Pranav B Prem

The Orissa High Court recently upheld the validity of a 2017 policy introduced by the Archaeological Survey of India (ASI), which prescribes minimum educational qualifications for guides and photographers seeking licenses to operate in the Konark Sun Temple premises. The Division Bench of Chief Justice Chakradhari Sharan Singh and Justice Savitri Ratho ruled that such a policy does not infringe upon the appellants’ fundamental rights under Article 19(1)(g) of the Constitution, which guarantees the right to trade and profession.

Case Background

The appellants, primarily photographers and guides, had been operating in the precincts of the Konark Sun Temple for decades. Initially, licenses were issued under a 2007 policy formulated by the ASI in accordance with Section 38 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958. However, the 2017 policy, which replaced the earlier regulations, introduced stringent eligibility criteria, including the requirement of matriculation, a written examination, and an interview process for obtaining a license. Challenging the new policy, 154 appellants argued that their livelihood was being jeopardized by these heightened requirements. They sought relief to allow them to continue working under the previous licensing framework.

Contentions of the Appellants

Senior Advocate Subir Palit, representing the appellants, contended that the 2017 policy was arbitrary and adversely affected their right to livelihood. Highlighting their decades-long experience, he argued that many appellants, lacking formal educational qualifications, were unfairly excluded despite their extensive practical expertise. He urged the Court to direct the ASI to provide a one-time exemption for those who had been issued identity cards under the previous policy, allowing them to continue their work without meeting the new educational criteria.

Court’s Observations

The High Court rejected the appellants' plea, affirming that the right to trade and profession under Article 19(1)(g) is not absolute but subject to reasonable restrictions. Referring to the Delhi High Court's judgment in Mata Prasad & Ors. v. Union of India & Ors., where similar issues were raised, the Court observed that obtaining a license through a formal selection process does not violate the fundamental rights of the applicants.

The Bench further stated:

• The introduction of minimum qualifications aims to enhance professionalism and ensure better services for visitors to centrally protected monuments.
• The mere fact that appellants operated without a license under the old policy does not exempt them from adhering to the new regulatory framework.
• The policy is neither arbitrary nor discriminatory, as it applies uniformly to all applicants.

“Merely on the ground that the appellants had operated as photographers without any license in the past owing to the policy in vogue at the material time that did not require license, does not obviate the requirement of obtaining license in terms of the policy that is prevalent now.” the court held

The Court highlighted that the ASI, as the custodian of India’s heritage sites, has the authority to regulate activities within such monuments. Reasonable restrictions, including educational qualifications, are essential to maintain the sanctity and quality of services provided in these culturally significant areas. The Bench concluded that the appellants' inability to meet the prescribed qualifications under the 2017 policy does not warrant a relaxation or exemption. Consequently, the writ appeals were dismissed.

Cause Title: Ashok Kumar Swain & Ors. v. Union of India & Ors.

Case No: W.A. No. 81 of 2022

Date: January-13-2025

Bench: Chief Justice Chakradhari Sharan Singh, Justice Savitri Ratho 

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