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AN ANALYSIS OF RIGHT TO FORM ASSOCIATIONS AND UNIONS UNDER CONSTITUTION OF INIDA BY : DHWANI NITIN NAIKWADI & PRAGATI PANKAJ DEHLIWAL
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AN ANALYSIS OF RIGHT TO FORM ASSOCIATIONS
AND UNIONS UNDER CONSTITUTION OF INIDA
AUTHORED BY : DHWANI NITIN NAIKWADI
(ROLL NO: 31)
& PRAGATI PANKAJ DEHLIWAL (ROLL
NO: 33)
LL.M FIRST YEAR.
(SEM-II)
Progressive Education Society’s
MODERN LAW COLLEGE, PUNE
SAVITRIBAI PHULE PUNE UNIVERSITY
2023-2024
ABSTRACT
Article
19(1)(c) of the Constitution of India guarantees to all or any its citizens the
proper to make associations and unions under clause (4) of Article 19, 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
proper to make associations or unions features a very wide and varied scope
including all kinds of associations’ viz., political parties, clubs, societies,
companies, organizations, entrepreneurship, trade unions, etc. It thus includes
the proper to make companies, societies, partnerships, and trade unions. This
text will deal with Article 19(1) (b) and (c) and its reasonable restrictions.
INTRODUCTION
The right to form associations and
unions is in fact a fundamental right under the Constitution of India under
Article 19 (1) (c). The legislation made the act with the purpose in mind which
was to provide freedom to people who wish to form associations and unions, but
they were fore-sighted with the potentially harmful effects that this right
could have on people. The right to form associations includes the right to form
companies,societies, partnerships, trade unions and political parties and these
rights are governed by reasonable restrictions. The Constitution grants this
right as a fundamental right because of the importance of the interactions it
holds, but at the same time it includes being a participant of an association
which means a complete voluntary decision. The people are equally free to not
to join an association as much as they are free to join one. The Constitution
focuses on giving recognition to the objective that people need to engage in a
healthy environment with people from different spheres.The right to freedom of
association gives to people the opportunity to express and protect the common
interests.
Now if we see man is a social animal,
he cannot live aloof from his fellow mates in the community. No man can live
and progress in isolation, he needs people around to communicate with in order
to survive in the society. So, these associations and groups will not only help
an individual to socialize and create warm and cordial relations with others
but also will give him opportunity to put forth his thoughts and opinions
relating to any issue or particular agenda in the society. Whenever a person
joins any association or group it gives himself an opportunity to act as a
helping hand in promotion and acknowledgement of his views, choices and
interests. It also acts as an inspiration to others to come ahead and share
their own ideologies. But here at the same time while forming associations or
groups, one has to even look into assuring whether the situation is handled
with harmony and peace. Obedience of all these rights and freedoms should be
carried in the disciplined form. These associations should also focus on
motivating the other members to do better and come up with new ideas and at the
same time be supportive towards each other.
CONSTITUTIONAL PROVISION
[1]Article 19(1) (c) of the Constitution
of India guarantees to all or any its citizens the right to make associations
and union under clause (4) of Article 19, the state may by law impose
reasonable restrictions on this right in the interest of public order, morality
or the sovereignty and integrity of India. While the constitution provides for
it as a right, the procedural provisions radically restrict this freedom, by
empowering the State to manage its expression and peremptorily curtail its
exercise. Therefore, it is a fundamental right given in the constitution of
India under Article 19(1) (c). It proclaims that each one citizen shall have
the freedom to make associations or unions for a lawful purpose. The right to
make associations indicates that several individuals get together and form
voluntarily an association with a standard aim, legitimate purpose, and having
a community of interest. It is not an absolute right rather it’s a certain
reasonable restriction.
RIGHTS OF FREEDOM GUAANTEED UNDER
ARTICLE 19 (1) (c)
This section will discuss the
jurisprudence of the Supreme Court with regard to the freedom of association.
The only other source of law with regard to this right is the limitation
imposed by the Constitution itself. The Constitution’s Article 19 (1) (c)
guarantees the freedom of association to all citizens. However, Article 19 (4)
provides that the right to form associations or unions can be limited by
reasonable restrictions in the form of an existing or new law made in the
interests of the sovereignty and integrity of India, or public order or
morality. The restriction on the grounds the interests of the sovereignty and
integrity of India, was not in the original text of the Constitution.51 The
jurisprudence of the Court is separated into six themes and subsections. First,
appropriate notice prior to designation as an unlawful association. The second,
what constitutes an ‘unlawful’ association. Third, the freedom to form an
association versus achieving its aims. Fourth, maintaining the composition of
an association, and control of an association. Fifth, the right not to join a
association, and finally, restrictions specific to employees of the state.
·
Right not to join an Association
In Tika Ramji v. Uttar Pradesh[2],
the Supreme Court considered whether it was legal to mandate that sugar
factories purchase cane only from cooperative societies formed by cane growers
given the right of freedom of association of those cane-sellers who were not
members of such bodies? [3]The
Court held that the fundamental right to form an association did not extend to
make the negative right to not form an association a fundamental right.[4]The
Court reasoned that as per the facts of the case there was no restriction on
the rights of the petitioner. It explained that the petitioner was neither
under any compulsion to join the society nor were there any restrictions on the
market that was available to him. Finally, the Court concludes that the State
Government could mandate the purchase of sugarcane only under certain
circumstances to ensure fair practice in the market[5].
Surprisingly, contrary toTika Ram
is M. Sitharamachary v. Senior Deputy Inspector of School & Another[6].Here,
the Andhra Pradesh High Court was petitioned by an elementary school teacher,
who argued that he not be forced to be part of an association, as mandated by
Rule 3 of the GOM No. 418(Education and Public Health) dated 24th February,
1939. An obligation imposed on members included meeting at least once a month,
with absences being punishable. Justice Satyanarayana Raju quite contrary to
Tika Ramji that was decided only a year and odd before, rightly reasoned that
the right to form an association necessarily implies that a person is free to
refuse to be a member of an association as well[7].The
judge located his rationale in the not simply the ‘forced’ membership but the
inconveniences caused by it, like punishment for non-attendance of association
meetings. He also relied on Suryapal Singh v. U.P Government[8] in
arriving at his decision.
Advantage of Right to form
Associations and Unions
Right to form associations or unions
is a freedom which inspires, motivates and supports individuals to act in
accordance with law as well as people get an exposure to live with each other
either in groups or unions.
- This helps in facilitating and making a way for the
sharing of ideas and various opinions.
- It encourages free flow of opinions, convictions in a
systematic and organized manner.
- By being in associations or groups, individual gains confidence
of dealing with various issues and also gets an opportunity to interact
and express his feelings in a collective environment. Individuals get a
kind of support and feel encouraged to deal various issues also they get
engaged in providing some important information and sharing with each
other.
- Involvement in these associations or groups would help
individuals to survive socially.
- These clubs, groups or associations should work with a
common interest, common aim, legitimate interest and also in the interest
of the community.
So, as we can see due to the
inclusion of the Right to form Associations and Unions many individuals feel
inspired, motivated and get a feeling of being supported by others equally.
This is the real magic of togetherness and dealing various issues in a
collective manner. By addition of this right, many individuals have got an
opportunity to showcase their opinions in front of others and also get
encouragement for the same.
RESTRICTIONS IMPOSED UNDER THIS RIGHT
TO FORM ASSOCIATIONS:
RESONABLE RESTRICTION:
Like any other Fundamental Right
under Article 19, the proper to the association is additionally not absolute
and is subjected to regulation in social interest. Article 19(4) specifically
empowers the state to form any law to fetter, abridge, or abrogate any of the
rights under Article 19(1) (c). Clause (4) empowers the state to impose
reasonable restrictions on the exercise of Right to make Association, in the
interest of the sovereignty and integrity of India, Public order and Morality,
Essential Elements of Restriction:
- It is often imposed only by the authority of law.
- The restriction must be Reasonable.
- The restriction must be associated with the aim
specifically mentioned in Clause 4.
- Judiciary has the facility to check the validity
of those Restrictions on two grounds: whether the restriction is cheap,
and whether it is for the aim mentioned in the clause under which the
restriction is being imposed.
The Constitution of India has given
fundamental rights to the protection of associations. Article 19(1) (c) speaks
about the elemental right of a citizen to make associations and unions. Under
clause (4) of 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 proper association pre-supposes organization. It as
an association or permanent relationship between its members in matters of
common concern. It thus includes the right to form companies, societies,
partnerships, trade unions, and political parties. The proper security isn’t
simply the right to make association however additionally to continue with the
association intrinsically. The freedom type to make association implies
additionally the freedom to make or to not form, to hitch or to not join, an
association or union.
Special restrictions on the
association rights of employees of the state:
This section will discuss the
restrictions on the rights of government employees including members of the
armed forces and security personnel. Even though the rights that are discussed
involve their freedom of association- the restrictions imposed on them as a
class have substantially burdened their ability to exercise this freedom.
Restrictions on members of the armed
forces:
The freedom of association of members
of the armed forces and security personnel are even more compromised than other
government employees. In OusKutilingalAchudan Nair and Ors. v. Union of India
and Ors.[9],
members of the Civil Employees Union, who were employed as ‘non-combatants
un-enrolled’ by the Army, argued that their association not being recognised
violated their freedom of association. The State argued, that the Army Act
whose Rules prohibited joining or forming a trade union governed civilian
employees. The appellants argued that they were not ‘members of the Armed
Forces’ as envisaged by Article 33 of the Constitution as they were civilian
employees. The Court opined that such civilian employees of the Army were an
integral part of the Armed Forces and were within the purview of Article 33.
This provision enables Parliament to modify the application of fundamental
rights guarantees of Constitution to members of the armed forces and other
specified personnel and hence the restrictions on fundamental rights of
civilian members of the Armed Forces were valid.
Similarly, in Delhi Police
Non-Gazetted Karmachari Sangh and Ors. v. Union of India and Ors.,[10]the
appellant union was derecognised under the Police Forces (Restrictions of
Rights) Act, 1996[11].
The union contended that this violates their freedom under Article 19 (1)(c).
The union was initially recognised, but a change in the rules meant that the
union could only consist of officers of the same rank. Since the union
membership comprised a cross section of ranks, before and after the change of
the service rules, its recognition was withdrawn. The Supreme Court while
ruling against the appellants reasoned that Parliament had the power to impose
restrictions upon the fundamental rights of ‘members of Armed Forces’ under
Article 33[12]. Hence,
such restrictions could be imposed on unions and associations. It further held
that this classification had its own rationale of discipline, which could not
be questioned by the Court[13].
In [14]Damayanti v. Union of India, The Supreme Court held
that “The right to form an association”, the Court said, “necessarily ‘implies
that the person forming the association has also the right to still be related
to only those whom they voluntarily admit in the association. Any law by which
members are introduced in the voluntary association with none option being
given to the members to stay them out, or any law which takes away the
membership of these who have voluntarily joined it, is going to be a law
violating the right to form an association”.
In [15]O.K.A. Nair v. Union of India, and the appellants were members of the civil employee’s unions in
the varied centres of Defence Establishments. The Commandant declared their
unions as an unlawful association. They challenged the validity of the impugned
order on the bottom that the said order was volatile of Article 19 (1) (c). The
Supreme Court held that the civil employees of the defence establishments,
answer the outline of the members of the soldiers within the meaning of Article
33, and thus they aren’t entitled to form trade unions. The right to form
associations or unions does not carry with it the right to achieve any
objective. Thus, the trade unions have no guaranteed right to effective
bargaining.
In[16] Balakotaih v. Union of India, the services of the
appellant were terminated under Railway Service Rules for his being a member of
the communist party and a trade unionist. The appellant contended that the
termination from service amounted in substance to denial to him the right to
form an association. The appellant had no doubt a fundamental right to form an
association, but he had no fundamental right to continue in Government service.
Hence, it had been held that the order terminating his services wasn’t in
contravention of Article 19 (1) (c) because the order didn’t prevent him to
continue in Communist Party as a trade unionist.
The restrictions on the right to form associations and unions imposed by
law must be reasonable and that they can only be imposed on the grounds
specifically mentioned in clause (4) of Article 19, in the interests of the
sovereignty and integrity of India, or public order or morality on the exercise
of this right.
A restriction which does not fulfil these conditions are going to be
considered as unreasonable by the courts and can be declared illegal. it might
be an unreasonable restriction to compel employees to possess previous
permission before becoming members of a specific union. Similarly, when a law
imposes a restriction on the union on the bottom that a union shall not be
entitled to represent its members in an industrial dispute unless the union is
approved by the executive authority at his absolute discretion, can’t be
sustained.
Grounds on which this freedom gets restricted:
- Sovereignty and Integrity of India: To
safeguard the sovereignty of the country the freedom to form association
are often restricted. This freedom also will be restricted if it causes
any disturbance or affects the oneness of the country.
- Public Order: to
take care of safety, public peace, order and tranquillity of the country,
the right to form an association is often restricted.
- Morality: This
freedom is often restricted if any of the individual’s activities involve
indecency or obscenity.
The right to form association includes the right to form companies,
societies, partnerships, trade union and political parties. The right
guaranteed is not merely the right to form association but also to continue
with the association intrinsically. The freedom to form association implies
also the freedom to form or to not form, to hitch or to not join, an
association or union.
Any law by which members are introduced in the voluntary association
with none option of being given to the members to stay them out, or any law
which takes away the membership of these who have voluntarily joined it, is
going to be a law violating the right to form an association. The Hindi Sahitya
Sammelan Act does not merely regulate the administration of the affairs of the
first society, what it does is to change the composition of the society itself.
The results of this alteration in the composition are that the members who
voluntarily formed the association are now compelled to act in the association
with other members who are imposed as members by the act and in whose admission
to a membership that they had no say. Such alteration in the composition of the
association itself interferes with the right to still function as members of
the association which was voluntarily formed by the first founders. The Act,
therefore, violates the right of the first members of the society to form an
association guaranteed under Article 19 (1) (c).
Regarding the plea that the Act imposes reasonable restriction under
clause (4) of Article 19[17],
the Court said that clause (4) can’t be called in to say validity for the Act.
Under clause (4), of Article 19 reasonable restrictions are often imposed only
in the interest of the sovereignty and integrity of India or the interests of
public order or morality. The alteration of the constitution of the society in
a manner laid down by the act is not in the interest of the sovereignty or
integrity of India or the interests of public order or morality.
·
Right of
Association and soldiers:
In [18]O.K.A. Nair v. Union of India, a
crucial question arose whether civilian employees, designated as non –
combatants like cooks, chowkidars, barbers, mechanics, bootmakers, tailors etc.
Attached to the Defence Establishments have a right to form associations or
unions. The appellants were members of the civil employee’s unions in the
varied centres of the Defence Establishment. The Commandment declared their
unions as unlawful associations. They challenged that the impugned action was
violative of their fundamental right to form associations or unions under Art
19(1)(c) of the Constitution. They contended that the members of the unions,
though attached to the Defence Establishments, were civilians and their service
conditions were regulated by government officials Rules and thus they might not
be called as” members of the Armed Forces” within the meaning of Article 33
of the Constitution[19].
The Supreme Court rejected the contentions of the appellants and held that the
civilian employees of the Defence Establishments answer the outline of the members
of the soldiers within the meaning of Article 33 and, therefore weren’t
entitled to form trade unions. It’s their duty to follow or accompany the Armed
Personnel on active service or in camp or on March. Although they are
non-combatants and, in some matters, governed by the government officials Rule,
yet they are integral to soldiers. Consequently, under the Army Act, the
Central Government was competent to form rules restricting or curtailing their
fundamental right under Art 19(1) (c).
·
Restrictions on the liberty of
Association:
In [20]Haji Mohd. District Board, Malda , it had been
held that a restriction requiring an educator to require prior permission to
interact in political activities is an inexpensive restriction. It aimed toward
preventing teachers from getting involved with political institutions. For, an
educator is not merely a citizen but he has got to be under certain terms and
discipline of employment.
In [21]Ramakrishna v. President, District Board, Nellore, a
government order requiring municipal teachers to not join unions aside from
those officially approved was held to impose prior restraint on the right to
form association and union, which was in the character of administrative censorship,
and hence invalid.
Article 19 (1) (c) of the
Constitution of India guarantees to all its citizens the right to form
associations, or unions or Co-operative Societies. Under clause (4) of the
Article 19[22],
however, the State may impose reasonable restrictions on this right in the
interest of public order or morality or the sovereignty and integrity of India.
To safeguard the sovereignty and
integrity of the country the freedom to form association can be restricted if
it causes any kind of disturbance or affects the oneness of the country. To
maintain safety, public peace, order and tranquility of the country, the right
to form association can be restricted. This freedom can be restricted if any of
the individual’s activities involve indecency or obscenity.
The right to carry out a strike or a
lockout can be controlled or restricted by an appropriate industrial
legislation and the validity of the same can be tested with clause (4) under
the Article 19 (1) (c)
CONCLUSION
Now we can conclude that these
associations, groups, clubs and other associations do indeed play a significant
role in an individual’s life. They also play a major part in determining his
perception and persuades him to have a broader vision and a widened approach
towards everything happening in the society. The Constitution ensures that no
citizen residing within the 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 the membership, harmony,
discipline and order continues to persist in the society. Also, equally it is
important to take into consideration that the same does not give rise to breach
of public peace.
Therefore, it can be concluded that
these associations, clubs, groups and other organizations do indeed play a big
role in an individual’s life. They also play a serious part in determining his
perception and persuade him to possess a broader vision and a widened approach
towards everything happening in society. The Constitution ensures that no
citizen residing within the territorial jurisdiction of the country is bereft of
this right granted under Art 19(1) (c). But at an equivalent time, it is that
the duty of the citizens to make sure that in the due course of formation of a
specific association also as during the time span of the membership, harmony,
discipline and order continues to continue the society. It is important to
require into consideration that an equivalent does not produce to breach of
public peace. It’s also necessary that the formation or participation and even
continuation of those different associations don’t act as a barrier or an
obstacle in the progress and development of the country. If in the least the
goal or the motive of the people engaged in them is evil or ulterior an
equivalent will end in causing an imbalance in the democratic system. It’ll also
pose a threat to the welfare and well-being of the people in the country.
According to my view technically, an
argument is often raised that Article 19 allows freedom to form associations.
However, labour unions are ruled by the trade unions act. Therefore, the
constitutional guarantee is restricted by the statutory provisions. Now trade
unions act doesn’t mention the formation of trade unions as a matter of right
however tons of as a variety and completion of formalities. Therefore, it can’t
be said that there is a right to form trade unions. The right to form
associations or unions doesn’t ask statutory bodies like local board and
municipalities and thus suppression of an area board or municipalities under
the relevant law can’t be deemed to be an infringement of such right to form
associations or unions.
[1]
Indianlawportal.co.in
[2]AIR 1956 SC 676
[3] The U.P Sugarcane (Regulation of
Supply and Purchase) Act, 1953 vide a notification dated September 27, 1954
mandated this.
[4]Tika Ramji, paras 43-45.
[5] Id.
[6] AIR!1958 AP 78
[7]Ibidpara8
[9] (1976) 2 SCC 780.
[10] (1987) 1 SCC 115
[11]
https://legislative.gov.in/sites/default/files/A1966-33.pdf
[12] Ibid para 17.
[13] Ibid para 20
[17]
https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2019
[19]
https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2033
[22]
https://www.constitutionofindia.net/constitution_of_india/fundamental_rights
Article Information
AN ANALYSIS OF RIGHT TO FORM ASSOCIATIONS AND UNIONS UNDER CONSTITUTION OF INIDA BY : DHWANI NITIN NAIKWADI & PRAGATI PANKAJ DEHLIWAL
Authors: DHWANI NITIN NAIKWADI, PRAGATI PANKAJ DEHLIWAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/18
- Issue 7
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