http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 26  

CASE NO.: Writ Petition (civil)  276 of 2001 Writ Petition (civil)  543 of 2001

PETITIONER: Dharam Dutt & Ors.                                       

RESPONDENT: Union of India & Ors.                                          

DATE OF JUDGMENT: 24/11/2003

BENCH: R.C. LAHOTI & BRIJESH KUMAR.

JUDGMENT: J U D G M E N T

R.C. LAHOTI, J.                  W.P. (C) No.276/2001 filed on June 22, 2002, lays challenge to  the constitutional validity of the Indian Council of World Affairs  Ordinance, 2001 (No.3 of 2001), promulgated by the President of  India on May 8, 2001, in exercise of the powers conferred by clause  (1) of Article 123 of the Constitution of India.  During the pendency of  this petition the Ordinance came to be replaced by an Act of  Parliament, namely, the Indian Council of World Affairs Act, 2001(Act  No.29 of 2001), which came into force w.e.f. September 1, 2000.  On  19.10.2001 W.P.(C) No.543/2001 was filed laying challenge to the  constitutional validity of this Act.  Both the petitions have been filed  under Article 32 of the Constitution of India and respectively allege the  Ordinance and the Act to be violative of Articles 14, 19(1)(a), 19(1)(c)  and 300A of the Constitution.           Factual backdrop:         In the year 1943, the Indian Council of World Affairs was formed  by about 50 distinguished eminent public personalities as a non- official, non-political and non-profit organization.  On March 31, 1945,  the Association was registered as a society under the Societies  Registration Act, 1860.  The principal object of the Society, as set out  in the Memorandum of Association, was to promote the study of Indian  and international questions so as to develop a body of informed  opinion on world affairs and Indian relation thereto through study,  research, discussion, lectures, exchange of ideas and information etc.,  with other bodies in India and abroad engaged in similar activities.   The activities of the Society were housed in a building known as Sapru  House.  Sapru House has come up on a land of about 2 acres situated  at No.1, Barakhamba Road, New Delhi, given on lease by the  Government of India some time in the year 1950-51.  Sapru House  has a library with a collection of books mainly on international affairs,  an auditorium for holding seminars and discussions, a conference room  and other office accommodation.  The Society was receiving grants  from the Government of India from 1974 until the year 1987,  whereafter the grant has been discontinued.   

        On June 30, 1990, the President of India promulgated an  Ordinance whereby a statutory body known as the Indian Council of  World Affairs was constituted, having perpetual succession and a  common seal, with power to hold and dispose of property both  movable and immovable.  The constitutional validity of this Ordinance  was put in issue by filing a writ petition before the High Court of  Punjab and Haryana at Chandigarh, registered as Civil Writ Petition  No.9120 of 1990.  A learned single Judge of the High Court vide  judgment dated September 10, 1990, allowed the writ petition,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 26  

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? :    

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 26  

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’

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 26  

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 26  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 26  

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 26  

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 26  

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?

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 26  

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 26  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 26  

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.