry of Tourism and Civil Aviation, Department of Tourism,
Government of India.
H
688 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A A few of the conditions are that they should charge their remuneration
only at the rates fixed by the Department of Tourism; they would not solicit
tips or other material gains from the tourists; they would maintain good
conduct and behaviour; they would carry out the <!ssignments as may be
made by the Department of Tourism for conducting any tour or site seeing
etc. and they are also supposed to undergo written and oral examination
B conducted by the Tourism Department. One of the conditions with which we
are concerned in the present appeals is contained in clause 17. It provides
"When a guide attains the age of 60 years the identity card issued to him/ ..
'
her will not be renewed further". It may be pertinent to note that sometime
during the pendency of the litigation, it is informed that the age has been
C extended to 65 years.

The authorities, in accordance with the guidelines issued, declined to
renew the identity cards of the appellants, on the ground of age hence the
guides approached the High Court by filing petitions under Article 226 of the
Constitution of India but failed. The present appeals have thus arisen from
D an order passed by the Allahabad High Court dismissing the writ petitions.
The High Court, expressed its agreement with an earlier judgment of the
Division Bench of the same Court in Virender Kumar Chadha v. Union of
India and Ors., rendered in W.P. No. 10714of1991 on September 10, 1992.
The judgment in the above noted case deals with and repels several points
E raised by the petitioners in that bunch of petitions including the challenge
made to fixing of age. Learned counsel appearing for the appellants before us,
has raised a grievance only in regard to fixation of age beyond which identity
card is not liable to be renewed merely on the event of attaining a particular
age.

p In connection with fixing of age beyond which no renewal of identity
card is permissible, the case of respondents is that job of a guide requires
a lot of physical stamina as sometimes they have to take the tourist parties
outside the station and they have also to climb steps and have to walk long
distances in the monuments etc. It is further pleaded that normally a person
after attaining the age of 60 years tends to lack physical stamina, which the
G nature of the job very much requires. The judgment in Virendra Kumar
Chadha (supra) refers to the decision of Delhi High Court in J.K. Agarwal
v. Union of India, in Writ Petition No. 948of1970 and quoted a passage from
f'
that judgment which reads as under :

"I do not think that the profession of tourist guides can be compared
H
B.P. SHARMA v. U.0.1. [BRIJESH KUMAR, J.] 689
to a profession of lawyers and doctors. The said professions are A
primarily concerned with the mental skills and mental faculties. On the
other hand, a tourist guide is required to perform the function which
is basically physical or manual. The improvement of general health
standard is no ground for not fixing the upper age limit. In most of
the employments (Government as well as private), the persons are B
retired at the age of 58. It is true that there is no such thing as
retirement in a profession. In that sense a private tourist guide, who
does not bother about the Government's approval, is free to carry on
his profession as long as he wants. There would be no age bar.
However, the considerations are different when it comes to the approval
of guides by Government. A guide who has crossed the age of sixty C
years may not develop any physical handicap. But if the younger
guides are available they would be more energetic and would ultimately
be of greater assistance to the tourist. The validity of the age limit
prescribed by clause 17 cannot be tested merely on the basis of the
physical fitness of a particular guide. Young, energetic guide would
certainly promote better tourism business in comparison. I, therefore, D
hold that clause 17 is neither arbitrary nor unreasonable."

The Court then observed in the case of Virendra Kumar Chadha (supra) that
it was in respectful agreement with the reasons given in the judgment as
quoted above J.K. Agarwa/'s case.
E
It would be relevant to consider some of the provisions as indicated by
the learned counsel appearing for the respondents so as to be able understand
the legal sanction behind the conditions laid and restrictions placed on the
profession of guides.

The Ancient Monuments and Archaeological Sites and Remains Act, F
1958 (24 of 1958) was enacted to provide for preservation of ancient and
historical monuments and archaeological sites and remains of national
importance, for the regulation of archaeological excavations and for the
protection of sculptures, carvings and other objects of the kind. Our attention
is drawn to Section 18 of the Act which reads as under : G
"18. Right of access to protected monument-Subject to any rules
made under this Act, the public shall have a right of access to any
protected monument."

Section 38 provides for power of the Central Government to frame rules
H
690 SUPREME COURT REPORTS (2003) SUPP. 2 S.C.R.

A for carrying out the purpose of the Act. Sub-section (2) provides :
"In particular, and without prejudice to the generality of the foregoing
power, such rules may provide for all or any of the following matters,
namely:-

(a) xx xx xxx xx xx
B
(b) xx xx xxx xx xx

(c) the right of access of the public to a protected monument and the
fee, if any, to be charged therefor;

C (d) the form and contents of the report of an archaeological officer or
a licensee under clause (a) of sub-section (l) of section 23;

xxx xxx xxx"

Consequently, the Government framed rules known as the Ancient Monuments
D and Archaeological Sites and Remains Rules 1959. Our attention has been
drawn to rule 8 which is to the following effect :

"8. Prohibition of certain acts within monuments .- No person shall
within a protected monument;.

(a) do any act which causes or is likely to cause damage or injury
E to any part of the monument; or
(b) discharge any fire-arms; or
(c) cook or consume food except in areas, if any, permitted to be
used for that purpose; or
F (d) hawk or sell any goods or wares or canvass any custom for such
goods or wares or display any advertisement in any form or show
a visitor round for monetary consideration except under the
authority of, or under and in accordance with the conditions of
a licence by, an archaeological officer; or
G · (e) beg for alms; or
-(f) _·violate any practice, usage or custom application to or observed
-, in the monument; or
(g) bring, for any purpose other than the maintenance of the
monument,
H
8.P. SHARMA v. U.0.1. [BRIJESH KUMAR, J.] 691

(i) any animal, or A
(ii) any vehicle except in areas reserved for the parking thereof.''

The main stress is on clause (d) of Rule 8 which provides that no person shall
show a visitor around for monetary consideration except under the authority
of, or under and in accordance with the conditions of a licence granted by,
an archaeological officer. B
On the basis of the above provisions, it is sought to be explained on
behalf of the respondents that by statutory rules framed under the provisions
of the Ancient Monuments and Archaeological Sites and Remains Act, 1958,
the profession of such persons who may take visitors around for monetary
consideration can be regulated by laying down conditions of a licence granted C
for the purpose by an archaeological officer. An Archaeological Officer is
defined under Section 2(c) of the Act :

"2(c): "Archaeological officer" means an officer of the Department of
Archaeology of the Government of India not lower in rank than
Assistant Superintendent of Archaeology;" D
The learned counsel for the appellant has vehemently urged that the
powers derived by virtue of Rule 8 (d) framed under the authority of Section
38 to give effect to Section 18 of the Act by no means empowers an
Archaeological Officer to fix age beyond which a person may not be allowed
to carry on the profession of guide. We find that Section 18 of the Act only E
creates a right in the public to have access to any protected monument. It
would of course, be subject to any rule made under the Act, but by no st~etch
of imagination this provision can be pressed into service for prescribing any
age beyond which a guide shall not have the right to hold a licence to carry
on his profession. The right of access to monuments given under Section 18 p
to the public is apparently not connected with the profession which is carried
on by the guide holding an identity card/licence issued by a competent
authority. As a member of the public even a guide may have a right to visit
or enter into a protected monument complying with the rules which may be
applicable to any visitors/tourist as member of the public. It is not compulsory
that a tourist must take a guide with him. Therefore, in our view a reference G
to Section 18 made on behalf of the respondent has no direct bearing on the
point under consideration, it's indirect impact, however, we may consider a
little later.
Now coming to Section 38, we find that the Central Government under
clause (c) of sub-section (2) can make rules in respect of right of access of H
692 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A the public to a protected moment and the fee etc. which may be charged
therefor. It is certainly referable to Section 18 of the Act. It may be that by
implication, the access to the protected monument may include the entitlement
of the members of the public to know about the details of the monument, its
historical background and other connected matters, which information they
generally obtain through the guides. Therefore, it could be considered
B necessary to regulate the other related matters of right to access to monuments
eg. matters pertaining to the profession of guides. The Central Government
might like to see that the tourists are properly informed and not misguided
or fleeced by unscrupulous guides or such element posing to be guides,
though to engage a guide is optional on the part of the tourist. In this light
C we now advert to Rule 8(d) of the Rules which provides certain prohibitions,
saying that no person shall show a visitor around for monetary consideration
except under the authority or conditions of licence granted by an archeological
officer. The purpose of rule 8( d) is clear that the place may remain protected,
be maintained and be kept and well and no person may charge a visitor for
taking him around the place except one who is authorized as approved guide.
D His charges would be, as fixed.

The whole reading of all three provisions viz. Sections 18, 38 and Rule
8(d) lead only to the conclusion that the nature of power is only regulatory.
It does not in any manner lead to creation of relationship of master and
E servant between the State and the approved guides; nor even to any
relationship, contractual in nature. It is already indicated in reference to the
conditions laid, that minimum standard of basic knowledge has been provided
for and the conduct and behaviour of guides has been channelised in many
ways but it is to be seen as to whether the condition of Clause no. 17 can
be said to be within the regulatory power derived from the above noted
F provisions or not.

It may be pertinent to mention that one of the submissions made on
behalf of the petitioners is that the identity card has been issued and conditions
have been laid by Regional Director, Tourism, Government of India and not
by the Archaeological Officer of the Archaeological Survey of India,
G. Government of India. As a fact, we find that an officer of the Archaeological
Survey of India has counter-signed the identity card and the conditions laid
down by the Department of Tourism. However, it may not be necessary to go
into that aspect of the matter since no other objection has been raised before
us in respect of any other condition laid down in the identity card for the
H approved guides. The case of the respondents is that the two departments
B.P. SHARMA v. U.O.l. [BRIJESH KUMAR, J.) 693
namely, Archaeological Survey of India and the Department of Tourism; they A
have to work in collaboration of each other as access to the protected
monuments is intimately connected with the tourism and the tourists. Therefore,
both departments are equally involved ... An officer of the Archaeological
Survey of India has also counter-signed the identity card and the conditions
laid for their conduct etc. We would. like to leave this matter here alone
without going into any other detail since it will not be necessary for deciding B
the validity of Clause 17 on the ground we propose to test.

So far as the fixation of age beyond which it is provided under the Clause
no. I 7 that the identity card shall not be renewed, does not seem to be within the
scope of the provisions indicated above. The guides profess their independent C
profession. Since they come in touch and have to deal with the members of public
and the tourists from within and outside the country, the Government of India
considered it necessary to regulate the conditions of their profession. For example
the fee etc. which would be chargeable by them, the way they will conduct their
profession and behave with the tourists and many do's and don't's have been
provided. So far so good, since it is undoubtedly only regulatory in nature and D
they have to conform to certain norms laid necessarily suitable for the profession,
which as a matter offaet is for the benefitand to protect the interest of the visitors
and tourists seeking access to the protected monuments. But otherwise the State
or the Government oflndia does not figure into the picture in any role whatsoever.
There is no relationship of master and servant between them nor !here exists any E
contractual relationship. No benefit is conferred nor any emolument etc. is
payable to the guides by the Government. No kind of protection nor any other
benefit is provided to them by the Government. This is as much a matter o•· self-
employment and private profession', as many others. In absence of any such
relationship as that of master and servant or contractual in nature, ordinarily there
would be no good reason for the State to completely prohibit at its choice, to F
carry on a private profession or self-employment, on attaining a certain age. The
High Court expressed its agreement with an earlier decision of Allahabad High
Court in the case of Virender Kumar Chadha, (supra) which in tum expressed
its agreement with reasons given in the case of J.K. Agarwal, (supra), a passage
from which has been quoted earlier. In the case of J.K. Agarwal, (supra), a G
distinction has been sought to be made between the profession of the tourists
guides and the professions like that of lawyers and doctors and it has been
observed that while the latter are primarily concerned with mental skills and mental
faculties the former relates basically to physical or manual conditions. It cannot
be said that the doctors and lawyers do not need to have energy, stamina and
strength to practice their profession, though may be it is required lesser in degree. H
694 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A We feel that this kind of a distinction is misconceived in the matter of private
profession which is self-employment of a person equipped in a particular
discipline or profession; it is better left to the client, patient or consumer of the
related service to choose as to whose services they may like to avail of. Besides
doctors and lawyers there are innumerable categories of persons who are self-
B employed, earning their livelihood exerting themselves physically and manually
also. It does not mean that they can be subjected to total curtailment of their
right to earn their livelihood at any given stage. We also fail to understand the
logic that young and energetic would certainly promote better tourism business.
The visitors come to see the places of interest, not because of the energetic guides
but due to the importance of a monument, its beauty, historical background or
C things like that. If young and old guides both are available, it would be for the
visitors to choose whom to engage; those who are less energetic may not
undertake very arduous engagement and may still able to perform and profess
their profession restricting activities according to their ability to manage the
assignment. At times it is quite possible that a more matured and elder guide
may be more informative and may make the tour more interesting. Hence, in private
D professions it is better left to the consumer of the service to make his own choice,
whatever be the profession. The observation in J.K. Agrawal's, case (supra) that
a Guide may not bother about the conditions laid for approved guides and may
continue with the work of guide; true there is no such restriction for it under
Ru le 8(d) but it cannot be with charges for the job. Where there may be no such
E restriction without charges there is no good reason to prohibit charging for it. A
profession cannot be carried on without any remuneration. Therefore, the line of
reasoning adopted _in the case of J.K. Agrawal, (supra) with which agreement
has been expressed in the case of Virender Kumar Chadha, (supra) followed in
the impugned judgment does not appeal to reason. Regulatory measures may be
for better efficiency, conduct and behaviour in the public interest, but ordinarily
F it cannot prohibit a person totally debarring him from carrying on his profession
at an age chosen by the Government unless there may be special reasons for it.

The right which is guaranteed to all citizens under Article 19( 1)(g) of
the Constitution of India is to practice any profession or to carry on any
G calling, trade or business. Clause (6) of the article 19(1) however, places a
restriction that nothing would prevent the State from making any law imposing
reasonable restrictions in exercise of the right in the interest of general public
Sub-clauses (i) and (ii) further provide that professional and technical
qualification as may be thought necessary for practicing the profession can
always be prescribed and exclusion of carrying on of any calling, trade or
H business etc. is also envisaged which is also carried on by a State or by a
B.P. SHARMA v. U.0.I. [BRIJESH KUMAR, J.] 695
Corporation owned and controlled by the State. Subject to above noted A
restrictions the valuable right as provided under Article 19(1 )(g) is available
to all the citizens who are free to choose any trade, business, calling or
profession etc. It obviously, also includes the manner and terms in which they
will carry on their profession, but again subject to reasonable restrictions
which may be thought necessary by the State in the interest of general public.
On the other hand, once a citizen voluntarily choo2~s c~ join government

- service or any other service, he would obviously be free to do so but he
would be bound by the terms and conditions of the service as may be
provided under the law or by contract of service.
B

The freedom under Article 19(l)(g) can also be completely curtailed in C
certain circumstances eg. where profession chosen is so inherently pernicious
that nobody can be considered to have a fundamental rights to carry on such
business, trade, calling or profession like gambling, betting or dealing in
intoxicant or an activity injurious to public health and morals. It may be useful
to refer to few decisions of this court on the point at this stage, viz. in [1955]
1 SCR p. 707 = AIR (l 954) SC 728, Saghir Ahmad and and Anr. v. State of D
UP. and Ors., [1996] 6 SCC 665 and JK. Industries Ltd. and Ors. v. Chief
Inspector of Factories and Boilers and Ors. The main purpose of restricting
the exercise of the right is to strike a balance between individual freedom and
social control. The freedom, however, as guaranteed under Article 19(l)(g) is
valuable and cannot be violated on grounds which are not established to be E
in public interest or just on the basis that it is permissible to do so. For
placing a complete prohibition on any professional activity, there must exist
some strong reason for the same with a view to attain some legitimate object
and in case of non-imposition of such prohibition it may result in jeopardizing
or seriously affecting the interest of the people in general. If it is not so, it
would not be a reasonable restriction if placed on exercise of the right F
guaranteed under Article 19( 1)(g). The phrase in the interest of general public'
has come to be considered in several decisions and it has been held that it
would comprise within its ambit the interests like public health and morals
(Refer to AIR (1970) SC 1157 the State of Maharashtra and Anr. etc. etc. v.
Himmatbhai Narbheram Rao and Ors. etc.), economic stability AIR (1957) SC G
414 State of Assam and Ors. and etc. etc. v. Sristikar Dowerah and etc. etc.,
stability of the country, equitable distribution of essential commodities at fair
prices (AIR (1960) SC 475, Union of India and Ors. v. Mis Bhanamal
Gulzarimal Ltd and Ors.), for maintenance of purity in public life, prevention
of fraud and similar considerations. On consideration of a catena of decisions
on the point, this Court, in a case reported on [1998] 8 sec p. 227, M.R.F. Ltd H
696 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A v. Inspector, Kera/a Government and Ors., has laid certain tests on the basis
of which reasonableness of the restriction imposed on exercise of right
guaranteed under Article 19( I )(g) can be tested. Speaking for the Court,
Saghir Ahmad, J. (as he then was), laid such considerations as follows :

"(I) While considering the reasonableness of the restrictions the
B court has to keep in mind the Directive Principles of State Policy.

(2) Restrictions must not be arbitrary or of an excessive nature so as
to go beyond the requirement of the interest of the general public.

(3) In order to judge the reasonableness of the restrictions, no abstract
C or general pattern or a fixed principle can be laid down so as to be
of universal application and the same will vary from case to case as
also with regard to changing conditions, values of human life social
philosophy of the Constitution, prevailing conditions and the
surrounding circumstances.

D (4) A just balance has to be struck between the restrictions imposed
and the social control envisaged by clause (6) of Article 19.

(5) Prevailing social values as also social needs which are intended
to be satisfied by restrictions have to be borne in mind. (See State of
UP. v. Kausha/iya, AIR (1964) SC 416 = [1964] 4 SCR 1002.
E
(6) There must be a direct and proximate nexus or a reasonable
connection between the restrictions imposed and the object sought
to be achieved. If there is a direct nexus between the restrictions and
the object of the Act, then a strong presumption favour of the
constitutionality of the Act will naturally arise. (See Kavalappara
F Akottarathil Kochuni v. States of Madras and Kera/a, O.K. Ghosh v.
E.X Joseph, AIR (1960) SC 1080=[1960] 3 SCR 887, AIR [1963] SC 812
= [1963] Supp 1 SCR 789."

Thus testing the restriction of age, in the light of law as indicated in
the preceding paragraphs, clause no. 17 of the conditions of the identity card/
G licence issued by the respondent, on the face of it, does not seem to be a
reasonable restriction. It amounts to total prohibition to carry on the profession
of one's own choice after attaining a particular age. It is true, even total
prohibition upon carrying on one's profession can be imposed by way of
regulatory measure but for doing so condition· of public interest must be
H fulfilled. It is not to be taken lightly; it must pass through a stringent test.
B.P. SHARMA v. U.0.1. [BRIJESH KUMAR, J.] 697
There are a number of callings and professions in which people are engaged A
even after attaining the age of 60 or 65 years and in pursuing such self-
employment and private profession they find means of their livelihood, without
/1
causing any harm to public interest. Such is the case in hand too. The reason
which has been indicated in the case of J.K. Agarwal, (supra) which found
favour in the Division Bench decision of V.K. Chadha, (supra) followed in the B
impugned judgment of the High Court does not contllin s~1ch reasons which
.... can be said to be reasonable enough to curtail totally the right of carrying
on profession of one's choice on attaining a particular age. No element of
public interest is involved. It is better to leave it for those who are in the field
namely, carrying on their profession and the consumers of their services. The
purpose sought to be achieved as indicated in J.K. Agarwal's case (supra) C
that it may promote tourism is far fetched and unrealistic. We have already
considered this object sought to be achieved by placing the restriction of age.
The tourists are attracted by the place, its beauty, importance and historical
background etc. and not because of the more energetic guides. No harm is
going to be caused to the general public if young and old people both are
professing their profession of guides and are available for the service to the D
tourists.
It is always better, nay, necessary too that the freedoms as guaranteed
under the Constitution should be allowed to be enjoyed by the citizens to the
fullest extent without putting shackles of avoidable cobweb of rules and
regulations putting check and restrictions in the enjoyment of such freedoms. E
We find no reasonable ground to have put a condition of age bar, whereafter
a guide may not be allowed to continue his profession as it does not fall in
any of such categories which may justify placing such restrictions completely
debarring him to act as guide. Curtailment of freedom must have some strong
reasons and real nexus with the purpose sought to be achieved. It would not F
be imposed merely because it is permissible for the State to do so.
For the reasons indicated above, we allow the appeals, set aside the
judgment and order passed by the High Court and the orders impugned by
the appellants refusing to renew their 'identity cards' and we hold the Clause
No.17 of the conditions as ultra vires and the same is quashed.
G
The respondents shall bear the costs of the appeals, which we assess
at Rs. 10,000 for each appeal.
N.J. Appeals allowed.