As also provided in paragraph 2, this Article shall not prevent the imposition of lawful restrictions on members of the Security Forces and of the police in their exercise of this right. Paragraph 3 of Article 22 provides that nothing in this Article shall authorise State Parties to the International Labour Organization of concerning Freedom of Association and Protection of the Right to Organise to take legislative measures which would prejudice or to apply the law in such a manner as to prejudice the guarantees provided in that Convention.
The ICESCR provides for several rights of workers namely right to work (Article 6), right to just and favourable conditions of work (Article 7), and right to form and join trade unions (Article 8). Out of these rights, right to form and join trade unions (Article 8) is relevant to this discussion. Article 8 is different from most other rights under ICESCR.
The use of the word ‘ensure’ in Article 8 is to signal that this right engages immediate and not progressive obligation of the State Party. This means that resources constraints are not an excuse for non compliance. The right to associate referred to above under Article 22 of the ICCPR requires that an effective judicial or quasi-judicial remedy be provided.
The Committee of Economic, Social and Cultural Rights indicated in General Comment No. 3 (nature of State obligations) that it requires Article 8 to be capable of judicial enforcement. This means that lobbying for the legal protection of these rights is an appropriate implementation strategy.
Prof. Laski’s view
An important question arises as to what rights does the State have over associations whose object is to overthrow the existing social order? Has the State a right to prevent the formation of such associations or should its jurisdiction be limited to punishment of over acts? While conceding the right of the State to defend itself in case of attack, Prof. Laski takes the view that:
A Government is not entitled to suppress associations the beliefs of which alone are subversive of the established order. For, otherwise, persecution will build not on fact, but on suspicion that facts may one day emerge, not on overt acts, but on principles of faith which are in truth only dangerous when they are expressed in practice….. The time for …. interference comes only when, outside the specific categories of peaceful persuation, men have moved to action which cannot logically be interpreted as other than a determination to overthrow the social order (Laski Harold, J., Liberty in the Modern State (London : George Allen and Unwin, 1961 P 121)).
United States
The US Constitution does not make specific reference to the freedom of association in its original form. Madison did not mention the freedom of association in the draft of Bill of Rights he proposed nor did any member of Congress propose during the debate on the Bill of Rights that the freedom of association be included. In a contribution to The Federalist (1797) No.10), Madison attacked political and economic voluntary association which he called factions and warned against propensity to this dangerous vice.
In the United States associations were not heard before the US Supreme Court claiming protection of their liberty’. In Western Turf Association v Greenberg, the US Supreme Court in 1907 stated that the liberty guaranteed by the 14th Amendment applies only to natural and not artificial persons. It has, however, held, in Louis K. Liggett Co. v Baldridge, and Pierce v Society of Sisters of the Holly Names that corporations are to be considered ‘persons’ when a question of protection of property was involved.
The US Supreme Court gradually eliminated the inequality in protection as between liberty and property. In 1936, in Grossjean v American Press Co., a case involving newspapers published by corporations, the Court assumed that Corporations are entitled to the guarantee of liberty in the 14th Amendment.
In 1952, in Burstyn Inc. v Wilson (343 US 495 (1952)), it held that the freedom of speech and press applied to motion pictures as well, ignoring the fact that it was a corporation that claimed the freedom. Finally, in 1958, the US Supreme Court in NAACP v Alabama directly recognised the freedom of association.
Justice Harlan stated for a unanimous Court that the freedom of association was an ‘inseparable aspect of the liberty’ assumed by the due Process Clause of the 14th Amendment’. In Griswold v Connecticut the US Supreme Court said that ‘while (the freedom of association) is not expressly included in the First Amendment its existence is necessary in making the express guarantees (of the First Amendment) fully meaningful.
Article 19(1) (c) of the Indian Constitution declares that all citizens shall have the right ‘to form associations or unions’. Reasonable restrictions on the exercise of this right may be made in the interests of the sovereignty and integrity of India, public order or morality. While Article 20(1) of the Universal Declaration of Human Rights guarantees freedom of association, Article 20 (2) declares that ‘no one may be compelled to belong to an association’.
Damayanti v Union of India concerned an Act of Parliament which declared the Hindi Sahitya Sammelan, a society whose principal object was the development and promotion of the propagation of Hindi, to be an institution of national importance and vested its property in a new Sammelan, a body corporate.
While existing members of the original Sammelan were to be members of the new Sammelan, others were also declared to be members. New members could be enrolled without the consent of the original members.
The Indian Supreme Court held that the right to form an association included the right to continue as members of that association. Members cannot be forced to associate with others. A law that alters the composition of an association violates the right to form an association. Thus the right to form an association carries with it the right not to form associations. The freedom not to associate has been recognised by the US Supreme Court too (Abood v Detroit Board of Education).
Pakistan
In the case of Benazir Bhutto v Federation of Pakistan, the Pakistan Supreme Court held that the right to form or be a member of a political party, guaranteed by Article 17(2) of the Constitution of Pakistan, included the right to operate as a political party and the right of that party to form a Government. In Nawaz Sharif v Federation of Pakistan, the Court further enlarged the scope of Article 17(2) and stated that if the lawful functioning of a government formed by a political party frustrated by its dismissal by an unlawful order of the President, such an order would violate Article 17(2). In such an event, a petition under Article 184(3) for the enforcement of fundamental rights would be maintainable in the Supreme Court.
Sri Lanka
The freedom of association is guaranteed to every citizen by Article 14(1) (c) of the Sri Lankan Constitution of 1978. Article 15(4) permits the restriction of this freedom by law, in the interests of racial and religious harmony or national economy. Article 14(1) (d) guarantees the freedom to form and join a trade union. Both freedoms can be restricted by law or Emergency Regulations for the purposes set out in Article 15(7).
In Sri Lanka, Article 157A of the Constitution prohibits any political party or other association or organisation from having as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka. Where the Supreme Court, upon an application made to it, declares that a party, association or organisation has such an aim or object, such a party, association or organisation is deemed to be proscribed.
Regulation 68 of the Emergency Regulations empowers the President to proscribe an organisation if he is of the opinion that there is a danger of action by, or of the utilisation, of, such organisation or its members or adherents for purposes prejudicial to national security, the maintenance of public order or maintenance of essential services or for the purposes of committing offences mentioned in the Regulation. It was under this Regulation that the Communist Party, the Nawa Sama Samaja Party and the Janatha Vimukthi Peramuna were proscribed in 1983.
Trade Unions
Trade Unions have proved to be important associations in industrial society. In Coppage v Kansas Justice Holmes, emphasised that liberty of contract always begins where equality of bargaining power begins. Our 1978 Constitution declared the freedom to form and join a trade union to be a fundamental right. The 1972 Constitution did not expressly declare such a fundamental right. In Gunaratne v People’s Bank, it was stated that when section 18(1) (b) of the 1972 Constitution spoke of the freedom of association, it meant primarily the freedom of forming trade unions.
In Gunaratne v People’s Bank, the plaintiff was required by employer, the People’s Bank, to resign from the membership of the trade union to which he belonged to qualify for promotion from Grade IV to Grade III. The Bank did not permit an employee in Grade III and above to be a member of any trade union the membership of which was open to employees of Grade V and below. The District Court held that the requirement was a violation of the right to join a trade union. The Court of Appeal reversed the judgment of the District court. The plaintiff then appealed to the Supreme Court where a five-member Bench allowed the appeal and affirmed the judgment of the District Court.
Whether the right to strike is also included in the right to form and join a trade union was raised in Yasapala V. Wickramasinghe. The petitioner referred to Section 2 of the Trade Union Ordinance where a Trade Union is defined as an association of workmen or employees having among its objectives the following objects: The promotion or organisation of financing of strikes or lock-outs in any trade or industry or the provision of pay or other benefits for its members during a strike or lock- out.
It was contended that since the promotion of strikes was one of the legitimate objects of a trade union, it followed that under Article 14 (1) (d) there is a fundamental right for a workmen to resort to a strike; the freedom to form a trade union extended to confer upon trade unions a right to effectively function as an instrument for agitating and negotiating and for collective bargaining to secure the demands of workers; otherwise the freedom to form a trade union would be illusory.
Sharvananda J., agreeing with the judgment of the Indian Supreme Court in All India Bank Employees Association v the National Industrial Tribunal, held that the right to strike did not amount to a fundamental right. The Judge stated that to hold that the right to strike is a fundamental right was to hold also that the right to lock-out is a fundamental right.
In Weeratunge v Attorney General, the Supreme Court also held that the right to form and join a trade union did not imply a concomitant right that an officer of a trade union should not be transferred out from the place where the office of the branch trade union of which he is an officer is situated.
Associations play a vital role in modern society and are a vital expression of human personality. Freedom of association indicates a condition in which people are to join others in an organisation for a common purpose or joint action. It permits individual to get together for the purpose of influencing policy.