Author: Aanya Khare, DY Patil College of Law

The Constitution of India highlights economic rights and human rights. These two crucial rights come in conflict, but conflict is not a problem but balancing them is a solution. This Article will examine how the judiciary plays a pivotal role in balancing out these rights and what India lacks despite being the longest written constitution in the world. 

This research also presents how different states are harmonizing these conflicts and what India could take from them. 

Right to life and Right to trade are the cornerstone of our constitution and harmonizing them is a very important aspect for a notion. 

Keywords: Constitution of India, Right to life and personal liberty, Right to Trade, Article 21, Article 19(1)(g), Fundamental Rights, Judicial Interpretations, Balancing right to life and right to trade

The Constitution of India, known for being the longest written constitution in the world,  incorporates fundamental rights in Part III. Makers of our constitution adopted these rights to provide individual life with liberty and dignity. These rights play a very important role in upholding equality, promoting social justice, establishing rule of law, providing legal enforcement and much more. 

Human rights as mentioned in Article 21 deals with Right to life and Personal liberty. Initially the ambit of this right was narrow but after various judicial interpretations, the scope of this right has been expanded. It provides that the state has a duty to ensure life with liberty and improve public health. Economic rights as highlighted in Article 19(g) deals with the right to trade and commerce. This right emphasizes the capacity of individuals to earn in order to have a dignified life. Both the rights together form a cornerstone of our constitution and their overlap is not a new concept. The primary objective of this research is to examine how these rights come in conflict like in the landmark judgment of M.C. Mehta v. Union of India, courts order industries polluting river Ganga to be struck down as it is hindering public health which is in the ambit of Article 21. But what about the right to trade of the industry workers and owners? This case is a crucial example to indicate the importance of balance between these rights. The article also seeks to explore how these rights are currently being balanced. With numerous individual researches there is still limited clarity on how these rights should be balanced at the time of conflict. Despite being the longest written constitution, India lacks a constitutional doctrine or a test to balance out these rights. 

Harmonizing these rights are paramount to have a life with dignity and liberty. This article is significant as this bridges the gap by highlighting the absence of doctrine or tests which is required. 

This article adopts a doctrinal approach to analyze the conflict and balance between economic and human rights. In an analytical and descriptive way, this research focuses on real situations of conflicts, judicial balancing approach and the absence of a framework to bridge the gap between the conflict. 

This research is primarily based on secondary sources including constitutional provisions especially fundamental rights, landmark judgements of supreme and high courts, books and research articles. 

The results of this article aims to find how these conflicts are occurring and balancing. Additionally this research also focuses on what mechanisms could be used to bridge the gap of conflict between two crucial rights. 

Human Rights

Human rights are the privileges that come with birth to each and every individual. Article 21 presents human rights perfectly. In the draft of constitution 1948, Article 21 is recognised as  Article 15. In present Article 21, Protection of life and personal liberty, states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The aim of this right is to ensure that every individual is not just living their life but living it with dignity and liberty. Liberty is a very wide term, its definition depends on how an individual is interpreting it, it creates difference in the existence of human and animal.

In the landmark judgment Maneka Gandhi v. Union of India, Supreme Court held that “the right to life and personal liberty under Article 21 is not limited to mere animal existence but includes the right to live with dignity.”

Furthermore, the right to health is not a fundamental right but through judicial interpretation the court explicitly stated that public health is an integral part of the right to life. The expanded ambit of his right has given access to all the rights given under Art 19(1) but this expansion sometimes leads to conflict with other rights. In addition to this Article 47 in part IV, plays a crucial role in supporting human rights, it highlights the importance of improving public health.

Economic Rights

Economic Rights are rights which provide freedom to an individual to carry any occupation or trade in order to earn a livelihood. This is strongly highlighted in Fundamental and non Fundamental rights. Article 19 showcases protection of certain rights, On the other hand non Fundamental rights like Article 301 gives right to trade, commerce and intercourse.

Article 19(1)(g) states “All citizens shall have the right to practise any profession, or to carry on any occupation, trade or business.” Rights cannot be absolute, there are reasonable restrictions that can be imposed. Article 19 (6) states those restrictions that can be imposed on the rights for protecting interest of general public, professional qualification, or sovereignty and integrity of India. These restrictions can not be arbitrary and should only be reasonable in nature. Economic rights have often been in conflict with social human rights, For instance womens often face sexual harassment in workplaces which create a hindrance to their rights. The court observed that this was a violation of their Article 19 (1) (g) and Article 21. In order to protect these rights, the court imposed guidelines at work places in both the public and private sector.  These conflicts arise and the judiciary plays a significant role in harmonizing and balancing these rights. 

Economic rights provide freedom to earn livelihood and human rights talks about standard of living that individuals get from such livelihood. This complicated yet closed concept results in conflicts. Judiciary plays a significant role in balancing these conflicts arising through these rights. 

1. Bans on socially harmful products

Article 19(1)(g), gives freedom to carry any profession or trade. Despite being crucial it is not absolute. It does not imply that individuals can do any business, if something is harmful for the public at large or against public policy then through reasonable restrictions they  can be restricted. Gambling or betting are highly against public policy. Restricting those  activities would not be considered as a violation of the right to trade but not restricting them would be a violation of Article 21.

 In the case, state of Bombay v. RMD Chamarbaugwala, The court mentioned that makers of the constitution wanted to create India as a welfare country, so they could never have intended to include  these activities in the ambit of Article 19 (1)(g) and not even in Art 301,  so by restricting these activities there is no violation of any Right. 

Similarly, in M.C. Mehta v. Union of India, an industry situated on the side of river Ganga, was polluting air and water. This pollution is leading to health problems of nearby living individuals. So the court strictly ordered the industry to be struck down as this is the violation of article 21. The court gave its reasoning that it is right to trade and commerce but reasonable restrictions can be imposed in the interest of the public at large.

These restrictions should not be arbitrary in nature and should be reasonable. A law may impose reasonable restrictions in the interest of the general public

2. Allowance of sale of harmful products.

Tobacco and alcohol is known to be harmful for the consumption, it is scientifically proven that these products are very dangerous. According to the World Health Organisation(WHO) “Tobacco kills more than 7 million people each year, including an estimated 1.6 million non-smokers who are exposed to second-hand smoke and “All forms of tobacco use are harmful, and there is no safe level of exposure to tobacco.” Promotion of these harmful substances through electronic mediums like television advertisements and social media through famous personalities goes against the principle of Article 21. DPSP Article 47 provides for the state to promote public health and prohibit harmful and intoxicating substances. 

Despite these consequences, the state cannot completely ban these substances. The state, in order to protect one right, cannot violate another. Full ban on these products will leave a drastic economic impact like unemployment and adversely affect the industries dependent on these. Complete ban on these industries will be considered as a violation of article 19 (1) (g) . In the case, Godawat Pan Masala v. Union of India, The court rejected the plea to outright ban but instead ordered for regulations. The state regulates these by the Cigarettes and Other Tobacco Products Act (COTPA), 2003. It imposes high taxes, advertises negative impact drastically, uses graphics in the packets to create awareness about negative impact. The court acknowledged the economic consideration by not allowing violation of human rights. 

3. Other instances of conflict and judicial balance.

In Sodan Singh v. New Delhi Municipal Committee & Anr, the petitioner claimed the right to trade on the side of the streets. The purpose of streets is to provide space for passing, doing business there will create public nuisance and violate the right of others to move freely. Not allowing them to trade will violate their right to trade. It was noted that these are poor people whose living is dependent on these small businesses. Not allowing them to trade in pavements of road will be a violation of their right to life. The court observed this critical situation and stated that trade cannot be denied on the fact that the only purpose of streets is passing and repassing. The court provided the right to trade on streets with proper regulations. The judgement stated that “There is inherent right to carry on any trade or business on street pavements but the right extends only to hawking on the street pavements i.e by moving from one point to other rather than being stationary at one place.”

Furthermore, Covid- 19 pandemic showed a difficult time for everyone. Due to Lockdown, people are not allowed to step out of their houses. Service providers are sitting ideal, employees are losing their employment, business is going down. Despite many problems this lockdown was important, the State has to prioritize the right to life rather than the right to trade. 

On the other hand, in Olga Tellis v. Bombay Municipal Corporation pavement dwellers were protected from unreasonable restriction and the court prioritized their right to trade. 

The conflicting rights problem is not unique to India but has been seen all over the world. Like India other states have their different mechanisms to to harmonize these conflicts. In the United States, the constitution protects the right to liberty and property under the Due Process Clause of the 14th Amendment. Economic rights like the right to pursue a business are not absolute and require you to go through a “reasonableness test”. Courts apply “rational basis review” to determine economic regulations are valid for legitimate legal purposes

The United Kingdom on the other hand uses the “Principle of Proportionality”to balance out the conflict of these rights.  Under the European Convention on Human Rights, Article 1 of Protocol 1 highlights “peaceful enjoyment of possessions” whereas Article 2 recognizes economic interests. Courts assess whether restrictions are necessary and proportionate. 

Similarly, the Canadian Charter of Rights and Freedoms incorporates a test known as “Oakes Test”.Canadian courts examine if limitations are crucial and whether all the other methods have taken place. 

Right to life and personal liberty and right to trade and commerce are both the one of the most important fundamental rights of our constitution which holds the essence of our nation. Despite being crucial they cannot be absolute and reasonable restrictions are necessary. 

Both the rights compliment each other and this also results in creation of a conflict between the two. Judiciary through various judicial interpretations has stood for both the rights wherever necessary. 

Despite having many landmark judgments, we still sometimes struggle to harmonize the conflicts. India lacks a systematic doctrine or tests like Oakes Test used in Canada to determine which rights hold more value in a particular situation. 

At last, these crucial rights will always in some time come into conflict but what really matters is how these rights will be balanced. 

• Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, No. 34 of 2003, § 3 (India).

• Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248 (India).

• State of Bombay v. R.M.D. Chamarbaugwala, A.I.R. 1957 S.C. 699 (India).

• M.C. Mehta v. Union of India, (1987) 4 S.C.C. 463 (India).

• Godawat Pan Masala v. Union of India, (2004) 7 S.C.C. 68 (India).

• Sodan Singh v. New Delhi Mun. Comm., (1989) 4 S.C.C. 155 (India).

• Olga Tellis v. Bombay Mun. Corp., (1985) 3 S.C.C. 545 (India).