By I C Naik
There is an obvious lukewarm response of the States in aligning their cooperative society laws to the Constitution (97th Amendment) Act 2011 (97CAA)that bogs the mind of every true cooperators.
1. STATEMENT OF OBJECTS AND REASONS placed in the Lok Sabha on 11-11-2009 by the Union Agriculture and Cooperation Minister Sharad Pawar succinctly brought out a case for Constitutional reforms to boost cooperative movement in India. It presented dismal picture of cooperative movement over 100 years at least half a century post independence.
a.“The Central Government is committed to ensure that the co-operative societies in the country function in a democratic, professional, autonomous and economically sound manner.
b.With a view to bring the necessary reforms, it is proposed to incorporate a new Part in the Constitution so as to provide for certain provisions covering the vital aspects of working of co-operative societies like democratic, autonomous and professional functioning.
c.A new article is also proposed to be inserted in Part IV of the Constitution (Directive Principles of State Policy) for the States to endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies.
2. The Statement goes further and states that “the proposed new Part in the Constitution, inter alia, seeks to empower the Parliament in respect of multi-State co-operative societies and the State Legislatures in case of other co operative societies to make appropriate law, and lays down certain very specific matters in that behalf.
3. The Constitution (97th Amendment) Act 2011 which came in to force on 15-02- 2012 after the Bill was enacted by an unanimous vote by both the houses and after the assent of the President. It was successfully challenged before Gujarat High Court for by-passing the Constitution amending procedure stipulated under Article 368(2) in not getting a majority State Assemblies passing resolutions in favor of Constitutional amendment seeking changes in any of the lists in the Seventh Schedule. Reportedly the Union Government has filed SLP (Special Leave Petition) in the Apex Court against Guj H C Judgment.
a. Notwithstanding the Guj Gujarat High Court judgment, a few States have gone ahead with amending their cooperative society law. For example Maharashtra has enacted the Maharashtra Cooperative Societies (Amendment) Act 2013 effective 14 2 2013.
b. In response to the PIL, the Punjab High Court has asked the Chandigarh Administration to take necessary steps to implement the relevant provisions of the aforesaid constitutional amendment and submit a compliance report soon.
c. As recently as in 2013 the Apex Court was examining the applicability of RTI Act in Thalappalam Ser. Coop. Bank Ltd (Kerala) CIVIL APPEAL NO. 9017 OF 2013. In Para 19 of the judgment on 7 October, 2013 Justice K.S. Radhakrishnan of SC noted.” The Parliament, with a view to enhance public faith in the co-operative institutions and to insulate them to avoidable political or bureaucratic interference brought in Constitutional (97th Amendment) Act, 2011 (97CAA) which came into force on 15.02.2012”
d. However several States are still lukewarm. Maharashtra has evaded appointing State Cooperative Election Authority despite High Court direction. Several cooperative societies have care taker committees as elections are post pone till 31 12 2014.
4. One very probable view on this Constitutional amendment described as a historical step in the realm of Parliamentary processes flows from the Statement of objects and reasons itself. It says that this Constitutional business was inter alia undertaken, to empower the Parliament and the State Legislatures to make appropriate law in several specified matters of cooperative societies in India. It is worth recalling an existing Constitutional provision in Article 245 reading as: 245.
Extent of laws made by Parliament and by the Legislatures of States.—(1) Subject to the provisions of this Constitution, Parliament may 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. “Through this Article the Constitution makers declaring it as a supreme legal document expressly provided that the States have to ensure that relevant constitutional requirements are taken in to consideration in each and every State enactment.
As a matter of fact the Constitution thereby sets a direction binding on all States towards an uniform legal framework in the fields desiring such uniformity. Every State has the powers to make laws on Cooperative societies and it could make laws exactly on the lines of 97CAA without its enactment by Parliament. Now by application of art 245, the States are bound to go by 97CAA no options. The Union Ministry should have been forthright about it.
5.As regards the parliamentary intent behind this Constitution Bill it was to empower the Parliament / States to enact laws on certain matters. This gives an impression that the Parliament/States did not have the power to enact laws on matters, the power of which has now been conferred by 97CAA.
6. The statement on objects and reasons lacks credibility in that statement. The entire content of 97CAA reads in a simple language as “Constitutional mandates” far from giving powers. A power when granted it carries implicit latitude towards exercising it. Power is in the nature “privileges” and it can never be a “mandate”. In all fairness it would have been better if the statement did a plain speak “that the Constitutional mandate had become the need of the hour going by the background presented in the statement about the state of functioning of cooperative societies and the tardy growth of cooperative movement for want of certain constitutional initiatives.”
7. Its time that the Agriculture Ministry should take a stock of the situation and initiate steps to ensure that the States did not flout constitutional mandate. Ours is a non-traditional federalism having centre occupying a stronger position and that should not have been allowed to be diluted through States’ apathy. It is no use blaming the Regional Parties for so called weakening of Indian federalism. The position given by the Constitutional makers needed efforts to protect and retained it, if not made stronger with the passage of time, although that is what is needed.