Calcutta High Court (Appellete Side)
G.R.S.E. Ltd. Workmen'S Union & Anr vs The State Of West Bengal & Ors on 2 December, 2016
1
02.12.2016
01
b.r
W.P. No. 26910 (W) of 2016
G.R.S.E. Ltd. Workmen's Union & Anr.
-vs-
The State of West Bengal & Ors.
Mr. Soumya Majumdar
Mr. Victor Chatterjee
....... for the petitioners.
Mr. Narayan Chandra Bhattacharyya,
Ms. Sujata Ghosh
......for the State.
Mr. Ranjoy De,
Mr. Basabjit Banerjee
...... for the Respondent no.3.
Sri Soumya Majumdar, learned Counsel represents the
writ petitioners of which, the petitioner No.1 is the registered
and recognised Trade Union (for short the Union) as well as a
body corporate under the Trade Unions Act, 1926 (for short
The 1926 Act). The Union claims to be the majority union as
well as the sole bargaining agent of the workmen employed
with the respondent no.3/Ms. Garden Reach Shipbuilders and
Engineers Limited (for short G.R.S.E.).
2
The grievance of the writ petitioners arises in respect of
two notices dated 20th August, 2016 and 14th November, 2016
by which the General Secretary of the Union was informed by
G.R.S.E. that the request of the union for holding gate meeting
at or inside the G.R.S.E. premises cannot be allowed from the
security point of view. It was, inter alia, further communicated
to the union that since the gates are now under the control of
the Central Industrial Security Force ( for short C.I.S.F) and,
as argued by Sri Ranjoy De, learned Counsel for G.R.S.E.
today, G.R.S.E. being a sensitive defence establishment, there
is reason enough not to permit any situation whereby the
security of such an important installation is put to stress.
Sri Majumdar places reliance upon the Trade Unions
(West Bengal Amendment) Act, 1983 (for short the 1983 Act)
and, particularly points out to Chapter-IIIA. Referring to
Section 28E of the said Chapter-IIIA, Sri Majumdar submits
that the present union, being a trade union with sole
bargaining powers, has the privilege of holding discussions on
behalf of the workmen at suitable places at and within the
premises of the industrial establishment. Sri Majumdar also
submits that Section 34 of the said 1983 Act entitles an
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employer to grant protection in the prescribed manner for
lawful trade union activity.
Sri Majumdar additionally relies upon the Constitutional
guarantees of freedom enshrined in Article 19 of the
Constitution of India, and particularly 19( c), which is the right
to form association or unions, inclusive of co-operative
societies. Further referring to the restriction imposed under
Article 19 (4), Sri Majumdar submits that the restrictions
imposed on Article 19 (c) (supra) are only valid in respect of
any existing law so far as such enactment reasonably restricts
in the interests of the sovereignty and integrity of India, law
andorder or morality. In support of his arguments, Sri
Majumdar relies upon the decision of the Hon'ble Apex Court
reported in (2011)9 SCC 286 (Andhra Pradesh Diary
Development Corporation Federation -vs- B. Narasimha
Reddy & Ors.) at Paragraphs 21 and 26 thereof, which makes
it imperative that the content of the right under Article 19(1) (
c) shall be meaningful.
Therefore, to the extent that the impugned notices dated
18th November, 2016 and 20th August, 2016 impose
unreasonable restrictions upon the union at not being allowed
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to hold meetings from the security point of view, Sri Majumdar
submits that such restrictions are required to be set aside.
Counsel for G.R.S.E., Sri De produces before this Court
several correspondence, including the communication dated
22nd August, 2016 from the Commandant, C.I.S.F. Unit,
G.R.S.E. which seeks to convey to the management that the
request of the Union for holding a gate meeting should not be
acceded to since the G.R.S.E. is a sensitive defence
establishment. Sri De also produces several documents to
emphasise the point that elaborate arrangements have been
organised on behalf of the management to ensure that the
unions, including the present petitioners, are not restricted
from the exercise of the franchise of their members, by putting
up several hoardings/posters etc.
Sri De submits that the right of a trade union under the
1983 Act is not unfettered inasmuch as it is restricted to
particular trade union activities to be carried on within the
industrial premises with the consent of the employer. It is also
pointed out by Sri De that the reasonable restrictions under
Article 19(4) contemplate the maintenance of the interests of
the State, meaning thereby its sovereignty and integrity.
5
In support of his arguments, Sri De relies upon several
decisions and the primary among them is the decision of the
Hon'ble Apex Court reported in 2008 LLR 519 in the matter of
Orchid Employees Union & Ors. -vs- Orchid Chemicals &
Pharmaceuticals Ltd. whereby the assembling and picketing
by workmen within hundred meters of the factory premises
have been, inter alia, restricted.
Similar sentiment has been echoed by the High Court at
Delhi in the judgement reported in 2008 L.L.R. 637 in the
case of Superior Crafts -vs- Centre of Indian Trade Unions
& Ors.
Sri De also relies upon the decision in the matter of G4s
Security Services (India) Pvt. Ltd. (M.s.) -vs- G4s
Krantikari Karamchari Union reported in 2012 L.L.R. 673
at paragraphs 11 and 12 whereby meeting of the workers have
been limited within the radius of hundred meters from the
registered office of the establishment in issue.
Relying on the decision reported in 2011 (7) SCALE
340, Sri De argues that there can be an intervention by a writ
6
Court only in the event a legal right has been infringed. In the
absence of any such infringement, no remedy under Article
226 of the Constitution of India can be claimed and, in the
light of the decision reported in 2015(6) SCALE 632, such
remedy under Article 226 of the Constitution of India must be
restricted to only a legal right claimed.
Arguing for the respondent no.2, the Registrar of Trade
Unions, Sri Narayan Chandra Bhattacharya, learned Counsel
submits that the requirement of security being taken notice of,
in such view of the matter the Union must be asked to conduct
its election process in the manner, as compatible to the status
of GRSE as a key defence establishment.
Having heard the parties and considering the materials
placed, this Court is first required to notice the right
guaranteed under Article 19(1( c ), such right to form
association or unions is a species of the right to freedom of
speech and expression as protected under Article 19(1).
Therefore, to the mind of this Court, the process of
election is unique, as distinguished from picketing, other forms
of trade union protest etc., inasmuch as unless the right to
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freedom of speech and expression is ensured by way of a
proper medium, there can be no exercise of a meaningful right
of franchise.
This Court is of the further view that the rights
guaranteed to individual citizens and extended to groups of
citizens forming an association or union under Article 19(1)
must be read, in specific instances, as integrated or,
coterminous rights. For instance, the right to form an
association or union cannot be divorced from the right to
freedom of speech and expression during a process of election
in which the association or union participates and, in which
members of the association or unions cast their ballots.
In this connection useful reference may be made to the
observations of the Hon'ble Apex Court in the following
decisions:-
In the matter of Union of India -vs- Association for
Democratic Reforms & Anr. reported in (2002) 5 SCC
294.
Para 22. For health of democracy and fair election, whether
the disclosure of assets by a candidate, his/her qualification
and particulars regarding involvement in criminal cases are
necessary for informing voters, may be illiterate, so that they
8
can decide intelligently, whom to vote for. In our opinion, the
decision of even an illiterate voter, if properly educated and
informed about the contesting candidate, would be based on
his own relevant criteria of selecting a candidate. In
democracy, periodical elections are conducted for having
efficient governance for the country and for the benefit of
citizens- voters. In a democratic form of government, voters
are of utmost importance They have right to elect or re-elect
on the basis of the antecedents and past performance of the
candidate. The voter has the choice of deciding whether
holding of educational qualification or holding of property is
relevant for electing or re-electing a person to be his
representative. Voter has to decide whether he should cast
vote in favour of a candidate who is involved in a criminal
case. For maintaining purity of elections and a healthy
democracy, voters are required to be educated and well
informed about the contesting candidates. Such information
would include assets held by the candidate, his qualification
including educational qualification and antecedents of his life
including whether he was involved in a criminal case and if
the case is decided- its result, if pending- whether charge is
framed or cognizance is taken by the court. There is no
necessity of suppressing the relevant facts from the voters.
23. The Constitution Bench of this Court in Mohinder
Singh Gill v. Chief Election Commr. While dealing with a
contention that the Election Commission has no power to
cancel the election and direct re-poll, referred to the pervasive
philosophy of democratic elections which Sri Winston
Churchill vivified in matchless words: (SCC p.413 Paras 2-3)
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" ' At the bottom of all tributes paid to democracy is the
little man, walking into a little booth, with a little pencil,
making a little cross on a little bit of paper- no amount of
rhetoric or voluminous discussion can possibly diminish the
overwhelming importance of the point.
If we may add, the little, large Indian shall not be
hijacked from the course of free and fair elections by mob
muscle methods, or subtle perversion of discretion by men '
dressed in little, brief authority'. For ' be you ever so high,
the law is above you.'
The moral may be stated with telling terseness in the
words of William Pitt: ' Where laws end, tyranny begins."
Embracing both these mandates and emphasizing their
combined effect is the elemental law and politics of power
best expressed by Benjamin Disraeli (Vivian Grey, BK VI Ch
7):
' I repeat ....... That all power is a trust- that we are
accountable for its exercise- that, from the people and for the
people, all springs, and all must exist.'"
46(5)- The right to get information in democracy is
recognised all throughout and it is a natural right flowing
from the concept of democracy. At this stage, we would refer
to Article 19(1) and (2) of the International Covenant on Civil
and Political Rights, which is as under.
"(1) Everyone shall have the right to hold opinions
without interference.
(2) Everyone shall have the right to freedom of
expression; this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of
10
frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice."
46.(7) Under our Constitution, Article 19(1)(a) provides for
freedom of speech and expression. Voter'' speech or
expression in case of election would include casting of votes,
that is to say, voter speaks out or expresses by casting vote.
For this purpose, information about the candidate to be
selected is a must. Voter's (little man- citizen's) right to know
antecedents including criminal past of his candidate
contesting election for MP or MLA is much more fundamental
and basic for survival of democracy. The little man may think
over before making his choice of electing law-breakers as
law-makers.
In the case of People's Union for Civil Liberties
(PUCL) & Anr. -vs- Union of India & Anr. reported in (2003)
4 SCC 399 Paragraphs 16,17, 18, 26, 27, 82, 83, 86, 92,
94 and 123 which are quoted below:-
16. Firstly, it is to be made clear that the judgment
rendered by this Court as Assn, for Democratic Reforms has
attained finality. The voters' right to know the antecedents of
the candidates is based on interpretation of Article 19(1)(a)
which provides that all citizens of this country would have
fundamental right to "freedom of speech and expression" and
this phrase is constructed to include fundamental right to
know relevant antecedents of the candidate contesting the
elections.
17. Further, even though we are not required to justify
the directions issued in the aforesaid judgment, to make it
abundantly clear that it is not ipse dixit and is based on
sound foundation, it can be stated thus;
11
Democratic republic is part of the basis structure of the
Constitution.
- For this, free and fair periodical
elections based on adult franchise are a must.
- For having unpolluted healthy
democracy, citizens-voters should be well informed.
18. So, the foundation of a healthy
democracy is to have well-informed citizens-voters. The
reason to have right to information with regard to the
antecedents of the candidate is that voter can judge and
decide in whose favour he should cast his vote. It is the
voter's discretion whether to vote in favour of an illiterate or
literate candidate. It is his choice whether to elect a
candidate against whom criminal cases for serious or non-
serious charges were filed but is acquitted or discharged. He
is to consider whether his candidate may or may not have
sufficient assets so that he may not be tempted to indulge in
unjustified means for accumulating wealth. For assets or
liability, the voter may exercise his discretion in favour of a
candidate whose liability is minimum and/or there are no
overdues of public financial institution or government dues.
From this information, it would be, to some extent, easy to
verify whether unaccounted money is utilized for contesting
election and whether a candidate is contesting election for
getting rich or after being elected to what extent be became
richer. Exposure to public security is one of the known means
for getting clean and less polluted persons to govern the
country. A little man- a citizen-a voter is the master of his
vote. He must have necessary information so that he can
intelligently decide in favour of a candidate who satisfies his
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criterion of being elected as an MP or MLA. On occasions, it is
stated that we are not having such intelligent voters. This is
no excuse. This would be belittling a little citizen/voter. He
himself may be illiterate but still he would have the guts to
decide in whose favour he should cast his vote. In any case,
for having free and fair election and not to convert democracy
into a mobocracy and mockery or a farce, information to
voters is a necessity.
26. The aforesaid passage leaves no
doubt that right to participate by casting vote at the time of
election would be meaningless unless the voters are well
informed about all sides of the issues, in respect of which
they are called upon to express their views by casting their
votes. Disinformation, misinformation, non-information, all
equally create an uninformed citizenry which would finally
make democracy a mobocracy and farce. On this aspect, no
further discussion is required. However, we would narrate
some observations made by Bhagwati,J. ( as he then was) in
S.P. Gupta v. Union of India while dealing with the contention
of right to secrecy that (SCC p.274.para 66) "There can be
little doubt that exposure to public gaze and security is one of
the surest means of achieving a clean and healthy
administration." (emphasis supplied). Further, it was been
explicitly and lucidly held thus: (SCC P.273,Paras 64 -65)
and SCC P.275 para-67).
27. From the aforesaid discussion it can
be held that it is expected by all concerned and as has been
laid down by various decisions of this Court that for survival
of true democracy, the voter must be aware of the
antecedents of his candidate. Voter has to cast intelligent
13
and rational vote according to his own criteria. A well-
informed voter is the foundation of democratic structure. That
information to a voter, who is the citizen of this country, is
one facet of the fundamental right under Article 19(1)(a).
82. Freedom of speech and expression,
just as the equality clause and the guarantee of life and
liberty, has been very broadly construed by this Court right
from the 1950s. It has been variously described as a "basis
human right". " a natural right" and the like. It embraces
within its scope the freedom of propagation and interchange
of ideas, dissemination of information which would help
formation of one's opinion and viewpoint and debates on
matters of public concern. The importance which our
Constitution-makers wanted to attach to this freedom is
evident from the fact that reasonable restrictions on that right
could be placed by law only on the limited grounds specified
in Article 19(2), not to speak of inherent limitations of the
right.
83. In due course of time, several species
of rights unennumerated in Article 19(1)(a) have branched off
from the genus of the article through the process of
interpretation by this Apex Court. One such right is the "right
to information". Perhaps, the first decision which has
adverted to this right is State of U.P. v. Raj Narain. "The right
to know", it was observed (at SCC p.453, Para 74) by
Mathew,J.
"which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security." It was said very aptly: (SCC p.453, para 74).
14"74. In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries."
86. These two decisions have recognized that the right of the citizens to obtain information on matters relating to public acts flows from the fundamental right enshrined in Article 19(1)(a). The pertinent observations made by the learned Judges in these two cases were in the context of the question whether the privilege under Section 123 of the Evidence Act could be claimed by the State in respect of the Blue Book in the first case i.e. Raj Narain case and the file throwing light on the consultation process with the Chief Justice, in the second case. Though the scope and ambit of Article 19(1) (a) vis-à-vis the right to information did not directly arise for consideration in those two landmark decisions, the observations quoted supra have a certain amount of relevance in evaluating the nature and character of the right.
92. For the first time in Union of India v. Assn. For Democratic Reforms which is the forerunner to the present controversy, the right to know about the candidate standing for election has been brought within the sweep of Article 19(1)(a). There can be no doubt that by doing so, a new dimension has been given to the right embodied in Article 19(1)(a) through a creative approach dictated by the need to improve and refine the political process of election. In carving out this right, the Court had not traversed a beaten track but took a fresh path. It must be noted that the right to information evolved by this Court in the said case is qualitatively different from the right to get information about public affairs or the right to receive information through the press and electronic media though to a certain extent, there may be overlapping. The right to information of the voter/citizen is sought to be enforced 15 against an individual who intends to become a public figure and the information relates to his personal matters. Secondly, that right cannot materialize without the State's intervention. The State or its instrumentality has to compel a subject to make the information available to the public, by means of legislation or orders having the force of law. With respect, I am unable to share the view that it stands on the same footing as right to telecast and the right to view sports and games or other items of entertainment through television (vide observations at para 38 of Assn. For Democratic Reforms case). One more observation at SCC p.314, para 30 to the effect that "the decision- making process of a voter would include his right to know about public functionaries who are required to be elected by him needs explanation. Till a candidate gets elected and enters the House, it would not be appropriate to refer to him as a public functionary. Therefore, the right to know about a public act done by a public functionary to which we find reference in Raj Narain case is not the same thing as the right to know about the antecedents of the candidate contesting the election. Nevertheless, the conclusion reached by the Court that the voter has such a right and that the right falls within the realm of freedom of speech and expression guaranteed by Article 19(1) (a) can be justified on good and substantial grounds. To this aspect, I will advert a little later. Before that, I would like to say that it would have been in the fitness of things if the case (UOI v. Assn. For Democratic Reforms) was referred to the Constitution Bench as per the mandate of Article 145(3) for the reasons that a new dimension has been added to the concept of freedom of expression so as to bring within its ambit a new species of right to information. Apparently, no such request was made at the hearing and all parties invited the decision of the three Judge Bench. The law has been laid down therein elevating the right to secure information about a contesting candidate to the position of a fundamental right. That decision has been duly taken note of by 16 Parliament and acted upon by the Election Commission. It has attained finality. At this state, it would not be appropriate to set the clock back and refer the matter to the Constitution Bench to test the correctness of the view taken in that case. I agree with my learned Brother Shah,J. in this respect. However, I would prefer to give reasons of my own - may not be very different from what the learned Judge had expressed, to demonstrate that the proposition laid down by this Court rests on a firm constitutional basis.
94. The trite saying that "democracy is for the people, of the people and by the people" has to be remembered forever. In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government. The will is expressed in periodic elections based on universal adult suffrage held by means of secret ballot. It is through the ballot that the voter expresses his choice or preference for a candidate. "Voting is formal expression of will or opinion by the persons entitled to exercise the right on the subject or issue", as observed by this Court in Lily Thomas v. Speaker, Lok Shabha (SCC pp.236-37, para-2) quoting from Black's Law Dictionary. The citizens of the country are enabled to take part in the government through their chosen representatives. In a parliamentary democracy like ours, the Government of the day is responsible to the people through their elected representatives. The elected representatives acts or is supposed to act as a live link between the people and the Government. The people's representatives fill the role of law-makers and custodians of the Government. People look to them for ventilation and redressal of their grievances. They are the focal point of the will and authority of the people at large. The moment they put in papers for contesting the election, they are subjected to 17 public gaze and public scrutiny. The character, strength and weakness of the candidate is widely debated. Nothing is therefore more important for sustenance of democratic polity than the voter making an intelligent and rational choice of his or her representative. For this, the voter should be in a position to effectively formulate his/her opinion and to ultimately express that opinion through ballot by casting the vote. The concomitant of the right to vote which is the basic postulate of democracy is thus twofold; first, formulation of opinion about the candidates and second, the expression of choice by casting the vote in favour of the preferred candidate at the polling booth. The first step is complementary to the other. Many a voter will be handicapped in formulating the opinion and making a proper choice of the candidate unless the essential information regarding the candidate is available. The voter/citizen should have at least the basic information about the contesting candidate, such as his involvement in serious criminal offences. To scuttle the flow of information- relevant and essential- would affect the electorate's ability to evaluate the candidate. Not only that, the information relating to the candidates will pave the way for public debate on the merits and demerits of the candidates. When once there is public disclosure of the relevant details concerning the candidates, the press, as a media of mass communication and voluntary organizations vigilant enough to channel the public opinion on right lines will be able to disseminate the information and thereby enlighten and alert the public at large regarding the adverse antecedents of a candidate. It will go a long way in promoting the freedom of speech and expression. That goal would be accomplished in two ways. It will help the voter 18 who is interested in seeking and receiving information about the candidate to form an opinion according to his or her conscience and best of judgment and secondly, it will facilitate the press and voluntary organizations in imparting information on a matter of vital public concern. An informed voter- whether he acquires information directly by keeping track of disclosures or through the press and other channels of communication- will be able to fulfil his responsibility in a more satisfactory manner. An enlightened and informed citizenry would undoubtedly enhance democratic values. Thus, the availability of proper and relevant information about the candidate fosters and promotes the freedom of speech and expression both from the point of view of imparting and receiving the information. In turn, it would lead to the preservation of the integrity of electoral process, which is so essential for the growth of democracy. Though I do not go to the extent of remarking that the election will be a farce if the candidates' antecedents are not known to the voters, I would say that such information will certainly be conducive to fairness in election process and integrity in public life. The disclosure of information wold facilitate and augment the freedom of expression both from the point of view of the voter as well as the media through which the information is publicized and openly debated.
In the matter of Dharam Dutt & Ors. -vs- Union of India & Ors. reported in (2004) 1 SCC 712 relevant paragraphs 24, 28, 37 and 49 are quoted below:-
"24. From a reading of the two decisions, namely, Maneka Gandhi case (seven-Judge Bench) and All India 19 Bank Employees Assn. Case (five-Judge 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 they must also be able to achieve the purpose for which they have 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 fulfilment 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 Article 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 20 the citizens as such, the associations can lay claim to the fundamental rights guaranteed by Article 19 solely on the basis of their 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 right not open to citizens or claim freedom from restrictions to which the citizens composing it are subject.
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 w as formed with the legal consequence that any legislation not falling within clause (4) of Article 19 which might in any way hamper the fulfilment 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 lockout 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 fulfils every object for which it is formed, the qualifications therefor would not merely be those in clause (4) of Article 19 21 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. 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 falls within the sweep and expanse of any of the sub-clauses of clause (1), then the next question to be asked would be, whether the impugned law imposes a reasonable restriction falling within the scope of clauses (2) to (6) respectively. However, if the right sought to be canvassed does not fall within the sweep of the fundamental right 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 or if it comes into conflict with any other provision of the Constitution.
49. In spite of there being a general presumption in favour of the constitutionality of the legislation, in a challenge laid to the validity of any legislation allegedly violating any right or freedom guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie case of such violation having been made out, the onus would shift upon the respondent State to show that the legislation comes within the permissible limits of the most relevant out of clauses (2) to (6) of Article 19 of the Constitution, and that the restriction is reasonable. The Constitutional Court would expect the State to place before it sufficient 22 material justifying the restriction and its reasonability. On the State succeeding in bringing the restriction within the scope of any of the permissible restrictions, such as, the sovereignty and integrity of India or public order, decency or morality etc. the onus of showing that restriction is unreasonable would shift back to the petitioner. Where the restriction on its face appears to be unreasonable, nothing more would be required to substantiate the plea of unreasonability. Thus the onus of proof in such like cases is an ongoing shifting process to be consciously observed by the Court called upon to decide the constitutional validity of a legislation by reference to Article 19 of the Constitution. The question; (I) whether the right claimed is a fundamental right, (ii) whether the restriction is one contemplated by any of clauses (2) to (6) of Article 19, and (iii) whether the restriction is reasonable or unreasonable, are all questions which shall have to be decided by keeping in view the substance of the legislation and not by being beguiled by the mere appearance of the legislation.
No doubt, this Court has given anxious thought to the perception of security connected to the G.R.S.E., being a key defence establishment. However, this Court is of the view that the perception of security needs to be counterbalanced with the democratic right of exercise of franchise qua the election process announced on 8th December, 2016.
23Accordingly, this Court directs that the GRSE Management shall consult the respondent no.4, being the Commandant, CISF for demarcating the areas, modalities as well as the dates for permitting the petitioners/Union to hold their meetings connected to the elections.
This Court is also of the view that the security requirement can be met if only the identified persons, who are bona fide workers of GRSE Limited, are filtered to attend the gate meetings of which the timings can also be regulated.
Needless to mention the persons attending the meeting are presumed to be bona fide G.R.S.E. workers who, on a routine basis have access to their places of work inside their establishments. Therefore, this Court is unable to perceive at this stage any additional threat to the security of the establishment, since such bona fide workers shall be regulated by the C.I.S.F, in consultation with the G.R.S.E. management, to attend in the gate meetings.
Further needless to mention that the facility of holding gate meetings in terms of the above directions may be extended to the other association and unions by the GRSE Management commensurate to their standing in the establishment.
24WP No. 26910(W) of 2016 stands accordingly disposed of.
Affidavit of Service filed in Court today be kept with the record.
Urgent photostat certified copies of this order, if applied for, be given to the parties upon compliance of all necessary formalities.
( Subrata Talukdar,J)