By IC Naik
Indiancooperative.com is always looking for views and evidences of means of enabling cooperatives function in accordance with the new directive principles as enshrined in the Constitution of India. The news of Hon. Gujarat High Court striking the 97th CAA wasn’t taken kindly by our cooperative activists.
A new found truth around the unconstitutionality of the 97th CAA appears to be round the corner. On a hypothetical situation of the Apex Court upholding Gujarat High Court judgment in dismissal of the Special Leave Petition of the Union, will the States already amending their cooperative society acts be required to roll back the amendments?
In overemphasizing the need for Majority States’ ratification a relatively un-appealing statement of the Union Government in paragraph 9 in the Gujarat High Court Judgment as reproduced has lost its significance creating a hype about the unconstitutionality of the insertion of Part IXB in the Constitution. This reads as under.
“The Central Government, in its affidavit has stated that in the conference of the Ministers of the State, the Ministers approved such amendment and at the same time, there being no amendment of the List II of the 7th Schedule, Article 368(2) cannot have any application.”
It is equally significant fact as recorded in paragraph 4 of the Gujarat High Court Judgment viz:-
“The State Government, although has not filed any affidavit, Mr. Jani, the learned Government Pleader appearing on behalf of the State, has supported the contentions of Mr. Champaneri, and has prayed for rejection of the writ-application. “
The hypothetical situation can be looked at alongside the other hypothetical situation. Imagine the Gujarat Legislature had in line with the efficiency of its Chief Minister had already aligned the Gujarat Law on Cooperative Societies with part IXB of the Constitution and enacted Gujarat Cooperative Societies (Amendment) Act 2012, before the Gujarat High Court passed the order in April 2013.
Will the Gujarat High Court Judgment automatically operate as an order to roll back the Gujarat Cooperative Societies (Amendment) Act 2012? Will the Gujarat Act become unconstitutional instantly?
The State Governments have the power to legislate on cooperative societies under Entry 32 of State List of 7th Schedule to the Constitution. Can it be held that the State Government in the absence of the 97thCAA had no power to make any amendments as directed under Part IXB of the Constitution? In fact the state Government would put any petitioner to strictest test on the State legislative competence, because its Lawyer Mr Jani held a brief to support Union’s affidavit in Gujarat High Court.
This thought is left open here for other learned cooperator friends to support it or assail it as they deem fit.