Wednesday, 21 Jul, 1.31 am Kashmir Times

SC majority quashes part of constitutional amendment on Cooperatives

NEW DELHI, Jul 20: By a 2:1 majority, the Supreme Court on Tuesday struck down a part of the 97th Constitutional amendment on the cooperatives that deals with terms of office-bearers and members of the cooperative societies for their effective management even while upholding the validity of the amendment.

A Bench of Justices Rohinton Fali Nariman, K M Joseph and Bhushan R Gavai said: "We have struck down part IX B of the Constitution related to cooperative societies but we have saved the amendment."

The verdict came on the Centre's plea challenging the Gujarat High Court's 2013 decision striking down certain provisions of the amendment while holding that Parliament cannot enact laws with regard to cooperative societies as it is a state subject. The Court found that the amendment does not denude the states of their exclusive power to enact laws to deal with the management of cooperative societies.

Justice Joseph has struck down the entire 97th Constitutional amendment while giving a partly dissenting verdict.

The amendment was passed by Parliament in December 2011 and had come into effect from February 15, 2012. It has amended Article 19(1)(c) to give protection to the cooperatives and inserted Article 43 B and Part IX B, relating to them.

While Article 19(1)(c) guarantees freedom to form association or unions or cooperative societies subject to certain restrictions, Article 43 B says that states shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies.

On the provision struck down by the Court, the Centre had contended that it won't denude the states of their power to enact laws with regard to the cooperatives.

Several intervenors contended that the amendment made a direct in-road into the exclusive domain of states to enact laws with regard to cooperatives. The Centre, however, refuted, saying the amendment is to bring in uniformity in the management of cooperative societies and it did not take away the powers of states.

The top court said the Centre should have taken the recourse to Article 252 instead of the amendment that makes the power of States to enact laws with respect to cooperative society no longer exclusive.

On April 22, 2013, the High Court, while striking down certain provisions of the 97th constitutional amendment, held that Parliament cannot enact laws or issue notification with regard to cooperative societies as it is a state subject. It had held that certain provisions of the amendment pertaining to cooperative societies violated the basic structure of federalism.

The PIL petitioner had contended in the High Court that as per the provisions of Article 368 of the Constitution, if Parliament intends to amend or delete any of the lists in the seventh schedule, such Amendment shall require to be ratified by the legislature of not less than one half of the states by resolution to the effect passed by those legislatures before the bill making provisions for such amendment is presented to the President for assent.

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