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TMI Blog2021 (9) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... essly excludes co-operative societies from its ambit. Entry 44 List I, which is wider than Entry 43 in that it is not limited to trading corporations, speaks of corporations with objects not confined to one State. This Court has therefore held, on a reading of these entries, that when it comes to Multi State Co-operative Societies with objects not confined to one state, the legislative power would be that of the Union of India which is contained in Entry 44 List I. It may thus be seen that there is no overlap whatsoever so far as the subject co-operative societies is concerned. Co-operative societies as a subject matter belongs wholly and exclusively to the State legislatures to legislate upon, whereas multi-State cooperative societies i.e., co-operative societies having objects not confined to one state alone, is exclusively within the ken of Parliament. This being the case, it may safely be concluded, on the facts of this case, that there is no overlap and hence, no need to apply the federal supremacy principle as laid down by the judgments of this court - If the subject matter of an amendment falls within the proviso, then the additional procedural requirement is that such amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the learned Attorney General. Also, there is no doubt that after severance what survives can and does stand independently and is workable - 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 Constitution of India is operative insofar as multi-State co-operative societies are concerned. The judgment of the High Court is upheld except to the extent that it strikes down the entirety of Part IXB of the Constitution of India - it is declared that Part IXB of the Constitution of India is operative only insofar as it concerns multi-State cooperative societies both within the various States and in the Union territories of India - Appeal disposed off. As per K.M. JOSEPH, J. 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 Do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to sustain. The unconstitutional part, which is to be an integral part of Article 243ZR and Article 243ZS, must continue to exist, if the provisions , in question, are to bear life. I respectfully disagree with the view taken by my learned and esteemed Brother in regard to the application of the Doctrine of Severability. - Appeal dismissed. Dissenting orders passed in regard to the application of the Doctrine of Severability. X X X X Extracts X X X X X X X X Extracts X X X X ..... tive societies; xxx xxx xxx Art 43B. Promotion of co-operative societies.- The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies. SEVENTH SCHEDULE (Article 246) List I-Union List xxx xxx xxx 43. Incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations, but not including co-operative societies. 44. Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities. xxx xxx xxx List II-State List xxx xxx xxx 32. Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; cooperative societies. xxx xxx xxx 4. On 07.12.2004, a conference of ministers dealing with co-operatives in the various states resolved to amend the Constitution to ensure democratic, autonomous and professional functioning of cooperatives; to address key issues of empowerment of co-operatives through vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir contribution in the economic development of the country and to serve the interests of members and public at large and also to ensure their autonomy, democratic functioning and professional management. 2. The "co-operative societies" is a subject enumerated inEntry 32 of the State List of the Seventh Schedule of the Constitution and the State Legislatures have accordingly enacted legislations on co-operative societies. Within the framework of State Acts, growth of co-operatives on large scale was envisaged as part of the efforts for securing social and economic justice and equitable distribution of the fruits of development. It has, however, been experienced that in spite of considerable expansion of co-operatives, their performance in qualitative terms has not been up to the desired level. Considering the need for reforms in the Cooperative Societies Acts of the States, consultations with the State Governments have been held at several occasions and in the conferences of State Co-operative Ministers. A strong need has been felt for amending the Constitution so as to keep the co-operatives free from unnecessary outside interferences and also to ensure, their autonom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility of management to the members and other stakeholders and shall provide for deterrence for violation of the provisions of the law. 5. The Bill seeks to achieve the above objectives." (Emphasis supplied) 6. A new Part IXB was then inserted as follows: PART IXB THE CO-OPERATIVE SOCIETIES 243ZH. Definitions. - In this Part, unless the context otherwise requires,- (a) "authorised person" means a person referred to as suchin article 243ZQ; (b) "board" means the board of directors or the governingbody 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 ordeemed to be registered under any law relating to cooperative societies for the time being in force in any State; (d) "multi-State co-operative society" means a society withobjects 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 includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided that the number of such co-opted members shall not exceed two in addition to twenty-one directors specified 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 co-operative 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 cooperative society shall vest in such an authority or body, as may be provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be eligible for auditing accounts of the co-operative societies. (3) Every co-operative society shall cause to be audited byan auditor or auditing firms referred to in clause (2) appointed by the general body of the co-operative society: Provided that such auditors or auditing firms shall be appointed from a panel approved by a State Government or an authority authorised by the State Government in this behalf. (4) The accounts of every co-operative society shall beaudited 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-operativesociety, 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 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, provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nging to a co-operative society of which he is an officer or custodian, to an authorised person; and (e) whoever, before, during or after the election ofmembers 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 cooperative 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f constitutional amendments, argued that there is no change either directly or in effect to Article 246(3) of the Constitution of India, from which the legislative power of the States contained in List II of the 7th Schedule flows, or in Entry 32 of List II of the 7th Schedule. In point of fact, a reading of Part IXB would show that no additional legislative power has been given to the Union. All subject matters relating to co-operative societies fall solely 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 ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State subjects, and relied upon the insertion of Article 21A by Constitution (Eighty Sixth Amendment) Act, 2002. He then argued that as a matter of fact, Part IXB read with Article 43B enhances the basic structure of the Constitution and relied strongly upon the judgment in Vipulbhai M. Chaudhary v. Gujarat Coop. Milk Mktg. Federation Ltd., (2015) 8 SCC 1 to demonstrate that this judgment, though not dealing with the constitutional validity of the 97th 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 legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s lacking. The validity of a constitutional amendment does not depend upon whether a State government accepts it or whether a State government challenges it. He then went on to make two further arguments insofar as multi-State co-operative societies are concerned. First and foremost, given the tests of severability, he argued that multi-State co-operative societies are inextricably entwined with co-operative societies and the 97th Constitution Amendment 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 submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the Union of India and the States. This is laid down in Part IXB, Chapter I in Articles 245 and 246 as follows: - PART XI RELATIONS BETWEEN THE UNION AND THE STATES CHAPTER I.-LEGISLATIVE RELATIONS Distribution of Legislative Powers 245. Extent of laws made by Parliament and by the Legislatures of States. - (1) Subject to the provisions of this Constitution, Parliamentmay make laws for the whole or any part 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 Seve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e List have to give way to topics contained in the Union or Concurrent List in the event of an overlap between entries in these lists. Such overlap is not to be easily found - on the contrary, it is only in the case of an inevitable and irreconcilable conflict that the width of an entry in the State List can be curtailed by an overlap with an entry in either List 1 or 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 "sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two entries cannot be reconciled so as to avoid a conflict of jurisdiction. It should be considered whether a fair reconciliation can be achieved by giving to the language of the Union Legislative List a meaning which, if less wide than it might in another context bear, is yet one that can properly be given to it and equally giving to the language of the 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teLegislature are supreme in their respective assigned fields. It is the duty of the court to interpret the legislations made by Parliament and the State Legislature in such a manner as to avoid any conflict. However, if the conflict is unavoidable, and the two enactments are irreconcilable, then by the force of the non obstante 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equence, if there is a conflict between an entry in List I and an entry in List II, which is not capable of reconciliation, the power of Parliament to legislate with respect to a matter enumerated in List II must supersede pro tanto the exercise of power of the State Legislature. 26. Both Parliament 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 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution makers were of the view that cooperative societies were of the same genus as other corporations and all were corporations. In fact the very express exclusion of cooperative societies from Entry 43 of List I is indicative of the view that but for such exclusion, cooperative societies would 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 246(3) read with Entry 32 of List II. In fact, in K. Damodarasamy Naidu & Bros. v. State of T.N., (2000) 1 SCC 521, this court held: "21. Parliament, when exercising the powers to amend the Constitution under Article 368, cannot and does not amend State Acts. There 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Chapter IV of Part V which deals with the Union Judiciary consisting of the Supreme Court of India, Chapter V of Part VI which deals with the High Courts in the States, and Chapter I of 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercise. (See Kihoto Hollohan v. Zachillhu [1992 Supp (2) SCC 651].) 35. In I.R. Coelho v. State of T.N., (2007) 2 SCC 1, this Court held: 122. The scope and content 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 struc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the words "constituent power" in Article 368, the amending body, namely, Parliament does not become the original Constituent Assembly. 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 disqualificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise, having regard to legislative intent and scheme of the Tenth Schedule, the 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 Regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad Singh [1952 SCR 89] and Sajjan 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 any of the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in Chapter V in Part VI of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Constitution 102nd Amendment Act, 2018 does not violate any basic feature of the Constitution. We uphold t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 conclusions are as follows: xxx xxx xxx (v) The states' power to make reservations, in favour of particular communities or castes, the quantum of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment 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 Seventeenth Amendment made no direct change in Article 226. It made changes in Part III and abridged or took away some of the rights conferred by that Part. As a result of the changes, some of those rights no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a definition contained in Article 366 (29A), in which the concept of sale of goods contained in Entry 54 was greatly enlarged. To be noted, Entry 54 List II itself was not the subject matter of amendment. The que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Article 368(2) of the Constitution. We, therefore, reject the first contention. Before proceeding further, we should observe that there would have been no occasion for an argument of this type being urged in court if at the commencement of the Act, it had been stated that the Bill in question had been presented to the President for his assent after it had been duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification 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 Constitution 97th Amendment Act. As the Statement of Objects and Reasons of the Constitution 97th Amendment Act shows, it is acknowledged that the subject 'co-operative societies' is exclusively allotted to the State legislature under Entry 32 of the State List, as a result of which, considering the need for reform in the Co-operative Societies Acts of the States, consultations with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 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 period of six months of the close of the financial year. IX. Under Article 243ZP, every co-operative society is to file returns within the specified period of six months of the close of every financial year, indicating the list of matters set out in the said provision. X. Under Article 243ZQ, the Legislature of a State may make provisions for offences relating to co-operative societies and penalties for such offences, provided that und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect 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 inserted into the Constitution by the Constitution (74th Amendment) Act, 1992 made similar provisions qua Panchayats and Municipalities. Entry 5 of List II, 7th Schedule which deals with the subject matter of legislation so far as Panchayats and Municipalities are concerned, is set out as follows:- List II-State List 5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 provisions of Part IXB, and that, therefore, they had impliedly accepted the restrictions laid down in the said Part. This argument need not detain us inasmuch as the procedure laid down in Article 368(2) proviso requires ratification of legislatures of one half of the States by resolutions to that effect. This has admittedly not been done in the present case. Also, the argument that no State has come forward to challenge the 97th Constitution Amendment does not take the matter any further. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 argument that these words imply that the ratification of the Bill by not less than one-half of the States is a condition precedent for the presentation of the Bill for the assent of the President. It is further argued that a Bill which seeks to make a change in the provisions referred to in clauses (a) to (e) of the proviso cannot be presented before the President for his assent without such ratification and if assent is given by the President in the absence of such ratification, the amending Act would be void and ineffective in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 need to be struck down or declared invalid. 76. The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable. If the provisions of the Tenth Schedule are considered in the background of the legislative history, namely, the report of the 'Committee on Defections' as well as the earlier Bills which were moved to curb the evil of defection it would be evident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 within Part IXB, one dealing with State co-operative societies and one dealing with multi-State co-operative societies, the well-known legislative device of "reference" to existing provisions was instead utilised by Article 243ZR and that therefore we should view the matter as if a separate part within Part IXB has been enacted insofar as multi-State co-operative societies are concerned. 77. There is substance in this argument. In Kihoto Hollohan (supra), it was held that a composite amendment that was presented to the President for his assent, one part of the amendment requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Constitution of India is operative insofar as multi-State co-operative societies are concerned. 78. The other argument of the learned Attorney General that under Article 243ZS in its application to Union territories the same situation would prevail as the application of Article 243ZR is not quite correct. There can be no doubt that Article 246(3) does not apply to Union territories. Instead, Article 246(4) applies to Union territories, by means of which Parliament can use the State List also to legislate insofar as the Union territories are concerned. However, given the truncation of Entry 32 List ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken 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 was no ratification as required under the proviso to Article 368(2). It is also found to be in breach of the basic structure of the Constitution. In three of the Appeals, the writ petitioners challenged Show Cause Notices and subsequent decision based on the same and the Writ Petitions were filed based on the Ninety-Seventh Amendment. It is necessary to refer to Part IXB: "PART IXB THE CO-OPERATIVE SOCIETIES 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 members of the board having experience in the field of banking, management, finance or specialisation in any other field relating to the objects and activities undertaken by the cooperative society, as members of the board of such society: Provided that the number of such coopted members shall not exceed two in addition to twenty-one directors specified 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 co-operative society shall also be the members of the board and such members shall be exclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 accounts of cooperative societies.-(1) The Legislature of a State may, by law, make provisions with respect to the maintenance of accounts by the cooperative societies and the auditing of such accounts at least once in each financial year. (2) The Legislature of a Stateshall, by law, lay down the minimum qualifications and experience of auditors and auditing firms that shall be eligible for auditing accounts of the co-operative societies. (3) Every co-operative societyshall cause to be audited by an auditor or auditing firms referred to in clause (2) appointed by the general body of the co-operative society: Provided that such auditors or auditing firms shall be appointed from a panel approved by a State Government or an authority authorised by the State Government in this behalf. (4) The accounts of every cooperative society shall be audited within six months of the close of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson 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 anyreasonable excuse disobeys any summons, requisition or lawful written order issued under the provisions of the State Act; (c) any employer who, withoutsufficient cause, fails to pay to a co-operative society amount deducted by him from its employee within a period of fourteen days from the date on which such deduction is made; (d) any officer or custodian whowilfully fails to handover custody of books, accounts, documents, records, cash, security and other property belonging to a co-operative society of which he is an officer or custodian, to an authorised person; and (e) whoever, before, during or afterthe election of members of the board or office bearers, adopts any corrupt practice. 243ZR. Application to multi-State cooperative societies.-The provisions of this Part shall apply to the multiState 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 "th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everability would apply. 7. The learned Attorney General has contended that Parliament, vide Article 243ZR, has dealt with multistate cooperative societies, in regard to which, it has exclusive legislative competence and, instead of duplicating the provisions, the device of reference is utilised and Article 243ZR really manifests Parliaments resolve to apply the very same provisions as was intended for cooperative societies covered by Entry 32 of List II, viz., cooperative societies made under a law passed by the State Legislature. It would be no different, if, instead of words used in Article 243ZR and 243ZS, the entire provisions, were repeated all over again. The Principle of Legislation by Adoption is pressed into service by the learned Attorney General. 8. The learned Counsel appearing on behalf of the Respondent No. 1, Shri Massoom K. Shah, and also, Ms. Ritika Sinha, for the Intervenors, would point out, having regard to the arrangement of the provisions and the wording used in Article 243ZR and Article 243ZS, there can be no scope for applying the Doctrine of Severability. 9. It is the case of Shri P.K. Jani, learned Senior Counsel for the appellant in one of the cases t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. Vide Cooley's Constitutional Limitations, Vol. I at pp. 360-361; Crawford on Statutory Construction, pp. 217-218. 3. Even when the provisions which arevalid are distinct and separate from those which are invalid, 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 the failure of the whole. Vide Crawford on Statutory Construction, pp. 218-219. 4. Likewise, when the valid and invalidparts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety. 5. The separability of the valid andinvalid provisions of a statute does not depend on whether the law is enacted in the same section or different sections; (Vide Cooley's Constitutional Limitations, Vol. I, pp. 361-362); it is not the for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any amendment made under this article. (4) No amendment of this Constitution(including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground. (5) For the removal of doubts, it ishereby 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." 12. Article 368 has provided for the procedure to be followed by Parliament, when it purports to amend the Constitution. There are two limitations broadly on the power of Parliament to amend the Constitution: (i) Parliament must scrupulously follow the procedure provided in Article 368; (ii) There is also the substantive limitation on power of the Parliament to amend the Constitution, which is far too well established to require support from case law, viz., that Parliament cannot amend the Constitution by breaching its basic features. 13. In this case, the provisions of Article 243ZI to 243ZQ and Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case the portion which conflicts with the Constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity. Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. A statute, it has been said, is judicially held to be unconstitutional, because it is not within the scope of legislative authority; it may either propose to accomplish something prohibited by the Constitution, or to accomplish some lawful, and even laudable object, by means repugnant to the Constitution of the United States or of the State. A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to Article 368(2) requiring it to be construed as excluding the doctrine of severability to such an amendment? It is settled rule of statutory construction that "the proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case" and that where "the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms". [See: Madras & Southern Mahratta Railway Company Ltd. v. Bezwada Municipality [(1944) 71 IA 113, 122 : AIR 1944 PC 71 : 48 CWN 618] , CIT v. Indo-Mercantile Bank Ltd. [1959 Supp 2 SCR 256, 266 : AIR 1959 SC 713 : (1959) 36 ITR 1] 71. The proviso to Article 368(2) appears to have been introduced with a view to giving effect to the federal principle. In the matter of amendment of provisions specified in clauses (a) to (e) relating to legislative and executive powers of the States vis-a-vis the Union, the Judiciary, the election of the President and the amending power itself, which have a bearing on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presented to the President for his assent only after it has been passed in each House by the prescribed special majority. An amendment in the First and Fourth Schedules referable to Article 4 can be introduced by Parliament by an ordinary law passed by simple majority. There may be a Bill which may contain amendments made in the First and Fourth Schedules as well as amendments in other provisions of the Constitution excluding those referred to in the proviso which can be amended only by a special majority under Article 368(2) and the Bill after having been passed only by an ordinary majority instead of a special majority has received the assent of the President. The amendments which are made in the First and Fourth Schedules by the said Amendment Act were validly made in view of Article 4 but the amendments in other provisions were in disregard to Article 368(2) which requires a special majority. Is not the doctrine of severability applicable to such an amendment so that amendments made in the First and Fourth Schedules may be upheld while declaring the amendments in the other provisions as ineffective? A contrary view excluding the doctrine of severability would result in elevati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 need to be struck down or declared invalid. 76. The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e institutions has led to poor services and low productivity. Cooperatives need to run on well-established democratic principles and elections held on time and in a free and fair manner. Therefore, there is a need to initiate fundamental reforms to revitalize these institutions in order to ensure their contribution in the economic development of the country and to serve the interests of members and public at large and also to ensure their autonomy, democratic functioning and professional management. 2. The "co-operative societies" is a subject enumerated in Entry 32 of the State List of the Seventh Schedule of the Constitution and the State Legislatures have accordingly enacted legislations on co-operative societies. Within the framework of State Acts, growth of cooperatives on large scale was envisaged as part of the efforts for securing social and economic justice and equitable distribution of the fruits of development. It has, however, been experienced that in spite of considerable expansion of cooperatives, their performance in qualitative terms has not been up to the desired level. Considering the need for reforms in the Co-operative Societies Acts of the States, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e individuals as members from such categories; (i) providing for offences relating to co-operative societies and penalties in respect of such offences. 4. It is expected that these provisionswill not only ensure the autonomous and democratic functioning of co-operatives, but also ensure the accountability of management to the members and other stakeholders and shall provide for deterrence for violation of the provisions of the law. 5. The Bill seeks to achieve the aboveobjectives." (Emphasis supplied) 17. From the Statement Objects and Reasons, the following is discernible. 18. There were weaknesses found in safeguarding the interests of the members of the cooperative societies. Elections were being postponed indefinitely. There was inadequate professionalism in management. It was found that cooperatives needed to be run on well-established democratic principles and elections had to be held on time and in a free and fair manner. It was further noted that "cooperative societies" is a subject enumerated in Entry 32 of the State List of the Seventh Schedule. That laws were made by the State Legislatures, were noticed. Reforms, were in short, found necessary in the Cooperative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everance, what survives, can stand independently and is workable. 23. In this regard, it is plain from the Statement of Objects and Reasons, that Parliament was fully aware that Entry 32 clothed the Legislatures of the State with exclusive legislative power to make laws in regard to cooperative societies, which were not multistate cooperative societies. Parliament was fully aware that laws had already been made by State Legislatures, but yet, the object was to usher in reforms by the legislative route, and what is more, a Constitutional Amendment, which clearly involved, a change in regard to the entrenched provisions. The Ninety-Seventh Amendment was passed in 2012, several years after the decision in Kihoto Hollohan (supra). It is clear that the law was laid down by the Constitution Bench of this Court in Kihoto Hollohan (supra), that having regard to the sublime purpose behind the proviso to Article 368(2), which was to foster and secure the federal nature of the Constitution, what mattered was the substance and not the form. It appears to be further clear that an effort was made to take the States on board by holding several meetings between the States, and what is more, Resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment" 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." 28. Both these provisions are entirely dependent upon the provisions contained in Article 243ZI to 243ZQ. This is for the reason that both these provisions expressly provide that the 'provisions of this part', which clearly means the foregoing provisions, which are contained in Article 243ZI to 243ZQ, are to apply in regard to multistate cooperative societies and to Union Territories with the modifications, which are indicated therein. There can be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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