Hon'ble Anil Kumar Sharma,J.
(Per: Tarun Agarwala,J.) (Delivered on: 7th March, 2014) In this group of petitions, the petitioners have prayed for a variety of reliefs, namely, for the quashing of clause-9 of the guidelines dated 14.2.2003, for the quashing of clause-4 of the guidelines dated 22.9.2011 and for a direction to hold a selection for the Local Guides and issue them a licence. The petitioners have also prayed that a mandamus be issued restraining the respondents from interfering with their right to conduct visitors inside the protected monuments. In some writ petitions, the petitioners have prayed for the quashing of Rule 8(d) of the Rules of 1959. The bottom line is, that the petitioners pray that they may be provided a licence as a "local guide" so that they could be permitted to practice their profession in an around the protected monuments situate in Agra, Varanasi and at other districts in the State of U.P. For facility, Writ Petition No.28274 of 2012 has been made the leading case.
To understand their problem, one has to delve into the background and the facts leading to the filing of the writ petition.
There were two Acts relating to ancient monuments, namely, "The Ancient Monuments Preservation Act, 1904" and "The Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951.
Under the Constitution, the subject "ancient and historical monuments; archaeological monuments; archaeological sites and remains" has been distributed under three heads, namely, Entry 67 of the Union List, which provides ancient and historical monuments and records, and archaeological sites and remains, declared by or under law made by Parliament to be of national importance. Entry 12 of the State List provides, ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance and Entry 40 of the Concurrent List which provides archaeological sites and remains other than those declared by or under the Law made by the Parliament to be of national importance.
Since the Act of 1904 and the Act of 1951 were found to be unsatisfactory, the Ancient Monuments and Archaeological Sites and Remains Act, 1958 was promulgated, which applies exclusively to ancient monuments, etc. of national importance falling under Entry 67 of List-I and Entry 40 of the Concurrent List.
The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958) was enacted to provide for the preservation of ancient and historical monuments and archaeological sites and remains of national importance, for the regulation of archaeological excavations and for the protection of sculptures, carvings and other objects of the kind.
Section 2(c) defines an "archaeological officer". Section 2(ha) defines a "prohibited area" and Section 2(j) defines a "protected monument". For facility, the said provisions are extracted hereunder:-
"2(c) "archaeological officer" means an officer of the Department of Archaeology of the Government of India not lower in rank than Assistant Superintendent of Archaeology;
2(ha)"prohibited area" means any area specified or declared to be a prohibited area under section 20A.
2(j) "protected monument" means any ancient monument which is declared to be of national importance by or under this Act."
Section 18 creates a right in the public to have access to any protected monument subject to Rules made under the Act. For facility, the said provision is extracted hereunder:-
"18. Right of access to protected monument - Subject to any rules made under this Act, the public shall have a right of access to any protected monument."
Section 38 gives power to the Central Government to frame Rules for carrying out the purposes of the Act. For facility, the relevant extract of Section 38 of the Act is depicted hereunder:-
"38 Power to make rules.- (1) The Central Government may, by notification in the Official Gazette and subject to the condition of previous publication, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--
(a)..............
(b).............
(c) the right of access of the public to a protected monument and the fee, if any, to be charged therefor;
(ca) the categories of ancient monuments of archaeological sites and remains, declared as of national importance, under sub-section (1) of section 4-A."
In exercise of the powers provided under Section 38, the Central Government framed "The Ancient Monuments and Archaeological Sites and Remains Rules, 1959 (hereinafter referred to as the "Rules of 1959"). Rule 8 provides as under:
"8. Prohibition of certain acts within monuments.--No person shall, within a protected monument,--
(a)....
(b)....
(c)....
(d)hawk or sell any goods or wares or canvas any custom for such goods or wares or display any advertisement in any form or show a visitor round or take his photograph for monetary consideration, except under the authority of, or under and in accordance with the conditions of, a licence granted by an archaeological officer;"
The emphasis is on Rule 8(d) of the Rules of 1959, which provides that no person shall show a visitor around for monetary consideration except under the authority of, or under and in accordance with the condition of a licence granted by an Archaeological Officer. Pursuant to this provision, the respondents from time to time have laid down certain guidelines regulating the conditions for grant of a licence to a person who may take the visitors around the protected monuments for a monetary consideration. A licence is granted by an Archaeological Officer, but subsequently by means of a notification dated 20.5.2010, the Additional Director General (Tourism) has also been made a statutory authority under Section 2(c) for the purpose of granting a licence.
From the material placed before the Court, one finds, that in 1979 instructions were issued by the Ministry of Tourism and Civil Aviation, for grant of a licence to a tourist guide. One of the conditions was that a licence would not be given to a person above the age of 60 years. Various writ petitions were filed in various High Courts and ultimately the Supreme Court in B.P.Sharma vs. Union of India and others, 2003(7)SCC 309 held, that the clause relating to age was ultra vires and was quashed.
The Department of Tourism, Government of India issued guidelines dated 14.2.2003 for grant of guide licenses. In these guidelines, the Department of Tourism framed a three tier system for grant of a licence to a guide, so as to serve different market segments, namely, Regional Guides, Part Time Guides, State Level Guides and Local Guides. As per these guidelines, Regional Guides and Part Time Guides were to be trained and appointed by the Department of Tourism, Government of India and that the State Level Guides were to be trained and appointed by the State Government and that the Local Guides were to be appointed by the local administration. The said guidelines was challenged before the Rajasthan High Court and, by a judgment dated 19.9.2008, the guidelines was quashed, on the ground, that the Additional Director General (Tourism) had no power to issue such guidelines as he was not the Archaeological Officer to issue a guide licence under Section 2(c) of the Act nor had the power to frame guidelines. A Special Appeal was filed by the Union of India before a Division Bench of the Rajasthan High Court, which was ultimately dismissed as infructuous in view of the fact that new guidelines dated 22.9.2011 came into existence pursuant to the inclusion of the Additional Director General (Tourism) as an Archaeological Officer by means of a notification dated 20.5.2010.
It may also be stated here that the State Government issued an advertisement for selection of State level guides to be appointed under the guidelines of 2003. This advertisement was challenged. A Division Bench of this Court held that the State level guides are entitled to guide the tourists at the protected monuments as per the 2003 guidelines. This judgment is reported in 2009 (2) AWC 2050, Government Approved Tourist Guide Association vs. State of U.P. and others. The said petitioner filed a Special Leave Petition before the Supreme Court, which was dismissed as infructuous by a judgment dated 5.12.2012 on the ground that the guidelines of 2003 has now been superseded by the 2011 guidelines.
In supersession of all previous guidelines issued on the subject, the Ministry of Tourism, Government of India issued new guidelines dated 22.9.2011 for appointment and grant of a licence to Regional Level Tourist Guides. Under these guidelines, Regional Level Tourist Guides were divided into four categories, namely:-
"i) General: There would be regional level guides who would be authorized to work in their respective regions on a full time basis.
ii) General - Linguistic: Linguists with fluency in foreign languages (apart from English), such as French, German, Spanish, Korean, Russian, Japanese, Thai, Arabic, Hungarian, Polish, Hebrew, Chinese etc., as identified by the Ministry from time to time would be approved under this category.
iii) Expert Guides: In order to encourage scholars, specialists etc., in the fields of Tourism, Indian History, Architecture, Culture, Wild Life and other related fields of tourism, there would be a special category of Regional Level Tourist Guides known as Expert Guides.
iv)Expert - Linguistic: This category of Regional Level Tourist Guides would be scholars, specialists etc., in the fields of Tourism, Indian History / Architecture / Culture/ Archaeology / Wildlife or other related fields of Tourism with fluency in foreign languages (apart from English), such as French, German, Spanish, Korean, Russian, Japanese, Thai, Arabic, Hungarian, Polish, Hebrew, Chinese etc., as identified by the Ministry from time to time would be approved under this category.
The educational qualifications provided under Clause 3.1 of the guidelines is as under:
"3.1 Educational qualification(s):
The following educational qualifications are prescribed for the selection of tourist guides and all applicants should have fulfilled the criteria on or before the date of publication of the first advertisement for selection and training.
3.1.1 General:
(b) Candidates should have knowledge and fluency in a foreign language (apart from English). The fluency shall be tested at the time of written examination which shall be given in the foreign language selected by the Candidate for which he/she aspires to become a linguistic guide.
3.1.3 Expert Guides:
a) Doctorate in the field of Tourism, Indian History / Architecture / Culture / Archaeology / Wildlife or other related fields of Tourism.
b) Fluency in English language is essential.
3.1.4 Expert - Linguistic:
(a) Doctorate in the fields of Tourism, Indian History / Architecture / Culture/ Archaeology / Wildlife or other related fields of Tourism.
(b) Candidates should have knowledge and fluency in a foreign language (apart from English), in terms of reading, writing and speaking. The fluency shall be tested at the time of written test which shall be given in the foreign language selected by the Candidate for which he / she aspires to become an Expert Linguistic guide."
The process of selection of these guides would be undertaken by the Indian Institute of Tourism and Travel Management, Gwalior through a written examination and a viva-voce and thereafter a field training. The licence would be issued under clause-6 of the guidelines by the Regional India Tourism Office, Government of India, which would be valid for a period of three years and would be renewable on certain terms and conditions.
The guidelines of 2003 opened a window for appointment of "local guides", but was hedged with a condition, namely, that as per clause-9, the "local guides" would have no authority to conduct the visitors to the monuments controlled by the A.S.I. Since this restriction violated the fundamental rights of the guides to carry on their profession, a large number of writ petitions were filed before this Court and, in Writ Petition No.30650 of 2009, Shamshaduddin and others vs. Union of India and others, a Division Bench of the Allahabad High Court by a judgment dated 2.12.2009 held, that the intention of the authority was to regulate the local level guides by issuing licences to them and that if the local level guide sat for an examination, such guides could work in a duel capacity as a local level guide or as a Regional Level Guide. The Court was of the view, that confining the Local Level Guides to their area and not allowing them to profess where Regional Level Guides were functioning was an impractical approach on the part of the Union of India. The Court directed that a clarificatory note should be issued by the Union of India for Local Level Guides for selection as Regional Level Guides. Inspite of this direction, no such clarification came, and instead, the guidelines of 2003 was superseded by the guidelines of 2011.
We have heard Sri Heard Sri J.P. Singh, Sri Rajesh Mishra, Sri V. Singh and Sri Sameer Khan, learned counsel appearing for the petitioners in this group of writ petitions and Sri R.B. Singhal, learned Senior Advocate, assisted by Sri S.K. Rai, Sri Vaibhav Kaushik, Sri Nitin Gupta, Sri Tej Prakash, Sri Ashok Kumar Singh, Sri Munish Ranjan Tiwari, Sri S.K. Misra, Sri Tej Bahadur Rai and Sri Brajesh Pratap Singh for the respondents and Sri R.B. Pradhan, Addl. Chief Standing Counsel for the State.
In the light of the aforesaid admitted facts, we find that the relief claimed by the petitioners for quashing clause 9 of the guidelines of 2003 has become infructuous since the guidelines of 2003 have been superseded. The learned counsel for the petitioners have also made a statement that they do not wish to press the relief for quashing clause 4 of the guidelines of 2011 and only contends that the Department of Tourism, Government of India should provide a procedure for granting a licence to the petitioners as Local Level Guides, so that they could be permitted to practice their profession and guide tourist for monetary consideration in the protected monuments located in the State of U.P., especially at Agra and at Varanasi. No arguments were raised with regard to the validity of Rule 8(d) of the Rules of 1959.
From a perusal of Sections 18 and 38 of the Act read with Rule 8(d) of the Rules of 1959, we find that the Central Government is empowered to make Rules in respect of the right of access to any protected monument. Under Rule 8(d) of the Rules, no person shall within a protected monument could show a visitor around for monetary consideration except under the authority or under and in accordance with the conditions of a licence granted by the authority.
The Supreme Court in the case of B.P.Sharma (supra) has held, that the aforesaid provision by necessary implication gives a right to the public to access the protected monument, which also includes the entitlement to the public to know the details of the monument, its historical background and other connected matters, which information they generally obtain through the guides. Consequently, Rule 8(d) of the Rules of 1959 puts an obligation on the respondents to regulate other related matters of right of access to monument, such as matters pertaining to the profession of guides.
The Central Government has been issuing guidelines from time to time with regard to issuance of a licence to a guide. The "introduction and objectives" given in the guidelines dated 22.9.2011 gives a picture of the stand of the Department of Tourism. For facility, the relevant portion of the "introduction and objectives" of per the guidelines dated 22.9.2011 is extracted hereunder:
"Guides play a vital role in bringing satisfaction to tourists visiting a country / region / state. The opportunity of direct interaction with the tourists makes them all the more responsible for projecting the correct image of the country / region, giving factually correct information about the destination, ensuring the safety and well being of the tourists as well as pleasant and satisfying stay for them during their visits.
The institution of guides is a basic component of the infrastructural requirement both for International and Domestic tourism. There has been a steady increase in the international tourist arrivals. Further, as a result of increasing affluence, there is also a significant increase in domestic tourist movement. The last Guidelines for selection, training and licensing of Regional Level Tourist Guides were issued in February 2007. The Government of India has decided to continue the Regional Level Guide training course, including the refresher course, on a regular basis in order to meet the increasing demand for guides both for the international and domestic tourists."
Similar objectives were given by the same department in the guidelines issued on 14.2.2003.
From the aforesaid, it is clear that the stand of the Ministry of Tourism is, that guides play a vital role in bringing satisfaction to the tourists visiting the country and that the interaction by the guides with the tourists projects the image of the country, which is a basic component for providing such facilities both for international and domestic tourists.
The guidelines issued in 2003 introduced a three tier system for appointment of a guide, namely, Regional Guides, State Level Guides and Local Guides, which was to cater to different segments of the society. These guidelines have now been superseded by the guidelines of 2011. The object remains the same, but, the Tourist Department has restricted itself in issuing guidelines only to Regional Level Tourist Guide, which has been sub-categorised as General, General Linguistic, Expert Guide and Expert Linguistic depending on their educational qualification and linguistic abilities. The guidelines of 2011 provides that a General Regional Level Guide should be a graduate and holder of the three years degree in tourism or hospitality and fluency in English language is essential and that he must have studied English as a subject at 10+2 level.
The Court gets an uncanny feeling that the entire objective of the Ministry of Tourism in issuing such guidelines is to cater to international tourists and that no effort has been made to issue licence to guides, which would cater to the domestic tourists. Somehow, the Ministry of Tourism appears to be only interested in projecting an image of the country to international tourists and seems least bothered in providing qualified guides to the domestic tourists who would provide information such as, the details of the monument, its historical background and such other information, which are generally obtained through guides.
This strange feeling that the Court gets is culled out from the various guidelines issued by the Ministry of Tourism from time to time. The 2003 guidelines made a provision for issuing a licence to a local level guide. But the area of operation of these guides was limited. The guidelines of 2011 does not provide any provision for granting a licence to a local level guide.
India is a multilingual country. The citizens of India are also interested in knowing the cultural and historical background of a protected monument. The citizens are also interested in knowing about the details of the monument and such other information in their own language, namely, their mother tongue or in the language in which they are comfortable.
Article 343 of the Constitution of India provides that the official language of the Union shall be Hindi. Article 351 states that it shall be the duty of the Union to promote the spread of the Hindi language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India and to secure its enrichment by assimilating without interfering with its genus, the forms, style and expressions used in Hindustani and in twenty two languages of India specified in the Eight Schedule of the Constitution. Section 3 of the Official Languages Act, 1963 provides that English language may continue to be used, in addition to Hindi.
Language is an expression of culture. The question is, could a culture be expressed in a language not of that culture ? An Indian dreams of the Taj Mahal in his mother tongue but is being made to assimilate the enrichment of that monument in another language. Is it fair ?
A domestic tourist from South India, who is well versed in his local language and does not know the English language, is unable to get any information about the monument, when he visits another State. Similar would be the case of a domestic tourist either from Eastern India or from Western India and domestic tourists from Northern India while visiting South India or any other part of India. Is it fair that a domestic tourist is forced to take a guide who expresses himself in another language merely because there is no guide who can take the tourist around a protected monument in a language in which he is comfortable with ? The Court finds that no provision has been made for providing a licence to a Guide who is fluent in the vernacular language/ languages of this country.
In so far as Uttar Pradesh is concerned, no provision is made to grant a licence to a local guide, who is proficient in the Hindi language which is the language of the State. There are crores and millions of Indians who are well versed in Hindi language and wants a guide who is proficient in the Hindi language to escort and inform them while visiting a protected monument, say, the Taj Mahal, which is a world heritage site. As on date, out of 30 world heritage sites in India, about 50% thereof are situated in the Hindi belt States of North and Central India. Three of such world heritage sites are available in Agra circle / district apart from several hundred other protected monuments.
The Court fails to understand as to why the Ministry of Tourism is emphasising proficiency in English language as a necessary condition for providing a licence to a tourist guide. Are we still living in colonial times or the hangover of the British Raj is still lingering ? Why is the Ministry of Tourism insisting that every guide should be proficient in English language, when it is not their mother tongue ? The Court gets an eerie feeling that this requirement is basically to cater to the need of International Tourists. The Court, accordingly, has no hesitation in holding that the guidelines do not regulate nor provide any provision for issuance of a licence to a guide, who is proficient in regional languages.
The contention of the respondents that the State Level Guides and Local Level Guides could be appointed by the State Government is patently erroneous. No doubt the State Government can frame guidelines for appointment of guides under The U.P. Ancient & Historical Monuments and Archaeological Sites and Preservation Act, 1956, but, such area of operation for the guides would be limited to ancient and historical monuments other than those declared by or under Law made by the Parliament to be of national importance. In the instant case, majority of the petitioners are those persons who are working as guides in Agra. The Taj Mahal at Agra is a protected monument declared under the Union List. The petitioners want a licence to be issued by the Ministry of Tourism so that they could conduct a domestic tourist inside the protected monument. Such licence would be outside the purview of the State Government. Considering the aforesaid, a Division Bench of this Court in Shamshaduddin and others (supra) rightly held that the action of the respondents in not allowing the local guides to profess where regional local guides were professing and confining the local guides to their areas was unfair.
In the light of the aforesaid, the Ministry of Tourism are required to frame guidelines for issuance of a licence for local guides, otherwise it would be an infringement of their right as provided under Article 19 (1)(g) of the Constitution of India.
All citizens are guaranteed a right under Article 19(1)(g) of the Constitution to practice any profession or to carry on any calling trade or business. Clause (6) of Article 19 of the Constitution, however, places a restriction that nothing would prevent the State from making any Law imposing a reasonable restriction in exercise of the right in the interest of general public. Sub clause (1) and (2) further provides that professional and technical qualifications as may be thought necessary for practising the profession can always be prescribed. Subject to the aforesaid restrictions, citizens are free to chose any trade, business, calling or profession and such right is provided under Article 19(1)(g) of the Constitution.
Grant of a licence under the Rules of 1959 is only regulatory in nature. The manner and terms under which a person can carry on his profession can be subject to a reasonable restriction, which the State may think proper in the interest of the general public. The freedom under Article 19(1)(g) of the Constitution can be completely curtailed under certain circumstances, for example, where the profession chosen is so inherently pernicious that nobody could be considered to have a fundamental right to carry on such business, trade, calling or profession like gambling, betting or dealing in intoxicants, etc. For placing a prohibition on any professional activity, there must exist some strong reason for the same with a view to attend some legitimate object, otherwise it would not be a reasonable restriction.
In M.R.F. Ltd. vs. Inspector, Kerala Government, 1998 (8) SCC 227, the Supreme Court laid down certain test on the basis of which reasonableness of the restrictions imposed on the exercise of the right guaranteed under Article 19(1)(g) could be tested, namely:
"(1) While considering the reasonableness of the restrictions, the court has to keep in mind the Directive Principles of State Policy.
(2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public.
(3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances.
(4) A just balance has to be struck between the restrictions imposed and the social control envisaged by Clause (6) of Article 19.
(5) Prevailing social values as also social needs which arc intended to be satisfied by restrictions have to be borne in mind.
(6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise.
Article 19(1)(a) of the Constitution confers on a citizen the right to freedom of speech and expression. It includes the right to know and the right to receive information. This right also emanates from the preamble to our Constitution which secures to all its citizens liberty of thought and expression. Right of information is a facet of "speech and expression" as contained in Article 19(1)(a) of the Constitution of India. Right of information is thus a fundamental right.
Thus, every citizen has a right to know about the history, background, culture and such other information about the monument. Such information must be provided as far as possible in the language in which the citizen is comfortable with.
In the light of the aforesaid, we find that the guidelines of 2011 only provides for issuance of a licence to a certain section of persons who are proficient in the English language as well as in foreign languages. This issuance of a licence only caters to international tourists. No provision has been made for issuance of a licence to a local guide who would cater to the domestic market and who is proficient in the regional languages or the language of that State.
In the instant case, the official language of this State is Hindi. No guidelines have been issued for the issuance of a licence for a local guide who is proficient in Hindi language. This places an unreasonable restriction on the petitioners' right to carry on their trade as a local guide in a protected monument declared by or under Law made by the Parliament. It must be remembered that there are lacs and crores of domestic tourists who are visiting the Taj Mahal every year. A large amount of income is generated through an entry fee and no provision has been made for providing a local guide to the domestic tourist.
It is a known fact that unlicensed guides are proliferating in abundance with no check of their knowledge on the monument. Every and any kind of tourist guides are imparting all sorts of folklores and facts, which are not historically based nor are the guides expressing themselves in a language in which the tourist is comfortable with. Incorrect facts are being imparted to the domestic tourist, which is creating a mockery of the entire system. There is no check on the entry of these guides inside a protected monument. The Tourism Department is only interested in projecting its image to the international tourists and is least bothered as to whether information given by the local tourist is correct or not. No regulations have been framed for providing a licence for local guides. It is high time that the Ministry of Tourism looks into this aspect of the matter and frame proper guidelines.
We accordingly dispose off this group of petitions with the following directions:-
a) Ministry of Tourism, Union of India, is directed to frame guidelines within six months for issuance of a licence for a local guide who is proficient in the Hindi language and such other languages as depicted in the Eighth Schedule of the Constitution of India which would cater to the domestic market.
b) Till such time, the guidelines are not framed and licences to a local guide are not issued, all the respondents are restrained from interfering in the working of the petitioners as local guides in the protected monuments, which is declared by or under law made by Parliament to be of national importance.
(c) As and when licences are issued to local guides, steps would be taken by the respondents to ensure that touts, fraudulent, unlicensed guides or any other unauthorised person(s) are not permitted for the purpose of taking the visitors around the protected monuments for a monetary consideration.
Dated: 07 March, 2014.
AKJ.
(Anil Kumar Sharma,J.) (Tarun Agarwala,J.)