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Indian Council of World Affairs Act, 2001-Constitutional validity of-Held : Act not violative of Articles 14, 19(l)(c) and (a)-Parliament had legislative competence to pass the Act in exercise of powers under Article 245 read with entries 62 and 63 of List I of Seventh Schedule- There is no violation of doctrine of separation of powers-Also legislation not vitiated by the malafides-Hence, Act constitutionally valid-Constitution of India, 1950-Articles 14, 19(1 (c), I9(l)(a), 245, 246 and List I Seventh Schedule, Entries 62 and 63. Constitution of India, 1950 : Article 19-Fundamental rights under-Conferred only on citizens of India- Rights do not stand on common pedestal but have varying dimensions and underlying philosophies-Nature of reasonable restrictions imposed- Discussed. Article 19-Constitutional validity of Legislative enactment-Held : Test of reasonableness is to be satisfied-Also substance of the legislation is to be kept in view-Further, in a challenge laid to the constitutional validity the onus of proof is on going shifting process. Article 19(l)(c)-Right to form associations or unions-Does not carry with it fulfillment of every object of an association for which it was formed-It would be contrary to the scheme of rights guaranteed by part III and those conferred by Article 19(l)(a) to (g)-However, rights flowing from the fundamental rights are sought to be included and qualifications are not merely those in Article 19(4)-Further right to form an association is tested by reference to Article 19(l)(c), validity of restriction by Article 19(4), and once individual citizens form an association and carry on activity, validity of restriction is tested by reference to Article 19(l) (g) read with Article 19(6). Articles 245 and 246-Seventh Schedule, List I- Entries 62 and 63- Indian Council of World Affairs-Institution of national importance- Hence, enactment protected by Entries 62 and 63 of List I of Seventh Schedule-Indian Council of World Affairs Act, 2001. Articles 245 and 246-Doctrine of Colourable Legislation-Scope of-Held : Deals with the question of legislative competence to enact a law-If legislature is competent the motives, bonafides or malafldes are not relevant. Articles 245, 246, 13, 50 and 226–Indian Council of World Affairs Act, 2001-Act incorporating same provisions as contained in Ordinance declared invalid by High Court-Effect of the judgment of High Court on the legislation-Held: Judgment of High Court being rendered erroneous, overrulling of which is specifically recorded, the constitutional validity of subsequent legislation is not to be decided on basis of the judgment of High Court-Further before error could be corrected in appeal, Ordinance lapsed rendering appeal infructuous-Also by the impugned Act Parliament not overruling the judgment of High Court nor declaring the same law to be valid which was pronounced to be void by the Court-Hence, Act not violative of doctrine of separation of powers. In 1943, an organisation named India Council of World Affairs was formed. The Association was registered as a society. The principal object of the Society 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 Government of India gave land on lease to the society. The Society was housed in a building constructed on the land. It had a library, an auditorium, conference room and other office accommodation. The Society was receiving grants from the Government from 1974 until 1987, whereafter it was discontinued. There was serious mal- administration and mismanagement committed by the society. On 30.6.1990, 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 both movable and immovable properties. The constitutional validity of the Ordinance was challenged. Single Judge of High Court held the Ordinance as ultra vires the Constitution, violating Articles 14, 19(l)(a) and 19(l)(c) thereof and also beyond the legislative competence of Parliament. Union of India filed a letters patent appeal against the judgment. As the Bill seeking to replace the Ordinance by an Act of Parliament could not be passed, the Ordinance lapsed. Division Bench held that the appeal had become infructuous and dismissed the same. The President promulgated Ordinance No. 3 of 2000, on similar and identical terms of the 1990 Ordinance. However, the Ordinance lapsed. Ordinance No. 1 of 2001 was then promulgated seeking to revive Ordinance No. 3 of 2000, however, this Ordinance also lapsed. Thereafter, Indian Council of World Affairs Ordinance No. 3 of 2001 was promulgated. Writ petition (C) No. 276 of 2001 was filed challenging the constitutional validity of the Ordinance, 2001. During pendency of this petition, Ordinance came to be replaced by an Act of Parliament-Indian Council of World Affairs Act, 2001. Writ petition (C) No. 543 of 2001 was filed challenging the constitutional validity of the Act. Writ petitioners contended that 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 resulting in violation of petitioners’ right to freedom of speech and expression and to form associations or unions as conferred on citizens by Article 19(l)(a) and (c); that the provisions of the Societies Registration Act, 1860 were effective enough which, if invoked, could have taken care of the alleged grievances; that by passing the legislation, 1CWA institution was singled out though there were several other institutions run by societies or other organizations which committed more serious mismanagement and mal- administration; that the impugned Act is violative of Article 300A as it deprives the petitioners of the property vesting in the society; that the impugned Ordinance and the Act are malicious being motivated by political considerations; that the identically worded Ordinance having held to be unconstitutional and the judgment of High Court holding so having achieved a finality, the Parliament could not have re-enacted the contents of the vitiated Ordinance into an Act; and that the impugned Ordinance and the Act are violative of the doctrine of Separation of Powers. Respondent-Union of India contended that the earlier Ordinances have mere academic relevance in view of the Parliament having ultimately enacted the Act; that as the India 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; that the Society has not been touched, it continues to survive as before and, therefore, there is no violation of fundamental right within the meaning of Article 19(l)(a) and (c); that the building and the library having built out of Government funds, subventions and some donations, the Society does not have any right in any of the properties; that the impugned Ordinance and Legislation were not politically motivated; that the decision of the Single Judge of High Court with respect to the identically worded Ordinance was incorrect; and that appeal filed was disposed of without any adjudication on merits since the High Court held that the appeal was rendered academic in view of the Ordinance having lapsed. =Disposing of W.P. (C) No. 276 of 2001 and dismissing W.P. (C) No. 543 of 2001, the Court HELD : 1. The challenge to the constitutional validity of the Indian Council of World Affairs Act, 2001 fails. [199-G] 2.1. At one time, the institution-ICWA was receiving financial aid from the Government of India. 1CWA has been declared to be an `institution of national importance’ by the Act of Parliament, thus 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 in enacting other provisions of the impugned Act, the Parliament has encroached upon any field of legislation not available to it. The legislation is clearly covered by Entries 62 and 63 of List I Schedule 7 of the Constiution. [199-H, 200-A, B, C] 2.2. The various Entries in the three Lists of the Seventh Schedule are legislative heads defining the fields of legislation. A large and liberal interpretation should be given to the scope of the Entries. Not only the main matter but also any in incidental and ancillary matters are 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.[J200-C-E] Navinchandra Mafatlal v. CIT Bombay City, [1955] 1 SCR 829 and Sri Ram Ram Narain Medhi v. The State of Bombay, [1959] Supp. 1 SCR 989, relied on. British Coal Corporation v. The King, AIR (1935) PC 158 and United Provinces v. Atiqa Begum, AIR (1941) FC 16, referred to. 3.1. The Court, confronted with a challenge to the constitutional validity of any legislative enactment by reference to Article 19 would first ask what is the sweep of the fundamental right guaranteed to the citizens 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 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, or if it comes into conflict with any other provision of the Constitution. This has to be decided by keeping in view the substance of the legislation and not being beguiled by the mere appearance of the legislation. [181-B-D; 187-F] The State of Madras v. V.G. Row, [1952] SCR 597, followed. H.C. Narayanappa & Ors. v. State of Mysore & Ors., [1960] 3 SCR 742, relied on. State of West Bengal v. Subodh Gopal Bose & Ors., [1954] SCR 587, referred to. 3.2. 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 conies 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 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 cases is an on-going shifting process to be consciously observed by the court. [187-B-E] Charanjit Lal Chowdhury v. The Union of India & Ors., [1950] SCR 869; Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of Delhi (Now Delhi Administration) & Anr., [1962] Supp. 1 SCR 156, relied on. 3.3. A right to form associations or unions guaranteed under Article 19(l) (c) 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. It would be contradictory to the scheme underlying the text and the frame of the several fundamental rights guaranteed by Part III and the scheme of the guarantees conferred by sub- clauses (a) to (g) of clause (1) of Article 19. [173-E-H] 3.4. 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(l)(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(l)(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. [175-D-H] 3.5. 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 citizen or claim freedom from restrictions to which the citizens composing it are subject. While right to form an association is to be tested by reference to Article 19(l)(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(l)(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. [174-B-C, 174-A-B] Smt. Damyanti Naranga & Anr: v. The Union of India and Ors., 11971] 3 SCR 840 and Asom Rashtrabhasha Prachar Samiti, Hedayatpur- Gauhati-3 and Anr. v. State of Assam and Ors., [1989] Supp. SCR 160, distinguished. Smt. Maneka Gandhi v. Union of India & Am:, [1978] 1 SCC 248; All India Bank Employees’ Association v. National Industrial Tribunal, [1962] 3 SCR 269; M/s. Raghubar Dayal Jai Parkash & Anr: v. Union of India & Anr., [1962] 3 SCR 547; Azeez Basha v. Union of India, [1968] 1 SCR 833; D.A. V. College Jullundur etc., v. The State of Punjab and Ors., [1971] 2 SCC 269; Sethapathi Nageswara Rao & Ors. v. The Government of A. P. & Ors., AIR (1978) A.P. 121 (F.B.); Harakh Bhagat and Anr. v. Assistant Registrar, Co- operative Societies, Barh, and Ors., AIR (1968) Patna 211; S.P. Motta v. Union of India & Ors., [1983] 1 SCC 51 and L.N. Mishra Institute of Economic Development and Social Change, Patna v. State of Bihar & Ors., [1988] 2 SCC 433, referred to. 3.6. As soon as citizens form a company, the rights are guaranteed to them by Article 19(l)(c). Once a company or a corporation is formed, the business 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. The same principle would apply to a society registered under the Societies Registration Act, 1860. [177-D-F] Tata Engineering and Locomotive Co. Ltd & Anr. v. The State and Ors., [1964] 6 SCR 885, relied on. 3.7. 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-clauses (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. It does not offend the right guaranteed by Article 19(l)(c). It also does not in any manner deprive the members of the Society of their freedom of speech and expression under Article 19(l)(a). [184-G-H, A-B; 187-G] 4.1. No other institution in the grip of more serious mismanagement and mal-administration is named or particularized so as to be comparable with ICWA and 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. [192-G-H; 193-A] 4.2. 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. The Parliament had legislative competence to pass the legislation in exercise of 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 violative of Article 14. [192-B-C] S.P. Mittal v. Union of India & On., [1983] 1 SCC 51; Ram Krishna Dalmia v. Justice S.R. Tendolkar, [1959] SCR 279; Raja Birakishore v. State of Orissa, [1964] 7 SCR 32 and Chiranjit Lal Chowdhuri v. Union of India, [1950] SCR 869, referred to. 5. The exercise of testing the vires of the impugned legislation by reference to Article 300A of the Constitution is uncalled for in the instant petition since the right to property has ceased to be a fundamental right, and it is doubtful if it could be enforced by a petition under Article 32 of the Constitution; that a case of violation of Article 300A the way it is canvassed is not taken up in the writ petition; that the petition raises disputed questions of facts; that the Union of India has taken over the institution by enasting a law which is within the legislative competence of the Parliament; and that there is not one document of title produced by the petitioners in support of their claim to the property. [191-D; 190-H; 191-A-C] 6. The whole doctrine of Colourable legislation resolves itself into the question of the competency of a particular legislature to enact a particular law. It does not involve any question of bona fides or mala fides on the part of the legislature. If the legislature is competent to pass a particular law, motives which impelled it to act are irrelevant and if incompetent, the question of motive does not arise at all. In the instant case, the Parliament has the requisite competence to enact the impugned Act, the enquiry into the motive which persuaded the Parliament into passing the Act-are not relevant. [168-E-G]. K.C. Gajapati Narayan Deo & Ors. v. State of Orissa, [1954] SCR 1 and Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of Delhi (Now Delhi Administration) & Anr:, [1962] Supp. 1 SCC 156, referred to. 7.1. Filing of an appeal destroys the finality of the judgment under appeal. Upon the lapsing of the earlier Ordinance pending an appeal before a Division Bench, appeal being rendered infructuous, the judgment of Single Judge about the illegality of the earlier Ordinance, cannot any longer bar this Court from deciding about the validity of a fresh law on its own merits, even if the fresh law contains similar provisions. [198-F; 199-A-B] 7.2. The judgment of High Court is not correct and the overruling of the same is specifically recorded. 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. [195-D] 7.3. A legislation which on an independent scrutiny is held to be within the legislative competence of the enacting legislature cannot be struck down 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. 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 part materia Ordinance having been annulled by the High Court. The impugned Act is not liable to be annulled on the ground of violation of the doctrine of Separation of Powers. [199-C-G] Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality & Ors., [1969] 2 SCC 283; M/A. Misrilal Jain v. State of Orissa & Anr:, [1977) 3 SCC 212; Madan Mohan Pathak & Anr. v. Union of India & Ors., [1978] 2 SCC 50; Union of India & Anr. v. Raghubir Singh (Dead) by Lrs. etc., [1989] 2 SCC 754; Indian Aluminium Co. & Ors. v. State of Kerala& Ors., [1996] 7 SCC 637; Welfare Association A. R.P. Maharashtra & Anr. v. Ranjit P. Gohil & Ors., JT (2003) 2 SC 335; People’s Union for Civil Liberties (PUCL) & Anr. v. Union of India & Anr., [2003] 4 SCC 399 and Smt. Indira Nehru Gandhi v. Shri Raj Narain & Anr., [1975] Supp. SCC 1, referred to. A Judge on Judging : The Role of a Supreme Court in Democracy- By President Aharon Barak, Supreme Court of Israel, Harvard Law Review, Vol. 116, No. 1, November 2002, p. 135, referred to. 8. All the grounds taken in writ petition challenging the Indian Council of World Affairs Ordinance, 2001 have been reiterated and reurged in the writ petition challenging the Indian Council of World Affairs Act 2001. As the merits of the pleas raised on behalf of the writ petitioners are available to be considered in the latter writ petition, the writ petition challenging the Ordinance is rendered infructuous and is disposed of without any adjudication on merits. The Ordinance having ceased to operate, the factum of promulgation of such Ordinance remains only a part of the narration of events. Further no such action was taken thereunder the legality whereof may survive for adjudication. [168-A-C] CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 276 of 2001. WITH W.P. (C) No. 543 of 2001. =2004 AIR 1295, 2003(6 )Suppl.SCR151 , 2004(1 )SCC712 , 2003(10 )SCALE141 ,

CASE NO.:
Letters patent by Queen Victoria, creating the...

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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, 
holding the Ordinance to be ultra vires of the Constitution of India, 
violating Articles 14, 19(1)(a) and 19(1)(c) thereof and also beyond 
the legislative competence of the Parliament. The Union of India filed 
a letters patent appeal against this judgment of the learned single 
Judge. The letters patent appeal came up for hearing before a Division 
Bench of the High Court on October 22, 1990. It was brought to the 
notice of the Division Bench that the Ordinance promulgated on June 
30, 1990 had lapsed on September 19, 1990, as the Bill seeking to 
replace the Ordinance by an Act of Parliament could not be passed. 
The Division Bench formed an opinion that the letters patent appeal 
had become infructuous and directed the same to be dismissed 
without any adjudication on merits.

 In December 1999, the Ministry of Urban Development, 
Government of India, cancelled the perpetual lease of the land of the 
Indian Council of World Affairs. The cancellation of lease was followed 
by an order of re-entry. A writ petition was filed in the Delhi High 
Court, laying challenge to the said action of the Central Government. 
The learned single Judge before whom the writ petition came up for 
hearing refused to grant any interim relief to the writ petitioner, and 
so a Letters Patent Appeal No.577/99 came to be filed before the 
Division Bench of the Delhi High Court. On December 24, 1999, the 
High Court directed further proceedings before the Estate Officer under 
the Public Premises Act to remain stayed. It seems that there was 
some controversy about the breach of the interim order granted by the 
High Court, which led to the filing of two contempt petitions in the 
High Court of Delhi, which are still pending.

 On September 1, 2000, the President of India promulgated 
Ordinance No.3 of 2000, the terms whereof were more or less similar 
and identical with those of the Ordinance of 1990. The constitutional 
validity of this Ordinance was challenged by filing C.W.P. No.5174 of 
2000 in the High Court of Delhi. A Bill proposing to replace the 
Ordinance was moved in the Parliament which was passed by the Lok 
Sabha and was pending in the Rajya Sabha, but the Rajya Sabha was 
adjourned and, therefore, the Ordinance lapsed on December 31, 
2000. 

On January 5, 2001, Ordinance No.1 of 2001 was promulgated 
seeking to revive Ordinance No.3 of 2000; however, this Ordinance too 
lapsed on April 3, 2001.

 On May 8, 2001, Ordinance No.3 of 2001 was promulgated and 
replaced by an Act of Parliament, which received the assent of the 
President of India on September 3, 2001.

 The facts stated hereinabove are almost undisputed. We say so 
because the chronology of events is not at all in dispute; there is a 
minor variation in the manner of narration of the events and the 
background leading to the promulgation of the Ordinances and the 
passing of the Act, which are not very material and hence have been 
overlooked. We may now broadly state the facts which are disputed 
and which form the subject matter of the controversy arising for 
decision in the writ petitions.

The Controversy
 According to the writ petitioners, Sapru House is a building 
constructed by the Society. The building, the library and all other 
movables in Sapru House are owned by the Society. By promulgating 
the impugned Ordinance and by enacting the impugned Act, the 
Central Government has taken over the Society as also its movable 
and immovable properties. This has resulted in violating the right of 
the writ petitioners to the freedom of speech and expression and to 
form associations or unions as conferred on citizens by sub-clauses (a) 
and (c) of clause (1) of Article 19 of the Constitution of India. The 
Society has been deprived of its property without any authority of law 
which is violative of Article 300A of the Constitution of India. The 
impugned Ordinance and the Act are malicious inasmuch as they are 
motivated by political considerations. It is also alleged that the 
impugned Ordinance and the Act are violative of the doctrine of 
Separation of Powers. The High Court of Punjab and Haryana had 
struck down an Ordinance which contained similar provisions and the 
said judgment dated September 10, 1990, has achieved a finality in 
view of the challenge to the legality of the judgment having been 
given up by the Union of Indian by not pressing the letters patent 
appeal. A subsequent legislation which is in defiance of the judgment 
of the High Court deserves to be struck down solely on this ground.

According to the counter-affidavit filed by the Union of India, the 
Indian Council of World Affairs ('ICWA', for short) had attained an 
international stature in connection with world affairs and the foreign 
policies of India vis-a-vis other countries. However, the activities of 
the Society, i.e. running the Institution, were being complained against 
by several persons all over the country on account of the sub-standard 
level of the programmes and the activities being conducted, as also 
about the standard of the maintenance of stock of books, periodicals, 
etc. in the library. The image and reputation of the Institution drew 
adverse publicity in the Press. In the counter-affidavit several such 
instances have been highlighted under the title "Glaring Instances of 
Maladministration" as revealed in the Audit conducted by the 
Comptroller and Auditor General of India. These instances highlight 
irregular and incomplete maintenance of accounts, misuse and 
diversion of funds, and deficits and losses accumulating year by year 
on account of mismanagement and mal-administration. Photographs 
have been filed with the counter affidavit showing the state of 
disrepair of the building and its furniture. Serious irregularities were 
found to have been committed in the conduct of elections of the 
Executive Committee, resulting in the complete breakdown of the 
democratic functioning of the Institution. The electoral roll consisted 
of members who had discontinued their membership. Fruit and 
vegetable vendors were enrolled as members of the Indian Council of 
World Affairs, so as to pack the membership with defunct members 
only to ensure the continuance in office of a certain set of people. 
Membership fees of all such multiple members were being deposited 
by a single cheque.

 On the affidavit of the Joint Secretary in the Ministry of External 
Affairs, Government of India, New Delhi, it has been stated that 
financial assistance was regularly granted to ICWA by the MEA and 
Deptt. Of Culture (Ministry of Education). Grants have been given 
after 1986 by organizations like ICSSR. Adhoc grants had been given 
by the Deptt. of Culture between 1974-1975 till 1988-1989. The last 
grant of Rs.5 lakh from MEA was in 1985-1986. In 1996-1997, the 
ICWA management wrote off the Capital Reserve of Rs.19,38,302/- 
against an accumulated deficit of Rs.31,06,897/-. The deficit of the 
erstwhile ICWA continued to increase till the takeover by the newly 
incorporated body on 2nd September, 2000. The report of the Special 
Audit of ICWA by CAG, which commenced on 11.8.2000, highlights 
unaccounted for liabilities to the extent of Rs.132.84 lacs, 
contravention of the provisions of the perpetual lease, non-adjustment 
of cash drawn for day to day expenses amounting to Rs.22,48,399.65, 
and possible misappropriation of funds to the tune of Rs.1,39,086.10 
by inflating the total amount of the salary bills.

According to the respondents, the property - Sapru House, is 
situated on land which belongs to the Government of India (Land & 
Development Office). Large subventions and grants have been given 
from time to time by the Government of India to the Society 
wherefrom the building was constructed. The lease of the land was 
terminated for non-payment of dues as well as for various breaches 
amounting to misuse committed by the Society. The dues as per the 
claim of the L&DO worked out to more than Rs.9 crores. Eviction 
orders were passed by the Estate Officer, which have been stayed by 
the High Court. However, having acquired management and control 
over the Institution and the building and other properties in the year 
1990, pursuant to the Ordinance, the Government of India had spent 
about Rs.2 crores so as to restore Sapru House to its original condition 
and make it fit for habitation and use. The Union of India has 
vehemently denied the allegation of the petitioners that the impugned 
Ordinance and Legislation were politically motivated. It is submitted 
that Governments have changed from time to time with different 
political leanings. However, three Parliamentary Standing Committees 
appointed at different points of time have recommended the taking 
over of Sapru House, lamenting the decline in the standard of the 
Institution. Earlier Ordinances are a matter of history and of mere 
academic relevance in view of the Parliament having ultimately 
enacted the Act. As to the impugned Act being in violation of the 
doctrine of Separation of Powers and in defiance of the decision of the 
Punjab and Haryana High Court, the respondents have submitted that 
the decision of the learned single Judge was incorrect. It was put in 
issue by filing a letters patent appeal, which appeal was disposed of 
without any adjudication on merits due to the High Court having 
formed an opinion that the adjudication of the appeal was rendered 
academic in view of the Ordinance having lapsed. The respondents 
could not have pressed for decision of the letters patent appeal on 
merits nor could they have taken the matter further because the High 
Court or this Court would not have entered into the examination of an 
issue which was rendered of academic interest only.

The Union of India has vehemently submitted that the Society 
has not been touched. It continues to survive as before and, 
therefore, the question of any fundamental right within the meaning of 
sub-clauses (a) and (c) of clause (1) of Article 19 of the Constitution of 
India having been breached, does not arise. As the Institution, the 
Indian Council of World Affairs, is an institution of national importance, 
the impugned enactment is protected by Entries 62 and 63 of List I of 
the Seventh Schedule to the Constitution of India.

In the submission of the Union of India the building and the 
library have been built out of Government of India funds and 
subventions, and some donations received from persons of the 
eminence of former Prime Ministers and the President of India and 
other dignitaries. The Society does not have any right in any of the 
properties, as is being claimed by the petitioners.

Challenge to Ordinance infructuous (W.P.(C) No.276 of 2001)
Before we enter into examining the merits of the attack laid on 
the impugned Act, we would like to summarily dispose of W.P.(C) 
No.276 of 2001 wherein the challenge has been laid to the validity of 
the Ordinance only. The Ordinance has been replaced by an Act of 
Parliament. A fresh petition has been filed laying challenge to the 
constitutional validity of the Act. All the grounds taken in W.P.(C) 
No.276/2001 have been reiterated and reurged in W.P.(C) 
No.543/2001. As the merits of the pleas raised on behalf of the writ 
petitioners are available to be considered in the latter civil writ 
petition, W.P.(C) No.276/2001 is rendered infructuous and we direct it 
to be treated as disposed of without any adjudication on merits. The 
Ordinance impugned therein having ceased to operate, the factum of 
promulgation of such Ordinance remains only a part of the narration of 
events. No such action was taken thereunder the legality whereof 
may survive for adjudication in spite of the lapse of the Ordinance. 
We will, therefore, confine ourselves to dealing with the validity of the 
impugned Act.

Whether the impugned enactment is vitiated by malafides? : 
Though the petition alleges the impugned Act (with the history 
of preceding Ordinances) to be the outcome of political malice, no 
particulars thereof have been given by the writ petitoner. However, 
that aspect need not be deliberated upon any further in view of two 
Constitution Bench decisions of this Court. It has been held in K.C. 
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 
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 
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' 
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 
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, 
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 
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 
the fundamental rights listed in clause (1), but that has not been done. 
The common thread that runs throughout sub-clauses (2) to (6) is that 
the operation of any existing law or the enactment by the State of any 
law which imposes reasonable restrictions to achieve certain objects, is 
saved; however, the quality and content of such law would be different 
by reference to each of the sub-clauses (a) to (g) of clause (1) of 
Article 19 as can be tabulated hereunder :
 Article 19
Clause (1)
Nature of Right
Clauses (2) to (6)
Permissible Restrictions
By existing law or by law made 
by State imposing reasonable 
restrictions, in the interests of 
(a) Freedom of speech and 
expression
(i) the sovereignty and integrity 
of India
(ii) the security of the State
(iii) friendly relations with Foreign 
 States
(iv) public order, decency or 
 morality
(v) in relation to contempt of 
court, defamation or 
incitement to an offence
(b) right to assemble peaceably 
and without arms
(i) the sovereignty and integrity 
of India 
(ii) public order
(c) right of form associations or 
unions
(i) the sovereignty and integrity of 
India
(ii) public order or morality
(d) & (e) right to move freely 
and/or to reside and settle 
through out the territory of 
India
(i) the general public
(ii) the protection of the interests 
of Schedules Tribe
(g) right to practise any 
profession, or to carry on any 
occupation, trade or business
The general public and in 
particular any law relating to
(i) the professional or technical 
qualifications necessary for 
practising of any profession or 
carrying on any occupation, 
trade or business
(ii) the carrying on by the state, 
or by a corporation owned or 
controlled by the State, of any 
trade, business, industry or 
service, whether to the 
exclusion, complete or partial, 
of citizens or otherwise.

 Article 19 confers fundamental rights on citizens. The rights 
conferred by Article 19(1) are not available to and cannot be claimed 
by any person who is not and cannot be a citizen of India. A statutory 
right __ as distinguished from a fundamental right __ conferred on 
persons or citizens is capable of being deprived of or taken away by 
legislation. The fundamental rights cannot be taken away by any 
legislation; a legislation can only impose reasonable restrictions on the 
exercise of the right. Out of the several rights enumerated in clause 
(1) of Article 19, the right at sub-clause (a) is not merely a right of 
speech and expression but a right to freedom of speech and 
expression. The enumeration of other rights is not by reference to 
freedom. In the words of the then Chief Justice Patanjali Sastri (In 
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 
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 
Aurobindo and the Mother. The Society for its Auroville project 
received grants and subventions from UNESCO and also from the 
Government of India. However, after the death of the Mother, 
complaints started pouring in with the Central Government which, on 
enquiry, revealed mismanagement of the affairs of the Society, misuse 
of the funds thereof and diversion of the funds meant for Auroville to 
other purposes. There was in-fighting between the groups of 
members and the situation went out of control. The Auroville 
(Emergency Provisions) Ordinance, 1980, was promulgated followed 
by an Act, whereby the management of Auroville was taken over, 
though for a limited period. The constitutional validity of the Act was 
challenged on the ground that Articles 25, 26, 29 and 30 and also 
Article 14 were infringed; and that the Parliament had no legislative 
competence to enact the said Act. Turning down the challenge on all 
the grounds, the Constitution Bench held, inter alia, that assuming but 
not holding that the Society or Auroville were a religious 
denomination, the impugned Act was not hit by Article 25 or 26. It 
does not curtail the freedom of conscience and the right to freely 
profess, practise and propagate one's own religion. "The right of 
management in matters of religion of a religious denomination" under 
Article 26(b) was not taken away; what was taken away was the right 
of management of the property of Auroville which was a secular 
matter. So also the Act did not curtail the right of any section of 
citizens to conserve its own language, script or culture conferred by 
Article 29. An activity, secular in nature, though assumed to be of the 
Society or the organization to be of religious denomination, did not 
adversely affect the freedom of conscience and the right to freely 
profess, practise and propagate one's own religion. The Constitution 
Bench has drawn a distinction between such activities of the institution 
which would necessarily fall within the purview of Articles 25, 26 or 29 
and an individual activity which would fall outside the purview of these 
Articles.

 The Preamble to the Act declares the Indian Council of World 
Affairs (ICWA) to be an institution of national importance and to 
provide for its incorporation. The same declaration is contained in the 
body of the Act vide Section 2. The pre-existing society ___ ICWA and 
the new body corporate, also given the name of ICWA, bear a 
similarity of names. Yet, it is clear that the impugned Act only deals 
with ICWA the pre-existing body and ICWA the body corporate under 
the impugned Act. The new body takes over the activities of the pre-
existing society by running the institution which too is known as ICWA. 
So far as the society ICWA is concerned, it has been left intact, 
untouched and un-interfered with. There is no tampering with the 
membership or the governing body of the society. The society is still 
free to carry on its other activities. No membership of the old society 
has been dropped. No new member has been forced or thrust upon 
the society. The impugned legislation nominates members who will be 
members of the council, the new body corporate, different from the 
society. The pith and substance of the impugned legislation is to take 
over an institution of national importance. As the formation of the 
society, which is a voluntary association, is not adversely affected and 
the members of the society are free to continue with such association, 
the validity of the impugned legislation cannot be tested by reference 
to sub-Clause (a) and (c) of Clause (1) of Article 19. The activity of 
the society which was being conducted through the institution ICWA 
has been adversely affected and to that extent the validity of the 
legislation shall have to be tested by reference to sub-Clause (g) of 
Clause (1) of Article 19. The activity was of the society and the 
society cannot claim a fundamental right. Even otherwise the 
impugned legislation is a reasonable legislation enacted in the interest 
of the general public and to govern an institution of national 
importance. It is valid. 

 Sarva Shri P.P. Rao and Ashok Nigam, the learned senior 
counsel for the petitioners have placed strong reliance on two 
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.

 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 
Court appointed receivers who took possession of the Dawakhana and 
the College. The Delhi State Legislature passed an Act called 'The 
Tibbia College Act, 1952' which came into force on October 10, 1952. 
The old Board stood dissolved and all property, movable and 
immovable, and all rights, powers and privileges of the Board came to 
vest in a new Board constituted under the Act. This new Board was 
called the Tibbia College Board. The civil suits were withdrawn and the 
Court directed the possession over the properties and institutions to be 
handed over to the new Board. The old Board filed a civil revision in 
the High Court of Punjab and thereafter a petition under Article 32 of 
the Constitution in this Court, impugning the constitutional validity of 
the Act mainly on two grounds, namely, that the Delhi State 
Legislature had no legislative power or competence to enact the 
impugned Act and that, assuming that the Delhi State Legislature had 
the legislative competence, the Act was still bad as being violative of 
Articles 14, 19 and 31 of the Constitution. Incidentally, it was also 
contended that the Act passed by the Delhi State Legislature could not 
override the provisions of the Societies Registration Act, 1860, which is 
a Central legislation. According to the State of Delhi, the field of 
legislation was covered by List II (State List) Item 32 which reads as 
under :
"32. Incorporation, regulation and winding up of 
corporations, other than those specified in List I, 
and universities; un-incorporated trading, literary, 
scientific, religious and other societies and 
associations; co-operative societies."

 The Constitution Bench held that a society could not be equated 
with a corporation as a society cannot be said to be 'incorporated' as a 
corporation is. Under Section 5 of the Societies Registration Act, 
1860, the property belonging to the society, if not vested in trustees, 
shall be deemed to be vested in the governing body of the society and 
in all proceedings, civil and criminal, the property will be described as 
being the property of the governing body. The expression "property 
belonging to the Society" does not give the Society a corporate status 
in the matter of holding and acquiring property; it merely describes 
the property which vests in the trustees or governing body for the time 
being.

 It was held that the impugned legislation while creating the new 
Board has given it a corporate status, confining its powers and duties 
to the college, pharmaceutical institute and laboratory in Delhi. It fell 
within the purview of Entry 32 of List II. Dealing with the submission 
based on Article 31(2) of the Constitution (as it then stood), the Court 
held that the impugned legislation does not relate to nor does it 
provide for compulsory acquisition of property for a public purpose. 
The impugned legislation provides for the transfer of the management 
of the Ayurvedic and Unani Tibbia College, Delhi, from the old Board to 
a new Board, and for that purpose the old Board was dissolved and a 
new Board was created with certain rights, powers and privileges to be 
applied for the exercise of powers and the performance of duties as 
laid down in the Act. Such legislation could not be tested under Article 
31(2) or the tests emerging therefrom.

 Dealing with the submission made by reference to the repealed 
Article 19(1)(f), the fundamental right to acquire, hold and dispose of 
property, the Court held that 
"During the subsistence of the society, the right of 
the members was to ensure that the property was 
utilized for the charitable objects set out in the 
memorandum and these did not include any 
beneficial enjoyment. Nor did the members of the 
society acquire any beneficial interest on the 
dissolution of the society; for Section 14 of the Act, 
quoted earlier, expressly negatived the right of the 
members to any distribution of the assets of the 
dissolved body. In such an event the property had 
to be given over to some other society, i.e., for 
being managed by some other charitable 
organization and to be utilized for like purposes, 
and the only right of the members was to 
determine the society to whom the funds or 
property might be transferred and this had to be 
done by not less than three-fifths of the members 
present at the meeting for the purpose and, in 
default of such determination, by the civil court. 
The effect of the impugned legislation is to vary or 
affect this privilege of the members and to vest the 
property in a new body created by it enjoined to 
administer it so as to serve the same purposes as 
the dissolved society. The only question is whether 
the right to determine the body which shall 
administer the funds or property of the dissolved 
society which they had under the pre-existing law 
is a right to 'acquire, hold and dispose of property' 
within the meaning of Article 19(1)(f), and if so 
whether the legislation is not saved by Article 
19(5). We are clearly of the opinion that that right 
is not a right of property within the meaning of 
Article 19(1)(f). In the context in which the words 
'to dispose of' occur in Article 19(1)(f), they denote 
that kind of property which a citizen has a right to 
hold. Where however the citizen has no right to 
hold the property, for on the terms of Section 14 of 
the Societies Registration Act the members have no 
right to 'hold' the property of the dissolved society, 
there is, in our opinion, no infringement of any 
right to property within the meaning of Article 
19(1)(f). In this view the question as to whether 
the impugned enactment satisfies the requirements 
of Article 19(5) does not fall to be determined. 

The Court concluded by holding that the Delhi State Legislature did not 
transgress any of the limitations placed on it, by Article 19(5) when it 
enacted the impugned legislation.

The protection of Article 300A is available to any person, 
including a legal or jurisdic person and is not confined only to a citizen. 
For more than one reason, we are not inclined to entertain this plea. 
Firstly, with the Forty-Fourth Amendment, w.e.f. June 20, 1979, Right 
to Property having ceased to be a fundamental right, we have grave 
doubts if the same can be sought to be enforced by a petition under 
Article 32 of the Constitution. Secondly, we find that a case of 
violation of Article 300A in the dimension in which it was sought to be 
canvassed is not taken up in the writ petition. The Union of India has 
taken over the institution by enacting a law which we have held to be 
within the legislative competence of the Parliament. Thirdly and lastly, 
the petition in that regard raises disputed questions of facts. The 
Union of India do not admit title of the petitioner either in the land or 
in the building or in any other property claimed to be owned by the 
petitioners. There is not one document of title produced by the 
petitioners in support of their claim to the property. Such highly 
disputed questions of fact which cannot be determined except on 
evidence are not fit to be taken up for adjudication in the exercise of 
writ jurisdiction. The exercise of testing the vires of the impugned 
legislation by reference to Article 300A of the Constitution is uncalled 
for in the present petition.

Is the impugned Act arbitrary and violative of Article 14?
 Article 14 of the Constitution prohibits class legislation and not 
reasonable classification for the purpose of legislation. The 
requirements of the validity of legislation by reference to Article 14 of 
the Constitution are : that the subject matter of legislation should be a 
well defined class founded on an intelligible differentia which 
distinguishes that subject matter from others left out, and such 
differentia must have a rational relation with the object sought to be 
achieved by the legislation. The laying down of intelligible differentia 
does not, however, mean that the legislative classification should be 
scientifically perfect or logically complete. 

We have already pointed out in an earlier part of this judgment 
that in the present case successive parliamentary committees found 
substance in the complaints received that an institution of national 
importance was suffering from mismanagement and mal-
administration. The Central Government acted on such findings. 
Circumstances warranting an emergent action satisfied the President 
of India, resulting in his promulgating ordinances which earlier could 
not culminate into legislative enactments on account of fortuitous 
circumstances. At the end the Parliament exercised its legislative 
power under Article 245 of the Constitution read with Entries 62 and 
63 of List I. The legislation cannot be said to be arbitrary or 
unreasonable.

It was further submitted that the provisions of the Societies 
Registration Act, 1860 were effective enough which, if invoked, could 
have taken care of the alleged grievances. If there was any truth or 
substance therein the same could have been found on enquiries being 
held. In our opinion, in a given set of facts and circumstances, merely 
because an alternative action under the Societies Registration Act, 
1860 could have served the purpose, a case cannot be and is not 
made out for finding fault with another legislation if the same be within 
the legislative competence of the Parliament, which it is, as will be 
seen hereinafter. 

 A similar submission was made and repelled in S.P. Mittal's 
case (supra). The contention there was that provisions in the 
Societies Registration Act were available to meet the situation in 
Auroville and that the law and order situation could be controlled by 
resorting to provisions of the Code of Criminal Procedure. The 
Constitution Bench held - "Whether the remedies provided under the 
Societies Registration Act were sufficient to meet the exigencies of the 
situation is not for the Court but for the Government to decide, and if 
the Government thought that the conditions prevailing in Auroville and 
the Society can be ameliorated not by resorting to the provisions of 
the Societies Registration Act but by a special enactment, that is an 
area of the exercise of the discretion of the Government and not of the 
Court." The Constitution Bench also observed that assuming the facts 
brought to the notice of the legislature were wrong, it will not be open 
to the Court to hold the Act to be bad on that account.

 It was then submitted that the institution ICWA was singled out 
and though there were several other institutions run by societies or 
other organizations which were in the grip of more serious 
mismanagement and mal-administration, they were not even touched 
and the Parliament chose to legislate as to one institution only. This 
submission too holds no merit. Firstly, no other institution is named 
or particularized so as to be comparable with ICWA. Secondly, there 
can be a legislation in respect of a single institution as is clear from 
the language itself of Entries 62 and 63 of List I. A single institution is 
capable of being treated as a class by itself for the purpose of 
legislation if there are special circumstances or reasons which are 
applicable to that institution and such legislation would not incur the 
wrath of Article 14. In S.P. Mittal (supra), the impugned legislation 
brought with the object and purpose of taking away the management 
of Auroville from the Aurobindo Society and to bring it under the 
management of the Central Government under the provisions of the 
impugned Act was held to be valid. The exercise of legislative power 
by Parliament was sought to be justified as falling within the field of 
Entry 63 of List I. Their Lordships referred to several decisions 
wherein the constitutional validity of similar legislations was upheld. 
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 
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 
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 
confidence in the legislative branch. This is not the case, however, 
when the change in legislation after a judicial ruling reflects a thorough 
and deliberate examination of the ruling and an objective expression of 
the will of the legislature". (A Judge on Judging : The Role of a 
Supreme Court in Democracy __ President Aharon Barak, Harvard Law 
Review, Vol.116, No.1, November 2002, at p.135). He further states 
that "foundation of democracy is a legislature elected freely and 
periodically by the people. Judges and legal scholars ought not to 
forget this fundamental principle. The role of a judge in a democracy 
recognizes the central role of the legislature. Undermining the 
legislature undermines democracy. My conception of the rule of law 
and of the separation of powers do not undermine the legislature. 
Rather, they ensure that all branches of state act within the framework 
of the constitution and statutes. Only thus can we maintain public 
confidence in the legislature; only thus can we preserve the dignity of 
legislation." He quotes Justice McLachlin as rightly saying that in 
democracies, "the elected legislators, the executive and the courts all 
have their role to play. Each must play that role in a spirit of profound 
respect for the other. We are not adversaries. We are all in the 
justice business, together." (ibid, pp.136, 137).

 The position in the present case is, of course, a little different. 
We are not here dealing with the validity of a validating enactment. 
In the judgment dated September 10, 1990 (C.W.P.No.9120 of 1990) 
the High Court (Bench presided over by the learned single-Judge) 
unfortunately, unmindful of the correct width and expanse of the rights 
conferred by sub-clauses (a) and (c) of clause (1) of Article 19 of the 
Constitution, did not correctly comprehend the scope of Article 19(1) 
of the Constitution and overlooked the fine distinction in the breach of 
rights complained of by a citizen or citizens - collectively but as 
citizens, and the right to certain activities claimed by an association. 
The High Court just confined itself to finding whether the impugned 
ordinance could be saved by clauses (2) and (4) of Article 19, and if 
not, then it was unconstitutional, also because it was too drastic and 
hence unreasonable. The High Court also went on to say that as 
compensation was not paid for the property acquired, the ordinance 
was arbitrary and discriminatory more so because it aimed only at a 
particular society. While making this observation the High Court 
overlooked the fact that the ordinance aimed at the Institution and not 
at the Society, though the nomenclature of the two was the same. 
The High Court nowhere recorded a finding that any property either 
belonged to the petitioners or was vested in them before it was taken 
away, and also did not consider the affect of repeal of Article 19(1)(f) 
and 31 of the Constitution after which repeal the right to property had 
ceased to be a fundamental right and the newly engrafted Article 300A 
of the Constitution requires only authority of law for depriving any 
person or his property.

 That decision of the learned Single Judge was not left 
unchallenged. In fact, the correctness of the judgment of the learned 
single-Judge was put in issue by the Union of India by filing an intra-
court appeal. Filing of an appeal destroys the finality of the judgment 
under appeal. The issues determined by the learned Single Judge 
were open for consideration before the Division Bench. However, the 
Division Bench was denied the opportunity of hearing and the 
aggrieved party could also not press for decision of the appeal on 
merits, as before the appeal could be heard it was rendered 
infructuous on account of the Ordinance itself having ceased to 
operate. The Union of India, howsoever it may have felt aggrieved by 
the pronouncement of the learned single-Judge, had no remedy left 
available to it to pursue. The judgment of the Division Bench refusing 
to dwell upon the correctness of the judgment of the Single Judge had 
the effect of leaving the matter at large. Upon the lapsing of the 
earlier Ordinance pending an appeal before a Division Bench, the 
judgment of the Single Judge about the illegality of the earlier 
Ordinance, cannot any longer bar this Court from deciding about the 
validity of a fresh law on its own merits, even if the fresh law contains 
similar provisions. 

Be that as it may, we are clearly of the opinion that the 
judgment dated September 10, 1990, is not correct and we specifically 
record our overruling of the same. The doctrine of Separation of 
Powers and the constitutional convention of the three organs of the 
State, having regard and respect for each other, is enough answer to 
the plea raised on behalf of the petitioners founded on the doctrine of 
Separation of Powers. We cannot strike down a legislation which we 
have on an independent scrutiny held to be within the legislative 
competence of the enacting legislature merely because the legislature 
has re-enacted the same legal provisions into an Act which, ten years 
before, were incorporated in an ordinance and were found to be 
unconstitutional in an erroneous judgment of the High Court and 
before the error could be corrected in appeal the Ordinance itself 
lapsed. It has to be remembered that by the impugned Act the 
Parliament has not overruled the judgment of the High Court nor has it 
declared the same law to be valid which has been pronounced to be 
void by the court. It would have been better if before passing the Bill 
into an Act the attention of the Parliament was specifically invited to 
the factum of an earlier pari materia Ordinance having been annulled 
by the High Court. If an ordinance invalidated by the High Court is still 
reenacted into an Act after the pronouncement by the High Court, the 
subsequent Act would be liable to be annulled once again on finding 
that the High Court was right in taking the view of the illegality of the 
Ordinance, which it did. However, as we have already stated, this is 
not the position obtaining in the present case. The impugned Act is 
not liable to be annulled on the ground of violation of the doctrine of 
Separation of Powers. 

Impugned Act covered by Entries 62, 63 of List I of 
Schedule - 7

 The challenge to the constitutional validity of the impugned Act 
fails on all the grounds alleged. The legislation is clearly covered by 
Entries 62 and 63 of List I Schedule 7. Initially at one time, the 
institution was receiving financial aid from the Government of India. 
The institution ICWA has been declared to be an 'institution of national 
importance' by the Act of Parliament. There is no challenge to the 
validity of such declaration nor do we find any grounds to take a view 
different from the one taken in the declaration made by the 
Government of India. Once an institution is declared to be of national 
importance, the Parliament is competent to make any law governing 
the management, administration and affairs of such an institution. It 
is not the case of the petitioners that though the institution is declared 
and held to be of national importance, yet in enacting other provisions 
of the impugned Act, the Parliament has encroached upon any field of 
legislation not available to it. The provisions of the Act fall within the 
field of legislation meant for the Union of India. 

The various Entries in the three Lists of the Seventh Schedule 
are legislative heads defining the fields of legislation and should be 
liberally and widely interpreted. Not only the main matter but also any 
incidental and ancillary matters are available to be included within the 
field of the entry. The settled rules of interpretation governing the 
Entries do not countenance any narrow and pedantic interpretation. 
The judicial opinion is for giving a large and liberal interpretation to 
the scope of the Entries. Suffice it to quote from the opinion of the 
judicial committee of the Privy Council in British Coal Corporation 
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 
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.

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