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* *** It is clear that Article 301 applies not only to inter-state trade, commerce and intercourse but also intra-state trade, commerce and intercourse. The words "throughout the territory of India"

clearly indicate that trade and commerce whose freedom is guaranteed has to move freely also from one place to another in the same State. This conclusion is further supported by Articles 302 and 304(b)."

7. His Lordship then referred to Article 302, which reads as follows :

"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" and was pleased to observe: "the effect of Article 302 is to provide for an exception to the general rule prescribed by Article 301. Restrictions on the freedom of trade can be imposed by Parliament if they are required in the public interest so that the generality of freedom guaranteed by Article 301 is subject to the exception provided by Article 302."

Provided that no Bill or amendment for the purpose of Clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President", his Lordship observed:

"The effect of Article 304(a) is to treat imported goods on the same basis as goods manufactured or produced in any State; and it authorises tax to be levied on such imported goods in the same manner and to the same extent as may be levied on goods manufactured or produced inside the State. We ought to add that this sub-article assumes that taxation can be levied by the State Legislature on goods manufactured or produced within its territory and it provides that outside goods cannot be treated any worse. Now a tax can be levied on internal goods is, however, provided by Article 304(b). The non obstante clause referring to Article 301 would go with Article 304(a), and that indicates that tax on goods would not have been permissible but for Article 304(a) with the non obstante clause. This incidentally helps to determine the scope and effect of the freedom guaranteed by Article 301, in other words Article 304(a) is another exception to Article 301. Article 304(b) empowers, the State Legislature to impose reasonable restrictions on the freedom of trade with other States or within its own territory. Again, the reference to the territory within the State supports the conclusion that Article 301 covers the movement of trade both inter-State and intra-State, Article 304(b) is to be read with the non obstante clause relating to Article 301 as well as Article 303, and in substance it gives power to the State Legislature somewhat similar to the power conferred on the Parliament by Article 302. The reference to Article 303 in the non obstante clause has presumably been made as a matter of abundant caution since the Legislature of a State has been included in Article 303(1). There are, however, obvious differences in the powers of the Parliament and State Legislatures. In regard to an Act which the State Legislature intends to pass under Article 304(b) no Bill can be introduced without the previous sanction of the President, and this requirement has obviously been inserted in order that regional economic pressures which may inspire legislation under the said clause should be duly examined in the light of the Interest of national economy; such legislation must also be in the public interest which feature is common with the provision contained in Article 302; such legislation must also satisfy the further test that the restrictions imposed by it are reasonable. That is another additional restriction imposed "on the powers of the State Legislatures. Thus there are three conditions which must be satisfied in passing an Act under Article 304(b), the previous sanction of the President must be obtained, the legislation must be in the public interest, and it must impose restrictions which are reasonable. It is of course true that if the previous sanction of the President is not obtained that infirmity may be cured by adopting the course authorised by Article 255."

18. I turn next to see whether the restriction imposed by the Control Order is such as falls within the ambit of Article 302 of the Constitution, which empowers the Parliament by law to impose such "restrictions" on the freedom of trade, commerce and intercourse between one State and another or within any part of the territory of India as may be required in public interest or alternatively whether the restriction imposed is such as is saved by Article 304(b), which empowers the legislature of a trade to impose by law such reasonable restriction on the freedom of trade, commerce or intercourse within the State as may be required in public interest. In this context 1 need remind myself of the following observation in the majority judgment of the Supreme Court in Atiabari Tea Co. Ltd (supra) "Incidentally we may observe that the difference in the provisions contained in Article 302 and Article 304(b) would prima facie seem to suggest that where Parliament exercises its power under Article 302 and passes a law imposing restrictions on the freedom of trade in the public interest, whether or not the given law is in the public interest may not be justiciable, and in that sense Parliament is given the sole power to decide what restrictions can be imposed in public interest as authorised by Article 302. On the other hand Article 304(b) requires not only that the law should be in the public interest and should have received the previous sanction of the President but that the restrictions imposed by it should also be reasonable. Prima facie the requirement of public interest can be said to be not justiciable and may be deemed to be satisfied by the sanction of the President; but whether or not the restrictions imposed are reasonable would be justiciable and in that sense laws passed by the State Legislatures may on occasions have to lace judicial scrutiny. However, this point does not fall to be considered in the present proceedings and we wish to express no definite opinion on it."

(b) For prohibiting the withholding from sale, either generally or to specified persons or class or classes of persons, of articles or things ordinarily kept for sale and for requiring articles or things ordinarily kept for sale to be sold either generally or to specified persons or class or classes of persons or in specified circumstances.

(c) to (n) * * * * * "

The Control Order has been made by the State Government in exercise of the power under Rule 125(2) and (3). According to Mr. Deb delegated legislation does not fall within the description of "law" as in Articles 302 and 304(b). In my opinion, this argument must be overruled "The increasing complexity of modern administration and the increasing difficulty of passing complicated measures through the ordeal of parliamentary discussion have led to an increase in the practice of delegating legislative power to executive authorities" (Ilbert on Legislative methods and Forms). There are four main reasons, says Craies in his book on Statute Law (6th Edition pp. 292-93) why delegation has become the normal feature: (i) pressure on parliamentary time, which can only concentrate on the essentials, leaving the details to be worked out, subject to suitable parliamentary control, by the various Ministers in their departments, (ii) Technical character of modern legislation, which makes legislatures ill-fitted to deal with technical details unconnected with political considerations, (iii) Need for flexibility. Law must be capable of rapid adjustment to meet changing circumstances. Parliament and Legislatures are not continuously in session and their processes involve delay, so that any rapid adjustment of Law by direct legislation to meet unknown future conditions is not normally feasible, (iv) In times of emergency, national need may call for sudden legislative action, which legislatures by themselves cannot provide. Now, Section 3 of the Defence of India Act expressly permits subordinate legislation by the Central Government by framing Rules. Under Section 41 of the Defence of India Act, Rules so framed are to be laid before each House of Parliament so that the Parliament may affirm, modify or negative such Rules. Thus, these Rules, before they become effective, must have parliamentary approval either wholly or modifiedly. Rule 125 is such a Rule. That Rule permits further subdelegated legislation by way of Control Orders. The impugned Control Order, made in exercise of such delegation of legislative functions, in an emergency, must be treated as part of the Parliamentary Act, namely, the Defence of India Act and must be read as if enacted in the Act itself. The view I take is also the view expressed by the Supreme Court in State of Bombay v. F.N. Balsara, 1951 SCR 682 at p. 718; (AIR 1951 All 318 at p. 329) and by the Allahabad High Court in Shobha v. State . In the Allahabad decision Jagdish Sahai. J. (Rambhadran J. agreeing with him) examined the relevant decisions on the point by the High Courts of Calcutta, Patna and Rajasthan and came to the same conclusion. I therefore find no substance in the argument that the Control Order is not "law" within the meaning either of Article 302 or 304(b) of the Constitution and cannot impose restrictions on the petitioner's freedom of trade.