1

I am probably simplifying a complex situation, but this is the way I see it. There are several laws in India that govern the financial behavior of individuals - what securities they can buy in foreign markets, that they cannot buy stock on margin in foreign markets, and so on. All of these laws forbid individuals from using their own money as they please in other markets despite India's interests not being affected adversely in any manner. The preamble to the constitution of India guarantees justice, equality, and liberty to all citizens. Isn't the liberty (freedom of choice) of citizens being violated by the aforementioned laws? Are these laws even constitutional given that the constitution is interpreted literally? They appear to me to be an instance of legislative overreach.

2

These kinds of laws are expressly authorized by Articles 302 (in the case of national government legislation) and 304 (in the case of state government legislation) of the Constitution of India. There is also an implied authorization in Article 44 which authorizes the adoption of a civil code. Some of the key relevant articles state:

PART XIII TRADE, COMMERCE AND INTERCOURSE WITHIN THE TERRITORY OF INDIA

301. Freedom of trade, commerce and intercourse.—Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free.

302. Power of Parliament to impose restrictions on trade, commerce and intercourse.—Parliament may by law impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest.

303. Restrictions on the legislative powers of the Union and of the States with regard to trade and commerce.

—(1) Notwithstanding anything in article 302, neither Parliament nor the Legislature of a State shall have power to make any law giving, or authorising the giving of, any preference to one State over another, or making, or authorising the making of, any discrimination between one State and another, by virtue of any entry relating to trade and commerce in any of the Lists in the Seventh Schedule.

(2) Nothing in clause (1) shall prevent Parliament from making any law giving, or authorising the giving of, any preference or making, or authorising the making of, any discrimination if it is declared by such law that it is necessary to do so for the purpose of dealing with a situation arising from scarcity of goods in any part of the territory of India.

304.Restrictions on trade, commerce and intercourse among States.—Notwithstanding anything in article 301 or article 303, the Legislature of a State may by law—

(a) impose on goods imported from other States 1 [or the Union territories] any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and

(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest:

Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.

[305. Saving of existing laws and laws providing for State monopolies.—Nothing in articles 301 and 303 shall affect the provisions of any existing law except in so far as the President may by order otherwise direct; and nothing in article 301 shall affect the operation of any law made before the commencement of the Constitution (Fourth Amendment) Act, 1955, in so far as it relates to, or prevent Parliament or the Legislature of a State from making any law relating to, any such matter as is referred to in sub-clause (ii) of clause (6) of article 19.]

  1. [Power of certain States in Part B of the First Schedule to impose restrictions on trade and commerce.].–Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-1-1956).

307. Appointment of authority for carrying out the purposes of articles 301 to 304.—Parliament may by law appoint such authority as it considers appropriate for carrying out the purposes of articles 301, 302, 303 and 304, and confer on the authority so appointed such powers and such duties as it thinks necessary

.

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  • Does this mean that the constitution is self-contradictory because it guarantees liberty in its preamble?
    – user17144
    Jul 27 at 9:45
  • @user17144 No. The relevant Articles 301-307 affirm that there is liberty but also set forth the exceptions to it. The Constitution of India, like any Constitution, has competing freedoms and rights and imperatives. Articles like 302- and 304 help legislators and courts figure out which considerations yield to other higher considerations when they compete with each other carefully balancing rights and responsibilities.
    – ohwilleke
    Jul 27 at 17:57
  • What is the basis for the exceptions? What are the "higher considerations" here as they relate to the individual's liberty to use their after-tax money in foreign markets?
    – user17144
    Jul 30 at 8:01
  • @user17144 I fixed the link. You can read the pertinent provisions yourself, which I quote in an updated answer.
    – ohwilleke
    Jul 30 at 19:02
  • What has this to do with the right of individuals to invest their money in foreign markets without restrictions? The title includes "within the territory of India". Digressing a little bit, also, "reasonable" and "public interest" are clearly subject to interpretation. The public is not cattle. In my view, the "liberty" is just a parchment guarantee. And the "free" is not really free as in "freedom".
    – user17144
    Aug 3 at 2:18
1

Does the Indian government allow its citizens to purchase heroin, surface to air missiles, or slaves?

Isn’t that an infringement on liberty?

Liberty is not unrestricted.

5
  • But it allows the purchase of alcohol and cigarettes which are known to cause harm to human beings. Your examples involve the possible endangerment of other individuals when liberty is granted to individuals in respect of the items you cite. In the example that I cite, nobody else is affected. There has to be a reasonable interpretation of the word "liberty", and when to take it away. There must be scrutiny of precedent, or of what other countries do, or of potential harm caused to others, and so on while determining what to regulate.
    – user17144
    Oct 29 '20 at 10:17
  • How can liberty be taken away arbitrarily based on certain prejudices? No country other than India has financial regulation of the kind I describe.
    – user17144
    Oct 29 '20 at 10:17
  • Also, there are several other dangerous things that could be forbidden e.g swimming, driving, getting out of residence after 11 p.m at night, and so many others. Why are all of these things still allowed?
    – user17144
    Oct 29 '20 at 10:28
  • Because the government decided to regulate this and not that - government has this power.
    – Dale M
    Oct 29 '20 at 10:55
  • OK. So this is arbitrary and the "liberty" is just a "parchment guarantee". Can this regulation be legally challenged in courts? Your previous answer did not make sense and I thought for a moment that you were probably just having a bad day, but your comment does make some sense.
    – user17144
    Oct 29 '20 at 11:18

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