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TMI Blog2003 (8) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... olled by the State. Subject to above noted restrictions the valuable right as provided under Article 19(l)(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 chooees to 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. The conditions of the identity card/ 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 fulfilled. It is not to be taken lightly; it must pass through a stringent test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... common judgment. The appellants are Guides by profession and held identity cards as approved guides . The identity cards were issued by the Regional Director, Tourism, Government of India, 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 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 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, cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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. 948 of 1970 and quoted a passage from that judgment which reads as under : I do not think that the profession of tourist guides can be compared to a profession of lawyers and doctors. The said professions are 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 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. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing 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 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 (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 (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, (i) any animal, or (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. On the basis of the above provisions, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgeable 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 they have to conform to certain norms laid necessarily suitable for the profession, which as a matter of fact is for the benefit and to protect the interest of the visitors and tourists seeking access to the protected monuments. But otherwise the State or the Government of India does not figure into the picture in any role whatsoever. There is no relationship of master and servant between them nor there exists any 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 of 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 carry on a private profession or self-employment, on attaining a certain age. The High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the work of guide; true there is no such restriction for it under Rule 8(d) but it cannot be with charges for the job. Where there may be no such 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 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(l)(g) of the Constitution of India is to practice any profession or to carry on any 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) furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 19(l)(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 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. M/s 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 SCC p. 227, M.R.F. Ltd. v. Inspector, Kerala 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(l)(g) can be tested. Speaking for the Court, Saghir Ahmad, J. (as he then was), laid such considerations as follows : (1) While considering the reasonableness of the restrictions the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our in the Division Bench decision of V.K. Chadha, (supra) followed in the impugned judgment of the High Court does not contain such 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) 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 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 shac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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