Constitutional Law

State of Bombay v. F.N. Balsara

AIR 1951 SC 318

Citation: AIR 1951 SC 318
Court: Supreme Court of India
Date: 25 May 1951
Bench: S. Fazl Ali; M. Patanjali Sastri; B.K. Mukherjea; Sudhi Ranjan Das; Vivian Bose

Facts

The Bombay Prohibition Act, 1949 prohibited or regulated the manufacture, possession, purchase, sale, transport, use and consumption of liquor.
Its definition of “liquor” was broad enough to cover not only intoxicating beverages but also medicinal and toilet preparations containing alcohol.
F.N. Balsara challenged several provisions of the Act before the Bombay High Court.
He argued that the Act:
exceeded the legislative competence of the Province;
unreasonably restricted the rights then protected by Article 19(1)(f);
restricted freedom of speech;
created unconstitutional discrimination; and
conferred excessive powers on the executive.
The Bombay High Court declared several parts of the Act invalid.
Both the State of Bombay and Balsara appealed to the Supreme Court.

Issue

Whether the Bombay Prohibition Act and the notifications issued under it were “law” capable of being tested against fundamental rights.
Whether restrictions extending to medicinal and toilet preparations containing alcohol were constitutionally valid.
Whether the invalid provisions could be separated from the valid remainder of the Act.
Whether partial invalidity under Article 13 required the entire statute to be struck down.

Rule

Article 13 makes a law void only to the extent of its inconsistency with fundamental rights.
“Law” includes not merely statutes but also orders and notifications made under statutory authority.
A notification deriving its legal force from a statute possesses the force of law and may be constitutionally reviewed.
Under the doctrine of severability, the whole Act need not fail merely because certain provisions are unconstitutional.
The relevant question is whether the valid portion can operate independently and whether the legislature would have enacted it without the invalid portion.

Application

The Court first upheld the legislative competence of the Provincial Legislature to legislate regarding the possession, sale and use of intoxicating liquor.
It accepted that prohibition of intoxicating beverages served a legitimate public purpose and was supported by the constitutional policy reflected in Article 47.
However, the Act extended beyond ordinary intoxicating liquor to medicinal and toilet preparations containing alcohol.
The Court considered an absolute prohibition upon the possession, purchase, sale, use and consumption of such preparations excessive because they had legitimate medical and personal uses.
Restrictions upon these products therefore unreasonably interfered with the right to acquire, hold and dispose of property as it then existed under Article 19(1)(f).
Provisions restricting the mere commendation or advocacy of intoxicants also affected freedom of speech and could not be sustained in their broad form.
The Court examined notifications issued by the Government under Section 139.
It held that such notifications derived their authority from the statute and therefore had legal force. They could be considered while determining the scope and constitutional operation of the Act.
The Court then applied the doctrine of severability.
The provisions concerning genuine intoxicating beverages were distinct from those affecting medicinal and toilet preparations.
Removing the unconstitutional portions did not destroy the central object of the legislation, namely, the enforcement of prohibition.
The valid and invalid portions were not so closely connected that the entire statute had to fall.
The legislature could reasonably be presumed to have enacted the remaining prohibition provisions even without the parts found unconstitutional.

Conclusion

The Supreme Court declared only specified portions of the Act invalid, including:
restrictions upon medicinal and toilet preparations containing alcohol;
certain provisions prohibiting the commendation of intoxicants; and
certain enforcement provisions.
The rest of the Bombay Prohibition Act remained valid and enforceable.
The State’s appeal was substantially allowed, while Balsara’s separate appeal was dismissed.