Alcohol, tobacco, gambling, sex work: when a trade is thought immoral, can the state declare it is not really a trade at all?

The Constitution lets the state regulate harmful trades. The sharper question is whether the state can dodge that scrutiny altogether by declaring that a disliked trade is not a trade at all.

Start with what is settled. Article 19(1)(g) protects the freedom to carry on any trade or business, and Article 19(6) lets the state impose reasonable restrictions in the public interest. So the government may regulate alcohol, tobacco, gambling, or any unsafe or exploitative trade through licences, age limits, warnings, quality rules, advertising curbs, taxes, and location controls. In a serious enough case, a reasonable restriction can even mean a full ban. The condition is that the state must justify itself. It must show real harm, and show that the restriction answers that harm. The burden sits with the state, because the state is the one using force.

The trouble starts when the government says something bolder: this is not really a trade at all. Indian courts have sometimes agreed, through a doctrine called res extra commercium, meaning “outside commerce.” Gambling and the liquor trade have both been pushed outside the ordinary protection of Article 19(1)(g) this way. Once an activity is placed outside, the state no longer has to justify its restrictions in the usual manner. There is, it says, no protected freedom here to begin with.

This is a quiet but serious move. A business does not stop being a business because people dislike it. Liquor, tobacco, and gambling may be harmful and may deserve strict rules or even prohibition in places. But they still run on labour, capital, contracts, shops, workers, licences, customers, and tax. Calling them “not commerce” changes none of that. It only switches off the scrutiny that would otherwise apply.

The state’s underlying worry is fair. Alcohol wrecks families. Gambling breeds debt and addiction. Tobacco loads the public with health costs. A constitution should not tie the state’s hands against real harm. But the honest path is to name the harm, prove it, and defend the rule, not to retreat behind the language of sin. Once “immorality” is enough to strip protection, the door opens: moral words can shield powerful incumbents, target disliked groups, or press one section’s tastes on everyone.

So the better line is simple. The state may regulate, tax, license, restrict, or even ban a harmful trade when it can justify doing so. It should not be allowed to declare a lawful trade a non-trade because it finds the trade distasteful. In a free country, a citizen should not have to prove his livelihood is respectable. The state should have to prove why restricting it is necessary.