Indian Kanoon - Search engine for Indian Law

"21. The Constitution Bench in State of Madras v. V.G. Row 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 clauses (2) to (6) respectively qua sub-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 sng 39 wpst-92812.2020&connectedpetitions unions and fell outside the limits of authorized restrictions under clause (4) of Article 19.

(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 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 rights 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 was 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 sng 40 wpst-92812.2020&connectedpetitions 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 woulda not merely be those in clause (4) of Article 19 but would be more numerous and very different. Restrictions which bore upon and took into account the several fields in which associations or unions of citizens might legitimately engage themselves, would also become relevant.

(emphasis supplied)

51. The factual scenario emerging from W.P. (Stamp) No. 92812 of 2020 is that certain citizens have formed a company, i.e., the Company, and in its formation, there has been no infraction of the citizens' collective rights under Article 19(1)(c) of the Constitution; the Company, in turn, has set up the medical college, which is an 'occupation' within the meaning of Article sng 41 wpst-92812.2020&connectedpetitions 19(1)(g) as interpreted in T.M.A. Pai Foundation (supra). The medical college, since the last couple of years, has been functional and imparting medical education. The right to establish and manage an educational institution being a Fundamental Right under Article 19(1)(g) recognized in T.M.A. Pai Foundation (supra) has, therefore, been enforced. The medical college in terms of the 1998 Act was bound to obtain affiliation of the said University. If a claim were raised that obtaining compulsory affiliation offends the right guaranteed by Article 19(1)(c), such claim would have collapsed like a pack of cards in view of the decision reported in (1971) 2 SCC 269 (DAV College Vs. State of Punjab) where it was held that 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). No question of obtaining affiliation from the said University was ever raised by the Company. There is also no apparent hurdle in the path of the Company and the medical college to carry on its activities. Now, the Company and the medical college claim that restricting entry of outsiders is a violation of their rights under Article 19(1)(g). Viewed in the light of paragraph 37 of the decision sng 42 wpst-92812.2020&connectedpetitions in Dharam Dutt (supra), it is to be gathered whether the right claimed falls within the sweep and expanse of sub-clause (g). If yes, then the further question of whether the impugned restriction is saved by clause (6) would arise for decision.