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TMI Blog1999 (5) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... .G. Pragasam, Kailash Vasdev, Rajiv Mehta, K.H. Nobin Singh, Ms. H. Wahi, Goodwill Indeevar, Ms. Sumita Hazarika, Hari Shankar, K., Brijender Chahar, Vimal Dave, Ms. Indu Malhotra, Vijay Hansaria, J.K. Bhatia, Ajay Kumar Gupta, S.K. Agnihotri, Ms. Madhur Dadlani, Arunshwar Gupta, Srilok Nath Rath, G. Prakesh and Ms. Beena Prakash, Advocates JUDGMENT A.P. MISRA, J. 1. Special leave granted in all the special leave petitions. 2. We are witnessing in this case exhibition of Federalism in true spirit. Contrary to the usual pouring in of citizen's writ petitions for vending their grievances against the States, here we are drawn to decide issues inter se between two distinct sets of States, one challenging and the other upholding certain provisions of the Lotteries (Regulation) Ordinance, 1997 (Ordinance No. 20 of 1997) (hereinafter referred to as "the Ordinance No. 20") and now the Lotteries (Regulation) Act, 1998 (hereinafter referred to as "the 1998 Act"). The Union Government, of course, has joined this issue with one such set of States for upholding its Act. The issue here is confined to the State lotteries under entry 40, List I of the Seventh Schedule to the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing this Court for adjudication. The whole gambit of sale of lottery tickets in India, both private and State lotteries, from the very inception is drawing with concern attention of various authorities and Government including courts, as to how to control the evil effects of lotteries on its people at large, more so, when in complete banning, it affects in times of need, the very useful source of State revenue. Basically, lotteries are gambling and its business is res extra commercium; but to shed off this, the State in the interest of State revenue has been finding avenues to legitimate it through some legitimisation under the law to eliminate the impediments in collecting the State revenue and dilute, if possible, the exploitation of the people. The details of which we shall be referring hereinafter. The immediate reference to which we are concerned is Ordinance No. 20 of 1997 which was issued on October 1, 1997, which came into force on October 2, 1997 which restricted the lottery business organised by the States and enabled the State Governments to prohibit sale of tickets of lotteries of other States. Under the said Ordinance, the State of Uttar Pradesh issued notification da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 301 and 303 of the Constitution. It further held that section 4(a), (f) and (g) imposes unreasonable restrictions, therefore, unconstitutional. Against this, the State of U.P. filed civil appeals arising out of S.L.P. (C) Nos. 5224-28 of 1998 and the Union of India filed Civil Appeals arising out of S.L.P. (C) Nos. 5081-5085 of 1998, which is also the subject-matter of consideration through this judgment. 5. In order to maintain the continuity, the Central Government issued the Lotteries (Regulation) Ordinance, 1998 (No. 6 of 1998) (third Ordinance) on April 23, 1998. This last Ordinance was also challenged along with notification dated October 29, 1997 of State of U.P. in Civil Rule No. 2315 of 1998 (Jyoti Agencies v. Union of India) before the Gauhati High Court which was also stayed by means of interim order dated May 22, 1998. Civil Appeal arising out of S.L.P. (C) No. 15978 of 1998 has been filed against this order by the State of U.P. The Ordinance No. 6 of 1998 (third Ordinance) has finally rolled into the Lotteries (Regulation) Act, 1998 (No. 17 of 1998) (hereinafter referred to as "the 1998 Act"). This Act along with notifications dated October 29, 1997, March 17, 1998 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment Lottery Agencies and Sellers Association (Regd.) and another challenging the aforesaid Ordinances 20 and 31 of 1997 including the notification issued by Government of National Capital Territory of Delhi pursuant to the power conferred under section 5. During the pendency, the Parliament enacted the Lotteries (Regulation) Act 17 of 1998 repealing/ substituting the earlier Lotteries (Regulation) Ordinance of 1997. Thereafter, various State Governments including the State of Arunachal Pradesh and Nagaland as well as other distributors filed writ petition challenging the legality and validity of section 4(a), (f), (g), (i), section 5 and section 7 of the said 1998 Act being ultra vires. On July 17, 1998, the High Court of Gauhati observed that the provisions, under challenge, of this Act as well as provisions of the Ordinances being pari materia and since provisions of the Ordinances have already been struck down by that Court, hence, granted stay of the aforesaid provisions including the notification of the Government of National Capital Territory of Delhi and other States. In the aforesaid writ petition filed by the Government Lottery Agencies and Sellers Association (Regd.) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y ticket is ensured; (c) the State Government shall sell the tickets either itself or through distributors or selling agents; (d) the proceeds of the sale of lottery tickets shall be credited into the public account of the State; (e) the State Government itself shall conduct the draws of all the lotteries; (f) the prize money unclaimed within such time as may be prescribed by the State Government or not otherwise distributed, shall become the property of that Government; (g) the place of draw shall be located within the State concerned; (h) no lottery shall have more than one draw in a week; (i) the draws of all kinds of lotteries shall be conducted between such period of the day as may be prescribed by the State Government; (j) the number of bumper draws of a lottery shall not be more than six in a calendar year; (k) such other conditions as may be prescribed by the Central Government. 5. A State Government may, within the State, prohibit the sale of tickets of a lottery organised, or conducted or promoted by every other State. 7(1) Where a lottery is organised, conducted or promoted after the date on which this Act receives the assent of the President, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion on behalf of the Union of India that section 5 safeguards the interest of such State Governments which as a matter of policy do not desire to have such lotteries in their own State to stop sale of lotteries of other Governments within its jurisdiction. Submission is that it may though reduce the extent of discrimination to a great extent but would not completely neutralise the violation of article 303(1) of the Constitution. In the counter-affidavit of the Union, it is not sought to establish any public interest in banning such State lotteries specially when such lotteries contribute towards State revenue. This, in fact, ameliorates poverty and funding welfare projects, especially so far the State of Sikkim is concerned which is an industrially backward State and has very little source of revenue. It is violative of article 302 of the Constitution. A reference was made to the case of State of Madras v. N.K. Nataraja Mudaliar [1968] 22 STC 376 (SC) at page 395; [1968] 3 SCR 829 at pages 852-853, a decision by the Constitution Bench, that burden under article 302 to establish public interest is on the State. He further submits that stand for the Union that even a lottery organis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union and of the States to run lotteries without the morality or the vice aspect affecting such lotteries, subject, of course, to regulation by laws made by Parliament. In other words, the entry 40 of List I itself is proof of the fact that a lottery run by the Union of India or by the States is not affected by the aspect of morality or vice which is present only in entry 34 of List II and is, therefore, not res extra commercium. (e) This would also follow from article 298 of the Constitution which extends the executive power of the Union and each State to carrying on any trade or business, without limitation, except to the extent of the provisos therein which are not relevant for the present purpose. In other words, the entirety of the executive power of the State is exhausted by article 162 of the Constitution and article 298 and there is no third category of executive power covering the carrying on of a venture or enterprise which is res extra commercium. If so the concept of trade in article 298 has to be the same as the trade in Part XIII of the Constitution. (f) The judgment of this Court in Fateh Chand's case (1977) 2 SCC 670 brings out the difference between money-lend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenging the validity of section 5, he submits that the power conferred on the State for banning the lotteries of every other States is bereft of any guidelines and, therefore, a piece of excessive delegation. It is an uncanalised power conferred on a State at its whim and fancy. There is nothing in the objects, preamble, or any other provisions of the Act from which guideline could be collected specially that it is only a State which does not run its own lottery, can impose such a ban on every other State. For this, he relied on the case of Hamdard Dawakhana (Wakf) Lal Kuan, Delhi v. Union of India [1960] 2 SCR 671 at pages 696 and 697. Further, section 5 is capable of being exercised arbitrarily State of West Bengal v. Anwar Ali Sarkar [1952] SCR 284 at 314. 12. Shri F.S. Nariman, learned Senior Counsel for the State of Nagaland, submits that carrying on State organised lottery is permitted by the Constitution by placing it within the exclusive competence of Parliament (item 40 of List I of the Seventh Schedule). A distinction is drawn between State organised lotteries and State authorised lotteries in State of Haryana v. Suman Enterprises (1994) 4 SCC 217 (5 Judges). A referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otteries) was placed under entry 36 of List II. Referring back to the State of Bombay v. R.M.D. Chamarbaugwala [1957] SCR 874 (RMDC case) case, it was submitted that it was a case of a private lotteries and not State organised lotteries. It was on these facts it held that it was opposed to public policy (private lotteries were in fact opposed to public policy) could not be characterised as trade or business or trade, commerce or intercourse. Repelling further submission of Union with reference to the Australian case cited in RMDC case 1957 SCR 874, he submits that even these cases made a distinction between private lotteries and lotteries conducted under the authority of the Government. Hence, the fact that the private lotteries are pernicious and had to be suppressed and were suppressed in India right from the year 1844, does not mean that lotteries organised by the State could be similarly stigmatised as pernicious. The ratio of RMDC case 1957 SCR 874 has to be read with another decision of the Constitution Bench of five Judges in Fateh Chand case (1977) 2 SCC 670. This decision holds that there are "aspects of business or trade" which in one sense may be noxious when conducted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade and commerce without control of the Bhutan lottery were permitted for a period of ten years under the Treaty. This treaty falls under entry 14 of List I is an exclusive Union subject. Thus, no law of a State can legitimately impinge upon the implementation of a treaty entered into by the Union Government with any foreign State. Further, repelling the affidavit of Union of India in paragraph 7 with reference to section 5 of the Act that: "Section 5 may be invoked by the State Government for prohibiting sale of lottery tickets of other States even if they fulfil all the conditions laid down in section 4. However, the ban shall be applicable to the lotteries of all the States uniformly. Hence, the State Government cannot discriminate in any way." 17. This submission is contrary to the plain language of section 5 under which the State Government may continue to sell its own lotteries still prohibit the sale of lotteries organised by other States. No public interest is shown nor any reasonable nexus disclosed between the restriction and the need to serve public interest, hence, it violates article 302. Thus, he concludes that section 5 is invalid enabling discriminatory preferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demonstrates hostile discrimination about which the State Government can complain to this Court. He repelled the submission for the Union that State could prohibit restrictions on Bhutan lotteries under entry 34, List II. He submits that such acceptance of such proposition would totally upset the constitutional scheme of allocation of subjects between the Parliament and the State. He made reference to entry 14 which refers to treaty, entry 41 to trade and commerce with foreign countries and entry 97 to the residuary power of the Union under List I. His point No. 2 is the challenge of section 5, viz., (1) the Legislature has delegated its essential legislative powers without laying down any policy; (2) it authorises the State Government to prohibit the sale of lottery tickets organised by every other State, thus, per se discriminates between its own lotteries and lotteries of other States; and (3) it also contravenes the provision of article 301 read with article 303 of the Constitution when it gives preference to one State over the other. His submission is, it is impossible to discern from any provision of the impugned Act as to what is the policy in regard to the prohibit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 303 of the Constitution of India. In support, he relied on the case of Atiabari Tea Co. Ltd. v. State of Assam [1961] 1 SCR 809, and also the case of Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan [1963] 1 SCR 491, where the restrictive interpretation given to article 303, namely, to be limited to the entries relating to trade and commerce in any of the List in Seventh Schedule, namely, entries 41 and 42 of List I, entry 26 of List II and entry 33 of List III was rejected. In these cases even the impediment of the movement of vehicle or taxation on vehicle on the given facts was held to be a barrier in a free trade within the meaning of article 301 of the Constitution. Hence, the submission was, section 5 entrusting the State to prohibit the sale of lottery tickets organised by every other State, would fall within the mischief of the principle laid down in the aforesaid decisions, hence it impede free trade within the territory of India thus violative of articles 301 and 303 of the Constitution. 20. Learned Senior Counsel, Shri S.S. Ray, appearing for the State of Nagaland, submits that organising lotteries by the Government of India by any State Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : ".........that the State's power to regulate and to restrict the business in potable liquor impliedly includes the power to carry on such trade to the exclusion of others. Prohibition is not the only way to restrict and regulate the consumption of intoxicating liquor. The abuse of drinking intoxicants can be prevented also by limiting and controlling its production, supply and consumption. The State can do so also by creating in itself the monopoly of the production and supply of the liquor. When the State does so, it does not carry on business in illegal products............regulated in the interests of the health, morals and welfare of the people....... When the State permits trade or business in the potable liquor with or without limitation, the citizen has the right to carry on trade or business subject to the limitations, if any, and the State cannot make discrimination between the citizens who are qualified to carry on the trade or business. The State can carry on trade or business in potable liquor notwithstanding that it is an intoxicating drink and article 47 enjoins it to prohibit its consumption. When the State carries on such business, it does so to restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ottery, and that, at the date of the alleged offence, he believed and had reasonable ground for believing that none of the statutory conditions required to be observed in connection with the promotion and conduct of the lottery had been broken. It is also a defence to prove that the lottery in question was not promoted wholly or partly outside Great Britain and constituted gaming as well as a lottery. 144. Art unions.-There are certain exceptions to the general rule that lotteries are illegal. An art union is permitted to hold lotteries, under certain conditions, and is made a lawful association, and the members, subscribers and contributors are exempted from penalties as are all persons acting under their authority or on their behalf." 23. He also referred to the Betting, Gambling and Lotteries Act, 1963 at page 539 of the Halsbury's Statutes of England, 3rd Edition, Volume 14 in particular section 41 at page 583 that subject to the provisions of this Act, all lotteries are unlawful. He also referred to section 45 which exempts certain small lotteries conducted for charitable, sporting or other purposes. 24. Next, while dealing with challenge to section 5, he submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rohibiting Indian States exercising such right is violative against public policy. On the contrary, a public policy demands that no Indian States can be denied or prohibited entry into any Indian market where a foreign State is allowed. 26. Hence, Union Government instead of spelling out public interest for any public policy its act constitutes contrary to public interest, public good, public welfare, subvert societal goals and contrary to the social milieu of the country today. He refers to some decisions of the courts in England, USA and India on the meaning and scope of "public policy". In Central Inland Water Transport Corporation v. Brojo Nath Ganguly AIR 1986 SC 1571; 17 Am. Jur 2nd page 533, 534, it held that there must be no injury or harm to the public interest, public good, and public welfare; in Rattan Chand Hira Chand v. Askar Nawaz Jung (dead) by Lrs. (1991) 3 SCC 67, it held that public policy must not subvert societal goals or endanger the public good. What constituted an injury to public interests or welfare would depend upon the times and climes. The social milieu in which the contract is sought to be enforced would decide the factum, the nature, and the degree of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain claims from the protection of the constitution at the threshold, and since it is rejected at the threshold, such right is not even tested for reasonableness. He referred to the case of Krishan Kumar Narula v. State of Jammu and Kashmir [1967] 3 SCR 50 at 54 in which this Court refused to accept the broad argument. The reliance is placed on the following passage: ".............that dealing in noxious and dangerous goods like liquor was dangerous to the community and subversive of its morals..... Such an approach leads to incoherence in thought and expression. Standards of morality can offer a guidance to impose restrictions, but cannot limit the scope of the right." 27. This Court held that right to trade in liquor was business. However, a contrary view was taken by this Court in the case of Khoday Distilleries (1995) 1 SCC 574 in which it was held that the right to trade in liquor was not constitutionally protected. After taking note of the Krishan Kumar's case [1967] 3 SCR 50, the court did make three exceptions, namely, (a) trade in alcohol is not per se prohibited for medicinal and industrial goods ; (b) even though trade in potable alcohol was res extra commercium, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read independently. In the configuration from sections 3 to 6, section 5 is placed between sections 4 and 6. Thus, this section vests the power to the States to prohibit non-conforming lotteries (lotteries which do not conform to the requirement of section 4). This section is only a declaration of a prohibition and not a prohibitory effect. This section suffers from excessive delegation, lack of guidelines, etc., as submitted by other counsel. 28. Shri P.K. Goswami, learned Senior Counsel appearing for the State of Arunachal Pradesh, adopted the arguments raised by other learned Senior Counsel. He also made references to sub-section (1) of section 4 which prohibits the "single digit" lottery which is said to be arbitrary as there is no rational nexus for this restriction. The submission is that the continuance of the single digit lottery does not have an adverse effect on the purchasers. 29. Learned Senior Counsel, Shri G.L. Sanghi, also appearing for the State of Nagaland in civil appeals arising out of S.L.P. (C) Nos. 5081-5085 of 1998, submitted that with reference to Bhutan lotteries, the effect of treaty is that the Bhutan lotteries can be sold throughout India without fulfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament. He referred to the case of S.R. Bommai v. Union of India (1994) 3 SCC 1 at page 216, to contend that federalism is a basic feature of our Constitution and thus article 298 should be understood in the light of federalism. Proviso (b) to article 298 is not merely a repetition of the article 248 read with List I, entries of Seventh Schedule. This was with a purpose to enlarge the revenue earning power of the States. Thus, he submits that the Parliament cannot make a law empowering the State Government of one State to perform the functions with respect to another State or with respect to an acquired foreign territory (with reference to Bhutan lotteries). One State Government cannot be delegated the power to increase or diminish the area of the activity of another State. He also referred to articles 292 and 293(1), namely, borrowing by the Government of India and borrowing by States respectively. Articles 269(3) and 286(3) refer to the taxes levied and collected by the Union but assigned to the States and restrictions as to imposition of tax on the sale or purchase of goods respectively and finally article 289(3) which refers to the exemption of property and income of a Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Union of India by Mr. C.S. Vaidianathan, learned Additional-Solicitor General of India, and on behalf of the State of Uttar Pradesh by Mr. R.N. Trivedi, learned Additional Solicitor-General of India, is that the lotteries, whether organised by the State or otherwise partakes the vice of betting and gambling and is thus res extra commercium. Lotteries are inherently pernicious. Dealing in any such lotteries does not have the protection of articles 14, 19(1)(g) or 301. Submission was that all sorts of betting and gambling which includes State lotteries are outside the pale of protection of article 19(1)(g) as well as of Part XIII of the Constitution; as betting and gambling is neither "trade" nor "commerce" and when the Parliament enacts the law under entry 40 of List I as the impugned Act, no State can invoke the provisions of article 301, 302 or 303 of the Constitution since the source of the power under entry 40, List I is really betting and gambling, J. Bharati v. State of Maharashtra [1985] 1 SCR 201 at 203. Lotteries organised by the Government of India or by a Government of State, in fact, is taken out of entry 34 of List II and placed under entry 40 of List I must like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest. However, this article cannot be extended for dealing in lotteries as it is neither trade nor commerce. In the present case, the public interest is writ large and is implied in view of the nature of the activity, namely, trade in pernicious matter. He referred to paragraphs 6 and 8 of the counter-affidavit filed by the Union, the Statement of Objects and Reasons, and the Debates. Reference was made to the Anraj case-II [1986] 61 STC 165 (SC); (1986) 1 SCC 414. Relevant portion of the paragraph 27 (page 179 of STC) is quoted hereunder: ".......transfer of the right to participate in the draw which takes place on the sale of a lottery ticket would be a transfer of beneficial interest in movable property to the purchaser and, therefore, amounts to transfer of goods and to that extent, it is no transfer of an actionable claim; to the extent that it involves a transfer of the right to claim a prize depending on a chance, it will be an assignment of an actionable claim." 33. Based on that, it was submitted that there are two rights which flow from sale of lottery tickets, right to participate and right to claim a prize, the right to participate would be sale of goods, covere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enues by a State by sale of lottery tickets, cannot override the interest of another State which does not permit sale of any lottery tickets. 35. Within the parameter of the aforesaid submissions, now we proceed to decide issues of great importance, namely, the nature and character of lotteries whether they by their very nature even if legitimised could be classified as commercium hence trade and business at the common parlance. Or, is it a distinct class by itself, legalised for a limited purpose, for achieving specialised objectives to be used for a temporary period. What is the reason for gambling to be legitimized, if in a given situation it has to be for a wider and purposeful objectives which leads to imposing conditions to reduce its evil consequences as suggested by this Court through Suman Enterprises (1994) 4 SCC 217, adopted through section 4 of the impugned Act, does it loose its original character of being pernicious. Even if it could be said to have diluted it, could it still be classified as commercium and equated with every other form of trade and commerce. Its effect on its citizens has been cause of concern which had drawn attention of the Kings and his subject s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence extra commercium. They were considered to be a sinful and pernicious vice by the ancient seers and law givers of India. It also records that it has been deprecated even by the laws of England, Scotland, United States of America and Australia. In support, it quoted what seers and law givers of India in the ancient time looked upon gambling. A reference was made of Hymn XXXIV of the Rigveda which proclaims the demerits of gambling and quoted verses 7, 10 and 13. It referred to Mahabharata which deprecates gambling by depicting the woeful conditions of the Pandavas who had gambled away their kingdom. Manu in verse 221 advises the King to exclude from his realm gambling and betting, since these two vices cause the destruction of the kingdom of princes. Verse 226 describes gamblers as secret thieves who constantly harass the good subjects by their forbidden practices. Verse 227 referred to gambling as a vice causing great enmity and advises wise men not to practice it even for amusement. As is the present case, even in the ancient time, inspite of condemnation of gambling, Yajnavalkya permitted it under State control. Vrihaspati on this subject records that gambling had been totall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the one or the other order is a matter of social opinion rather than jurisprudence..........It is gambling to buy a ticket or share in a lottery. Such a transaction does not belong to the commercial business of the country. The purchaser stakes money in a scheme for distributing prizes by chance. He is a gamester." 41. McTiernan, J., reiterated his view in another case in King v. Connare (1939) 61 CLR 596: "It is important to observe the distinction that gambling is not trade, commerce and intercourse within the meaning of section 92 otherwise the control of gambling in Australia would be attended with constitutional difficulties." 42. In the same decision the view of Taylor, J., is also quoted hereunder: "No simple legislative expedient purporting to transmute trade and commerce into something else will remove it from the ambit of section 92. But whilst asserting the width of the field in which section 92 may operate it is necessary to observe that not every transaction which employs the forms of trade and commerce will, as trade and commerce, invoke its protection." 43. With reference to the history of lotteries in England the learned Judge quoted: "The foregoing obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Australian, American and English Courts to show how they have received the lotteries in their countries, its nature, impact on public at large, their concern about its regulation and control. There can be no doubt, on the perusal of the said decisions that these courts considered lottery as gambling and even where such lotteries were permitted under the regulating power of the State but were not given the status of "trade and commerce" as understood at common parlance. It is significant, within the fertile and exclusive zone of interpretation, when situation arose, to interpret the word "commerce" which normally would not have included "gambling" within it, in the wider public interest as to bring jurisdiction to the Legislature to control or restrict "betting and gambling" interpreted this also to come within commerce clause. This wider definition to the commerce clause was given by the American court with an objective to control such lotteries rather giving absolute freedom to trade in it. Thus, the law in Champion case (1903) 188 US 321; 47 Law Ed. 492 (R) penalising even carriage of lottery tickets from one State to another was upheld. In cases United States v. Kahriger (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idleness and were injurious to trade......... In 1833 legislation enacted in Massachusetts, New York and Pennsylvania outlawed lotteries and early in 1834 similar action was taken by Ohio, Vermont, Maine, New Jeersey, New Hampshire and Illinois. Provisions prohibiting Legislatures from authorising lotteries in the future were inserted in many State Constitutions......... Congress responded by enacting legislation making it a federal crime to deposit lottery matter in the United States mails. In the Louisiana Election of 1892, the Lottery was the sole issue in the Governor's contest. The anti-lottery candidate won and the lottery was outlawed." 49. In the Lotteries, Revenues and Social Costs: A historical examination of State-Sponsored gambling, it records in Boston College Law Revenue, volume 34: 11 at page 12: "Two hundred years ago, Government-sanctioned lotteries were common throughout America. Lacking a strong Central Government and burdened with a weak tax base, early Americans viewed lotteries as legitimate vehicles for raising Revenue. Lottery proceeds were used to build cities, establish universities, and even to help finance the Revolutionary War. They were gradual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pport their habits." 50. From the references from Dharmashastra, opinions of distinguished authors, references in the Encyclopedia of Britannica and Boston Law Review and others, we find that each concludes, as we have observed, lottery remains in the realm of gambling. Even where it is State sponsored still it was looked down as an evil. Right from ancient time till the day all expressed concern to eliminate this, even where it was legalised for raising revenue either by the king or in the modern times by the State. Even this legitimisation was for the sole purpose of raising revenue, was also for a limited period, since this received condemnation even for this limited purpose. All this gives clear picture of the nature and character of lottery as perceived through the conscience of the people, as revealed through ancient scriptures, also by various courts of the countries. It is in this background now we proceed to examine, if lotteries are goods, could a contract for sale of such goods be conferred the status of trade and commerce as used in Chapter XIII of our Constitution. 51. Thus, now we proceed to examine what are lottery tickets. What are the ingredients of a contract of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sold by the State of Tamil Nadu, are violative of article 301 read with article 304(a) of the Constitution being discriminative or not was held to be so. Hence, this case does not go beyond holding lottery tickets as "goods" for the purpose of adjudicating the issue before us. It does not test nor there is any issue, whether sale of such "goods", viz., lottery tickets would or would not be a "trade or commerce" within the meaning of Chapter XIII of the Constitution. 54. So, now we proceed to examine what is "lottery", what would be the ingredients in the "sale of lottery tickets" and then to equate with other forms of contract pertaining to trade and commerce. Whether there is any striking difference between the two? "Lottery" is defined as: In Words and Phrases (Permanent Edition) volume 25A at 439: "A 'lottery' is a species of gambling." At page 444: "The lottery statutes were enacted to suppress the widespread evil of gambling in lotteries and to allay and curb the gambling spirit of the public and thus prevent waste of money needed for more substantial purposes, the term 'lottery' as popularly and generally used referring to a gambling scheme in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chance' and a similar definition is given in Johnson. Such definitions are, in our opinion, correct." In Black's Law Dictionary, 6th Edition, at page 947: "A chance for a prize for a price. A scheme for the distribution of a prize or prizes by lot or chance, the number and value of which is determined by the operator of lottery." 55. So, we find three ingredients in the sale of lottery tickets, namely, (i) price, (ii) chance and (iii) consideration. So, when one purchases a lottery ticket, he purchases for a prize, which is by chance and the consideration is the price of the ticket. The holder of such ticket knows, the consideration which he has paid, may be for receiving nothing. However, there are few who may be lucky to receive the prize which is just by chance. The question is, could such transaction be termed as trade or commerce. Part XIII of our Constitution deals with trade, commerce and intercourse within the territory of India. It does not define "trade and commerce". Thus, we have to take the word "trade" as it is understood in common parlance. Municipality of Chopda v. Motilal Manekchand AIR 1958 Bom. 487, 489; Emperor v. Alimchand Bulchand ILR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an ascertained thing or service. It is neither hypothetical nor it is a contract for any unascertained thing. In any case, there is no element or ingredient of chance under any "trade". This element of chance makes the lottery a gambling. On the other hand, an absence of chance inherently attached to any contract coupled with some skill makes it to be a "trade". So, trade is always associated with some skill while in lottery there is absence of skill predominantly and essentially with the ingredient of chance. Thus, in nutshell in "lottery" there is no skill and element of chance, in "trade" it is for exchange of something for consideration where there is absence of chance and inherently with element of skill. 59. While deciding the validity of section 21 of a New South Wales Statute called the Lotteries and Art Unions Act, 1901-1929, qua, section 92 of the Commonwealth of Australian Constitution Act, as aforesaid, the learned Evatt, J., with reference to sale of lottery tickets held: "If they are goods or commodities they belong to a very special category, so special that in the interests of its citizens the State may legitimately exile them from the realm of trade, commerce o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot or chance, which lead to the loss of the hard earned money of the undiscerning and improvident common man...... could possibly have been intended by our Constitution makers to be raised to the status of trade, commerce or intercourse and to be made the subject- matter of a fundamental right guaranteed by article 19(1)(g). We find it difficult to persuade ourselves that gambling was ever intended to form any part of this ancient country's trade, commerce or intercourse to be declared as free under article 301." 63. It further recorded: "We are, however, clearly of opinion that whatever else may or may not be regarded as falling within the meaning of these words, gambling cannot certainly be taken as one of them. We are convinced and satisfied that the real purpose of articles 19(1)(g) and 301 could not possibly have been to guarantee or declare the freedom of gambling. Gambling activities from their very nature and in essence are extra commercium although the external forms, formalities and instruments of trade may be employed and they are not protected either by article 19(1)(g) or article 301 of our Constitution." 63. So this decision concludes that our constitutional m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the thirst of a man in dire economic distress or to a man with bursting desire to become wealthy overnight draws them into the magnetic field of lotteries with crippling effect. More often than not, such hopes with very remote chance encourages the spirit of reckless prosperity in him, ruining him and his family. This encouraging hope with the magnitude of prize money never dwindles. Losses and failures in lotteries instead of discouragement increases the craze with intoxicating hope, not only to erase the losses but to fill his imaginative coffer. When this chance mixes with this utopian hope he is repeatedly drawn back into the circle of lottery like drug addicts. Inevitably, the happiness of his family is lost. He goes into a chronic state of indebtedness. In this context, it is said that how the Constitution makers could ever have conceived to give protection to gambling under article 19(1)(g) or article 301 of our Constitution. 65. Before considering the submission, the difference between the lottery organised by the State and other lotteries, on which basis the applicability of the principle of RMDC case [1957] SCR 874 is sought to be distinguished, we would like to refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss in liquor can be completely prohibited. For the same reason, again, the State can impose limitations and restrictions on the trade or business in potable liquor as a beverage which restrictions are in nature different from those imposed on the trade or business in legitimate activities and goods and articles which are res commercium. The restrictions and limitations on the trade or business in potable liquor can again be both under article 19(6) or otherwise. The restrictions and limitations can extend to the State carrying on the trade or business itself to the exclusion of and elimination of others and/or to preserving to itself the right to sell licences to do trade or business in the same, to others. The State can carry on trade or business in potable liquor notwithstanding that it is an intoxicating drink and article 47 enjoins it to prohibit its consumption. When the State carries on such business, it does so to restrict and regulate production, supply and consumption of liquor which is also an aspect of reasonable restriction in the interest of general public. The State cannot on that account be said to be carrying on an illegitimate business. It carries on business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, once the State lotteries are taken out of entry 34, List II it is no more in the realm of gambling. Not only, because the two types of lotteries find place in two different Lists of the Seventh Schedule of our Constitution, but it is also distinguished out as a crime under section 294A, I.P.C., further it being organised by the sovereign State by taking all conceivable measures to dismantle any distrust from the mind of participants and its income goes to enhance State Revenues. In support, reference is made to the Suman Enterprises (1994) 4 SCC 217 which laid down the conditions for organising State lotteries which ultimately, with some modifications and additions is incorporated in section 4 of the impugned Act. This Act provides stringent measures for the compliance of its conditions. The first step in this regard is section 6 under which those lotteries contravening the conditions would be prohibited by the Central Government. This is followed by penal consequences to such of the Head of the Department, whose department of the Government is involved in contravention, with rigorous imprisonment for two years under section 7(1). Penal consequences similarly is also under sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, hence when lotteries conducted by one set of hand could be pernicious but when organised by the State with the carved out conditions with stringent check it no more remains pernicious or gambling, cannot be accepted. 70. For this, let us examine, why lotteries have been held to be pernicious or gambling and what element which constitutes it to be is filtered out to take it out of gambling jacket. In the matter of money-lending the very transaction of money-lending or borrowing is not held to be pernicious in Fateh Chand case (1977) 2 SCC 670, but only the manner in which certain class of persons were operating made it pernicious. Thus, this case would render no help to the challenge. Next, the historical background was referred to distinguish between two forms of lotteries. The State lotteries are not penal offence, which has been understood and recognised so since 1870 when section 294A, I.P.C was brought into the Indian Penal Code, 1860. This distinction has also been recognised even in the Government of India Act, 1935 where the State lotteries have been separately placed under entry 48, List I, but other form of lotteries were placed under entry 34, List II, and the same co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns gambling as element of chance persist with no element of skill. Even other lotteries under entry 34, List II could only be run under the authority of the State or the law of the State. Only difference is in one case, authority is that of State and in other, the Parliament. That is why, what is excluded from the penal consequences under section 294A, I.P.C. is the lotteries authorised by the State, not merely lotteries organised by the State. So, on the reasoning as put forward even lotteries under entry 34, List II cannot be said to be pernicious. The lotteries authorised by the State is also has a sanction in law. As we have said, a gambling may be taxed and may be authorised for a specified purpose, but it would not attain the status of trade like other trades or become res commercium. No gambling could be commercium hence in our considered opinion the principle of RMDC case [1957] SCR 874 would equally be applicable even to the State organised lottery. In no uncertain terms the said decision recorded that the constitutional makers could never have conceived to give protection to gambling either under article 19(1)(g) or it as a trade under article 301 of the Constitution. 72 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without obtaining a licence under the provisions of the Industries Development Regulation Act start an industry mentioned in its Schedule. Similarly, a State cannot insist as a matter of right to sell liquor in another State where there is complete prohibition. Thus, this extended executive power of the State to carry on any trade or business for any purpose should be a trade which falls under the Scheme of the Constitution and not what is impliedly prohibited. Article 298 is subject to Parliamentary legislation, it is also subject to provisions of articles 245 and 246. He submits that the provisions of article 298 should be read down to be subject to provisions of articles 53 and 258 of the Constitution. Meaning to the phrase "trade and business" under article 298 should be given with reference to article 19(1)(g). Thus, article 298 does not refer to "trade" which are not so recognised under article 19(1)(g). Mr. R.P. Goel, learned Advocate-General of U.P. also submitted to the same effect. Repelling the part of the argument, in respect of article 258, it is submitted by Mr. Dwivedi that under article 258(1), the President can entrust powers to the State Government only with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .........Reading and considering articles 73 and 298 together, as they should indeed be read and considered, it is clear that the executive power of a State in the matter of carrying on any trade or business with respect to which the State Legislature may not make laws is subject to legislation by Parliament but is not subject to the executive power of the Union. That is why we mentioned earlier that the Government of a State is not required to obtain the permission of the Union Government in order to organise its lotteries, in the absence of Parliamentary legislation......." (emphasis supplied) 75. This merely records that there was no need for a State to obtain the permission of the Union for organising State lotteries, they could have done so under article 298. Here there was no issue, whether the words "trade and commerce" as used under article 301 and the words "trade and business" used under article 298 should be given the same meaning or whether State lotteries are gambling or if it is gambling, would it still be covered by the words "trade and commerce" under article 301. In view of what is held in this Anraj I case (1984) 2 SCC 292, there could be no doubt that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the territory of India shall be free." (Emphasis supplied) In difference, we find that the words used under this article is "trade, commerce and intercourse". We find article 301 is confined to trade and commerce while article 298 refers to trade and business and to the making of contracts for any purpose. The use of the words "business" and "contracts for any purpose" and its title ".........trade, etc." makes the field of article 298 wider than article 301. Significantly, the different use of words in the two articles is for a purpose, if the field of two articles are to be the same, the same words would have been used. It is true, as submitted, that since "trade" is used both in articles 298 and 301, the same meaning should be given. To this extent, we accept it to be so, but when the two articles use different words, in a different set of words conversely, the different words used could only be to convey different meaning. If different meaning is given then the field of the two articles would be different. So, when instead of the words "trade and commerce" in article 301, the words "trade or business" is used it necessarily has different and wider connotation than merely "t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry tickets are concerned they are held to be "goods" and when they are sold it is under a contract, between seller, the State, or its agent and the purchaser buying for a consideration. The consideration is the price for which it is purchased. Thus, such a contract would qualify to be the "contract for any purpose" used in article 298. Use of the words "business" and "contract for any purpose" widens the scope of State's activity under article 298. This widening is for a purpose and not to restrict only to "trade". No doubt, it includes "trade" also within its field of activity. So every "trade" what is covered by article 301 would be within the field of article 298, may be this article was brought in as a compromise formula to widen the scope of the States revenue earning activities, as submitted by Mr. Dwivedi, but this cannot be said to be confined to the trade only, otherwise there was no need to use further words "business" and "contract for any purpose". Restrictive interpretation of article 298, firstly, would make these additional words superfluous and, secondly, it would curtail State executive activities which is intended to be enlarged. Thus, any other transaction or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case, neither we are concerned with any such taxation nor we are entering into that realm to test any violation of article 304 as it is not an issue here. 79. For the aforesaid reason, we have no hesitation to hold that sale of lottery tickets organised by the State could not be construed to be trade and commerce and even if it could be construed to be so, it cannot be raised to the status of "trade and commerce" as understood at common parlance or "trade and commerce" as used under article 301. Hence, question of violation of either articles 301 and 303 does not arise. Strong reliance was placed on Khazan Singh case (1974) 1 SCC 295, if a State has a power to carry on trade in its own State it can carry on the same in every part of India. For the finding we have recorded that State lotteries (gambling) would not be "trade ", this case would have no application. Hence, for these reasons, it is not necessary to go into various submissions pertaining to violation of articles 301 to 303 of Chapter XIII to the Constitution. 80. Next submission challenges section 5, to be discriminative and violative, both of article 14 and article 303 of the Constitution. The discrimination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is under a treaty, all States should permit its sale, now the stand is such lottery would fall under entry 34, List II, hence would be subject to the law of the State. So far the submission that Bhutan lottery cannot be controlled under the impugned Act has merit. Impugned Act is confined to the State organised lotteries under Union List, under entry 40, List I. However, submission on behalf of the Union, which is also incorporated in its aforesaid affidavit, is, as per agreement, the sale of Bhutan lottery tickets in India and sale of Indian Government/State Government lottery tickets in Bhutan will be subject to the relevant laws as may be enforced in the territory of Kingdom of Bhutan and India, as the case may be. Thus, under the terms of the present treaty itself, the sale of Bhutan lotteries has been agreed and subjugated to be, subject to the relevant laws in India. So far this treaty, there is no law yet framed by the Parliament under entry 14, List I. Admittedly, Bhutan lottery does not fall under entry 40, List I. Thus, the restrictions and conditions imposed under the impugned Act would only apply to the State lotteries and not to the lotteries of the Kingdom of Bhutan. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n lottery could not be said to be privileged or it, in any way, discriminates with other State lotteries. 83. The second limb of argument pertains to discrimination between one State and the other. We having held above, that the State lotteries cannot be construed to be "trade and commerce" within the meaning of article 301, there could possibly be no question of any discrimination or violation of article 303. Even under article 14, there, possibly, could have been argued discrimination, if the discretion was left on the States to choose as to which State it likes to prohibit; but in the present case in section 5 the State could only exercise its discretion in case it decides to prohibit sale of lottery tickets of every other States. If this is so, there could possibly be no conceivable discrimination. Hence, we do not find that there is any discrimination either on account of article 303 or article 14 of the Constitution between States of the Union and the Bhutan lottery and from one State to other State. 84. The last submission in respect of challenge to section 5 is that the delegation to the State to decide to prohibit sale of lotteries organised by other States is a delegati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67] 2 SCR 170 (nine Judges). So far the question of total abdication of legislative power by the Parliament to the State Government without any guideline or policy, reliance is placed on cases Hamdard Dawakhana [1960] 2 SCR 671, Hari Shankar Bagia v. State of Madhya Pradesh [1955] 1 SCR 380, A.N. Parasuraman v. State of Tamil Nadu (1989) 4 SCC 683 (685-688) and Rajnarain Singh v. Chairman, Patna Administration Committee, Patna [1955] 1 SCR 290 (301-304). 86. For the State of Uttar Pradesh submission is the same as the Union that section 5 should be so read as to entitle only such State to ban which, as a policy, does not permit its own lottery to run. If this be so, there possibly could be no discrimination as it applies uniformly to all the States. Thus, there would be no discrimination between one State and the other. This delegation is on public interest which is writ large and is implicit, in view of the nature of activity. For interpreting any provision, Statement of Objects and Reasons and the debates can be looked into, Pepper v. Hart [1993] 1 All ER 42 (HL), P.V. Narasimha Rao v. State (1998) 4 SCC 626 paras 80 to 87. Further submission on behalf of the Union is that secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sometimes to give restrictive or expansive meaning keeping in view the nature of legislation, may be beneficial, penal or fiscal, etc. Cumulatively it is to subserve the object of the legislation. Old gold rule is of respecting the wisdom of Legislature that they are aware of the law and would never have intended for an invalid legislation. This also keeps courts within its track and checks individual zeal of going wayward. Yet in spite of this, if the impugned legislation cannot be saved the courts, shall not hesitate to strike it down. Similarly, for upholding any provision, if it could be saved by reading it down, it should be done, unless plain words are so clear to be in defiance of the Constitution. These interpretations springs out because of concern of the courts to salvage a legislation to achieve its objective and not to let it fall merely because of a possible ingenious interpretation. The words are not static but dynamic. This infuses fertility in the field of interpretation. This equally helps to save an Act but also the cause of attack on the Act. Here the courts has to play a cautious role of weeding out the wild from the crop, of course, without infringing the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1950] SCR 869; State of Bombay v. F.N. Bulsara [1951] SCR 682; Mahant Moti Das v. S.P. Sahi AIR 1959 SC 942." The following passage in Seervai, Constitutional Law of India (3rd Edition), page 119 found approval in Delhi Transport Corporation v. Delhi Transport Corporation Mazdoor Congress (1991) Suppl. 1 SCC 600. The court held: "Seervai in his book 'Constitutional Law of India' (Third Edition) has stated at page 119 that: "..........the courts are guided by the following rules in discharging their solemn duty to declare laws passed by a Legislature unconstitutional: (1) There is a presumption in favour of constitutionality and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; 'to doubt the constitutionality of a law is to resolve it in favour of its validity'. ** (2) A statute cannot be declared unconstitutional merely because in the opinion of the court it violates one or more of the principles of liberty, or the spirit of the Constitution, unless such principles and that spirit are found in the terms of the Constitution. 218. On a proper consideration of the cases cited hereinbefore as well as the obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have already recorded the concern, ill impact of these lotteries on the public at large not only in this country but all parts of the globe, where this subject allured the public to bring miseries in their life except a few lucky one's, ultimately leading to ban of all forms of lotteries. It is true that some permitted and protected lottery transactions under the garb of benefit for charitable purposes or augmenting State revenue. Even in India this lottery was looked down as evil of the society, and diagnosed as pernicious in nature. It is this which ultimately led to bringing in section 294A of the I.P.C. in the 19th century making it a penal offence. It excludes from its purview the State authorised lotteries, i.e., both falling under entry 40, List I, and falling under entry 34, List II. Collection of funds through lot- teries was never considered laudable or conscienceable but has been and is resorted to on the exigencies of the situations recognised for a limited purpose may be for a limited period. Why not "laudable or conscienceable". Because it is a gambling as we have held. How can gambling be held to be conscienceable though it may be legitimised for limited obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by regulation it has to subserve the objectives. Union cannot enforce a State to gamble if such a State does not want to gamble. To run its own lotteries or to close it is left on the discretion of each State. It is each State which has to decide its policy and has to be concerned about its subject. In any case, the Union cannot force any State that it must run its own lotteries. But control of State lotteries running in the territory of other States is left on the Union. State cannot restrict sales of lotteries organised by other States even in its territory unless authorised by the Union. This difficulty was felt by the State which is indicated in the Anraj case I (1984) 2 SCC 292. That seems to be the reason that the Parliament has delegated this power to the State under section 5. In this background, we have to see, whether this delegation could be constituted to be such as amounting to delegation of its essential legislative power and that too unguided or unbridled. As we have said to interpret a provision, its pith and substance, its objects and reasons should be gathered, and it is that interpretation which subserve the object of the Act should be accepted. The Preamble of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilarly, section 9 deals with offences committed by the companies. Section 10 entrusts the Central Government power to give directions to the State Government for carrying into execution the provisions of this Act, Rule or Order. Sections 11 and 12 are the rule- making power entrusted to the Central and the State Government respectively. Section 13 repeals the Ordinance. Thus, the whole Act makes clear that the subject it is dealing is gambling in nature. The object of the Act is not to control the policy decision of each State to start or to close its lotteries, but to regulate it in case a State decides to run its own lottery through modalities and conditions laid down therein. Emphasis of the whole Act is to abide by the condition strictly if you want to run a lottery. Thus, regulation is through conditions to eliminate even the remotest possibility of malpractices by providing stringent measures for its compliance. Perusal of the Act reveals, the scheme of the Act is limited in its application, and it admits the subject it is dealing is gambling in nature. As we have said, decision to collect or not to collect revenue through State lotteries is exclusively within the policy deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eries of other State clearly provides the guidance for the exercise of such a power. It is inbuilt and inherent in the provision itself in view of the scheme of the Act and nature of subject in issue. If interpretation as given on behalf of the State of Tamil Nadu is accepted that delegation of power is absolute, then the submission that such delegation is unbridled without any guideline carries great weight. Submission for the Tamil Nadu is that the lotteries may be prohibited in phases, viz., while running its own lotteries yet prohibiting other lotteries, may be as a public policy, for law and order, for political reasons, morality, etc. For surviving such an interpretation given by Mr. Ganguli, the Parliament should have provided some guidelines. Such an interpretation falls into the trap of the submission that this delegation is unbridled. So if there are two interpretations, the interpretation which upholds the validity should be accepted. So the interpretation as given by Mr. Ganguly cannot be accepted. 93. There are two parts of the attack of the delegation of power to the State under section 5. The later part, by which it can prohibit sale of lottery tickets organised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the limitation of its financial capacity with the need of the hour it has to decide to run its own lotteries to augment its revenue in the larger interest of the public which if weighed with the evil consequences on its subject, the public welfare gains more by running it then the evil consequence on its subject has to give way till situation changes by finding better way for this additional source or evil consequences inflicting on its subject overweighing. This exercise has to be by each State, Union not coming in its way. It is for each State to decide what is its public welfare and what constitutes an injury to the public interest. Rattan Chand Hira Chand v. Askar Nawaz Jung (1991) 3 SCC 67 (para 17) holds, what constitutes public interest or welfare would depend upon the time. The social milieu in which the contract is sought to be enforced would decide the factum, the nature and the degree of injury. 95. So, whenever a State decides to run or not to run its lotteries it is the State which has to decide as a public policy in the public interest. Once such a decision is taken to have in its State lottery free zone, the entrustment of power by the Parliament cannot be said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... astly, the challenge is to section 4(a), (g) and (h) of the Act. The main contention with some specific vehemence to which various counsel have referred to is condition (g) of section 4 which deals with place of draw to be located within the State concern. Argument is the condition of law and order in the State of Nagaland is not such where a draw of any lottery could be held. We do not find any merit in the submission. It is again a question of policy and it is for the State executive to take decision pertaining to law and order, for that reason no legislation can be held to be ultra vires or to be struck down. Similar condition of (a) that prizes shall not be offered on any pre-announced number or on the basis of single digit or that no lottery shall have more than one draw in a week; (h) or other conditions in section 4 are all those which cannot be said to be such to hold these provisions to be ultra vires or invalid. None of them are such which would constitute to be violative of any provision of the Constitution. Hence, we have no hesitation to conclude that this last submission is also without any merit. 99. In view of the findings recorded by us above, holding lotteries or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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