Association evolving from Karnataka Apartment Ownership Act 1972 Violative of Fundamental Right?

The right guaranteed under Article 19(1)(c) is that every citizen has the freedom “to form associations or unions”. Implicit in this freedom is not only the right to form an association but also the right to join and, significantly, the right to decide who shall be its members. If a statute compels persons to join an association (or compels the formation of an association without genuine voluntary consent), then the voluntary character of the right is undermined. But embedded in that freedom is the principle of voluntariness — the idea that the association is formed and sustained by the free will of its members, who choose to join, remain, or refuse membership, and who decide with whom they associate. When a statute or regulatory scheme effectively compels persons to become members of an association — or prescribes automatic membership without a genuine choice — the voluntary nature of association is undermined. In such cases, the legislative scheme may run afoul of Article 19(1)(c).  In contrast the KAOA 1972, in its operation, require a non‑voluntary submission to an association of apartment owners (or otherwise compel membership) in violation of the fundamental right of freedom of association under Article 19(1)(c).

Constitutional & Jurisprudential Framework of Freedom of Association

Article 19(1)(c) guarantees the freedom “to form associations or unions” to every citizen. Some important interpretive features:

• The phrase “to form associations or unions” has been interpreted to mean not only the initial act of formation but also the continuing capacity of the group to function, maintain membership, and determine its internal composition. The Court has emphasised that if the right were limited only to the initial act of formation, then a legislative Act could immediately reconstitute, merge, absorb or dismantle the association, rendering the right hollow.
• The voluntariness dimension is crucial: “The freedom to form an association … implies also the freedom … to join or not to join an association or union.”
• An association once formed must remain free from arbitrary interference with its membership, composition or internal autonomy, unless such interference is a reasonable restriction under Article 19(4).
• The State may regulate associations (for example via registration rules, reporting obligations, audit obligations) but cannot compel membership or fundamentally alter the composition in a way that destroys the voluntariness of the group.

Thus the jurisprudential baseline: any law that effectively forces individuals into an association, imposes membership without choice, or changes the composition of an association without regard to the original members’ agreement — is vulnerable under Article 19(1)(c).

The Leading Case: Damyanti Naranga v. Union of India (1971)

Facts

In Smt. Damyanti Naranga v. Union of India (1971) 1 SCC 678, the case concerned the Hindi Sahitya Sammelan, a society registered under the Societies Registration Act. An Act of Parliament (Hindi Sahitya Sammelan Act, 1962) declared the Society to be an institution of national importance and reconstituted its governing body, transferred its property and introduced new members into the body without giving the original members any choice in the matter.

Held

The Supreme Court held that the Act violated Article 19(1)(c). Key propositions include:

• “The right to form an association … necessarily implies that the persons forming the Association have also the right to join and 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 takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association.”
• The Court further stressed: “The right guaranteed by Article 19(1)(c) cannot be confined to the initial stage of forming an association … The right can be effective only if it is held to include the right to continue the association with its composition as voluntarily agreed upon by the persons forming the association.”
• The Court held that the statute did not merely regulate the Society but altered its composition itself — which is the key flaw.

Implications

• A law (like KAOA 72) that compulsorily admits members into an existing association (or makes membership mandatory) violates the essence of voluntary association.
• The right to join an association with the membership chosen or agreed by the founders or members is part of the right under Article 19(1)(c).
• The doctrine is not simply about the right to join but also the right to remain and to choose with whom to associate.
• The mere fact that an association is registered or has some statutory overlay does not make it wholly immune to Article 19(1)(c); the key question is whether the voluntariness and member autonomy is respected.

Other Relevant Supreme Court Jurisprudence

• In O.K. Ghosh v. E.X. Joseph (AIR 1963 SC 812) the Court held that a rule which conditioned membership of a service association on government recognition — thereby compelling members to withdraw if recognition was lost — violated the right under Article 19(1)(c). The Court observed the association’s composition and continuation must not be controlled entirely by external compulsion. (India Kanoon)
• In the “Zoroastrian Cooperative Housing Society Ltd. v. District Registrar …” (2005) decision, the Court drew on Damyanti’s doctrine to emphasise that the right of members of an association to exclude others is embedded in Article 19(1)(c). (Live Law)
• Academic commentary consistently emphasises: “The freedom to form an association implies also the freedom to form or not to form, to join or not to join an association or union.”

From these authorities the following propositions may be abstracted:

1. The freedom includes the right to form and join in an association with the membership and composition of one’s choice.
2. Membership cannot be forced upon persons in a way that undermines their ability to refuse or choose.
3. The composition and internal autonomy of an association cannot be arbitrarily altered by statute so as to defeat the original members’ choice.
4. Regulation of associations is permissible; outright compulsion or takeover is not.

Analysis of the Karnataka Apartment Ownership Act, 1972 (KAOA 1972)

Relevant statutory framework

• Section 2(j) of KAOA 1972 defines “Declaration” (ie DOD) as “the instrument by which the property is submitted to the provisions of this Act”.
• Section 3(d) defines “association of apartment owners” as “all of the apartment owners acting as a group in accordance with the bye‑laws and Declaration.”
• Section 2(a) (via Definition) and Section 2(j) show that the application of the Act depends on the owner(s) submitting the property to its provisions.
• Under the Rules (Karnataka Apartment Ownership Rules, 1974) Rule 5 provides: “All persons who have purchased apartments in the Condominium and executed respective Declarations under Section 5 submitting their apartments to provisions of the Act shall automatically be the members of the Association”
• Further, Rule 7: “Holding of one share compulsory — Every apartment owner must hold at least one share of the Association.”

Key features relevant for voluntariness

• Once the Declaration is executed by the owner(s) (as required under the Act), the apartment owners become members of the “association of apartment owners” automatically — by operation of law and the bye‑laws.
• The automatic membership extends to subsequent purchasers/transferees under Rule 5. The association is thus not formed by independent initiative of the owners but by the statutory/bye‑law mechanism once the Declaration is filed.
• There is no express clause in the Act that requires owners to form an association by mutual consent and election as a purely voluntary body.
• The consequence is that the association is more a statutory creature of the Declaration/bye‑laws than a purely voluntary association formed by the owners.
• Because membership and shares are compulsory (Rule 7), an owner has no pragmatic choice to say “I will not join” if one is an apartment owner under a Declaration.
• The scheme treats the association as an essential part of the statutory management of common areas, maintenance, etc., which again ties to automatic membership rather than voluntary formation.

Potential Constitutional Issue: Compulsion versus voluntariness

(1) Lack of choice not to join

Under the rule‑mechanism in KAOA 1972, once the Declaration is executed, the apartment owners become members of the association automatically. There is no express option provided for an owner to decline membership or to form a different voluntary association instead. The automatic membership mechanism therefore raises the question: is the owner’s freedom to not join preserved? Given the jurisprudence emphasising the right not to join, this may be violative of the fundamental right.

(2) Automatic composition and membership

Since the association is defined as “all of the apartment owners acting as a group … under the bye‑laws and Declaration”, the composition is predetermined by the statute and the Declaration rather than by voluntarily chosen members. This raises whether the association retains meaningful internal autonomy to admit or exclude members, or whether membership is simply automatic. Under Damyanti, a law which compulsorily introduces members or imposes membership without consent violates Article 19(1)(c).

(3) Forcible formation of Association in KAOA

In a pure voluntary association, the members come together of their own volition, adopt bye‑laws, elect governing body, and define membership rules. In the KAOA route, the association is created by the Declaration/bye‑laws and automatic membership drive. The statute does not require a separate voluntary act by each member to join (beyond owning the apartment and being subject to the Declaration). The question arises whether this still qualifies as a “formation of association” in the sense of Article 19(1)(c), when the impetus is statutory and compulsory. If the association is effectively a statutory “management body” rather than a voluntary group, the jurisprudential protection may be different, but the jurisprudence suggests that where the term “association” is used and voluntariness is lost, Article 19(1)(c) may be triggered.

(4) Autonomy of membership and internal composition

If the association’s bye‑laws provide that every apartment owner must hold a share (Rule 7) and that the association is automatically formed, the internal autonomy of elected members may be limited. The ability of the association to exclude members, set criteria for membership, or allow decline of membership may be restricted. Under jurisprudence, the right to exclude or to control membership is part of the freedom of association. If a statute denies this autonomy by forcing membership, then the owners’ right to association may be curtailed. In Damyanti, the Court held that the Act went beyond regulation and altered the composition of the association itself — hence could not be saved under Article 19(4). If the KAOA mechanism is seen similarly as compelling membership rather than offering a genuine optional path, then the constitutional challenge gains strength.

Critique of the “Automatic/Compulsory Association” Mechanism in KAOA 1972

From a normative and rights‑perspective the following criticisms may be made:

• Erosion of the “right not to join”: By making membership in the association automatic and compulsory as a condition of ownership under the Declaration, the regime denies the owner the freedom to decline membership. This undermines a key aspect of Article 19(1)(c) freedom of association: the freedom to choose not to associate.
• Loss of genuine voluntariness: The association emerges not because a group of owners came together of their own volition but because the Declaration and bye‑laws (and the Act/Rules) create the association. The distinction between being voluntarily forming an association versus automatically being placed in one is significant for Article 19(1)(c). The former enjoys full protection; the latter risks being regarded as compulsory.
• Constraints on internal autonomy: The statutory scheme prescribes membership, shareholding (Rule 7), automatic transfer of membership on sale (Rule 5). These limit the autonomy of the association to define its membership terms. Under Damyanti, a law which alters composition or imposes membership without choice is invalid.

Conclusion

The freedom guaranteed by Article 19(1)(c) — the right to form associations — is not purely about the act of coming together but also about the voluntary nature of that coming together, the right to decide membership, the right to join or not join the association with those whom one chooses. The Supreme Court’s decision in Damyanti Naranga underscores that any law which forces membership or imposes external members without choice is violative of that right. In the context of the Karnataka Apartment Ownership Act, 1972, the statutory mechanism whereby apartment owners become members of an association compulsorily upon executing a Deed of Declaration and by operation of bye‑laws is contrary to the provision of the Fundamental Rights envisaged  in Article 19(1)© of the Indian Constitution.

By Vidyadhar Durgekar, Advocate, Ex Dy Commandant, Author & Poet with 12 published books in English and Kannada and many articles published in Indian and international magazines.