2003 Supreme(SC) 1192

2004(2) Supreme 12
Supreme Court of India
(Under Art. 32 of the Constitution of India)
R.C. Lahoti & Brijesh Kumar, JJ.
Dharam Dutt and Ors. -Petitioners
versus
Union of India & Ors. -Respondents
Writ Petition (C) No. 276 of 2001
With
W.P. (C) No. 543 of 2001
Decided on 24-11-2003
Counsel for the Parties :
For the Petitioners : Ashok Nigam, P.P. Rao, Sr. Advocates, Sunil Kumar, Sushender Kumar Chauhan, Ms. Ritu Puri, Ms. Naresh Bakshi, D.K. Gupta, B.S. Baloria, Dinesh Kumar Garg, Devinder Verma, R.P. Gupta, Advocates.
For the Respondents : Raju Ramachandaran, Additional Solicitor Gener­al, Altaf Ahmad, Additional Solicitor General, (NP), D.N. Ray, Tufail A. Khan, Ashok Kumar Pandey, B.V. Balram Dass, D.S. Mahra, Y.P. Maha­jan, M.K. Michael and Shreekant N. Terdol, Advocates.

Important point
The Indian Council of World Affairs Act, 2001 cannot be held as arbitrary or unreasonable as the impugned legislation is a reasonable legislation enacted in the interest of the general public and to govern an institution of national importance.

Headnote:(i) Indian Council of World Affairs Act, 2001-Constitution of India-­Articles 19(1)(a), (c), (2), (4) and 300A-Constitutional validity of the Act-Indian Council of World Affairs ­Ordinance, 2001, promulgated by President of India in 2001-Indian Council of World Affairs was formed by about 50 distinguished eminent public personali­ties as a non-official, non political and non profit organization-Association registered as a society under Societies Registration Act-President of India promulgated an Ordinance whereby a statutory body known as Indian Council of World Affairs was consti­tuted, having perpetual succession and a common seal-Writ petition challenging constitutional validity of the Ordinance-Single Judge of the High Court allowed the petition holding the Ordinance to be ultra vires of the Constitution violating Articles 14, 19(1)(a) and 19(1)(c) and also beyond legislative competence of the Parliament-Passing of Act of 2001-Validity challenged-Whether impugned Act is violative of Article 19(1)(a) and (c)-(No)-Test of reasonableness.

       Held : 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 (Para 28)

       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 (Para 35)

       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. (Para 36)

       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 (Para 37)

       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. (Para 43)

       (ii) Indian Council of World Affairs Act, 2001-Constitution of India-­Article 300A-Constitutional validity of the Act-Challenge on ground of violation of Article 300A-Is the impugned legislation violative of Article 300A.

       Held : The protection of Article 300A is available to any person, including a legal or juristic 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. (Para 55)

       (iii) Indian Council of World Affairs Act, 2001-Constitution of India-­Article 14-Constitutional validity of the Act-Challenge on ground of violation of Article 14-Is the impugned Act arbitrary and violative of Article 14-(No).

       Held : 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. (Paras 56 and 57)