Asaduzzaman (Md)  (Appellant)

Vs.

Bangladesh, represented by the Secretary, Min­istry of Law and Jus­tice & ors. (Respondents)

 

Supreme Court

Appellate Division

(Civil)

JUSTICE

M.H. Rahman J

A.T.M. Afzal J

Mustafa Kamal J

Latifur Rah­man J

Judgment dated : January 30, 1990.

The Constitution of Bangladesh, 1972 (as amended up to date) Articles 38 & 102

Though membership to the Society is open to all citizens of Bangladesh who comply with the terms and conditions laid down in the rules framed under the Order, no one has the right to form a similar Society. As the appellant’s right does not flow from the right to form an association he cannot claim any right or protection under Article 38 of the Constitution. Whatever right he has as a member of the Society has been given under the Order and he can legitimately claim protection under Article 102 of the Constitution for enforcement of his statutory right but he cannot claim that his right under the statute cannot be modified, altered or affected by an amendment of P.O. No. 26 of 1973, validly passed by the legislature…………………………(42)

Cases Referred to:

State of Madras Vs. V.G. Row, AIR 1952(SC) 196; Abul-A’la Maudoodi Vs. Government of West Pakistan, PLD 1964 (SC) 673; Damyanti V. Union of India AIR 1971 (SC) 966; Bidhu Bhusan Bagchi and anoth­er Vs. The State of West Bengal, AIR 1952 Calcutta 901; Vrajlal Manilal and Company Vs. State of Madhya Pradesh AIR 1970 (SC) 129 (135); M/s. Laxmi Khandsari Vs. State of Uttar Pradesh AIR 1981 (SC) 873 (880); M/s. Sukhanandan Saran Dinesh Kumar V. Union of India AIR 1982 (SC) 902 (911); Kazi Mukhlesur Rahman Vs. Bangladesh 26 DLR (SC) 44: Attorney General of the Gambia Vs. N’ Jie 1961 (AC) 617 (634); All India Bank Employees As­sociation V. The National Industrial Tribunal, Bom­bay, AIR 1962 (SC) 171.

Lawyers Involved:

Dr. Kamal Hossain, Senior Advocate, Khandaker Mahbubuddin Ahmed, Senior Advocate with him), instructed by Kazi Shahabuddin Ahmed, Advocate-on-Record. — For the Appellant.

M. Nurullah, Attorney-General, (Hasan Arif, Deputy Attorney-General with him) instructed by B. Hossain, Advocate-on-Record.— For Respondent Nos. 1 and 2.

Dr. M. Zahir, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record. — For Respondent No. 3.

Civil Appeal No. 76 of 1989.

(From the judgment and order dated 29.8.1989 passed by the High Court Division in Writ Petition No. 439 of 1989).

Judgment:

M.H. Rahman J. – This appeal is on a cer­tificate under Article 103(2)(a) of the Constitution. In discharging the Rule issued in the appellant’s Writ Petition No. 349 of 1989 by its judgment dated 29.8.1989 the High Court Division gave a certificate that the matter involved a substantial question of law as to the interpretation of the Constitution, particularly Article 38 thereof.

2. In his Writ petition the appellant challenged the validity of certain amendments made in the Ban­gladesh Red Crescent Society Order, 1973 (P.O. No. 26 of 1973) by sections 2 (Kha) and 9 of the Bangla­desh Red Crescent Society (Amendment) Act, 1989 (Act No. 14 of 1989). The appellant also challenged Notification No. S.G. 1313/3/89 dated 2nd March, 1989 issued by respondent No. 3, the Secretary-General of the Bangladesh Red Crescent Society, purportedly issued to give effect to the impugned amendments.

3. The appellant’s case is that he has been a member of the Society since its inception in 1973, and its life-member since 1976; that he is the elected Vice-Chairman of the Magura District Unit; that af­ter the election held on 7th December, 1988 the ap­pellant including all other office-bearers of the Dis­trict Unit has been functioning normally; that respondent No. 3, by the afore-mentioned memoran­dum dated 2.3.1989, directed the Chairman, the Vice- Chairman, the Secretary and other members of the District Unit to hand over charges to the Chairman of the Magura Zilla Parishad and other nominated Government functionaries.

4. The appellant’s grievance, as made out in the petition, is that by the impugned Act and actions pursuant thereunder the basic character of an independent, neutral, impartial and voluntary non­governmental humanitarian body as envisaged by the Statute of the International Red Cross and Red Cres­cent Movement and recognised by Article 4 of P.O. No. 26 of 1973 has been destroyed and, therefore, the appellant is entitled to a declaration that the amend­ments effected by sections 2 and 9 of Act No. 14 of 1989 were without lawful authority and void being inconsistent with Article 38 of the Constitution.

5. At the lime of the hearing it was, however, conceded that his petition is not directed against any violation of any provision of the Statute of the Red Cross and Red Crescent Movement. It is, on the oth­er hand, contended that the impugned Act and the ac­tions taken thereunder have violated the autonomy of the elected body of the District Unit and has impaired his fundamental right to form an association. In this regard it was contended that by the dissolution of all Executive Committees whose members were duly elected on 7th December, 1988 and the dissolution of General Body comprising of National Delegates, designated by such elected Executive Committees, and by the taking over of the management of all the Committees from the elected representatives of the members of the Society the respondents violated the petitioner’s fundamental right to freedom of association and deprived him of his right to have the Socie­ty administered and managed by the Executive Com­mittees and the Managing Board, elected by the General Body.

6. Respondent No. 1, the Secretary, Ministry of Law and Justice and Respondent No. 3, the Secre­tary-General of the Society contested the Writ peti­tion more or less on common grounds. The case is that by the impugned amendment the appellant’s right to form an association or his right to be a member of the Society has not been taken away; that the Society having been formed and constituted under a statute and not being brought into existence by the appellant or any other citizen or citizens of the coun­try, the right under Article 38 of the Constitution is not available for impugning the amendment in ques­tion and that as the appellant’s right of membership of the Society has been created by P.O. No. 26 of 1973 the Parliament is competent to regulate or re­strict that right and to amend the law relating to the administration of the Society without any reference to, or despite, Article 38 of the Constitution.

7. From the impugned judgment it appears that at the time of the hearing of the Writ petition the learned Counsel for the petitioner, instead of chal­lenging the amendment of Clause (3) of Article 7 of the Order straightaway, assailed the dissolution of the Executive Committee on the ground of violation of Article 38 of the Constitution.

8. The High Court Division, however, upheld the constitutionality of the impugned Act. It was held that the Act was passed by the Parliament in ex­ercise of its legislative power under Article 65(1) of the Constitution and that as the Society was never formed by citizens in the exercise of their right under Article 38, the petitioner was not entitled to claim any right under that Article.

9. For a closer examination of some of the ap­pellant’s contentions let us briefly refer to the histo­ry of the Red Cross and Red Crescent Movement. It can be traced back to June 24, 1859, the day of the Battle of Soferino that resulted in nearly forty thou­sand casualties. Jean-Henri Dunant, a Swiss humani­tarian, was an eye-witness of the human suffering. He organised emergency aid services for the Austrian and the French wounded in that battle. In his book Un Souvenir de Soferino (1862) Dunant gave a call for the formation of voluntary relief societies in all countries. In 1864, he founded the Red Cross. In that year similar national societies were also organised for the first time. The Convention of that year is the first multilateral agreement on the Red Cross. It committed the signatory governments to care for the wounded of war, whether friend or foe. That conven­tion has undergone several revisions. In 1949 protec­tion was extended to civilians in time of war. The Red Cross’s peace time activities include various hu­manitarian activities from prevention and relief of human sufferings to improvement of health and care for the disadvantaged. The objects of the Bangladesh Society are set forth in the First Schedule to P.O. No. 26 of 1973. Countries under nominally Chris­tian sponsorship use the name Red Cross. In 1906 on the urging of the Ottoman Empire the name the Red Crescent was adopted and is now used in Mus­lim countries. From April 4, 1988 the Society in our country is known as the Bangladesh Red Cres­cent Society.

10. The International Red Cross and Red Cres­cent Movement is composed of the national Red Cross and Red Crescent Societies of the International Committee of the Red Cross, and of the League of Red Cross and Red Crescent Societies. The compo­nents of the Movement maintain their independence within the limits of the Statutes, the latest one adopted in October 1986.

11. In its preamble to the Statutes of 1986 the International Red Cross and Red Crescent Movement reaffirms that in pursuing its mission, the Move­ment shall be guided by its Fundamental Principles, namely humanity, impartiality, neutrality, indepen­dence, voluntary service, unity and universality. The Movement is independent in the sense that the Na­tional Societies, while auxiliaries in the humanitari­an services of their governments and subject to the laws of their respective countries, must always maintain their autonomy so that they may be able at all times to act in accordance with the principles of the Movement. It is a voluntary relief movement in the sense that it is not prompted in any manner by desire for gain. The principle of unity is understood in the sense that there can be only one Red Crescent Society in any one country.

12. In order to be recognised in terms of Arti­cle 5, paragraph 2(b) of the Statutes of 1986 as a na­tional Society, the Society is to be constituted on the territory of an independent Stale where the Gene­va Convention for the Amelioration of the Condi­tion of the Wounded and Sick in Armed Forces in the Field is in force; that it should be the only Na­tional Society of the said State and be directed by a central body which shall alone be competent to represent it in its dealings with other components of the Movement; that it is to be duly recognised by the le­gal government of its country on the basis of the Geneva Conventions and of the national legislation as a voluntary aid society, auxiliary to the public au­thorities in the humanitarian field; that it shall have an autonomous status which allows it to operate in conformity with the Fundamental Principles of the Movement and it shall recruit its voluntary members and staff without consideration of sex, class, religion or political opinions.

13. In India for the first lime in 1920 the Indi­an Red Cross Society was constituted by Indian Red Cross Society Act, 1920 (Act No. XV of 1920) to provide for the future administration of the various monies and gifts received from the public for the purpose of medical and other aid to the sick and wounded, and other purposes of a like nature during the First World War, and more especially for the ad­ministration of the monies and properly held by the Joint War Committee, Indian Branch, of the Order of St. John of Jerusalem in England and the British Red Cross Society. The first members of that society were nominated by persons who immediately before the commencement of that Act were the members of the Joint War Committee, Indian Branch, of the Or­der of St. John of Jerusalem in England and the Brit­ish Red Cross Society.

14. After 1947 the Pakistan Red Cross Society was constituted. The first members of that Society were those persons who were members of the Indian Red Cross Society immediately before the appointed day and were resident in Pakistan. There was a Branch Committee for the Province of East Paki­stan. The Bangladesh Red Cross Society was constituted by P.O. No. 26 of 1973. That Order was given retrospective effect from December16, 1971. It was also provided that the first members were the mem­bers who were life members or members of any grade of the Pakistan Red Cross Society immediately before the commencement of that Order and were res­ident in Bangladesh.

15. The learned Counsel for the Society has placed before us copies of the Charter of Incorpora­tion of the British Red Cross Society (1908), Malay­sian Red Cross Society (Incorporation) Act 1965 and the Singapore Red Cross Society (Incorporation) Act, 1973. It appears that National Societies have been constituted in the background of different sociopolitical conditions. For example, in case of British Red Cross Society the Society has been given the power by the Supplemental Charter of 1970 to amend, add or revoke the provisions of original Charter of 1908 by a majority of not less than two-thirds of persons present and entitled to vote thereon at a General Meeting of the Council and any such amendment, addition or revocation shall lake effect when allowed by the Queen or her heirs and Succes­sors in Council. In spite of difference in the compo­sition of administrate set-up of the national Societies we find each Society acts as a voluntary aid society subject lo the provisions of the Geneva Convention.

16. From this background of the Red Cross and Red Crescent Movement it is contended that in each case whether in India in 1920 or in Pakistan in 1947 or Bangladesh in 1973, the Society was initial­ly formed in the context of special circumstances by members of a pre-existing society and each enactment expressly provided that the first members would be the existing members of a pre-existing Society, and that membership lo the Society be open to all.

17. The fact of the mailer is that though first Red Cross Societies were organized on voluntary ba­sis in 1864 the movement was soon internationalised and each national Society had to be constituted or re-constituted by the State, signatory to the Gene­va Convention of 1864. It is to be noted that the first members of the Indian Red Cross Society were only those persons who were nominated by the per­sons who immediately before the commencement of the Act of 1920 were the members of the Joint War Committee, Indian Branch of the Order of St. John in England and the British Red Cross Society. After partition of India in case of Pakistan and after libera­tion in case of Bangladesh, for each new State a new national Society was constituted and the legislature accorded membership lo those who had already been acting as members of the Red Cross Society within the respective territory. From these examples of legislative prudence it cannot be inferred that the Society was voluntarily constituted. Such a Society can­not be constituted voluntarily by members alone. It is to be recognised by the Stale and its legislature.

18. Article 4 and clause (6) of Article 7 of P.O. No. 26 of 1973 have embodied the fundamental principles of the Red Cross and Red Crescent Movement. Article 4 reads as follows: —

“4(1) The Society shall in all its activities observe neutrality, impartially, independence, universality, humanity and all other basic prin­ciples and shall adhere to the statutes of the International Red Cross and Red Crescent Movement and the Geneva Conventions.

(2) The Society shall, as an auxiliary to public authorities, maintain autonomy and act at all times in accordance with the fundamental principles of the International Red Cross and Red Crescent Movement”

19. Clause (6) of Articles 7 provides that membership of the Society “shall be open to all citi­zens of Bangladesh without any discrimination on grounds of race, sex, class, religion or political opin­ion.”

20. Since the promulgation of the Order in 1973 though there has been a number of changes in the composition and elective nature of the Executive Committees of the local units of the Society, this provision as to the openness of membership of the Society has remained unaltered.

21. Article 7 provides for constitution of units of the Society at the local level. At the lime of the promulgation of the Order it was provided under the rules of the Society that members of the Society en­rolled with a Unit would elect from amongst them­selves a Managing Committee of twenty-one mem­bers in the first Annual General Meeting of the Unit to be held before the 15th November, 1973 and also nominate two Delegates of the Unit to the General Body in the same meeting. Members of the Managing Committee of an unit were to elect its Chairman and office-bearers. On October 25, 1975 the words “Managing Committee” were substituted by the words “Executive Committee”. By Ordinance No. XLIX of 1975 the election for the office of Chair­man of the Executive Committee of a unit was done away with and the Sub divisional Magistrate was made the ex-Officio Chairman. On 23.2.1985 by Or­dinance No. IX of 1985 the Deputy Commissioner within whose jurisdiction a Unit was constituted was made the Ex-Officio Chairman of the Executive Committee of such Unit.

22. Immediately before the commencement of the impugned Act, clause (1) of Article 7 stood as follows:

“Art.7. (1) There shall be constituted a Unit of the Society in each District:

Provided that a Unit may also be constitut­ed in each Municipality having a population of more than ten lakhs.”

By the impugned Act that clause has been sub­stituted by the following:

“There shall be constituted a Unit of the Society in each District and in each City”.

23. Clause (3) of Article 7 was also amended several times. Before the commencement of the im­pugned Act it stood as follows:

“(3) The Deputy Commissioner within whose jurisdiction a Unit is constituted shall ex-officio be the Chairman of the Executive Com­mittee of such Unit.”

That clause has been substituted by the follow­ing by section 2(Kha) of the impugned Act:

“The Chairman of the Zilla Parishad in the case of District and the Mayor of the Municipal Corporation in the case of a City shall be Chair­man of the Executive Committee of such Unit.”

Explanation.-“Chairman of the Zilla Pari­shad” or “Mayor of the Municipal Corporation” shall include a person for the time being per­forming the functions of that office.”

24. Before the amendment clause (4) of Article 7 read as follows:

(4) The Vice-Chairman, the Secretary and three of the six other members shall be elected in such manner as may be prescribed; and three other members shall be nominated by the Chair­man of the Society.

After the amendment by the impugned Act that Clause (4) now reads as follows:

(4) The Vice-Chairman, the Secretary and five of the eight other members shall be elected in such manner as may be prescribed; and the three other members shall be nominated by the Chairman of the Society from amongst its members on the recommendation of the Chair­man of the Executive Committee concerned.

25. Section 9 of the amending Act provided that on the commencement of that Act all existing Executive Committees and the General Body be dis­solved, and till the reconstitution of the Executive Committees under the Order and the rules framed thereunder all powers and actions in case of a District unit be performed by the Chairman of Zilla Parishad or by such persons acting as the Chairman, and in case of each of the Municipal Corporations of Dha­ka, Chittagong, Khulna, Rajshahi by its Mayor, or by the person performing the functions of the Mayor. It was further provided there that all Execu­tive Committees and the General Body be reconsti­tuted respectively by 30th April, 1989 and by 31st May, 1989 and that under Clause (ga) of the amended Article 9A the term of the reconstituted Executive Committees be determined from 1st January, 1989.

26. The learned Counsel for the appellant has drawn our attention to several passages from State of Madras Vs. V.G. Row, AIR 1952(SC) 196, Abul-A’la Maudoodi Vs. Government of West Pakistan, PLD 1964 (SC) 673, Damyanti V. Union of India AIR 1971 (SC) 966 and from some other decisions as well.

27. In Madras Vs. V.G. Row AIR 1952 (SC) 196 the Indian Supreme Court considered a notifica­tion, issued on March 10, 1950, under section 15(2) (b) of the Indian Criminal Law Amendment Act, 1908 (as amended in 1950), declaring the “People’s Education Society” as an unlawful Association on the ground that it was using its fund in actively helping the Communist Party in Madras that had earlier been declared unlawful in 1949. The Madras High Court’s decision that section 15(2)(b) of the Criminal Law Amendment Act, 1908 was unconsti­tutional and void and the Order passed under that sec­tion was an infringement of the Petitioner’s freedom of association was upheld by the Supreme Court.

28. In the case of Abul-A’la Maudoodi an order was passed under section 16 of the Criminal Law Amendment Act, 1908 declaring the Jamaat-i-Islami, a political party, unlawful. The respondents’ case was that the order was necessary in the interest of public peace and tranquility as well as the security of the country because the Jamaat was interfering with the administration creating disaffection and ha­tred in the minds of the people against the Govern­ment, particularly after the promulgation of Muslim Family Laws Ordinance, 1961. The Supreme Court of Pakistan declared both the law and the action tak­en under it as void.

29. In Damyanti Vs. Union of India, AIR 1971 (SC) 966, the Indian Supreme Court struck down section 4 of the Hindi Sahitya Sammelan Act, 1962 which sought to induct into the Hindu Sahitya Sammelan, originally registered under the Societies Registration Act, 1860 as a Society for developing and promoting the propagation of Hindi, new mem­bers without the consent of the pre-existing mem­bers. Bhargava, J. held:

“The right to form an association, in our opinion, necessarily implies that the persons 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 to keep them out, or any law which lakes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association.”

30. In the above decisions there are some illu­minating passages with regard to the right to form an association, the nature and extent of restrictions that may be imposed on the exercise of such right, and the scope of judicial review of the reasonableness of such restrictions, but the facts of those cases, not­ed above, are so different from the instant case that they should not detain us long.

31. The appellant’s further contention is that the learned Judges of the High Court Division erred in law in relying on Bidhu Bhusan Bagchi and anoth­er Vs. The State of West Bengal, AIR 1952 Calcutta 901 which had held that a District Board constituted under the Bengal Local Self Government Act, 1885 was not an “association” within the meaning of Arti­cle 19(i)(c) of the Indian Constitution which guaran­teed the right of freedom of association, inasmuch as no valid analogy can be drawn between a District Board and the Society, because the National Society being a component of the International League of Red Cross and Red Crescent Movement is and must necessarily be an independent, impartial, voluntary, autonomous association of members.

32. The analogy or similarity between the Dis­trict Board and the Red Crescent Society is no doubt not that striking, but in both the cases the rights of the members flow from a statute and not from the fundamental right of association that citizens enjoy on their own.

33. In support of his contention that the onus to justify the changes brought in by the impugned legislation is on the respondents Dr. Kamal Hossain has relied on Vrajlal Manilal and Company Vs. State of Madhya Pradesh AIR 1970 (SC) 129 (135); M/s. Laxmi Khandsari Vs. State of Uttar Pradesh AIR 1981 (SC) 873 (880) and M/s. Sukhanandan Saran Dinesh Kumar V. Union of India AIR 1982 (SC) 902 (911).

Facts of these cases have got hardly any relevance in this case. There is no doubt that the ini­tial burden of establishing a right claimed under Arti­cle 38 is on the applicant and, then, the burden moves on to the respondents if they lake the plea of reasonable restriction. Since in this case the respon­dent have denied the appellant’s claim of fundamen­tal right and have not raised any plea of reasonable restrictions in the interest of morality or public order we need not decide the question of burden with regard to reasonableness of restrictions or the merit of changes brought about by the impugned legislation. We just like to add that in examination of a question of violation of fundamental right the Court may not insist on the technicalities of onus.

34. Mr. M. Nurullah, the learned Attorney-General appearing for Respondent No. 1, and Mr. M. Zahir, the learned Counsel for the Society, have reit­erated their contentions that were upheld in the im­pugned judgment. They have added a new dimension in their contentions by challenging the appellant’s locus standi. It is urged that any grievance as to the change of the administrative set-up must have been made by the Society itself and not by the appellant in his individual capacity, and hence the Writ peti­tion filed by the appellant alone was not competent.

35. In the facts of this case that contention must be rejected. This Court has clearly laid down in Kazi Mukhlesur Rahman Vs. Bangladesh 26 DLR (SC) 44:

“That the question of locus standi docs not involve the Court’s jurisdiction to hear a person but of the competency of the person to claim a hearing, so that the question is one of discretion which the Court exercises upon due considera­tion of the facts and circumstances of each case.”

In that case the petitioner challenged the cession of southern half of South Berubari Union No. 12 and the adjacent enclaves to India by the Government of Bangladesh though he was not a resident there. He complained that he was under an impending threat of deprivation of his fundamental rights under Article 36 of the Constitution and his right of franchise. Because of that as well as of the exceptional and extra­ordinary constitutional issues raised in that case in­volving consideration of an international agreement between this country and India this Court decided to hear the petitioner-appellant.

36. In this case the appellant has been associat­ed with the Society for a long time and by the im­pugned dissolution his term as Vice-Chairman of the Magura Unit has been prematurely brought to an end. Whether his grievance is upheld or not, he can­not in any sense, be called a busybody. In complained that he was under an impending threat of deprivation of his fundamental rights under Article 36 of the Constitution and his right of franchise. Be­cause of that as well as of the exceptional and extra­ordinary constitutional issues raised in that case in­volving consideration of an international agreement between this country and India this Court decided to hear the petitioner-appellant.

36. In this case the appellant has been associat­ed with the Society for a long time and by the im­pugned dissolution his term as Vice-Chairman of the Magura Unit has been prematurely brought to an end. Whether his grievance is upheld or not, he can­not in any sense, be called a busybody. In Attorney General of the Gambia Vs. N’ Jie 1961 (AC) 617 (634) it was held by the Judicial Committees of the Privy Council;

“The words “person aggrieved” arc of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they would include a person who has a genuine grie­vance because an order has been made which pre­judicially affects his interest.”

37. The right under Article 38 implies that several individuals having a community of interests can join together to form a voluntary association for furtherance of a common lawful object. This right along with other rights, described as fundamental rights under Part III of the Constitution, have been guaranteed in this sense that the State shall not make any law inconsistent with any provision of that Part III of the Constitution, and any law so made shall, to the extent of such inconsistency, be void. The rights are fundamental for civic life so that citizens may, to borrow three very significant words from the Preamble, “prosper in freedom”. Under Article 102(1) of the Constitution the High Court Division has been made the guardian for enforcement of fundamen­tal rights not only against the Executive, but also against the Legislature. The judicial review with re­gard to the vires of a law passed by the legislature flows from the Court’s constitutional duty to enforce a fundamental right.

38. The word ‘form’ in Article 38 does not limit the exercise of that right to the formation of an association. The right to form an association must of necessity imply the right to continue and carry on the activities of the association as well.

39. Article 38 cannot, however, be involved for support, sustenance or fulfillment of every object of an association. This is the view the Indian Su­preme Court took in All India Bank Employees As­sociation V. The National Industrial Tribunal, Bom­bay, AIR 1962 (SC) 171.

40. There are certain features which distin­guish the Red Crescent Society from other voluntary societies or associations. The Society is a body corporate. The learned Counsel for the respondents has drawn our attention to the following definitions of the term ‘Corporation’ or a ‘body corporate’:

“Corporation. An artificial person or legal entity created by or under the authority of the laws of a slate or nation, composed, in some rare instances, of single person and his successors, being the incumbents of a particular office, but ordinarily consisting of an associa­tion of numerous individuals. Such entity sub­sists as a body politic under a special denomina­tion, which is regarded in law as having a personality and existence distinct from that of its several members, and which is, by the same authority, vested with the capacity of continu­ous succession, irrespective of changes in its membership, cither in perpetuity or for a limit­ed term of years, and of acting as a unit or sin­gle individual in matters relating to the com­mon purpose of the association, within the scope of the powers and authorities conferred upon such bodies by law.” —Black’s Law Dic­tionary (Fifth Edition) pages 306-307.

“A ‘body corporate’ is a term applied to cor­porations, public and private, and is a term particularly applied to a public corporation having powers and duties of government.” Words and Phrases-Permanent Edition. Volume-5A, page-31.

“Corporation is that which the civilian call universitatem or collegium and is a body poli­tick authorised to take and grant, having a com­mon seal, &c. These are constituted either by prescription, by Letters Patent or by Act of Par­liament. They are either (1) spiritual, or (2) tem­poral or (3) mixed i.e. composed of spiritual and temporal persons, as in some colleges and hospitals. “—Stroud’s Judicial Dictionary (4th Edition) Vol. 1, page-615.

41. Unlike other associations the Society can­not be dissolved except by law made for the purpose (Article 24). All rules made under Article 23(2) shall be published in the official Gazette and shall come into force on such publication. The President of the Republic is the President of the Society. He appoints the Chairman and the Treasurer of the Society for a term of three years who hold office at the pleas­ure of the President. Subject to control of the Gener­al Body the administration and management of the affairs and business of the Society vest in the Man­aging Body. (Article 9 (3). In the General Body there shall be one representative each from the Ministries of Health and Population Control, Social Welfare and Women’s Affairs and Relief and Rehabilitation and the Defence Division to be nominated by the re­spective Ministry or a Division. (Article.8 (d)).

42. From the above it is clear that though the Society is an association of persons it is an associa­tion sui generis. Though membership to the Society is open to all citizens of Bangladesh who comply with the terms and conditions laid down in the rules framed under the Order, no one has the right to form a similar Society. As the appellant’s right does not flow from his right to form an association he cannot claim any right or protection under Article 38. Whatever right he has as a member of the Society has been given under the Order and he can legitimate­ly claim protection under Article 102 of the Consti­tution for enforcement of his statutory right but he cannot claim that his right under the statute cannot be modified, altered or affected by an amendment of P.O. No. 26 of 1973, validly passed by the legisla­ture.

43. The appellant has challenged the impugned Act on the ground of mala fides and also assailed its merits. It is urged that there was no compelling rea­son before the legislature for passing the impugned legislation within less than three months from De­cember 7, 1988 when the Executive Committees of different Units were validly constituted by electors.

44. It is contended that the impugned Act has violated his right by imposing restrictions on his ac­tivities which have no nexus with the interests of morality or public order, because it is not clear what evil was sought to be prevented or remedied by the impugned Act or what was the necessity of urgency in passing that Act.

45. It is urged that by taking advantage of the fact that most of the Zilla Parishad Chairmen and Mayors/Administrators of the Municipal Corpora­tions are members of the ruling Jatiya Party the im­pugned Act was passed mala fide in perverse exercise of legislative powers for collateral purposes for transforming the Society to an auxiliary to the rul­ing Jatiya Party for enabling it to control and distrib­ute substantial relief materials sent to the Society by donors who wish to entrust such materials to an independent, neutral and impartial non-governmental body.

46. The impugned legislation has not violated any provision of the Constitution. We need not ex­amine the merit of the legislation or the motive be­hind it. Motives of the majority party in the legisla­ture in passing an enactment or its merits are non issues in a proceeding under Article 102(1) of the Constitution when the constitutionality of an enact­ment is prima facie unassailable.

47. The appellant has contended that by dis­solving all the Executive Committees of the Units and the General Body under section 9 of Act 14 of 1989 he has been deprived of a valuable right to con­tinue in the office for his unexpired term. This seem­ingly attractive submission has got no force. What­ever right the appellant has under P.O. No. 26 of 1973 can be modified, regulated or taken away by an amendment of that Order. There is no dispute as to the principle that the legislature can, subject to the provisions of the Constitution, lake away a vested right by an express enactment. The Deputy Com­missioner of district discharges various administra­tive functions under numerous statutes. He also acted, immediately before the impugned Act, as the ex officio Chairman of the District Unit of the Socie­ty. He is now relieved of that function. After the amendment the functions of the ex-officio Chairman of a District Unit or a city unit are to be discharged by the Zilla Parishad Chairman or the Mayor.

48. From the introduction of changes in the composition of the units of the Society by amend­ments of clauses (1), (3) and (4) of Article 7, the dis­solution of the Executive Committee under section 9 of the impugned Act appears to be a necessary sequel and the office-bearers of the Executive Committees, elected on 7th December, 1988, could not possibly be allowed to continue to be in office for their unexpired term.

49. For the construction of the impugned leg­islation or examination of the impugned notification we need not seek any guidance from Article 8 (2) or from Article 25 of the Constitution, though it has fervently been urged that we should do that. Article 8(2) provides that the principles set out in Part II of the Constitution shall be a guide to the interpreta­tion of the Constitution and other laws of the coun­try. Article 25 in that Part II provides that the State shall base its respect for international relation on the principles of respect for international law and the principles enunciated in the United Nations Charter. In a petition for enforcement of a fundamental right the article that guarantees such right in the Constitu­tion is ordinarily a sufficient criterion for examining a grievance of an aggrieved person. As the appellant has not urged any violation of international law or convention and the case docs not involve any such issue, it is not at all necessary to refer to Article 8 or Article 25 of the Constitution.

50. Before we part with the case we like to re­fer to a grievance of the appellant, belatedly made in his Affidavit-in-Reply during the hearing of the Writ petition before the High Court Division. It was al­leged that the Zilla Parishad Chairman of Magura was only admitting his own party-men to new mem­bership and the persons who were members in 1988 were denied forms for renewal of their membership. The Society has denied the allegations by filing an affidavit.

51. Let it be made clear that the Society is un­der a statutory obligation under clause (6) of Article 7 to admit persons to any grade in membership of the Society provided the persons seeking member­ship comply with the terms and conditions for enrol­ment or for renewal of membership.

52. Because of the pendency of the proceeding and the order of stay granted by this Court the Exec­utive Committees and the General Body could not be reconstituted as per provisions and time-schedule provided in section 9 of Act No. 14 of 1989. To ob­viate the difficulties that have arisen it is necessary to give a new time-schedule for the reconstitution of the Executive Committees and the General Body of the Society.

53. It is, therefore, ordered that with reference to section 9 (ga) of the Bangladesh Red Crescent So­ciety (Amendment) Act, 1989 the Executive Com­mittees and the General Body may now be reconsti­tuted by 30th April, 1990 and 31st May, 1990 respectively, and that for determining the term of the reconstituted Executive Committees time will be counted from 1st January, 1990.

54. In the above context, form for applications for enrolment and renewal for membership may be made available to all those who desire to be mem­bers or renew their existing membership, and all such applications be disposed of in accordance with P.O. No. 26 of 1973 and the rules framed thereun­der.

In the result, the appeal is dismissed.

No costs.

Source : 42 DLR (AD) (1990) 144.