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CASE NO.:

Writ Petition (civil) 276 of 2001

Writ Petition (civil) 543 of 2001

PETITIONER:

Dharam Dutt & Ors.

RESPONDENT:

Union of India & Ors.

DATE OF JUDGMENT: 24/11/2003

BENCH:

R.C. LAHOTI & BRIJESH KUMAR.

JUDGMENT:

J U D G M E N T

R.C. LAHOTI, J.

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,

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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

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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

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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? :

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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.

Gajapati Narayan Deo & Ors. Vs. State of Orissa, (1954) SCR 1,

and in Board of Trustees, Ayurvedic and Unani Tibia College,

Delhi Vs. State of Delhi (Now Delhi Administration) & Anr.,

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

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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"

The Constitution Bench in The State of Madras Vs. V.G. Row,,

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

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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

of a Seven-Judges Bench of this Court in Smt. Maneka Gandhi Vs.

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'

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Association Vs. National Industrial Tribunal - (1962) 3 SCR 269

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

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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

Jai Parkash & Anr. Vs. The Union of India & Anr., (1962) 3 SCR

547, the issue related to the Forward Contracts (Regulation) Act,

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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

Locomotive Co.Ltd. & Anr. Vs. The State and Ors & Anr., (1964)

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

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registered under the Societies Registration Act, 1860.

In Azeez Basha Vs. Union of India - (1968) 1 SCR 833, this

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.

In D.A.V. College, Jullundur etc., Vs. The State of Punjab

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

Court in Seethapathi Nageswara Rao & Ors. Vs. The Government

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 Anr. Vs. Assistant Registrar, Co-operative Societies, Barh,

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

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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

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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

State of West Bengal Vs. Subodh Gopal Bose & Ors., 1954 SCR

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

power within their ambit (See: H.C. Narayanappa & Ors. Vs. State

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

Change, Patna Vs. State of Bihar & Ors., (1988) 2 SCC 433, and

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

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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

India Bank Employees' Association Vs. National Industrial

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.

In S.P. Mittal Vs. Union of India & Ors., (1983) 1 SCC 51,

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

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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

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counsel for the petitioners have placed strong reliance on two

decisions of this Court, namely, Smt. Damyanti Naranga & Anr. Vs.

The Union of India and Ors. & Anr., 1971 (3) SCR 840 and Asom

Rashtrabhasha Prachar Samiti, Hedayatpur-Gauhati-3 and Anr.

Vs. State of Assam and Ors., 1989 (Supp.) SCR 160. In Smt.

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.

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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.

(see : Charanjit Lal Chowdhury Vs. The Union of India & Ors.,

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

Unani Tibia College, Delhi Vs. State of Delhi (Now Delhi

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

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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,

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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?

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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

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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.

In Ram Krishna Dalmia Vs. Justice S.R. Tendolkar, 1959 SCR 279,

legislation relating to a single 'individual', in Raja Birakishore Vs.

State of Orissa, (1964) 7 SCR 32, legislation in respect of a single

'temple' and in Chiranjit Lal Chowdhuri Vs. Union of India, 1950

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

validity of enactments. In Shri Prithvi Cotton Mills Ltd. & Anr. Vs.

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

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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

Judges Bench in M/s Misrilal Jain Vs. State of Orissa & Anr.,

(1977) 3 SCC 212. In Madan Mohan Pathak & Anr. Vs. Union of

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

judgment. The Constitution Bench in Union of India & Anr. Vs.

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

two Judges Bench of this Court in Indian Aluminium Co. & Ors. Vs.

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

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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."

Welfare Association A.R.P., Maharashtra & Anr. Vs. Ranjit

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

(PUCL) & Anr. Vs. Union of India & Anr., (2003) 4 SCC 399, in the

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."

In Smt. Indira Nehru Gandhi Vs. Shri Raj Narain & Anr.,

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

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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

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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

Vs. The King, AIR 1935 PC 158, 162 __ that in interpreting a

constituent or organic statute indeed that construction which is most

beneficial to the widest possible amplitude of its powers must be

adopted. The Federal Court in the United Provinces Vs. Atiqa

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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

decisions of this Court. (To wit, see Navinchandra Mafatlal Vs. CIT

Bombay City, (1955) 1 SCR 829, 836; Sri Ram Ram Narain Medhi

Vs. The State of Bombay, 1959 Supp.(1) SCR 989.)

Conclusion

The writ petition is dismissed with costs.