This time I would like to benefit the readers of this article intending to develop their aptitude levels through an altogether different topic with a slight and temporary deviation from my path of penning on constitutional branch of law. The doctrine “res extra commercium” is a Roman law concept. Ere going into the detailed analysis into this concept, I feel it my duty to state the meaning of “res”, very often prefixes several Roman lexis words.
Res that, in the civil law, it is a term said to signify a thing, an object. The literal meaning of the word “res” is everything that may form an object of rights and includes an object, subject matter or status. A reference is being made to a decision of the Apex court in Escorts Farms Limited vs. Commissioner, Kumanon Division, Ninital, UP, reported in AIR 204 SC 2186.
Now coming to the meaning of the concept namely res extra commercium, as already stated is a Roman law Doctrine that translates to say a thing which by law excluded from the sphere of private transactions, things not a subject of commerce or trade, meaning to say that things are such which cannot be bought or sold. To simplify the meaning in easier words is goods outside of commerce.
In the context of penning, the present article on this Roman Law Doctrine, I also feel it as need as to how this concept was introduced in the history of Indian judiciary. This aspect found its’ traces in the decision of the Apex court in the case of Bombay RMD Chamar Baugh Wallah reported in AIR 1957 SC 699 in connection with the judicial task of constricting the scope of freedom of trade and commerce, a fundamental right guaranteed under article 19 (i) (g) of the Indian Constitution. The Roman Law Doctrine constricts the scope by excluding certain immoral or noxious trade activities from the scope of article 19 (I) (g), as a result of which, the constitutional protection whereof is completely denuded. In the said judgment, it is clearly held that the concept of res extra commercium is capable of being applied having regard to the obnoxious nature of business or trade. Gambling activities from the beginning and from its’ nature is in essence extra commecium completely denying any constitutional protection. In other words, any person, whether citizen or not cannot claim any fundamental right to do business in gambling. This is the potential impact stemming or flowing from the scope and applicability of the doctrine. It so appears that the Indian judiciary had been consistent by declaring that one cannot claim any fundamental or constitutional right to do business in potable liquor as the liquor and other spirits in all respects is the exclusive privilege of the state. Therefore, unless the state by virtue of its’ policy framed due to several attentive circumstances, parts with its’ privilege in potable liquor in favour of its’ subjects, one cannot have any claim or decisive say. Therefore, in the absence of state policy any kind of activity in liquor would also fall within the mischief of the concept of res extra commercium. In this regard, reference is also required to be made to the judgment of the Apex court in the case of Khoday Distilleries Limited v. State of Karnataka, in 1995. In the said judgment, the scope and applicability of the concept was also discussed keeping in mind of the object and intendment of the legislature enshrined in article 47 of the constitution of India.
The above stated judgment of Supreme Court, once again is applied recently in the case of “State of Punjab v. Devans Modern Breweries Limited” reported in (2004) ILD 481 (SC). Once again constricted the scope of constitutional protection, applying the doctrine. In the discussions, to explain things beyond commerce shall have no constitutional protection, because they are not capable of being purchased or sold like public roads, rivers, titles of owners.
In (1999) 9 SCC 700 in the case of “BR Enterprises v. State of UP”, the business in lottery, was held a gambling activity. Of course, entry 62 of list 2 of VII Schedule to the constitution refers to taxes on betting and gambling, which inherently permits gambling. Thus imposition of tax on gambling, of course, has to be legal. What makes others a pernicious is its’ gambling nature.
More so, in recent times, a reference to the doctrine was made to in the case of “Union of India v. Martin Lottery Agencies Limited”, in (2008) 12 SCC 209, wherein the exposition of the Doctrine and its’ exposure in our country was narrated.
The Doctrine of res extra commercium was invoked in the United States of America, where keeping in view the nature of right conferred on its’ citizens and the concept of imposition of reasonable restrictions therein being absent, it was held that gambling should be frowned upon being opposed to constitutional jurisprudence. In the process of borrowing or importing the Roman Law Doctrine into our country, in the Indian context, it must be remembered that the constitution of India envisages reasonable restrictions in the matter of most of the fundamental rights of the citizens. No citizen has absolute fundamental rights. Of course, this principle equally applied in Australia, but simultaneously would not apply to the European countries, where gambling and even sale of narcotic drugs subject to licensing provisions, if any is permissible.
The concept above named may in future be required to be considered afresh having regard to its’ origin to Roman Law as also the concept thereof. Hence, business may be carried out in respect of a property, which is capable of being owned has contrasted to those, which cannot be. Having regard to the modern times coupled with the changes taking place, the concept of right to property, though not a fundamental right, so long as not required by the state for public purposes, is capable of being owned including intellectual property with inherent features of sale and purchase. Nevertheless, it is possible to hold that the restrictions which can be imposed in carrying on business in relation to the property must be a reasonable one. Property though not of fundamental right, yet indisputably is a human right. In this context, the statement of law laid down by the Hon’ble Supreme Court in “VimalaBen AjitBhai Patel v. VatslaBen AshokBhai Patel”, in (2008) 4 SCC 649 & Karnataka State Financial Corporation v. Narasimhaiah”, in (2008) 5 SCC 176.
It is thus, therefore, clear to conclude that the age old doctrine of Roman Law has journeyed into India and have its’ roots in the Indian context with an exception to U.S.A., and other likeminded constitution ruled countries.
I hope that with little knowledge and experience in the field of international law, have tried to bring a kind exposition of law by exposure to the concept that would benefit the readers.
// JAI HIND //