Source: Madras High Court, Madurai Bench

Why in News?

The division bench of the Madras High Court (HC) has stayed the order of a single judge of the same court allowing the sale of Ganesh idols made using Plaster of Paris, in the case of District Collector, Tirunelveli v. Prakash.

Background

• A writ petition was filed by the respondent (Prakash) for issuance of Writ of Mandamus, seeking directions to the The District Collector, Tirunelveli District before the Single Judge of HC to not to interfere with his right of profession/business in selling idols including those of Lord Vinayak which has been guaranteed under Article 19(1) (g) of Constitution of India, 1950 (COI).
• The writ petitioner stated that he migrated with his family and settled at Tirunelveli City, for making ornaments, articles using clay, washable colour powders, etc.
• The learned Single Judge allowed the Petition, holding that the writ petitioner cannot be prevented from manufacturing or selling the idols using Plaster of Paris despite Revised Guidelines for Idol Immersion by the Central Pollution Control Board (CPCB), dated 12th May 2020 is in existence.
  • Stating further that the restraint on immersion is reasonable restriction, but the prevention of sale would amount to violation of petitioner's fundamental right.
• The District Collector, Tirunelveli District thereby presented the present appeal before the Division Bench.

Court’s Observations

• The Division Bench of Madras HC took note of the relevant clause from the Guidelines reproduced as - "Idols made up of only natural, bio-degradable, ecofriendly raw materials without any toxic, inorganic raw materials (such as traditional virtuous clay and mud as well as free from Plaster of Paris (POP), plastic and thermocol (polystyrene) should be encouraged, allowed and promoted and idols made up of Plaster of Paris (POP) shall be banned."
• The HC thereby observed that action may be taken against anyone to prevent manufacturing, selling or immersion of idols made of plaster of paris or plastics etc. in adherence to the revised guidelines while staying the order of the Single Judge.

Right to Profession

• Article 19(1)(g) of the Constitution ensures the right to practice any profession or to carry on any occupation, trade or business to all citizens, which can be limited by the government's authority to impose reasonable restrictions under Article 19(6) on their exercise.
• Restrictions can be imposed on following grounds:
  • Interest of the General Public: The State may impose such restrictions which may adversely affect the interest of the public.
  • Prescribe any Professional or Technical Qualification: Where a professional or technical qualification is essential for the practice of a profession such qualification can be made mandatory. Eg Passing the All-India Bar Exam is essential to practice law in India.
  • State Monopoly: Added by the First constitutional amendment, 1951 it allows the state to enact legislation to establish state monopolies, whether in part or entirely, for any trade, business, or industry.

Case Law

• Excel Wear v. Union of India (1978) : SC ruled that Section 25-O of the Industrial Disputes Act, 1947, which mandated employers to obtain government permission before closing their industrial undertakings, was deemed unconstitutional and void because it contravened Article 19(1)(g) of the Constitution, which guarantees the right to carry on a trade, business, or profession.