RESTRICTIONS UPON THE FREEDOM OF ASSOCIATION AND THE TEST OF REASONABLENESS

Abstract

Freedom of association is the basic feature of any pluralistic society. Though, association, like other concepts, is not an absolute concept. The state may have a number of valid reasons for wishing to regulate its exercise. To do so is not necessarily incompatible with the idea of freedom of association, provided the restrictions chosen leave the basic substance of the right intact. However, Governments do sometimes succumb to the temptation to confuse justification with expediency, and the substance of the fundamental rights cannot always be preserved by relying on the benevolence of state administrations. If it is accepted that decisions on economic and labour issues should not be monopolised by the state but that workers and employers should also play an important role in this respect, it is self-evident that the latter must be given the right to set up organisations for the defence of their occupational interests and that these organisations must be granted the rights which are necessary for them to act effectively. Although the basic principles of freedom of association apply to workers and employers alike, in practice usually problems arise in connection with labour unions rather than with employers’ organisations. The main reason for this is probably that many Governments are more concerned about the potential influence of trade unions on national life and have therefore attempted to control them more closely It is important therefore to inquire into the limits imposed by the ILO upon the discretion of Government to restrict the exercise of freedom of association. However, the present study is an attempt to analyze the understanding of the attitude of various facets of freedom of forming an association and its legal and reasonable restriction vis-a-vis the historical development, hence; it limits itself only to the study of the general rights of political and non-political associations and how much the same have been protected through Courts’ decisions.

The present study is based on doctrinal method of research. A comprehensive review of existing literature, journals, articles, reports, mixed with magazines, newspapers articles are primarily relied in order to get clear updated picture of the current position of the Constitutional law regime and its conflicts with rapid pace of modern legal development. Case laws of various Courts are basically referred.