Police Powers and the Constitution of India: The Inconspicuous Ascent of an Incongruous American Implant

Authors

Arvind Datar
Shivprasad Swaminathan

Abstract

Res extra commercium is a doctrine introduced by Chief Justice Das of the Supreme Court of India in the 1957 case, State of Bombay v. R.M.D. Chamarbaugwala, which has the effect of constricting the scope of fundamental rights by rendering as constitutional outcasts certain purportedly immoral or noxious activities. It does this by blocking these activities from falling within the purview of the protection of fundamental rights. First, it will be argued that though the court did not expressly spell it out, it was the doctrine of police powers (the specific conception of the doctrine advanced by Justice Harlan of the U.S. Supreme Court in Mugler v. Kansas), which lies behind Chief Justice Das's invocation of res extra commercium. Second, it will be argued that Chief Justice Das did not openly invoke the police power doctrine in R.M.D. Chamarbaugwala because larger benches of the Supreme Court had earlier squarely rejected the import of the doctrine from American constitutional law. Finally, the paper argues why the police power doctrine sought to be imported by Chief Justice Das under the verbal dressing of res extra commercium is incongruous with the scheme of the Indian Constitution.

Recommended Citation

Arvind Datar & Shivprasad Swaminathan, Police Powers and the Constitution of India: The Inconspicuous Ascent of an Incongruous American Implant, 28 Emory Int'l L. Rev. 63 (2014).
Available at: https://scholarlycommons.law.emory.edu/eilr/vol28/iss1/4