TaxTMI 
TaxTMI 
2021 (9) TMI 315
X X X X Extracts X X X X
X X X X Extracts X X X X
....hi Rao, Adv., Mrs. K. Radha, Adv., Mrs. Anjani Aiyagari, AOR, Ms. Hemantika Wahi, AOR, Mr. Tushar Mehta, Solicitor General, Ms. Manisha Lavkumar, Sr. Adv., Mr. Aniruddha P. Mayee, AOR JUDGMENT R.F. Nariman, J. 1. Applications for intervention are allowed. Leave granted. 2. These appeals raise an important question as to the vires of the Constitution (Ninety Seventh Amendment) Act, 2011 [the "Constitution 97th Amendment Act"] which inter alia introduced Part IXB under the chapter heading 'The Co-operative Societies'. The Constitution 97th Amendment Act was passed by the requisite majority of the Lok Sabha on 27.12.2011 and the Rajya Sabha on 28.12.2011. The Presidential assent to the aforesaid Amendment followed on 12.01.2012 and the said Amendment was published in the Official Gazette of India on 13.01.2012, coming into force with effect from 15.02.2012. The important question raised in these petitions and decided by a division bench of the Gujarat High Court by the impugned judgment dated 22.04.2013 is whether Part IXB is non est for want of ratification by half of the States under the proviso to Article 368(2). The impugned judgment of the High Court has declared that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ofessional functioning of cooperatives; to address key issues of empowerment of co-operatives through voluntary formation, autonomous functioning, democratic control and professional management; for regular and timely conduct of elections, general body meetings and professional audit. The meeting ended stating: "The conference also noted that the central government has taken a laudable step by enacting the Multi-State Cooperative Societies Act, 2002, conforming to the thrust areas of reforms in co-operative legislation and has been widely appreciated. The conference while appreciating the initiative taken by the central government resolved that this subject too should be considered by the high power committee. It was, therefore, resolved a high power committee would be constituted by the Central Government consisting of representatives of the State governments, concerned Ministries of the central government, eminent cooperators and other public officials to review the achievements during the last 100 years and challenges before it and to suggest ways and means to face them and to give a new direction to movement. The constitution of the Committee and terms of refe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Constitution so as to keep the co-operatives free from unnecessary outside interferences and also to ensure, their autonomous organisational set up and their democratic functioning. 3. The Central Government is committed to ensure that theco-operative societies in the country function in a democratic, professional, autonomous and economically sound manner. With a view to bring the necessary reforms, it is proposed to incorporate a new Part in the Constitution so- as to provide for certain provisions covering the vital. aspects of working of co-operative societies like democratic, autonomous and professional functioning. A new article is also proposed to be inserted in Part IV of the Constitution (Directive Principles of State Policy) for the States to endeavor to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies. The proposed new Part in the Constitution, inter alia, seeks to empower the Parliament in respect of multi-State co-operative societies and the State Legislatures in case of other co-operative societies to make appropriate law, laying down the following matters, namely:- (a) pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te and registered or deemed to be registered under any law for the time being in force relating to such cooperatives; (e) "Office bearer" means a President, Vice-President,Chairperson, Vice-Chairperson, Secretary or Treasurer, of a co-operative society and includes any other person to be elected by the board of any co-operative society; (f) "Registrar" means the Central Registrar appointed by theCentral Government in relation to the multi-State cooperative societies and the Registrar for co-operative societies appointed by the State Government under the law made by the Legislature of a State in relation to co-operative societies; (g) "State Act" means any law made by the Legislature of aState; (h) "State level co-operative society" means a co-operativesociety having its area of operation extending to the whole of a State and defined as such in any law made by the Legislature of a State. 243ZI. Incorporation of co-operative societies. - Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to the incorporation, regulation and winding up of co-operative societies based on the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the term of the office of members of the outgoing board. (2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a cooperative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law: Provided that the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such elections. 243ZL. Supersession and suspension of board and interim management. - (1) Notwithstanding anything contained in any law for thetime being in force, no board shall be superseded or kept under supersession for a period exceeding six months: Provided that the board may be superseded or kept under suspension in a case- (i) of its persistent default; or (ii) of negligence in the performance of its duties; or (iii) the board has committed any act prejudicial to theinterests of the co-operative society or its members; or (iv) there is stalemate in the constitution or functions....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct, shall be laid before the State Legislature in the manner, as may be provided by the State Legislature, by law. 243ZN. Convening of general body meetings. - The Legislature of a State may, by law, make provisions that the annual general body meeting of every co-operative society shall be convened within a period of six months of close of the financial year to transact the business as may be provided in such law. 243ZO. Right of a member to get information. - (1) The Legislature of a State may, by law, provide foraccess to every member of a co-operative society to the books, information and accounts of the cooperative society kept in regular transaction of its business with such members. (2) The Legislature of a State may, by law, make provisionsto ensure the participation of members of the management of the co-operative society providing minimum requirement of attending meetings by the members and utilising the minimum level of services as may be provided in such law. (3) The Legislature of a State may, by law, provide for cooperative education and training for its members. 243ZP. Returns. - (1) Every co-ope....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s a reference to "Parliament", "Central Act" or "the Central Government" respectively. 243ZS. Application to Union territories. - The provisions of this Part shall apply to the Union territories and shall, in their application to a Union territory, having no Legislative Assembly as if the references to the Legislature of a State were a reference to the administrator thereof appointed under article 239 and, in relation to a Union territory having a Legislative Assembly, to that Legislative Assembly: Provided that the President may, by notification in the Official Gazette, direct that the provisions of this Part shall not apply to any Union territory or part thereof as he may specify in the notification. 243ZT. Continuance of existing laws.- Notwithstanding anything in this Part, any provision of any law relating to co-operative societies in force in a State immediately before the commencement of the Constitution (Ninety-seventh Amendment) Act, 2011, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly within the legislative domain of the States. Apart from reading out passages in Sankari Prasad Singh Deo v. Union of India, 1952 SCR 89; Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933 and Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, the learned Attorney General relied strongly upon observations in the dissenting judgments of Wanchoo, J. Ramaswamy, J. and Bachawat, J. in Golak Nath v. State of Punjab, (1967) 2 SCR 762. According to him, the examples given by Wanchoo, J. are apposite. On the other hand, Kihoto Hollohan's case (supra) is distinguishable in that, para 7 of the 10th Schedule of the Constitution had the direct effect of curtailing the operation of Articles 136, 226 and 227 of the Constitution and, by barring the jurisdiction of all courts including the Supreme Court and the High Courts, in regard to all matters covered by the 10th Schedule, this Court held that ratification would be necessary. The learned Attorney General then argued that the additional finding of the Division Bench that the Constitutional Amendment violated the basic structure of the Constitution, in that it tinkered with the federal structure of the Constitution, was wholly uncalled fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h Amendment, yet held that the said Amendment is a great step forward in bringing uniformity and order to the co-operatives movement in India. 11. Shri Masoom K. Shah, learned counsel appearing for the Respondent No.1 in Civil Appeal No. 9108-9109 of 2014, has made an impassioned plea that the donee of a limited amending power cannot do indirectly what it is not permitted to do directly. According to him, a coach-and-four is driven into the principle of federalism as understood by our Constitution, by curtailing/restricting the State's legislative powers contained in Entry 32 List 2, 7th Schedule. According to the learned counsel, a careful reading of Part IXB of the Constitution would show that the unfettered power of the State legislatures prior to the amendment has now been fettered by the provisions of Part IXB in several material particulars; for example, the fixation of the maximum number of directors of co-operative societies; the reservation provision contained in 243ZJ; the duration of the term of office of elected members of the board of co-operative societies etc. In short, what has been done is to add exception after exception to Entry 32 thereby carving out of Entry....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent would never have been enacted for multi-State cooperative societies alone. Even otherwise, the challenge made in the Writ Petition was to the entirety of Part IXB and the part relating to multi-State co-operative societies, not being severable, the entirety of Part IXB has correctly been held to be unconstitutional by the impugned judgment. He also argued that if this Constitutional Amendment is allowed to pass constitutional muster without ratification, there would be no end to further amendments which would then indirectly rob the States of their legislative powers, changing a quasi-federal state into a unitary one. 12. He then argued a point that was neither raised in the pleadings nor in arguments in the High Court. He submitted that even qua Multi-State Co-operative Societies, since a change has been made in Entry 44 List I which contains the power to legislate qua Multi-State Co-operative Societies, the width of the Entry is curtailed by Part IXB of the Constitution, which would, therefore, in any case require ratification by the States. To this contention, the learned Attorney General replied by submitting that it is only those Entries such as Entry 2A of List I (refe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. (2) No law made by Parliament shall be deemed to beinvalid on the ground that it would have extraterritorial operation. 246. Subject-matter of laws made by Parliament and by the Legislatures of States. - (1) Notwithstanding anything in clauses (2) and (3),Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List"). (2) Notwithstanding anything in clause (3), Parliament, and,subject to clause (1), the Legislature of any State 1*** also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List"). (3) Subject to clauses (1) and (2), the Legislature of anyState has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List"). (4) Parliament has power to make laws....
X X X X Extracts X X X X
X X X X Extracts X X X X
....List 3. Thus, in Kerala SEB v. Indian Aluminium Co. Ltd., (1976) 1 SCC 466, this Court held: - "5. In view of the provisions of Article 254, the power of Parliament to legislate in regard to matters in List III, which are dealt with by clause (2), is supreme the Parliament has exclusive power to legislate with respect to matters in List 1. The State Legislature has exclusive power to legislate with respect to matters in List II. But this is subject to the provisions of clause (1) [leaving out for the moment the reference to clause (2)]. The power of Parliament to legislate with respect to matters included in List I is supreme notwithstanding anything contained in clause (3) [again leaving out of consideration the provisions of clause (2)]. Now what is the meaning of the words "notwithstanding" in clause (1) and "subject to" in clause (3)? They mean that where an entry is in general terms in List II and part of that entry is in specific terms in List I, the entry in List I takes effect notwithstanding the entry in List II. This is also on the principle that the "special" excludes the "general" and the general entry in List II is subject to the special entry in List 1. For i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e State Legislative List a meaning which it can properly bear. The non obstante clause in Article 246(1) must operate only if such reconciliation should prove impossible. Thirdly, no question of conflict between the two Lists will arise if the impugned legislation, by the application of the doctrine of 'pith and substance' appears to fall exclusively under one list, and the encroachment upon another list is only incidental. (at page 165) 19. Likewise, in Goodricke Group Ltd. v. State of W.B., 1995 Supp (1) SCC 707, this Court reiterated this constitutional scheme as follows: 12. The scheme of the entries in the three lists in the Seventh Schedule is set out in the decision of this Court in M.P.V. Sundararamier & Co. v. State of A.P. [1958 SCR 1422] and needs no reiteration. Similarly, the proposition that the several entries are legislative heads and must be construed liberally is too well-settled to require any elaboration. It is equally well-recognised that where there are three lists containing a large number of entries, there is bound to be some overlapping among them. In such a situation, the rule of pith and substance has to be applied to determine to which entry ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... clause in clause (1) of Article 246, the parliamentary legislation would prevail notwithstanding the exclusive power of the State Legislature to make a law with respect to a matter enumerated in the State List. 21. In Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd., (2007) 6 SCC 236, it was held: 92. The first three clauses of Article 246 of the Constitution relate to the demarcation of legislative powers between Parliament and the State Legislatures. Under clause (1), notwithstanding anything contained in clauses (2) and (3), Parliament has been given the exclusive power to make laws with respect to any of the matters enumerated in List I or the Union List in the Seventh Schedule. Clause (2) empowers Parliament and the State Legislatures subject to the power of Parliament under sub-clause (1), to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule described in the Constitution as the "Concurrent List" notwithstanding anything contained in subclause (3). Under clause (3) the State Legislatures have been given exclusive powers to make laws in respect of matters enumerated in List II in the Seventh Schedule described as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and the State Legislature haveconcurrent powers of legislation with respect to any of the matters enumerated in List III. The words "notwithstanding anything contained in clauses (2) and (3)" in Article 246(1) and the words "subject to clauses (1) and (2)" in Article 246(3) lay down the principle of federal supremacy viz. that in case of inevitable conflict between the Union and State powers, the Union power as enumerated in List I shall prevail over the State power as enumerated in Lists II and III and in case of an overlapping between Lists II and III, the latter shall prevail. 27. Though, undoubtedly, the Constitution exhibits supremacy of Parliament over the State Legislatures, yet the principle of federal supremacy laid down in Article 246 of the Constitution cannot be resorted to unless there is an irreconcilable direct conflict between the entries in the Union and the State Lists. Thus, there is no quarrel with the broad proposition that under the Constitution there is a clear demarcation of legislative powers between the Union and the States and they have to confine themselves within the field entrusted to them. It may also be borne in mind that the function of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d be comprehended within the meaning of expression "corporations". 24. Likewise, in Apex Cooperative Bank of Urban Bank of Maharashtra & Goa Ltd. v. Maharashtra State Cooperative Bank Ltd., (2003) 11 SCC 66, this Court delineated the two separate spheres relating to multi-State co-operative societies and cooperative societies as follows: - 25. Another aspect which must be noticed is that in theConstitution of India, the subject pertaining to cooperative societies is in the State List i.e. Entry 32 of List II of Schedule VII. The Union List has Entry 44 of List I of Schedule VII which deals with corporations. In this case we are not concerned with the validity of a Central legislation and thus do not deal with that aspect. For purpose of the judgment we will take it that a cooperative society with objects not confined to one State would fall within the term corporation, and thus a Central legislation may be saved. However, from the constitutional provisions it is clear that matters pertaining to cooperative societies are in the State List. Thus many States have enacted laws relating to cooperative societies. We have not seen other Acts. However, as this case concerns a s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e is no other provision in the Constitution which so permits and there is no judgment of this Court that so holds. The power to make laws for the States in respect of matters listed in List II in the Seventh Schedule is exclusively that of the State Legislatures. ....." (emphasis supplied) 27. At this stage it is important to refer to the power of amendment of the Constitution contained in Article 368 of the Constitution of India. Article 368 reads as follows: - PART XX AMENDMENT OF THE CONSTITUTION 368. Power of Parliament to amend the Constitution and procedure therefor. - (1) Notwithstanding anything in this Constitution, Parliamentmay in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. (2) An amendment of this Constitution may be initiated onlyby the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Part XI which deals with legislative relations between the Union and the States. We are directly concerned with sub-clause (b) insofar as the impact of a constitutional amendment on Article 246, which is part of Chapter I of Part XI, is concerned. 31. Sub-clause (c) of the proviso then speaks of any change being made in any of the lists in the 7th Schedule, which would certainly include Entry 32 List 2 of the 7th Schedule, with which we are directly concerned. Sub-clauses (d) and (e) refer to the representation of the States in Parliament and a change to be made in the provisions of Article 368 itself respectively, with which we are not directly concerned. 32. If the subject matter of an amendment falls within the proviso, then the additional procedural requirement is that such amendment shall also be required to be ratified by the legislatures of not less than one half of the States by resolution to that effect passed by those legislatures before the bill making provision for such amendment is presented to the President for assent. Unlike the 73rd and 74th Constitution Amendments Acts, which inserted Part IX dealing with Panchayats and Part IXA dealing with Municipalities, w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt of the words "constituent power" expressly stated in the amended Article 368 came up for consideration in Indira Gandhi case [1975 Supp SCC 1]. Article 329-A(4) was struck down because it crossed the implied limitation of amending power, that it made the controlled Constitution uncontrolled, that it removed all limitations on the power to amend and that it sought to eliminate the golden triangle of Article 21 read with Articles 14 and 19. (See also Minerva Mills case [(1980) 3 SCC 625].) 123. It is Kesavananda Bharati case [(1973) 4 SCC 225] read with clarification of Khanna, J. in Indira Gandhi case [1975 Supp SCC 1] which takes us one step forward, namely, that fundamental rights are interconnected and some of them form part of the basic structure as reflected in Article 15, Article 21 read with Article 14, Article 14 read with Articles 16(4), (4-A), (4-B), etc. Bharati [(1973) 4 SCC 225] and Indira Gandhi [1975 Supp SCC 1] cases have to be read together and if so read the position in law is that the basic structure as reflected in the above articles provide a test to judge the validity of the amendment by which laws are included in the Ninth Schedule. 124. S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mbly. It remains a Parliament under a controlled Constitution. Even after the words "constituent power" are inserted in Article 368, the limitations of doctrine of basic structure would continue to apply to Parliament. It is on this premise that clauses (4) and (5) inserted in Article 368 by the 42nd Amendment were struck down in Minerva Mills case [(1980) 3 SCC 625]. 36. A challenge to a constitutional amendment may, therefore, be on procedural or substantive grounds as stated hereinabove. The present case concerns itself with the procedural ground contained inArticle 368(2) proviso. 37. For Article 368(2) proviso to apply, various tests have been laid down by this Court in some of its judgments. Since the tests laid down in Sankari Prasad Singh (supra) and Sajjan Singh (supra) are referred to in Kihoto Hollohan's case (supra), we can refer to this judgment in some detail. 38. The majority judgment of three learned Judges by Venkatachaliah, J. sets out Paragraph 7 of the 10th Schedule of the Constitution of India, which deals with disqualification on the ground of defection. The Court was concerned with the constitutional validity of the 10th Schedule on both substantive ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....other provisions of the Tenth Schedule, after the severance and excision of Paragraph 7, become truncated, and unworkable and cannot stand and operate independently. The Legislature would not have enacted the Tenth Schedule without Paragraph 7 which forms its heart and core. xxx xxx xxx 40. In dealing with whether Paragraph 7 would require ratification by the States, this Court dealt with Sankari Prasad Singh (supra) and Sajjan Singh (supra) as follows: - 58. In Sankari Prasad case [1952 SCR 89], the question was whether the amendment introducing Articles 31-A and 31-B in the Constitution required ratification under the said proviso. Repelling this contention it was observed: (SCR p. 108) "It will be seen that these articles do not either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136. Article 31-A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of Article 13 read with other relevant articles in Part III, while Article 31-B purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liab....
X X X X Extracts X X X X
X X X X Extracts X X X X
....jjan Singh cases [(1965) 1 SCR 933] are indeed different. There the jurisdiction and power of the courts under Articles 136 and 226 were not sought to be taken away nor was there any change brought about in those provisions either "in terms or in effect", since the very rights which could be adjudicated under and enforced by the courts were themselves taken away by the Constitution. The result was that there was no area for the jurisdiction of the courts to operate upon. Matters are entirely different in the context of Paragraph 7. Indeed the aforesaid cases, by necessary implication support the point urged for the petitioners. The changes in Chapter IV of Part V and Chapter V of Part VI envisaged by the proviso need not be direct. The change could be either "in terms of or in effect". It is not necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso. If in effect these articles are rendered ineffective and made inapplicable where these articles could otherwise have been invoked or would, but for Paragraph 7, have operated there is 'in effect' a change in those provisions attracting the proviso. Indeed this position was recognised in Sajj....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the jurisdiction of the Supreme Court and the High Courts does not make a change in Articles 136, 226 and 227. A close reading of these decisions indicates that instead of supporting this contention, they do in fact negative it. 157. In Sankari Prasad [1952 SCR 89] the challenge was to Articles 31-A and 31 2DB inserted in the Constitution by the Constitution (First Amendment) Act, 1951. One of the objections was based on absence of ratification under Article 368. While rejecting this argument, the Constitution Bench held as under: (SCR p. 108) "It will be seen that these articles do not either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136. Article 31-A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of Article 13 read with other relevant articles in Part III, while Article 31-B purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liable to be impugned under Article 13. It is not correct to say that the powers of the High Court under Article 226 to issue writs 'for the enforcement of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....no application. This is clear from the above quoted passage in Sankari Prasad [1952 SCR 89] which clearly brings out this distinction between a change in the right and a change in the remedy. 160. The present case, in unequivocal terms, is that ofdestroying the remedy by enacting Paragraph 7 in the Tenth Schedule making a total exclusion of judicial review including that by the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution. But for Paragraph 7 which deals with the remedy and not the right, the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Articles 226 and 227 would remain unimpaired to challenge the decision under Paragraph 6, as in the case of decisions relating to other disqualifications specified in clause (1) of Articles 102 and 191, which remedy continues to subsist. Thus, this extinction of the remedy alone without curtailing the right, since the question of disqualification of a Member on the ground of defection under the Tenth Schedule does require adjudication on enacted principles, results in making a change in Article 136 in Chapter IV in Part V and Articles 226 and 227 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....petitioner is that Article 368 has not been followed since the Constitution 102nd Amendment was not ratified by the necessary majority of the State. The Parliament never intended to take the rights of the State regarding identification of backward classes, the Constitution 102nd Amendment was not covered by Proviso to Article 368 subclause (2), hence, the same did not require any ratification. The argument of procedural violation in passing the 102nd Constitutional Amendment cannot also be accepted. We uphold the Constitution 102nd Amendment interpreted in the manner as above. 45. This was re-stated in conclusions 27 and 32 found in paragraph 450 by Bhushan, J., and concurred with by Nazeer, J., as follows: - 450. From our foregoing discussion and finding we arrive at following conclusions: xxx xxx xxx (27) It is, thus, clear as sun light that Parliamentary intention discernible from Select Committee report and statement of Minister of Social Justice and Empowerment is that the intention of the Parliament for bringing Constitutional amendment was not to take away the power of the State to identify backward class in the State. xxx xxx xxx (32) The....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tent of the constitution, and denudes the states of their effective power to legislate or frame executive policies (co-extensive with legislative power) that the amendment would take away an essential feature or violate the basic structure of the Constitution. Applying such a benchmark, this court is of the opinion that the power of identification of SEBCs hitherto exercised by the states and now shifted to the domain of the President (and for its modification, to Parliament) by virtue of Article 342A does not in any manner violate the essential features or basic structure of the Constitution. The 102nd Amendment is also not contrary to or violative of proviso to Article 368(2) of the Constitution of India. As a result, it is held that the writ petition is without merit; it is dismissed. (emphasis in original) 49. And under the heading "conclusions", it was held: 188. xxx xxx xxx (5) Re. Point No. 5 - Whether, States' power to legislate in relation to "any backward class" under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India. On these two interrelated points of reference, my conc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Judge intended to constrict the test laid down in Sajjan Singh's case (supra) by introducing a further test, namely, necessitating amendment of "an entrenched Article", it is clear that this judgment cannot be considered to be good law especially after the judgments of both the majority and minority in Kihoto Hollohan (supra). The same goes for Bachawat, J's minority judgment in Golak Nath (supra) in which the learned Judge held: The contention that the constitutional amendments of Part III had the effect of changing Articles 226 and 245 and could not be passed without complying with the proviso to Article 368 is not tenable. A constitutional amendment which does not profess to amend Article 226 directly or by inserting or striking words therein cannot be regarded as seeking to make any change in it and thus falling within the constitutional inhibition of the proviso. Article 226 gives power to the High Court throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority within those territories directions, orders and writs for the enforcement of any of the rights conferred by Part III and for any other purpose. The Seventeen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aras 45, 46 and 48; B.P. Singhal v. Union of India, (2010) 6 SCC 331 at paras 40-42). 58. There can be no doubt whatsoever that Article 246(3) read with List II of the 7th Schedule of the Constitution of India reflects an important constitutional principle that can be said to form part of the basic structure of the Constitution, namely, the fact that the Constitution is not unitary but quasi-federal in character. The question that arises before us is as to whether this principle can be said to have been infracted by inserting Part IXB into the Constitution of India so that the States' legislative powers contained in Article 246(3) read with Entry 32 List II of the 7th Schedule can be said to have been affected in a significant manner. At this juncture, it is also important to have a look at the judgment of this Court in Builders' Assn. of India v. Union of India (supra). In this judgment, apart from a challenge made on substantive grounds, the Constitution (46th Amendment Act), 1982 was challenged on the ground that the proviso to Article 368(2) had not been followed inasmuch as the ambit of Entry 54 List II dealing with a tax on sale of goods had been expanded by inserting ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itution (Forty-sixth Amendment) Bill, is presented to the President. This Bill has been passed by the Houses of Parliament and has been also ratified by the legislatures of not less than one-half of the States in accordance with the provision of the proviso to clause (2) of Article 368 of the Constitution. Legislatures of the following States have passed resolutions ratifying the amendments: (1) Haryana (2) Himachal Pradesh (3) Karnataka (4) Madhya Pradesh (5) Maharashtra (6) Manipur (7) Meghalaya (8) Orissa (9) Punjab (10) Rajasthan (11) Sikkim (12) Tamil Nadu A copy each of the letters received from these legislatures is placed below. sd/- (Sudarshan Agarwal) Secretary General To The Secretary to the President, (Through the Secretary, Ministry of Law)" The Attorney General has also produced before us the file containing the resolutions passed by the legislatures of the 12 States referred to in the Memorandum, set out above. We are satisfied that there has been due compliance of the provisions contained in the proviso to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bt that had exceptions been provided in Entry 32 List II itself, such amendment to Entry 32 List II would require ratification. There can also be no doubt that in effect if the subject matter "co-operative societies" had been either expanded or curtailed by adding a definition clause in Article 366 of the Constitution of India, such expansion or curtailment would also require ratification as significant changes have been made in effect in Entry 32 List II of the Constitution of India. Likewise, if a separate part is added in the Constitution of India, the direct effect of adding such part being to curtail the width of Entry 32 List II in a significant manner, again, in effect Entry 32 List II is directly impacted, again requiring ratification. It is of no moment that one method is chosen or preferred to another so long as Entry 32 List II is curtailed either by adding or deleting words in Entry 32 itself or by doing so through an indirect methodology, namely, adding a new definition clause in Article 366 or adding a new part to the Constitution of India. 62. Judged by these principles, it is now necessary to analyse Part IXB of the Constitution of India, as inserted by the Const....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er Article 243ZJ(3) is bound to make provisions for co-option of members to the board having experience in the field of banking, management, finance or specialization in any other field relating to the objects and activities undertaken by the co-operative society, the number of such co-opted members being restricted to two, as also the fact that such co-opted members shall not have the right to vote. V. Under Article 243ZK(1), the non-obstante clause contained therein makes it clear that the State legislature has to lay down that the election of a board shall be conducted before the expiry of the term of the board. VI. Under Article 243ZL, a State legislature can only supersede a board for a period not exceeding 6 months, if certain enumerated conditions alone are satisfied. VII. Under Article 243ZM, minimum qualifications and experience of auditors and auditing firms have to be laid down by a State Legislature, and co-operatives societies have to be audited only by such persons or firms. VIII. Under Article 243ZN, the Legislature of a State must provide that the annual general body meeting of every co-operative society shall be convened within a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....able provisions as held by this Court in Pratap Chandra Mehta case [(2011) 9 SCC 573]. 67. The aforesaid analysis of Part IXB of the Constitution leads to the result that though Article 246(3) and Entry 32, List II of the 7th Schedule have not been 'changed' in letter, yet the impact upon the aforesaid articles cannot be said to be insignificant. On the contrary, it is clear that by curtailing the width of Entry 32, List II of the 7th Schedule, Part IXB seeks to effect a significant change in Article 246(3) read with Entry 32 List II of the 7th Schedule inasmuch as the State's exclusive power to make laws with regard to the subject of co-operative societies is significantly curtailed thereby directly impacting the quasi-federal principle contained therein. Quite clearly, therefore, Part IXB, insofar as it applies to co-operative societies which operate within a State, would therefore require ratification under both sub-clauses (b) and (c) of the proviso to Article 368(2) of the Constitution of India. 68. It is interesting to note that Part IX of the Constitution of India which was inserted into the Constitution by the Constitution (73rd Amendment) Act, 1992 and Part IXA inser....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 97th Amendment Act also required ratification. 70. Shri Jani, however, argued that the constituent power that is exercised in enacting the 97th Amendment cannot be assimilated with legislative power, and that once the Constitution stands amended by insertion of Part IXB, Article 245 mandates that all legislation made under Article 246 read with Lists in the 7th Schedule to the Constitution of India is subject to the provisions of the Constitution, so that legislation made under Article 246(3) read with Entry 32 List II becomes subject to the provisions of Part IXB which is now a part of the Constitution of India. 71. This argument is a classic instance of putting the cart before the horse. Nobody doubts that had the amendment been ratified under Article 368(2) proviso as held by us above, it would then operate, as a result of which legislation under Article 246(3) read with Entry 32 List II of the 7th Schedule would then become subject to Part IXB. In the present case, ratification not having been effected, the Amendment is non est. This argument is therefore rejected. 72. Shri Venugopal then argued that 17 out of 28 States had enacted legislations incorporating provis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d and that the rest of the 10th Schedule would therefore operate. This was held by the majority as follows: - 68. The doctrine of severability has been applied by this Court in cases of challenge to the validity of an amendment on the ground of disregard of the substantive limitations on the amending power, namely, alteration of the basic structure. But only the offending part of the amendment which had the effect of altering the basic structure was struck down while the rest of the amendment was upheld. [See Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], Minerva Mills Ltd. v. Union of India [(1980) 3 SCC 625], P. Sambamurthy v. State of A.P. [(1987) 1 SCC 362] ]. 69. Is there anything in the procedural limitations imposed by sub-article (2) of Article 368 which excludes the doctrine of severability in respect of a law which violates the said limitations? Such a violation may arise when there is a composite Bill or what is in statutory context or jargon called a 'Rag-Bag' measure seeking amendments to several statutes under one amending measure which seeks to amend various provisions of the Constitution some of which may attract clauses (a) to (e) of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... complied - even the amendments which do not fall within the ambit of the proviso also become abortive. The words "the amendment shall also require to be ratified by the legislature" indicate that what is required to be ratified by the legislatures of the States is the amendment seeking to make the change in the provisions referred to in clauses (a) to (e) of the proviso. The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso. The proviso can have, therefore, no bearing on the validity of the amendments which do not fall within its ambit. Indeed the following observations of this Court in Sajjan Singh case [(1965) 1 SCR 933 : AIR 1965 SC 845] are apposite: (SCR p. 940) "In our opinion, the two parts of Article 368 must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged." 72. During the arguments reliance was placed on the words "before the Bill making provision for such amendment is presented to the President for assent" to sustain the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e First and Fourth Schedules as well as in other provisions of the Constitution requiring special majority under Article 368(2) and such a law, even though passed by the simple majority and not by special majority, may be upheld in respect of the amendments made in the First and Fourth Schedules. There is really no difference in principle between the condition requiring passing of the Bill by a special majority before its presentation to the President for assent contained in Article 368(2) and the condition for ratification of the amendment by the legislatures of not less than one-half of the States before the Bill is presented to the President for assent contained in the proviso. The principle of severability can be equally applied to a composite amendment which contains amendments in provisions which do not require ratification by States as well as amendment in provisions which require such ratification and by application of the doctrine of severability, the amendment can be upheld in respect of the amendments which do not require ratification and which are within the competence of Parliament alone. Only these amendments in provisions which require ratification under the proviso ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....econd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified. That Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7. 76. Article 243ZR of Part IXB makes it clear that all the provisions of this Part which apply to multi-State co-operative societies would apply subject to the modification that any reference to a "Legislature of a State, State Act or State Government" shall be construed as a reference to "Parliament, Central Act or the Central Government" respectively. The learned Attorney General therefore argued that instead of having two separate parts w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l. Also, there is no doubt that after severance what survives can and does stand independently and is workable. It was faintly suggested by learned counsel for the Respondents that the consequence of this Court holding that the Constitution 97th Amendment Act is void for want of ratification would render the entire amendment still-born, as a result of which no part of the amendment can survive. We reject this argument for two reasons. If the doctrine of severability were not to apply for the afore-stated reason, then the majority judgment in Kihoto Hollohan (supra) would be incorrect. This very reasoning would then render the entire Constitution 52nd Amendment, which inserted the Tenth Schedule to the Constitution of India, constitutionally infirm as then the entirety of the amendment would have to be declared void for want of ratification, which would be in the teeth of the majority judgment in Kihoto Hollohan (supra). Further, on this reasoning, the amendments made in Article 19 and the addition of Article 43B would also have to be struck down, which was not pleaded or argued before either the High Court or before us. This being the case, we declare that Part IXB of the Constitut....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e societies both within the various States and in the Union territories of India. The appeals are accordingly disposed of. JUDGMENT K.M. JOSEPH, J. 1. I have gone through the draft Judgment authored by my learned and esteemed Brother Justice Rohinton Fali Nariman. 2. I am in complete agreement with the reasoning and conclusion in regard to the provisions relating to Article 240ZI to Article 243ZQ and Article 243ZT, being unconstitutional for non-compliance, with the mandate of the proviso to Article 368(2) of the Constitution of India. However, I regret my inability to concur with the view taken that the Doctrine of Severability will apply to sustain Article 243ZR and Article 243ZS to the multistate cooperative societies operating in the Union Territories, and that, it would not apply to cooperative societies confined to the territories of the Union Territories. 3. Part IXB of the Constitution of India came to be inserted by the Ninety-Seventh Amendment to the Constitution. 4. The High Court has found the Articles 243ZH to 243ZT unconstitutional. The other parts of the Ninety-Seventh Amendment were found not to be affected. The ground was essentially that there wa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mous functioning. 243ZJ. Number and term of members of board and its office bearers.-(1) The board shall consist of such number of directors as may be provided by the Legislature of a State, by law: Provided that the maximum number of directors of a co-operative society shall not exceed twenty-one: Provided further that the Legislature of a State shall, by law, provide for the reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on board of every cooperative society consisting of individuals as members and having members from such class of category of persons. (2) The term of office of elected membersof the board and its office bearers shall be five years from the date of election and the term of office bearers shall be coterminous with the term of the board: Provided that the board may fill a casual vacancy on the board by nomination out of the same class of members in respect of which the casual vacancy has arisen, if the term of office of the board is less than half of its original term. (3) The Legislature of a State shall,by law, make provisions for co-option of persons to be memb....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r clause (2) of article 243ZK, has failed to conduct elections in accordance with the provisions of the State Act: Provided further that the board of any such co-operative society shall not be superseded or kept under suspension where there is no Government shareholding or loan or financial assistance or any guarantee by the Government: Provided also that in case of a co-operative society carrying on the business of banking, the provisions of the Banking Regulation Act, 1949 shall also apply: Provided also that in case of a co-operative society, other than a multi- State co-operative society, carrying on the business of banking, the provisions of this clause shall have the effect as if for the words "six months", the words "one year" had been substituted. (2) In case of supersession of aboard, the administrator appointed to manage the affairs of such cooperative society shall arrange for conduct of elections within the period specified in clause (1) and hand over the management to the elected board. (3) The Legislature of a Statemay, by law, make provisions for the conditions of service of the administrator. 243ZM. Audit of acco....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lowing matters, namely:- (a) annual report of its activities; (b) its audited statement of accounts; (c) plan for surplus disposal asapproved by the general body of the co-operative society; (d) list of amendments to the bye-laws of the co-operative society, if any; (e) declaration regarding date ofholding of its general body meeting and conduct of elections when due; and (f) any other information required by the Registrar in pursuance of any of the provisions of the State Act. 243ZQ. Offences and penalties.-(1) The Legislature of a State may, by law, make provisions for the offences relating to the co-operative societies and penalties for such offences. (2) A law made by the Legislature of a State under clause (1) shall include the commission of the following act or omission as offences, namely:- (a) a co-operative society or anofficer or member thereof wilfully makes a false return or furnishes false information, or any person wilfully not furnishes any information required from him by a person authorised in this behalf under the provisions of the State Act; (b) any person wilfully or without anyreas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ooperative societies, which are born under laws made by the State Legislature. It is beyond the pale of doubt that the legislative powers of the State Legislature, in regard to "cooperative societies", falling in Entry 32 of List II of the Seventh Schedule, has been conditioned, cribbed and confined, though no change, as such, is made in the Entry 32. It is clear that what is relevant is, whether by direct or indirect means, there is a substantive impact on the provisions covered by the proviso to Article 368(2). There is also a clear impact on Article 246(3), which deals with the exclusive powers of the State Legislature and, therefore, there is a change brought about in regard to the provisions contained in Chapter I of Part XI of the Constitution, which is contained in clause (b) to the proviso of Article 368(2). 6. Having found that these provisions cannot survive, the question arises whether Article 243ZR and 243ZS, can continue to exist. What is pressed into service, however, in this regard, by learned Attorney General, is that the Doctrine of Severability would apply. 7. The learned Attorney General has contended that Parliament, vide Article 243ZR, has dealt with mult....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se that the definition of "prize competition" in Section 2(d) is wide enough to include also competitions involving skill to a substantial degree. It will be useful for the determination of this question to refer to certain rules of construction laid down by the American courts, where the question of severability has been the subject of consideration in numerous authorities. They may be summarised as follows: 1. In determining whether the validparts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, Vol. 82, p. 156; Sutherland on Statutory Construction, Vol. 2 pp. 176-177. 2. If the valid and invalid provisionsare so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n amendment of this Constitution maybe initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in- (a) article 54, article 55, article73, article 162, article 241 or article 279A or (b) Chapter IV of Part V, Chapter V ofPart VI, or Chapter I of Part XI, or (c) any of the Lists in the SeventhSchedule, or (d) the representation of States in Parliament, or (e) the provisions of this article,the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. (3) Nothing in article 13 shall a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of paragraph-7, which reads as follow: "7. Bar of jurisdiction of courts: Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of the Member of a House under this Schedule." 15. The Court proceeded to uphold the provisions of the Tenth Schedule except paragraph-7. In doing so, this Court invoked the theory of Severability. It is, in this context, necessary to notice the following discussion: "66. While examining the constitutional validity of laws the principle that is applied is that if it is possible to construe a statute so that its validity can be sustained against a constitutional attack it should be so construed and that when part of a statute is valid and part is void, the valid part must be separated from the invalid part. This is done by applying the doctrine of severability. The rationale of this doctrine has been explained by Cooley in the following words: [ Cooley: Constitutional Limitations, (8th edn.) Vol. I pp. 35960.] "It will sometimes be found that an act of the legislature is opposed in some of its provisions to the Constitution, while others....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntext or jargon called a 'Rag-Bag' measure seeking amendments to several statutes under one amending measure which seeks to amend various provisions of the Constitution some of which may attract clauses (a) to (e) of the proviso to Article 368(2) and the Bill, though passed by the requisite majority in both the Houses of Parliament has received the assent of the President without it being sent to States for ratification or having been so sent fails to receive such ratification from not less than half the States before the Bill is presented for assent. Such an Amendment Act is within the competence of Parliament insofar as it relates to provisions other than those mentioned in clauses (a) to (e) of proviso to Article 368(2) but in respect of the amendments introduced in provisions referred to in clauses (a) to (e) of proviso to Article 368(2), Parliament alone is not competent to make such amendments on account of some constitutionally recognised federal principle being invoked. If the doctrine of severability can be applied it can be upheld as valid in respect of the amendments within the competence of Parliament and only the amendments which Parliament alone was not competent to m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....amendment shall also require to be ratified by the legislature" indicate that what is required to be ratified by the legislatures of the States is the amendment seeking to make the change in the provisions referred to in clauses (a) to (e) of the proviso. The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso. The proviso can have, therefore, no bearing on the validity of the amendments which do not fall within its ambit. Indeed the following observations of this Court in Sajjan Singh case [(1965) 1 SCR 933 : AIR 1965 SC 845] are apposite: (SCR p. 940) "In our opinion, the two parts of Article 368 must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged." xxx xxx xxx 73. A similar situation can arise in the context of the main part of Article 368(2) which provides: "when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the Members of that House present....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ecedent of the proviso, is and remains, even though it receives the Royal Assent, invalid and ultra vires". Applying the doctrine of severability the Judicial Committee, however, struck down the offending provision, i.e. Section 41 alone. In other words passing of the Bill by a special majority was the condition precedent for presentation of the Bill for the assent. Disregard of such a condition precedent for presenting a Bill for assent did not result in the entire enactment being vitiated and the law being declared invalid in its entirety but it only had the effect of invalidation of a particular provision which offended against the limitation on the amending power. A comparison of the language used in clause (4) of Section 29 with that of Article 368(2) would show that both the provisions bear a general similarity of purpose and both the provisions require the passing of the Bill by special majority before it was presented for assent. The same principle would, therefore, apply while considering the validity of a composite amendment which makes alterations in the First and Fourth Schedules as well as in other provisions of the Constitution requiring special majority under Article....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sis supplied) 16. The first Rule laid down in R.M.D. Chamarbaugwalla (supra) is that, it is the intention of the Legislature, that is the determining factor. The test is also laid down that the question to be asked is, whether the Legislature would have enacted the valid Part, if it had known that the rest of the Statute was invalid. It is apposite to read another Rule, which is laid down, which is Rule No.7. In determining the legislative intent, it will be legitimate to take into account, the history of the legislation and its objects, inter-alia. The Statement of Objects and Reasons for the Ninety- Seventh Amendment, reads as follows: "STATEMENT OF OBJECTS AND REASONS The co-operative sector, over the years, has made significant contribution to various sectors of national economy and has achieved voluminous growth. However, it has shown weaknesses in safeguarding the interests of the members and fulfilment of objects for which these institutions were organised. There have been instances where elections have been postponed indefinitely and nominated office bearers or administrators remaining in-charge of these institutions for a long time. This reduces the ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... cooperative societies. The proposed new Part in the Constitution, inter alia, seeks to empower the Parliament in respect of multi-State co-operative societies and the State Legislatures in case of other co-operative societies to make appropriate law, laying down the following matters, namely:- (a) provisions for incorporation, regulation arid winding up of co-operative societies based on the principles of democratic member-control, member-economic participation and autonomous functioning; (b) specifying the maximum number of directors of a co-operative society to be not exceeding twenty-one members; (c) providing for a fixed term of fiveyears from the date of election in respect of the elected members of the board and its office bearers; (d) providing for a maximum time limit ofsix months during which a board of directors of co-operative society could be kept under supersession or suspension; (e) providing for independent professional audit; (f) providing for right of information to the members of the co-operative societies; (g) empowering the State Governments to obtain periodic reports of activities and accounts of co-operati....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was sought to be introduced without any discrimination between cooperative societies falling within the legislative domain of State Legislatures and of Parliament. The setting and the manner, in which the Articles have been ordered in Part IXB, would go to show that the substantive provisions, which actually conditioned the legislative power, among other things, was directed against the State Legislatures. 21. The second Rule laid down in R.M.D. Chamarbaugwalla (supra) is to enquire whether the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another. It is further declared that if the seemingly valid provisions are so distinct and separate, that after declaring the other set of provisions as invalid, the remaining provisions would remain a complete Code, independent of the rest, then, the distinct and separate provisions, which manifests a complete Code, can become enforceable. 22. The third Rule provides that even if they (the provisions) are distinct and separate, if they all form part of a single scheme, which is intended to be operative as a whole, then, also the invalidity of a part, will result in failure of a whole. In ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onality, and also the duty of the Court, becomes even more pronounced. If, indeed, on the Doctrine of Severability, the provisions contained in Article 243QR and Article 243QS, can be sustained, I would agree that the law must survive rather than perish. The question, however, is on the terms of the provisions in question (Articles 243QR and 243QS), and bearing in mind the principles, can they survive on their own, after the invalidation of Article 243ZH to Article 243ZQ and Article 243ZT. 26. In Kihoto Hollohan (supra), it must be noticed that the court in the said case came to the rescue of Parliament by applying the Doctrine of Severability and found no difficulty in sustaining the provisions of the Tenth Schedule, even after jettisoning the provisions of paragraph-7. It was found that pronouncing the said provision as infirm had no impact on the workability of the other provisions which related to and provided for remedies against the evil of defection. 27. The question boils down to this. Are the provisions of Article 243ZR and 243ZS independent provisions and workable? For the sake of clarity, the provisions are referred in question namely Article 243ZR and 243ZS. ....