It was a sad day for the cooperative movement of the country when the apex court of the land agreed with the judgment of the Gujarat High Court and upheld the striking down of part 3 which dealt with co-op societies.
The Supreme Court on Tuesday upheld a 2013 judgment of the Gujarat High Court which struck down the provisions of the Constitution (97th Amendment) Act, media reports say. .
A 3-judge bench comprising Justices Rohinton Nariman, KM Joseph and BR Gavai dismissed the appeals filed by the Union of India against the judgment of the Gujarat High Court. Justices Nariman and Gavai struck down only Part IXB of the amendment, while Justice Joseph wrote a dissenting judgment striking down the entire constitutional amendment.
It bears recalling that the Union of India had challenged Gujarat High Court’s judgment striking down certain provisions of the 97th Constitutional amendment relating to Cooperative Societies.
During the hearing, the bench told Attorney General K K Venugopal that it wanted to examine if the amendment interfered with the exclusive power of the State under Article 246 (3) with regard to enacting laws relating to cooperatives as it is the state subject.
It bears recalling that Parliament in Constitutional (97th Amendment) Act, 2011, received the assent of the President on 12.01.2012, notified in the Gazette of India on 13.01.2012 and came into force on 15.02.2012.
Later, the Gujarat HC questioned the 97th constitutional amendment, though BJP ruled states like Himachal Pradesh passed the Himachal Pradesh Cooperative Societies (Amendment) Bill, 2020.
Basically, the amendments related to three major points- forming co-op societies was made a fundamental right; a directive principle of state policy was inserted which desired states to promote democratic control and professional management of cooperative societies and insertion of a new part (Part IX B).
It was this third provision which- a provision in Part IX B mandating periodic elections to the director board, prescription of the maximum number of directors, provision for mandatory inclusion of women and SC/ST in coop boards, which was struck down by Gujarat HC. The court observed that the amendment did not go through the special procedure.
Experts say Article 368 provides for two separate procedures for amendment of the Constitution. As per the first procedure, most of the provisions of the Constitution can be amended by a special majority in both houses of Parliament.
Regarding certain provisions that affect Centre-state relations, including amendment of the seventh schedule, in addition to the special majority, ratification by half of state legislatures is also mandated.