Rajasthan High Court - Jaipur
Kishore Rungta vs State Of Raj on 23 July, 2012
Bench: Arun Mishra, Bela M.Trivedi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR D.B.Civil Writ Petition No.6090/2004 Kishore Rungta V/s State of Rajasthan & ors. Date when the Order was reserved :- 20.3.2012 Date of pronouncement of Order :- 23.7.2012 PRESENT Hon'ble the Chief Justice Mr.Arun Mishra Hon'ble Ms.Justice Bela M.Trivedi REPORTABLE Mr.Paras Kuhad,Sr.Advocate with ) Sunil Nath, Vivek Dangi )-for the petitioner. Priyanka Nahata & Vishal Sharma ) Mr.G.S.Bapna, Sr.Advocate & ) Advocate General with )- for the State V.Garg & Sarvesh Jain ) Mr.S.M.Mehta, Sr.Advocate with ) Anil Mehta and Nitin Jain )- for respondents. Mr.N.S.Vashistha and ) Mr.Vishal Singh )-for respondent no.6. ORDER BY THE COURT (Per Hon'ble Shri Arun Mishra, CJ)
In the writ petition, the petitioner has prayed to declare the Rajasthan Sports (Registration, Recognition and Regulation of Associations) Ordinance, 2004, which was later-on substituted by the Rajasthan Sports (Registration, Recognition and Regulation of Associations) Act, 2005 as unconstitutional, void and ultra vires the Constitution. Prayer has also been made to restrain the State Government or the Registrar of the Cooperative Societies from interfering in the working of the Rajathan Cricket Association and also from enforcing the provisions of the Act of 2005.
At the outset, it may be mentioned that in the instant writ petition the original petitioners-Rajasthan Cricket Association (for short, 'the RCA') & Others had challenged the constitutional validity of the Rajasthan Sports Association (Registration, Recognition and Regulation) Ordinance, 2004 (hereinafter referred to as 'the said Ordinance of 2004') and sought directions for restraining the State Government or the Registrar of the Cooperative Societies for the State from interfering in the working of the petitioner-RCA and from enforcing the provisions of the said Ordinance of 2004. The Division Bench of this Court, after hearing the learned counsel for the parties, had dismissed the petition vide the order dated 20.12.2004. The said order came to be challenged by Shri Kishore Rungta, the then Secretary of the RCA by filing civil appeal being No.1206/2005 before the Supreme Court. During the pendency of the said appeal before the Supreme Court, the said Ordinance of 2004 came to be replaced by the Rajasthan Sports (Registration, Recognition and Regulation of Associations) Act, 2005 (hereinafter referred to as 'the said Act of 2005'), which received the assent of His Excellency the Governor of Rajasthan on 13.3.2005 and was published in the Official Gazette on 14.3.2005. In the meantime, the management and control of the RCA was also changed. The Apex Court, thereafter, disposed of the said civil appeal vide the order dated 20.1.2011. The Apex Court interalia passed the following order:-
xxx we are constrained to set aside the impugned judgment passed by the Division Bench of the High Court and remand the matter to the High Court for giving specific findings on the issues raised or may be canvassed by the learned counsel for the parties before the High Court.
During the pendency of this appeal, number of interlocutory Applications have been filed. For ensuring the expeditious disposal of the matter, we deem it appropriate to dispose of all those applications as not pressed, except applications for impleadment of Kamal Morarka and Tonk District Cricket Association with liberty to the parties to file any application for any interim relief, if it is so advised.
This appeal has been pending over five years. Apart from that, the issues raised in this appeal have far reaching implications. Therefore, we request the Hon'ble Chief Justice of the High Court to ensure that this appeal is disposed of at an early date, in any event, within six months from the date of communication of this order. Applications for impleadment of Kamal Morarka and Tonk District Cricket Association are allowed and these applicants are impleaded as respondent nos.6 and 7 respectively. We request the High Court to hear the appellant-Kishore Rungta and respondent nos.1 to 7 herein and pass appropriate orders, in accordance with law.
All questions of law raised are kept open.
The Civil Appeal is disposed of accordingly, leaving the parties to bear their respective costs.
In view of the said order passed by the Apex Court, the said appellant before the Apex Court Shri Kishore Rungta was permitted to pursue the present petition as the petitioner; and Shri Kamal Morarka and Tonk District Cricket Association were permitted to be impleaded as respondents No.6 and 7 respectively.
At this juncture, it is pertinent to note that since the Ordinance of 2004 was already replaced with certain modifications, by the Act of 2005, during the pendency of the proceedings before the Apex Court, an oral request was made by the learned Senior Counsel Mr.Paras Kuhad for the petitioner to treat the challenge in the petition as the challenge of the validity of the Act of 2005, in place of the Ordinance of 2004. The said prayer was accepted by the Court. Accordingly, the submissions were made by the respective learned counsels for the parties with regard to the validity of the Act of 2005, without being technical in the matter.
It is also pertinent to note that the State Government, in exercise of powers conferred by Section 31 of the said Ordinance of 2004 had made the Rules namely, Rajasthan Sports (Registration, Recognition and Regulation of Associations) Rules, 2004 (hereinafter referred to as the Rules of 2004). Reliance was placed on the said Rules during the course of arguments by the learned counsels for the parties, however, it appears that the said Rules of 2004 were framed under the Ordinance of 2004, which have already been replaced by the Act of 2005. Since consequences fell at the time when Ordinance of 2004 as well as Rules framed thereunder were in force, presently we have considered the issues involved accordingly.
I- Case of the Petitioner:-
It is the case of the petitioner that the RCA was constituted as an Association by a group of individuals in the year 1933 with the object of promoting the game of cricket in Rajasthan. RCA is affiliated to and is full member of the Board of Control for Cricket in India (for short the BCCI). RCA had 33 district cricket clubs as its members and in addition to that, RCA had 63 other individual members falling under different categories inducted in the period of last 70 years. The function of the RCA was governed by its own Memorandum and Rules and Regulations. The Rules specified the objects, categories of members, eligibility for membership, control over the rights to induct members including District Association as members, the powers of management committee, the mode of election thereto, the voting and contesting rights of the members, dispute resolution etc. The governance and functioning of RCA was to be decided by its members alone as per its constitution.
It is further case of the petitioner that vide Notification dated 18th August, 2004, the Governor of Rajasthan promulgated the Ordinance of 2004, later on, substituted by the Act of 2005. Aggrieved by the promulgation of Ordinance of 2004, which has been substituted by the Act of 2005, the writ petition has been pursued contending inter-alia that the provisions of the Act of 2005 are violative of Articles 14 and 19(1)(c) of the Constitution; the Act of 2005 infringes the fundamental right of the petitioner guaranteed under Article 19(1)(c) of the Constitution to form association; it imposes unreasonable restriction on the exercise of fundamental right conferred by Article 19 of the Constitution; Sections 6, 8, 20, 21, 22, 23 and 24 of the Act of 2005 are unconstitutional, illegal, void and violative of Articles 14, 19(1)(c) and 300A of the Constitution of India; Sections 21, 22, 24 and 26 of the Act of 2005 are unconstitutional, inasmuch as they empower the Registrar to disqualify the Sports Association, to impose unfair conditions and to take over the management of the Sports Association; the Ordinance of 2004 could not have been promulgated and enacted as no immediate circumstances existed for such promulgation of ordinance; the RCA has fundamental right under Article 19 (1)(c) to form association to manage its business and to continue as Association fulfilling its objects with persons of its choice; restrictions imposed by the Act of 2005 are arbitrary, unreasonable and illegal; Registrar has been given uncanalized, unguided and uncontrolled power to refuse registration under section 6, to call for records under Section 20, to make disaffiliation under Section 21, to make enquiry under Section 23, and to make disqualification under Section 24; the provisions of Section 8 are also ultra vires the Constitution as it imposes unreasonable restriction on the fundamental right of the petitioner and seeks to dictate the discretion of the Association in framing its bye laws; there may be some games which due to lack of infrastructure or involvement of heavy expenditure, are not capable of being provided to every section of society; Sections 9, 10, 12, 13, 14, 20, 21, 22, 23, 25 and 26 of the Act of 2005 have also been questioned on the ground that the provisions are harsh and unenforceable; the Act of 2005 has made serious inroads on the rights vested to establish Association of choice and to administer them; the Act is colourable exercise of power by the State Government.
II- Stand of the State of Rajasthan:
In the return filed on behalf of the State of Rajasthan, it is contended that the petitioner had challenged the validity of the Ordinance of 2004 and not the Act of 2005, which was promulgated, thus, the petitioner did not come to this Court with clean hands; the Act of 2005 has been enacted under Entry 33 of List-II of Seventh Schedule of the Constitution of India; provisions of the Act of 2005 contain no restriction in the formation of any association; the Act of 2005 has been enacted to eradicate various mischiefs and to enable association to work in a scientific method so that the sports and games activities are developed at District and State level so as to develop and prepare young talent for National and International level competitions; the Act of 2005 is in consonance with the National Sports Policy, 2001, National Youth Policy 2003, the Constitution of Indian Olympic Association and various other material relating to development of physical fitness and sports filed collectively as Annex.R/2 to R/4 to the return; Article 51A(j) of the Constitution casts duty on every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation rises to higher levels of endeavour and achievements; sports and participation in sports activities help individual to develop character and it also offers important health benefits; sports is also emerging as a profession; sports event has its economics in sports tourism; State's performance in the national and international events was not upto mark; sports bodies are either not registered or are registered under the Rajasthan Societies Registration Act, 1958 (hereinafter referred to as the Act of 1958), which does not provide for effective regulatory mechanism; the Act of 2005 aimed at advancing, encouraging and promoting sports and games activities in the State of Rajasthan at State, District and lower level; the Act of 2005 intends to make Association to operate in a representative character and that sports units at all levels get equal opportunity of representation at District, State, National and International levels so as to achieve excellence in the field of sports; there is no discrimination; no restriction has been imposed to form association; provisions of the Act of 2005 cannot be said to be illegal or arbitrary in any manner.
Respondent no.7 has also filed reply in which it is contended that the petition is not maintainable; original ordinance has changed its character; there is legislative competence of the State to enact the Act of 2005; right under Article 19(1)(c) of the Constitution does not carry with it a concomitant right that unions formed shall achieve their object such that any interference to any such law would be unconstitutional unless it could be justified by Article 19(4); there is no take over of property of any association by the State; right to form association has not been taken away; provisions of the Act of 2005 cannot be said to be ultra vires the Constitution; earlier the management of the RCA was in the hand of the petitioner's family and after promulgation of the Ordinance of 2004 substituted by the Act of 2005, different persons were elected and details of officer bearers including President, Secretary and Treasurer elected from 1987 till 2002-03 have been mentioned in the reply; details of expenses incurred on cricket activities by RCA before 2004 and after 2004 till 2009-10 have also been given which show that expenses have been enhanced after coming into force of the Act of 2005; number of international matches and tournaments organized in Rajasthan before 2004 were limited and after 2004, the number has gone up very high and comparative details have been given in the reply; Rajasthan has won the Ranji Trophy for the first time in 2010-11 in a period of 77 years; Rajasthan under 16 and under 14 teams have recorded unprecedented success in the last two years which indicates healthy state-of-affairs of Rajasthan cricket; nepotism has come to an end due to provisions contained in the Act of 2005.
III- Submissions on behalf of petitioner:
S/Shri Paras Kuhad, Senior Advocate, with Sunil Nath, Vivek Dangi , Priyanka Nahata & Vishal Sharma appearing on behalf of the petitioner has submitted that there is violation of the provisions contained in Article 19(1)(c) of the Constitution of India; Act of 2005 takes away the fundamental right guaranteed by Article 19(1)(c); it puts restrictions on the exercise of right conferred under Article 19(1)(c); State could have acted within the parameter of Article 19(4) and none of the grounds envisaged under Article 19(4) is available; law enacted by the State is saved by the provisions of Article 19(4) and considering the ambit and sweep of fundamental right guaranteed under Article 19(1)(c), right to carry on objectives is part and parcel to right to form association, which has been taken away by the Act of 2005; Act of 2005 constitutes restrictions on exercise of right under Article 19(1)(c) and these restrictions could not have been imposed within Article 19(4) and could not be said to be reasonable restrictions.
It was further submitted on behalf of the petitioner that as per Section 3 of the Act of 2005, every Sports Association other than a Primary Sports Body is required to be registered under the provisions of the Act of 2005. Section 5 provides that all State Level Associations enlisted in Schedule B and their affiliated District Level Sports Associations shall apply for registration of the Association under the Act of 2005 with the documents specified in Schedule A. Similarly, Section 25(2) of the Act of 2005 provides that no sports association shall be entitled to use the description 'Rajasthan' or use the name of a District as part of its name or undertake any Sports activity which results in representing the State of Rajasthan or a District, as an affiliated unit of any National Federation, Board or Association purporting to represent India, or in any other manner whatsoever, unless such Sports Association is registered as a State Level Sports' Association or a District Level Sports Association under the Act of 2005. Section 26(1) provides that an Association undertaking games or sports activities at State or District level and is already registered under the Act of 1958 shall be entitled to opt to be registered and recognized under the Act of 2005 and to receive a certificate thereof on application to the Registrar and within 30 days from the date of commencement of the Act of 2005 shall amend its bye-laws to bring it in conformity with the Act of 2005 & sub-section (2) of Section 26 further provides that if no such application is made within thirty days of the commencement of the Act of 2005 or if the bye-laws of the Sports Association covered under sub-section (1) are not brought in conformity with the provisions of the Act of 2005 at the expiry of thirty days from the commencement of the Act, the Executive Body of the Sports Association shall be superseded by the Registrar and an Ad hoc Executive Committee shall be appointed to manage the affairs of the Sports Association.
It is further submitted on behalf of the petitioner that there is obligation under the Act of 2005 read with Rule 3(3) of the Rules of 2004 framed under the Ordinance of 2004 substituted by the Act of 2005, which provides that Sports Associations and District Associations can be named only in the manner set out in Rule 3(1) and 3(2); all Sports Associations operating at the level of State or District have to necessarily use as part of the name, the description 'Rajasthan' or that of the concerned District and by virtue of Rule 3(3) they were prohibited from adopting any name which did not carry the description Rajasthan/concerned District, and Section 25 (2) in turn states that whichever association uses such name shall have to necessarily register itself under the Act of 2005. Thus, any Sports Association undertaking the sports activities is under obligation to apply for registration dependent upon such activity resulting and representing the State of Rajasthan, compulsory coverage becomes absolute; every Sports Association operating at the level of District of State Headquarters is bound to organize tournaments between players of different Districts; it is impossible to conceive of an activity of a Sports Association which will not fall within Section 25(2) of the Act of 2005; the RCA was mentioned at item no.13 of the Schedule B and thus, it was statutorily obliged to apply for registration; the petitioner has also challenged section 3 of the Act of 2005 which provides that Sports Association shall have to be registered under the Act of 2005.
It is further submitted by counsel appearing on behalf of the petitioner that Section 26(2) provides for consequences of not applying for registration or amending the bye laws in terms of the Act of 2005 by providing the punitive consequences of compulsory supersession of the management committee and re-election according to the provisions of the Act of 2005; Section 9 of the Act of 2005 also statutorily limits the right of membership in relation to State Level Sports Association, District Level Sports Association and the Primary Sports Bodies respectively; it thereby destroyed the associational rights of all the other six categories of members of RCA to remain as members of RCA; RCA being State Level Sports Association was covered by Section 9(1) of the Act of 2005 and thus, all individual members stood divested of the right to membership by operation of section 9(1) of the Act of 2005; even in relation to existing District Level Sports Association, Section 9(1) of the Act of 2005 states that only those District Level Sports Association which are registered under the Act of 2005 shall be member of the State level Sports Association; the effect of the Act of 2005 is that it divests all existing members of the right of membership and it allows the State to select the primary bodies that are to become members of the District Bodies and the District Bodies that are to become members of the State bodies; the Act of 2005 not only destroys the composition of the existing associations, but it substitutes that with the composition of its own choice and a composition that is at all times controlled by the State; sections 13 to 15 determine the eligibility for contesting elections and right to vote; sections 21 and 24 of the Act of 2005 confer the power of dis-affiliation and disqualification of Sports Associations on the functionaries of the State; the Act of 2005 has the effect of infringing associational rights; consequence of amendment determines the right to form association which is not limited to the initial stage of forming an association, but also entails the right to continue to be associated with only those whom they voluntarily admit. Article 19(1)(c) covers right to form association, right to protect its composition, right to preserve its constitution and right to manage the functioning of the Association.
Shri Paras Kuhad, learned Senior Counsel has relied upon various decisions, which will be referred to later on, with reference to interpretation of fundamental rights, peripheral and concomitant rights, direct and inevitable effect in the case of violation of fundamental rights, penumbra of rights, freedom of association etc. IV- Submissions on behalf of the State of Rajasthan:
Mr.S.M.Mehta, Sr.Advocate with Mr.Anil Mehta and Mr.Nitin Jain, Shri G.S.Bapna, Sr.Advocate and Advocate General with Mr.V.Garg & Mr.Sarvesh Jain appearing on behalf of the respondents have submitted that it is not appropriate for the petitioner to assail the validity of the Act of 2005 in individual capacity as he has fought election under the provisions of the Act of 2005 and even represented the District Sports Association; statement of objects and reasons of the Act of 2005 have been relied upon; regulatory provisions have been provided under the Act of 2005; right to form association for the purposes of encouraging sports in the State is not at all stifled or fettered by the impugned legislation; right under Article 19(1)(c) of the Constitution has not been curtailed by the Act of 2005; any person can become member of the private association subject to certain qualifications and that primary body need not be registered; every Sports Association i.e. the District Level Sports Association and the State Level Sports Association must have bye-laws and framing of its own constitution which is in consonance with the provisions of the Act of 2005; section 8 enjoins that every sports Association shall have a fair and transparent manner of elections and the elections would be conducted by independent election officer; Rajasthan Olympic Association has been given deemed status of State Level Sports Association to represent the State of Rajasthan in the games; Chapter III of the Act of 2005 enumerates the elections and the voting rights of various cricket associations; Chapter IV determines the settlement of disputes; Chapter V deals with accounts, audit and inspection; Chapter VI deals with disqualification and disaffiliation and has to be read in conjunction with the provisions of Section 26; there are certain obligations which are enjoined upon the sports associations in Chapter VIII and failure to comply with those obligations may incur disqualification under section 21 of the Act of 2005; obligations enumerated in sections 28 and 29 are for encouraging the sports in the entire State of Rajasthan; if various associations were under the total control of private initiative, the State was helpless with regard to activities carried out by those associations and thereby jeopardizing the overall growth of the sports in the State.
It was further submitted on behalf of the State of Rajasthan and respondents that State has not appointed any one of its nominees but has created a legal structure in which the elected persons from the grass-root level till the State level could be effectively represented by a democratically elected method in consonance with the principles of federalism i.e. all the district representatives are at the State level, which in turn would represent the State at the National and International level; right to freedom of association is a fundamental right but the right to fulfil the objectives is a concomitant right and therefore, cannot be treated as an integral part of the fundamental right. The learned counsel appearing on behalf of the respondents have also relied upon various decisions, which will be referred later on.
Mr.N.S.Vashistha and Mr.Vishal Singh appearing on behalf of the respondent no.6 have supported the submissions made on behalf of the petitioner.
Before examining the rival submissions of the parties, it is appropriate to consider the statement of objects and reasons and various provisions of the Act of 2005.
V- Scheme of the Act of 2005:
(a) Aims and objects :
The statement of objects and reasons of the Act of 2005 is quoted below:-
Article 51A (j) of the Constitution of India casts duty on every citizen of India to strive towards excellence in all spheres of individual and collective activity, so that the nation rises to higher levels of endeavour and achievements. Sports and participation in sports activities help individual develop character, discipline, confidence, self esteem, positive self-image, sense of well-being and also offers important health benefits. Sports also teach how to work as a part of a team, how to manage success and disappointments, how to respect others and develop social skill and competence. Sports are also emerging as a profession and a sports event has its economics in sports tourism.
For the development of sports in the State of Rajasthan the existing Sports Associations and sports bodies play a significant role. However, the State's performance in the national and international events has not been upto the mark. The sports bodies are either not registered or are registered under the Rajasthan Societies Registration Act, 1958 ( Act No.28 of 1958) which does not provide for effective regulatory mechanism. Even though Rajasthan State Sports Council is the premier body of the State, its role is limited. In the absence of detailed date of activities of the associations or bodies, no accountability can be fixed for performance nor could they be effectively encouraged for the growth of sports and games in the State.
The Bill is aimed at advancing, encouraging and promoting sports and games activities in the State, at State, District and lower level. By regulating the State seeks to creating democratic structure, which would encourage development of sports persons, development of athletic fitness and help bring young talent in sports and create model behaviour to meet National and International challenges and standards. It would also create a healthy environment of functioning for the Sports Associations by defining their roles, obligations and relationships with a degree of precision, thus helping the Sports Associations, nurture, develop and prepare young talent for National and International competitions in their quest for winning laurels and medals for Rajasthan.
Large number of Sports Associations are using the expression Rajasthan and are holding out to be representing Rajasthan, its Districts or a part of Rajasthan without factually acting in representative capacity which is in violation of the Olympic Charter and the National Sports Policy, 2001, which, inter alia, provides for making the functioning of the Federations and Associations transparent, professional and accountable. This has necessitated the regulation of such bodies to ensure that they are operating in a representative character and that sports units at all levels get equal opportunity of representation at District, State, National and International levels, so as to achieve excellence in the field of sports.
The Bill confers on Sports Associations legal right to represent Rajasthan and meet the aspirations of the public, discourage nepotism, create a deeper and wider network for selection process, develop a scientific procedure for identifying and promoting natural sports persons. The Bill also seeks to amicably resolve disputes arising within and between various Sports Associations relating to affiliation and elections which end up in litigation in courts and divert the attention of Sports persons from achieving excellence.
Since the Rajasthan Legislative Assembly was not in session and the circumstances existed which rendered it necessary for the Governor of Rajsthan to take immediate action, he, therefore, promulgated the Rajasthan Sports (Registration, Recognition and Regulation of Associations) Ordinance, 2004 (Ordinance No.6 of 2004) on 18th August, 2003 which was published in Rajasthan Gazette, Part IV (B) Extraordinary, dated 18th August, 2004.
Since then it was felt that certain provisions needed modifications. Accordingly certain minor modifications have been made in sections 2, 5, 6, 9, 12, 14, 15, 22, 26, 35 and Schedule A and C. The Bill seeks to replace the aforesaid Ordinance with above modifications.
Hence the Bill.
It is settled rule of construction that all the constituent parts of a Statute, the Title and the Preamble are the aides to the construction of a Statute, which throw light on the intent and design of the legislation and indicate the scope and purpose of the legislation itself. It is also a Cardinal Rule of Interpretation that the language used by the legislature is the true repository of the legislative intent, and the words and phrases coming in an Statute are to be taken not in isolated or detached manner, de-associated from the context, but are to be read together and construed in the light of the purpose and object of the Act itself. In a recent decision in the case of Smt.Rasila S.Mehta Vs. Custodian, Nariman Bhavan, Mumbai, AIR 2011 SC 2122, it has been observed as under:-
12. It is settled law that the objects and reasons of the Act are to be taken into consideration in interpreting the provisions of the statute. It is incumbent on the court to strive and interpret the statute as to protect and advance the object and purpose of the enactment. Any narrow or technical interpretation of the provisions would defect the legislative policy. The Court must, therefore, keep the legislative policy in mind while applying the provisions of the Act to the facts of the case. It is a cardinal principle of construction of statute or the statutory rule that efforts should be made in construing the different provisions, so that each provision may have effective meaning and implementation and in the event of any conflict, a harmonious construction should be given. It is also settled law that literal meaning of the statute must be adhered to when there is no absurdity in ascertaining the legislative intendment and for that purpose broad features of the Act can be looked into. The main function of the Court is to merely interpret the section and in doing so it cannot re-write or re-design the section.
It has also been held by the Apex Court in a recent case of Mohd. Saud and Anr. v. Dr. (Maj.) Shaikh Mahfooz and Ors., AIR 2011 SC 485 to the effect that to resolve conflict appearing in the statute due to the bad drafting, the modern method of purposive interpretation should be adopted.
Keeping in mind the above-stated legal position, let us examine the scheme of the Act.
The Primary Sports Body has been defined in Section 2(o) of the Act of 2005 which means a sports unit operating in a revenue district which is neither a State Level Sports Association nor a District Level Sports Association and is working at sub-division or tehsil or city or village level and is constituted by individuals and is affiliated to a District Level Sports Association. Following is the definition of Primary Sports Body contained in Section 2(o) of the Act of 2005:-
2. Definitions.-
(o) Primary Sports Body means a sports unit operating in a revenue district which is neither a State Level Sports Association nor a District Level Sports Association and is working at sub-division or tehsil or city or village level and is constituted by individuals and is affiliated to a District Level Sports Association.
The District Level Sports Association has been defined in Section 2(f) of the Act of 2005, same is quoted below:-
2. Definitions.-
(f) District Level Sports Association means a sports unit, which represents a Revenue District, in a particular game or sports and is duly affiliated to the concerned District Sports Council, State Level Sports Association and District Olympic Association and whose affiliating State Level Sports Association has applied for registration to the Registrar.
The State Level Sports Association has been defined in Section 2(v) of the Act of 2005, it reads as follows:-
2. Definitions.-
(v) State Level Sports Association means an elected representative body of District Level Sports Associations, for particular game or sports in the State which is duly affiliated to the Rajasthan State Sports Council and affiliated to the Rajasthan Olympic Association and being eligible under Schedule 'B', has applied for registration under this Act to the Registrar.
The Sports Association has been defined in Section 2(u) of the Act of 2005, same is quoted below:-
2. Definitions.-
(u) Sports Association means a State Level Sports Association, District Level Sports Association or a Primary Sports Body constituted to promote sports and games in the State.
The District Sports Council has been defined in Section 2(g) of the Act of 2005 to mean a Council operating in a Revenue District under the control of the Rajasthan State Sports Council.
The Rajasthan State Sports Council has been defined in Section 2(q) of the Act of 2005 to mean the Council registered under the Rajasthan Societies Registration Act, 1958 (Act No.28 of 1958) bearing Registration NO.93/Jaipur/69-70.
Section 3 of the Act of 2005 provides that every Sports Association other than a Primary Sports Body, is required to be registered under the provisions of the Act of 2005. Section 3 is quoted below:-
3. Compulsory registration.-Every Sports Association defined under this Act, other than a Primary Sports Body, is required to be registered under the provisions of this Act.
Section 5 of the Act of 2005 deals with the application for registration of Sports Associations. It is provided that a State Level Sports Association enlisted in Schedule 'B' and any other future State Level Sports Association for a game or sports not presently covered by Schedule 'B' and added to the Schedule 'B' under the provisions of the Act and is affiliated District Level Sports Associations shall apply for registration of the Association with complete details of the Executive Body and accompanied with the documents specified in Schedule 'A'. Section 5 is quoted below:-
5. Application for Registration of Sports Associations.-(1) A State Level Sports Association enlisted in Schedule B and any other future State Level Sports Association for a game or sports not presently covered by Schedule B and added to ScheduleB under the provisions of this Act and its affiliated District Level Sports Associations shall apply for registration of the Association, stating therein the name, address, area represented, game or sports represented by the Sports Association and with, complete details of the Executive Body and accompanied with the documents specified in Schedule A. (2) A District Level Sports Association may be permitted a time of upto nine months for making an application for registration after its affiliating State Level Sports Association has received the Certificate of Registration.
(3) Registration fee of rupees two hundred fifty or such other fee as may be re-determined and notified by the Government from time to time shall be chargeable for registration.
Section 6 of the Act of 2005 deals with the registration of Sports Associations. It provides that after the Registrar is satisfied that the proposed Sports Association complies with the provisions of the Act of 2005, he may, within thirty days from the date of receipt of application, register the Sports Association together with its bye-laws and issue a certificate thereof under his hand and seal. Section 6(2) provides that in case the Registrar finds that the requirement of Section 6(1) is not satisfied, he may, after giving a fifteen days' notice to the applicant and an opportunity of being heard, pass appropriate order. Section 6 is quoted below:-
6. Registration of Sports Associations.-(1) After the Registrar is satisfied that the proposed Sports Association complies with the provisions of this Act, he shall, within thirty days from the date of receipt of application, register the Sports Association together with its bye-laws and issue a certificate thereof under his hand and seal.
(2) If the Registrar finds that the requirement of sub-section (1) is not satisfied, he may, after giving a fifteen days notice to the applicant and an opportunity of being heard, pass appropriate order.
Section 7 of the Act of 2005 provides for framing of constitution of a Sports Association which shall consist of the following:-
(a) Part 'A' memorandum containing its aims and objectives and area of operation;
(b) Part 'B'- Bye-Laws.
It is apparent from Section 7 of the Act of 2005 that the Sports Association is free to frame its constitution, aims and objectives and area of operation. The Sports Association is also free to frame its bye-laws.
Section 8 of the Act of 2005 provides that every Sports Association which seeks registration under the Act of 2005 shall make provisions in its bye-laws for election of Executive Body of the Sports Association in a democratic manner in periodical elections; elections to be held atleast once in every four years; District Level Associations shall make provisions to abide by those decisions or directions of the concerned State Level Sports Association, which are in consonance with the provisions of the Act of 2005; provisions to encourage the sports and sports persons of every section of society without any discrimination. As per Section 8(2), every Sports Association shall incorporate a procedure for elections in its bye-law. Section 8(3) provides that every amendment in the bye-laws shall be passed by a Special Resolution and shall be approved and registered by the Registrar under the provisions of the Act of 2005. As per Section 8(4), if the Registrar is of the opinion that the proposed amendment is not in accordance with the provisions of the Act of 2005, he may return the proposed amendment for reconsideration and the Sports Association shall, thereafter, reconsider the proposed amendment and may re-submit fresh proposed amendments to the Registrar after bringing it in accordance with the provisions of the Act of 2005 and after meeting the objections made and thereafter, the Registrar shall either approve or disapprove the proposed amendment. Section 8 is quoted below:-
8. Bye-laws.- (1) Subject to the provisions of this Act, every Sports Association which seeks registration under this Act shall make, amongst other things, the following provisions in its bye-laws:-
(a) Executive Body of the Sports Association shall be elected in a democratic manner in periodical elections;
(b) elections of the Executive Body shall be held atleast once in every four years;
(c) District Level Associations shall make provisions to abide by those decisions or directions of the concerned State Level Sports Association, which are in consonance with the provisions of this Act;
(d) provisions to encourage the sports and sports persons of every section of society without any discrimination.
(2) Every Sports Association shall incorporate a procedure for elections in its bye-laws, which shall, among other provisions, comprise the following:-
(a) provision of an independent election officer;
(b) publication of a voters' list before issue of notice of elections;
(c) minimum twenty one days' notice for election, issued under the name and seal of the Secretary of the Association accompanied by the audited accounts for the previous year and valid voters' list;
(d) provision for receiving nominations at least three days in advance;
(e) provision for holding elections by Secret Ballot.
(3) Subject to the provisions of sub-section (4), every amendment in the bye-laws shall be pased by a Special Resolution and shall be approved and registered by the Registrar under the provisions of this Act.
(4) If the Registrar is of the opinion that the proposed amendment is not in accordance with the provisions of this Act, he may return the proposed amendment along with the reasons to the Sports Association for reconsidering the same. The Sports Association shall, thereafter, reconsider the proposed amendment and may re-submit fresh proposed amendments to the Registrar after bringing it in accordance with the provisions of this Act and after meeting the objections made. Thereafter, the Registrar shall either approve or disapprove the proposed amendment and communicate his order with reasons to the concerned Sports Association.
It is apparent from Section 8 that it ensures that Executive Body of the Sports Association shall be elected in a democratic manner and elections shall be held atleast once in every four years. The provisions will encourage sports activities without any restriction. It also contains the provision of an independent election officer; provision for receiving nominations atleast three days in advance and provision for holding elections by secret ballot. The Registrar is only to ensure that bye laws are made in accordance with the provisions of the Act of 2005.
Section 9 of the Act of 2005 provides that the District Level Sports Association shall be a member of the concerned State Level Sports Association; a Primary Sports Body shall be a member of the concerned District Level Sports Association. The Sports Association may prescribe conditions and procedure of granting membership in its bye-laws. Section 9 is quoted below:-
9. Membership of a Sports Association.- (1) A District Level Sports Association registered under this Act, shall be a member of the concerned State Level Sports Association.
(2) A Primary Sports Body shall be a member of the concerned District Level Sports Association.
(3) Subject to the provisions of this Act, any addition, deletion or change in membership can be made only at a General Body meeting of a Sports Association.
(4) A sports Association may prescribe conditions and procedure of granting membership in its bye-laws.
The Section 9 of the Act of 2005 ensures that every District is represented at State Level Sports Association. There can be as many Primary Sports Body and there is no restriction on number of Primary Sports Body. Any addition or deletion or change in the membership can be made only at a General Body meeting of the Sports Association. The Sports Association may also prescribe conditions and procedure of granting membership in its bye laws. The State Government has not taken away the power of the Sports Association to grant membership.
Section 10 of the Act of 2005 provides minimum requirement of constituting a Sports Association. As per Section 10(1), the State Level Sports Association shall be constituted by a minimum of six District Level Sports Associations and as per Section 10(2) the District Level Sports Association shall be constituted by a minimum of three Primary Sports Bodies and Section 10(3) provides that the Primary Sports Body shall be constituted by a minimum of seven individuals. Section 10 is quoted below:-
10. Minimum requirement of constituting a Sports Association.-(1) A State Level Sports Association shall be constituted by a minimum of six District Level Sports Associations;
(2) A District Level Sports Association shall be constituted by a minimum of three Primary Sports Bodies.
(3) A Primary Sports Body shall be constituted by a minimum of seven individuals.
The prescription of minimum requirement of number of associations, bodies and individuals appears to be aimed-at to promote the broad base sports activities in the State.
Section 11 of the Act of 2005 provides for composition of the Executive Body and minimum of 5 and maximum of 21 members have been prescribed. After prescribing such minimum and maximum number of members of Executive Body; right remained with the Sports Association to elect Executive Body without interference of the State.
Section 12 of the Act of 2005 provides that the Rajasthan Olympic Association shall be given affiliation by the Rajasthan State Sports Council and shall be considered as a State Level Sports Association and shall give affiliation to the State Level Sports Associations registered under the Act of 2005 for the games or sports recognized for participation in the Olympic Games, Asian Games or Commonwealth Games, and for the purposes of representing the State of Rajasthan in the National Games or any other events conducted by the Indian Olympic Association.
Section 13 of the Act of 2005 provides for election of the Executive Body of a State Level Sports Association to be held in presence of observer of the Rajasthan State Sports Council. The election of the Executive Body of the District Level Sports Association shall be held in the presence of observer of its State Level Sports Association and observer of the District Sports Council. Section 13 is quoted below:-
13. Elections.- (1) Election of the Executive Body of a State Level Sports Association shall be held in the presence of an Observer of the Rajasthan State Sports Council. Election of the Executive Body of a District Level Sports Association shall be held in the presence of Observer of its State Level Sports Association and Observer of the District Sports Council.
(2) On conclusion of the election of the Executive Body of a Sports Association the election officer shall issue a certificate duly countersigned by the Observer(s) giving the names and address of the elected members. On issuance of such certificate the elected Executive Body shall take charge of the Sports Association. The election officer shall send the copies of such certificate to the Registrar and the Rajasthan State Sports Council.
The provision of Section 13 appears to have been enacted in order to ensure fair election. There is no interference by the higher sports body in the affairs of concerned Association.
Section 14 deals with voting right. It reads as follows:-
14. Voting right.-(1) Every member of a Primary Sports Body shall have the right to cast one vote in the election of its Executive Body.
(2) Each affiliated Primary Sports Body shall have the right to cast one vote on behalf of that Primary Sports Body for the election of the Executive Body of a District Level Sports Association.
(3) Each affiliated District Level Sports Association shall have the right to cast one vote on behalf of that District Level Sports Association for the election of the Executive Body of a State Level Sports Association.
(4) No individual member shall have a right to cast vote for the election of the Executive Body of a District Level Sports Association of a State Level Sports Association.
(5) Procedure for determining the authorization of persons for the purpose of casting a vote on behalf of a Sports Association may be as prescribed in the Bye-laws of a Sports Association.
Voting right is not a fundamental right, but is a statutory right. It has been otherwise dealt with in Section 14 of the Act of 2005, which provides that every member of a Primary Sports Body shall have the right to cast one vote in the election of its Executive Body. As per Section 14(2), each affiliated Primary Sports Body shall have the right to cast one vote on behalf of that Primary Sports Body for the election of the Executive Body of a District Level Sports Association. As per Section 14(3), each affiliated District Level Sports Association shall have the right to caste one vote on behalf of that District Level Sports Association for the election of the Executive Body of a State Level Sports Association. As per Section 14(4), no individual member shall have a right to cast vote for the election of the Executive Body of a District Level Sports Association or a State Level Sports Association.
The provisions contained in Section 14(4) shall not affect the cast of vote for the election of the Executive Body of a District Level Sports Association or State Level Sports Association; it cannot be said to abridge any fundamental right as right to vote is not a fundamental right as held by the Apex Court. In Supreme Court Bar Association V/s B.D.Kaushik ((2011(13) SCC 774), infringement/curtailment of right to vote was alleged and it was held that right to vote is not an absolute right; right to vote or to contest election is neither a fundamental right nor a common law right, but is purely a statutory right governed by statute/rules/regulations; such right can always be restricted or abridged, if statute/ rules/regulations prescribe so. Whether right to carry on objective of an association is a fundamental right, would be discussed later on.
Section 15 of the Act of 2005 deals with eligibility for contesting elections. Section 15(1) provides that all individual members are eligible to contest the elections of a Primary Sports Body; as per Section 15(2), elected officer bearers of all affiliated Primary Sports Bodies are eligible to contest the elections of a District Level Sports Association; Section 15(3) provides that elected office bearers of all affiliated District Level Sports Associations are eligible to contest the elections of a State Level Sports Association; and Section 15(4) provides that any one contesting election must possess the qualifications prescribed in Schedule 'C' of the Act of 2005. Schedule-'C' provides that he/ she shall be a citizen of India; he/she should possess any one of the qualifications within the area of operation of the concerned Sports Association, namely, (a) has been born there; (b) is ordinarily resident there; (c) is working there; and (d) possessed property there; he/she has not been convicted in any criminal case and he/she has not been declared insolvent. Section 15 alongwith Schedule C to the Act of 2005 is quoted below:-
15. Eligibility of contesting elections.-(1) All individual members are eligible to contest the elections of a Primary Sports Body.
(2) Elected Office Bearers of all affiliated Primary Sports Bodies are eligible to contest the elections of a District Level Sports Association.
(3) Elected Office Bearers of all affiliated District Level Sports Associations are eligible to contest the elections of a State Level Sports Association.
(4) Anyone contesting an election must possess the qualifications prescribed in Schedule 'C' of this Act on the date of notification of the elections.
SCHEDULE 'C' (See sec.15) Qualifications for contesting elections and holding a post in the Executive Body of a Sports Association.
1. He/She shall be a citizen of India.
2. He/She should possess any one of the qualifications listed below within the area of operation of the concerned Sports Association.-
(a) has been born there,
(b) is ordinarily resident there,
(c) is working there,
(d) possesses property there.
3. He/She has not been convicted in any criminal case
4. He/She has not been declared insolvent.
Section 16 of the Act of 2005 provides for settlement of disputes through conciliation and arbitration.
Sections 17 to 20 of the Act of 2005 deal with accounts, audit, returns and power to call for records and inspection.
Disaffiliation, inquiry and disqualification have been dealt with in Chapter VI of the Act of 2005. Section 21 provides for disaffiliation. The State Level Sports Association has been given power to disaffiliate any District Level Sports Association which has not fulfilled any of the obligations laid down in the Chapter VIII of the Act of 2005 for two years in succession and inform the Registrar, who may take appropriate action under section 24. Section 21(2) provides that the Rajasthan State Sports Council may after giving due hearing, disaffiliate any State Level Sports Association which has not fulfilled any of the obligations laid down in the Chapter VIII of the Act of 2005 for two years in succession and inform the Registrar, who may take appropriate action under section 24. Section 21 is quoted below:-
21. Disaffiliation.- (1) A State Level Sports Association may after giving due hearing, disaffiliate any District Level Sports Association which has not fulfilled any of the obligations laid down in the Chapter VIII of this Act for two years in succession and inform the Registrar, who may take appropriate action under section 24.
(2) The Rajasthan State Sports Council may after giving due hearing, disaffiliate any State Level Sports Association which has not fulfilled any of the obligations laid down in the Chapter VIII of this Act for two years in succession and inform the Registrar, who may take appropriate action under section 24.
The grounds of disqualification have been provided in Section 22 of the Act of 2005; Section 22(1) provides that the Sports Association shall be liable to action (a) if it fails to maintain accounts and submit the same under section 19 or fails to produce the same when called for inspection; (b) if it fails to hold elections in accordance with its bye-laws, or as the case may be, when enjoined by the provisions of Chapter VII; (c) if it fails to carry out its obligations under Chapter VIII; (d) if it or any of its Office Bearers or any other member of the Executive Body misappropriates the funds for his personal gains or mismanages the affairs of the Sports Association to give undue benefit to any other person; and (e) if it is disqualified under section 21. As per Section 22(2), the State Level Sports Association may after giving opportunity of being heard, recommend to the Registrar that a District Level Sport Association affiliated to it may be disqualified if it does not follow the directions of the State Level Sports Association in the matter of conducting tournaments and flouts its regulation; does not pay the affiliation fee; and otherwise violates the provisions of its own registered bye-laws. Section 22 is quoted below:-
22. Grounds for Disqualification.-(1) A Sports Association shall be liable to action on any of the following grounds:-
(a) if the Sports Association fails to maintain accounts and submit the same under section 19 or fails to produce the same when called for inspection;
(b) if the Sports Association fails to hold elections in accordance with its bye-laws, or as the case may be, when enjoined by the provisions of Chapter VII,
(c) if the Sports Association fails to carry out its obligations under Chapter VIII;
(d) if the Sports Association or any of its Office Bearers or any other member of the Executive Body misappropriates the funds for his personal gains or mismanages the affairs of the Sports Association to give undue benefit to any other person;
(e) if the Sports Association is disqualified under section 21.
(2) A State Level Sports Association may after giving opportunity of being heard, recommend to the Registrar that a District Level Sports Association affiliated to it may be disqualified if it-
(a) does not follow the directions of the State Level Sports Association in the matter of conducting tournaments and flouts its regulation;
(b) does not pay the affiliation fee;
(c) otherwise violates the provisions of its own registered bye-laws.
Section 23 of the Act of 2005 provides for enquiry to be held by the Registrar on the request of the State Level Sports Association or on the request of not less than one tenth of the total members of the Sports Association or on his own motion. Section 23(2) empowers the Registrar to inspect records, direct production and take copy of any document of the concerned Sports Association for the purpose of the enquiry.
Section 24 of the Act of 2005 deals with disqualification. It provides that after holding an enquiry the Registrar, after giving an opportunity of being heard to the affected Sports Association, may appoint an Adhoc Executive Committee and cause to hold fresh elections of the Executive Body within three months and in the case of misappropriation of funds, take action in accordance with law. As per Section 24(2), a person disqualified under Section 24(1) cannot contest the elections of any Sports Association for a period of six years from the date of such disqualification. Section 24 is quoted below:-
24. Disqualification.-(1) After holding an inquiry the Registrar, after giving an opportunity of being heard to the affected Sports Association, may-
(a) appoint an Ad-hoc Executive Committee and cause to hold fresh elections of the Executive Body within three months;
(b) in the case of misappropriation of funds, take action in accordance with law.
(2) No existing Office Bearer of a Sports Association which is disqualified under sub-sec.(1) shall be permitted to contest elections of any Sports Association for a period of six years from the date of such disqualification.
Section 25 of the Act of 2005 contains the provisions with respect to prohibition to represent or to use the name of the State and Districts. Section 25(1) provides that no person or group of persons either individually or collectively shall represent or be allowed to represent the State of Rajasthan in any games or sports without being authorized by the State Level Sports Association. Section 25(2) provides that no Sports Association shall be entitled to use the description Rajasthan or use the name of a District as part of its name or undertake any Sports activity which results in representing the State of Rajasthan or a District, as an affiliated unit of any National Federation, Board or Association purporting to represent India, or in any other manner whatsoever, unless such Sports Association is registered as a State Level Sports Association or a District Level Sports Association under the Act of 2005. Section 25(3) makes the contravention of provisions of Sections 25(1) & 25(2) punishable with imprisonment for a term not exceeding six months or with fine or with both. Section 25 is quoted below:-
25. Prohibition to represent or to use the name of the State and Districts.-(1) No person or group of persons, either individually or collectively shall represent or be allowed to represent the State of Rajasthan in any games or sports without being authorized by a State Level Sports Association.
(2) No Sports Association shall be entitled to use the description 'Rajasthan' or use the name of a District as a part of its name or undertake any Sports activity which results in representing the State of Rajasthan or a District, as an affiliated unit of any National Federation, Board or Association purporting to represent India or in any other manner whatsoever, unless such Sports Association is registered as a State Level Sports' Association or a District Level Sports Association under this Act.
(3) Whenever contravenes the provisions of sub sections (1) and (2) above, shall on conviction, be punishable with imprisonment for a term not exceeding six months or with fine or with both.
(4) No court shall take cognizance of any offence under this section, except upon complaint made in writing by the Registrar or any officer authorized by him.
(5) The Registrar may, for the reasons recorded in writing, compound any offence punishable under this section. On composition of any offence under this section, no proceedings shall be taken or continued in respect of such offence.
Chapter-VII containing Sections 26 and 27 of the Act of 2005 deals with transitional provisions. Section 26 deals with the recognition. The provision contains non obstante clause and prevails over other provisions made in the Act of 2005. Section 26(1) provides that an Association undertaking games or sports activities at State or District level and is already registered under Act of 1958 shall be entitled to opt to be registered and recognized under the Act of 2005 and to receive a certificate thereof on application to the Registrar and within thirty days from the date of commencement of the Act of 2005 shall amend its bye-laws to bring it in conformity with the provisions of the Act of 2005 to the satisfaction of the Registrar and submit all the documents specified in Schedule 'A' of the Act of 2005. Thus, option is given to the Association undertaking games or sports activities at State or District level and already registered under the Act of 1958 to seek registration or recognition under the Act of 2005. In case option is exercised to be registered or recognized under the Act of 2005, the Sports Association is required to make application to the Registrar to receive certificate thereof and to amend within 30 days from the date of commencement of the Act of 2005 the bye-laws to bring it in conformity with the provisions of the Act of 2005 to the satisfaction of the Registrar.
Section 26(2) further provides that in case option is exercised by the Association to register under the Act of 2005 and no such application is made within 30 days of the commencement of the Act of 2005 and the bye-laws are not brought in conformity with the provisions of the Act of 2005 at the expiry of 30 days from the commencement of the Act of 2005, the Executive Body of the Sports Association shall be superseded by the Registrar and an Ad hoc Executive Committee shall be appointed to manage the affairs of the Sports Association. However, this exigency arises only when option is exercised by the Association to get it registered under the Act of 2005. In case no registration or recognition is sought under the Act of 2005, such exigency does not arise. If the Sports Association exercises option to be registered or recognized under the Act of 2005 and seeks certificate thereof, only in that case, in the event of failure to amend its bye-laws within 30 days from the date of commencement of the Act of 2005 so as to bring it in conformity with the provisions of the Act of 2005, supersession takes place and not otherwise and on such supersession Ad hoc Executive Committee shall be Constituted from amongst members of such association entitled to be elected. Thereafter, the Ad hoc Executive Committee shall call an extraordinary general meeting and get amended bye-laws approved within thirty days of taking charge, apply for registration under the provisions of the Act of 2005 and then proceed to conduct fresh elections. After the amendment in bye-laws, fresh elections shall be held within 30 days of such amendment, as provided in Section 26(3), in the cases where (a) such amendment has been made after superseding the earlier elected Executive Body and earlier elected Executive Body has been elected by a voting collegiums which comprised members other than those provided under the Act of 2005. Section 26(4) provides manner of determination of officer bearers of the Executive Bodies of various State Level Sports Associations and District Level Sports Associations for the purpose of conducting any fresh elections under Section 26(3).
Section 26 of the Act of 2005 is quoted below:-
26. Recognition.- (1) Notwithstanding anything contained in this Act, an Association undertaking games or sports activities at State or District level and is already registered under the Rajasthan Societies Registration Act 1958 (Act No.28 of 1958) shall be entitled to opt to be registered and recognized under this Act and to receive a certificate thereof on application to the Registrar and within thirty days from the date of commencement of this Act shall amend its bye laws to bring it in conformity with the provisions of this Act to the satisfaction of the Registrar and submit all the documents specified in Schedule 'A' of this Act.
(2) If no such application is made within thirty days of the commencement of this Act or if the bye laws of the Sports Association covered under sub section (1) are not brought in conformity with the provisions of this Act at the expiry of thirty days from the commencement of this Act, the Executive Body of the Sports Association shall be superseded by the Registrar and an Ad hoc Executive committee shall be appointed to manage the affairs of the Sport Association. Such an Ad hoc Executive Committee shall call an Extraordinary General Meeting and get amended bye-laws approved within thirty days of taking charge, apply for registration under the provisions of this Act and then proceed to conduct fresh elections.
(3) After the amendment in bye-laws, fresh elections shall be held within thirty days of such amendment in the cases where.-
(a) such an amendment has been made after superseding the earlier elected Executive Body;
(b) earlier elected Executive Body has been elected by a voting collegiums which comprised members other than those provided under this Act;
Provided that the voting collegiums and eligibility of elected persons for contesting elections of their affiliating Associations shall be determined on the basis of sub-section (4).
(4) Notwithstanding anything contained in this Act, at the commencement of this Act, the elected Office Bearers of the Executive Bodies of various State Level Sports Associations and District Level Sports Associations shall be determined in the following manner for the purpose of conducting any fresh elections under sub-section (3):-
(a) for the State Level Sports Associations listed in Schedule 'B of this Act, on the basis of the returns filed by the affiliated State Level Sports Associations with the Rajasthan State Sports Council and the record available with the Rajasthan State Sports Council either based on such returns or on the basis of records of the relevant District Sports Council on the date of commencement of this Act;
(b) for the District Level Sports Associations, primarily on the basis of returns filed by the affiliated State Level Sports Associations with the Rajasthan State Sports Council and, if such returns are not available, on the bias of record of Affiliation available with the District Sports Council on the date of commencement of this Act.
(5) Notwithstanding anything contained in this Act, the transition of the District Level Sports Associations affiliated to a State Level Sports Association covered under this chapter and themselves not covered under this chapter may be allowed to be completed upto nine months of the registration certificate being granted to the concerned State Level Sports Association.
Section 27 of the Act of 2005 also contains non-obstante clause. It provides that the registration of all the Sports Associations which are registered under the Act of 1958 and have opted for registration and recognition under section 26 shall cease to exist from the date of such option. This contemplation is based on the option of the concerned Association existing on the date of the commencement of the Act of 2005 for registration and recognition under section 26 of the Act of 2005. Section 27 is quoted below:-
27. Cessation of registration under Rajasthan Act No.28 of 1958.- (1) Notwithstanding anything contained in any other law for the time being in force, the registration of all the Sports Associations which are registered under the Rajasthan Societies Registration Act, 1958 (Act No.28 of 1958) and have opted for registration and recognition under section 26 shall cease to exist from the date of such option.
(2) Notwithstanding the cession of registration of an Association under sub-section (1), all the claims accrued or liabilities incurred or proceedings initiated prior to the commencement of this Act shall be claimed, suffered or, as the case may be continued as if the registration has not ceased to exist.
(3) On cessation of registration of an Association under sub-section (1), the property of the association shall, subject to the bye laws of the association, continue to vest in such persons or body of person in whom the property vested immediately prior to the commencement of this Act.
Chapter VIII of the Act of 2005 deals with the rights and obligations of the Sports Association. Section 28 provides that every Sports Association shall have the right to participate in the sports activities conducted by the Sports Association to which it is affiliated, subject to the provisions in the bye-laws and Regulations of the affiliating Sports Association. Obligations of the State Level Sports Associations have been carved out in Section 29 to conduct at least one inter-district state championship for the seniors and juniors every year; to send its players and teams to participate at the National level; to arrange to provide round the year training and coaching facilities for the players either by itself or in association with Rajasthan State Sports Council; and to arrange to give such prize, scholarships, medals and other such facilities as would encourage the sports persons. Obligations of the District Level Sports Associations are dealt with in Section 30. Sections 28 to 30 of the Act of 2005 are quoted below:-
28. Right to participate.- Every Sports Association shall have the right to participate in the sports activities conducted by the Sports Association to which it is affiliated, subject to the provisions in the bye laws and Regulations of the affiliating Sports Association.
29. Obligations of the State Level Sports Associations.- Every State Level Sports Association other than Rajasthan Olympic Association shall-
(1) conduct atleast one Inter-District State Championship for the Seniors and Juniors every year;
(2) send its players and teams to participate at the National level;
(3) arrange to provide round the year training and coaching facilities for the players either by itself or in association with Rajasthan State Sports Council;
(4) arrange to give such prize, scholarships, medals and other such facilities as would encourage the sports persons.
30. Obligations of the District Level Sports Associations.- Every District Level Sports Association other than a District Level Olympic Association shall-
(1) conduct atleast one District Level Championship each for the Seniors and Juniors every year;
(2) send its players and teams to participate at the State level;
(3) arrange to provide training and coaching facilities for the players either by itself or in association with Rajasthan State Sports Council;
(4) arrange to give such prize, scholarships, medals and other such facilities as would encourage the sports persons.
Chapter IX (Sections 31 to 35) of the Act of 2005 deals with miscellaneous provisions such as power to make rules; removal of difficulties; protection of acts done under the Act of 2005; amendment in Schedule A, B and, D; appeal; and savings.
Section 37 of the Act of 2005 makes insertion of Section 18A in the Act of 1958, which provides power of Registrar under the Act of 1958 to refuse or to cancel the registration of certain Societies. Section 37 is quoted below:-
37. Insertion of section 18A, Rajasthan Act No.28 of 1958.- After the existing section 18 of the Rajasthan Societies Registration Act, 1958 (Act No.28 of 1958), the following new section shall be inserted, namely:-
18A Power of Registrar to refuse or to cancel the registration of certain Societies.- (1) The Registrar shall refuse to register-
(a) a Society under section 3 or
(b)the change of name made under section 12-A if the main activities of the Society including Sports and the expression Rajasthan or the name of any District as a part of the proposed name of the Society.
(2) If the name of a Sports Society registered before the commencement of the Rajasthan Sports Associations (Registration, Recognition and Regulation) Act, 2005) (Act No.4 of 2005) contains as part of its name the expression Rajasthan or the name of any District of the State, such Society shall amend its name to remove 'Rajasthan' or as the case may be, the name of the District form the registered name of the Society within thirty days from such commencement.
(3) If any Society fails to comply with the provisions of sub section (2), the Registrar shall, after giving an opportunity of hearing to such Society, cancel the registration of such Society.
(4) Cancellation of registration under sub-section (3) shall operate as if the members of such Society have resolved to dissolve the society and the provisions of this Act shall apply accordingly.
Section 18A of the 1958, which has been inserted by way of Section 37 of the Act of 2005, empowers the Registrar under the Act of 1958 to refuse or to cancel the registration of certain Societies. The Registrar shall refuse to register a Society under section 3 or the change of name made under section 12A if the main activities of the Society include Sports and the expression Rajasthan or the name of any District as a part of the proposed name of the Society. The provision appears to have been enacted with a view that no Sports Body should camouflage itself with such bodies.
Section 38 of the Act of 2005 deals with repeal and savings.
Schedule A of the Act of 2005 provides the list of documents necessary for registration. Schedule B mentions certain State Level Sports Associations eligible for registration at the commencement of the Act of 2005. Schedule C contains qualifications for contesting elections in the Executive Body of Sports Association. Schedule D provides for the maintenance of mandatory record by Sports Association.
Rule 3 of the said Rules of 2004 provided for naming of Sports Association. Rule 3 as existed when the Ordinance of 2004 was in vogue, is quoted below:-
3. Naming of Sports Associations.-(1) A District Level Sports Association shall be known by the name of the Revenue District in the area of which it operates for a particular sports.
Example:- District Level Association in the District Bikaner and in the field of Football shall be known as Bikaner District Football Association or District Football Association, Bikaner.
(2) A State Level Sports Association may be using first word as Rajasthan, second word as (the name of particular Sports being promoted by it) and then the term 'Association'.
Example:- (b) A State level Sports Association in the field of Hockey shall be known as Rajasthan Hockey Association.
(3) Any other mode of naming shall not be allowed by the Registrar.
(4) Primary Sports Body may be known by the name of its choice other than naming provisions provided in sub-rule (1) and (2).
Rule 9 of the said Rules of 2004 dealt with superseding of the Executive Body of a Sports Association under section 24 and constitution of ad hoc body under Rule 9(b) from amongst eligible to be elected to the executive body. The said Rule 9 is quoted below:-
9. Superseding the Executive Body of a Sports Association under Sec.24.- (1) If the Registrar, after being satisfied by an inquiry is of the opinion that any ground(s) for disqualification exist(s) in accordance with the provisions of the Ordinance, he may appoint an Ad-hoc Executive Committee in accordance with Sec.24(1)(a) of the Ordinance.
(2) The Ad-hoc Executive Committee shall be constituted from amongst those persons who are eligible to be elected to the Executive Body of the Association at the time of its supersession subject to the provisions of Sec.24(2) of the Ordinance.
(3) The Ad-hoc Executive Committee may comprise a minimum of five and a maximum of twenty one members.
(4) The Ad-hoc Executive Committee shall function exactly in the manner of an Executive Body and shall have all its powers and responsibilities.
(5) The Ad-hoc Executive Committee shall, immediately after its appointment, call an Extraordinary General Meeting in accordance with its bye-laws and rectify and grounds due to which the disqualification was imposed and proceed to conduct fresh elections in accordance with the provisions of the Ordinance.
VI- Whether provisions of the Act are restrictive or regulatory:
The avowed purpose of the Act of 2005 is to improve the State performance in national and international events. There were inadequate regulatory laws pertaining to the overall sports activities and therefore, to ensure accountability for the associations which are responsible for representing the State of Rajasthan at the national and international level; to facilitate democratic structure, to foster sports persons, athletic fitness and young talent in sports, the Act of 2005 has been enacted. The associations representing State of Rajasthan in various national level sports bodies lacked transparency and professionalism, and to hold them accountable besides having more democratic method of running associations which represent Rajasthan; to effectuate the purposes mentioned in Article 51-A(j) of the Constitution of India; to resolve the disputes between various sports associations with regard to affiliations and elections, the Act of 2005 has been enacted.
The sports activities had been controlled and had become personal foredooms of certain persons and vested interests by virtue of certain associations coming to represent the State and in order to have a regulated mechanism of running the sports affairs in the State of Rajasthan particularly for the purpose of representing State of Rajasthan at national and international level, the Act of 2005 has been enacted. The same appears to be democratic in nature; it ensures democracy at every level and representation by elected members from each district; there is no provision for nomination by the State Government; there is encouragement of sports activities both in public sphere as well as at the behest of private initiate. The Act seeks to regulate the activities which are prominently in the public sphere and which affects the entire State even the nation. The State is within its legislative competence to decide as to how association of State level should be formed to represent the State of Rajasthan officially in the national and international sporting events. If the sports body seeks to represent the State of Rajasthan itself in the national and international sports events, such body must conform to certain regulatory mechanisms and must be representative one; State has not appointed anyone of its nominees but has created a legal structure in which the elected persons from the grass-root level till the State level could be effectively represented by a democratically elected method in consonance with the principles of federalism i.e. all the district representatives are at the State level, which in turn would represent the State at the national and international level. The statements made in the objects and reasons of the Act of 2005 can be considered by the Court while judging the reasonableness of restriction, as laid down in Sardar Inder Singh V/s State of Rajasthan (1957 SCR 605= AIR 1957 SC 510)), which has been approved in State of Gujarat V/s Mirzapur Moti Kureshi Kassab Jamat and ors. ((2005) 8 SCC 534).
A close scrutiny of various provisions of the Act of 2005 makes it clear that the State Government has provided infrastructure subject to which Primary Sports Body, District Level Sports Association and State Level Sports Association have to carry out their objectives. The State Government has nowhere reserved with it power to make nomination and it has not made any provision that it shall tamper with the membership by particular persons of its choice or independence of functioning of Sports Association. The provisions ensure for election of executive body of the Sports Association in a democratic manner; they encourage sports activities; there is no restriction on number of Primary Sports Body; the State Government has not taken away the power of Sports Associations to grant membership; prescription of minimum requirement of constituting a Sports Association is aimed at to promote sports activities; by prescribing minimum and maximum number of members of Executive Body, no right of any Sports Association has been taken away; the Act of 2005 ensures fair election and that no sports body should camouflage itself with state or district level body under the Act. As per the transitional Section 26, it was optional for the sports association existing on the date of the commencement of the Act, to seek registration and recognition under the Act of 2005 and it was only on exercise of option that the terms and conditions contained in various provisions of the Act of 2005 were required to be complied with by a Sports Association and on failure to compliance and if bye-laws were not brought in conformity with the provisions of the Act of 2005 at the expiry of 30 days from the date of commencement of the Act, the Executive Body of the Sports Association was to be superseded by the Registrar and Ad-hoc Executive Committee was to be appointed to manage the affairs of the Sports Association from amongst members entitled to be elected. Sections 26 and 27 falling under the transitional Chapter, incorporating provisions for the sports association existing at the time of commencement of the Act, have no relevance now when almost seven years have already passed to the enactment. For the other sports associations, which came into existence after the commencement of the Act or which shall come into existence in future, there is no compulsion to get themselves registered under the Act. They can function as Sports Association to promote sports activities, but without using the expression Rajasthan or the name of the concerned District, as the case may be, as provided under section 25(2).
It is also noted in the aims and objectives of the Act of 2005 by the State Government that large number of Sports Associations are using the expression Rajasthan and are holding out to be representing Rajasthan, its Districts or a part of Rajasthan without factually acting in representative capacity which is in violation of the Olympic Charter and the National Sports Policy, 2001. This has necessitated the regulation of such bodies to ensure that they are operating in a representative character and that sports units at all levels get equal opportunity of representation at District, State, National and International levels so as to achieve excellence in the field of sports. The object of the Act is also to confer on Sports Associations legal right to represent Rajasthan and meet the aspirations of the public, discourage favourtism, create a deeper and wider network for selection process, develop a broad based procedure for identifying and promoting persons having sports talent.
As provided in the Statement of objects and reasons of the Act of 2005, sports are emerging as a profession and a sports event has its economics in sports tourism. It is apparent that now sports activities have become industry resulting into multifarious activities, contracts and money making including tourism aspect. Sports are being taken as career prospects. There has to be regulation for undertaking the sports activities and to make them broad based. There are instances in which it has been seen that various bodies claim themselves to be State Level Bodies and claim for representing the State and having the name of the concerned State such as Rajasthan, but virtually they are not acting in representative capacity; there had been various litigation as to which team should represent State/District and which team to participate in the National/State level games etc. Considering the aforesaid aspects and the facts that the States performance in the national and international events had not been upto mark and the Sports bodies were either not registered or were registered under the Act of 1958, which did not provide for effective regulatory mechanism, and that the role of Rajasthan State Sports Council was limited and there was no system of fixing accountability for performance and no system for effective encouragement for the growth of the sports and games in the State, it was considered appropriate to enact the Act of 2005. The Bill was aimed at advancing, encouraging and promoting sports and games activities in the State, at State, District and lower level. By regulating, the State has sought to create a facilitating democratic structure, which would encourage development of sports persons, development of athletic fitness and help brining young talent in sports and create model behavior to meet National and International challenges and standards.
VII- Registration and recognition, whether compulsory or optional:
Section 3 of the Act of 2005 provides that every Sports Association defined under the Act of 2005 other than a Primary Sports Body is required to be registered under the provisions of the Act of 2005. The District Level Sports Association as defined in Section 2(f) and State Level Sports Association as defined in Section 2(v) are required to be compulsorily registered. It is also apparent that 40 Sports Association, such as, Rajasthan Cricket Association, Archery Association, Athletics Association, Badminton Association, Ball Badminton Association, Basketball Association, Billiards Association, Body building Association, Boxing Association, Bridge Association, Carrom Association, Chess Association, Corf Ball Association, Cycling Association, Disabled Cricket Association, Equestrian Association, Football Association, Golf Association, Gymnastic Association, Handball Association, Hockey Association, Kabaddi Association, Kho-Kho Association, Net Ball Association, Power Lifting Association, Rifle Shooting Association, Shooting Ball Association, Soft ball Association, Swimming Association, Table Tennis Association, Taekwondo Association, Tennis Association, Tennis Ball Cricket Association; Volleyball Association, Weight Lifting Association, Wresting (Free Style) Association, Wrestling (Indian Style) Association, Womens Cricket Association and Womens Hockey Association, being State Level Association enlisted in Schedule B, were eligible for registration at the commencement of the Act, in view of Sections 5, 26 and 34 of the Act. Though it was imperative for them to apply under the provisions of Section 5 of the Act of 2005 for registration, Section 26 of the Act of 2005 has to be read together with Sections 3 & 5 of the Act of 2005. Section 26 provides that notwithstanding anything contained in the Act of 2005, an Association undertaking games or sports activities at State or District level and is already registered under the Act of 1958, shall be entitled to opt to be registered and recognized under the Act of 2005 and to receive a certificate thereof on application to the Registrar and within thirty days from the date of commencement of the Act of 2005 shall amend its bye-laws to bring it in conformity with the provisions of the Act of 2005 to the satisfaction of the Registrar. The provisions have overriding effect over other provisions of the Act of 2005. The provision of Section 26 prevails over Sections 3 & 5 of the Act. Section 26(1) contains non-obstante clause; an Association undertaking games or sports activities at State or District Level and already registered under the Act of 1958 shall be entitled to opt to be registered and recognized under this Act has to be given full effect to. This provision makes it optional for the Associations undertaking games or sports activities at State or District level and are registered under the Act of 1958 to seek registration or recognition under the Act of 2005 and at their volition, they may choose to apply for registration or recognition under the provisions of the Act of 2005.
Further, as discussed hereinabove, Section 26 falls under the Chapter-VII, which deals with the transitional provisions. The said section appears to have been incorporated giving right to the Associations already undertaking games or sports activities at State or District Level and registered under the Rajasthan Societies Registration Act, 1958, on the date of commencement of the Act, to get themselves registered and recognized under the Act, by exercising option within thirty days from the date of commencement of the Act. As per Section 26(1), such Associations on exercising option to get themselves registered and recognized under the Act, had to amend their bye-laws and to submit documents as specified in Schedule A of the Act within thirty days from the date of commencement of the Act. Section 26(2) would have come into play only if the Association having opted to be registered and recognized under the Act had not made such application or amended the bye-laws within thirty days from the date of commencement of the Act. There is nothing in the said Section 26 which would require all the Sports Associations existing on the date of commencement of the Act, to get themselves compulsorily registered under the Act. The legislature has used the words shall be entitled to opt to be registered and recognized, meaning thereby, there was clear option given to the Sports Associations existing on the date of commencement of the Act to get themselves registered and recognized under the Act.
As such, the Section 26 contains non-obstante clause and therefore has the effect of overriding the other provisions of the Act. Hence, though Section 5 required the State level associations enlisted in Schedule-B, which were eligible for registration at the commencement of the Act, to make application for registration, such associations had the option not to apply for registration in view of the overriding effect of Section 26. From the conjoint reading of Sections 5, 26 and 27, it clearly transpires that the Associations existing and registered under the Rajasthan Societies Registration Act, 1958, on the date of commencement of the Act, and the State level associations enlisted in Schedule-B of the Act, were entitled to exercise their option of getting themselves registered and recognized under the Act within the time limit prescribed in Section 26(1) of the Act. If they exercised such option, they had to amend their bye-laws to bring them in conformity with the provisions of the Act, within the said time limit, failing which the provisions contained in sub-sections (2), (3) and (4) would have come into play. Again, Section 27 also being a transitional provision was applicable to the associations which had exercised their option under Section 26 of the Act. The purpose of incorporating the transitional provisions of Section 26 and 27 contained in Chapter-VII of the Act, was to enable the sports associations existing on the date of commencement of the Act of 2005, to get themselves registered and recognized under the Act and avail the benefits enshrined in the Act. If such associations had opted not to get themselves registered and recognized under the Act within the prescribed time limit, they would not have got the benefits under the Act.
In any case, as stated hereinabove, Sections 26 and 27 being transitional provisions, have no application to the sports associations which came into existence after the commencement of the Act. So far as the registration of such associations which came into existence subsequently is concerned, the provisions contained in Chapter-II (Sections 3 to 12) would be applicable. Though from the heading compulsory registration of Section 3, one may gather the impression that the registration of every Sports Association is compulsory under the Act, from the conjoint reading of Sections 3, 5, 25 and 28, it clearly emerges that it is optional, and not compulsory. The only restriction or prohibition, that has been put on the Association, if not registered under the Act, is contained in Section 25, namely, non-permissibility of representing the State of Rajasthan in any games or sports without being authorized by the State Level Sports Association or using the name of the concerned district as part of its name or undertake any sports activity which results in representing the State of Rajasthan or a district. Again, if the association is registered under the Act, it would get the right as conferred under Section 28 of the Act.
The provision of Section 3 with respect to compulsory registration of the Sports Association under the Act of 2005 is confined to the Association of District Level Sports Association as envisaged in section 2(f) which means that such Association is affiliated to the State Level Sports Association, which has applied for registration to the Registrar. In case State Level Sports Association has not applied for registration to the Registrar, obviously, such District Level Sports Association would not be covered within the meaning of such association in the Act of 2005. Similar is the provision in Section 2(v) of the Act of 2005 with respect to State Level Sports Association, which means elected body of District Level Sports Association for particular game or sports in the State which is duly affiliated to the Rajasthan State Sports Council and affiliated to Rajasthan Olympic Association, and being eligible under Schedule B has applied for registration under the Act of 2005 to the Registrar. In case no such application has been filed, it cannot be treated as State Level Sports Association for the purpose of Act of 2005. When we consider Schedule-B of the Act of 2005 also, names of eligible Associations as State Level Sports Associations have been mentioned and when read with non-obstante clause contained in Section 26(1), such associations enlisted in Schedule B and any other future State Level Sports Association for a game or sports not presently covered by Schedule B and added to schedule B under the Act of 2005 are required to apply for registration alongwith documents mentioned in Schedule A otherwise they will have to face the consequences of Section 25(1) which provides that no person or group of persons either individually or collectively shall represent or be allowed to represent the State of Rajasthan in any game or sports without being authorized by the State Level Sports Association and consequently, as per Section 25(2), no Sports Association shall be entitled to use the description Rajasthan or use the name of a District as part of its name or undertake any Sports activity which results in representing the State of Rajasthan or a District, as an affiliated unit of any National Federation, Board or Association purporting to represent India, or in any other manner whatsoever, unless such Sports Association is registered as a State Level Sports Association or a District Level Sports Association under the Act of 2005. Thus, it is clear that if the sports association does not get itself registered under the Act of 2005, then the description Rajasthan cannot be used by such Sports Association and name of District also cannot be used as part of its name and representation on behalf of the State or District cannot be made. However, it would be open to such Association to carry on its activities of sports and to promote the sports as per its bye-laws and manage its affairs as they recognize. The Act of 2005 provides for the broad base structure for purpose of registration and recognition under the Act of 2005, which is optional.
Section 27 like Section 26 of the Act of 2005 is also transitional provision, which provides that once Sports Associations existing on the date of the commencement of the Act have 'opted' for registration and recognition under section 26 of the Act of 2005, registration under the Act of 1958 shall cease to exist from the date of such option. Section 27 also used the word option that also fortifies our conclusion that it was optional and not mandatory for the existing sports associations to apply for registration and recognition. Only for furtherance of the objectives of representation at State/District level, State Level Sports Association or District Level Sports Association may apply for registration and recognition and in that case, they are bound to make the provisions in their constitution for democratic and fair election bye laws to provide for tenure, and ensure the independent and representative capacity of the membership. The existing membership of opting association would not come to an end but only right to vote after option is exercised, would be given to the persons representing primary or district or state level association as the case may be. The right to form association and carry on activities envisaged under Article 19(1)(c) is not infringed in any manner by the provisions of the Act of 2005.
VIII- No vested right in the name of Association:-
Provision has also been made by virtue of Section 37 of the Act of 2005 by which Section 18A has been inserted in the Rajasthan Societies Registration Act of 1958. Section 18A of the said Act gives power to the Registrar to refuse or to cancel the registration of certain Societies. As per Section 18A(2), if the name of a Society registered before the commencement of the Act of 2005 contains as part of its name the expression Rajasthan or the name of any District of the State or such Society shall amend its name to remove Rajasthan or, as the case may be, the name of the district from the registered name of the Society within thirty days from such commencement and as per Section 18A(3), if any society fails to comply with the provisions of Section 18A(2) the Registrar shall, after giving an opportunity of hearing to such Society, cancel the registration of such society. Thus, society cannot use the expression Rajasthan or the name of District of the State and it has to amend its name to remove Rajasthan or name of District, as the case may be, from the registered name of the Society within 30 days. There is no vested right in the name and since the objectives of the Act of 2005 indicate that there are several bodies which were existing without registration and were not having effective regulatory method and large number of sports Associations were using the expression Rajasthan and were holding out to be representing Rajasthan, its Districts or a part of Rajasthan without factually acting in representative capacity. It was in violation of the Olympic Charter and the National Sports Policy, 2001, which provide for making the functioning of the Federation and Associations transparent, professional and accountable. This necessitated the regulation of such bodies to ensure that they are operating in a representative character and that sports units at all levels get equal opportunity of representation at District, State, National and International levels, so as to achieve excellence in the field of sports, for which the Act of 2005 has been enacted.
In case the Sports Association opts out, it can have its governance as per constitutional bye-laws etc. and only in case benefit of the Act of 2005 has to be obtained by registration and recognition and to represent on behalf of the State and District level, in that case the provisions of the Act of 2005 are applicable and not otherwise. It is not compulsory in the strict sense as it is optional. The Association which does not opt for registration and recognition under the Act of 2005, can continue as association without using the name of State of Rajasthan or concerned District as the case may be.
IX- Reach and Ambit of Right under Article 19(1)(c):
Now the question arises as to what is the reach and ambit of the right to form association envisaged under Article 19(1)(c) of the Constitution.
Historical background of Rights:
The learned Senior Counsel has also submitted that fundamental rights are natural rights or human rights which are those minimal rights of an individual which must be guaranteed by every society; fundamental rights in the modern name are traditionally known as natural rights as laid down in Golak Nath V/s State of Punjab (AIR 1967 SC 1643).
As per Magna Carta (1215), the doctrine of natural rights passed into practical reality when absolute monarch, King John, was made to acknowledge the inalienable rights of individuals which could not be violated by the Sovereign himself. The movement continued through the repeated conformations of Magna Carta and the Petition of rights (1628) and culminated in the Bill of rights (1689) with its concluding words as . it may be declared and enacted that all an singular the rights and liberties asserted and claimed in the said declaration are the true, ancient and indubitable rights and liberties of people of this kingdom. The Act of Settlement (1701) which followed, had for its title An Act declaring the Rights and Liberties of the subjects which were asserted as the birth-right of the people of England. The doctrine of natural rights received further impetus at the hands of the great protagonists of the Theory of Social Contract- Johan Locke (1690) and Rousseau (1762). Blackstone (1765) who, for the first time, gave the concept of binding natural rights on any political authority and thus imported the doctrine of natural rights from the real of political philosophy into the realm of jurisprudence. He made the distinction between absolute rights i.e. those which are primary and belong to an individual by merely being in a state of Nature and which everyman is entitled to enjoy, whether out of society or in it and relative rights i.e. those which are incidental to individual only as members of society. Virginia Bill of Rights (1776) adopted in the State Constitution of Virginia was the first declaration of rights in a written constitution as the basic and foundation of government. The theory of natural rights entered into the realm of constitutional realism with two revolutionary documents American Declaration of Independence (1776) and the French Declaration of Rights of Man (1789) which asserted that there were certain inalienable rights and it was the duty of the state to maintain these rights. With the introduction of the Bill of Rights in the American Constitution in 1789, the natural right eventually transformed into fundamental rights operating as a constitutional limitation on the powers of each of the organs set up by the Constitution and enforceable by the courts. The first ten amendments of the U.S. Constitution deal with the Bill of Rights. First amendment relates to right to religion and free expression and the fourteenth amendment relates to due process. The urge for embodying guarantees of individual rights in Constitutions has been further accentuated by the adoption of the Universal Declaration of Human Rights (1948) by the United Nationals, as also the International Covenant on Civil and Political Rights (1966).
Principle of Interpretation of Fundamental Rights:
Shri Paras Kuhad, learned Senior Counsel appearing on behalf of the petitioner has submitted that the principle for interpretation of fundamental rights is generous and purposive construction as laid down in A.G.V/s Jobe ((1985) LRC (Const.) 556). He has also referred to the decision of the Apex Court in M.Nagaraj V/s Union of India ((2006) 8SCC 212) in which it has been held that the Constitution is not ephemeral legal document; purposive rather than a strict literal approach to the interpretation should be adopted. He has contended that constitutional provision should be construed not in a narrow and constricted sense but in a wide and liberal manner and in that case, while making liberal interpretation, it was observed that right to know is implicate in the right of free speech and expression guaranteed under Article 19(1)(a). He has also referred to the decision of the Apex Court in I.R.Coelho V/s State of Tamil Nadu ((2007) 2 SCC 1) in which while considering the essence of principle behind Article 14 of the Constitution, the Apex Court has held that essence or principle of the right or nature of violation is more important than the equality in the abstract or formal sense. The principle behind fundamental rights are part of the basic structure of the Constitution. He has also referred to the decision of the Apex Court in Sakal Newspaper (P)( Ltd. And ors. V/s Union of India ((1962) 3 SCR 842) where the Apex Court laid down that the Constitution does not expressly provide for the freedom of press but this freedom is included in freedom of speech and expression guaranteed by clause (1)(a) of Article 19 of the Constitution of India. He has further relied upon the decision of the Apex Court in Peoples Union for Civil Liberties (PUCL) V/s Union of India ((2003) 4 SCC 399) in which it has been laid down that attempt of the court should be to expand the reach and ambit of the fundamental right by process of judicial interpretation. Relying upon the decision of the Apex Court in Sakal Newspaper (P) Ltd. (supra), he has submitted that certain rights have been enshrined in the Constitution as fundamental and thus, the Court must not be too astute to interpret the language of the Constitution in so literal sense as to whittle them down. Fundamental rights are not limited rights. As held in Mrs.Menaka Gandhi V/s Union of India ((1978) 1 SCC 248), the attempt of the Court should be to expand the reach and ambit of fundamental rights. He has also relied upon the said decision wherein right to have a passport was held to be a part of personal liberty under Article 21 of the Constitution. Reliance has been placed on the following observations made in the case of Mrs.Maneka Gandhi (supra):-
Now, it may be pointed out at the outset that it is not our view that a right which is not specifically mentioned by name can never be a fundamental right within the meaning of Article 19(1). It is possible that a right does not find express mention in any clause of Article 19(1) and yet it may be covered by some clause of that Article..
He has also referred to the decision of the Apex Court in Union of India V/s Naveen Jindal ((2004) 2 SCC 510) wherein it was held that This Court times without number has extended the scope and extent of the provisions of the fundamental rights, having regard to several factors including the intent and purport of the Constitution makers as reflected in parts IV and IVA-A of the Constitution of India. He has also relied upon the decision of the Apex Court in Waman Rao & ors. V/s Union of India & Ors. ((1981) 2 SCC 362) in which it has been laid down that mere abridgment that is to say curtailment and not necessarily abrogation that is to say total deprivation, is enough to produce the consequences provided by Article 13(2). In any given case, what is decisive is whether, in so far as the impugned law is concerned, the rights available to persons affected by law under any of the articles in Part II are totally or substantially withdrawn and not whether the articles, the application of which stands withdrawn in regard to a defined category of laws, continue to be on statute books so as to be available in respect of laws of other categories. Relying upon the decision of the Apex Court in Minerva Mills V/s Union of India ((1980) 3 SCC 625), he has submitted that even abridgement of fundamental right may involve violation of basic structure. Again referring to the decision in the case of M.Nagaraj (supra), he has submitted that there are beyond the words of particular provisions, systematic principles underlying the provisions of the Constitution and instance is the principle of reasonableness which connects Articles 14, 19 and 21 of the Constitution and some of these principles may be so important and fundamental, as to quality as essential features or part of the basic structure of the Constitution that is to say, they are not open to amendment. He further submitted that certain unarticulated rights are implicated enumerated guarantees. He has also referred to the decision of the Apex Court in Gobind V/s State of M.P. ((1975) 2 SCC 148) with reference to the right to privacy in which the Apex Court has relied upon the decision of Douglas, J in Griswold V/s Connecticut (381 U.S. 479) wherein it was observed:-
..the right of freedom of speech and press includes not only the right to utter or to print but also the right to distribute, the right to receive, the right to read and that without those peripheral rights the specific right would be less secure and that likewise, the other specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance, that the various guarantees create zones of privacy and that protection against all governmental invasion of the sanctity of a mans home and the privacies of life was fundamental. He further said that the inquiry is whether a right involved if of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and that privacy is a fundamental personal right, emanating from the totality of the Constitutional scheme under which we (Americans) live.
He has again referred to decision of the Apex Court in M.Nagaraj (supra) especially para 20 wherein it was observed that content of a right is defined by the courts and the final word on the content of the right is of the court and therefore, constitutional adjudication plays a very important role in this exercise.
There is no dispute with the aforesaid propositions laid down by the Apex Court, but the question to be pondered is what is the right enshrined under Article 19(1)(c) of the Constitution and to what extent it is saved.
The learned Senior Counsel has also submitted that this Court should interpret the provision of Article 19(1)(c) considering direct or inevitable consequences of the measures enacted in the impugned Act and for that, he has relied upon the decision of the Apex Court in Express News Papers (P) Ltd. And anr. V/s Union of India (AIR 1958 SC 578) in which the Apex Court has observed that unless there were the direct or inevitable consequences of the measures enacted in the impugned Act, it would not be possible to strike down the legislation as having that effect and operation. If the intention or the proximate effect and operation of the Act was such as to bring it within the mischief of Article 19(1)(a), it would certainly be liable to be struck down.
Our attention was drawn to the following observations made by the Apex Court in R.C.Cooper V/s Union of India ((1970) 1 SCC 248):-
.it is not the object of the authority making the law impairing the right of a citizen, nor the form of action that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individuals right.
We are of the view that the theory that the object and form of the State action determine the extent of protection which the aggrieved party may claim is not consistent with the constitutional scheme..
The Apex Court in R.C.Cooper laid down that impairment of the fundamental right is to be considered by direct operation upon individual right. To the similar effect is the law laid down in the cases of Smt.Maneka Gandhi (supra) and I.R.Coelho (supra).
Violation of Penumbra Rights is violation of Fundamental Rights:
The learned Senior Counsel has also drawn our attention to various decisions with respect to penumbra rights and submitted that the rights relevant to the exercise of guaranteed rights are included in the penumbra rights and violation thereof has to be considered as violation of fundamental right itself. He has referred to the decision in National Association for the Advancement of Colored People (NAACP) V/s Alabama ex Rel.Patterson, Attorney General (357 U.S. 449(1958)) wherein it was observed that production order in question must be regarded as entailing the likelihood of a substantial restraint upon the exercise by the petitioners members of their right to freedom of association; revelation of the identity of its rank and file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion and other manifestations of public hostility; compelled disclosure of petitioners Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade other from joining it. Learned Senior Counsel has relied upon the following observations made in the case of NAACPO V/s Alabama (supra):-
This Court has recognized the vital relationship between freedom to associate and privacy in ones associations. ....Inviolabiity of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs We think that the production order, in the respects here drawn in question, must be regarded as entailing the likelihood of a substantial restraint upon the exercise by petitioners members of their right to freedom of association. Petitioner has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioners Alabama membership is likely to affect adversely the ability of petitioner and (357 U.S.449, 463) its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.
We turn to the final question whether Alabama has demonstrated an interest in obtaining the disclosures it seeks from petitioner which is sufficient to justify the deterrent effect which we have concluded these disclosures may well have on the free exercise by petitioners members of their constitutionally protected right of association.
In NAACP V/s Alabama (supra), it was observed that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the Due Process Clause of the Fourteenth Amendment. The learned Senior Counsel has also relied upon the following observations made in the case of NAACP V/s Alabama (supra):-
Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedom of speech and assembly. De Jonge v. Oregon, 299 U.S. 353, 364; Thomas v. Collins 323 U.S. 516, 530. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speechOf course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters and state action which may have the (357 U.S. 449, 461) effect of curtailing the freedom to associate is subject to the closest scrutiny.
..In the domain of these indispensable liberties, whether of speech, press or association, the decisions of this Court recognize that abridgment of such rights, even though unintended, may inevitably follow from varied forms of governmental action. Thus in Douds, the Court stressed that the legislation there challenged, which on its face sought to regulate labor unions and to secure stability in interstate commerce, would have the practical effect of discouraging the exercise of constitutionally protected political rights. 399 U.S. at 393, and it upheld the statute only after concluding that the reasons advanced for its enactment were constitutionally sufficient to justify its possible deterrent effect upon such freedoms. Similar recognition of possible unconstitutional intimidation of the free exercise of the right to advocate underlay this Courts narrow construction of the authority of a congressional committee investigating lobbying and of an Act regulating lobbying, although in neither case was there an effort to suppress speech. United States V. Rumely, 345 u.S. 41, 46-47; United States v. Harriss 347 U.S. 612, 625-626. The governmental action challenged may appear to be totally unrelated to protected liberties. Statutes imposing taxes upon rather than prohibiting particular activity have been struck down when perceived to have the consequence of unduly curtailing the liberty of freedom of press assured under the Fourteenth Amendment. Grosjean V. American (357 U.S. 449, 462) Press Co., 297 U.S. 233; Murdock V. Pennsylvania, 319 U.S. 105..
We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment.
The learned Senior Counsel has also relied upon the decision in NAACP V/s Alabama (supra) with respect to rights indispensable for preservation of freedom of association; impediment or restraint upon the free exercise of the right may flow from third parties; public also may be enough as long as the forcibility is reasonable; crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.
The learned Senior Counsel has also relied upon the decision in Boy Scouts of America et al.V/s Dale (530 U.S. 640 (2000)) in which the Supreme Court of US held that application for New Jerseys public accommodations law to require the Boy Scouts of America to admit an avowed homosexual as an adult member violated the organizations First Amendment right of expressive association. Reliance was placed on the following observations made in Boy Scouts of America V/s Dale (supra):-
In Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984), we observed that implicit in the right to engage in activities protected by the first Amendment is a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious and cultural ends. This right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas. See ibid. (stating that protection of the right to expressive association is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority). Government actions that may unconstitutionally burden this freedom may take many forms, one of which is intrusion into the internal structure or affairs of an association like a regulation that forces the group to accept members it does not desire. Id., at 623, Forcing a group to accept certain members may impair the ability of the group to express those views and only those views, that it intends to express. Thus, freedom of association plainly presupposes a freedom not to associate.
The forced inclusion of an unwanted person in a group infringes the groups freedom of expressive association if the presence of that person affects in a significant way the groups ability to advocate public or private viewpoints.
Thus, relying upon the decision, the learned Senior Counsel has submitted that certain members are foisted upon the State Level Sports Association in the shape of District representing various districts, it is violative of the right to form association.
We are not impressed by the aforesaid submissions of the learned Senior Counsel appearing on behalf of the petitioner as it is optional to apply for registration and recognition as per the provisions of the Act of 2005. It is the discretion available to the Sports Association either to opt or not to opt. In case it opts, legal infrastructure has been provided under the Act of 2005. As such, in the case of Societies etc., once a Society is formed and it wanted to take the benefit of the Act of 2005, it has to act within the structural framework provided under the Act. Thus, it cannot be said that any member is being foisted upon the State Level Sports Association or District Level Sports Association, as the case may be, rather once option is exercised to have registration or recognition to avail the benefit and privileges under the Act of 2005, in that case, they are bound by the provisions of the Act of 2005. As already discussed above, democratic set up has been provided in order to broad base the sports activities; regulatory measures have been provided; there is no restriction imposed upon carrying on the activities by the State Level Sports Association or District Level Sports Association by the Act of 2005; there is no States interference in the functioning and independence of the State Level or District Level Sports Association.
Reliance has also been placed by the learned Senior Counsel on the decision in Griswold V/s Connecticut (381 U.S. 479 (1965)) in which the US Supreme Court recognized the constitutional right to freedom of intimate associate, the fundamental human right to create and maintain intimate human relationship. He has relied upon the following observations made in the case of Griswold (supra):-
By Pierce V. Society of Sisters, supra, the right to educate ones children as once chooses is made applicable to the States by the force of the first and Fourteenth Amendments. By Meyer V. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the first Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers 319 U.S. 141, 143) and freedom of inquiry, freedom of thought and freedom to teach(see wieman v. Updegraff 344 U.S. 183, 185)- indeed the freedom of the entire university community. Sweezyv. New Hamsphire 354 U.S. 234, 249-250, 261-263; Barenblatt v. United States,360 U.S. 109, 112; Baggett v. Bullitt 377 U.S. 360, 369. Without (381 U.S. 479, 483) those peripheral rights the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.
In Griswold V/s Connecticut (supra), it has been laid down that right of association includes the right to express ones attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. The expression of opinion is not expressly included in the First Amendment, but its existence is necessary in making the express guarantees fully meaningful. Where fundamental personal liberties are involved they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship into the effectuation of a proper state purpose.
The decision is not applicable in the instant case as it is option available to the Sports Association to carry on activities without being registered or recognized under the Act of 2005. Freedom of expression in the form of sports activities has not been taken away under the Act of 2005. However, right to represent State is concomitant right not covered under Article 19(1)(c) of the Constitution.
The learned Senior Counsel has also submitted that transgression need not be direct, ultimate or practical effect has to be seen; it is not necessary that there is an effort to suppress the right, possible unconstitutional intimidation of free exercise of right is enough, as laid down in NAACP V/s Alabama (supra). He has further submitted that essence is the ability to freely exercise the rights; again the fact that government action appears to be totally unrelated to protected liberties, is not enough, it is enough if it perceived to have the consequence of unduly constraining the liberty; due deference must be given to the Associations view as to what would impair its expression. He has relied upon the following observations made in the case of Boy Scouts of America V/s Dale (supra):-
As we give deference to an associations assertion regarding the nature of its expression, we must also give deference to an associations view of what would impair its expression. See, e.g., La Follettee, supra,at 123-124 (considering whether a Wisconsin law burdened the National Partys associational rights and stating that a State, or a court, may not constitutionally substitute its own judgment for that of the Party). That is not to say that an expressive association can erect a shield against anti discrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message Dales presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.
. the presence of Dale as an assistant scoutmaster would just as surely interfere with the Boy Scouts choice not to propound a point of view contrary to its beliefs.
In Boy Scouts of America V/s Dale (supra), relied upon by the learned Senior Counsel, it was further observed that impediments to the exercise of ones right to choose ones association can violate the right of association protected by the First Amendment; State requirement that the Boy Scouts retain Dale as an assistant scoutmaster would significantly burden the organizations right to oppose or disfavor homosexual conduct. He has also relied upon the following observations made in the case of Boy Scouts of America V/s Dale (supra):-
In Hurley, we applied traditional First Amendment analysis to hold that the application of the Massachusetts public accommodations law to a parade violated the first Amendment rights of the parade organizers. Although we did not explicitly deem the parade in Hurley an expressive association, the analysis we applied there is similar to the analysis we apply here. We have already concluded that a State requirement that the Boy Scouts retain Dale as an assistant scoutmaster would significantly burden the organizations right to opposite or disfavor homosexual conduct. The state interests embodied in New Jerseys public accommodations law do not justify such a severe intrusion on the Boy Scouts right to freedom of expressive association. That being the case, we hold that the First Amendment prohibits the State from imposing such a requirement through the application of its public accommodations law.
The learned Senior Counsel has also placed reliance on the decision in Young, James & Webster V/s The United Kingdom (1981 ECHR (A) 44 (1981)) in which referring to Article 11(1) of the European Convention of Human Rights that every one has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests, the European Court of Human Rights has held that restriction of the following nature would take away the very substance of freedom of association:-
(a)To compel a person to join an association contrary to his convictions;
(b)When the right of a person to join an association of his choice is so curtailed that the choice left to him is of no practical value;
(c)To dismiss a workman for not joining a specified Union.
It was further held by the European Court of Human Right in Young James & Webster V/s The United Kingdom (supra) that it was in breach of Article 11 of the European Convention of Human Rights concerning the freedom of association to dismiss an employee who refuses to join a trade union with whom the employer has entered into a closed shop agreement at a time after the employment of the employee, in so far as membership was not a condition for the employment. An individual does not enjoy the right to freedom of association if in reality the freedom of action or choice which remains available to him is either non-existent or so reduced as to be of no practical value.
Practical value cannot be said to have come to an end as association can exist outside purview of the Act of 2005 and carry on sports activities; when it comes to representing the State/District, broad base structure has to be adopted which is not restrictive but only regulatory measure available at option without interference by the State. The aforesaid decision is of no avail as there is no compulsion to have registration or recognition under the Act of 2005; it is optional to opt the Act of 2005; none of the restrictions as mentioned in the aforesaid decision curtailing the right of any member or association is attracted in the instant case.
Reliance has also been placed by the learned Senior Counsel on the decision in Sorensen and Rasmussen V/s Denmark (Applications nos.52562/99 and 52620/99) STRASBOURG, 11th January 2006, in which the European Court of Human Rights in 2006 declared the closed shop collective agreement provisions illegal. It has been laid down thus:-
.The right to form and to join trade unions is a special aspect of freedom of associations, and the notion of a freedom implies some measure of freedom of choice as to its exercise (see Young, James and Webster v. the United Kingdom, $ 52 cited above) . Accordingly, Article 11 must also be viewed as encompassing a negative right of association or, put in other words, a right not to be forced to join an association (see Sigurdur Sigurjonsson v. Iceland judgment of 30 June 1993, Series A no.264, $ 35). Though compulsion to join a particular trade union may not always be contrary to the Convention, a form of such compulsion which, in the circumstances of the case, strikes at the very substance of the freedom of association guaranteed by Article 11 will constitute an interference with that freedom.
Furthermore, regard must also be had in this context to the fact that the protection of personal opinions guaranteed by Articles 9 and 10 is one of the purposes of the guarantee of freedom of association, and that such protection can only be effectively secured through the guarantee of both a positive and a negative right to freedom of association (see Chassagnou and Others v.France (GC), nos. 25088/94, 28331/95 and 28443/95 $ 103 ECHR 1999-III: Young, James and Webster, $ 57 and Sigurdur Sigurjonsson, $ 37, both cited above.
In this connection the notion of personal autonomy is an important principle underlying the interpretation of the Convention guarantees. This notion must therefore be seen as an essential corollary of the individuals freedom of choice implicit in Article 11 and confirmation of the importance of the negative aspect of that provision.
The Court does not in principle exclude that the negative and the positive aspects of the Article 11 right should be afforded the same level of protection in the area under consideration. However, it is difficult to decide this issue in the abstract since it is a matter that can only be properly addressed in the circumstances of a given case. At the same time, an individual cannot be considered to have renounced its negative right to freedom of association in situations where, in the knowledge that trade-union membership is a pre-condition of securing a job, he accepts an offer of employment notwithstanding his opposition to the condition imposed. Accordingly, the distinction made between pre-entry closed-shop agreements and post-entry closed shop agreements in terms of the scope of the protection guaranteed by Article 11 is not tenable.
It has been laid down in Sorensen and Rasmussen V/s Denkmark (supra) that notion of personal autonomy is important principle underlying the interpretation of the Convention guarantees and this notion must be seen as an essential corollary of the individuals freedom of choice implicit in Article 11 and confirmation of the importance of the negative aspect of that provision.
Reliance has also been placed on the decision in Buckley V/s Valeo (424 U.S. 1 (1976) wherein the provisions of the Federal Election Campaign Act requiring the reporting and disclosure of contributions and expenditures to and by political organizations including the maintenance by such organizations of records of every one contributing more than $ 10 and reporting by individuals and groups that are not candidates or political committees who contribute or expend more than $ 100 a year for the purpose of advocating the election or defeat of an identified candidate, came up for consideration; challenge was upheld partially holding that compelled disclosure in itself can seriously infringe on privacy of association and belief guaranteed by the First Amendment; significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. It was laid down thus:-
But we have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the first Amendment. E.g., Gibson v. Florida Legislative Commn., 372 U.S. 539 (1963); NAACP v Button, 371 U.S. 415 (1963), Shelton v. Tucker, 364 U.S. 479 (1960); Bates v. Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama, 357U.S. 449 (1958)., We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. Since NAACP v. Alabama we have required that the subordinating interests of the State must survive exacting scrutiny. We also have insisted that there be a relevant correlation or substantial relation between the governmental interest and the information required tobe disclosed. See Pollard v. Roberts 283 F. Suppl.248, 257 (ED Ark) (three judge court) affd, 393 U.S. 14(1968) (424 U.S. 1 65) (per curiam). This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the governments conduct in requiring disclosure. NAACP v. Alabama, supra, at 461, Cf. Kusper v. Pontikes,414 U.S. at 57-58.
In the case of Boy Scouts of America V/s Dale (supra) relied upon by the petitioner, it has been laid down that it is not the role of the courts to reject a groups expressed values because they disagree with those values or find them internally inconsistent; the courts may not interfere on the ground that they view a particular expression as unwise or irrational; we must not be guided by our views.
Reliance has also been placed on the decision in Glen A.Williams V/s James A.Rhodes (393 U.S. 23, 30-31 (1968)) in which the US Supreme Court has held that the validity of governmental regulation must be determined by assessing the degree of infringement of the right of association against the legitimacy, strength and necessity of the governmental interests and the means of implementing those interests. The right of association is one form of orderly group activity, protected by the first Amendment. Cumbersome election machinery can effectively suffocate the right of association, the promotion of political ideals and programmes of political action, and the right to vote. The totality of Ohios requirements has those effects. The same was reiterated in Bullock V/s Carter (405 U.S. 134m 142-143 (1972); Storer V/s Brown (415 U.S. 724, 730 (1974); Illinois State Bd. Of Elections V/s Socialist Workers Party (440 U.S. 173, 183 (1979)).
Reliance has also been placed on the decision in Wooley V/s Maynard (430 U.S. 705, 97 S., Ct. 1428, 51 L Ed. 2d 752 (1977)) wherein the US Supreme Court has held that the State of New Hamshire may not require appellees to display the State motto Live freely or Die upon their vehicle license plates. It was held thus:-
A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of individual freedom of mind.
In John. J.Hurley and South Boston Allied War Vetrans Council V/s Irish- American Gay Lesbian and Bisexual Group of Boston (515 U.S. 557 (1995)), the Supreme Judicial Court of Massachusetts observed that private citizens organizing a public demonstration cannot be compelled by the State to include groups who impart a message the organizers do not want to include in their demonstration, even if such a law had been written with the intent of preventing discrimination. In that case, the State of Massachusetts could not require the private organizers of Bostons St.Patricks Day parade to allow a group of gays and lesbians to march as a unit proclaiming its members gay and lesbian identity, the Court held that to do so would require parade organizers to promote a message they did not wish to promote.
The learned Senior Counsel has also referred to Oxford dictionary of politics in which it has been defined that freedom of Association is the freedom of individuals to associate as an end in itself or with a view to pursuing common projects including sporting clubs. The Supreme Court of US has determined that the United States Constitution asserts two fundamental rights of free association; (1) right of intimate association; and (2) right to associate for expressive (essentially, religious or political) purposes. Where associations fail to meet the Courts demanding criteria of intimacy, the Court has ruled that government may require associations to satisfy equal opportunity norms in their membership policies unless departure from these norms will clearly undermine the associations specific expressive purposes as held in Roberts, Acting Commissioner, Minnesota Department of Human Rights, et al. V/s United States Jaycees (468 U.S. 609(1984)).
In case we follow the aforesaid decisions of the Supreme Court of US, as mentioned in Oxford Dictionary, the government may require associations to follow equal opportunity norms of their membership, that means to further the objectives of the Association of the State Level or District Level Sports Association by providing representative membership right to form association, which will not be jeopardized even after option is exercised for registration and recognition under the Act of 2005. Inspite of membership being representative one, they can carry on their activities.
It has also been mentioned in Oxford Dictionary of Politics relied upon by the petitioner that major point of controversy concerns the extent to which individuals should have the right to refuse membership of association that others would like them to join. Enforced membership in such cases may violate liberty of conscience, though complete voluntarism may also result in situations where some individuals unfairly free ride on the associational activism of others.
When we consider the provisions of the Act of 2005 in the light of aforesaid decisions, it is open to the registered and recognized Association to give membership as per bye-laws, the State Government has not taken away the power of the Sports Association to grant membership; the Act has also made it necessary at the same time that there should be representative association at the level of District or State. Such a regulatory provision cannot be said to be violative of right to form association and carry on objectives. The provision ensures democratic set up in order to provide fair and equal opportunity of participation in entire State. When it comes to question of representation at State level, since there is no governmental/political interference which should not be made in the field of sports, we find by providing broad base structure that no right envisaged under Article 19(1)(c) can be said to have been infringed by the Act of 2005. It ensures that nepotism from field of sports is weeded out.
The learned Senior Counsel has also referred to Wests Encyclopedia of American Law where it has been observed that Court has balanced the individuals associational interests against the States interests. It has also been observed that in twentieth century, the Supreme Court has observed that a Ku Klux Klan membership list had to be disclosed because the members freedom of association was subordinate to the states interest in controlling the Klans illegal activities (New York ex rel. Bryant v. Zimmerman 278 US. 63, 49 S. Ct. 61, 73 L. Ed. 184 (1928). Similarly, in 1961, the Court upheld a forced disclosure of the Communist partys membership because of the perceived dangers posted by the partys activities (Communist Party of the United States V/s Subversive Activities Control Board, 367 U.S. 1, 81 S. Ct.1357), 6 L. Ed. 2d 625(1961)). In the late twentieth century, the Court moved away from the balancing approach toward a strict scrutiny standard that made it more difficult for the government to impinge indirectly on freedom of association. In Roberts V/s Uninted States Jaycees (468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed. 2d 462 (1984)) wherein bye-laws limited full membership to men aged eighteen to thirty five and when group of women challenged their exclusion, the policy was held unconstitutional and the Court found that the states interest in eliminating gender discrimination outweighed the male Jaycees interest in freedom from compelled association. Although the Court reiterated its position that freedom of association is fundamental, it also stated that such freedom is not absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. It was laid down thus:-
The Jaycees is a national organization whose bye-laws limited full membership to men aged eighteen to thirty five. When a group of women challenged their exclusion, the policy was held unconstitutional. The Court found that the states interest in eliminating gender discrimination outweighed the male Jaycees interest in freedom from compelled association. Although the Court reiterated its position that freedom of association is fundamental, it also stated that such freedom is not absolute; Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.
When we consider the decision in the case of Roberts V/s United States Jaycees (supra), we find the provisions of the Act of 2005 to be valid as they provide regulatory measures which are not restrictive or suppressive of ideas of the freedom of association envisaged under Article 19(1)(c) of the Constitution.
Fundamental rights are of such nature which are protected and guaranteed by the written constitution; such rights cannot be suspended or abridged except in the manner laid down in the Constitution itself. The competence of the State Legislature to make the provisions of the Act of 2005 has not been put into question.
X- Whether concomitant rights to fulfill objectives are included under Article 19(1)(c):
It is also apparent that right under Article 19(1)(c) extends only to the right to form association which has not been curtailed by the Act of 2005. If Sports Association opts registration and recognition under the Act of 2005, it has to comply with the law relating to registration; formation of an association/union and so far as the activities of the association/union and as regards the steps which the association/union might take to achieve its object, they are subject to such laws as may be framed and validity of such laws cannot be tested on the touchstone of the provisions contained in Article 19(4). The right to freedom of association does not comprehend the fulfillment of the objects or purpose for which the association has been formed. The freedom of association guaranteed under Article 19(1)(c) does not imply that apart from non-interference with the formation of association, the State must further ensure the achievement of the desire or objectives for which the association has been formed. The doctrine of concomitant rights i.e. the right claimed by the petitioner to represent the State of Rajasthan has been decisively rejected by the court in several decisions. The right to form association and to achieve the desired results for forming the associations has been the subject matter of discussion in various decisions of the Apex Court. In Ex.Capt. Harish Uppal V/s Union of India ((2003) 2 SCC 45), the Apex Court held that the lawyers do not have any right to go on strike or to give a call for boycott. In All India Bank Employees Association V/s National Industrial Tribunal ((1962) 3 SCR 269) the Apex Court held that even a liberal interpretation of Article 19(1)(c) of the Constitution cannot lead to a conclusion that the trade unions have a guaranteed right to an effective collective bargaining or to strike as a part of effective collective bargaining or otherwise. In Dharam Dutt and ors. V/s Union of India & ors. (2004(1) SCC 712), the Apex Court upheld the merger of society and made distinction in the right of a person to form association and right of association to carry on its activity. The Apex Court held that a restriction on activity of association is not a restriction of activity of individual forming membership of Association. In the case of Dharam Dutt (supra) referring to the decisions in the case of Smt.Maneka Gandhi (supra) and All India Bank Employees Association (supra), the Apex Court observed that 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 decision in Raghubar Dayal Jail Prakash V/s the Union of India (supra) has also been taken into consideration in which it has been laid down that the restriction imposed by section 6 is for the purpose of recognition and no association is compelled to apply to the government for recognition under the 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 difficult to see how the freedom to form the association is affected unless of-course that freedom implies or involved a guaranteed right to recognition also. The decision in the case of Tata Engineering and Locomotive Co.Ltd. (supra) has also been taken into consideration in which it has been laid down that the fundamental right to form an association cannot be coupled with the fundamental right to carry on any trade or business. The Apex Court laid down thus:-
24. 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(i)(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.
25. The Constitution Bench in All India Bank Employees' Association's case (supra) gave a precise illustration thus - "If an association were formed for the purpose of carrying on business, the right to form it would be guaranteed by sub-clause (c) of Clause (1) of Article 19, subject to any law restricting that right conforming to Clause (4) of Article 19. As regards its business activities, however, and the achievement of the objects for which it was brought into existence, its rights would be those guaranteed by Sub-clause (g) of Clause (1) of Article 19, subject to any relevant law on the matter conforming to Clause (6) of Article 19; while the property which the association acquires or possesses would be protected by Sub-clause (f) of Clause (1) of Article 19 subject to legislation within the limits laid down by Clause (5) of Article 19."
26. 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."
27. 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.
28. 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 therefore would not merely be those in Clause (45 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.
29. 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 Raghubar Dayal Jai Parkash and Anr. v. The Union of India and Anr., [1962]3SCR547 , the issue related to the Forward Contracts (Regulation) Act, 1952, which imposed restrictions on the recognition of associations by the Government. Provisions were made for certain enquiries to be held and for the satisfaction of certain criteria whereupon the association could be recognized. The challenge to the constitutional validity of the provision was founded on the submission that the provisions infringed upon the freedom to form associations under Article 19(1)(c). It was urged that the constitutional guarantee to every citizen to the right to form an association could be limited only by an imposition on the right which might legally fail 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 (i) 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."
30. The applicability of Article 19 of the Constitution came to be examined from yet another angle in The Tata Engineering and Locomotive Co. Ltd. and Anr. v. The State and Ors. and Anr., [1964]6SCR885 . 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. Ones a company or a corporation is formed, the business which is carried of by the said company or corporation is the business of the company or corporation, and is not the business of the citizens who get the company or corporation formed or incorporated, and the rights of the incorporated body must be judged on that footing alone and cannot be judged on the assumption that they are the rights attributable to the business of individual citizens. In our opinion, the same principle as has been applied to companies and corporations would apply to a society registered under the Societies Registration Act, 1860.
31. In Azeez Basha v. Union of India - [1968]1SCR833 , 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.
32. In D.A.V. College, Jullundur etc., v The State of Punjab and Ors., AIR1971SC1737 , 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).
33. A Full Bench (five-Judges) decision by the Andhra Pradesh High Court in Seethapathi Nageswara Rao and Ors. v The Government of A.P. and Ors., AIR1978AP121 , 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.
In the case of Dharam Dutt (supra), it has been further laid down that 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) and 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 Apex Court in Dharam Dutt (supra) laid down thus:-
37. 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 fails 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 fail 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.
In the case of Dharam Dutt (supra), the Apex Court has further laid down that 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 Apex Court in the case of Dharam Dutt (supra) on consideration of various decisions, has laid down that 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 the 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 on the interest of public order of morality. The 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. The 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. There is no guaranteed right to recognition of association.
In Tata Engineering and Locomotive Co. Ltd. V/s The State and ors (supra), the Apex Court laid down that the fundamental right to form an association cannot be coupled with the fundamental right to carry on any trade or business. The Apex Court has laid down therein that as soon as citizens form a company, the right guaranteed to them by Article 19(1)(c) has been exercised and once the company has been formed the business which is carried on by the company is the business of the company and not the business of the citizen; the right of incorporated body must be judged on that footing and cannot be judged on assumption that their right attributable to individual citizen. The Apex Court laid down thus:-
29. Mr. Palkhivala sought to draw a distinction between the right of a citizen to carry on trade or business which is contemplated by Art. 19(1)(g) from his right to form associations or unions contemplated by Art. 19(1)(c). He argued that Art. 19(1)(c) enables the citizens to choose their instruments or agents for carrying on the business which it is their fundamental right to carry on. If citizens decide to set up a corporation or a company as their agent for the purpose of carrying on trade or business, that is a right which is guaranteed to them under Art. 19(1)(c). Basing himself on this distinction between the two rights guaranteed by Art. 19(1)(g) and (c) respectively, Mr. Palkhivala somewhat ingeniously contended that we should not hesitate to lift the veil, because by looking at the substance of the matter, we would really be giving effect to the two fundamental rights guaranteed by Art. 19(1). We are not impressed by this argument either. The fundamental right to form an association cannot in this manner be coupled with the fundamental right to carry on any trade or business. As has been held by this Court in All India Bank Employees' Association v. National Industrial Tribunal and Others : (1961)IILLJ385SC, the argument which is thus attractively presented before us overlooks the fact that Art. 19, as contrasted with certain other articles like Arts. 26, 29 and 30, guarantees rights to the citizens as such, and associations cannot lay claim to the fundamental rights guaranteed by that Article solely on the basis of their being an aggregation of citizens, that is to say, the right of the citizens composing the body. The respective rights guaranteed by Art. 19(1) cannot be combined as suggested by Mr. Palkhivala, but must be asserted each in its own way and within its own limits; the sweep of the several rights is no doubt wide, but the combination of any of those two rights would not justify a claim such as is made by Mr. Palkhivala in the present petitions. As soon as citizens form a company, the right guaranteed to them by Art. 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 and cannot be judged on the assumption that they are the rights attributable to the business of individual citizens. Therefore, we are satisfied that the argument based on the distinction between the two rights guaranteed by Art. 19(1)(c) and (g) and the effect of their combination cannot take the petitioners' case very far when they seek to invoke the doctrine that the veil of the corporation should be lifted. That is why we have come to the conclusion that the petitions filed by the petitioners are incompetent under Art. 32, even though in each of these petitions one or two of the shareholders of the petitioning companies or corporation have joined.
It is, therefore, clear that right to form association would not lead to a concomitant right to represent the State of Rajasthan in all the sporting events at the national and international level. No private association can claim right to solely represent the State of Rajasthan and it is within the domain of legislature to decide as to representative association, which shall represent the State of Rajasthan in sports activities; no monopoly can be claimed by any association to represent State of Rajasthan at the national and international level; regulatory measures can be made for such representation, which is in the periphery of concomitant right.
XI-Whether Condition of affiliation is violative of Art.19(1)(c):
In D.A.V. College Etc. Etc. V/s State of Punjab & ors. (1971(2) SCC 269) where statutory affiliation was made compulsory and it was questioned on the ground of being violative of Article 19(1)(c), the contention was negatived and the Apex Court held thus:-
29. It is 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)(e), therefore the notification under Section 5(3) affiliating them to the University is bad. It is also urged that since the words "associated with and admitted to any privileges" or used in Section 5 of the Act, it would mean that Petitioners are compulsorily formed into an Association with the University. This contention however is countered by the Respondents who point out that the freedom of Association under Article 19(1)(c) implies Association between citizens while in the case of the Petitioners what is sought to be affected is an affiliation with the University which is a corporate body.
32. A reference has been made to a recent case of Smt. Damayanti Narang v. Union of India and Ors. Writ Petition No. 91 of 1964, decided on 23-2-71. 45-1, that a compulsory affiliation by statute would interfere with the right of Association. This argument in our view is untenable because in that case Parliament passed a law under entry 63 of List II of Schedule VII to the Constitution under which a Hindi Sammelan was to be constituted which was to consist of the first members of the Hindi Sammelan registered under the Societies Registration Act and all persons who become members thereof in accordance with the rules in that behalf. This statutory Sammelan was constituted as a body corporate the first members of which were to consist of persons who immediately before the appointed day were life members of the Society had been President's of the Society or were awarded the Mangla Prasad Paritoshik by the Society. There were also other provisions by which the Hindi Sammelan Society, its Constitution as well as its property was affected. In those circumstances it was held that the Act in so far as it interferes with the composition of the Society in constituting the Sammelan violated the rights of the original members of the Society to form an Association guaranteed under Article 19(1)(c). No such thing was intended or effected by Section 5 of the Act. At any rate the D.A.V. College Trust and Management Society is not being interfered with, by any attempt to form an Association with the University. We can see no infringement of Article 19(1)(c).
XII- Whether Statute provides for constitution and management:-
In Daman Singh V/s State of Punjab ((1985) 2 SCC 670), the Apex Court held that the creation, the constitution and the management of the Society is a creature of the statute. They are controlled by the statute and so, there can be no objection to statutory interference with their composition on the ground of contravention of the individual right to freedom to form association. The Apex Court further held that once a person becomes a member of a Co-operative Society, he loses his individuality qua the Society and he has no independent rights except those given to him by the statute and the bye- laws. He must act and speak through the Society or rather, the Society alone can act and speak for him qua rights or duties of the Society as a body.
The aforesaid view has also been approved in State of U.P.V/s C.O.D. Chheoki Employees Coop. Society Ltd. ((1997) 3 SCC 681) wherein the Apex Court has held that no individual member is entitled to assail the constitutionality of the provisions of the Act, rules and the bye-laws as he has his right under the Act, rules and the bye-laws and is subject to its operation. The stream cannot rise higher than the source. The Apex Court laid down thus:-
Thus, it is settled law that no citizen has an fundamental right under Article 19(1)(c) to become a member of a Co-operative Society. His right is governed by the provisions of the statute. So, the right to become or to continue being a member of the society is a statutory right. On fulfilment of the qualifications prescribed to become a member and for being a member of the society and on admission, he becomes a member. His being a member of the society is subject to the operation of the Act, rules and bye-laws applicable from time to time. A member of the Society has no independent right qua the Society and it is the society that is entitled to represent as the corporate aggregate. No individual member is entitled to assail the constitutionality of the provisions of the Act, rules and the bye-laws as he has his right under the Act, rules and bye-laws and is subject to its operation. The stream cannot rise higher than the source.
In State of U.P. and another V/s C.O.D. Chheoki Employees Cooperative Societies Ltd. And ors. (supra), the Apex Court held that once a society has been registered under the Act, the management of the society through section 29 and the rules made thereunder, is regulated by duly elected members. In the democratic set up, all eligible persons are entitled to contest the election. In the absence of elected members belong to the weaker sections and women elected, nomination of them by the Government is the alternative dispensation envisaged as one of the policies of the Act. Therefore, the Court cannot interfere with the policy and declare it as unconstitutional violating Article 19(1)(c) of the Constitution.
In Zoroastrian Cooperative Housing Society Ltd. And anr. V/s District Registrar Cooperative Societies Urban & ors. (2005(5) SCC 632), the Apex Court held that the right to become or to continue to being a member of society is statutory right and not fundamental right under Constitution of India. The Apex Court laid down thus:-
21. Membership in a co-operative society only brings about a contractual relationship among the members forming it subject of course to the Act and the Rules. One becomes a member in a co-operative society either at the time of its formation or acquires membership in it on possessing the requisite qualification under the bye-laws of the society and on being accepted as a member. It is not as if one has a fundamental right to become a member of a co-operative society. But certainly, if the application of one for membership, who is otherwise qualified to be a member under the Act, Rules and the bye-laws of the society, is rejected unreasonably or for frivolous reasons, the person may be entitled to enforce his claim to become a member in an appropriate forum or court of law. This is the effect of the decision in Jain Merchants Co-operative Housing Society v. HUF of Manubhai relied on by the High Court. The said decision does not lay down a proposition, nor can it lay down a proposition, that even a person who does not qualify to be a member in terms of the bye-laws of a society can enforce a right to become a member of that society. It is one thing to say that it is not desirable to restrict membership in a society based solely on religion or sex but it is quite different thing to say that any such voluntary approved bye-law containing such a restriction could be ignored or declared unconstitutional by an authority or a tribunal created under the Act itself. Normally, the bye-laws of a society do not have the status of a statute and as held by this Court in Co-operative Central Credit Bank Ltd. v. Industrial Tribunal, Hyderabad (1969)IILLJ698SC bye-laws are only the rules which governs the internal management or administration of a society and they are of the nature of articles of association of a company incorporated under the Companies Act. They may be binding between the persons affected by them but they do not have the force of a statute.
22. The validity of a bye-law, that too an approved bye-law, has to be tested in the light of the provisions of the Act and the rules governing co-operative societies. In so testing, the search should be to see whether a particular bye-law violates the mandate of any of the provisions of the Act or runs counter to any of its provisions or to any of the rules. Section 24(1) of the Act only provides for open membership subject to a person, aspiring to be a member, possessing the qualification prescribed by the bye-laws. It is not an open membership dehors the qualification prescribed by the bye-laws. When in Daman Singh this Court held that when a co-operative society is governed by the appropriate legislation it will be subject to the intervention made by the concerned legislation, it only meant that a legislative provision in the Act can be introduced for the purpose of eliminating a qualification for membership based on sex, religion or a persuasion or mode of life. But so long as there is no legislative intervention of that nature, it is not open to the court to coin a theory that a particular bye-law is not desirable and would be opposed to public policy as indicated by the Constitution. The Constitution no doubt provides that in any State action there shall be no discrimination based either on religion or on sex. But Part III of the Constitution has not interfered with the right of a citizen to enter into a contract for his own benefit and at the same time incurring a certain liability arising out of the contract. As observed by the High Court of Bombay in Karvanagar Sahakari Griha Rachana Sanstha Maryadit and Ors. v. State : AIR1989Bom392 the members have joined the society in accordance with the bye-laws and the members join a housing society by ascertaining what would be the environment in which they will reside. It is not permissible for the State Government to compel the society to amend its bye-laws as it would defeat the object of formation of the society. In that case, the society was constituted with the object of providing peaceful accommodation to its members. Though there may be circumstances justifying the State taking steps to meet shortage of accommodation, it was not open to the State Government to issue a direction to the Registrar of Co-operative Societies to direct a co- operative society to make requisite amendments to their bye-laws and grant permission to its members to raise multistoried constructions. In appeal from that decision reported as State of Maharashtra and Ors. v. Karvanagar Sahakari Griya Rachana Sanstha Maryadit and Ors. : 2000 (9) SCC 295 this Court while dismissing the appeal stated that it was clear that though a power was conferred on the Registrar to direct amendment of the bye-laws of a society, yet the paramount consideration is the interest of the society. So also, the power of the State Government to issue directions in public interest, could not be exercised so as to be prejudicial to the interest of the society. In the view of this Court, what was in the interest of the society was primarily for the society alone to decide and it was not for an outside agency to say. Where, however, the government or the Registrar exercised statutory powers to issue directions to amend the bye-laws, such directions should satisfy the requirement of the interest of the society. This makes it clear that the interest of the society is paramount and that interest would prevail so long as there is nothing in the Act or the Rules prohibiting the promotion of such interest. Going by Chheoki Employees' Cooperative Society Ltd.,'s case, neither the member, respondent No. 2, nor the aspirant to membership, respondent No. 3 had the competence to challenge the validity of the bye-laws of the Society or to claim a right to membership in the Society.
36. The above conclusion would lead us to the question whether there is anything in The Gujarat Co-operative Societies Act and the Gujarat Co-operative Societies Rules restricting the rights of the citizens to form a voluntary association and get it registered under The Co-operative Societies Act confining its membership to a particular set of people recognized by their profession, their sex, their work or the position they hold or with reference to their beliefs, either religious or otherwise. It is not contended that there is any provision in the Gujarat Co-operative Societies Act prohibiting the registration of such a co-operative society. We have already referred to the history of the legislation and the concept of confinement of membership based on residence, belief or community. The concept of open membership, as envisaged by Section 24 of the Act is not absolute on the very wording of that Section. The availability of membership is subject to the qualification prescribed under the provisions of the Act, the Rules and the bye-laws of such society. In other words, if the relevant bye-law of a society places any restriction on a person getting admitted to a co-operative society, that bye-law would be operative against him and no person, or aspiring member, can be heard to say that he will not be bound by that law which prescribes a qualification for his membership.
The Apex Court in State of Gujarat V/s Mirzapur Moti Kureshi Kasab Jamat and ors. (supra) has held that if a statute is being assailed and the statute promotes one of the fundamental duties enshrined in the Constitution, then it may be treated as part of the reasonable restrictions.
When we consider the Act of 2005, we find that there is no restrictive provision; the provisions are regulatory; they regulate the right to represent the revenue districts as well as the State of Rajasthan in sporting events of national and international importance; regulatory measures do not obliterate or extinguish the right to form association; 39 associations were registered under the Act of 1958 and none of the other associations except the petitioner, has approached this Court; existing association had applied for registration. The petitioner has also fought election under the provisions of the Act of 2005 and also represented the District Level Sports Association; thus, it was submitted that he does not have right to challenge the Act of 2005. Even if we do not accept plea of estoppel, we have found, for the reasons mentioned above and hereinafter, the challenge to be baseless.
XIII- Whether conditions of recognition/registration are restrictive of right under Article 19(1)(c):
The question of represented union being violative of Article 19(1)(a) and 19(1)(c) read with Article 14 of the Constitution in the context of Bombay Industrial relations Act 1946 also came up for consideration before the Apex Court in Raja Kulkarni V/s State of Bombay (AIR 1954 SC 73) and the contention was negatived by the Apex Court holding that the Act imposes no restriction either upon the freedom of speech and expression of the textile workers or their right to form associations or unions nor are they prohibited from forming associations or unions. The provision as to which should be representative union of workers was upheld. The Apex Court held thus:-
It is argued that the right of the appellants to freedom of speech and expression and to form associations or unions under article 19(I) (a) and (c), read with article 14, conferring the right of equality before the law or the equal protection of the laws is infringed by the Act, inasmuch as it gives preference to a trade union upon the artificial test of having the greater percentage of membership, namely, not less than 15per cent. We see little merit in this contention. It is obvious that the Act imposes no restriction either upon the freedom of speech and expression of the textile workers or their right to form associations or unions indeed it is not denied that the workers have already formed as many as three unions, though they do not exhaust the number of workers in Bombay, for it leaves as many as 65 per cent. of workers unorganized who do not belong to any trade union. The statute lays down the minimum qualification of 15 per cent of membership to enable the Union to be called a "representative union" so as to represent the interests of the entire body of workers in their relations with the employers. After laying down the test of not less than 15 per cent. it was perfectly reasonable not to allow any other union such as the appellants to interpose in a dispute on behalf of the textile workers when they did not command the minimum percentage or when their membership fell below the prescribed percentage. It is perfectly open to the appellants to enlist that percentage or even a higher one and claim precedence over the Rashtriya Mill Mazdoor Sangh so as to be able to represent the interests of all the workers. The right to freedom of speech and expression is not denied to the appellants, nor are they prohibited from forming associations or unions. The Act makes no discrimination between textile workers as a class but lays down a reasonable' classification to the effect that a certain percentage of membership possessed by a union will be allowed to represent the workers as a class to the exclusion of others, but there is nothing to prevent the other unions or other workers from forming a fresh union and enrolling a higher percent-age so as to acquire the sole right of representation. The appellants challenge the validity of the Act as infringing their fundamental rights and yet they base their case of discrimination on the provisions of the same Act. This position is not in accord with reason or principle.
When we consider on anvil of aforesaid decision the provisions of the Act of 2005, the State can lay down which body should be representative body to represent State/District in the games at National/International/State/District level and lay down parameters for the same. The same objective sought to be achieved by the Act of 2005.
In Raghuvar Dayal V/s Union of India (AIR 1962 SC 263), the provisions of Sections 5, 6 and 10 of the Forward Contracts (Regulations) Act, 1952 were questioned on the anvil of Article 19(1)(c) of the Constitution being right to form association includes effective functioning of association; it was contended that it includes the right to determinate internal management who will manage it, framing of bye-laws and regulations which shall govern relationship between association and its member; Article 19(1)(c) not merely guarantees right to form association, but includes functioning of association without any restraints. The contentions were not accepted by the Apex Court. It was held that 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 little difficult to see how the freedom to form the association is affected nor it could be contended that there is a right in the association guaranteed by the constitution to obtain recognition. Restrictions which are impugned as unconstitutional are imposed only on recognized associations. Parliament could well have chosen to affect the regulation directly through an official agency instead of through the medium of a voluntary association. In such an event, neither the trades nor their associations could complain of any violation of law. The Apex Court laid down thus:-
10. Briefly stated, the argument regarding these provisions infringing the freedom to "form associations" was as follows : The Constitution guarantees to every citizen the right to form an association. The only limitation which might legally be imposed on this right to form an association is that set out in clause (4) of Article 19, viz., bye-laws which place restrictions based on public order or morality. Where the object of the association is lawful, the citizen, 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 objects. Unless sub-clause (c) of clause (1) of Article 19 were so read the freedom guaranteed would be illusory and the Court should, in construing a freedom guaranteed to the citizen, so read it, as to give him an effective right which could be used for the purpose for which the Constitution-framers intended. The further submission, which was in the nature of a corollary from the above was that the freedom guaranteed by sub-clause (c) of clause (1) of Article 19 carried with it a right in the association to determine its internal arrangements in the matter of selecting the personnel who shall manage it, the framing of the bye-laws and regulations which shall govern the relationship between the association and its members as also between it members without any interference by the State unless the law providing for such interference were grounded on morality or public order. In effect 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. On these premises it was urged that while the Constitution had guaranteed the freedom to form an association - including inter alia one for fostering or regulating forward trading, still the Central Government had taken upon themselves the right to determine the rules and bye-laws under which the association could function and had, by the provisions in Ch. III of the Act, in every way interfered in the matter of internal management and it was urged that this was violative of the right guaranteed by sub-clause (c) of clause (1) of Article 19 since the restrictions in Ch. III of the Act could not be held to have been dictated on grounds of public order or morality.
11. We consider this argument is without force. In the first place, 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. Could it be contended that there is a right in the association guaranteed by the Constitution to obtain recognition ? It was not disputed before us that forward trading might sometimes assume undesirable forms and become akin to gambling which might have deleterious consequences on lawful trade and on the general public by causing violent fluctuations in prices. It would follow that the control of forward trading is a legitimate subject of legislative interference and regulation and we might add that this was not disputed before us. The manner in which this regulation is effected and the machinery employed for achieving it are matters of legislative policy which could be determined only by taking into account the organisation of the market, the manner of trading and other relevant factors. The impugned enactment in its Ch. III proceeds on the basis that organisations of tradesmen might be entrusted with the task of regulating these transactions, so that while legitimate trade would be furthered, the evil consequences of undesirable speculation might be avoided. It was, therefore, necessary that the instrument chosen should be subject to control so as effectively to further the policy of the scheme of regulation and that is the ratio underlying the provisions in section 6 of the Act and those which follow it in Ch. III. In this connection it is necessary to add that the restrictions which are impugned as unconstitutional are imposed only on "recognised" associations, Parliament could well have chosen to effect the regulation directly through an official agency instead of through the medium of a voluntary association. In such an event, neither the traders nor their associations could complain of any violation of the law. The mere fact therefore that Parliament chose to utilise the machinery of voluntary trades associations for the purpose of enforcing regulatory control could not invalidate the provision of laws which are designed to ensure effective control over the mechanism of forward trading.
13. We have no hesitation in rejecting the argument that the provisions in Ch. III of the impugned Act, and in particular those which we have set out above, infringe, in any manner, the freedom guaranteed by sub-clause (c) of clause (1) of Article 19.
14. The next provision of the Act whose validity was challenged was section 15 but before stating the grounds upon which this challenge was made it would be convenient to dispose of a contention raised by Mr. Chatterjee -learned Counsel for the petitioners in Writ Petitions 24 and 25 turning on the construction of the section. His submission was that section 15 proceeded on the basis of there being "a recognised association" through which trading in the notified commodity could be conducted before the ban under section 15(1) could be imposed. The argument was based upon the words "otherwise than between members of a recognised association or through or with any such member" occurring towards the last portion of section 15(1). It was urged that under the scheme of the Act the Central Government had first to recognise an association of traders in the commodity, forward trading in which was to be regulated, and that it was only after the recognition of such an association under section 6 that they could under section 15(1) prohibit trading otherwise than through such an association or its members. It was pointed out that the expert committee on gur had itself indicated that such a procedure should be followed and that in the case of certain other commodities like pepper and castor seed which were notified under section 15 the recognition of associations through which forward trading was permitted to be conducted either preceded or was simultaneous with the notification.
On the basis of the aforesaid decision, the Act of 2005 cannot be said to be ultra vires; the application for recognition is voluntary act as per option available under the Act of 2005 and only thereafter, recognition of Association is subject to the regulations envisaged under the Act of 2005. None of the rights of the Association including right to form association has been taken away by providing measures. In any view of the matter, measures do not infringe the right under Article 19(1)(c) of the Constitution; there is no applicability of Section 19(4) as the measures are not restrictive, but they are regulatory one.
XIV- Non-applicability of Article 19(4) to concomitant right:
In All India Bank Employees Association V/s National Industries Tribunal (supra), the Apex Court has held that 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 under lie the grant of each of the rights, for that construction would, 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. The Apex Court laid down thus:-
20. We consider it unnecessary to multiply examples to further illustrate the point. Applying what we have stated earlier to the case of a labour union the position would be this : while the right to form an 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 under lie the grant of each of those rights, for that construction would, 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.
22. Besides the qualification subject to which the right under sub-clause (c) is guaranteed, viz., the contents of clause (4) of Article 19 throw considerable light upon the scope of the freedom, for the significance and contents of the grants of the Constitution are best understood and read in the light of the restrictions imposed. If the right guaranteed included not merely that which would flow on a literal reading of the Article, but every right which is necessary in order that the association brought into existence fulfils every object for which it is formed, the qualifications therefore would be not merely 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. Merely by way of illustration we might point out that learned Counsel admitted that though the freedom guaranteed to workmen to form labour unions carried with it the concomitant right to collective bargaining together with the right to strike, still the provision in the Industrial Disputes Act forbidding strikes in the protected industries as well as in the event of a reference of the dispute to adjudication under section 10 of the Industrial Disputes Act was conceded to be a reasonable restriction on the right guaranteed by sub-clause (c) of clause (1) of Article 19. It would be seen that if the right to strike were by implication a right guaranteed by sub-clause (c) of clause (1) of Article 19, then the restriction on that right in the interests of the general public, viz., of national economy while perfectly legitimate if tested by the criteria in clause (6) of Article 19, might not be capable of being sustained as a reasonable restriction imposed for reasons of morality or public order. On the construction of the Article, therefore, apart from the authorities to which we shall refer presently, we have reached the conclusion that even a very liberal interpretation of sub-clause (c) of clause (1) of Article 19 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.
28. Learned Counsel also referred us two other decisions of the Supreme Court of the United States in which the right of employees to self-organization, to form, join and assist labour organizations and to bargain collectively through representatives of their own choice and to engage in concerted activities for the purpose of collective bargaining or other mutual aid has been referred to as "a fundamental right" (vide National Labour Ralations Board v. Jones and Laughlin Steel Corporation and ors., 81 Law. Ed. 893 and Amalgamated Utility Workers v. Consolidated Edison Company of New York) (84 Law. Ed. 738, 741). We do not consider the inference sought to be drawn well-founded. What the learned Judges of the Supreme Court were referring to as a fundamental right was not with reference to a fundamental right as recognized or guaranteed by the Constitution, but in the sense of a right of the unions which enacted law recognized or respected, and as other decisions of the United States' Supreme Court show, was subject to regulation by the legislature (Vide Weaver Constitutional Law and its Administration (1946) p. 505, referring to Dorchy v. Kansas 272 U. S. 306 : 71 L. Ed. 248 "Neither the common law nor the 14th Amendment confers the absolute right to strike."). We have, therefore, reached the conclusion that the right guaranteed by sub-clause (c) of clause (1) of Article 19 does not carry with it a concomitant right that the unions formed for protecting the interests of labour shall achieve the purpose for which they were brought into existence, such that any interference, to such achievement by the law of the land would be unconstitutional unless the same could be justified as in the interests of public order or morality. In our opinion, the right guaranteed under sub-clause (c) of clause (1) of Article 19 extends to the formation of an association and insofar as the activities of the association are concerned or as regards the steps which the union might take to achieve the purpose of its creation, they are subject to such laws as might be framed and that the validity of such laws is not to be tested by reference to the criteria to be found in clause (4) of Article 19 of the Constitution.
The Apex Court in All India Bank Employees Assn. V/s National Industrial Tribunal (supra) has observed that fulfillment of object of the Association is not included under Article 19(1)(c); the qualifications therefor would be not merely those in clause (4) of Article 19; even a very liberal interpretation of sub-clause (c) of clause (1) of Article 19 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 or as regards the steps which the union might take to achieve the purpose of its creation, they are subject to such laws as might be framed and that the validity of such laws is not to be tested by reference to the criteria to be found in clause (4) of Article 19 of the Constitution.
Thus, we cannot test the validity of the Act of 2005 on the touch stone of Article 19(4). We have no hesitation in rejecting the submission raised to the contrary by the learned Senior Counsel appearing for the petitioner.
In L.N.Mishra Institute of Economic Development & Social Chance, Patna V/s State of Bihar and ors. (1988 (2) SCC 433), the question arose whether the fundamental right to form association as contained in Article 19(1)(c) of the Constitution also includes within it the concomitants or the activities or the objects or purposes of an association and the Apex Court has laid down that right guaranteed under Article 19(1)(c) of the Constitution does not carry with it a concomitant right that unions formed for protecting the interests of labour shall achieve their object such that any interference to such achievement by any law would be unconstitutional unless it could be justified under Article 19(4) as being in the interests of Public order or morality. The right under Article 19(1)(c) extends only to the formation of an association or union and in so far as the activities of the association or union are concerned or as regards the step which the union might take to achieve its object, they are subject to such laws as may be framed and such laws cannot be tested under Article 19(4) of the Constitution.
XV- Foisting of membership:
In Andhra Pradesh Dairy Development Corporation Federation Vs B.Narasimha Reddy and ors. ((2011(9) SCC 286) and Supreme Court Bar Association V/s B.D.Kaushik (supra), the Apex Court laid down that the right to form association guaranteed under Article 19(1)(c) has wide and varied scope for its exercise. The right to form an association is not limited to the initial stage of forming an association, but also entails the right to continue to be associated with only those whom they (members) voluntarily admit. It has also been held that right can be effective only if it is held to include within it, the right to continue the association within its composition as voluntarily agreed upon by the founding members.
In the instant case, we find that there is no foisting of the membership; it is the choice of the Association to apply for registration and recognition; once Association wants recognition and registration under the Act of 2005, it is bound to comply with the terms and conditions of registration as well as recognition, which cannot be said to be unreasonable in any manner; there is no foisting of any of the member, it is at option exercised; it is the volition of the association to opt.
In general, association has no right to foist upon any member, but once an association wanted to take certain advantage with respect to concomitant or concomitant to a concomitant of fundamental right, it cannot be said that there is any violation of the provision contained under Article 19(1)(c) of the Constitution; the Act of 2005 cannot be judged on the basis of the restrictions which can be imposed under Article 19(4) with respect to sovereignty, public order and morality; Article 19(4) is not attracted; concomitant or concomitant to a concomitant of fundamental right is not a fundamental right itself and such concomitant rights do not form fundamental right as enshrined under Article 19(1)(c) of the Constitution.
In Andhra Pradesh Dairy Development Corporation Federation V/s B.Narasimha Reddy (supra), the Apex Court has also laid down that when citizens form a company the right guaranteed to them by Article 19(1)(c) has been exercised; the business which is carried on by the company is the business of the company and not the business of the citizens, who get the Company incorporated. The Apex Court further laid down that right of citizens to form association is different from running the business by that association. Once a cooperative society is formed and registered, for the reason that cooperative society itself is a creature of statute, the rights of the society and that of its members stand abridged by the provisions of the Act. The activities of the society are controlled by the statute. Therefore, there cannot be any objection to statutory interference with their composition or functioning merely on the ground of contravention of individuals right of freedom of association by statutory functionaries. The Apex Court laid down thus:-
27. 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 the individual citizen.
28. In view of the above, it becomes evident that the right of citizens to form an association is different from running the business by that association. Therefore, the right of individuals to form a society has to be understood in a completely different context. Once a cooperative society is formed and registered, for the reason that cooperative society itself is a creature of statute, the rights of the society and that of its members stand abridged by the provisions of the Act. The activities of the society are controlled by the statute. Therefore, there cannot be any objection to statutory interference with their composition or functioning merely on the ground of contravention of individuals right of freedom of association by statutory functionaries.
47. The right to form an association cannot be infringed by forced inclusion of enjoying in expressive activities. The constitutional right to freely associate with others encompasses associational ties designed to further the social, legal and economic benefits of the members of the association. By statutory interventions, the State is not permitted to change the fundamental character of the association or alter the composition of the society itself. The significant encroachment upon associational freedom cannot be justified on the basis of any interest of the Government. However, when the association gets registered under the Cooperative Societies Act, it is governed by the provisions of the Act and the Rules framed thereunder.
The Apex Court has observed in the aforesaid decision that right to form association cannot be infringed by forced inclusion of enjoying in expressive activities. By statutory interventions, the State is not permitted to change the fundamental character of representation or alter the composition of society itself. At the same time, the Apex Court has laid down that when the Association gets registered under the Cooperative Societies Act, it is governed by the provisions of the Act and rules framed thereunder.
When we apply the aforesaid ratio to the instant case, it is apparent that once benefits of registration and recognition under the Act of 2005 have been obtained by any Sports Body or Association, they are bound by the provisions of the Act of 2005; once it is optional, there is no change or alteration of the fundamental character of the association; they have choice and once option is exercised to avail benefits under the Act of 2005, they are bound by the regulatory terms and conditions so as to further the aims and objects as per the Act of 2005; in any view of the matter, the provisions contained under the Act of 2005 are not restrictive, but regulatory one.
In Supreme Court Bar Association V/s B.D. Kaushik (supra), the Apex Court held:-
The right to form an association is recognized as a fundamental right under Article 19(1)(c) of the Constitution. The provision in the SCBA Rules for prescribing eligibility to vote at only one of the associations i.e. One Bar-one Vote is a prescription which is in furtherance of the right to form association and be able to manage the affairs of the association by those regularly practice in the courts of which the association is formed and of which the members are regular practitioners.
The aforesaid decision is not helpful to the petitioner as registration and recognition under the Act of 2005 is optional and after exercise of option, the terms and conditions of the Act of 2005 are applicable. There is no violation of right to form association and to carry on the sports activities.
The petitioner has placed reliance on the decision of the Apex Court in Smt.Damyanti Naranga V/s The Union of India and ors. and the Hindi Sahitya Sammelan and ors. V/s Jagdish Swarup and ors. (1971(1) SCC 678), where Hindi Sahitya Sammelan was registered under the Societies Registration Act No.21 of 1860 with Head office at Allahabad and membership was prescribed by the rules and bye-laws of the Society; the U.P. Legislature passed an Act known as the U.P. Hindi Sahitya Sammelan Act No. 36 of 1956 and that Act was declared void by the Allahabad High Court on the ground that the said Act had made the original Sammelan cease to exist and had provided for the Constitution of a new Sammelan under its terms in which the members of the original Sammelan had no say, so that that Act infringed the right of the members of the original Sammelan of forming an association guaranteed by Article 19(1)(c) of the Constitution. It was further held that that Act was not saved under Article 19(4) of the Constitution. Under the Act, Governing Body was to be constituted; one member to represent Central Government dealing with education; one member to represent the Central Government dealing with finance; not more than three members from amongst the former presidents of the society and the remaining members were to be nominated by the Central Government. The Apex Court held that there was direct interference with the right to form association; there was induction of members without consent of the pre-existing members; the Society may not have liked to admit such members 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; 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. The Apex Court further laid down that after 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. 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. 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 have a law violating the right to form an association.
The Apex Court in Smt.Damyanti Naranga V/s The Union of India and the Hindi Sahitya Sammelan V/s Jagdish Swarup (supra) has laid down thus:-
6. 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 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. 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 Association. 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 Article 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 Anr. v. E.X. Joseph [1963] Su 3 S.C.R. 789. The Court, in that case, was considering the validity of Rule 4(B) of the Central Civil Services (Conduct) Rules, 1955, which laid down that:
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 rights guaranteed by Article 19 can be claimed by Government servants. Article 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 Article 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 Association is withdrawn or if, after the Association is formed, no recognition is accorded 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.
7. 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 Article 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 Article 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.
When we apply the ratio of the aforesaid case to the present case, it is apparent that the decision is against the submissions raised by the petitioner with respect to questioning the validity of the Act of 2005 as the Apex Court has emphasized about the option; it is option exercised to have membership of various districts to represent at District or State level; once option is exercised to obtain the benefit under the Act of 2005, it cannot be said that there is violation of the provision of Article 19(1)(c) of the Constitution; after exercising option with open eyes and obtaining benefit under the provisions of the Act of 2005, such Association is bound to comply with the terms and conditions under the Act of 2005 and it is not open to turn around and say that provisions of the Act of 2005 are invalid or ultra vires, after availing benefits and advantages under the Act of 2005. The Rajasthan Cricket Association has opted for registration and recognition under the Act of 2005 and the petitioner has fought election under the provisions of the Act of 2005 and even represented the District Sports Association and thus availed the benefits under the provisions of the Act of 2005. The Apex Court in the aforesaid decision has also reiterated that after association has been formed and 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 Asom Rashtra Bhasha Prachar Samit and anr.V/s State of Assamand ors. (1989(4) SCC 456), the Apex Court has laid down while considering the provisions of the Assam Rashtrabhasha Prachar Samiti (Taking Over Management and Control) Act, 1984 that the Government has taken the power under section 3 to appoint a Board and the Government can appoint any one not connected with the society at all to be in the Board; it is left to the discretion of the Government to appoint the whole of the Board which will take place of not only the Managing Committee i.e. the Karyapalika but also the place of Byabasthapika Sabha which normally used to be an elected body. The Apex Court held that in the case virtually right of association has been taken away; right guaranteed under Article 19(1(c) is not confined to forming of association, it protects its composition also.
There is no dispute with the aforesaid proposition. However, composition of the association has not been changed; it is only on the option of registration and recognition under the Act of 2005 being exercised that composition came to be changed; as the terms and conditions of the Act of 2005 are not restrictive, rather regulatory and they are in order to further the aims and objects of the Act of 2005, the ratio of the decision in the case of Asom Rashtrabhasa Prachar Samiti (supra) is not applicable to the present case.
In Dharam Dutt V/s Union of India (supra), challenge was made to the constitutional validity of the Indian Council of World Affairs Ordinance, 2001 and the Act which came into force later on; under the Act, a new body corporation known as the Indian Council of World Affairs has come into existence; the same has been declared to be an institution of national importance; the institution has been taken over by the Central Government and entrusted to the new Council- a statutory corporate body; and the society named by the Indian Council of World Affairs has not been touched at all; its membership and organization have been left intact, unhampered with and untouched. The Apex Court has referred to the decision in State of Madras V/s V.G.Row (AIR 1952 SC 196) in which it has been laid down that test of reasonableness, according to the Constitution, 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, shall 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. The Apex Court in the case of Dharam Dutt (supra) laid down thus:-
21. The Constitution Bench in The State of Madras v. V.G. Row, 1952CriLJ966 , laid down twin tests on which the constitutional validity of a legislation under Article 19 is to be tested. The first test is the test of reasonableness which is common to all the clauses under Article 19(1); and the second test is to ask for the answer to the question, whether the restriction sought to be imposed on the fundamental right, falls within Sub-articles (2) to (6) respectively qua the Clauses (a) to (g) of Article 19(1). The test of reasonableness, according to the Constitution Bench, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and, the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint, and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorizing the imposition of the restrictions, considered them to be reasonable. Under the second test, the Constitution Bench, called upon to deal with the legislation impugned before it by reference to Articles 19(1)(c) and 19(4) of the Constitution, held the impugned legislation to be unconstitutional and void because it curtailed the fundamental right to form associations or unions and fell outside the limits of authorized restrictions under Clause (4) of Article 19.
When we examine the Act of 2005 on the touchstone of the aforesaid test, considering the nature of right to carry on sports activities, it is open to the Government to impose riders while registering or recognizing the association/society under the Act of 2005; even there are several riders under the Act of 1958 under which the Society has been registered; similarly when any Society/Body wanted to attain the status and register under the Act of 2005, it is bound by the conditions and it cannot be said that there is violation of the right to form association; under the Act of 2005, the Government has not interfered with the membership or independence of functioning of the Sports Association etc. but made provisions to promote sports activities at State, District and lower level and to ensure equal opportunity of representation at District, State, National and international levels so as to achieve excellence in the field of sports; there is no restriction imposed; provisions are regulatory; the Act of 2005 seeks to create a facilitating democratic structure which would encourage development of sports person, health to promote sports and to develop talent to compete at national and international level; it helps the Sports Associations to nurture, develop and prepare young talent for national or international competitions for winning laurels and medals for Rajasthan; it confers right on the Sports Association to represent Rajasthan and meet the aspirations of the public, discourage nepotism, create a deeper and wider network for selection process, develop and scientific procedure for identifying and promoting natural sports persons.
When registration is sought certain regulatory mechanism is provided under every such Act. The Act of 1958, under which the RCA and other Societies were registered, also provide for terms and conditions to be followed by the Societies registered under the Act of 1958 which was akin to the Act of 2005. Section 1B deals with societies formed by memorandum of association and registration; Section 2 mentions the contents of memorandum of association; Section 3 deals with registration and fee and provides that upon memorandum and certified copy being filed, the Registrar shall certify under his hand that the Society is registered under the Act of 1958. Section 4 provides for filing of annual list; Section 4A provides for filing of changes in governing body and rules; Section 4B provides for penalty for non-compliance of section 4 or 4A or for making a false entry; Section 4C provides for cognizance of offences under section 4-B. Section 5 deals with vesting of property of society; Section 5A provides for appointment of new trustees; Section 9 provides for recovery of penalty accruing under bye-law; Section 12 enables societies to alter, extent or abridge purposes or to amalgamate; Section 12A deals with change of name of societies and 12C provides effect of change of name; Section 13 makes provision for dissolution of societies and adjustment of their affairs. As per Section 14, upon dissolution of any society, no member to receive surplus property may be given to Government as per Section 14A; Section 15 defines member of society and Section 15 defines the meaning of Government body; Section 17 provides registration of societies formed before the Act and not registered; Section 18 gives power to the Registrar to refuse registration in certain cases; Section 18A which was inserted by the Act of 2005 w.e.f. 18.8.2004 empowers the Registrar to refuse or to cancel the registration of certain societies; Section 19 provides for inspection of documents and certified copy thereof. Section 20 contained the names of societies which may be registered under the Act of 1958; Section 21 contains repeal and savings provisions. Thus, Act of 1958 also provides that Societies registered under the Act of 1958 are required to follow and comply the provisions contained therein. If any Sports Association wanted to take the benefit of registration and recognition under the Act of 2005, they are required to follow and comply with the terms and conditions contained in the Act of 2005. Considering the objects and reasons of the Act of 2005, the terms and conditions contained in the Act of 2005 cannot in any manner be regarded as unreasonable or arbitrary and apart from this, only on opting for registration and recognition to obtain benefits under the Act of 2005, such terms and conditions are required to be followed by such Sports Association, which are regulatory in nature to further the laudable objectives of the Act of 2005. Thus, provisions of the Act of 2005 cannot be said to be violative of Article 19(1)(c) and ultra vires the Constitution.
In Sakal Newspaper (P)( Ltd. And ors. V/s Union of India (supra) where the question arose whether the impugned enactment directly impinges on the guarantee of freedom of speech and expression, the Apex Court held that it directly impinges on the freedom either by placing restraint upon it or by placing restraint upon something which is an essential part of that freedom. The freedom of a newspaper to publish any number of pages or to circulated it to any number of persons is each an integral part of the freedom of speech and expression. A restraint placed upon either of them would be a direct infringement of the right of freedom of speech and expression. Since circulation of a newspaper is a part of the right of freedom of speech the Act must be regarded as one directed against the freedom of speech. The Apex Court laid down thus:-
The only question that would then remain would be whether the impugned enactment directly impinges on the guarantee of freedom of speech and expression. It would directly impinge on this freedom either by placing restraint upon it or by placing restraint upon something which is an essential part of that freedom. The freedom of a newspaper to publish any number of pages or to circulated it to any number of persons is each an integral part of the freedom of speech and expression. A restraint placed upon either of them would be a direct infringement of the right of freedom of speech and expression. Perhaps an illustration would make the point clear. Let us suppose that the enactment had said that newspaper 'A' or newspaper 'B' (ignoring for the moment the objection to the illustration based upon Article 14 shall not have more than a specified number of subscribers. Could such a law be valid in the face of the guarantee under Article 19(1)(a) ? The answer must unhesitatingly be no, because such a law would be recognized as directly impinging upon the freedom of expression which encompasses freedom of circulation and to restrain the citizen from propagating his views to any other beyond the limit or number prescribed by the statute. If this were so, the fact that the legislation achieves the same result by means of the schedule of rates makes no difference and the impact on the freedom would still be direct notwithstanding that it does not appear so on its face.
Its object thus is to regulate something which, as already stated, is directly related to the circulation of a newspaper. Since circulation of a newspaper is a part of the right of freedom of speech the Act must be regarded as one directed against the freedom of speech. It has selected the fact or thing which is an essential and basic attribute of the conception of the freedom of speech viz., the right to circulate one's views to all whom one can reach or care to reach for the imposition of a restriction. It seeks to achieve its object of enabling what are termed the smaller newspapers to secure larger circulation by provisions which without disguise are aimed at restricting the circulation of what are termed the larger papers with better financial strength. The impugned law far from being one, which merely interferes with the right of freedom of speech incidentally, does so directly though it seeks to achieve the and by purporting to regulate the business aspect of a newspaper. Such a course is not permissible and the courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution.
The legitimacy of the result intended to be achieved does not necessarily imply that every means to achieve it is permissible; for even if the end is desirable and permissible, the means employed must not transgress the limits laid down by the Constitution, if they directly impinge on any of the fundamental rights guaranteed by the Constitution it is no answer when the constitutionality of the measure is challenged the apart from the fundamental right infringed the provision is otherwise legal.
Finally it was said that one of its objects is to give some kind of protection to small or newly started newspapers and, therefore, the Act is good. Such an object may be desirable but for attaining it the State cannot make inroads on the right of other newspapers which Article 19(1)(a) guarantees to them. There may be other ways of help in them and it is for the State to search for them but the one they have chosen falls foul of the Constitution.
In L.I.C. V/s Professor Manubhai D.Shah ((1992) 3 SCC 637) relied upon by the learned Senior Counsel for the petitioner, the Apex Court observed that constitutional provision is never static, it is ever evolving and ever changing and there-
fore, does not admit of a narrow, pedantic or syllogistic approach. The Apex Court referred to the decision in Dennis V/s United States (341 US 494: 951 Ed 1137 (1951) wherein justice Frankfurter observed that American Supreme Court has always placed a broad interpretation on the constitutional provision for the obvious reason that the constitution has to serve the needs of an ever changing society. The same trend is discernible from the decisions of the Indian Courts also.
When we apply the ratio of the aforesaid decisions, we find that the provisions of the Act of 2005 cannot be said to be ultra vires the Constitution.
In M.Nagaraj V/s Union of India (supra), it has been observed by the Apex Court that the Constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems and challenges.
When we apply the aforesaid ratio to the present case, the Act of 2005 precisely takes care of all emerging associations in the field of sports; it encourages and promotes sports and games activities; it creates facilitating democratic structure and ensures that sports units at all levels get equal opportunity of representation at District, State, National and International levels; it takes care of changing situations and keep flexibility as envisaged in the aforesaid decisions.
In I.R. Coelho (Dead) by LRs. V/s State of Tamil Nadu (supra), the Apex Court observed that fundamental rights and directive principles have to be balanced. That balance can be tilted in favour of the public good. The balance, however, cannot be overturned by completely overriding individual liberty. This balance is an essential feature of the Constitution.
When we consider the balance viz-a-viz Act of 2005, it clears the test laid down in the aforesaid case.
The learned Senior Counsel has also placed reliance on the decision in Teri Ost Estates (P) Ltd. V/s U.T. Chandigarh and ors. ((2004) 2 SCC 130) in which reference has been made to the decision in Om Kumar V/s Union of India ((2001) 2 SCC 386) and doctrine of proportionality has been considered and it was observed that under the principle, the Court will see that the legislature and the administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve. The decision in State of Madras V/s V.G.Row (supra) has also been taken into consideration and the principle of proportionality has been applied while dealing with the validity of legislation infringing fundamental freedoms enumerated in Article 19(1) of the Constitution. The doctrine of proportionality has been applied and upheld by the Apex Court in Balram Kumawant V/s Union of India ((2003) 7 SCC 628).
When we consider the objects and reasons of the Act of 2005, which have been quoted above, the balance tilts in favour of the Act of 2005.
XVI- Whether the Act of 2005 violates Article 19(1)(g) of the Constitution ?
The provisions in the Act of 2005 cannot be said to be violative of Article 19(1)(g) as once association is formed, its activities are governed by Article 19(1)(g). In such case, Article 19(6) comes into play and it is open to the State to make any law imposing reasonable restriction. The prohibition of the use of the description Rajasthan or the use of the name of a District as provided by Section 25(2) of the Act of 2005 cannot be said to be violative of Article 19(1)(g); it cannot be said that there is no rational relationship between the objects stated in the preamble of the Act of 2005 and the prohibition of the use of Rajasthan and the name of district by Sports Association. Prohibition has been rightly carved out as there were several Sports Bodies, which were either not registered or registered under the Act of 1958 which does not provide for effective regulatory mechanism and large number of associations were using the expression Rajasthan and were holding out to be representing Rajasthan, its Districts or a part of Rajasthan without factually acting in representative capacity and with a view to meet the aspirations of the public, discourage nepotism, create deeper and wider network for selection process, develop a scientific procedure for identifying and promoting natural sports persons, the Act of 2005 has been enacted. Thus, prohibition of the use of the expression Rajasthan or name of District as provided under section 25(2) cannot be said to be disproportionate or excessive to the professed aims and objects of the Act of 2005. Hence, the decisions in Chintaman Rao V/s State of MP (1956 SCR 579-764), State of Madras V/s V.G.Row (supra), Om Kumar V/s Union of India (supra) and Teri Oat Estates V/s Union Territory Chandigarh (supra) are of no help to the petitioner.
Similarly, for the reasons mentioned above, Rule 3 of the Rules of 2004 which provided for naming of Sports Association, could not be said to be illegal or arbitrary or disproportionate to the aims and objects of the Ordinance of 2004 replaced by the Act of 2005.
Section 24 of the Act of 2005 empowers the Registrar to appoint an Ad hoc Executive Committee and cause to hold fresh elections of the Executive Body and in case of misappropriation of funds, take action in accordance with law, and sub-section (2) of Section 24 provides that no existing Office Bearer of a Sports Association which is disqualified under sub-section (1) shall be permitted to contest elections of any Sports Association for a period of six years from the date of such disqualification. Before taking above action, the Registrar is required to hold enquiry and also to afford opportunity of being heard to the affected Sports Association. Such provision thus cannot in any manner be regarded as illegal or arbitrary. It does not violate any of the right of the Association. As per Rule 9 of the Rules of 2004 framed at the relevant time when the consequences fell, adhoc executive committee was to be constituted from amongst those persons who were found eligible to be elected to executive body of the association, subject to the provisions of Section 24(2) of the Ordinance of 2004. It is apparent from Rule 9 of the said Rules of 2004 that the Government had not taken upon itself power even to have person of its own choice while constituting adhoc executive committee for a short duration for interregnum period as envisaged under section 24 of the Ordinance of 2004. Even after the replacement of the said Ordinance of 2004 by the Act of 2005, there is no interference by the State in the functioning of the registered association. Submission to the contrary that State has usurped the power, is not tenable.
XVII- Sectionwise consideration of provisions of the Act of 2005:
It was submitted by the learned Senior Counsel appearing on behalf of the petitioner that the provisions of the Act affect the composition of association. In our opinion, the provision of Section 9(2) of the Act of 2005, which provides that Primary Sports Body shall be member of the concerned District Level Sports Association, cannot be said to be restrictive, rather it is regulatory measure and the same is condition of recognition and registration, and it cannot be regarded as arbitrary or unreasonable or violative of Article 19(1)(c) of the Constitution. When option is exercised to avail the benefit under the Act of 2005, such Sports Association is bound by the structure and regulations under the Act of 2005. There is no interference of the State with membership or the independence of functioning of the Sports Association. By making the provision of Section 9, the petitioners autonomy remains even after registration and recognition under the Act of 2005. It is not the question of having no choice; on option being exercised to avail the benefits under the Act of 2005, there is no violation of Article 19(1)(c) and such body is bound to comply with the terms and conditions under the Act of 2005, which are of regulatory nature; the Act of 2005 takes care of the emerging associations in the sports activities and ensures operation of bodies in a representative character and that sports units at all levels get equal opportunity of representation at District, State, National and International levels so as to achieve excellence in the field of sports; it does not in any manner infringe the rights of the Association including under Article 19(1)(c).
The provisions of Sections 10 providing minimum requirement of constituting a sports Association and Section 11 providing composition of the Executive Body also cannot be said to be infringing the right to form association for the reasons mentioned above. The conditions are reasonable and regulatory and applicable only on exercise of option to seek registration and recognition to avail the benefits under the Act of 2005.
The right to continue the association cannot also be said to have been infringed by virtue of Section 27, which provides cessation of registration under the Act of 1958 on exercise of option for registration and recognition under section 26 of the Act of 2005. It is only the registration under the Act of 1958 ceases to exist from the date of registration and recognition under the Act of 2005; there is no cessation of the association. The provisions of Sections 26 and 27 of the Act of 2005 are transitory and are applicable to the Associations existing of the date of commencement of the Act of 2005. The provisions cannot be said to be interfering with the right to continue the association under the Act of 1958. By not exercising option, it was open to the Association/Society to continue in existence by merely barring the use of the name of Rajasthan or in the case of District Level Association, the name of District as provided in Section 25 of the Act of 2005. The right to continue the Association is not interfered with by the Act of 2005. Mere barring of the use of name of Rajasthan or concerned District cannot be said to be taking away of right to form the association; even name of the Association cannot be said to be the substance of the right envisaged under Article 19(1)(c) of the Constitution.
The submission attacking the provisions of Sections 3, 5 and 26 is also liable to be rejected for the reasons mentioned above. Sections 3 and 5 cannot prevail over section 26 as Section 26 has to prevail which makes the registration optional and contains a non-obstante clause over the other provisions and would prevail over other provisions contained in the Act of 2005. Sections 3 and 5 have to be read in consonance with the spirit of Section 26. Sections are intended to apply where Association seeks to represent State of Rajasthan; right of representation cannot be said to be a fundamental right as it is concomitant or concomitant to a concomitant of fundamental right; provisions cannot in any manner be said to be arbitrary or illegal; provisions are regulatory to ensure democratic function of the Association which opts for the benefit of the Act of 2005 to represent the State or district concerned. Merely because the RCA was affiliated to BCCI, it does not impinge upon the validity of the Act of 2005; it is open to the legislature to enact the provisions and affiliation with the BCCI cannot be said to be a fundamental right; it is trite law that affiliation and recognition are governed by the relevant statute under which they are sought.
The submission attacking sections 13, 14 and 15 relating to election, voting right and eligibility for contesting elections is also wholly untenable for the reasons mentioned above; these provisions do not affect the right to form association or continue the association; there are wholesome provisions for election, voting right, eligibility for contesting elections, minimum requirement of constituting Sports Association etc. and they are applicable when option is exercised for registration and recognition to avail benefits under the Act of 2005 and otherwise also they are not unreasonable nor they take away the right of the association under Article 19(1)(c). In Azeez Basha and anr. V/s Union of India (supra), it has been laid down that Article 19(1)(c) does not give any right to manage any institution run by the association. In D.A.V. College etc. V/s State of Punjab (supra), it was held that compulsory affiliation did not infringe Article 19(1)(c). In Daman Singh V/s State of Punjab (supra), it was held that Cooperative Societies are from inception governed by statute and are controlled by statute; amalgamation of two cooperative societies by a cooperative society law does not violate Article 19(1)(c); there cannot be any objection to their control by reason of right to form association under Article 19(1)(c). The decision in Damyanti Naranga (supra) has been held to be inapplicable. In Bhandara Distt.Central Coop. Bank V/s State of Maharashtra ((1993) Supp 3 SCC 259) it has been held that Section 145 of the Cooperative Societies Act laying down that an unrecognized society cannot use the word cooperative does not violate Article 19(1)(c). Thus, provision contained in Section 25 of the Act of 2005 inasmuch as it restricts use of the description Rajasthan as well as name of district with the name of the Association of the State Level or District Level, cannot be said to be violative of Article 19(1)(c).
In State of UP V/s COD Cheoki Employees Cooperative Society (supra), it has been held that there is no fundamental right to be a member of Cooperative Society being created by the statute. Law can provide for reservation in cooperative societies of weaker sections.
The Cooperative Societies exist in a particular set up provided by the Act. Similarly, there are several professional associations like BCI/DCI/MCI and they are created by statutes having right to recognize, lay down standards etc. for violation and also provide the management, discipline, control etc. of such bodies; under the guise of right to form association and further objectives under Article 19(1)(c), the functions of the aforesaid bodies cannot be usurp by a particular association. Under the Act of 2005, option is available to the Sports Association and on exercise of option for registration and recognition, the provisions of the Act of 2005 are applicable; there may be certain conditions for registration and recognition contained under the Act of 2005, but they are not restrictive or unreasonable, but regulatory and reasonable one; they do not infringe any of the rights of the Sports Association including to form association under Article19(1)(c); the provisions take care of all sports associations emerging in the present scenario and confer right on the Sports Associations to represent Rajasthan and meet the aspirations of the public; the State created democratic structure in which the elected persons from the grass-root level till the State level could be effectively represented by a democratically elected method in consonance with the principles of federalism i.e. all the district representatives are at the State level, which in turn would represent the State at the national and international level; the State has provided framework and has not made any interference in independent functioning of the Sports Body; State has legislative competence under Entry 33 of List II of Seventh Schedule of the Constitution to make the Act of 2005; legislative competence of the State has not been questioned.
XVIII- Conclusion:
In view of the discussion made above, we are of the opinion that none of the provisions of the Rajasthan Sports (Registration, Recognition and Regulation of Associations) Act, 2005 infringes any of the rights of the petitioner including the right to form association under Article 19(1)(c); it is within the legislative competence of the State to enact the Act of 2005; the State has not made any nomination or interference with the independence of the functioning of the Sports Body; the Registrar has been empowered to ensure compliance of the Act of 2005; the provisions of the Act of 2005 are not restrictive, but regulatory; option is given for registration and recognition and on exercise of such option to avail the benefits under the Act of 2005, such Sports Association is bound by the terms and conditions contained in the Act of 2005, which are regulatory in nature; it is the volition of the Sports Association to opt and in case it does not opt registration and recognition under the Act of 2005, it can continue without using the expression Rajasthan or District, as the case may be, as part of its name and it is only after exercise of option for registration and recognition under the Act of 2005, such Sports Association is bound to comply with the terms and conditions contained in the Act of 2005 which cannot be said be unreasonable and violative of Article 19(1)(c) of the Act of 2005; violation of so called rights as alleged by the petitioner cannot be said to be right guaranteed under Article 19(1)(c); right of the Sports Association of State or District Level to carry on objectives cannot be said to be part of fundamental right to form association under Article 19(1)(c); it is concomitant right or concomitant to a concomitant of fundamental right; restrictions under Article 19(4) of the Constitution are not applicable even tested on the strength of Article 19(1)(g); the Act of 2005 ensures election of executive body of the Sports Association in a democratic, transparent and fair manner; it encourages sports activities without any restriction; there is no restriction on number of Primary Sports Body; the State Government has not taken away the power of the Sports Association to grant membership; prescription of minimum requirement of constituting a Sports Association is aimed at to promote sports activities; by prescribing minimum and maximum members of Executive Body, no right of the Sports Association including RCA has been taken away; the Act of 2005 ensures fair election and that no sports body should camouflage itself representing the State or District level association under the provisions of Act of 2005, thus it cannot be regarded as unreasonable or arbitrary in any manner whatsoever. The Act of 2005 has been enacted to encourage and promote sports and games activities at various levels; it creates broad based structure to give equal opportunity to all to participate and to develop sports and help bring young talent in sports; it takes care of large number of emerging sports associations in the present scenario and to broad base the activities; it makes the functioning of the Federations/Associations transparent, professional and accountable; it ensures operation of Sports Bodies in a representative character and that sports units at all levels get equal opportunity of representation at District, State, National and International levels, so as to achieve excellence in the field of sports; it confers on Sports Associations legal right to represent Rajasthan and meet the aspirations of the public, discourage nepotism, create a deeper and wider network for selection process, develop a scientific procedure for identifying and promoting natural sports persons.
It is seen that persons, who are not connected with the sports or sports bodies, are at the helm of affairs of such bodies as if such bodies are for their private gains; the concept of private association working for private gains is not being jeopardized by the Act of 2005; ideal situation would be that such bodies are manned by persons of skill, expertise and specialization in such field so that they can manage these bodies fairly and effectively without being influenced by persons, who are not having any expertise or knowledge of the field.
Time has now come that it becomes imminent that sports bodies should have broad base at the grass-root level as has been sought to be achieved under the Act of 2005 and they should function in a democratic manner within a particular framework so that individual is not deprived of duties under Article 51A(j) of the Constitution which leads to the fulfillment of the rights in part III. The State Government is to ensure under Article 39(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. It is also the duty of the State under Article 47 of the Constitution to raise the level of nutrition and the standard of living and to improve public health. Health improvement takes place by sports activities.
In view of the balancing of rights, directive principles and duties, it cannot be said by giving widest amplitude to the right under Article 19(1)(c) that the provisions of the Act of 2005 are repugnant or violative of Article 19(1)(c); the provisions of the Act of 2005 are not restrictive, rather they contain regulatory measures to promote sports activities in a fair and transparent manner, which cannot in any manner be termed as illegal or arbitrary or unreasonable or violative of Articles 14 & 19(1)(c) of the Constitution.
For the reasons mentioned above, we find the challenge to the Rajasthan Sports (Registration, Recognition and Regulation of Associations) Act, 2005 to be meritless. Framing of the Act of 2005 is within the legislative competence of the State. The provisions of the Act of 2005 cannot be said to be violative of any of the provisions of the Constitution and do not in any way infringe any of the rights under Article 19(1)(c) of the Constitution of India, as alleged by the petitioner. Thus, we hold the provisions of the Act of 2005 to be intra-vires.
Resultantly, the writ petition being bereft of merits, deserves dismissal. Accordingly, the writ petition is dismissed. We leave the parties to bear their respective costs.
(BELA M.TRIVEDI), J. (ARUN MISHRA), C.J. Parmar
All the corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Shashi Kant Gaur, P