Full Judgment Text
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PETITIONER:
DAMYANTI NARANGA
Vs.
RESPONDENT:
THE UNION OF INDIA AND OTHERS
DATE OF JUDGMENT23/02/1971
BENCH:
BHARGAVA, VISHISHTHA
BENCH:
BHARGAVA, VISHISHTHA
SIKRI, S.M. (CJ)
MITTER, G.K.
HEGDE, K.S.
REDDY, P. JAGANMOHAN
CITATION:
1971 AIR 966 1971 SCR (3) 840
1971 SCC (1) 678
CITATOR INFO :
D 1971 SC1737 (31)
D 1985 SC 973 (9)
RF 1985 SC1622 (5)
D 1987 SC 379 (9)
RF 1988 SC1136 (30,31)
ACT:
Fundamental Rights-Freedom of Association-Hindi Sahitya
Sammelan, a registered society-Parliament enacting
legislation declaring Sammelan as of national impor
tance-Power to frame rules to admit new members
without consent of original members of Society If
infringes right to form Association of original members of
society- Transferring properties of Society to Sammelan
while Society kept in existence- If infringes right to hold
property-Constitution of India Article 19 (1)(c) and (f)
cls. (4) and (5)-Hindi Sahitya Sammelan Act, 1962.
HEADNOTE:
The Hindi Sahitya Sammelan (hereinafter referred to as the
Society) was a registered society founded for the
development and propagation of Hindi. After a number of
years of its successful working differences arose between
its members and this resulted in litigation. in 1956 the
Uttar Pradesh legislature passed the U.P. Sahitya Sammelan
Act, under which a statutory body was created under the name
of Hindi Sahitya Sammelan. This act was declared void by
the Allahabad High Court as violating the freedom of
association guaranteed under article 19(1)(c) of the
Constitution. Thereafter, Parliament enacted the Hindi
Sahitya Sammelan Act, 1962legislating under entry 63,
list I of the Seventh Schedule declaringthat "the
institution known as the Hindi Sahitya Sammelan is an
institution of national importance". By the Act a statutory
sammelan was constituted as a body corporate by the name of
the Hindi Sahitya Sammelan. Under s. 4(1) of the Act the
Sammelan was to consist of the first members of the Society
and all persons who might become members thereafter in
accordance with the rules made in that behalf-by the first
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Governing Body to be constituted by the Central Government
by notification. The Act provided, for vesting in the
Sammelan of all property movable or immovable, of or
belonging to the society.
Petitions under Article 226 in the High Court and under
Article 32 in this Court were filed challenging the
constitutionality of the Act mainly on the ground that the
Act interfered with the right of the petitioners to form
association under Article 19(1) (c) of the Constitution.
The High Court held that since all the members of the
society had also become members of the Sammelan under the
Act, there was no infringement of the right to form
association. In the appeal and in the petition under
Article 32, the respondent contended that having declared
the old Hindi Sabitya Sammelan, which was a society
registered under the Societies Registration Act, 1860 as an
institution of national importance, Parliament has proceeded
to legislate in respect of it under entry 63 of List I of
the Seventh Schedule in order that its administration may
not suffer as a result of the quarrels that were going inter
be between the members of the society; it was for this
purpose that a first Governing Body was constituted to take
over the management temporarily; the Act was designed to
reconstitute the Sammelan in such a manner that it could
worm successfully and without difficulties; and in making
provisions for this purpose all members of the old society
were included as members of the Sammelan
8 4 1
so that their right to form association may not be taken
away from them Alternatively the respondent took up the
position that the Act no where specifically laid down that
the society shall stand dissolved while it constituted a new
Sammelan and therefore, it should be inferred that while the
society still continued to exist in its original form the
law has brought into existence a new Sammelan to which all
the functions and the properties etc.-of the society have
been passed. Allowing the petition and the appeal.
HELD : Under s. 12(1) (a) very wide powers are given to the
first governing body to make rules in respect of matters
relating to membership including qualifications and
disqualifications for membership of the Sammelan. Under
this power the rules framed could make provisions for
admission of persons as members whom the original members of
society may never have liked to admit in their Society. The
number of such new members could even be so large as to
leave the original members in a small minority with the
result that those members. could become totally ineffective
in the society. Thus the Sammelan which has come into
existence, is not identical-with the Sammelan which was a
registered society under the Societies Registration Act.,
This is clear interference with the right to form a society
which has been exercised by the members of the Society by
forming the Society with its constitution under which they
were members. The Act does not merely regulate the admi-
nistration of the affairs of the Society; what it does is to
alter the composition of the society itself. The result of
this change in composition is that the members, who
voluntarily formed the society are now compelled to act in
that Association with other members who have been imposed as
members by the Act and in whose admission to membership they
had no say. The right to form association necessarily
implies that the persons forming the society have also the
right to continue to be associated with only those whom they
voluntarily admit in the association. Any law by which
members are introduced in the voluntary association without
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any option being given to the members to keep them out or
any law which takes away the membership of those who have
voluntarily joined. it will be a law violating the right to
form association. [847 H; 849 C-E]
The right guaranteed by Article 19(1)(c) cannot be confined
to the initial stage of forming an association. if it were
to be so confined, the right would be meaningless because as
soon as an association is formed, a law may be passed
interfering with its composition so that the association
formed may not be able to function at all. The right can be
effective only if it is held to include within, it the right
to continue the association with its composition as
voluntarily agreed upon by the persons forming the
association. And, Article 19(4), on the face of it, cannot
be called in aid to claim lidity for the Act. Therefore the
provisioncontained in the Act for reconstituting the society
into the Sammelan is void. The whole Act becomes
ineffective in as much as the formation of the new Sammelan
is the very basis for all the other provisions in the Act.
[849 F-H; 851 E]
O.K. Ghosh and Another v. E. X. Joseph, [1963] SUppl. 3
S.C.R. 789; State of Madras v. V. G. Row, [1952] S.C. R. 597
and V. G. Row v. The State of Madras, A.I.R. 1951 Mad. 147,
referred to.
The alternative submission cannot be accepted as ensuring
the validity of the Act. First, the specific case taken
by the respondent has been, that the Actreconstitutes
the Society and does not create a separate and independent
body in the form of a new Sammelan. Secondly, even if it be
acceptedthat a new Sammelan has been constituted, the
question of-
842
legislative competence of Parliament to pass such a law will
arise. The Sammelan is itself a body corporate and that
Sammelan has never been declared as an institution of
national importance. The only institution that was so
declared was the society which, of course, earlier carried
the same name as the new Sammelan. Parliament was,
therefore, not competent to legislate in respect of this
newly constituted Sammelan which at no stage has been
declared as an institution of national importance. Thirdly,
if it were to be held that Parliament passed this Act so as
to transfer all the properties and assets of the Society to
the Sammelan, the Act would contravene Article 19(1)(f) of
the Constitution. The Sammelan is a new, separate and
distinct legal entity from the Society. The Society is thus
deprived of all its properties by the Act and such a law
depriving the Society of its properties altogether cannot be
held to be a reasonable restriction in the public interest
on the right of the society to hold the property. The
applicability of Article 19(1(f) is on the assumption that
the old Society still exists as it was and yet its
properties have been transferred to the Sammelan. If the
Society still exists, so does its Governing Body in whom
the property of the Society vested. The Act thus deprives
the members of the Governing Body of the property which
still continued to vest in them in spite of the passing of
the Act. This total deprivation of property instead of
regulating the management of the affairs of the Society of
its property cannot clearly be justified as a reasonable
restriction in public interest. If the law is passed not
merely for ensuring proper management and administration of
the property, but for totally depriving the persons, in whom
the property vested, of their right to hold the property,
the law cannot be justified as reasonable restriction under
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Article 19(5). [852 B-H; 853 E-854 A]
The Board of Trustees, Ayurvedic and Unani Tibia College,
Delhi v. The State of Delhi & Anr. [1962] Suppl. I S.C.R.
156; referred to.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 91 of 1964.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights and Civil Appeal No. 358
of 1966.
Appeal by special leave from the judgment and order dated
September 9, 1963 of the Allahabad High Court in Civil Writ
Petition No. 1885 of 1962.
J.P. Goyal and Raghunath Singh, for the petitioner (in
W.P. No. 91 of 1964).
A.K. Sen, J. P. Goyal and Raghunath Singh, for the appel-
lants (in C.A. No. 358/66).
B.Sen and S. P. Nayar, for respondent No. 1 (in W.P. No.
91 of 1964) and respondents Nos. 3 and 4 (in C.A. No. 358 of
1966).
N.N. Sharma, for respondent No. 2 (in W.P. No. 91/64) and
respondents Nos. 16 and 17- (in C.A. No. 358/66).
843
The Judgment of the Court was delivered by
Bbargava, J.-This writ petition and the appeal challenge the
validity of the Hindi Sahitya Sammelan Act No. 13 of 1962
(hereinafter referred to as "the Act"). The facts leading
up to the passing of this enactment are that, in the year
1910, some eminent educationists assembled at Banaras and
founded an Association for the development of Hindi and its
propagation throughout the country. This Association was
named as the Hindi Sahitya Sammelan. On the 8th January,
1914, it was registered as a Society under the Societies
Registration Act No. 21 of 1860, with Head Office at
Allahabad, under the name of Hindi Sahitya Sammelan. The
rules and bye-laws of the Society laid down the objects of
this Association and the manner of its working. It had
three classes of members, viz., special members (Vishisht
Sadasya), permanent members (Sthayi Sadasya), and ordinary
members (Sadharan Sadasya). Under the bye-laws, apart from
the original members constituting the Society, further mem-
bers could be admitted under these three classifications on
being elected by the working committee of the Society.
Under the Rules and bye-laws of the Society, other bodies
could be constituted for carrying on activities of the
Society. These included a Governing Body, a Working
Committee, a Hindi University Council, Literary Council
(Sahitya Samiti), Library Committee, Parchar Samiti and
Rashtriaya Bhasha Prachar Samiti. Through the agencies of
these various Committees, the Society carried on the work of
development and propagation of Hindi, of spreading the use
of Devnagri scrip, of holding examinations, and of confer-
ring Degrees for proficiency in Hindi. The Society owned
landed properties and buildings at Allahabad as well as at
some other places such as Warding, and was holding
considerable funds for carrying on its activities. The
Society worked very successfully for a number of years. It
appears that in the year 1950, some differences arose
between the members of the Society, and attempt was made to
alter the constitution, of the Society. while one section
wanted the alterations, another section was opposed to it.
This resulted in litigation. Three different suits were
instituted in the civil Courts at Allahabad in this
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connection and injunctions were sought by one party against
the other. Ultimately, the Court appointed a Receiver.
In view of- these circumstances, the U.P. Legislature passed
an Act known as the U.P. Hindi Sahitya Sammelan Act No. 36
of 1956, under which a statutory body was created under the
name of Hindi Sahitya Sammelan, and the word "Sammelan" was
defined as referring to the Hindi Sahitya Sammelan constitu-
ted under the Act. Under that Act. Under that Act, the
mana-
844
gement and properties of the original Hindi Sahitya
Sammelan, which was a registered Society, were to be taken
over by the new statutory Sammelan. That Act was, however,
declared void by the Allahabad High Court on the ground
that Act had made the original Sammelan cease to exist and
provided for the constitution of a new Sammelan under its
terms in which the members of the original Sammelan had no
say, so that Act infringed the right of the members of the
original Sammelan of forming an association guaranteed by
Art. 19 (1) (c) of the Constitution. It was further held
that Act was not saved under Art. 19(4) of the Constitution.
Thereafter, the present Act, now challenged in this writ
petition and the appeal, was passed by Parliament under
Entry 63 of List I of the Seventh Schedule to the
Constitution. The Act itself, in section 2, contained the
necessary declaration to give legislative competence to
Parliament under that Entry.
The Act first contained in section 2 a declaration in the
following words :-
"Whereas the objects of the institution known
as the Hindi Sahitya Sammelan which has its
head office at Allahabad are such as to make
the instituation one of national importance,
it is hereby declared that the institution
known as the Hindi Sahitya Sammelan is an
institution of national importance."
Having declared this institution as an institution of
national importance, th.-, Act proceeded to define
"Sammelan" as meaning the institution known as the Hindi
Sahitya Sammelan incorporated under this Act, while the word
"Society" was defined to mean "the Hindi Sahitya Sammelan
which has its head office at Allahabad and is registered
under the Societies Registration Act, 1860." Under section
4(1) of the Act, the Sannnelan was constituted which was to
consist of the first members of the Sammelan and all persons
who may hereafter become members thereof in accordance with
the rules made in that behalf. This statutory Sammelan was
constituted as a body corporate by the name of the Hindi
Sahitya Sammelan, and under sub-section (2) of section 4, it
was to have perpetual succession and a common seal with
power, subject to the provision of the. Act, to acquire,
hold and dispose of property and to contract and to sue and
be sued by that name. The Head Office of the Sammelan was
to be at Allahabad. Under subs.(4) of section the first
members of the Sammelan were to consist of persons who,
immediately before the appointed day.-
(a) were special members (Vishisht Sadasya)
of the Society;
8 45
(b) (were. life members (Sthayi Sadasya) of
the Society.
(c) had been Presidents of the Society; or
(d) were awarded the Mangla Prasad
Paritoshik by the Society.
This sub-s. (4) of section 4 was amended retrospectively
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with effect from the date that the Act came into force by
the Hindi Sahitya Sammelan (Amendment) Act No. 1 of 1963,
and the first members of the Sammelan were, under this
amendment, declared to be-
(a) all persons who, immediately before the
appointed day, were members of the Society;
(b) all persons who, before that day, had
been Presidents of the Society; and
(c) all persons who, before that day, were
awarded the Mangla Prasad Paritoshik by the
Society.
It is not necessary to give in detail the other provisions
of the Act, except that it may be mentioned that the Act
provided for vesting of all property, movable or immovable,
or, belonging to the Society in the Sammelan, transferring
all rights and Liabilities of the Society to the Sammelan,
converting reference to the Society in any law to the
Sammelan, and other similar necessary provisions. The Act
itself did not make any provision for the future membership
of the Sammelan; but, under section 12(1) (a), the first
Governing Body of the Sammelan was directed to make rules in
respect of matters relating to membership, including
qualifications and disqualifications For membership of the
Sammelan. The first Governing Body was to be constituted
under section 8 and was to consist of a Chairman, a
Secretary and 13 other members. This Governing Body was to
be constituted by a notification in the Official Gazette by
the Central Government. The thirteen members were to be
chosen as follows :-
(i) one member to represent the Ministry of
the Central Government dealing with
education;
(ii)one member to represent the Ministry of
the Central Government dealing with finance;
(iii)not more than three members from among
the former Presidents of the Society; and
(iv)the remaining number from among persons
who are, in the opinion of the Central Govern-
846
ment, eminent in the field of Hindi language
or Hindi literature.
It was this first Governing Body which was to make rules on
all matters relating to membership of the Sammelan under
section 12 (1 )(a) of the Act. These rules were not have
effect until they were approved by the Central. Government
and were published by the first Governing Body in such
manner as the Central Government may, by order, direct. A
copy of the rules was also to be laid before each House of
Parliament. Counsel for respondent No. 1 placed before us a
copy of the rules which, according to him, have been made by
the first Governing Body with the approval of the Government
and have been published as required. The Rules come into
force on 1st of February, 1971. The petition under Art. 32,
and the petition under Art. 226, out of which the civil
appeal arises, were both moved much earlier and long before
these Rules were framed. These petitions challenged the
validity of the Act, without taking into account the actual
Rules framed, mainly on the ground that he Act had
interfered with the right of the petitioners to form
association Linder Art. 19(1)(c) of the Constitution and was
not protected by Art. 19(4). In the petition before the
Allahabad High Court, the Court held that, since all the
members of the Society had also become members of the
Sammelan under the Act, there was no infringement of the
right to form association, so that the Act could not be
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declared invalid on that ground. The writ petition in this
Court has been filed by only one member of the Society,
while the petition in the High Court and the appeal against
the judgment of the High Court, which is before us, were
filed by the original Hindi Sahitya Sammelan as one party
and 72 members of that Sammelan joining as other petitioning
parties. ’In the civil appeal, thus, the grievance that the
Act ha$ infringed the fundamental right has been put forward
both by the Society itself as well as by 72 of its members,
including members of the Working Committee and the Governing
Body of the society. They have all come up to this Court
against the decision of the High Court in this appeal by
special leave.
In the counter-affidavits filed on behalf of the respondents
in the writ petition before the High Court as well as in the
writ petition in this Court, the position taken up was that
the Act, in fact, does not deprive the Society and its
members of any rights which they had under the constitution
of the Society and did not interfere with their right of
association inasmuch as all the members of the Society have
been included as members of the Sammelan under the Act. The
High Court, in fact, dismissed the writ petition on
accepting this submission put forward on behalf of the
respondents. In the arguments before us, learned counsel
for
847
respondent No. 1, however, took UP a different position and
urged that the Act keeps the Society in-tact as it was,
where a new Sammelan is constituted under the Act for the
purpose of managing the institution which has been declared
as an institution of national importance. He put this
aspect of the case in the forefront, but, in the
alternative, he also argued the case on the basis of the
position taken up in the counter-affidavits in the High
Court and in this Court as mentioned above. We consider it
convenient to first deal with the case as was specifically
put forward in the counter-affidavits. In these counter-
affidavits, the position taken up is that, having declared
the old Hindi Sahitya Sammelan, which was a Society
registered under the Societies Registration Act, 1860, as an insti
tution of national importance, Parliament has
proceeded to legislate in respect of it under Entry 63 of
List I of the Seventh Schedule in order that its
administration may not suffer as a result of the quarrels
that were going on inter-se between the members of the
Society. It was for this purpose that a first Governing
Body was constituted to take over the management
temporarily. The Act was designed to reconstitute the
Sammelan in such manner that it could work successfully and
without difficulties and, in making provision for this
purpose, all members of the old Society were included as
members of the Sammelan, so that their right of forming
association may not be taken away from them. The Society
was never dissolved; instead of the Society remaining a body
registered under the Societies Registration Act, it was
converted into a statutory Sammelan under the Act.
It, however, appears on examination of the provisions of the
Act that the Sammelan under the Act is composed not only of
persons, who were members of the Society, but of others who
have been given the right to be members of the Sammelan
without the consent of the preexisting members. Under
section 4(4) itself, as retrospectively amended in 1963,
apart from persons, who were members of the Society, others,
who have been made members of the Sammelan, are all persons
who, before that day, had been Presidents of the Society and
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all persons who, before that day, were awarded the Mangla
Prasad Paritoshik by the Society. These members have been
added without any option being available to the existing
members of the Society to elect or refuse to elect them as
members which was the right they possessed under the
constitution of the Society itself. Further, under section
12 (1) (a), very wide powers were given to the first
Governor Body to make rules in respect of matters relating
to membership, including qualifications and
disqualifications for membership of the Sammelan. Under
this power, the rules framed could make
10-L1100 SupCI71
848
provision for admission of persons as members whom the
original members of the Society may never have liked to
admit in their Society. The number of such new members
could even be so large as to leave the original members in a
small minority with the result that those members could
become totally ineffective in the Society. Even in the
Rules actually framed, there is provision for admission of
members under various classes. In addition to the persons
mentioned in section 4(4) of the Act, Rule 6 proVides for
membership of persons who may become Sabhapatis of the
Sammelan for any annual session subsequent to the Act coming
into force, and persons who may be awarded Mangala Prasad
Paritoshik subsequent to the Act coming into force. Under
Rules 7, 8, and 9, new Vishisht Sadasyas, Sthayi Sadasyas,
and Sadharan Sadasyas can be admitted to the membership of
the Sammelan on payment of Rs. 1,000/- or Rs. 300/-, as the
case may be. This admission to membership, according to
the Rules, will be made by the new Karya Samiti to be
elected under the Rules and not by the Working Committee of
the original members of the Association. Further, under
section 7(2) of the Act, the Governing Body of the new
Sammelan is to consist of such number of persons, not
exceeding 55, as the Central Government may from time to
time determine; and out of these, a number not exceeding 7
are to be nominated by the, Central Government from among
educations of repute and eminent Hindi scholars. These 7
nominees are to be chosen by the Central Government and on
becoming, members of the Governing Body, under Rule. 11 they
become members of the Sammelan. Under Rule 10, educational
institutions can also be admitted as Sanstha Sadasyas of the
Sammelan by the new Karya Samiti and, thereupon, a
representative of each of such institution has right to
participate in’ proceedings of the Sammelan, exercising all
the rights of a member. It will, thus, be seen that the
Sammelan, which has come into existence under the Act, is
not identical with the Sammelan which was registered as a
Society under% the Societies Registration Act. 1860.
Certain persons have been added as members by the Act and by
the Rules. Admission of future members is no longer at the
choice of the original members who’ had formed the Asso-
ciation,Persons, in whose admission as members the members
of the, Society, had no hand, can become members and get the
right of associating with them in the Sammelan, without the
original members having any right to obecti. this is clear
interference with the right to form an association which
had been exercised by the members of the Society by forming
the Society with its constitution, under which they were
members and future members could only come in as a result of
their choice by being elected by their Working Committee.
We are unable to agree with the High Court that the new
Sammelan, as constituted under the Act,
849
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is identical with the Society and that all the rights of
forming an association, which were being exercised by
members of the Society, have been kept in-tact under the
Act.
It was argued that the right guaranteed by Article 19 (1 (c)
is only to form an association and, consequently, any
regulation of the affairs of the Association, after it has
been formed, will not amount to a breach of that right. It
is true that it has been held by this Court that, after an
Association has been formed and the right under Art. 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. Those cases
are, however, inapplicable to the present case. The Act
does not merely regulate the administration of the affairs
of the Society, what it does is to alter the composition of
the Society itself as we have indicated above. The result
of this change in composition is that the members, who
voluntarily formed the Association, are now compelled to act
in that Association with other members who have been imposed
as members by the Act and in whose admission to membership,
they had no say. Such alteration in the composition of the
Association itself clearly interferes with the right to
continue to function as members of the Association which was
voluntarily formed by the original founders. The right to
form an association, in our opinion, necessarily, implies
that the persons forming the Association have also the right
to continue to be associated with only those whom they
voluntarily, admit in the Associate on. Any law, by which
members are introduced in the voluntary Association without
any option being given to the members to keep them out, or
any law which. takes away the membership of those who have
voluntarily Joined it, will be a law violating the right to
form an association. If we were to accept the submission
that the right guaranteed by Art. 19 ( 1 ) (c) is confined
to the initial stage of forming an Association and does not
protect the right to continue the Association with the
membership, either chosen by the founders or regulated by
rules made by the Association itself, the right would be
meaningless because, as soon as an Association is formed, a
law may be passed interfering with its composition., so that
the Association formed may not be able to function at all.
The right can be effective only if it is held to include
within it the right to continue the, Association with its
composition as voluntarily agreed upon by the persons
forming the Association. This aspect was recognised by this
Court though not in plain words, in the case of O. K. Ghosh
and Another v. E. X. Joseph("). The Court, in that case..
was considering the validity of Rule 4 (B) of the Central
Civil Service,,, (Conduct) Rules, 1955, which laid down
that:
(1)[1963] Supp 3 S.C.R. 789.
850
"No Government servant shall join or continue
to be a member of any Service Association of
Government servants
(a)which has not, within a period of six
months from its formation, obtained the
recognition of the Government under the Rules
prescribed in that behalf; or
(b)recognition in respect of which has been
refused or withdrawn by the Government under
the said Rules."
This Court held:-
"It is not disputed that the fundamental
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rights guaranteed by Art. 19 can be claimed by
Government servants. Art. 33 which confers
power on the Parliament to modify the rights
in their application to the Armed Forces,
clearly brings out the fact that all citizens
including Government servants, are entitled to
Claim the rights guaranteed by Art. 19. Thus,
the validity of the impugned rule has to be
judged on the basis that the respondent and
his co-employees are entitled to form
Associations or Unions. It is clear that Rule
4-B imposes a restriction on this right. It
virtually compels a Government servant to
withdraw his membership of the Service
Association of Government Servants as
soon as
recognition accorded to the said citation is
withdrawn or if, after the Association is
formed, no recognition is Aaccorded to it
within six months. In other words, the right
to form an Association is conditioned by the
existence of the recognition of the said
Association by the Government. If the
Association obtains the recognition and
continues to enjoy it, Government servants can
become members of the said Association; if the
Association does not secure recognition from
the Government or recognition granted to it is
withdrawn, Government servants must cease to
be the members of the said Association. That
is the plain effect of the impugned rule."
The Court in the above passage, thus, accepted the principle
that the Government servants, who may have formed an
Association. could not, be compelled to resign from it by
imposition of a condition of recognition of this Association
by the Government and that if the Government servants are
required to cease to be members that would be a violation of
the right under Art. 19 (1) (c). The Court, of course, in
that case, further proceeded ’to examine whether such a
restriction on the right could be justified under
851
Art. 19(4) or not. That case, thus, supports our view that
the right to form an Association includes the right to its
continuance and any law altering the composition of the
Association compulsorily will be a breach of the right to
form the Association.
This Court had also proceeded on the same basis in the case
of State of Madras v. V. G. Row(1). Though this aspect was
not clearly brought out in the judgment, the point, which
came up for consideration, was decided on the basis that
persons forming, an Association had a right under Art. 19
(1) (c) to see that the composition of the Association
continues as voluntarily agreed to by them. That decision
was given in an appeal from a judgment of the High Court of
Madras reported in V. G. Row,v. The State of Madras(2). In
the High Court, this principle was clearly formulated by
Rajamannar, C.J., in the following words :-
"The word "form" therefore, must refer not
only to the initial commencement of the
association, but also to the continuance of
the association as such."
The Act, insofar as it interferes with the composition of
them Society in constituting the Sammelan, therefore,
violates the right of the original members of the Society to
form an association guaranteed under Art. 19(1) (c).
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Article 19(4), on-the face of it, cannot be called in aid to
claim validity for the Act. Under Art. 19(4), reasonable
restrictions can be imposed only in the interests of the
sovereignty and integrity of India, or in the interests of
public order or morality. It has not been contended on
behalf of the respondent, nor could it be contended that
this alteration of the constitution of the Society in the
manner laid down by the Act was. in the interests of the
sovereignty and integrity of India, or in, the interests of
public order or morality. Not being protected under Art.
19(4), if must be held that the provision contained, in the
Act for reconstituting the Society into the Sammelan is,
void. Once that section is declared void, the whole Act
becomes. ineffective inasmuch as the formation of the new
Sammelan is the very basis for all the other provisions
contained in the Act.
In view of this position emerging in the course of argu-
ments, Mr. B. Sen put forward an entirely different and
alter-native case before us which we have mentioned earlier.
The. position he took up was that the Act nowhere
specifically lays. down that the Society small stand
dissolved, while it does constitute a new Sammelan.
According to him, therefore, it should
(1) [1952] S.C.R. 597.
(2) A.I.R. 1951 Mad. 147.
852
be inferred that, while the Society still continues to exist
in its original form, the law has brought into existence a
new Sammelan to which all the functions, properties, etc. of
the Society have passed under the Act. There are three
reasons why this alternative submission cannot be accepted
as ensuring the validity ,of the Act. The first is that the
specific case taken by the respondents has been that the Act
reconstitutes the Society and does not create a separate and
indepedent body in the form of a new Sammelan. Secondly,
even if it be accepted that a new Sammelan has been
constituted by the Act, the question will ,arise of the
Legislative competence of Parliament to pass such :a law.
Constitution of Societies is under List 11 of the Seventh
Schedule. Parliament purported to exercise legislative
power under Entry 63 of List I on the basis of a declaration
that the Hindi Sahitya Sammelan, Allahabad was an
institution of national importance. The institution that
was declared was the Society itself. It was not a case
where the Society could be distinguished from some other
institution which might have been declared as an institution
of national importance There can, of course, be cases where
a Society may be running a college, a school or some other
like institution, in which case Parliament may declare that
particular institution as of national importance, without
declaring the Society as such In the present case, what
section 2 of the Act did was to declare the Society itself
as an institution of national importance, and, consequently,
Parliament became competent to legislate in respect of the
Society. On the interpretation now sought to, be put
forward, the Act keeps that Society in-tact, but deprives it
of all its functions and properties and transfers them to ’a
newly constituted body, viz., the Sammelan, as defined under
the Aet. This Sammelan is itself a body corporate, and that
Sammelan has never been declared as an institution of
national importance. The only institutaion that was
declared as of national importance was the Society which, of
course, earlier, carried the same name as the new Sammelan.
Parliament was, therefore, not competent to legislate in
respect of this newly constituted Sammelan which, at no
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stage, had been declared as an institution of national
importance. The third reason why this submission must be
rejected, is that, if we were to hold that Parliament pased
this Act so as to transfer all the properties and assets of
the Society to the Sammelan, the Act would contravene Art.
19(1)(f) of the Constitution. On this interpretation, what
the Act purports to do is to take away all the properties of
the Society, leaving the Society as an existing body, and
give them to the new Sammelan. This Sammelan is a new,
separate and distinct legal entity from the Society. The
Society is, thus’ deprived of all its properties by the
Act. Such a law depriving the Society of its properties al-
8 5 3
together cannot be held to be a reasonable restriction in
the public interest on the right of the Society to hold the
property. The property, under section 5 of the Societies
Registration Act, 1860, vested in the Governing Body of the
Society. The members of the Governing Body, therefore had
the right to hold the property under Art. 19(1)(f) and they
having been deprived of that property have rightly
approached the Courts for redress of their grievance.
In this connection counsel for the respondents relied on
decision of this Court in The Board of Trustees, Ayurvedic
and Unnanii Tibia College, Delhi v. The State of Delhi and
Another(1), where the Board of Trustees of the Ayurvedic and
Unani Tibbit College, Delhi was dissolved by the Tibbia
College Act, 1952, and the property, which had vested in the
Board of Trustees, passed to the newly constituted Board
under the impugned Act. The Court held that there was no
violation of the fundamental rights guaranteed by Art.
19(1)(f) or Art. 31 That decision, however, proceeded on the
basis that the property of the original Society registered
under the Societies Registration Act had vested in the Board
of Trustees which had been dissolved and the property,
thereafter, did not vest in the members of the Society in
view of the provisions of the Act of 1860. In these
circumstances, it was held that no one could complain that
his right to property under Art. 31 or his right to hold the
property under Art. 19 (1) (f) had been violated by the
impugned Act. In the present case, the applicability of
Art. 19(1)(f) is being considered by us on the assumption
that the old Society still exists as it was and, yet all its
properties have been transferred to the Sammelan. If the
Society still exists, so does its Governing Body in whom-
the property of the Society vested. The Act, thus,
deprives the members of the Governing Body of the property
which still continued to vest in them in spite of the
passing of the Act. This total deprivation of property,
instead of regulating the management of the affairs of the
Society or its properties, cannot clearly be justified as a
reasonable restriction in public interest. It is true that,
at the time when the Act was passed, litigation was going
on between the members of the Society, and the affairs of
the Society were probably in a mess. The remedy, however,
could not lie in depriving the Society of its property
altogether. Reasonable restrictions could have been imposed
so as to ensure the proper preservation of the property of
the Society and its proper management. If the law is passed
not merely for ensuring proper management and
administration of the property, but for totally depriving
the persons, in whom the property vested, of their
(1) [1962] Suppl. I S.C.R. 156.
854
right to hold the property, the law cannot be justified as a
reasonable restriction under Art. 19(5). Consequently, even
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on this alternative position taken up by counsel for the
respondents, the Act cannot be held to be valid.
As a result, the petition and the appeal are both allowed
with costs. The Act is declared to be invalid, so that
there will be restraint on the concerned bodies, including
the Union Government, from taking or continuing any action
under the Act.There will be one hearing fee.
R.K.P.S. Petition and Appeal allowed.
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