A series of cases in the Indian courts have sought to extend the range of res extra commercium – things outside commerce – to include tobacco. Primarily a common law jurisdiction, it has applied this Roman doctrine to render the tobacco trade illegal on public health and policy grounds[1]. This treatment seems to take a literal view of the doctrine and is inconsistent with its underlying principles. Originally a rule protecting certain kinds of things from being objects of private proprietary rights, res extra commercium included sacred and public properties as well as res omnium communes which were things such as air and natural water bodies. The idea was that these were things to which all were entitled, and individual dominion could not, therefore, be held over them. They could not be traded and owned by private individuals as that would necessarily interfere with the public’s right to such property.
Although Indian courts have in the last century applied res extra commercium in the context of temples (res sacrae), this particular use of the rule diverges from the fundamental point in terms of the interests it seeks to protect. Whereas res publicae, for instance, was not subject to private human dominion so that all Roman people could benefit from it, or res sacrae, which were protected by the gods or had religious value and were therefore ‘subjects of divine’[2], deploying this rule to render commercial activity relating to certain goods illegal does not exactly have a bearing on their capability of being owned. To say that the tobacco trade is illegal because it is beyond commerce is not conceptually equivalent to it being incapable of private ownership. The illegal status of a thing or property does not automatically deprive it of characteristics that enable its private ownership. It treats res extra commercium as a kind of residual category of anything that is untradable, regardless of the implications and purposes of that ‘untradability’. As previously mentioned, to distance certain things from the realm of trade or commerce was for the Romans a way of preserving the rights of the populace to benefit from them or to protect the sacred and natural significance of things from private human ownership. Allowing private trade into it would have deprived a class of people of their right to such benefit, and, in the case of res sacrae, marred the divine nature the doctrine sought to protect. Rendering anything based on res extra commercium illegal is not serving any of these purposes. Instead, it makes the problematic suggestion that something is rendered incapable of proprietary rights simply due to its harmful nature.
The doctrine has also been used by Indian courts to describe gambling[3], which is prohibited under the Public Gambling Act of 1867. The way that res extra commercium is made to operate here – rendering trade and commercial engagement contrary to public policy and morality illegal – is in a very different vein from its purpose in ancient Rome.
Ira Sinha – Law Student
[1] Ankur Gutkha v. Indian Asthama Care Society and Ors., SLP(C) No. 16308/2007, Supreme Court of India (2010).
[2] G. Inst. 2.3.
[3] State of Bombay v R.M.D. Chamarbaugwala 1957 SCR 874
