By I C Naik
It is time to question if Section 165 of the MCS Act 1960 is ultra vires the Constitution especially after the 97th Constitutional Amendment becoming effective from 12 2 2013 and more particularly after the order of the Supreme Court dated 19th March 2015 [(2015) 42 SCD 494].
This Section empowers the State bureaucracy to prescribe rules to give effect to provisions of the MCS Act 1960. This question is relevant because one of the grounds on which a law can be invalidated is ” That the Legislature concerned has abdicated its essential legislative function as assigned to it by the Constitution or has made an excessive delegation of that power to some other body.” Para 10 of the judgment delivered on13 9 2012 in WRIT PETITION (CIVIL) NO. 210 of 2012 delivered by Swatanter Kumar, J. 1960.
Apex Court [Bench of Anil R. Dave and Kurian Joseph Jj. in its order dated 19th March 2015 [(2015) 42 SCD 494] has laid down a law post 97th Constitutional Amendment that “If the Act or the Rules or the Bye-laws do not say what they should say in terms of the Constitution, it is the duty of the court to read the constitutional spirit and concept into the Acts”
The S C Bench has also declared (Para 8 of the order) that the 97th Amendment to the Constitution of India, in fact, gave a constitutional frame to the National Policy on Cooperatives announced by the Department of Agriculture and Cooperation, Ministry of Agriculture, Government of India adopted in March, 2002. Before reaching to this path breaking conclusion the Bench reproduced at Paragraphs 5 to 7 the entire text of the definition, values and principles, detailed in the International Cooperative Alliance Statement on the Cooperative Identity adopted in Manchester, United Kingdom on 23.09.1995 on which the aforesaid National Policy has been based.
This National Policy at its Para 3 has listed various constraints to the growth of co-operative movement which includes mutually complimentary aspects i.e. a lack of “legislative and policy support” resulting in “excessive bureaucratic and governmental controls and needless political interference in the operations of the societies.”
The Supreme Court in its order dated 7 October, 2013 [CIVIL APPEAL NO. 9017 OF 2013 succinctly observed that “The Parliament, with a view to insulate cooperatives to avoidable political or bureaucratic interference brought in Constitutional (97th Amendment) Act, 2011. In fact this is exactly what the Government of India has candidly admitted in the Statement of Objects and Reasons placed in the Parliament while moving the Bill for this Constitutional Amendment.
In the Report of the Committee on Model Co-operatives Act headed by Chowdary Brahm Perkash submitted 25 years ago an apt observation was made namely.”The Model Act gives no rule making power to the government. The law itself lays down the broad parameters necessarily to be observed by cooperatives and leaves all other matters relating to constitution, management and business of the society to be conducted in accordance with its bye-laws.”
New dispensation of cooperatives as enshrined in the Constitution (Article 243ZI) has four basic principles as reiterated by the SC Bench (supra) namely (i) voluntary formation, (ii) democratic member-control, (iii) member-economic participation and (iv) autonomous functioning.
In Vipul Chaudhary’s case (19-03-2015 order:supra) the Apex Court laid special emphasis on the renewed thrust on democratic decision making inherent in the cooperativeness and rejecting the respondent’s strong plea of the the absence of any express provision in law or Bye-Laws, upheld the ouster of the Chairman with a no-confidence motion passed in terms of democratic principle.
Should cooperative Sector wait for yet another Bench of the S C declaring that cooperatives are not able to secure their autonomous functioning on account of excessive delegation of legislative functioning of the State empowering the executive to make Rules on host of matters which themselves enable the bureaucracy to issue directions by way of clarifications and instructions on several matters from time to time, and therefore this Section has to invalidated and the State is better directed to suitably amend the other provisions of the MCS Act 1960 such that as per this amended legislative frame work with the help of the registered bye-laws the cooperative societies can function as per the 4th criteria viz autonomous functioning.
Is it not a fit case for the Honourable Supreme Court of India, making orders, in exercise of its most valuable role of protecting the sanctity of the new Constitutional frame work from getting eroded, to direct the Bureaucracy to pull out their long experience of excessive control by combining their skills to their best to re-write a good law which can become an instrument of much faster growth of co-operative movement. Give Indian population a legal cooperative frame work as postulated under the Constitution, so that cooperatives can function on the basis of all the 4 principles as aforesaid. Instead of getting lost in to the plethora of GRs, Circulars, Government Notifications leave alone the Rules let there be just one enactment passed by the legislature. This will only insulate cooperative societies to bureaucratic control which helps politicians to interefere. Very vital question is how many times the people will have to run to the judiciary for directions on a case to case basis? Very precious years would be gone before a good legal frame work is in place in the Country, by which time the country would have lost innumerable highly experienced cooperators. This appeal to the Apex Court is to give suo motu directions as according to its own ruling “it is the duty of the court to read the constitutional spirit and concept into the Acts” within the Constitutional frame work and not a judicial overreach by any standard. Para 28 of the S C order (supra) leaves no iota of doubt. ”Where the Constitution has conceived a particular structure on certain institutions, the legislative bodies are bound to mould the statutes accordingly. Despite the constitutional mandate, if the legislative body concerned does not carry out the required structural changes in the statutes, then, it is the duty of the court to provide the statute with the meaning as per the Constitution. …”
