A) ABSTRACT / HEADNOTE

The case The State of Bombay and Another v. F. N. Balsara is a constitutional law landmark in post-independence Indian jurisprudence. It tested the compatibility of the Bombay Prohibition Act, 1949 with the Constitution of India, especially fundamental rights under Articles 14 and 19. The petitioner, F. N. Balsara, challenged the Act on several grounds including violation of the right to property, freedom of speech, trade, and alleged excessive delegation of legislative powers. The core legal debate revolved around whether the state legislation trespassed into the Union domain, particularly with respect to import and export regulations under the Government of India Act, 1935, and whether the Act’s restrictions were reasonable under the Constitution. The Supreme Court, while upholding the essence of the legislation as within the state’s power, struck down specific provisions that infringed upon constitutional rights. The judgment laid down essential principles regarding legislative competence, severability, and reasonable classification under Article 14.

Keywords: Bombay Prohibition Act, Article 19, Article 14, import-export, intoxicating liquor, legislative competence, original package doctrine.

B) CASE DETAILS

i) Judgement Cause Title: The State of Bombay and Another v. F. N. Balsara

ii) Case Number: Civil Appeals No. 182 and 183 of 1950

iii) Judgement Date: 25 May 1951

iv) Court: Supreme Court of India

v) Quorum: Justice Saiyid Fazl Ali, Justice Patanjali Sastri, Justice Mukherjea, Justice S.R. Das, and Justice Vivian Bose

vi) Author: Justice Saiyid Fazl Ali

vii) Citation: [1951] SCR 682

viii) Legal Provisions Involved:

• Constitution of India: Articles 14, 19(1)(a), 19(1)(f), 19(2)

• Government of India Act, 1935: Section 297(1)(a), Seventh Schedule List I Entry 19, List II Entry 31

• Bombay Prohibition Act, 1949: Sections 2(24)(a), 12, 13, 23, 24, 39, 40(1)(b), 46, 52, 53, 139(c)

ix) Judgments overruled by the Case (if any): None explicitly overruled

x) Case is Related to which Law Subjects: Constitutional Law, Administrative Law, Criminal Law, Public Health Law

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

This case arose during a crucial transitional phase when the Indian legal system was evolving from colonial legislative structures into a sovereign constitutional democracy. The Bombay Prohibition Act, 1949 was enacted as part of a socio-political campaign to enforce prohibition in Bombay Province. The petitioner, F.N. Balsara, an Indian citizen, contested the constitutional validity of the Act, alleging that its provisions infringed upon his right to hold and consume liquor, including foreign liquor and alcohol-based medicinal and toilet preparations. The matter presented a constitutional dilemma—whether state legislation aimed at prohibition could legitimately encroach upon domains traditionally under Union jurisdiction and override fundamental rights. This led the Supreme Court to examine the legislative competence of the State under the Government of India Act, 1935, vis-à-vis the new Constitution of India.

D) FACTS OF THE CASE

F.N. Balsara was prosecuted under the Bombay Prohibition Act for possessing and consuming foreign liquor without a valid permit. He sought relief through a writ of mandamus under Article 32 of the Constitution and Section 45 of the Specific Relief Act, directing the State to refrain from enforcing the Act against him. Balsara contended that the Act unreasonably curtailed his right to acquire and use certain alcohol-based products including cologne, medicinal preparations, and beverages, and that it violated constitutional protections of equality, property, and speech. Additionally, he challenged several provisions for excessive delegation and discriminatory treatment of foreigners versus Indian citizens.

E) LEGAL ISSUES RAISED

i. Whether the Bombay Prohibition Act, 1949 was constitutionally valid under Entry 31 of List II of the Government of India Act, 1935.

ii. Whether the Act infringed upon the Dominion Legislature’s power under Entry 19 of List I (“import and export across customs frontiers”).

iii. Whether Sections 2(24)(a), 12, 13, 23, 24, 39, 40(1)(b), 46, 52, 53, and 139(c) violated Articles 14 and 19 of the Constitution.

iv. Whether the law violated Section 297(1)(a) of the Government of India Act, 1935 by restricting inter-provincial trade.

v. Whether the restrictions imposed on medicinal and toilet preparations containing alcohol were reasonable under Article 19(1)(f).

F) PETITIONER/ APPELLANT’S ARGUMENTS

i. The counsels for Petitioner / Appellant submitted that:

The Act impermissibly regulated import and sale of foreign liquor, thereby intruding upon the exclusive domain of the Union under Entry 19 of List I. They relied on American precedents such as Brown v. Maryland, 25 U.S. 419 and the “original package doctrine” to argue that until an imported article is removed from its original packaging, state laws cannot impose restrictions on its possession or sale. They argued that prohibition of use, sale, or possession of foreign liquor indirectly contravenes the constitutional power of the Union over imports​.

Further, they contended that the wide definition of “liquor” under Section 2(24)(a), which included medicinal and toilet preparations, was ultra vires, arbitrary, and not in consonance with the meaning attributed to “intoxicating liquor” under Entry 31 of List II.

Sections 23 and 24, which penalized “commending” or “encouraging” the use of intoxicants, violated Article 19(1)(a) by curtailing freedom of speech without satisfying the exceptions in Article 19(2). Similarly, restrictions on the use and possession of alcohol-based colognes and tonics were said to infringe Article 19(1)(f) concerning the right to property​.

They further asserted that permitting foreigners to access liquor while denying the same to citizens was discriminatory under Article 14.

G) RESPONDENT’S ARGUMENTS

i. The counsels for Respondent submitted that:

The Bombay Prohibition Act was well within the legislative competence of the State under Entry 31 of List II, which granted states exclusive power over intoxicating liquors, including their manufacture, possession, transport, purchase, and sale. The term “liquor” under Indian Excise Laws traditionally encompassed all alcohol-containing liquids, not merely beverages. Thus, the wide definition in the Act was historically and legislatively justified.

The prohibition of possession and sale of imported liquor did not amount to a regulation of import per se, which remained with the Union. Even if import was incidentally affected, the pith and substance doctrine applied, preserving the State’s legislative competence.

Moreover, Section 39’s classification between citizens and foreigners for liquor permits was based on intelligible differentia and satisfied the test of reasonable classification under Article 14. International comity and treaty obligations necessitated the special treatment of diplomatic and foreign personnel.

The State also argued that certain restrictions on speech and property were in line with the social objective of implementing prohibition under Article 47 of the Constitution, which made prohibition a directive principle of state policy​.

H) RELATED LEGAL PROVISIONS

i. Constitution of India:

• Article 14: Right to Equality – prohibits discrimination and mandates equal protection of laws.

• Article 19(1)(a): Freedom of Speech and Expression – safeguards the right to express opinions freely.

• Article 19(1)(f): Right to Property (later repealed in 44th Amendment) – included right to acquire, hold and dispose of property.

• Article 19(2): Reasonable restrictions on freedom of speech.

• Article 47: Directive Principles – mandates the State to prohibit consumption of intoxicating drinks except for medicinal purposes.

ii. Government of India Act, 1935:

• Section 297(1)(a): Restricts Provinces from making laws affecting inter-Provincial trade.

• Seventh Schedule:

  • List I Entry 19: Import and export across customs frontiers.

  • List II Entry 31: Intoxicating liquors – manufacture, possession, sale, etc.

iii. Bombay Prohibition Act, 1949:

• Section 2(24): Defines “liquor”.

• Sections 12 & 13: Prohibit manufacture, possession, and sale of liquor.

• Sections 23 & 24: Penalise encouraging use of liquor.

• Section 39: Exempts military personnel and foreign troops from restrictions.

• Section 40(1)(b): Permits use for health reasons or by foreigners.

• Section 52 & 53: Delegation of powers to authorities.

• Section 139(c): Empowers government to exempt classes of people.

I) JUDGEMENT

a. RATIO DECIDENDI

i. Legislative Competence & Entry Interpretation:

The Court held that Entry 31 of List II gives the State ample authority to legislate on intoxicating liquors, including their sale, possession, and use. The term “possession and sale” must be read broadly, unqualified by any limitations, allowing total prohibition by the State.

Even if such prohibition incidentally affects import, the Act still falls within the State’s domain due to the pith and substance doctrine. Entry 19 of List I (import/export) does not include “possession or sale,” hence no encroachment occurred​.

ii. Original Package Doctrine Not Applicable:

The Court rejected reliance on the American “original package” doctrine from Brown v. Maryland, 25 U.S. 419, stating that India’s legislative framework is distinct and does not permit such a doctrine. Indian constitutional entries are worded with precision, reducing need for imported doctrines​.

iii. Article 14 and Classification:

The Court upheld Section 39, allowing exemptions to military personnel and foreigners. It held the classification as reasonable and not arbitrary, satisfying the test under Chiranjit Lal Chowdhury v. Union of India [1950 SCR 869]. Military exigencies and international considerations justified different treatment​.

iv. Article 19(1)(a) & Freedom of Speech:

Sections 23(a), 23(b), 24(1)(a), and 24(1)(b) were held unconstitutional as they infringed upon freedom of speech without satisfying any grounds under Article 19(2). Words like “commend,” “encourage,” and “incite” were found vague and overly broad, thereby invalid​.

v. Article 19(1)(f) & Medicinal Liquors:

Sections 12 and 13 were declared invalid only to the extent they prohibited possession and use of medicinal and toilet preparations. The Court observed these articles had legitimate non-beverage uses. However, the restriction on spirits, beer, wine, and toddy was valid, being separable and reasonable​.

vi. Delegated Legislation & Sections 52, 53, 139(c):

The Court held that Sections 52, 53, and 139(c) merely involved conditional delegation and were not excessive. Referring to In re Delhi Laws Act, the Court upheld delegation where legislative policy and guiding principles are clearly laid out​.

b. OBITER DICTA 

i. Directive Principles and Public Health:

Justice Fazl Ali made a strong obiter reference to Article 47, noting that while not enforceable, it justified state prohibition policy as being in public interest. The Court also hinted that public order and public health might provide additional grounds for State’s power under Entries 1 and 6 of List II, though not fully explored.

ii. Property Right Not Absolute:

The Court observed that Article 19(1)(f) did not guarantee unrestricted rights to possess or use property. If certain substances were injurious to public health or policy, their restriction could be justified.

c. GUIDELINES 

While no general guidelines were framed, the case lays down key judicial principles for constitutional review:

1. Pith and Substance Doctrine: Laws must be judged by their dominant purpose, not incidental encroachments.

2. Severability: If a part of a statute is unconstitutional but separable, the rest may still be upheld.

3. Reasonable Classification: Discriminatory provisions must be based on intelligible differentia and linked to legislative purpose.

4. Freedom of Speech: Any restriction must be traceable to grounds under Article 19(2).

5. Delegated Legislation: Conditional or ancillary delegation is permissible if legislative policy is clear.

J) CONCLUSION & COMMENTS

The judgment in The State of Bombay v. F.N. Balsara remains one of the earliest expositions of constitutional protections post-independence. The decision balanced the legislative policy of prohibition under Article 47 with the individual liberties under Part III of the Constitution. While upholding the Act broadly, the Court carved out vital exceptions where state action was arbitrary, vague, or disproportionate.

The ruling clarified the interplay between the Union and State legislative lists, reaffirmed severability doctrine, and stood firm against excessive delegation and infringement of free speech. Notably, the Court refused to follow the American “original package doctrine”, establishing a uniquely Indian constitutional interpretation.

This case serves as a foundational precedent in Indian constitutional law, with principles invoked in numerous later decisions involving Article 14, reasonable restrictions, and legislative competence.

K) REFERENCES

a. Important Cases Referred

1. Bhola Prasad v. The King Emperor, [1942] F.C.R. 17

2. Miss Kishori Shetty v. The King, [1949] F.C.R. 650

3. Brown v. Maryland, 25 U.S. 419

4. Leisy v. Hardin, 135 U.S. 100

5. Romesh Thappar v. The State of Madras, [1950] S.C.R. 594

6. Chintaman Rao v. State of Madhya Pradesh, [1950] S.C.R. 759

7. Chiranjit Lal Chowdhury v. Union of India, [1950] S.C.R. 869

8. Prafulla Kumar Mukherjea v. Bank of Commerce, Khulna, [1947] F.C.R. 28

9. In Re Delhi Laws Act, [1951] S.C.R. 747

10. Russell v. The Queen, 7 A.C. 829

b. Important Statutes Referred

1. Constitution of India, Articles 14, 19(1)(a), 19(1)(f), 19(2), 47

2. Government of India Act, 1935, Section 297(1)(a), Seventh Schedule

3. Bombay Prohibition Act, 1949, Sections 2(24), 12, 13, 23, 24, 39, 40, 52, 53, 139(c)