Dharam
Dutt & Ors Vs. Union of India & Ors [2003] Insc 589
(24 November 2003)
R.C.
Lahoti & Brijesh Kumar. R.C. Lahoti, J.
Writ Petition (civil) 543 of 2001
W.P.
(C) No.276/2001 filed on June 22, 2002, lays challenge to the constitutional
validity of the Indian Council of World Affairs Ordinance, 2001 (No.3 of 2001),
promulgated by the President of India on May 8, 2001, in exercise of the powers
conferred by clause (1) of Article 123 of the Constitution of India. During the
pendency of this petition the Ordinance came to be replaced by an Act of
Parliament, namely, the Indian Council of World Affairs Act, 2001(Act No.29 of
2001), which came into force w.e.f. September 1, 2000. On 19.10.2001 W.P.(C)
No.543/2001 was filed laying challenge to the constitutional validity of this
Act. Both the petitions have been filed under Article 32 of the Constitution of
India and respectively allege the Ordinance and the Act to be violative of
Articles 14, 19(1)(a), 19(1)(c) and 300A of the Constitution.
Factual
backdrop:
In the
year 1943, the Indian Council of World Affairs was formed by about 50
distinguished eminent public personalities as a non- official, non-political
and non-profit organization. On March 31, 1945, the Association was registered as a society under the Societies
Registration Act, 1860. The principal object of the Society, as set out in the
Memorandum of Association, was to promote the study of Indian and international
questions so as to develop a body of informed opinion on world affairs and
Indian relation thereto through study, research, discussion, lectures, exchange
of ideas and information etc., with other bodies in India and abroad engaged in
similar activities.
The
activities of the Society were housed in a building known as Sapru House. Sapru
House has come up on a land of about 2 acres situated at No.1, Barakhamba Road, New Delhi, given on lease by the Government of India some time in the
year 1950-51. Sapru House has a library with a collection of books mainly on
international affairs, an auditorium for holding seminars and discussions, a
conference room and other office accommodation. The Society was receiving
grants from the Government of India from 1974 until the year 1987, whereafter
the grant has been discontinued.
On
June 30, 1990, the President of India promulgated an Ordinance whereby a
statutory body known as the Indian Council of World Affairs was constituted,
having perpetual succession and a common seal, with power to hold and dispose
of property both movable and immovable. The constitutional validity of this
Ordinance was put in issue by filing a writ petition before the High Court of
Punjab and Haryana at Chandigarh, registered as Civil Writ Petition
No.9120 of 1990. A learned single Judge of the High Court vide judgment dated
September 10, 1990, allowed the writ petition, holding the Ordinance to be
ultra vires of the Constitution of India, violating Articles 14, 19(1)(a) and
19(1)(c) thereof and also beyond the legislative competence of the Parliament.
The Union of India filed a letters patent appeal against this judgment of the
learned single Judge. The letters patent appeal came up for hearing before a
Division Bench of the High Court on October 22, 1990. It was brought to the notice of
the Division Bench that the Ordinance promulgated on June 30, 1990 had lapsed on September 19, 1990, as the Bill seeking to replace the
Ordinance by an Act of Parliament could not be passed.
The
Division Bench formed an opinion that the letters patent appeal had become infructuous
and directed the same to be dismissed without any adjudication on merits.
In
December 1999, the Ministry of Urban Development, Government of India,
cancelled the perpetual lease of the land of the Indian Council of World
Affairs. The cancellation of lease was followed by an order of re-entry. A writ
petition was filed in the Delhi High Court, laying challenge to the said action
of the Central Government.
The
learned single Judge before whom the writ petition came up for hearing refused
to grant any interim relief to the writ petitioner, and so a Letters Patent
Appeal No.577/99 came to be filed before the Division Bench of the Delhi High
Court. On December 24,
1999, the High Court
directed further proceedings before the Estate Officer under the Public
Premises Act to remain stayed. It seems that there was some controversy about
the breach of the interim order granted by the High Court, which led to the
filing of two contempt petitions in the High Court of Delhi, which are still
pending.
On September 1, 2000, the President of India promulgated
Ordinance No.3 of 2000, the terms whereof were more or less similar and
identical with those of the Ordinance of 1990. The constitutional validity of
this Ordinance was challenged by filing C.W.P. No.5174 of 2000 in the High
Court of Delhi. A Bill proposing to replace the Ordinance was moved in the
Parliament which was passed by the Lok Sabha and was pending in the Rajya Sabha,
but the Rajya Sabha was adjourned and, therefore, the Ordinance lapsed on December 31, 2000.
On January 5, 2001, Ordinance No.1 of 2001 was
promulgated seeking to revive Ordinance No.3 of 2000; however, this Ordinance
too lapsed on April 3,
2001.
On May 8, 2001, Ordinance No.3 of 2001 was promulgated and replaced
by an Act of Parliament, which received the assent of the President of India on
September 3, 2001.
The
facts stated hereinabove are almost undisputed. We say so because the
chronology of events is not at all in dispute; there is a minor variation in
the manner of narration of the events and the background leading to the
promulgation of the Ordinances and the passing of the Act, which are not very
material and hence have been overlooked. We may now broadly state the facts
which are disputed and which form the subject matter of the controversy arising
for decision in the writ petitions.
The
Controversy According to the writ petitioners, Sapru House is a building
constructed by the Society. The building, the library and all other movables in
Sapru House are owned by the Society. By promulgating the impugned Ordinance and
by enacting the impugned Act, the Central Government has taken over the Society
as also its movable and immovable properties. This has resulted in violating
the right of the writ petitioners to the freedom of speech and expression and
to form associations or unions as conferred on citizens by sub-clauses (a) and
(c) of clause (1) of Article 19 of the Constitution of India. The Society has
been deprived of its property without any authority of law which is violative
of Article 300A of the Constitution of India. The impugned Ordinance and the
Act are malicious inasmuch as they are motivated by political considerations.
It is also alleged that the impugned Ordinance and the Act are violative of the
doctrine of Separation of Powers. The High Court of Punjab and Haryana had
struck down an Ordinance which contained similar provisions and the said
judgment dated September
10, 1990, has achieved
a finality in view of the challenge to the legality of the judgment having been
given up by the Union of Indian by not pressing the letters patent appeal. A
subsequent legislation which is in defiance of the judgment of the High Court
deserves to be struck down solely on this ground.
According
to the counter-affidavit filed by the Union of India, the Indian Council of
World Affairs ('ICWA', for short) had attained an international stature in
connection with world affairs and the foreign policies of India vis-a-vis other countries. However,
the activities of the Society, i.e. running the Institution, were being
complained against by several persons all over the country on account of the
sub-standard level of the programmes and the activities being conducted, as
also about the standard of the maintenance of stock of books, periodicals, etc.
in the library. The image and reputation of the Institution drew adverse
publicity in the Press. In the counter-affidavit several such instances have
been highlighted under the title "Glaring Instances of
Maladministration" as revealed in the Audit conducted by the Comptroller
and Auditor General of India. These instances highlight irregular and
incomplete maintenance of accounts, misuse and diversion of funds, and deficits
and losses accumulating year by year on account of mismanagement and
mal-administration. Photographs have been filed with the counter affidavit
showing the state of disrepair of the building and its furniture. Serious
irregularities were found to have been committed in the conduct of elections of
the Executive Committee, resulting in the complete breakdown of the democratic
functioning of the Institution. The electoral roll consisted of members who had
discontinued their membership. Fruit and vegetable vendors were enrolled as
members of the Indian Council of World Affairs, so as to pack the membership
with defunct members only to ensure the continuance in office of a certain set
of people.
Membership
fees of all such multiple members were being deposited by a single cheque.
On the
affidavit of the Joint Secretary in the Ministry of External Affairs,
Government of India, New Delhi, it has been stated that financial assistance
was regularly granted to ICWA by the MEA and Deptt. Of Culture (Ministry of
Education). Grants have been given after 1986 by organizations like ICSSR. Adhoc
grants had been given by the Deptt. of Culture between 1974-1975 till
1988-1989. The last grant of Rs.5 lakh from MEA was in 1985-1986. In 1996-1997,
the ICWA management wrote off the Capital Reserve of Rs.19,38,302/- against an
accumulated deficit of Rs.31,06,897/-. The deficit of the erstwhile ICWA continued
to increase till the takeover by the newly incorporated body on 2nd September, 2000. The report of the Special Audit of
ICWA by CAG, which commenced on 11.8.2000, highlights unaccounted for
liabilities to the extent of Rs.132.84 lacs, contravention of the provisions of
the perpetual lease, non-adjustment of cash drawn for day to day expenses
amounting to Rs.22,48,399.65, and possible misappropriation of funds to the
tune of Rs.1,39,086.10 by inflating the total amount of the salary bills.
According
to the respondents, the property - Sapru House, is situated on land which
belongs to the Government of India (Land & Development Office). Large
subventions and grants have been given from time to time by the Government of
India to the Society wherefrom the building was constructed. The lease of the
land was terminated for non-payment of dues as well as for various breaches
amounting to misuse committed by the Society. The dues as per the claim of the
L&DO worked out to more than Rs.9 crores. Eviction orders were passed by
the Estate Officer, which have been stayed by the High Court. However, having
acquired management and control over the Institution and the building and other
properties in the year 1990, pursuant to the Ordinance, the Government of India
had spent about Rs.2 crores so as to restore Sapru House to its original
condition and make it fit for habitation and use. The Union of India has
vehemently denied the allegation of the petitioners that the impugned Ordinance
and Legislation were politically motivated. It is submitted that Governments
have changed from time to time with different political leanings. However,
three Parliamentary Standing Committees appointed at different points of time
have recommended the taking over of Sapru House, lamenting the decline in the
standard of the Institution. Earlier Ordinances are a matter of history and of
mere academic relevance in view of the Parliament having ultimately enacted the
Act. As to the impugned Act being in violation of the doctrine of Separation of
Powers and in defiance of the decision of the Punjab and Haryana High Court, the respondents have submitted that
the decision of the learned single Judge was incorrect. It was put in issue by
filing a letters patent appeal, which appeal was disposed of without any
adjudication on merits due to the High Court having formed an opinion that the
adjudication of the appeal was rendered academic in view of the Ordinance
having lapsed. The respondents could not have pressed for decision of the
letters patent appeal on merits nor could they have taken the matter further
because the High Court or this Court would not have entered into the
examination of an issue which was rendered of academic interest only.
The
Union of India has vehemently submitted that the Society has not been touched.
It continues to survive as before and, therefore, the question of any
fundamental right within the meaning of sub-clauses (a) and (c) of clause (1)
of Article 19 of the Constitution of India having been breached, does not
arise. As the Institution, the Indian Council of World Affairs, is an
institution of national importance, the impugned enactment is protected by
Entries 62 and 63 of List I of the Seventh Schedule to the Constitution of
India.
In the
submission of the Union of India the building and the library have been built
out of Government of India funds and subventions, and some donations received
from persons of the eminence of former Prime Ministers and the President of
India and other dignitaries. The Society does not have any right in any of the
properties, as is being claimed by the petitioners.
Challenge
to Ordinance infructuous (W.P.(C) No.276 of 2001) Before we enter into
examining the merits of the attack laid on the impugned Act, we would like to
summarily dispose of W.P.(C) No.276 of 2001 wherein the challenge has been laid
to the validity of the Ordinance only. The Ordinance has been replaced by an
Act of Parliament. A fresh petition has been filed laying challenge to the
constitutional validity of the Act. All the grounds taken in W.P.(C)
No.276/2001 have been reiterated and reurged in W.P.(C) No.543/2001. As the
merits of the pleas raised on behalf of the writ petitioners are available to
be considered in the latter civil writ petition, W.P.(C) No.276/2001 is rendered
infructuous and we direct it to be treated as disposed of without any
adjudication on merits. The Ordinance impugned therein having ceased to operate,
the factum of promulgation of such Ordinance remains only a part of the
narration of events. No such action was taken thereunder the legality whereof
may survive for adjudication in spite of the lapse of the Ordinance.
We
will, therefore, confine ourselves to dealing with the validity of the impugned
Act.
Whether
the impugned enactment is vitiated by malafides? :
Though
the petition alleges the impugned Act (with the history of preceding
Ordinances) to be the outcome of political malice, no particulars thereof have
been given by the writ petitoner. However, that aspect need not be deliberated
upon any further in view of two Constitution Bench decisions of this Court. It
has been held in K.C. and in Board of Trustees, Ayurvedic and Unani Tibia College, 1962 Supp.(1) SCC 156, that the
doctrine of Colourable Legislation does not involve any question of bona fides
or mala fides on the part of the legislature. The whole doctrine resolves
itself into the question of the competency of a particular legislature to enact
a particular law.
If the
legislature is competent to pass a particular law, the motives which impelled
it to act are really irrelevant. On the other hand, if the legislature lacks
competency, the question of motive does not arise at all. We will, therefore,
concentrate on the legislative competence of Parliament to enact the impugned
legislation. If the Parliament has the requisite competence to enact the
impugned Act, the enquiry into the motive which persuaded the Parliament into
passing the Act would be of no use at all.
Gist
of the impugned Act The Preamble to the Act, that is, the Indian Council of World
Affairs Act, 2001 (Act No.29 of 2001) reads - " An Act to declare the
Indian Council of World Affairs to be an institution of national importance and
to provide for its incorporation and matters connected therewith." Section
2 declares I.C.W.A. as an institution of national importance. Section 4
incorporates a statutory council by the name of the Indian Council of World
Affairs as a body corporate, which shall have perpetual succession and a common
seal with power to hold property, movable and immovable, and to contract and to
sue and be sued in its name. Section 5 transfers all properties and assets,
debts, obligations and liabilities and contracts of the existing council to the
new body corporate. The new council consists of the Vice-President of India as
its ex-officio President and the Prime Minister of India, the Speaker of the Lok
Sabha, the Leader of the House, Rajya Sabha, the Leaders of the Opposition in
both the Lok Sabha and Rajya Sabha to be its members, with a provision for
future expansion so as to include in the council certain specified and
nominated members of the Central Government. Provisions are made for the staff,
the functions of the council, budgeting, accounts and audit, and so on. The
Central Government is vested with the power to make Rules to carry out the
provisions of the Act. The council may make regulations consistent with the Act
and the Rules. Without entering into further details it would suffice for our
purpose to sum up the gist of the Act by stating that :-
(1) a
new body corporate known as the Indian Council of World Affairs has come into
existence;
(2) the
institution, 'Indian Council of World Affairs' has been declared to be an
institution of national importance;
(3) the
institution has been taken over by the Central Government and entrusted to the
new Council - a statutory corporate body;
(4) the
society named the Indian Council of World Affairs has not been touched at all;
its membership and organization have been left intact, untampered with and
untouched.
According
to the respondents, the impugned Act falls within the purview of Entries 62 and
63 of List I of the Seventh Schedule, which Entries read as under:- "62.
The institutions known at the commencement of this Constitution as the National
Library, the Indian Museum, the Imperial War Museum, the Victoria Memorial and the
Indian War Memorial, and any other like institution financed by the Government
of India wholly or in part and declared by Parliament by law to be an
institution of national importance.
63. The
institutions known at the commencement of this Constitution as the Benares
Hindu University, the Aligarh Muslim University and the Delhi University; the
University established in pursuance of Article 371-E;
and
any other institution declared by Parliament by law to be an institution of
national importance." With this much of an introductory statement, we
proceed to deal with the several grounds of attack urged by the petitioners.
Impugned
Act if violative of Article 19(1)(a) & (c) Article 19(1)(a) and (c) and
clauses (2) and (4) of Article 19, relevant for our purpose, provide as under
:-
"19.
Protection of certain rights regarding freedom of speech, etc. –
(1)
All citizens shall have the right.-
(a) to
freedom of speech and expression;
(b) xxx
xxx (c) to form associations or unions;
(d) to
(g) xxx xxx
(2)
Nothing in sub-clause (a) of clause (1) shall affect the operation of any
existing law, or prevent the State from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the right conferred by the
said sub-clause in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with Foreign States, public order,
decency or morality or in relation to contempt of court, defamation or
incitement to an offence.
(3)
xxx xxx xxx (4) Nothing in sub-clause (c) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent the State
from making any law imposing, in the interests of the sovereignty and integrity
of India or public order or morality, reasonable restrictions on the exercise
of the right conferred by the said sub-clause.
(5) xxx
xxx xxx (6) xxx xxx xxx" 1952 SCR 597, laid down twin tests on which the
constitutional validity of a legislation under Article 19 is to be tested. The
first test is the test of reasonableness which is common to all the clauses
under Article 19(1); and the second test is to ask for the answer to the
question, whether the restriction sought to be imposed on the fundamental
right, falls within sub-articles (2) to (6) respectively qua the clauses (a) to
(g) of Article 19(1). The test of reasonableness, according to the Constitution
Bench, should be applied to each individual statute impugned, and no abstract standard,
or general pattern of reasonableness can be laid down as applicable to all
cases. The nature of the right alleged to have been infringed, the underlying
purpose of the restrictions imposed, the extent and urgency of the evil sought
to be remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time, should all enter into the judicial verdict. In
evaluating such elusive factors and forming their own conception of what is
reasonable, in all the circumstances of a given case, it is inevitable that the
social philosophy and the scale of values of the Judges participating in the
decision should play an important part, and the limit to their interference
with legislative judgment in such cases can only be dictated by their sense of responsibility
and self-restraint, and the sobering reflection that the Constitution is meant
not only for people of their way of thinking but for all, and that the majority
of the elected representatives of the people have, in authorizing the
imposition of the restrictions, considered them to be reasonable. Under the
second test, the Constitution Bench, called upon to deal with the legislation
impugned before it by reference to Articles 19(1)(c) and 19(4) of the
Constitution, held the impugned legislation to be unconstitutional and void
because it curtailed the fundamental right to form associations or unions and
fell outside the limits of authorized restrictions under clause (4) of Article
19.
Article
19(1) of the Constitution came up for the consideration Union of India & Anr.
- (1978) 1 SCC 248. Dealing with the scope and purport of Article 19(1) the
Bench held:- "Even if a right is not specifically named in Article 19(1),
it may still be a fundamental right covered by some clause of that Article if
it is an integral part of a named fundamental right or partakes of the same
basic nature and character as that fundamental right. It is not enough that a
right claimed by the petitioner flows or emanates from a named fundamental
right or that its existence is necessary in order to make the exercise of the
named fundamental right meaningful and effective.
Every
activity which facilitates the exercise of a named fundamental right is not
necessarily comprehended in that fundamental right nor can it be regarded as
such merely because it may not be possible otherwise to effectively exercise
that fundamental right. What is necessary to be seen is, and that is the test
which must be applied is, whether the right claimed by the petitioner is an
integral part of a named fundamental right or partakes of the same basic nature
and character as the named fundamental right so that the exercise of such right
is in reality and substance nothing but an instance of the exercise of the
named fundamental right. If this be the correct test, the right to go abroad
cannot in all circumstances be regarded as included in freedom of speech and
expression." (emphasis supplied) Their Lordships referred to All India
Bank Employees' wherein the plea raised was that the right to form associations
protected under Article 19(1) (c) carried with it a guarantee that the
association shall effectively achieve the purpose for which it was formed,
without interference by law, except on grounds relevant to the preservation of
public order or morality as set out in Article 19(4). The plea so raised was
rejected. The Court negatived the argument that the freedom to form unions
carried with it the concomitant right that such unions should be able to
fulfill the object for which they were formed. The scope of the fundamental
right conferred by Article 19(1)(a) cannot be expanded on the theory of
peripheral or concomitant right. Their Lordships held that such a theory having
been firmly rejected in the All India Bank Employees Association's case
(supra), any attempt to revive it cannot be countenanced as that would
completely upset the scheme of Article 19(1). The words of Rajagopala Ayyanger,
J. were quoted with approval, as saying "by a series of ever expanding
concentric circles in the shape of rights concomitant to concomitant rights and
so on, lead to an almost grotesque result". In Maneka Gandhi's case
(supra) the right to go abroad was clearly held not to be a guaranteed right
under Article 19(1) and an imposition by law of restrictions on the right to go
abroad was held to be not offending Article 19(1)(a) or (g), as its direct and
inevitable impact is only on the right to go abroad and not on the right of
free speech and expression or the right to carry on any trade, business,
profession or calling.
From a
reading of the two decisions, namely, Smt. Maneka Gandhi's case (supra),
(seven-Judges Bench) and All India Bank Employees Association's case (supra),
(five-Judges Bench), the following principles emerge :
(i) a
right to form associations or unions does not include within its ken as a
fundamental right a right to form associations or unions for achieving a
particular object or running a particular institution, the same being a
concomitant or concomitant to a concomitant of a fundamental right, but not the
fundamental right itself. The associations or unions of citizens cannot further
claim as a fundamental right that it must also be able to achieve the purpose
for which it has come into existence so that any interference with such
achievement by law shall be unconstitutional, unless the same could be
justified under Article 19(4) as being a restriction imposed in the interest of
public order or morality;
(ii) A
right to form associations guaranteed under Article 19 (1)(c) does not imply
the fulfillment of every object of an association as it would be contradictory
to the scheme underlying the text and the frame of the several fundamental
rights guaranteed by Part III and particularly by the scheme of the guarantees
conferred by sub-clauses (a) to (g) of clause (1) of Article 19;
(iii)
While right to form an association is to be tested by reference to Article 19(1)(c)
and the validity of restriction thereon by reference to Article 19(4), once the
individual citizens have formed an association and carry on some activity, the
validity of legislation restricting the activities of the association shall
have to be judged by reference to Article 19(1)(g) read with 19(6).
A
restriction on the activities of the association is not a restriction on the
activities of the individual citizens forming membership of the association;
and (iv) A perusal of Article 19 with certain other Articles like 26, 29 and 30
shows that while Article 19 grants rights to the citizens as such, the
associations can lay claim to the fundamental rights guaranteed by Article 19
solely on the basis of there being an aggregation of citizens, i.e., the rights
of the citizens composing the body. As the stream can rise no higher than the
source, associations of citizens cannot lay claim to rights not open to
citizens or claim freedom from restrictions to which the citizens composing it
are subject.
The
Constitution Bench in All India Bank Employees' Association's case (supra) gave
a precise illustration thus - "If an association were formed for the purpose
of carrying on business, the right to form it would be guaranteed by sub-clause
(c) of clause (1) of Article 19, subject to any law restricting that right
conforming to clause (4) of Article 19. As regards its business activities,
however, and the achievement of the objects for which it was brought into
existence, its rights would be those guaranteed by sub-clause (g) of clause (1)
of Article 19, subject to any relevant law on the matter conforming to clause
(6) of Article 19; while the property which the association acquires or
possesses would be protected by sub-clause (f) of clause (1) of Article 19
subject to legislation within the limits laid down by clause (5) of Article
19." Giving exposition to the law by reference to the labour union, the
Constitution Bench held - "While the right to form a union is guaranteed
by sub-clause (c), the right of the members of the association to meet would be
guaranteed by sub-clause (b), their right to move from place to place within
India by sub-clause (d), their right to discuss their problems and to propagate
their views by sub-clause (a), their right to hold property would be that
guaranteed by sub- clause (f) and so on - each of these freedoms being subject
to such restrictions as might properly be imposed by clauses (2) to (6) of
Article 19 as might be appropriate in the context. It is one thing to interpret
each of the freedoms guaranteed by the several Articles in Part III in a fair
and liberal sense; it is quite another to read each guaranteed right as involving
or including concomitant rights necessary to achieve the object which might be
supposed to underlie the grant of each of those rights." The Constitution
Bench further held that the framing and structure of part III of the
Constitution by the founding fathers calls for the guarantees embodied in it to
be interpreted in a liberal way, so as to subserve the purpose for which the
constitution-makers intended them, and not in any pedantic or narrow sense.
This, however, does not imply that the Court is at liberty to give an unnatural
and artificial meaning to the expressions used based on ideological
considerations.
A
right to form unions guaranteed by Article 19(1)(c) does not carry with it a
fundamental right in the union so formed to achieve every object for which it
was formed with the legal consequence that any legislation not falling within
clause (4) of Article 19 which might in any way hamper the fulfillment of those
objects, should be declared unconstitutional and void. Even a very liberal
interpretation cannot lead to the conclusion that the trade unions have a
guaranteed right to an effective collective bargaining or to strike, either as
part of collective bargaining or otherwise. The right to strike or the right to
declare a lock-out may be controlled or restricted by appropriate industrial
legislation, and the validity of such legislation would have to be tested not
with reference to the criteria laid down in clause (4) of Article 19 but by
totally different considerations. A right guaranteed by Article 19(1)(c) on a
literal reading thereof can be subjected to those restrictions which satisfy
the test of clause (4) of Article 19. The rights not included in the literal
meaning of Article 19(1)(c) but which are sought to be included therein as
flowing therefrom i.e. every right which is necessary in order that the
association, brought into existence, fulfills every object for which it is
formed, the qualifications therefor would not merely be those in clause (4) of
Article 19 but would be more numerous and very different. Restrictions which
bore upon and took into account the several fields in which associations or
unions of citizens might legitimately engage themselves, would also become
relevant.
The
law so settled, as has been stated hereinabove, has not changed its course in
the flow of subsequent judicial pronouncements.
We may
selectively refer to a few of them. In M/s. Raghubar Dayal 547, the issue
related to the Forward Contracts (Regulation) Act, 1952, which imposed
restrictions on the recognition of associations by the Government. Provisions
were made for certain enquiries to be held and for the satisfaction of certain
criteria whereupon the association could be recognized. The challenge to the
constitutional validity of the provision was founded on the submission that the
provisions infringed upon the freedom to form associations under Article 19(1)(c).
It was urged that the constitutional guarantee to every citizen to the right to
form an association could be limited only by an imposition on the right which
might legally fall within clause (4) of Article 19 viz. bye laws which place
restrictions based on either public order or morality. It was further urged
that where the object of the association is lawful, the citizens, through that
association, and the association itself, are entitled by virtue of the
guaranteed right to freedom from legislative interference in the achievement of
its object, except on grounds germane to public order or morality. In other
words, the freedom guaranteed should be read as extending not merely to the
formation of the association as such, but to the effective functioning of the
association so as to enable it to achieve its lawful objectives. Unless Article
19(1)(c) were so read, the freedom guaranteed would be illusory and the Court
should, in construing a freedom guaranteed to the citizen, give him an
effective right. In short, the submission was that the right guaranteed under
sub-clause (c) of clause (1) of Article 19 was not merely, as its text would
indicate, the right to form an association, but would include the functioning
of the association without any restraints not dictated by the need for
preserving order or the interests of morality. The Constitution Bench discarded
the argument as without force and held - "the restriction imposed by
Section 6 of the Act is for the purpose of recognition and no association is
compelled to apply to the Government for recognition under that Act. An
application for the recognition of the association for the purpose of functioning
under the enactment is a voluntary act on the part of the association and if
the statute imposes conditions subject to which alone recognition could be
accorded or continued, it is a little difficult to see how the freedom to form
the association is affected unless, of course, that freedom implies or involves
a guaranteed right to recognition also." The applicability of Article 19
of the Constitution came to be examined from yet another angle in The Tata
Engineering and 6 SCR 885. Corporations and companies moved the Supreme Court
alleging violation of their fundamental right under Article 19 of the
Constitution. Articles 19(1)(c) and 19(1)(g) came up for consideration. Their
Lordships held that Article 19 applies to 'citizens' and not to 'persons' as
Article 14 does. The effect of confining Article 19 to citizens as
distinguished from persons, is that protection under Article 19 can be claimed
only by citizens and not by corporations or companies. The attempt of the
petitioners to claim the benefit of Article 19 by placing reliance on the
doctrine of lifting the corporate veil and submitting that the corporation or
the company consists of its members and what is adversely affected is their
fundamental right, was rejected by the Court. The Constitution Bench held that
the fundamental right to form an association cannot be coupled with the
fundamental right to carry on any trade or business. As soon as citizens form a
company, the right guaranteed to them by Article 19(1)(c) has been exercised
and no restraint has been placed on that right and no infringement of that
right is made. Once a company or a corporation is formed, the business which is
carried on by the said company or corporation is the business of the company or
corporation, and is not the business of the citizens who get the company or
corporation formed or incorporated, and the rights of the incorporated body
must be judged on that footing alone and cannot be judged on the assumption
that they are the rights attributable to the business of individual citizens.
In our opinion, the same principle as has been applied to companies and
corporations would apply to a society registered under the Societies
Registration Act, 1860.
Court
has held that Article 19(1)(c) does not give any right to any citizen to manage
any particular educational institution and it only gives the right to a citizen
to form associations or unions. and Ors., (1971) 2 SCC 269, the impugned
legislation provided for compulsory affiliation of religious or linguistic
minority institutions to the University. It was contended that the compulsory
affiliation of the petitioners to the University affects their fundamental
'right of freedom of association' as guaranteed under Article 19(1)(c). It was
held that the Notification providing for compulsory affiliation of the
educational institution with the University did not in any manner interfere or
attempt to interfere with the petitioners' right to form an association under
Article 19(1)(c).
A Full
Bench (five-Judges) decision by the Andhra Pradesh High of A.P. & Ors., AIR
1978 A.P. 121 (F.B.), is relevant and we are inclined to make a reference to
the same. The statutory provision impugned therein was one which provided for
merger, amalgamation or liquidation of co-operative societies. The non-viable
societies could be merged or amalgamated with the viable societies. It was
urged that the forcible dumping of the members of the non-viable societies
where such societies are merged with viable societies, violates the rights of
the members of the viable societies. It was submitted that a viable society is
one voluntarily formed by the members of that society and it is for them to
decide whether they would admit other members of non-viable societies or not.
The members of a non-viable society cannot be forced upon them against their
will. It was also submitted that when a non-viable society is merged with a
viable society, the share value in a viable society would drop down and this
would adversely affect their fundamental rights under sub-clauses (f) and (g)
of clause (1) of Article 19 and Article 31 of the Constitution. The Full Bench
rejected the argument as one of absolutely no merit and held that merger does
not affect the right to form an association. The effect of merger is regulating
the business activity of the society and not the right of the members to form
an association. The merger or liquidation is a reasonable restriction imposed
on the business activity of the co-operative society by regulating its trade or
business activity which would be protected by clause (6) of Article 19. The
High Court drew a distinction between the right of a person to form an
association and the right of such association to carry a business activity.
Before
the Full Bench of the Andhra Pradesh High Court, a Division Bench decision of
the High Court of Patna in Harakh Bhagat and Ors., AIR 1968 Patna 211, was
cited and it was followed.
Following
the law laid down by the Constitution Bench of this Court in the case of The Tata
Engineering and Locomotive Co.Ltd. (supra) the Division Bench upheld the
validity of a legislative provision providing for compulsory amalgamation of
co-operative societies in certain situations, and held that the provision did
not violate the fundamental right of the members of the Societies under Article
19(1)(c) of the Constitution.
The
scheme of Article 19 shows that a group of rights are listed as clauses (a) to
(g) and are recognized as fundamental rights conferred on citizens. All the
rights do not stand on a common pedestal but have varying dimensions and
underlying philosophies.
This
is clear from the drafting of clauses (2) to (6) of Article 19. The framers of
the Constitution could have made a common draft of restrictions which were
permissible to be imposed on the operation of the fundamental rights listed in
clause (1), but that has not been done.
The
common thread that runs throughout sub-clauses (2) to (6) is that the operation
of any existing law or the enactment by the State of any law which imposes
reasonable restrictions to achieve certain objects, is saved; however, the
quality and content of such law would be different by reference to each of the
sub-clauses (a) to (g) of clause (1) of Article 19 as can be tabulated hereunder
:
Article
19 Clause (1) Nature of Right Clauses (2) to (6) Permissible Restrictions By
existing law or by law made by State imposing reasonable restrictions, in the
interests of
(a)
Freedom of speech and expression
(i) the
sovereignty and integrity of India
(ii) the
security of the State
(iii) friendly
relations with Foreign States
(iv) public
order, decency or morality
(v) in
relation to contempt of court, defamation or incitement to an offence
(b) right
to assemble peaceably and without arms
(i) the
sovereignty and integrity of India
(ii) public
order
(c)
right of form associations or unions
(i) the
sovereignty and integrity of India
(ii) public
order or morality
(d)
& (e) right to move freely and/or to reside and settle through out the territory of India
(i) the
general public
(ii) the
protection of the interests of Schedules Tribe
(g) right
to practise any profession, or to carry on any occupation, trade or business
The general public and in particular any law relating to
(i) the
professional or technical qualifications necessary for practising of any
profession or carrying on any occupation, trade or business
(ii) the
carrying on by the state, or by a corporation owned or controlled by the State,
of any trade, business, industry or service, whether to the exclusion, complete
or partial, of citizens or otherwise.
Article
19 confers fundamental rights on citizens. The rights conferred by Article
19(1) are not available to and cannot be claimed by any person who is not and
cannot be a citizen of India. A statutory right __ as distinguished from a
fundamental right __ conferred on persons or citizens is capable of being
deprived of or taken away by legislation. The fundamental rights cannot be
taken away by any legislation; a legislation can only impose reasonable
restrictions on the exercise of the right. Out of the several rights enumerated
in clause (1) of Article 19, the right at sub-clause (a) is not merely a right
of speech and expression but a right to freedom of speech and expression. The
enumeration of other rights is not by reference to freedom. In the words of the
then Chief Justice Patanjali Sastri (In 587) these rights are great and basic
rights which are recognized and guaranteed as the natural rights, inherent in
the status of a citizen of a free country. Yet, there cannot be any liberty
absolute in nature and uncontrolled in operation so as to confer a right wholly
free from any restraint. Had there been no restraints, the rights and freedoms
may tend to become the synonyms of anarchy and disorder. The founding fathers
of the Constitution, therefore, conditioned the enumerated rights and freedoms
reasonably and such reasonable restrictions are found to be enumerated in
clauses (2) to (6) of Article 19 excepting for sub-clauses (i) and (ii) of
clause (6), the laws falling within which descriptions are immune from attack
on the exercise of legislative of Mysore & Ors., (1960) 3SCR 742).
The
Court, confronted with a challenge to the constitutional validity of any
legislative enactment by reference to Article 19 of the Constitution, shall first
ask what is the sweep of the fundamental right guaranteed by the relevant
sub-clause out of sub-clauses (a) to (g) of clause (1). If the right canvassed
falls within the sweep and expanse of any of the sub-clauses of clause (1),
then the next question to be asked would be, whether the impugned law imposes a
reasonable restriction falling with the scope of clauses (2) to (6)
respectively.
However,
if the right sought to be canvassed does not fall within the sweep of the
fundamental rights but is a mere concomitant or adjunct or expansion or
incidence of that right, then the validity thereof is not to be tested by
reference to clauses (2) to (6). The test which it would be required to satisfy
for its constitutional validity is one of reasonableness, as propounded in the
case of V.G. Row (supra) or if it comes into conflict with any other provision
of the Constitution.
The
learned Additional Solicitor General, Shri Raju Ramachandran, placed implicit
reliance on the decision of this Court in L.N. Mishra Institute of Economic
Development and Social submitted that the said case has a close resemblance to
the facts of the present case and provides a complete answer to the plea raised
on behalf of the petitioners.
In
L.N. Mishra's case (supra) the Institute __ Lalit Narain Mishra Institute of
Economic Development and Social Change, Patna, was started by a Society. The
name of the Institute and the name of the Society were the same. On April 19,
1986, the State Government of Bihar promulgated Ordinance No.15 of 1986,
whereby the possession of the Institute was taken over by the State Government
on that very day. The constitutional validity of the Ordinance was challenged
alleging that it was promulgated and the Institute was taken over at the
instance of the then Chief Minister, actuated by mala fides. The Ordinance was
later replaced by an Act, the constitutional validity whereof was also
challenged on identical grounds. The preamble to the Act stated the need to
nationalize private education relating to business management in view of a very
good possibility of a rapid industrial and economic development of the State of
Bihar. The nationalization was proposed to be resolved in phases. The first
phase related to the taking over of the Institute. The challenge was founded on
violation of Article 19(1)(c) of the Constitution, submitting that the
fundamental right to form an association was infringed. The management of the
Society was totally displaced and its composition changed. All assets and
properties were vested in the State Government and the Commissioner was deemed
to have taken charge of the Institute. As all incidence of ownership and
management were taken over by the State, what was left to the Society was paper
ownership and management. Turning down the challenge, this Court held that the
impugned Ordinance and the Act merely took over the Institute. Although, the name
of the Society and of the Institute are the same, they were two different
entities. The impugned legislations took over the Institute and not the
Society. No restriction whatsoever was imposed on the functioning of the
Society. The provisions of the Act referred to the Institute. The Institute
constituted one of the activities of the Society. The petitioner-Society had
constituted itself into an association in exercise of the fundamental right
conferred by Article 19(1)(c). That right of that Society remains unimpaired
and uninterfered with by the impugned Act and Ordinance.
The
Court further held that - "There can be no doubt that the Institute has
been taken over by the provisions of the Ordinance and the Act. It is true that
with the taking over of the Institute, the Society lost its right of management
and control of the Institute, but that is the consequence of all acquisitions.
When a property is acquired, the owner loses all control, interest and
ownership of the property. Similarly the Society, which was the owner of the
Institute, has lost all control and ownership of the Institute. It may be
equally true that the Institute was the only activity of the Society, but we
are concerned with the right of the Society to form an association. So long as
there is no interference with the Society, its constitution or composition, it
is difficult to say that because of the taking over or acquisition of the
Institute, which was the only property or activity of the Society, the
fundamental right of the Society to form an association has been
infringed." The Court clarified - "the composition of the Society has
not been touched at all. All that has been done is to nationalize the Institute
of the Society by the acquisition of the assets and properties relating to the
Institute. The Society may constitute its governing body in accordance with its
rules without any interference by the government." The Court also tested
the validity of the submission that the right of citizens to form associations
or unions within the meaning of Article 19 (1)(c) of the Constitution should be
given the widest operation and any law which infringes upon the wide sweep of
the right must satisfy the test of Article 19(4), which saves only such laws
which impose in the interests of the sovereignty and integrity of India or
public order or morality the reasonable restrictions on the exercise of the
right conferred by Section 19(1)(c). Reliance was placed on All Tribunal,
(1962) 3 SCR 269 and the Court concluded that the fundamental right guaranteed
under Article 19(1)(c) does not carry with it a further guarantee that the
objects or purposes or activities of an association so formed shall not be
interfered with by law except on grounds as mentioned in Article 19(4). In sum,
the Court rejected the contention on behalf of the society that because of the
acquisition of the institute the society lost its right of management over the
institute, and as the institute was the main or the only activity of the
society, the impugned legislations interfered with the right of the society to
form and continue the association and are as such unconstitutional and void.
the
disciples and devoted followers of Sri Aurobindo formed the Aurobindo Society
in Calcutta and got it registered as a Society with the object of preaching and
propagating the ideals and teachings of Sri Aurobindo and the Mother. The
Society for its Auroville project received grants and subventions from UNESCO
and also from the Government of India. However, after the death of the Mother,
complaints started pouring in with the Central Government which, on enquiry,
revealed mismanagement of the affairs of the Society, misuse of the funds thereof
and diversion of the funds meant for Auroville to other purposes. There was
in-fighting between the groups of members and the situation went out of
control. The Auroville (Emergency Provisions) Ordinance, 1980, was promulgated
followed by an Act, whereby the management of Auroville was taken over, though
for a limited period. The constitutional validity of the Act was challenged on
the ground that Articles 25, 26, 29 and 30 and also Article 14 were infringed;
and that the Parliament had no legislative competence to enact the said Act.
Turning down the challenge on all the grounds, the Constitution Bench held,
inter alia, that assuming but not holding that the Society or Auroville were a
religious denomination, the impugned Act was not hit by Article 25 or 26. It
does not curtail the freedom of conscience and the right to freely profess, practise
and propagate one's own religion. "The right of management in matters of
religion of a religious denomination" under Article 26(b) was not taken
away; what was taken away was the right of management of the property of Auroville
which was a secular matter. So also the Act did not curtail the right of any
section of citizens to conserve its own language, script or culture conferred
by Article 29. An activity, secular in nature, though assumed to be of the
Society or the organization to be of religious denomination, did not adversely
affect the freedom of conscience and the right to freely profess, practise and
propagate one's own religion. The Constitution Bench has drawn a distinction
between such activities of the institution which would necessarily fall within
the purview of Articles 25, 26 or 29 and an individual activity which would
fall outside the purview of these Articles.
The
Preamble to the Act declares the Indian Council of World Affairs (ICWA) to be
an institution of national importance and to provide for its incorporation. The
same declaration is contained in the body of the Act vide Section 2. The
pre-existing society ___ ICWA and the new body corporate, also given the name
of ICWA, bear a similarity of names. Yet, it is clear that the impugned Act
only deals with ICWA the pre-existing body and ICWA the body corporate under
the impugned Act. The new body takes over the activities of the pre- existing
society by running the institution which too is known as ICWA.
So far
as the society ICWA is concerned, it has been left intact, untouched and
un-interfered with. There is no tampering with the membership or the governing
body of the society. The society is still free to carry on its other
activities. No membership of the old society has been dropped. No new member
has been forced or thrust upon the society. The impugned legislation nominates
members who will be members of the council, the new body corporate, different
from the society. The pith and substance of the impugned legislation is to take
over an institution of national importance. As the formation of the society,
which is a voluntary association, is not adversely affected and the members of
the society are free to continue with such association, the validity of the
impugned legislation cannot be tested by reference to sub-Clause (a) and (c) of
Clause (1) of Article 19. The activity of the society which was being conducted
through the institution ICWA has been adversely affected and to that extent the
validity of the legislation shall have to be tested by reference to sub-Clause
(g) of Clause (1) of Article 19. The activity was of the society and the
society cannot claim a fundamental right. Even otherwise the impugned
legislation is a reasonable legislation enacted in the interest of the general
public and to govern an institution of national importance. It is valid.
Sarva Shri
P.P. Rao and Ashok Nigam, the learned senior counsel for the petitioners have placed
strong reliance on two The Union of India and Ors. & Anr., 1971 (3) SCR 840
and Asom Rashtrabhasha Prachar Samiti, Hedayatpur-Gauhati-3 and Anr.
Damyanti
Naranga's case (Supra) the Constitution Bench ruled that the right to form an
association includes not only a right of forming an association to begin with,
but also the right to continue to be associated with only those whom they
voluntarily admit in the association. Once the citizens have formed any
association voluntarily then without any option being given to the members,
neither can their membership be taken away nor can they be compelled to
associate themselves with members with whom they do not want to associate.
The
constitutional validity of the Hindi Sahitya Sammelan Act, 1962, was successfully
challenged. A perusal of the judgment shows that the impugned legislation
created a statutory body called 'The Hindi Sahitya Sammelan'. The existence of
the original Sammelan was terminated, which resulted in violating the right of
members of the original Sammelan to form an association as guaranteed by
Article 19(1)(c), and this was the main thrust of attack which dominated the
Court's opinion. All the existing members of the original Sammelan were made
members of the new Sammelan and many outsiders were also made members thereof
by the Act. The new members which were enrolled or could be enrolled, were
entitled to be admitted without the consent of the original members of the Sammelan.
Thus, the members of the old Sammelan came under compulsion to associate and
unite involuntarily with such persons as they did not wish to do. The property
of the original Sammelan was taken away and vested in the new Sammelan. The
case is, therefore, distinguishable and not applicable to the facts of the
present case, where the original society has been left intact and untouched.
These distinguishing features were noted also by the Constitution Bench in the
case of D.A.V. College, Jullundur, (supra) and the ratio of Smt. Damyanti
Naranga's case (supra) was held inapplicable.
However,
even in Smt. Damyanti Naranga's case (supra), the Constitution Bench has held
that after an association has been formed and the right under Article 19(1)(c)
has been exercised by the members forming it, they have no right to claim that
its activities must also be permitted to be carried on in the manner they
desire.
In the
case of Asom Rastrabhasa Prachar Samiti (supra), the impugned Act was enacted
to meet a temporary contingency for taking over of the management of the Prachar
Samiti temporarily.
However,
it failed to make any provision for the restoration of the elected body in due
course. Not only were new members introduced into the Samiti, no norms were
laid down for nominating the government nominees (who could be any one), and
the elected members were kept away from the control of the Samiti. On the
peculiar facts of the case and the implications of the provisions contained in
the impugned enactment the Court concluded that the right of association was
virtually taken away and in the name of temporary control and management on the
affairs of the society, what was done was a permanent deprivation. In response
to a query raised by the Court it was stated by the State before the Court that
the State had no desire to restore the Samiti. The impugned legislative
provision was, therefore, struck down as violative of Article 19(1)(c) of the
Constitution. Asom Rashtrabhasha Prachar Samiti's case (supra) is a three-Judge
Bench decision and the only decision referred to therein is the case of Smt. Damyanti
Naranga's case (supra). Though Article 14 has not been referred to in the
judgment by specifically mentioning it, it is clear from the judgment that this
Court has also formed an opinion that the action of the State was arbitrary and
unreasonable, and so was liable to be struck down.
Both
the decisions relied on by the learned senior counsel for the petitioners are
distinguishable and do not apply to the present case.
It is
well-settled that while dealing with a challenge to the constitutional validity
of any legislation, the court should prima facie lean in favour of
constitutionality and should support the legislation, if it is possible to do
so, on any reasonable ground and it is for the party who attacks the validity
of the legislation to place all materials before the Court which would make out
a case for invalidating the legislation.
1950
SCR 869 and Ayurvedic and Unani Tibia College, Delhi (supra)).
In
spite of there being a general presumption in favour of the constitutionality
of the legislation, in a challenge laid to the validity of any legislation
allegedly violating any right or freedom guaranteed by Clause (1) of Article 19
of the Constitution, on a prima facie case of such violation having been made
out, the onus would shift upon the respondent State to show that the
legislation comes within the permissible limits of the most relevant out of
Clauses (2) to (6) of Article 19 of the Constitution, and that the restriction
is reasonable.
The Constitutional Court would expect the State to place
before it sufficient material justifying the restriction and its reasonability.
On the State succeeding in bringing the restriction within the scope of any of
the permissible restrictions, such as, the sovereignty and integrity of India or public order, decency or
morality etc., the onus of showing that restriction is unreasonable would shift
back to the petitioner. Where the restriction on its face appears to be
unreasonable, nothing more would be required to substantiate the plea of unreasonability.
Thus the onus of proof in such like cases is an on- going shifting process to
be consciously observed by the court called upon to decide the constitutional
validity of a legislation by reference to Article 19 of the Constitution. The
questions:
(i)
Whether the right claimed is a fundamental right,
(ii) whether
the restriction is one contemplated by any of the Clauses (2) to (6) of Article
19, and
(iii) whether
the restriction is reasonable or unreasonable, are all questions which shall
have to be decided by keeping in view the substance of the legislation and not
being beguiled by the mere appearance of the legislation.
The
impugned Act does not offend the right guaranteed by Article 19(1)(c). It also
does not in any manner deprive the members of the Society of their freedom of
speech and expression under Article 19(1)(a).
Scrutiny
by reference to Article 300A It was submitted that the impugned legislation is violative
of Article 300A of the Constitution inasmuch as it unreasonably deprives the
petitioners of the property vesting in the society. In this context, a
reference to a Constitution Bench decision of this Court would be apposite
which deals with the right to acquire, hold and dispose of property under
Article 19(1)(f) (since repealed) though not on all the fours with the facts of
this case. Board of Trustees, Ayurvedic and Administration) & Anr., 1962
Supp.(1) SCR 156, projects principles which would be relevant for our purpose.
An individual founded a pharmaceutical institute known as 'Hindustani Dawakhana'.
He also established a medical college known as 'The Tibbia College'. He then
formed a society with a few members along with himself and registered the same
under the Societies Registration Act, 1860. The Society was known as the Board
of Trustees, Ayurvedic and Unani Tibbia College, Delhi, ('the Board' for short). The Board
was operating the Tibbia College, an attached hostel and a pharmaceutical institute.
Disputes
arose within the trustees which led to filing of civil suits. The Court
appointed receivers who took possession of the Dawakhana and the College. The
Delhi State Legislature passed an Act called 'The Tibbia College Act, 1952'
which came into force on October
10, 1952.
The
old Board stood dissolved and all property, movable and immovable, and all
rights, powers and privileges of the Board came to vest in a new Board
constituted under the Act. This new Board was called the Tibbia College Board.
The civil suits were withdrawn and the Court directed the possession over the
properties and institutions to be handed over to the new Board. The old Board
filed a civil revision in the High Court of Punjab and thereafter a petition
under Article 32 of the Constitution in this Court, impugning the
constitutional validity of the Act mainly on two grounds, namely, that the
Delhi State Legislature had no legislative power or competence to enact the
impugned Act and that, assuming that the Delhi State Legislature had the
legislative competence, the Act was still bad as being violative of Articles
14, 19 and 31 of the Constitution. Incidentally, it was also contended that the
Act passed by the Delhi State Legislature could not override the provisions of
the Societies Registration Act, 1860, which is a Central legislation. According
to the State of Delhi, the field of legislation was covered by List II (State
List) Item 32 which reads as under :
"32.
Incorporation, regulation and winding up of corporations, other than those
specified in List I, and universities; un-incorporated trading, literary,
scientific, religious and other societies and associations; co-operative
societies." The Constitution Bench held that a society could not be
equated with a corporation as a society cannot be said to be 'incorporated' as
a corporation is. Under Section 5 of the Societies Registration Act, 1860, the
property belonging to the society, if not vested in trustees, shall be deemed
to be vested in the governing body of the society and in all proceedings, civil
and criminal, the property will be described as being the property of the
governing body. The expression "property belonging to the Society"
does not give the Society a corporate status in the matter of holding and
acquiring property; it merely describes the property which vests in the
trustees or governing body for the time being.
It was
held that the impugned legislation while creating the new Board has given it a
corporate status, confining its powers and duties to the college,
pharmaceutical institute and laboratory in Delhi. It fell within the purview of Entry 32 of List II. Dealing with the
submission based on Article 31(2) of the Constitution (as it then stood), the
Court held that the impugned legislation does not relate to nor does it provide
for compulsory acquisition of property for a public purpose.
The
impugned legislation provides for the transfer of the management of the Ayurvedic
and Unani Tibbia College, Delhi, from the old Board to a new Board, and for
that purpose the old Board was dissolved and a new Board was created with
certain rights, powers and privileges to be applied for the exercise of powers
and the performance of duties as laid down in the Act. Such legislation could
not be tested under Article 31(2) or the tests emerging therefrom.
Dealing
with the submission made by reference to the repealed Article 19(1)(f), the
fundamental right to acquire, hold and dispose of property, the Court held that
"During the subsistence of the society, the right of the members was to
ensure that the property was utilized for the charitable objects set out in the
memorandum and these did not include any beneficial enjoyment. Nor did the
members of the society acquire any beneficial interest on the dissolution of
the society; for Section 14 of the Act, quoted earlier, expressly negatived the
right of the members to any distribution of the assets of the dissolved body.
In such an event the property had to be given over to some other society, i.e.,
for being managed by some other charitable organization and to be utilized for
like purposes, and the only right of the members was to determine the society
to whom the funds or property might be transferred and this had to be done by
not less than three-fifths of the members present at the meeting for the
purpose and, in default of such determination, by the civil court.
The
effect of the impugned legislation is to vary or affect this privilege of the
members and to vest the property in a new body created by it enjoined to
administer it so as to serve the same purposes as the dissolved society. The
only question is whether the right to determine the body which shall administer
the funds or property of the dissolved society which they had under the
pre-existing law is a right to 'acquire, hold and dispose of property' within
the meaning of Article 19(1)(f), and if so whether the legislation is not saved
by Article 19(5). We are clearly of the opinion that that right is not a right
of property within the meaning of Article 19(1)(f). In the context in which the
words 'to dispose of' occur in Article 19(1)(f), they denote that kind of property
which a citizen has a right to hold. Where however the citizen has no right to
hold the property, for on the terms of Section 14 of the Societies Registration
Act the members have no right to 'hold' the property of the dissolved society,
there is, in our opinion, no infringement of any right to property within the
meaning of Article 19(1)(f). In this view the question as to whether the
impugned enactment satisfies the requirements of Article 19(5) does not fall to
be determined.
The
Court concluded by holding that the Delhi State Legislature did not transgress
any of the limitations placed on it, by Article 19(5) when it enacted the
impugned legislation.
The
protection of Article 300A is available to any person, including a legal or jurisdic
person and is not confined only to a citizen.
For
more than one reason, we are not inclined to entertain this plea.
Firstly,
with the Forty-Fourth Amendment, w.e.f. June 20, 1979, Right to Property having ceased to
be a fundamental right, we have grave doubts if the same can be sought to be
enforced by a petition under Article 32 of the Constitution. Secondly, we find
that a case of violation of Article 300A in the dimension in which it was
sought to be canvassed is not taken up in the writ petition. The Union of India
has taken over the institution by enacting a law which we have held to be
within the legislative competence of the Parliament. Thirdly and lastly, the
petition in that regard raises disputed questions of facts. The Union of India
do not admit title of the petitioner either in the land or in the building or
in any other property claimed to be owned by the petitioners. There is not one
document of title produced by the petitioners in support of their claim to the
property. Such highly disputed questions of fact which cannot be determined
except on evidence are not fit to be taken up for adjudication in the exercise
of writ jurisdiction. The exercise of testing the vires of the impugned
legislation by reference to Article 300A of the Constitution is uncalled for in
the present petition.
Is the
impugned Act arbitrary and violative of Article 14? Article 14 of the
Constitution prohibits class legislation and not reasonable classification for
the purpose of legislation. The requirements of the validity of legislation by
reference to Article 14 of the Constitution are : that the subject matter of
legislation should be a well defined class founded on an intelligible
differentia which distinguishes that subject matter from others left out, and
such differentia must have a rational relation with the object sought to be
achieved by the legislation. The laying down of intelligible differentia does
not, however, mean that the legislative classification should be scientifically
perfect or logically complete.
We
have already pointed out in an earlier part of this judgment that in the
present case successive parliamentary committees found substance in the
complaints received that an institution of national importance was suffering
from mismanagement and mal- administration. The Central Government acted on
such findings.
Circumstances
warranting an emergent action satisfied the President of India, resulting in
his promulgating ordinances which earlier could not culminate into legislative
enactments on account of fortuitous circumstances. At the end the Parliament
exercised its legislative power under Article 245 of the Constitution read with
Entries 62 and 63 of List I. The legislation cannot be said to be arbitrary or
unreasonable.
It was
further submitted that the provisions of the Societies Registration Act, 1860
were effective enough which, if invoked, could have taken care of the alleged
grievances. If there was any truth or substance therein the same could have
been found on enquiries being held. In our opinion, in a given set of facts and
circumstances, merely because an alternative action under the Societies
Registration Act, 1860 could have served the purpose, a case cannot be and is
not made out for finding fault with another legislation if the same be within
the legislative competence of the Parliament, which it is, as will be seen
hereinafter.
A
similar submission was made and repelled in S.P. Mittal's case (supra). The
contention there was that provisions in the Societies Registration Act were
available to meet the situation in Auroville and that the law and order
situation could be controlled by resorting to provisions of the Code of
Criminal Procedure. The Constitution Bench held - "Whether the remedies
provided under the Societies Registration Act were sufficient to meet the
exigencies of the situation is not for the Court but for the Government to
decide, and if the Government thought that the conditions prevailing in Auroville
and the Society can be ameliorated not by resorting to the provisions of the
Societies Registration Act but by a special enactment, that is an area of the
exercise of the discretion of the Government and not of the Court." The
Constitution Bench also observed that assuming the facts brought to the notice
of the legislature were wrong, it will not be open to the Court to hold the Act
to be bad on that account.
It was
then submitted that the institution ICWA was singled out and though there were
several other institutions run by societies or other organizations which were
in the grip of more serious mismanagement and mal-administration, they were not
even touched and the Parliament chose to legislate as to one institution only.
This submission too holds no merit. Firstly, no other institution is named or
particularized so as to be comparable with ICWA. Secondly, there can be a
legislation in respect of a single institution as is clear from the language
itself of Entries 62 and 63 of List I. A single institution is capable of being
treated as a class by itself for the purpose of legislation if there are
special circumstances or reasons which are applicable to that institution and
such legislation would not incur the wrath of Article 14. In S.P. Mittal
(supra), the impugned legislation brought with the object and purpose of taking
away the management of Auroville from the Aurobindo Society and to bring it
under the management of the Central Government under the provisions of the
impugned Act was held to be valid. The exercise of legislative power by
Parliament was sought to be justified as falling within the field of Entry 63
of List I. Their Lordships referred to several decisions wherein the
constitutional validity of similar legislations was upheld.
State
of Orissa, (1964) 7 SCR 32, legislation in respect of a single SCR 869, a
separate law enacted for one company were held not to offend Article 14 of the
Constitution on the ground that there were special reasons for passing such
legislation.
Effect
of the previous judgment of High Court on the impugned legislation Having held
that the impugned Act does not suffer from any constitutional infirmity and
does not violate Article 19(1)(a) and (c) or Article 300A of the Constitution,
we may now proceed to examine by reference to the doctrine of Separation of
Powers what is the effect on the impugned Act, of the judgment dated 10.9.1990
delivered by a learned single Judge of the Punjab & Haryana High Court,
annulling the 1990 Ordinance as constitutionally invalid. The submission of the
learned counsel for the petitioners is short and simple. It is submitted that
an "identically worded" Ordinance having been held to be
unconstitutional and the decision of the High Court holding so having achieved a
finality, the Parliament could not have re-enacted the contents of the vitiated
Ordinance into an Act of Parliament. It was forcefully submitted that such an
enactment is violative of the doctrine of Separation of Powers and so is liable
to be annulled on this very ground.
The
facts of this case are unusual. No precedent, parallel on facts, has been
brought to our notice at the Bar though a host of decisions laying down
constitutional principles were cited, some of which we shall refer to
hereinafter.
Let us
first state a few general principles relevant for upholding Broach Borough
Municipality & Ors., (1969) 2 SCC 283, the imposition of a tax was held to
be invalid because the power to tax was wanting. A validation Act was passed
and its constitutionality was put in issue once again. The Constitution Bench
spoke a few words about validating statutes in general, as under:- "When a
Legislature sets out to validate a tax declared by a court to be illegally
collected under an ineffective or an invalid law, the cause for ineffectiveness
or invalidity must be removed before validation can be said to take place
effectively. The most important condition, of course, is that the Legislature
must possess the power to impose the tax, for, if it does not, the action must
ever remain ineffective and illegal.
Granted
legislative competence, it is not sufficient to declare merely that the
decision of the Court shall not bind for that is tantamount to reversing the
decision in exercise of judicial power which the Legislature does not possess
or exercise. A court's decision must always bind unless the conditions on which
it is based are so fundamentally altered that the decision could not have been
given in the altered circumstances. Ordinarily, a court holds a tax to be
invalidly imposed because the power to tax is wanting or the statute or the
rules or both are invalid or do not sufficiently create the jurisdiction.
Validation of a tax so declared illegal may be done only if the grounds of
illegality or invalidity are capable of being removed and are in fact removed
and the tax is thus made legal.
Sometimes
this is done by providing for jurisdiction where jurisdiction had not been
properly vested before. Sometimes this is done by re-enacting retrospectively a
valid and legal taxing provision and then by fiction making the tax already
collected to stand under the re-enacted law.
Sometimes
the Legislature gives its own meaning and interpretation of the law under which
tax was collected and by legislative fiat makes the new meaning binding upon
courts. The Legislature may follow any one method or all of them and while it
does so it may neutralise the effect of the earlier decision of the court which
becomes ineffective after the change of the law. Whichever method is adopted it
must be within the competence of the legislature and legal and adequate to
attain the object of validation. If the Legislature has the power over the
subject-matter and competence to make a valid law, it can at any time make such
a valid law and make it retrospectively so as to bind even past transactions.
The validity of a Validating Law, therefore, depends upon whether the
Legislature possesses the competence which it claims over the subject-matter
and whether in making the validation it removes the defect which the courts had
found in the existing law and makes adequate provisions in the Validating Law
for a valid imposition of the tax." The law, so laid down, was reiterated
and approved by a Seven India & Ors., (1978) 2 SCC 50 too Shri Prithvi
Cotton Mills Ltd.
case
(supra) was cited and considered. The law laid down by the seven Judges Bench
leads one to hold that if by reason of retrospective alteration of the factual
or legal situation, the judgment is rendered erroneous, the constitutional
validity of the subsequent legislation is not available to be decided on the
basis of the previous Raghubir Singh (Dead) by Lrs. etc., (1989) 2 SCC 754,
observed that the range of judicial review recognized in the superior judiciary
of India is perhaps the widest and the most extensive known to the world of law
and then cautioned __ "With the impressive expanse of judicial power vested
in them it is only right that the superior courts in India should be conscious
of their enormous responsibility". The Constitution Bench summed up the
effect of declaring an Act of legislation __ in the case before us an Ordinance
__ on the revival of such Act, by stating that where a statute is declared
invalid in India it cannot be reinstated unless constitutional sanction is
obtained therefor by a constitutional amendment or an appropriately modified
version of the statute is enacted which accords with constitutional
prescription. A State of Kerala & Ors., (1996) 7 SCC 637, made an
exhaustive review of the available judicial opinion and summed up the essence
thereof in nine points, three of which are relevant for our purpose, which we
set out as under:-
(1) In
order that rule of law permeates to fulfil constitutional objectives of
establishing an egalitarian social order, the respective sovereign
functionaries need free play in their joints so that the march of social
progress and order remains unimpeded. The smooth balance built with delicacy
must always be maintained;
(2) In
its anxiety to safeguard judicial power, it is unnecessary to be overzealous
and conjure up incursion into the judicial preserve invalidating the valid law
competently made;
(3) The
Court, therefore, needs to carefully scan the law to find out:
(a) whether
the vice pointed out by the court and invalidity suffered by previous law is
cured complying with the legal and constitutional requirements;
(b) whether
the legislature has competence to validate the law;
(c) whether
such validation is consistent with the rights guaranteed in Part III of the
Constitution."
P.
Gohil & Ors., JT 2003 (2) SC 335, is a decision to which both of us are
parties. Therein we have held that it is permissible for the legislature,
subject to its legislative competence otherwise, to enact a law which will
withdraw or fundamentally alter the very basis on which a judicial
pronouncement has proceeded and create a situation which, if it had existed
earlier, the Court would not have made the pronouncement. Very recently in
People's Union for Civil Liberties leading opinion recorded by M.B. Shah, J.
(the other two learned Judges having also recorded their separate but
concurring opinions), the legal position has been summarized thus:- "the
Legislature can change the basis on which a decision is rendered by this Court
and change the law in general. However, this power can be exercised subject to
constitutional provisions, particularly legislative competence and if it is violative
of fundamental rights enshrined in Part III of the Constitution, such law would
be void as provided under Article 13 of the Constitution. The legislature also
cannot declare any decision of a court of law to be void or of no effect."
1975 (Supp.) SCC 1, Chandrachud, J., as His Lordship then was, cited with
approval the opinion of Harold Laski that the "separation of powers does
not mean the equal balance of powers" and observed that "what cannot
be sustained is the exercise by the legislature of what is purely and
indubitably a judicial function. In our cooperative federalism there is no
rigid distribution of powers; what is provided is a system of salutary checks
and balances".
With
advantage, we may quote Justice Aharon Barak, President of the Supreme Court of
Israel. In the context of a new statute having been enacted on the previous one
having been annulled, the learned Chief Justice says __ "Review of a new
statute should focus not on the fact that it changes the previous ruling of the
court, but on the fact that it undermines democracy. Moreover, everything is a
question of degree. If the interpretation of a statute is met with an immediate
and hasty response from the legislature in the form of new legislation,
uncertainty about the law will result, and the public will lose confidence in
the legislative branch. This is not the case, however, when the change in
legislation after a judicial ruling reflects a thorough and deliberate
examination of the ruling and an objective expression of the will of the
legislature". (A Judge on Judging : The Role of a Supreme Court in
Democracy __ President Aharon Barak, Harvard Law Review, Vol.116, No.1,
November 2002, at p.135). He further states that "foundation of democracy
is a legislature elected freely and periodically by the people. Judges and
legal scholars ought not to forget this fundamental principle. The role of a
judge in a democracy recognizes the central role of the legislature.
Undermining the legislature undermines democracy. My conception of the rule of
law and of the separation of powers do not undermine the legislature.
Rather,
they ensure that all branches of state act within the framework of the
constitution and statutes. Only thus can we maintain public confidence in the
legislature; only thus can we preserve the dignity of legislation." He
quotes Justice McLachlin as rightly saying that in democracies, "the
elected legislators, the executive and the courts all have their role to play.
Each must play that role in a spirit of profound respect for the other. We are
not adversaries. We are all in the justice business, together." (ibid,
pp.136, 137).
The
position in the present case is, of course, a little different.
We are
not here dealing with the validity of a validating enactment.
In the
judgment dated September 10, 1990 (C.W.P.No.9120 of 1990) the High Court (Bench
presided over by the learned single-Judge) unfortunately, unmindful of the
correct width and expanse of the rights conferred by sub-clauses (a) and (c) of
clause (1) of Article 19 of the Constitution, did not correctly comprehend the
scope of Article 19(1) of the Constitution and overlooked the fine distinction
in the breach of rights complained of by a citizen or citizens - collectively
but as citizens, and the right to certain activities claimed by an association.
The
High Court just confined itself to finding whether the impugned ordinance could
be saved by clauses (2) and (4) of Article 19, and if not, then it was
unconstitutional, also because it was too drastic and hence unreasonable. The
High Court also went on to say that as compensation was not paid for the
property acquired, the ordinance was arbitrary and discriminatory more so
because it aimed only at a particular society. While making this observation
the High Court overlooked the fact that the ordinance aimed at the Institution
and not at the Society, though the nomenclature of the two was the same.
The
High Court nowhere recorded a finding that any property either belonged to the
petitioners or was vested in them before it was taken away, and also did not
consider the affect of repeal of Article 19(1)(f) and 31 of the Constitution
after which repeal the right to property had ceased to be a fundamental right
and the newly engrafted Article 300A of the Constitution requires only
authority of law for depriving any person or his property.
That
decision of the learned Single Judge was not left unchallenged. In fact, the
correctness of the judgment of the learned single-Judge was put in issue by the
Union of India by filing an intra- court appeal. Filing of an appeal destroys
the finality of the judgment under appeal. The issues determined by the learned
Single Judge were open for consideration before the Division Bench. However,
the Division Bench was denied the opportunity of hearing and the aggrieved
party could also not press for decision of the appeal on merits, as before the
appeal could be heard it was rendered infructuous on account of the Ordinance
itself having ceased to operate. The Union
of India, howsoever it may have felt
aggrieved by the pronouncement of the learned single-Judge, had no remedy left
available to it to pursue. The judgment of the Division Bench refusing to dwell
upon the correctness of the judgment of the Single Judge had the effect of
leaving the matter at large. Upon the lapsing of the earlier Ordinance pending
an appeal before a Division Bench, the judgment of the Single Judge about the
illegality of the earlier Ordinance, cannot any longer bar this Court from
deciding about the validity of a fresh law on its own merits, even if the fresh
law contains similar provisions.
Be
that as it may, we are clearly of the opinion that the judgment dated September 10, 1990, is not correct and we specifically
record our overruling of the same. The doctrine of Separation of Powers and the
constitutional convention of the three organs of the State, having regard and
respect for each other, is enough answer to the plea raised on behalf of the
petitioners founded on the doctrine of Separation of Powers. We cannot strike
down a legislation which we have on an independent scrutiny held to be within
the legislative competence of the enacting legislature merely because the
legislature has re-enacted the same legal provisions into an Act which, ten
years before, were incorporated in an ordinance and were found to be
unconstitutional in an erroneous judgment of the High Court and before the
error could be corrected in appeal the Ordinance itself lapsed. It has to be
remembered that by the impugned Act the Parliament has not overruled the
judgment of the High Court nor has it declared the same law to be valid which
has been pronounced to be void by the court. It would have been better if
before passing the Bill into an Act the attention of the Parliament was
specifically invited to the factum of an earlier pari materia Ordinance having
been annulled by the High Court. If an ordinance invalidated by the High Court
is still reenacted into an Act after the pronouncement by the High Court, the
subsequent Act would be liable to be annulled once again on finding that the
High Court was right in taking the view of the illegality of the Ordinance,
which it did. However, as we have already stated, this is not the position
obtaining in the present case. The impugned Act is not liable to be annulled on
the ground of violation of the doctrine of Separation of Powers.
Impugned
Act covered by Entries 62, 63 of List I of Schedule - 7 The challenge to the
constitutional validity of the impugned Act fails on all the grounds alleged.
The legislation is clearly covered by Entries 62 and 63 of List I Schedule 7.
Initially at one time, the institution was receiving financial aid from the
Government of India.
The
institution ICWA has been declared to be an 'institution of national
importance' by the Act of Parliament. There is no challenge to the validity of
such declaration nor do we find any grounds to take a view different from the
one taken in the declaration made by the Government of India. Once an
institution is declared to be of national importance, the Parliament is
competent to make any law governing the management, administration and affairs
of such an institution. It is not the case of the petitioners that though the
institution is declared and held to be of national importance, yet in enacting
other provisions of the impugned Act, the Parliament has encroached upon any
field of legislation not available to it. The provisions of the Act fall within
the field of legislation meant for the Union of India.
The
various Entries in the three Lists of the Seventh Schedule are legislative
heads defining the fields of legislation and should be liberally and widely
interpreted. Not only the main matter but also any incidental and ancillary
matters are available to be included within the field of the entry. The settled
rules of interpretation governing the Entries do not countenance any narrow and
pedantic interpretation.
The
judicial opinion is for giving a large and liberal interpretation to the scope
of the Entries. Suffice it to quote from the opinion of the judicial committee
of the Privy Council in British Coal Corporation constituent or organic statute
indeed that construction which is most beneficial to the widest possible
amplitude of its powers must be Begum, AIR 1941 FC 16, 25 observed that none of
the items in the Lists is to be read in a narrow or restricted sense and all
ancillary or subsidiary matters referable to the words used in the Entry and
which can fairly and reasonably be said to be comprehended therein are to be
read in the Entry. This approach has been countenanced in several Bombay City, (1955) 1 SCR 829, 836; Sri Ram Ram Narain Medhi Conclusion
The writ petition is dismissed with costs.
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