# / DHARAM DUTT AND ORS v. UNION OF INDIA AND ORS

- **Citation:** [2003] Supp. 6 S.C.R. 151
- **Court:** Supreme Court of India
- **Decided:** 2003-11-24
- **Bench:** R.C. Lahoti, Brijesh Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dharam-dutt-and-ors-v-union-of-india-and-ors-19546
- **Pages:** 50

## Headnote

B
Indian Council of World Affairs Act, 2001-Constitutional validity
of-Held: Act not violative of Articles 14, 19(l)(c) and (a)-Parliament
had legislative competence to pass the Act in exercise of powers under
Article 245 read with entries 62 and 63 of List I of Seventh Schedule- C
There is no violation of doctrine of separation of powers-A/so legislation
not vitiated by the malafides-Hence, Act constitutionally valid-Constitution
of India, 1950-Articles 14, 19(l(c), 19(l)(a), 245, 246 and List I Seventh
Schedule, Entries 62 and 63.
Constitution of India, 1950 :
Article 19-Fundamental rights under-Conferred only on citizens of
India-Rights do not stand on common pedestal but have varying dimensions
and underlying philosophies-Nature of reasonable restrictions imposedDiscussed.
Article 19-Constitutional validity of Legislative enactment-Held:
Test of reasonableness is to be satisfied-Also substance of the legislation
is to be kept in view-Further, in a challenge laid to the constitutional
validity the onus of proof is· on going shifting process.
Article 19(l)(c)-Right to form associations or unions-Does not
carry with it fulfillment of every object of an association for which it was
formed-It would be contrary to the scheme of rights guaranteed by part
D
E
F
lJ1 and those conferred by Article 19(l)(a) to (g)-However, rights flowing
from the fundamental rights are sought to be included and qualifications G
are not merely those in Article 19( 4)-Further right to form an association·
is tested by reference to Article 19(l)(c), validity" of restriction by Article
19(4), and one~ individual citizens form an association and carry on
activity, validity of restriction is tested by reference to Article 19(J)(g) read
~A~kl~
H
151
152
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A
Articles 245 and 246-Seventh Schedule, List I-Entries 62 and 63Indian Council of World Affairs-Institution of national importanceHence, enactment protected by Entries 62 and 63 of List I of Seventh
Schedule-Indian_ Council of World Affairs Act, 2001.
B
Articles 245 01:id 246-Doctrine of Colourable Legislation-Scope
of-Held : Deals with the question of legislative competence to enact a
law-If legislature is competent the motives, bonafides or malafides are not
relevant.
Articles 245, 246, 13, 50 and 226-Indian Council of World Affairs
C Act, 2001-Act incorporating same provisions as contained in Ordinance
declared invalid by High Court--Effect of the judgment of High Court on
the legislation-Held : Judgment of High Court being rendered erroneous,
overrulling of which is specifically recorded, the constitutional validity of
subsequent legislation is not to be decided on basis of the judgment ofHigh
D Court-Further before error could be corrected in appeal, Ordinance
lapsed rendering appeal inji-uctuous-Also by the impugned Act Parliament
not overruling the judgment of High Court nor declaring the same law to
be valid which was pronounced to be void by the Court-Hence, Act not
E
violative of doctrine of separation of powers.
In 1943, an organisation named India Council of World Affairs
was formed. The Association was registered as a society. The principal
object of the Society was to promote the study oflndian and international
questions so as to develop a body of informed opinion on world affairs
F and Indian relation thereto through study, research, discussion, lectures,
exchange of ideas and information etc., with other bodies in India and
abroad engaged in similar activities. The Government of India gave
land on lease to the society. The Society was housed in a building
constructed on the land. It had a library, an auditorium, conference
room and other office accommodation. The Society was receiving
G grants from the Government from 1974 until 1987, whereafter it was
discontinued. There was serious mal-administration and
mismanagement comntitted by the society. On 30.6.1990, the President
of India promulgated an Ordinance whereby a statutory body known
as the I

## Text

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/
DHARAM DUTT AND ORS.
A
v.
UNION OF INDIA AND ORS.
NOVEMBER 24, 2003
[R.C. LAHOTI AND BRIJESH KUMAR, JJ.]
B
Indian Council of World Affairs Act, 2001-Constitutional validity
of-Held: Act not violative of Articles 14, 19(l)(c) and (a)-Parliament
had legislative competence to pass the Act in exercise of powers under
Article 245 read with entries 62 and 63 of List I of Seventh Schedule- C
There is no violation of doctrine of separation of powers-A/so legislation
not vitiated by the malafides-Hence, Act constitutionally valid-Constitution
of India, 1950-Articles 14, 19(l(c), 19(l)(a), 245, 246 and List I Seventh
Schedule, Entries 62 and 63.
Constitution of India, 1950 :
Article 19-Fundamental rights under-Conferred only on citizens of
India-Rights do not stand on common pedestal but have varying dimensions
and underlying philosophies-Nature of reasonable restrictions imposedDiscussed.
Article 19-Constitutional validity of Legislative enactment-Held:
Test of reasonableness is to be satisfied-Also substance of the legislation
is to be kept in view-Further, in a challenge laid to the constitutional
validity the onus of proof is· on going shifting process.
Article 19(l)(c)-Right to form associations or unions-Does not
carry with it fulfillment of every object of an association for which it was
formed-It would be contrary to the scheme of rights guaranteed by part
D
E
F
lJ1 and those conferred by Article 19(l)(a) to (g)-However, rights flowing
from the fundamental rights are sought to be included and qualifications G
are not merely those in Article 19( 4)-Further right to form an association·
is tested by reference to Article 19(l)(c), validity" of restriction by Article
19(4), and one~ individual citizens form an association and carry on
activity, validity of restriction is tested by reference to Article 19(J)(g) read
~A~kl~
H
151
152
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A
Articles 245 and 246-Seventh Schedule, List I-Entries 62 and 63Indian Council of World Affairs-Institution of national importanceHence, enactment protected by Entries 62 and 63 of List I of Seventh
Schedule-Indian_ Council of World Affairs Act, 2001.
B
Articles 245 01:id 246-Doctrine of Colourable Legislation-Scope
of-Held : Deals with the question of legislative competence to enact a
law-If legislature is competent the motives, bonafides or malafides are not
relevant.
Articles 245, 246, 13, 50 and 226-Indian Council of World Affairs
C Act, 2001-Act incorporating same provisions as contained in Ordinance
declared invalid by High Court--Effect of the judgment of High Court on
the legislation-Held : Judgment of High Court being rendered erroneous,
overrulling of which is specifically recorded, the constitutional validity of
subsequent legislation is not to be decided on basis of the judgment ofHigh
D Court-Further before error could be corrected in appeal, Ordinance
lapsed rendering appeal inji-uctuous-Also by the impugned Act Parliament
not overruling the judgment of High Court nor declaring the same law to
be valid which was pronounced to be void by the Court-Hence, Act not
E
violative of doctrine of separation of powers.
In 1943, an organisation named India Council of World Affairs
was formed. The Association was registered as a society. The principal
object of the Society was to promote the study oflndian and international
questions so as to develop a body of informed opinion on world affairs
F and Indian relation thereto through study, research, discussion, lectures,
exchange of ideas and information etc., with other bodies in India and
abroad engaged in similar activities. The Government of India gave
land on lease to the society. The Society was housed in a building
constructed on the land. It had a library, an auditorium, conference
room and other office accommodation. The Society was receiving
G grants from the Government from 1974 until 1987, whereafter it was
discontinued. There was serious mal-administration and
mismanagement comntitted by the society. On 30.6.1990, the President
of India promulgated an Ordinance whereby a statutory body known
as the Indian Council of World Affairs was constituted, having
H perpetual succession and a common seal, with power to hold and
DHARAM OUIT v. U.O.I.
153
dispose of both movable and immovable properties. The constitutional A
··
validity of the Ordinance was challenged. Single Judge of High Court
held the Ordinance as ultra vires the Constitution, violating Articles 14,
19(1)(a) and l 9(1)(c) thereof and also beyond the legislative competence
of Parliament. Union of India filed a letters patent appeal against the
judgment. As the Bill seeking to replace the Ordinance by an Act of B
Parliament could not be passed, the Ordinance lapsed. Division Bench
held that the appeal had become infructuous and dismissed the same.
The President promulgated Ordinance No. 3 of 2000, on similar and
identical terms of the 1990 Ordinance. However, the Ordinance lapsed.
Ordinance No. 1 of 2001 was then promulgated seeking to revive C
Ordinance No. 3 of 2000, however, this Ordinance also lapsed.
Thereafter, Indian Council of World Affairs Ordinance No. 3 of 2001
was promulgated. Writ petition (C) No. 276 of2001 was filed challenging
the constitutional validity of the Ordinance, 2001. During pendency of
this petition, Ordinance came to be replaced by an Act of Parliament- D
Indian Council of World Affairs Act, 2001. Writ petition (C) No. 543
of 2001 was filed challenging the constitutional validity of the Act.
Writ petitioners contended that by promulgating the impugned
Ordinance and by enacting the impugned Act, the Central Government
has taken over the Society as also its movable and immovable properties . E
resulting in violation of petitioners' right to freedom of speech and
expression and to form associations or unions as conferred on citizens
by Article 19(l)(a) and (c); that !~e provisions of the Societies
Registration Act, 1860 were effective enough which, if invoked, could
have taken care of the alleged grievances; that by passing the iegislation, F
ICW A institution was singled out though there were several other
institutions run by societies or other organizations which committed
more serious mismanagement and mat-administration; that the
impugned Act is violative of Article 300A as it deprives the petitioners
of the property vesting in the society; that the impugned Ordinance G
and the Act are malicious being motivated by political considerations;
that the identically worded Ordinance having held to be unconstitutional
and the judgment of High Court holding so having achieved a f!.nality,
th~ Parliament could not have re-enacted the contents of the vitiated
Ordinance into an Act; and that the impugned Ordinance and the Act H
-.)'-......
154
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A are violative of the doctrine of Separation of Powers.
Respondent-Union oflndia contended that the earl,ier Ordinances
have mere academic relevance in view of the Parliament having
ultimately enacted the Act; that as the India Council of World Affairs
B is an institution of national importance, the impugned enactment is
protected by Entries 62 and 63 of List I of the Seventh Schedule; that
the Society has not been touched, it continues to survive as before and,
therefore,Jhere is no violation offun~amental right within the meaning
of Article 19(l)(a) and (c); that the building and the library having
C built out of Government funds, subventions and some donations, the
Society does not have any right in any of the properties; that the
impugned Ordinance and Legislaiion were not politically motivated;
'
D
E
F
that the decision of the Single Judge of High Court with respect to the
identically worded Ordinance was incorrect; and that appeal filed was
disposed of without any adjudication on merits since the High Court
held that the appeal was rendered academic in view of the Ordinanc,e
having lapsed.
Disposing of W.P. (C) No. 276 of 2001 and dismissing W.P. (C)
No. 543 of 2001, the Court
HELD : 1. The challenge to the constitutional validity of the
Indian Council of World A.ffairs Act, 2001 fails. [199-G)
2.1. At one time, the institution-ICWA was receiving financial aid
from the Government of India. ICWA has been declared to be an
'institution of national importance' by the Act of Parliament, thus 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 in enacting other provisions of the impugned Act,
the Parliament has encroached upon any field of legislation not
G available to it. The legislation is clearly covered by Entries 62 and 63
r
of List I Schedule 7 of the Constiution. [199·H, 200-A, B, CJ
2.2. The various Entries in the three Lists of the Seventh Schedule
are legislative heads defining the fields of legislation. A large and
H liberal interpretation should be given to the scope of the Entries. Not
•
"'
,
/
DHARAM DUTT v. U.O.I.
155
only the main matte~ but also any in incidental and ancillary~atters A
are 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. 1200-C-E)
Navinchandra Mafatlal v. CIT Bombay City, (1955) 1 SCR 829 and B
Sri Ram Ram Narain Medhi v. The State of Bombay, 11959) Supp. 1 SCR
989, relied on.
British Coal C01poration v. The King, AIR (1935) PC 158 and
United Provinces v. Atiqa Begum, AIR (1941) FC 16, referred to.
c
3.1. The Court, confronted with a challenge to the constitutional
validity of any legislative enactment by reference to Article 19 would
first ask what is the sweep of the fundamental right guaranteed to the
citizens 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 D
of the sub-clauses of clause (1), then whether the impugned law
imposes a reasonable restriction falling with the scope of chmses (2)
to (6) respectively. However, if the right sought to be canvass"d 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 v.alidity thereof is not to be tested by reference to clauses (2) to (6). E
The test which it would be required to satisfy for its constitutional
validity is one of reasonableness, or if it comes into conflict with any
other provision of the Constitution. This has to be decided by keeping
in view the substance of the legislation and not being beguiled by the
mere appearance of the legislation. 1181-B-D; 187-F)
F
The State of Madras v. VG. Row, (1952) SCR 597, followed.
HC. Narayanappa & Ors ... v. State of Mysore & Ors., (1960) 3 SCR
742, relied on.
State of West Bengal v. Subodh Gopal Bose & Ors., [1954) SCR 587,
referred to.
'
3.2. In spite of there being a general presumption in favour of the
G
constitutionality of the legislation, in a challenge laid to the validity of H
156
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A any leg.fslation allegedly violating any right or fr!edom guaranteed by
clause (1) of Article 19 of the Constitution, on a primafacie 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
B 19 of the Constitution, and that the restriction is reasonable. The Cou.rt
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
C order, decency or morality etc., the onus of showing that restr.iction
is unreasonable would shift back to the petitioner. Where the restriction
on its face appea'rs to be unreasonable, nothing more would be
required to substantiate the plea of unreasonability. Thus the onus of
proof in such cases is an on-going shifting process to be consciously
D observed by the court. (187-B-E]
E
Charanjit Lal Chowdhwy v. The Union of India & Ors., (1950) SCR
869; Board of Trustees, Ayu:-vedic and Unani Tibia College, Delhi v. State
of Delhi (Now Delhi Administration) & Anr., (1962) Supp. 1 SCR 156,
relied on.
3.3. A right to form associations or unions guaranteed under
Article 19(l)(c) 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
F 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
G same could be justified under Article 19(4) as being a restriction
imposed in· the interest of public order or morality. It would be
contradictory to the scheme underlying the text and the frame of the
several fundamental rights guaranteed by Part III and the scheme of
the guarantees conferred by sub-clauses (a) to~ (g) of clause (1) of
H Article 19. (173-E-H]
>
'
,. ' )<.
t
DHARAM DUTT v. U.O.I.
157
3.4. Even a very liberal interpretation cannot lead to the conclusion A
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 B
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 C
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 therefor would 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 D
legitimately engage themselves, would also become relevant. (175-D-HJ ·
3.5. 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 E
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 citizen or claim freedom from restrictions to
which the citizens composing it are subject. While right to form an F
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(l)(g) read
with 19(6). A restrictioh on the activities of the association is not a G
restriction on the activities of the individual citizens forming membership
of the association. [174-B-C, 174-A-B)
Smt. Damyanti Naranga & Anr. v. The Union of India and Ors.,
[ 1971) 3 SCR 840 and Asam Rashtrabhasha Prachar Samiti, Hedayatpur- H
158
SUPREME COURT REPORTS [2003] StJPP. 6 S.C.R.
A Gauhati-3 and Anr. v. State a/Assam and Ors., (1'9891.Supp. SCR 160,
distinguished.
Smt. Maneka Gandhi v. Union of India & Anr.; (197811 SCC 248;
All India Bank Employees' Association v. National Industrial Tribunal,
[19621 3 SCR 269; Mis. Raghubar Dayal Jai Parkash & Anr. v. Union
B of India & Anr., (196213 SCR 547; Azeez Basha v. Union of India, (19681
1SCR833; D.A. V. CollegeJullunduretc., v. The State of Punjab and Ors.,
(1971] 2 SCC 269; Sethapathi Nageswara Rao & Or~. v. The Government
of A.P. & Ors., AIR (1978) A.P. 121 (F.B.); Harakh Bhagat and Anr. v.
Assistant Registrar, Co-operative Societies, Barh, and Ors., AIR (1968)
C Patna 211; SP. Motta v. Union of India & Ors., (1983) 1 SCC 51 and
L.N Mishra Institute of Economic Development and Social <:;hange, Patna
v. State of Bihar & Ors., (1988) 2 SCC 433, referred to.
3.6. As soon as citizens form a company, the rights are guaranteed
D to them by Article 19(1)(c). Once a company or a corporation' is
formed, the business 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
E on that footing alone and cannot be judged on the assumption that they
are the rights attributable to the business of individual citizens. The
same principle would apply to a society registered under the Societies
Registration Act, 1860. (177-D-F]
Tata Engineering and Locomotive Co. Ltd. & Anr. v. The State and
F Ors., (1964) 6 SCR 885, r£:lied on.
3.7. The pith and substance of the impugned legislation is to take
over an institution of national importance. As the formation of the
society, which is a voluntary association, is not adversely affected and.
G the members of the society are free to continue with such association,
the validity of the impugned legislation cannot be tested by reference
to sub-clauses (a) and (c) of clause (1) of Article 19. The activity of the
society which was being .conducted through the in~titution ICWA has
been adversely affected and to that extent the -validity of the legislation
H shall have to be tested by reference to sub-clause (g) of clause (I) of
_"(
DHARAM DUTT v. U.O.I.
159
Article 19. The activity was of the society and the society cannot claim A .
a fundamental right. Even otherwise the impugned legislation is a
reasonable legislation enacted in the interest of the general public and
• to govern an institution of national importance. It is valid. It does not
offend the right guaranteed by Articie 19(1)(c). It also does not in any
manner deprive the members of the Society of their freedom of speech B
and expression under Article 19(l)(a). 1184-G-H, A-B; 187-Gf
4.1. No other institution in the grip of more serious mismanagement
and mat-administration is named or particularized so as to be
comparable with ICWA and there can be a legislation in respect of a C
single institution as is clear from the language itself of Entries 62 and
63 of List I. A single institution is capable of being treated as a class
by itself for the purpose of legislation ifthere are special circumstances
or rel1SOns which are applicable to that institution and such legislation
would not incur the wrath of Article 14. (192-G-H; 193-A)
4.2. Merely because an al.ternative action under the Societies
Registration Act, 1860 could have served the purpose, a case cannot
D
be and is not made out for finding fault with another legislation if the
same be within the legislative competence of the Parliament. The
Parliament had legislative competence to pass the legislation in exercise E
of its legislative power under Article 245 of the Constitution read with
Entries 62 and 63 of List I. The legislation cannot be said to be
arbitrary or violative of Article 14. [192-B~Cf
S.P. Mittal v; Union of India & Ors., {1983 f l SCC 51; Ram Krishna F.
Dalmia v. Justice S.R. Tendolkar, (1959] SCR 279; Raja Birakishore v.
State of Orissa, [1964) 7 SCR 32 and Chiranjit Lal Chowdhuri v. Union
of India, [1950] SCR 869, referred to.
5. The exercise of testing the vires of the impugned legislation by
reference to Article 300A of the Constitution is uncalled for in the G
instant petition since the right to property has ceased to be a fundamental
right, and it is doubtful if it could be enforced by a petition under
Article 32 of the Constitution; that a case of violation of Article 300A
the \vay it is canvassed is not taken up in the writ petition; that the
petition raises disputed questions of facts; that the Union of India has H
160
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A taken over the institution by ena::ting a law which is within the
legislative competence of the Parliament; and that there is not one
document of title produced by the petitioners in support of their claim
to the property. 1191-D; 190-H; 191-A-q
6. The whole doctrine of Colourable legisl!ltion resolves itself into
B the question of the competency of a particular legislature to enact a
particular law. It does not involve any question of bona jides or mala
jides on the part of the legislature. If the legislature is competent to pass
a particular law, motives which impelled it to act are irrelevant and
if incompetent, the question of motive does not. arise at all. In the.
C instant case, the Parliament has the requisite competence to enact the
impugned Act, the enquiry into the motive which persuaded the
Parliament into passing the Act are not relevant. (168-E-Gl
KC. Gajapati Narayan Deo & Ors. v. State of Orissa, (1954) SCR
D
and Board of Trustees, Ayun1edic and Unani Tibia College, Delhi v.
State of Delhi (Now Delhi Administration) & Anr., (1962) Supp. 1 SCC
156, referred to.
7.1. Filing of an appeal destroys the finality of the judgment under
appeal. Upon the lapsing of the earlier Ordinance pending an appeal
E before a Division Bench, appeal being rendered infructuous, the
judgment of Single Judge about the illegality of the earlier Ordinance,
cannot any longer bar this Court from deciding about the validity of
a fresh law on its own merits, even if the fresh law contains similar
provisions. (198-F; 199-A-B)
F
G
7.2. The judgment of High Court is not correct and the overruling
of the same is specifically recorded. Ifby reason ofretrospective alteration
of the factual or legal situation, the judgment is rendered erroneous,
the constitutional validity of the subsequent legislation is not available
to be decided on the basis of the previous judgment. (195-D)
7.3. A legislation which on an independent scrutiny is held to be
within the legislative competence of the enacting legisl!)ture cannot be
struck down merely· because the legislature has re-enacted the same
legal provisions into an Act which, ten years before, were incorporated
H in an Ordinance and were found to be unconstitutional in an erroneous
..
DHARAM DUTT v. U.0.1.
161
judgment of the High Court and before the error could be corrected in A
appeal the Ordinance itselflapsed. 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 B
an earlier pari materia Ordinance having been annulled by the High
Court. The impugned Act is not liable to be annulled on the ground of
violation of the doctrine of Separation of Powers. (199-C-GI
Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality
& Ors., (19691 2 SCC 283; Mis. Misrilal Jain v. State of Orissa & Anr., C
fl977) 3 SCC 212; Madan Mohan Pathak & Anr. v. Union of India &
Ors., fl978) 2 SCC 50; Union of India & Anr. v. Raghubir Singh (Dead)
by Lrs. etc., (198912SCC754; Indian Aluminium Co. & Ors. v. State of
Kera/a & Ors., [199617 SCC 637; Welfare Association A. R.P. M(Jharashtra
& Anr. v. Ranjit P. Gohil & Ors., JT (2003) 2 SC 335; People's Union
for Civil Liberties (PUCL) & Anr. v. Union of India & Anr., (2003] 4 sec D
399 and Smt. Indira Nehru Gandhi v. Shri Raj Narain & Anr., (19751
Supp. SCC I, referred to.
A Judge on Judging : The Role of a Supreme Court in DemocracyBy President Aharon Barak, Supreme Court of Israel, Harvard Law E
Review, Vol. 116, No. 1, November 2002, p. 135, referred to.
8. All the grounds taken in writ petition challenging the Indian
Council of World Affairs Ordinance, 2001 have been reiterated and
reurged in the writ petition challenging the Indian Council of World
Affairs Act 2001. As the merits of the pleas raised on behalf of the writ F
petitioners are available to be considered in the latter writ petition, the
writ petition challenging the Ordinance is rendered infructuous and is
disposed of without any adjudication on merits. The Ordinance having
ceased to operate, the factum of promulgation of such Ordinance remains
only ·a part of the narration of events. Further no such action was taken
thereunder the legality whereof may survive for adjudication.
G
(168-A-C]
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 276 of
2001.
Under A11icle 32 of the Constitution of India.
H
162
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A
WITH
W.P. (C) No. 543 of 2001.
Ashok Nigam, P.P. Rao, Sunil Kumar, Sushender Kumar Chauhan,
Ms. Ritu Puri, Ms. Naresh Bakshi, D.K. Gupta, B.S. Baloria, DineshKumar
B Garg, Dev.inder Verma and R.P. Gupta for the Petitioners.
Raju Ramachandaran, Additional Solicitor General, Altaf Ahmad,
Additional Solicitor General (NP), D.N. Ray, Tufail A. Khan, Ashok
Kumar Pandey, B.V. Bairam Dass, D.S. Mahra, Y.P. Mahajan, M.K.
C MiChael and Shreekant N. Terdol for the Respondents.
The Judgment of the Court was deliyered by
R.C. LAHOTI, J.
D
1. W.P. (C) No. 276/2001 filed on June 22, 2002, lays challenge to
the constitutional validity of the Indian Council of World Affairs Ordinance,
2001 (No.3 of 200 I), promulgated by the President of India on May 8,
2001, in exercise pf 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
E Council of World Affairs Act, 200 I (Act No.29 of 290 I), which came into
force w.e.f. September I, 2000. On 19.10.2001 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 Hie Constitution oflndia and
respectively allege the Ordinance and the Act to b~ violative of Artjcles
F 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
G 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
H world affairs and Indian relation thereto through study, research, discussion,
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DHARAM DUTT v. U.0.1. [LAHOTI, J.]
163
lectures, exchange of ideas and information etc., with other bodies in India A
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. I, Barakhamba Road, New Delhi,
given on lease by the Government of India some time in the year 195051.
Sapru House has a library with a collection of books mainly on B
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 ofindia promulgated an Ordinance C
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; D
registered as Civil Writ Petition No.9120of1990. A learned single Judge
of the High Court vi de judgment dated September l 0, 1990, allowed the
writ petition, holding the Ordinance to be ultra vires of the Constitution
of India, violating Articles 14, 19(l)(a) and 19(l)(c) thereof and also
beyond the legislative competence of the Parliament. The Union of India E
filed a letters patent appeal against this judgment of the learned single
Judge. The letters patent appeal came up for hearing before a Divisiop
Bench of the High Court on October22, 1990. It was brought to the notice
of the Division Bench .. th;;it .the ·Ordinance promulgat~.d 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 F
Bench formed an opinfon that the letters patent appeal had becom~
infructuous and directed the same to be dismissed without any adjudication
on merits.
4. In December 1999, the Ministry of Urban Development, Government G
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 Higli Cou1t, 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 H
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A 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
B 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 of2000, the terms whereofwere more or less similar and
identical with those of the Ordinance of 1990. The constitutional validity
C of this Ordinance was challenged by filing C.W.P. No. 5174 of2000 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.
D
6. On January 5, 2001, Ordinance No.I of2001 was promulgated
seeking to revive Ordinance No.3 of 2000; however, this Ordinance too
lapsed on April 3, 200 l.
7. On May 8, 2001, Ordinance No. 3of2001 was promulgated and
E replaced by an Act of Parliament, which received the assent of the President
of India on September J, 200 l.
'r
8. The facts stated hereinabove are almost undisputed. We say so
because the chronology of events is not at all in dispute; there is a minor
f
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.
G The Controversy
9. According to the writ petitioners, Sapru House is a building
constructed by the Society.
The building, the library and all other
movables in Sapru House are owned by the Society. By promulgating the
H impugned Ordinance and by enacting the impugned Act, the Central
..I
DHARAM DUTT v. U.O.I. [LAHOTI, J.]
165
Government has taken over the Society as also its movable and immovable A
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 (I) 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 B
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 of Powers. The High Court of Punjab and
Haryana had stn1ck down an Ordinance which contained similar provisions C
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.
D
10. According to the counter-affidavit filed by the Union oflndia, 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 E
several persons ail over the country on account of the sub-standard level
of the 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
F
of accounts, misuse and diversion of funds, and deficits and losses
accumulating year by year on account of mismanagement and maladministration. Photographs have been filed with the counter affidavit G
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 in the complete breakdown
of the democratic' functioning of the Institution. The electoral roll consisted
ofmembers who had discontinued their membership. Fruit and vegetable H
166
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A 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.
B
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 ICW A 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 ,b/the Deptt. of
Culture between 1974-1975 till 1988-1989. The last grant of Rs. 5 lakhC from MEA was in 1985-1986. In 1996-1997, the ICWA management
wrote off the Capital Reserve of Rs.19,38,302 against an accumulated
deficit 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 ofICW A by CAG, which commenced
D on 11.8.2000, highlights unaccounted for liabilities to the extent of
Rs. 132.84 lacs, contravention of the provisions of the perpetual lease, nonadjustment 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.
E
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 Governm'ent of India to the Society wherefrom the
building was constructed. The lease of the land was terminated for nonF 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
G 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
H submitted that Governments have changed from time to time with different
~i
J
DHARAM DUTT v. U.0.I. [LAHOTI, J.]
167
political leanings. However, three Parliamentary Standing Committees A
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 B
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. It 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 C
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.
D
13. The Union oflndia 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-clauses (a)
and (c) of clause (I) of Article 19 ofthe Constitution oflndia having been
breached, does not arise. As the Institution, the Indian Council of World E
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 ofOovernment oflndia funds and subventions, F
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 infi·uctuous [WP.(C) No.276 of 2001}
G
15. Before we enter into examining th~ merits of the attack laid on the
impugned Act, we would like to summarily dispose of W.P.(C) No. 276 of
200 l wherein the challenge has been laid to the validity of the Ordinance
only. The Ordinance has been replaced by an Act of Parliament. A fresh H
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SUPREME COURT REPORTS (2003) SUPP. 6 S.C.R.
A petition has been filed laying challenge to the constitutional validity of the
Act. All the grounds taken in W.P.(C) No. 276/2001 have been reiterated
and reurged in W.P.(C) No.543/200 I.