Legal Complications Relating to Things Outside Commerce: A Overview from Past to Present. Based on the Lottery Case in the State of Mizoram

Abstract

Abstract: “Res Extra Commercium” is a Roman law doctrine that translates to “things outside commerce”. In State of Bombay v R.M.D. Chamarbaugwala , Justice Das introduced this doctrine into the Indian jurisprudence. The doctrine was introduced to constrict the scope of freedom of trade and commerce, a fundamental right, guaranteed under Article 19(1)(g) of the Indian Constitution. It constricts the scope by excluding certain “immoral” or “noxious” trade activities from the scope of Article 19(1)(g) and thereby, depriving them of Constitutional protection. The doctrine of res extra commercium seeks to exclude certain activities from the ambit of freedom of trade and profession guaranteed under Articles 19(1)(g) and 301 of the Constitution of India. Tracing back the origin of the doctrine to Roman Law has commented to the effect: The res extra commercium doctrine traces its conceptual roots to Roman law. Res in commercio, in Roman law, were things capable of ownership and hence, the subject of property rights, while res extra commercium were things incapable of ownership. In light of this, the doctrine applies to those things that are not objects of commerce i.e., they are extra commercio. In Justinian’s Institutes of Roman Law, only three classes of entity are conceptually treated as res extra commercium: