Freedom to Form Association
Author: Shweta Pandey Student, Bharati Vidyapeeth, New Law College, Pune
Man is a social animal. He cannot develop keeping himself away from his fellow citizens in the society. No man can live and progress in isolation. He needs to communicate with people around in order to survive in the modern world. When people engage with other people and share the same interests and views, they tend to form a group or association to achieve common aims. Our constitution provides us the right to form such associations and groups but with some reasonable restrictions.
Article 19(1) (c) of the Indian Constitution guarantees to all its citizens the right “to form association, unions, Co-operative Societies.” Under clause 4 of the Article 19,however, the State may by law impose reasonable restrictions on this right in the interest of public order or morality or the sovereignty and integrity of India.
The right of association pre-supposes organization. It is an organisation or permanent relationship between its members in matters of common concern. It thus includes the right to form companies, societies, partnership, trade unions, and political parties. The right guaranteed is not merely the right to form association but also to continue with the association as such. The freedom to form association implies also the freedom to form or not to form, to join or not to join, an association or union.
The right to form of association is in the very lifeblood of a democracy. Without such aright, political parties cannot be formed, and without such parties a democratic form of government, especially that of the parliamentary type cannot be run properly. Hence the constitution guarantees the right to form associations subject to such restrictions as can be imposed under article 19(4).
Restrictions on the Freedom of Association
The right of association, like other individual freedom, is not unrestricted. Clause (4) of article 19 empowers the State to impose reasonable restrictions on the right of freedom of association and union in the interest of “public order” or “morality” or “sovereignty or integrity” of India. It saves existing laws in so far as they are not so inconsistent with fundamental rights of association.
Grounds on which this freedom gets restricted:
Sovereignty and Integrity of India: to safeguard the sovereignty of the country the freedom of form association can be restricted. This freedom will also be restricted if it causes any disturbance or affects the oneness of the country.
Public Order: To maintain safety, public peace, order and tranquillity of the country, the right to form association can be restricted.
Morality: This freedom can be restricted if any of the individuals activities involve indecency or obscenity.
Damyanti vs Union of India
The validity of Hindi Sahitya Sammelan Act, 1962 was challenged as violative of Article 19 (1)(c). The petitioner was a member of an association. The Act changed the composition of the association and introduced new members. The result of this alteration was that the members who voluntarily formed the association were now compelled to act in the association with other members in whose admission they had no say. The Supreme Court held—The Act violated the rights of the original members of the society to form an association guaranteed under Article 19 (1)(c).
“The right to form an association”, the court said, “necessarily implies that the person forming the association have also the right to continue to be associated with only those whom they voluntarily admit in the association. Any law, by which members are introduced in the voluntary association without any option being given to the members who keep them out, or take away the membership of those who have voluntarily joined it, will be a law violating the right to form an association.”
The criminal Law (Amendment) Act, 1908, as amended by the Madras Act, 1950, provided that if the state government was of any opinion that any association interfered with the administration of law or with the maintenance of law and order or that is constituted a danger to the public peace it could, by notification in the Official Gazette declare such association to be unlawful. Such a notification was to be placed before an Advisory Board. Representation against such a notification could be made. If the Advisory Board was of opinion that the association was not unlawful, the Government would cancel the notification. The validity of the above act was challenged in the case of State of Madras vs V.G. Row. The Supreme Court held the restrictions imposed by section 16(2) (b) of the Act unreasonable. The test under it was subjective satisfaction of the Government and the factual existence of the grounds was not a justiciable issue. Therefore the vesting of power in the government to impose restriction on this right, without allowing the grounds tested in a judicial enquiry, was a strong element to be taken into in judging the reasonableness of the restrictions on the right to form association or union. The existence of an Advisory Board could not be a substitute for judicial enquiry.
In Haji Mohd. Vs District Board, Malda, a restriction requiring a teacher to take prior permission to engage in political activities is a reasonable restriction. It aimed at preventing teachers from getting mixed up with the political institutions for a teacher is not merely a citizen but he has to be under certain terms and discipline of employment. But a Government order requiring municipal teachers not to join unions other than those officially approved was held to impose prior restraint on the right to form association and union, which was in the nature of administration censorship, and hence invalid.
The right to form union does not carry with it the right to achieve every object. Thus the trade unions have no guaranteed right to an effective bargaining or right to strike or right to declare a lock-out. Therefore, we can conclude that these associations, clubs, groups and other organizations do indeed play a significant role in an individual’s life. They also play a major part in determining his perception and persuade him to have a broader vision and widened approach towards everything happening in the society. The Constitution ensures that no citizen residing within the territorial jurisdiction of the country is deprived of this right granted under Article 19(1) (c). But at the same time, it is the duty of the citizens to ensure that in the due course of formation of a particular association as well as during the time span of membership, harmony, discipline and order continues to persist in the society.
Constitutional Law of India- Dr. J.N. Pandey
Constitutional Law- M.P. Jain