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TMI Blog2013 (4) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. 2.1 According to the petitioner, the power under Article 368 of the Constitution of India itself is the basic structure of the Constitution of India and the fact that by the impugned constitutional amendment, the procedure prescribed in the article 368(2) of the Constitution, which recognizes the federal structure of the Constitution as one of the basic structures, has not been followed, is violative of the Constitution. The petitioner contends that the subject-matter Cooperative Societies does not fall in the 7th Schedule Entry 45 of List I of the Constitution and those are specifically excluded from entry no. 43 of List 1. Therefore, according to the petitioner, the State legislature is the only competent authority in law to enact the laws for the co-operative societies and on that ground, the proposed amendment should be set aside as violative of the Constitution of India as the consent of the majority of the State Legislatures was not received before presenting the Bill proposing the amendment to the President of India. 2.2 According to the petitioner, it is settled law that a constitutional authority cannot do something indirectly which it is not permitted to do dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, which are as under: (i). A very large number of provisions are open to alteration by the Union Parliament, by simple majority like the matters referred to in Articles 2 4, 169 and 240. (a). Creation of new States or reconstitution of existing States. (b). Creation or abolition of upper chambers in the States. (c). Administration of scheduled areas and Scheduled Tribes (Part VIII of the 5th Schedule and Part XXI of the 6th Schedule. (ii). If, however, a matter is not covered by this Article, like cessation of territory to a foreign power, that can be effected only by enacting an Amendment Act under Article 368. (iii). In the case of few matters relating to the federal structure of the Constitution, a special mode is prescribed, viz. that the Bill for amendment must be passed by two-third majority of the members of each House present and voting (such majority being more than 50% of the total membership of each House) and then ratified by the Legislatures by one-half of the States. Those matters are: (a). The manner of election of President, (b). Extent of Executive Powers of the Union and the States, (c ). The Supreme Court and the High Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or implied, upon the amendment power under Article 368 (1) which is a constituent power, and, (b). A Constitution Amending Act would not, therefore, be subject to judicial review on any ground. The said amendment, in turn, came to be superseded by the decision of a Constitution Bench of the Supreme Court in the case of MINERVA MILLS [supra]. The said clauses (4) and (5) of Article 368 has been invalidated by the Supreme Court in the said case on the ground that these provisions introduced by the 42nd amendment Act, 1976, sought to exclude judicial review, which was one of the basic features of the Indian Constitution, as held in the Kesavanand s case and so long as this decision stands, all the Constitution Amendment Acts shall be open to review by the Supreme Court to see whether it affected any of the basic features of the Constitution substantively or the procedural safeguards included in other clauses of Article 368. (J). Thus, the power to amend Constitution is vested in the Parliament and while exercising the powers under Article 368, the Parliament would not be subject to the limitations which curb its Legislative powers to make laws under Articles 245-246 because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. 243ZH. Definitions .--In this Part, unless the context otherwise requires,-- [a] authorised person means a person referred to as such in article 243ZQ; [b] board means the board of directors or the governing body of a co-operative society, by whatever name called, to which the direction and control of the management of the affairs of a society is entrusted to; [c] co-operative society means a society registered or deemed to be registered under under any law relating to co-operative societies for the time being in force in any State; [d] multi-State co-operative society means a society with objects not confined to one State 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 Registr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecified in the first proviso to clause[1]: Provided further that such co-opted members shall not have the right to vote in any election of the cooperative society in their capacity as such member or to be eligible to be elected as office bearers of the board: Provided also that the functional directors of a cooperative society shall also be the members of the board and such members shall be excluded for the purpose of counting the total number of directors specified in the first proviso to clause[1]. 243ZK. Election of members of board.--[1] Notwithstanding anything contained in any law made by the Legislature of a State, the election of a board shall be conducted before the expiry of 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 co-operative 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, pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry co-operative society shall cause to be audited by an auditor or auditing firms referred to in clause [2] appointed by the general body of the cooperative society: Provided that such auditors or auditing firms shall be appointed from a panel approved by a State Government or any authority authorised by the State Government in this behalf. [4] The accounts of every co-operative society shall be audited within six months of the close of the financial year to which such accounts relate. [5] The audit report of the accounts of an apex co-operative society, as may be defined by the State Act, 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 cooperative 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 for access to every member of a co-operative society to the boo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is an officer or custodian, to an authorised person; and [e] whoever, before, during or after the election of members of the board or office bearers, adopts any corrupt practice. 243ZR. Application to multi-State co-operative societies.-- The provisions of this Part shall apply to the multi-State co-operative societies subject to the modification that any reference to Legislature of a State , State Act or State Government shall be construed as 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. Continuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... called in question in any court on any ground. (5). For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article. 7. After hearing the learned counsel for the parties and after going through the provisions quoted above and also the other provisions of the Constitution of India, it appears that only the State Legislature is authorized to enact law relating to Co-Operative Societies as would appear from the fact that it is placed at item No. 32 in List II-STATE LIST in the Seventh Schedule of the Constitution. 8. We do not dispute for a moment that by amending the provisions of the Constitution of India, the Parliament can bring the said item from List-II of the 7th Schedule to List I UNION LIST or List III CONCURRENT LIST and in such circumstances, the Parliament will also have right to legislate law relating to Co-Operative Societies. However, in order to bring such amendment for shifting an item from List-II of the 7th Schedule to List I UNION LIST or List III CONCURRENT LIST of the 7th Sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectors of a Co-Operative Society which shall not exceed twenty-one. Further, the State Legislatures have been asked to provide for reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on board of every co-operative society consisting of individuals as members and having members from such class or category of persons. Similarly, in sub-Article [2] of Article 243ZJ, the duration of the term of office of the elected members of the board and its office bearers has been fixed to be five years and in sub-Article (3) thereof, a further direction has been given upon State Legislatures in the matter of enacting law relating to Co-Operative Societies regarding co-option of the member in the board of director and further provisions regarding the rights of such co-opted members have also been made. Similarly in Article 243ZK, a further condition has been imposed that the election of a board shall be conducted before the expiry of 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. In Article 243ZL, a further condition has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assent. By way of the impugned amendment, instead of taking consent of the majority of the State Legislatures, by merely taking consent of the Ministers of the State, the purpose has been sought to be achieved. 13. In other words, what could not be achieved except by complying with the provisions of Article 368 (2) of the Constitution, the selfsame purpose has been sought to be achieved by the amendment impugned in this writ-application without complying with the provisions of Article 368 (2) of the Constitution. 14. In the case of Builders Association of India others etc.etc. v. Union of India and others etc.etc., reported in AIR 1989 SC 1371, a Constitutional Bench [five judges] of the Supreme Court was considering whether the Constitution [46th Amendment] Act, 1982 was passed after proper ratification as required under Article 368[2] and whether the State was bound to follow Article 286 and Central Sales Tax Act while levying tax under Article 366. In the said case, in Schedule VII List II Entry No. 54, the scope was expanded. The plenary power of the State government was expanded by interfering with its exclusive power under Article 246 by the said amendment. The Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court was, having regard to the legislative history and evolution of the principles underlying the Tenth Schedule, Paragraph 7 thereof in terms and in effect, brought about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the Bill introducing the amendment attracted the proviso to Article 368[2] of the Constitution and would require to be ratified by the Legislature of the States before the Bill is presented for Presidential assent. Ultimately, in para-62 of the judgment the Supreme Court made the following observations: 62. In the present case, though the amendment does not bring in any change directly in the language of Articles 136, 226 and 227 of the Constitution, however, in effect paragraph 7 curtails the operation of those articles respecting matters falling under the Tenth Schedule. There is a change in the effect in Articles 136, 226 and 227 within the meaning of clause [b] of the proviso to Article 368[2]. Paragraph 7, therefore, attracts the proviso and ratification was necessary. Accordingly, on Point [B], we hold: That having regard to the background and evolution of the principles underly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt upheld the constitutional validity on the ground that it complied with Width Test and the Test of Identity. By relying upon the said decision, Mr. Shah, in our opinion, was right in submitting that constitutional amendment is to be tested on its width and one has to examine the identity. 18. In the case of I.R. Coelho [dead] by L.Rs. v. State of T.N., reported in [2007] 2 SCC 1, a nine-judge-bench of the Supreme Court, returned its unanimous verdict through Sabharwal, CJI. In the said case, the question was whether the Laws placed under Schedule IX inserted by Article 31B were immuned from the judicial review. Sabharwal, CJI, answered the question by holding that it is not immuned and was subject to judicial review. The observations made in para-151 at page 111 are quoted below: 151. In conclusion, we hold that: [i] A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of the law, whether by amendment of any article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder. [vi] Action taken and transaction finalized as a result of the impugned Acts shall not be open to challenge. 18.1 By relying upon the said decision, Mr. Shah, in our view, was right in submitting that the contention of Mr. Champaneri or Mr. Jani that we cannot look into the question whether formalities of ratification have been complied with or not or whether basic structure of the Constitution has been hit is not tenable. 19. Mr. Shah also placed strong reliance upon the decision of the Supreme Court in the case of D.C. Wadhwa v. State of Bihar, reported in [1987] 1 SCC 625. In the said decision, the question was whether by promulgating the ordinances from time to time on a massive scale in a routine manner under Article 213 by Governor and without replacing them by Act of Legislature, the constitutional provisions were infringed. In this connection, Mr. Shah strongly placed reliance upon para-7 at page 393 of the said decision, wherein, it was observed by Bhagawati, CJI that a constitutional authority cannot do indirectly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the State Legislatures over the subject mentioned in List II without taking recourse to Article 368 (2). 23. We now propose to deal with the decisions cited by Mr. Champaneri, the learned Assistant Solicitor General of India, appearing for the Union of India. 24. In the case of Sasanka vs. Union of India reported in AIR 1981 SC 522, the question that had arisen before a five-judgebench of the Supreme Court was whether the provisions of Chapter IIB of the West Bengal Land Reforms -Act, 1955 (Act X of 1956) inserted by the West Bengal Land Reforms (Amendment) Act, 1971 (President's Act III of 1971), and replaced by the West Bengal Land Reforms (Amendment) Act, 1972 (Act XII of l972) with retrospective effect from February 12, 1971, which provide for a fixation of ceiling on agricultural holdings and for matters ancillary thereto, were violative of the second provision to Art. 31A (1) of the Constitution. In that context, the Supreme Court in paragraph 35 of the judgment made the following observations upon which Mr. Champaneri has placed strong reliance: 35. As regards the submission that Parliament cannot in exercise of its constituent power under Art. 368 valida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution or not. By the Constitution [93rd amendment] Act, 2005, clause (5) was added to Article 15 of the Constitution which is an enabling provisions which states that nothing in Article 15 or in sub-clause (g) of Clause (I) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to the educational institutions including private educational institutions, whether aided or unaided by the State. In such a case it was held by the Supreme Court that the said amendment does not violate the basic structure of the Constitution so far as it relates to aided educational institutions. The Supreme Court further held that the question whether reservation could be made for SCs, STs or SEBCs in private educational institutions on the basis of the Constitution [93rd amendment] or whether reservation could be given in such institutions or whether any such legislation would be violative of Article 19(1)(g) or Article 14 of the Constitution or whether the said amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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