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

A to enact the said Act. Turning down the challenge on all the grounds, the Constitution Bench held, inter alia, that assuming but not holding that the Society or Auroville were a religious denomination, the impugned Act was not hit by Article 25 or 26. It does not curtail the freedom of conscience and the right to freely profess, practise and propagate one's own religion. B "The right of management in matters ofreligion ofa religious denomination" under Article 26(b) was not taken away; what was taken away was the right of management of the property of Auroville which was a secular matter. So also the Act did not cmtail the right of anY section of citizens to conserve its own language, script or culture conferred by Article 29. An activity, secular in nature, though assumed to be of the Society or the organization to be of religious denomination, did not adversely affect the freedom of conscience and the right to freely profess, practise and propagate one's own religion. The Constitution Bench has drawn a distinction between such activities of the institution which would necessarily fall within the purview of Article 25, 26 or 29 .and an individual activity which would fall outside the purview of these Articles.

43Copy pinpoint43. The Preamble to the Act declares the Indian Council of World Affairs (ICWA) to be an institution of na5ional importance and to provide for its incorporation. The same declaration is contained in the body of the E Act vide Section 2. The pre-existing society- ICWA and the new body corporate, also given the name of ICWA, bear a similarity of names. Yet, it is clear that the impugned Act only deals with ICWA the pre-existing body and ICWA the body corporate under the impugned Act. The new body takes over the activities of the pre-existing society by running the institution which too is known as ICW A. So far as the society ICWA is concerned, it has been left intact, untouched and un-interfered with. There is no tampering with the membership or the governing body of the society. The society is still free to carry on its other activities. No membership of the old society has been dropped. No new member has been forced or thrust upon the society. The impugned legislation nominates members who will be members of the council, the new body corporate, different from the society. 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 asc:;ociation, is not adversely affected and 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

DHARAM DUTT v. U.0.I. [LAHOTI, .1.) 185

(c) of Clause (I) of Article 19. The activity of the society which was being ,A conducted through the institution ICWA has been adversely affected and to that extent the validity of the legislation shall have to be tested by reference to sub-Clause (g) of Clause (I) of Article 19. The activity was of the society and the Society cannot claim a fundamental right. Even otherwise the impugned legislation is a reasonable legislation enacted in B the interest of the general public and to govern an institution of national impottance. It is valid.

44Copy pinpoint44. Sarva Shri P.P. Rao and Ashok Nigam, the learned senior counsel for the petitioners have placed strong reliance on two decisions of this Court, namely, Smt. Damyanti Naranga & Anr. v. The Union of India C and Ors., [1971] (3) SCR 840 and Asam Rashtrabhasha Prachar Samiti, Hedayatpur-Gauhati-3 and Anr. v. State of Assam and Ors., [1989) (Supp.) SCR 160. In Smt. Damyanti Naranga's case (Supra) the Constitution Bench ruled that the right to form an association includes not only a right of forming an association to b.egin with, but also the right to D continue to be associated with only those whom they voluntarily admit in the association. Once the citizens have formed any association voluntarily then without any option being given to the members, neither can their membership be taken away nor can they be compelled to associate themselves with members with whom they do not want to associate. The E const_itutional validity of the Hindi Sahitya Sammelan Act, 1962, was successfully challenged. A perusal of the judgment shows that the impugned legislation created a statutory body called 'The Hindi Sahitya Sammelan'. The existence of the original Sammelan was terminated, which resulted in violating the right of members of the original Sammelan to form an association as guaranteed by Article I 9(1)(c), and this was the F main thrust of attack which dominated the Court's opinion. All the existing members of the original Sammelan were made members of the new Sammelan and many outsiders were also made members thereof by the Act. The new members which were enrolled or could be enrolled, were entitled to be admitted without the consent of the original members of the G Sammelan. Thus, the members of the old Sammelan came under compulsion to associate and unite involuntarily with such persons as they did not wish to do. The property of the original Sammelan was taken away and vested in the new Sammelan. The case is, therefore, distinguishable and not applicable to the facts of the present case, where the original society has H

186 SUPREME COURT REPOR,.TS [2003] SUPP. 6 S.C.R.

A been left intact and untouched. These distinguishing features were noted also by the Constitution Bench in the case of D.A. V. College, Jullundur, (supra) and the ratio of Smt. Damyant~ Naranga 's case (supra) was held inapplicable.

45Copy pinpoint45. However, even in Smt. Damyanti Naranga 's case (supra), the Constitution Bench has held that after an association has been formed and the right under Article 19( I)( c) has been exercised by the members fonning it, they have no right to claim that its activities must also be permitted to be carried on in the manner they desire. "

46Copy pinpoint46. In the case. of Asam Rastrabhasa Prachar Samiti (supra), the impugned Act was enacted to nK ~t a temporary contingency for taking ., over of the management of the P1achar Samiti temporarily. However, it failed to make any provision for the restoration of the elected body in due course. Not only were new members introduced into the Samiti, no norms were laid down for nominating the government nominees (who could be any one), and the elected members were kept away from the control of the Samiti. On the peculiar facts of the case and the implications of the provisions contained in the impugned enactment the Court·concluded that the right of association was virtually taken away and in the name of temporary control and management on the affairs of the society, what was done was a permanent deprivation. In response to a query raised by the Court it was stated by the State before the Court that the State had no desire to restore the Samiti. The im_pugned legislative provision was, therefore, struck down as violative of Article 19(l)(c) of'the Constitution. Asam F Rashtrabhasha Ptachctr Samiti 's case (supra) is ·a three-Judge Bench decision and the only decision referred to therein is the case of Smt. Damyanti Naranga 's case (supra). Though Article 14 has not been referred to in the judgment by specifically mentioning it, it is clear from the judgment that this Court has also formed an opinion that the action of the G State. was arbitrary and unreasonable, and so was liable to be struck down.

4 7. Both the decisions re lied on by the learned senior counsel for the petitioners are distinguishable and do not apply to the present case.

48Copy pinpoint48. It is well-settled that while de~ling with a challenge to the constitutional validity of any legislation, the court should prima facie Jean

DHARAM DUTT v. U.0.1. [LAHOTI, J.) 187

in favour of constitutionality 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. [see : Charan) it Lal Chowdhury v. 'Fhe Union of India & Ors., I 950 SCR 869 and Ayurvedic and Unani Tibia College, Delhi (supra)]. B

49Copy pinpoint49. 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 (I) of Article 19 of the Constitution, on aprimafacie case of such violation having been made out, the onus would shift upon the respondent State to C 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 resti:iction within D .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 shift back to the petitioner. Where the restriction on its face appears to be unreasonable, nothing more would be required to substantiate the plea ofunreasonability. E Thus the onus of proof in such like cases is an on-going 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 F 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.

50Copy pinpoint50. The impugned Act does not offend the right guaranteed by Article G 19(l)(c). It also does not in any manner Q.eprive the members of the Society of their freedom of speech and expression under Article 19(l)(a).

Scrutiny by reference to Article 300A

51Copy pinpoint51. It was submitted that the impugned legislation is violative of H

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A Article 300A of the Constitution inasmuch as it unreasonably deprives the petitioners of the property vesting in the society. In this context, a reference to a Constitution Bench decision of this Court would be apposite which deals with the right to acquire, hold and dispose of property under Article 19( l )( f) (since repealed) though not on all the fours with the facts B of this case. Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of Delhi (Now Delhi Administration) & Anr., [ 1962] Supp. (I) SCR 156, projects principles which would be relevant for our purpose. An individual founded a pharmaceutical institute known as 'Hindustani Dawakhana'. He also established a medical college known as 'The Tibbia C College'. He then formed a society with a few members along with himself ~- and registered the same under the Societies Registration Act, 1860. The Society was known as the Board of Trustees, Ayurvedic and Unani Tibbia College, Delhi, ('the Board' for short). The Board was operating the Tibbia College, an attached hostel and a phannaceutical institute. Disputes arose within the trustees which led to filing of civil suits. The Court appointed .o receivers who took possession of the Dawakhana and the College. The Delhi State Legislature passed an Act called 'The Tibbia College Act, 1952' which came into force on October 10, 1952. The old Board stood dissolved and all property, movable and immovable, and all rights, powers and privileges of the Board came to vest in a new Board constituted under E the Act. This new Board was called the Tibbia College Board. The civil suits were withdrawn and the Court directed the possession over the properties and institutions to be handed over to the new Board. The old Board filed a civil revision in the High Court of Punjab and thereafter a petition under Article 32 of the Constitution in this Court, impugning the j- F constitutional validity of the Act mainly on two grounds, namely, that the Delhi State Legislature had no legislative power or competence to enact the impugned Act and that, assuming that the Delhi State Legislature had the legislative competence, the Act was still bad as being violative of Articles 14, 19 and 31 of the Constitution. Incidentally, it was also contended that the Act passed by the Delhi State Legislature could not \ -

G override the provisions of the Societies Registration Act, 1860, which is a Centr~l legislation. According to the State of Delhi, the field of legislation was covered by List II (State List) Item 32 which reads as under:

"32. Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; un-incorporated

DHARAM DUTT v. U.0.1. [LAHOTI, J.] 189

trading, literary, scientific, religious and other societies and associations; co-operative societies."

52Copy pinpoint52. The Constitution Bench held that a society could not be equated with a corporation as a society cannot be said to be 'incorporated' as a corporation is. Under Section 5 of the Societies Registration Act, 1860, B the property belonging rn the society, if not vested in trustees, shall be deemed to be vested in the governing body of the society and in all proceedings, civil and criminal, the property will be described as being the property of the governing body. The expression "property belonging to the Society" does not give the Society a corporate status in the matter of holding and acquiring property; it merely describes the property which vests in the trustees or governing body for the time being.

53Copy pinpoint53. It was held that the impugned legislation while creating the new Board has given it a corporate status, confining its powers and duties to the college, pharmaceutical institute and laboratory in Delhi. It fell within the purview of Entry 32 of List II. Dealing with the submission based on Article 31(2) ofthe Constitution (as it then stood), the Court held that the impugned legislation does not relate to nor does it provide for compulsory acquisition of property for a public purpose. The impugned legislation provides for the transfer of the management of the Ayurvedic and Unani E Tibbia College, Delhi, from the old Board to a new Board, and for that purpose the old Board was dissolved and a new Board was created with certain rights, powers and privileges to be applied for the exercise of powers and the performance of duties as laid down in the Act. Such legislation could not be tested under Article 31(2) or the tests emerging F therefrom.

54Copy pinpoint54. Dealing with the submission made by reference to the repealed Article l 9(l)(f), the fundamental right to acquire, hold and dispose of property, the Court held that G "During the subsistence of the society, the right of the members was to ensure that the property was utilized for the charitable objects set out in the memorandum and these did not include any beneficial enjoyment. Nor did the members of the society acquire any beneficial interest on the dissolution of the society; for Section H

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A 14 of the Act, quoted earlier, expressly negatived the right of the members to any distribution of' the assets of the dissolved body. In such an event the property had to be given over to some other society, i.e., for being managed by some other charitable organization and to be utilized for like purposes, and the only right of the members was to determine the society to whom the funds B or property might be transferred and this had to be done by not less than three-fifths of the members present at the meeting for the purpose and, in default of such determination, by the civil court. The effect of the impugned legislation is to vary or affect this privilege of the members and to vest the property in·a new c body created by it enjoined to administer it so as to serve the same purposes as the dissolved society. The only question is whether the right to detennine the body which shall administer the funds or property of the dissolved society which they had under the pre- existing law is a right to 'acquire, hold and dispose of property' D within the meaning of Article 19(1)(f), and if so whether the legislation is not saved by Article 19(5). We are clearly of the opinion that that right is not a right of pr~perty within the meaning of Article 19(1 )(f). In the context in which the words 'to dispose of occur in Article 19{l){f), they denote that kind of property which a citizen has a right to hold. Where however the citizen has no right to hold the property, for on the terms of Section 14 of the Societies Registration Act. the members have no right to 'hold' the property of the dissolved society, there is, in our opinion, no infringement of any right to .property within the meaning of Article 19( 1)( f). In this view the question as to whether the impugned enactment satisfies the requirements of Article 19(5) does not fall to be determined.

The Court concluded by holding that the Delhi State Legislature did not transgress any of the limitations placed on it, by Article 19(5) when it enacted the impugned legislation.

55Copy pinpoint55. The protection of Article 300A is. available to any person, including a legal or jurisdic person and is not confined only to a citizen. For more than one reason, we are not inclined to entertain this plea. Firstly, H with the Forty-Fourth Amendment, w.e.f. June 20, 1979, Right to Property

DHARAM DUTI v. U.O.I. [LAHOTI, J.] 191

having ceased to be a fundamental right, we have grave doubts if the same can be sought to be enforced by a petition under Article 32 of the Constitution. Secondly, we find that a case of violation of Article 300A in the dimension in which it was sought to be canvassed is not taken up in the writ petition. The Union of India has taken over the institution by enacting a law which we have held to be within the legislative competence of the Parliament. Thirdly and lastly, the petition in that regard raises disputed questions of facts. The Union of India do not admit title of the petitioner either in the land or in the building or in any other property claimed to be owned by the petitioners. There is not one document of title produced by the petitioners in support of their claim to the property. Such C highly disputed questions of fact which cannot be determined except on evidence are not fit to be taken up for adjudication in the exercise of writ jurisdiction. The exercise of testing the vires of the impugne.d legislation by reference to Article 300A of the Constitution is uncalled for ·in the present petition. D ls the impugned Act arbitrary and violative of Article 14?

56Copy pinpoint56. Article 14 of the Constitution prohibits class legislation and not reasonable classification for the purpose oflegislation. The requirements of the validity of legislation by reference to Article 14 of the Constitution E are : that the subject matter of legislation should be a well defined class founded on an intelligible differentia which distinguishes that subject matter from others left out, and such differentia must have a rational relation with the bbject sought to be achieved by the legislation. The laying down of i~telligible differentia does not, however, mean that the legislative classification should be scientifically perfect or logically complete. F

57Copy pinpoint57. 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 mal-administration. The Central G 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 Article 245 of the Constitution read with Entries H

192 SUPREME COURT REPORTS..[2003] SUPP. 6 S.C.R.

A 62 and 63 of List I. The legislation cannot be said to be arbitrary or unreasonable.

58Copy pinpoint58. It was further submitted that the provisions of the Societies Registration Act, 1860 were effective enough which, if invoked, could B have taken care of the alleged grievances. If there was any truth or substance ·therein the same could have been found on enquiries being held. In our 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 c of the Parliament, which it is, as will be seen hereinafter.

59Copy pinpoint59. A similar submission was made and repelled in S.P. Mittal's case (supra). The contention there was that provisions in the Societies Registration Act were available to meet the situation in Auroville and that the law and order situation could be controlled by reso1ting to provisions of the Code of Criminal Procedure. The Constitution Bench held - "Whether the remedies provided under the Societies Registration Act were sufficient to meet the exigencies of the situation is not for the Court but for the Government to decide, and if the Government thought that the conditions prevailing in Auroville and the Society can be ameliorated ·not by resorting to the provisions of the Societies Registration A~t but by a special enactment, that is an area of the exercise of the discretion of the Government and not of the Court." The Constitution Bench also observed that assuming the facts brought to the notice of the legislature were wrong, it will not be open to the Court to hold the Act to be bad on that account.

60Copy pinpoint60. It was then submitted that the institution ICWA was singled out and though there were several other institutions run by societies or other organizations which were in the grip of more serious mismanagement and mat-administration, they were not even touched and the Parliament chose to legislate as to one institution only. This submission too holds no merit. Firstly, no other institution is named or particularized so as to be comparable with ICW A. Secondly, there can be a legislation in respect of a 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 if there are special· circumstances or

DHARAM DUTT v. U.0.1. [LAHOTI, J.] 193

reasons which are applicable to that institution and such legislation would not incur the wrath of Article 14. In SP. Mittal (supra), the impugned legislation brought with the object and purpose of taking away the management of Auroville from the Aurobindo Society and to bring it under the management of the Central Government under the provisions of the impugned Act was held to be valid. The exercise of legislative power by B Parliament was sought to be justified as falling within the field of Entry· 63 of List I. Their Lordships referred to several decisions wherein the constitutional validity of similar legislations was upheld. In Ram Krishna Dalmia v. Justice SR. Tendolkar, [1959] SCR 279, legislation relating to a single 'individual', in Raja Birakishore v. State ofOrissa, (1964] 7 SCR C 32, legislation in respect of a single 'temple' and in Chiranjit Lal Chowdhuri v. Union of India, [1950] SCR 869, a separate law enacted for one company were held not to offend Article 14 of the Constitution on the ground that there were special reasons for passing such legislation.

Effect of the previous judgment of High Court on the impugned legislation D

61Copy pinpoint61. Having held that the impugned Act does not suffer from any constitutional infirmity and does not violate Article 19( 1)(a) and (c) or Article 300A of the Constitution, we may now proceed to examine by reference to the doctrine of Separation of Powers what is the effect on the impugned Act, of the judgment dated I 0.9.1990 delivered by a learned single Judge of the Punjab & Haryana High Court, annulling the 1990 Ordinance as constitutionally invalid. The submission of the learned counsel for the petitioners is short and simple. It is submitted that an "identically worded" Ordinance having been held to be unconstitutional and the decision of the High Court holding so having achieved a finality, the Parliament could not have re-enacted the contents of the vitiated Ordinance into an Act of Parliament. It was forcefully submitted that such an enactment is violative of the doctrine of Separation of Powers and so is liable to be annulled on this very ground.

62Copy pinpoint62. The facts of this case are unusual. No precedent, parallel on facts, has been brought to our notice at the Bar though a host of decisions laying down constitutional principles were cited, some of which we shall refer to hereinafter.

63Copy pinpoint63. Let us first state a few general principles relevant for upholding H

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A validity of enactments. In Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality & Ors., (1969] 2 SCC 283, the imposition of a tax was held to be invalid because the power to tax was wanting. A validation . Act was passed and its constitutionality was put in issue once again. The . Constitution Bench spoke a few words about validating statutes in general, B as under:- "When a, Legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most c important condition, of course, is that the Legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the.power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validati.on of a tax so declared illegal may be done only if the grounds of illegality or invalidlty are capable of being removed and are in fact removed and the tax is thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly vested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re- enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which tax was collected and by legislative fiat makes the new meaning binding upon courts. The Legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the Jaw. H Whichever method is adopted it must be within the competence

DHARAM DUTT v. U.O.I. [LAHOTI, J.) 195

of the legislature and legal and adequate to attain the object of validation. If the Legislature has the power over the subject- matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity ofa Validating Law, therefore, depends upon whether the Legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the Validating Law for a valid imposition of the tax."

64Copy pinpoint64. The Jaw, so laid down, was reiterated and approved by a Seven C Judges Bench in Mis Misrilal Jain v. State of Orissa & Anr., [1977] 3 SCC

212. In Madan Mohan Pathak & Anr. v. Union of India & Ors., [1978] 2 SCC 50 too Shri Prithvi Cotton Mills Ltd. case (supra) was cited and considered. The law laid down by the seven Judges Bench leads one to hold that if by reason of retrospective 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. The Constitution Bench in Union of India & Anr. v. Raghubir Singh (Deadj by Lrs. etc., (1989] 2 SCC 754, observed that the range of judicial review recognized in the superior judiciary of India is perhaps the widest and the most extensive known to the world of law and then cautioned-" With the impressive expanse of judicial power vested in them it is only right that the superior courts in India should be conscious of their enormous responsibility". The Constitution Bench summed up the effect of declaring an Act of legislation-in the case before us an F Ordinance- on the revival of such Act, by stating that where a statute is declared invalid in India it cannot be reinstated unless constitutional sanction is obtained therefor by a constitutional amendment or an appropriately modified version of the statute is enacted which accords with constitutional prescription. A two Judges Bench of this Court in Indian G Aluminium Co. & Ors. v. State of Kera/a & Ors., [l 996] 7 SCC 637, made an exhaustive review of the available judicial opinion and summed up the essence thereof in nine points, three of which are relevant for our purpose, which we set out as under:-

(I) In order that rule of law permeates to fulfil constitutional H

196 SUPREME COURT REPORTS ['2003] SUPP. 6 S.C.R.

A objectives of establishing an egalitarian so~ial order, the respective sovereign functionaries need free play in their joints so that the march of social progress and order remains unimpeded. The smooth balance built with delicacy must always be maintained; B .(2) In its anxiety to safeguard judicial power, it is unnecessary to be overzealous and conjure up incursion into the judicial preserve invalidating the valid law competently made;

(3) The Court, therefore, needs to carefully scan the law to find c out: (a) whether the vice pointed out by the court and invalidity suffered by previous law is cured complying with the legal and constitutional requirements; (b) whether the legislature has competence to validate the law; (c) whether such validation is consistent with the rights guaranteed in D Part III of the Constitution."

65Copy pinpoint65. Welfare Association A.R.P., Maharashtra & Anr. v. Rr:mjit P. Gohil & Ors., JT (2003) 2 SC 335, is a decision to which both of us are parties. Therein we have held that it is permissible for the legislature; E subject to its legislative competence otherwise, to enact a law which will withdraw or fundamentally alter the very basis on which a judicial pronouncement has proceeded and create a situation which, if it had existed earlier, the Court would not have made the pronouncement. Very recently in People's Union for Civil Liberties (PUCL) & Anr. v. Union of India & F Anr., [2003] 4 sec 399, in the leading opinion recorded by M.B. Shah, J. (the other two learned Judges having also recorded their separate but concurring opinions), the legal position has been summarized thus:-

"the Legislature can change the basis on which a decision is rendered by this Court and change the law in general. However, G this power can be exercised subject to constitutional provisions, particularly legislative competence and if it is violative of fundamental rights enshrined in Part III of the Constitution, such Jaw would be void as provided under Article 13 of the Constitution. The legislat~re also cannot declare any decision of a court of law H to be void or of no effect."

DHARAM DUTT v. U.O.I. [LAHOTI, J.] 197

66Copy pinpoint66. In Smt. Indira Nehru Gandhi v. Shri Raj Narain & Anr., [1975] A Supp. SCC 1, Chandrachud, J., as His Lordship then was, cited with approval the opinion of Harold Laski that the "separation of powers doe:; not mean the equal balance of powers" and observed that "what cannot be sustained is the exercise by the legislature of what is purely and indubitably a judicial function. In our cooperative federalism there is no rigid B distribution of powers; what is provided is a system of salutary checks and balances".

67Copy pinpoint67. With advantage, we may quote Justice Aharon Barak, President of the Supreme Court of Israel. In the context of a new statute having been enacted on the previous one having been annulled, the learned Chief Justice C says- "Review of a new statute should focus not on the fact that it changes the previous ruling of the court, but on the fact that it undermines democracy. Moreover, everything is a question of degree. If the interpretation • of a statute is met with an immediate and hasty response from the legislature in the form of new legislation, uncertainty about the law will D result, and the public will lose confidence in the legislative branch. This is not the case, however, when the change in legislation after a judicial ruling reflects a thorough and deliberate examination of the ruling and an objective expression of the will of the legislature". (A Judge on Judging : The Role of a Supreme Court in Democracy-President Aharon Barak, E Harvard Law Review, Vol. 116, No. 1, November 2002, at p. 135). He further states that "foundation of democracy is a legislature elected freely and periodically by the people. Judges and legal scholars ought not to forget this fundamental principle. The role of a judge in a democracy recognizes the central role of the legislature. Undermining the legislature F undermines democracy. My conception of the rule of law and of the separation of powers do not undermine the legislature. Rather, they ensure that all branches of state act within the framework of the constitution and statutes. Only thus can we maintain public confidence in the legislature; only thus can we preserve the dignity of legislation." He quotes Justice G McLachlin as rightly saying that in democracies, "the elected legislators, the executive and the courts all have their role to play. Each must play that role in a spirit of profound respect for the other. We are not adversaries. We are all in the justice business, together." (ibid, pp.136, 137).

68Copy pinpoint68. The position in the present case is, of.course, a little different. We H

198 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A are not here dealing with the validity of a validating enactment. In the judgment dated September 10, 1990 (C.W.P. No. 9120of1990) the High Court (Bench presided over by the learned single-Judge) unfortunately, unmindful of the correct width and expanse of the rights conferred by sub- clauses (a) and (c) of clause (1) of Article 19 ofthe Constitution, did not B correctly comprehend the scope of Article .19( 1) of the Constitution and overlooked the fine distinction in the breach of rights complained of by a citizen or citizens - collectively but as citizens, and the right to certain activities claimed by an association. The High Court just confined itself to finding whether the impugned ordinance could be saved by clauses (2) C and (4)of Article 19, and if not, then it was unconstitutional, a!So because it was too drastic and hence unreasonable. The High Court also went on to say that as compensation was not pa!d for the property acquired, the ordinance was arbitrary and discriminatory more so because it aimed only at a particular society. While making this observation the High Court D overlooked the fact that the ordinance aimed at the Institution and not at the Society, though the nomenclature of the two was the same. The High Court nowhere recorded a finding that any property either belonged to the petitioners or was vested in them before it was taken away, and also did not consider the affect of repeal of Articles 19(1 )(t) and 31 of the E Constitution after which repeal the right to property had ceased to be a fundamental right and the newly engrafted Article 300A of the Constitution requires only authority of law for depriving any person or his property.

69Copy pinpoint69. That decision of the learned Single Judge was not left unchallenged. In fact, the correctness of the judgment of the learned single-Judge was put in issue by the Union of India by filing an intra-court appeal. Filing of an appeal destroys the finality of the judgment under appeal. The issues determined by the learned Single Judge were open for consideration before the Division Bench. However, the Division Bench wa5 denied the opportunity. of hearing and the aggrieved party could also not press for decision of the appeal on merits, as before the appeal could be heard it wa,s rendered infructuous on account of the Ordinance itself having ceased to operate. The Union oflndia, howsoever it may hav.e felt aggrieved by the pronouncement of the learned single-Judge, had no remedy left available to it to pursue. The judgment of the Division Bench refusing to dwell upon the correctness of the judgment of the Single Judge had the effect of leaving

DHARAM DUTI v. U.0.1. [LAHOTI, J.) 199

the matter at large. Upon the lapsing of the earlier Ordinance pending an appeal before a Division Bench, the judgment of the 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. B

70Copy pinpoint70. Be that as it may, we are clearly of the opinion that the judgment dated September I 0, 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 C 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 re-enacted the same legal provisions into an Act which, ten years before, were incorporated in an ord.inance and were found to be unconstitutional in an erroneous judgment of the High Court D 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 ifbefore passing the Bill into an Act the attention of the Parliament was specifically invited to t~e 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 vi~w 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 of Powers.

Impugned Act covered by Entries 62, 63 of List I of Schedule - 7 G I

71Copy pinpoint71. The challenge 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 oflndia. The institution H

200 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A ICWA has been declared to be an 'institution of national import~nce' 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 of national importance, the Parliament is B competent to make any law governing the management, administration and affai-rs 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 oflegislation not available to it. The provisions of the Act fall within the field of legislation meant for the Union of India. c

72Copy pinpoint72. The various Entries in the three Lists of the Seventh Sc.hedule are legislative heads defining the fields of legislation and should be liberally and 'Y.~dely 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 :;cope 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 the 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] l SCR 829, 836; Sri Ram Ram Narain Medhi v. The State of Bombay, [1959] Supp. (I) SCR 989.)

G Conclusion

The writ petition is dismissed with costs.

N.J. W.P. (C) No. 276 of 2001 disposed of. W.P. (C) No. 543 of 2001 dismissed.