Case: Dharam Dutt & Others Vs. Union of India & Others

R.C. Lahoti, J.:- 1. W.P. (C) No. 276/2001 filed on June 22, 2002, lays challenge to the constitution validity of the Indian Council of World Affairs Ordinance (2001) (No.3 of 2001), promulgated by the President of India on May 8, 2001, in exercise of the powers conferred by clause (1) of Article 123 of the Constitution of India. During the pendency of this petition the Ordinance came to be replaced by an Act of Parliament, namely, the Indian Council of World Affairs Act, 2001 (Act No. 29 of 2001), which came into force W.E.F. September 1, 2000. On 19.20.2001 W.P. (C) No. 543/2001 was filed laying challenge to the constitutional validity of this Act. Both the petitions have been filed under Article 32 of the Constitution of India and respectively allege the Ordinance and the Act to be violative of Articles 14, 19(1)(a), 19(1)(c) and 300A of the Constitution. FACTUAL BACKDROP: 2. In the year 1943, the Indian Council of World Affairs was formed by about 50 distinguished eminent public personalities as a non-official, non-political and non-profit organization. On March 31, 1945, the Association was registered as a society under the Societies Registration Act, 1860. The principal object of the Society, as set out in the Memorandum of Association, was to promote the study of Indian and international questions so as to develop a body of informed opinion on world affairs and Indian relation thereto through study, research, discussion, lectures, exchange of ideas as information etc., with other bodies in India and abroad engaged in similar activities. The activities of the Society were housed in a building known as Sapru House. Sapru House has come up on a land of about 2 acres situated at No.1, Barakhamba Road, New Delhi, given on lease by the Government of India some time in the year 1950-51. Sapru House has a library with a collection of books mainly on international affairs, an auditorium for holding seminars and discussions, a conference room and other office accommodation. The Society was receiving grants from the Government of India from 1974 until the year 1987, whereafter the grant has been discontinued.3. On June 30, 1990, the President of India promulgated an Ordinance whereby a statutory body known as the Indian Council of World Affairs was constituted, having perpetual succession and a common seal, with power to hold and dispose of property both movable and immovable. The constitutional validity of this Ordinance was put in issue by filing a writ petition before the High Court of Punjab and Haryana at Chandigarh, registered as Civil Writ Petition No. 9120 of 1990. A learned Single judge of the High Court vide judgment dated September 10, 1990, allowed the writ petition, holding the Ordinance to be ultra vires of the Constitution of India, violating Article 14, 19(1)(a) and 19(1)(c) thereof and also beyond the legislative competence of the Parliament. The Union of India filed a letters patent appeal against this judgment of the learned Single Judge. The letters patent appeal came up for hearing before a Division Bench of the High Court on October 22, 1990. It was brought to the notice of the Division Bench that the Ordinance promulgated on June 30, 1990 had lapsed on September 19, 1990, as the Bill seeking to replace the Ordinance by an Act of Parliament could not be passed. The Division Bench formed an opinion that the letters patent appeal had become infructuous and directed the same to be dismissed without any adjudication on merits.4.In December 1999, the Ministry of Urban Development, Government of India, cancelled the perpetual lease of the land of the Indian Council of World Affairs. The cancellation of lease was followed by an order of re-entry. A writ petition was filed in the Delhi High Court, laying challenge to the said action of the Central Government. The learned single Judge before whom the writ petition came up for hearing refused to grant any interim relief to the writ petitioner, and so a Letters Patent Appeal No. 577/99 came to be filed before the Division Bench of the Delhi High Court. On December 24, 1999, the High Court directed further proceedings before the Estate Officer under the Public Premises Act to remain stayed. It seems that there was some controversy about the breach of the Interim order granted by the High Court, which led to the filing of two contempt petitions in the High Court of Delhi, which are still pending.5. On September 1, 2000, the President of India promulgated Ordinance No.3 of 2000, the terms whereof were more or less similar and identical with those of the Ordinance of 1990. The constitutional validity of this Ordinance was challenged by filing C.W.P. No. 5174 of 2000 in the High Court of Delhi. A Bill proposing to replace the Ordinance was moved in the Parliament which was passed by the Lok Sabha and was pending in the Rajya Sabha, but the Rajya Sabha was adjourned and, therefore, the Ordinance lapsed on December 31, 2000.6. On January 5, 2001, Ordinance No.1 of 2001 was promulgated seeking to revive Ordinance No.3 of 2000: however, this Ordinance too lapsed on April 3, 2001.7. On May 8, 2001, Ordinance No.3 of 2001 was promulgated and replaced by an Act of Parliament, which received the assent of the President of India on September 3, 2001.8. The facts stated hereinabove are almost undisputed. We say so because the chronology of events is not at all the dispute; there is a minor variation in the manner of narration of the events and the background leading to the promulgation of the Ordinances and the passing of the Act, which are not very material and hence have been overlooked. We may now broadly state the facts which are disputed and which form the subject matter of the controversy arising for decision in the writ petitions. The Controversy 9. According to the writ petitioners, Sapru House is a building constructed by the Society. The building, the library and all other movable in Sapru House are owned by the Society. By promulgation the impugned Ordinance and by enacting the impugned Act, the Central Government has taken over the Society as also its movable and immovable properties. This has resulted in violating the right of the writ petitioners to the freedom of speech and expression and to form associations or unions as conferred on citizens by sub-clauses (a) and (c) of clause (1) of Article 19 of the Constitution of India. The Society has been deprived of its property without any authority of law which is violative of Article 300A of the Constitution of India. The impugned Ordinance and the Act are malicious inasmuch as they are motivated by political considerations. It is also alleged that the impugned Ordinance and the Act are violative of the doctrine of Separation. The High Court of Punjab and Haryana had struck down an Ordinance which contained similar provisions and the said judgment dated September 10, 1990, has achieved a finality in view of the challenge to the legality of the judgment having been given up by the Union of Indian by not pressing the letters patent appeal. A subsequent legislation which is in defiance of the judgment of the High Court deserves to be struck down solely on this ground. 10. According to the counter-affidavit filed by the Union of India, the Indian Council of World Affairs (ICWA, for short) had attained an International stature in connection with world affairs and the foreign policies of India vis-a-vis other countries. However, the activities of the Society, i.e. running the Institution, were being complained against by several persons all over the country on account of the sub-standard level of programmes and the activities being conducted, as also about the standard of the maintenance of stock of books, periodicals, etc. in the library. The image and reputation of the Institution drew adverse publicity in the Press. In the counter-affidavit several such instances have been highlighted under the title Glaring Instances of Maladministration" as revealed in the Audit conducted by the Comptroller and Auditor General of India. These instances highlight irregular and incomplete maintenance of accounts, misuse and diversion of funds, and deficits and losses accumulating year by year on account of mismanagement and mal-administration. Photographs have been filed with the counter affidavit showing the state of disrepair of the building and its furniture. Serious irregularities were found to have been committed in the conduct of elections of the Executive Committee, resulting the complete breakdown of the democratic functioning of the Institution. The electoral roll consisted of members who had discontinued their membership. Fruit and vegetable vendors were enrolled as members of the Indian Council of World Affairs, so as to pack the membership with defunct members only to ensure the continuance in office of a certain set of people. Membership fees of all such multiple members were being deposited by a single cheque.11. On the affidavit of the Joint Secretary in the Ministry of External Affairs, Government of India, New Delhi, it has been stated that financial assistance was regularly granted to ICWA by the MEA and Deptt. Of Culture (Ministry of Education). Grants have been given after 1986 by organizations like ICSSR. Adhoc grants had been given by the Deptt. of Culture between 1974-1975 till 1988-1989. The last grant of Rs. 5 lakhs from MEA was in 1985-1986. In 1996-1997, the ICWA management wrote off the Capital Reserve of Rs. 19,38,302/- against the accumulated decifit of Rs. 31,06,897/-. The deficit of the erstwhile ICWA continued to increase till the takeover by the newly incorporated body on 2nd September, 2000. The report of the Special Audit of ICWA by CAG, which commercial on 11.8.2000, highlights unaccounted for liabilities to the extent of Rs. 132.84 lacs, contravention of the provisions of the perpetual lease, non-adjustment of cash drawn for day to day expenses amounting to Rs. 22,48,399.65, and possible misappropriation of funds to the tune of Rs. 1,39,086.10 by inflating the total amount of the salary bills.12. According to the respondents, the property-Sapru House, is situated on land which belongs to the Government of India (Land & Development Office). Large subventions and grants have been given from time to time by the Government of India to the Society wherefrom the building was constructed. The lease of the land was terminated for non-payment of dues as well as for various breaches amounting to misuse committed by the Society. The dues as per the claim of the L & DO worked out to more than Rs. 9 crores. Eviction orders were passed by the Estate Officer, which have been stayed by the High Court. However, having acquired management and control over the Institution and the building and other properties in the year 1990, pursuant to the Ordinance, the Government of India had spent about Rs. 2 crores so as to restore Sapru House to its original condition and make it fit for habitation and use. The Union of India has vehemently denied the allegation of the petitioners that the impugned Ordinance and Legislation were politically motivated. It is submitted that Governments have changed from time to time with different political leanings. However, three Parliamentary Standing Committees appointed at different points of time have recommended the taking over of Sapru House, lamenting the decline in the standard of the Institution. Earlier Ordinances are a matter of history and of mere academic relevance in view of the Parliament having ultimately enacted the Act. As to the impugned Act being in violation of the doctrine of Separation of Powers and in defiance of the decision of the Punjab and Haryana High Court, the respondents have submitted that the decision of the learned single Judge was incorrect. In was put in issue by filing a letters patent appeal, which appeal was disposed of without any adjudication on merits due to the High Court having formed an opinion that the adjudication of the appeal was rendered academic in view of the Ordinance having lapsed. The respondents could not have pressed for decision of the letters patent appeal on merits nor could they have taken the matter further because the High Court or this Court would not have entered into the examination of an issue which was rendered of academic interest only.13. The Union of India has vehemently submitted that the Society has not been touched. It continues to survive as before and, therefore, the question of any fundamental right within the meaning of sub-clause (a) and (c) of clause (1) of Article 19 of the Constitution of India having been breached, does not arise. As the Institution, the Indian Council of World Affairs, is an institution of national importance, the impugned enactment is protected by Entries 62 and 63 of List I of the Seventh Schedule to the Constitution of India.14. In the submission of the Union of India the building and the library have been built out of Government of India funds and subventions, and some donations received from persons of the eminence of former Prime Ministers and the President of India and other dignitaries. The Society does not have any right in any of the properties, as is being claimed by the petitioners. Challenge to Ordinance instructuous (W.P.(C) No. 276 of 2001) 15. Before we enter into examining the merits of the attack laid on the impugned Act,

Decision:
0[ds]48. It is well-settled that while dealing with a challenge to the constitutional validity of any legislation, the court should prima facie lean in favour of constitutional and should support the legislation, if it is possible to do so, on any reasonable ground and it is for the party who attacks the validity of the legislation to place all materials before the Court which would make out a case for invalidating the legislation.In spite of there being a general presumption in favour of the constitutionality of the legislation, in a challenge laid to the validity of any legislation allegedly violating any right or freedom guaranteed by Clause (1) of Article 19 of the Constitution, on a prima facie case of such violation having been made out, the onus would shift upon the respondent State to show that the legislation comes within the permissible limits of the most relevant out of Clauses (2) to (6) of Article 19 of the Constitution, and that the restriction is reasonable. The Constitutional Court would expect the State to place before it sufficient material justifying the restriction and its reasonability. On the State succeeding in bringing the restriction within the scope of any of the permissible restrictions, such as, the sovereignty and integrity of India or public order, decency or morality etc. the onus of showing that restriction is unreasonable would shirt back to the petitioner. Where the restriction on its face appears to be unreasonable, nothing more would be required to substantive 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 questions: (i) Whether the right claimed is a fundamental right, (ii) whether the restriction is one contemplated by any of the Clauses (2) to (6) of Article 19, and (iii) whether the restriction is reasonable or unreasonable, are all questions which shall have to be decided by keeping in view the substance of the legislation and not being beguiled by the mere appearance of the legislation.50. The impugned Act does not offend the right guaranteed by Article 19(i)(c). It also does not in any manner deprive the members of the Society of their freedom of speech and expression under Article 19(1)(a).We have already pointed out in an earlier part of this judgment that in the present case successive parliamentary committees found substance in the complaints received that an institution of national importance was suffering from mismanagement and maladministration. The Central Government acted on such findings. Circumstances warranting an emergent action satisfied the President of India, resulting in his promulgating ordinances which earlier could not culminate into legislative enactments on account of fortuitous circumstances. At the end the Parliament exercised its legislative power under Art.245 of the Constitution read with Entries 62 and 63 of List I. The legislation cannot be said to be arbitrary orour opinion. In a given set of facts and circumstances, merely because an alternative action under the Societies Registration Act, 1860 could have served the purpose, a case cannot be and is not made out for finding fault with another legislation if the same be within the legislative competence of the Parliament, which it is, as will be seen hereinafter.Be that as it may, we are clearly of the opinion that the judgment dated September 10, 1990, is not correct and we specifically record our overruling of the same. The doctrine of Separation of Powers and the constitutional convention of the three organs of the State, having regard and respect for each other, is enough answer to the plea raised on behalf of the petitioners founded on the doctrine of Separation of Powers. We cannot strike down a legislation which we have on an independent scrutiny held to be within the legislative competence of the enacting legislature merely because the legislature has reenacted the same legal provisions into an act which, ten years before, were incorporated in an ordinance and were found to be unconstitutional in an erroneous judgment of the High Court and before the error could be corrected in appeal the Ordinance itself lapsed. It has to be remembered that by the impugned Act the Parliament has not overruled the judgment of the High Court nor has it declared the same law to be valid which has been pronounced to be void by the court. It would have been better if before passing the Bill into an Act the attention of the Parliament was specifically invited to the factum of an earlier pari materia Ordinance having been annulled by the High Court. If an ordinance invalidated by the High Court is still reenacted into an Act after the pronouncement by the High Court, the subsequent Act would be liable to be annulled once again on finding that the High Court was right in taking the view of the illegality of the Ordinance, which it did. However, as we have already stated, this is not the position obtaining in the present case. The impugned Act is not liable to be annulled on the ground of violation of the doctrine of Separation ofchallenge to the constitutional validity of the impugned Act fails on all the grounds alleged. The legislation is clearly covered by Entries 62 and 63 of List I Schedule.7. Initially at one time, the institution was receiving financial aid from the Government of India. The institution ICWA has been declared to be an institution of national importance by the Act of Parliament. There is no challenge to the validity of such declaration nor do we find any grounds to take a view different from the one taken in the declaration made by the Government of India. Once an institution is declared to be a national importance, the Parliament is competent to make any law governing the management, administration and affairs of such an institution. It is not the case of the petitioners that though the institution is declared and held to be of national importance, yet in enacting other provisions of the impugned Act, the Parliament has encroached upon any field of legislation not available to it. The provisions of the Act fall within the field of legislation meant for the Union of India.72. The various Entries in the three Lists of the Seventh Schedule are legislative heads defining the fields of legislation and should be liberally and widely interpreted. Not only the main matter but also any incidental and ancillary matters are available to be included within the field of the entry. The settled rules of interpretation governing the Entries do not countenance any narrow and pedantic interpretation. The judicial opinion is for giving a large and liberal interpretation to the scope of the Entries. Suffice it to quote from the opinion of the judicial committee of the Privy Council in British Coal Corporation v. The King (AIR 1935 PC 158 , 162) that in interpreting a constituent or organic statute indeed that construction which is most beneficial to the widest possible amplitude of its powers must be adopted. The Federal Court in United Provinces v. Atiqa Begum (AIR 1941 FC 16, 25) observed that none of the items in the Lists is to be read in a narrow or restricted sense and all ancillary or subsidiary matters referable to the words used in the Entry and which can fairly and reasonably be said to be comprehended therein are to be read in the Entry. This approach has been countenanced in several decisions of this Court. (To wit, see Navinchandra Mafatlal v. CIT Bombay City (1955 (1) SCR 829 , 836) Sri Ram Ram Narain Medhi v. The State of Bombay (1959 Supp. (1) SCR