Report No. 101

1.5. Anomaly.-

The anomaly to which the present position, represented by the limited scope1 of Article 19(1) of the Constitution, can give rise, may be illustrated by taking a hypothetical case. Suppose a State passes a law regulating the performance of dramatic plays and imposing prior restrictions on such performance, say, by requiring the previous permission of the Superintendent of Police before any play can be enacted in public. A literary society (even if it has acquired a corporate status) or a co-operative society (such as an author's cooperative guild) cannot, at present, challenge the constitutionality of the law, because such a society is not a "citizen". Not being a citizen, such a society cannot claim the protection of Article 19. In other words, the State can make any kind of law curbing speech and expression vis-a-vis such societies. The anomaly is grave enough to justify an examination of the constitutional position.

The anomaly may not have been so far keenly felt in practice, partly because the members of such organisations and institutions can institute appropriate proceedings. The absence of a constitutional right of the organisation has not therefore been always noticed. But the deficiency is a real one. In many cases, their own freedom would also come to be violated by the attempted enforcement of legislation of the nature posed in the hypothetical illustration given above. Since the members themselves enjoy the fundamental right, the fact that the organisation as such has no right, often goes unnoticed. But this can hardly be regarded as a satisfactory position. There is no logical reason for denying the right in question to the organisations and institutions. Their status and activities have an importance of their own, as will be elaborated in the next paragraph and also in a later Chapter2.

1. Para. 1.2, supra.

1. Para. 1.4 and Chapter 4, infra.