res extra commercium

In Indian constitutional law the doctrine is used mainly for intoxicating liquor and gambling. Because these are treated as inherently harmful, there is no fundamental right under Article 19(1)(g) to trade in them, and the State may prohibit them entirely or keep the trade as its own monopoly, granting licences on terms it chooses. The Supreme Court applied this approach to liquor in Khoday Distilleries and earlier cases.

The doctrine has been criticised, and it is about the scope of a fundamental right, not about which legislature has power to make the law. In private law the term describes things that cannot be the subject of a valid contract, such as public property or human organs, whose sale is void under s.23 of the Contract Act.

Example

Liquor being res extra commercium, the licensee could not claim a fundamental right to trade in it under Article 19(1)(g).

In Indian law

• Article 19(1)(g) and (6), Constitution of India
• Article 47, Constitution of India (prohibition of intoxicating drinks as a directive principle)
• Khoday Distilleries v. State of Karnataka, 1994 INSC 466: no fundamental right to trade in liquor

See also

reasonable restrictions · wagering agreement · directive principles of state policy

Read more in the study notes

• Article 19: assembly, association, movement, residence and profession (Constitutional Law I)
• Freedom of trade, commerce and intercourse (Constitutional Law II)