The Gujarat High Court judgment upturning the 97th Constitutional Amendment has created lots of heart-burns among cooperators across the country. Our popular Columnist I C Naik has appealed to the Highest Court of the land to intervene in the matter. We produce below his arguments. Would NCUI take some cue and carry the campaign forward?-Editor
BACKGROUND
1.The Honourable High Court of Gujarat has last month accepted the plea made in a PIL that the Union of India has in enacting 97th Constitutional (Amendment) Act 2011 in a clandestine manner, appropriated to itself the power to legislate on cooperative societies, in breach of the basic feature of Indian Federalism.
2. Petitioner’s case was “The power under Article 368 of the Constitution of India itself is the basic structure of the Constitution of India and the fact that by the impugned constitutional amendment, the procedure prescribed in the article 368(2) of the Constitution, which recognizes the federal structure of the Constitution as one of the basic structures, has not been followed, is violative of the Constitution.”
3. Ideally, it should be a complaint of every State Government that the Centre has cut down their freedom to legislate on Co-operative Societies. Ironically, even the State of Gujarat has not seen it as an attack on federalism and opposed the PIL through its pleader Mr Jani, by joining hands with the Assistant Solicitor General of India Mr Champaneri.
4. As against this, T O I reported on13th February 2013, {a day prior to the day the Maharashtra Cooperative (Amendment) Ordinance 2013 was promulgated] “State cooperation minister Harshwardhan Patil is unhappy with the amendments to Maharashtra Cooperative Societies (MSC) Act, 1960, that has been practically foisted upon his ministry by the central government”
PIL VS DISPUTED UNDER ART. 131
The Supreme Court of India (Bench: Venkataramiah, E.S. in Union Of India vs State Of Rajasthan {on 4 September, 1984 Equivalent citations: 1984 AIR 1675, 1985 SCR (1) 700} has dealt with an issue which can be aptly described as the one fully covering the issue raised before the Guj. H. C.
1 “Article 131. Original jurisdiction of the Supreme Court.- Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute- (a) between the Government of India and one or more States;…………”
2. Some observations made by the Hon. Supreme Court are worth pondering over in context of this matter.
a. It has to be remembered that Article 131 is traceable to section 204 of the Government of India Act. The jurisdiction conferred by it thus originated in what was part of the federal structure set up by the Government of India Act, 1935. It is a remnant of the Federalism found in that Act. It should, therefore, be widely and generously interpreted for that reason too so as to advance the intended remedy. It can be invoked, in my opinion, whenever a State and other States or the Union differ on a question of interpretation of the Constitution so that a decision of it will affect the scope or exercise of governmental powers which are attributes of a State.
b. The Special Committee consisting of Sriyuts S. Varadachariar, Alladi Krishnaswami Ayyar, B.L. Mitter. K.M. Munshi and B.N. Rau appointed by the constituent Assembly to consider and report on the constitution and powers of the Supreme Court suggested ‘that the Supreme Court, like the Federal Court under the 1935 constitution, would be the best available forum for the adjudication of all disputes between the Union and a unit and between one unit and another and proposed that the court should have an exclusive original jurisdiction in such disputes.
c. The Joint Committee on Indian Constitutional Reforms was also of opinion that the object of conferring exclusive original jurisdiction on the Federal Court was that the disputes of the kind specified between the Federation and the Provinces as the constituent units of the Federation should not be left to be decided by courts of law of a particular unit but be adjudicated upon only by the highest tribunal in the land which would be beyond the influence of any one constituent unit.”
d. A writ under Art. 226 is hardly a substitute for a proceeding under Art. 131. A dispute between one or more States or between the Government of India and a State on the one hand and another State or other States on the other, cannot properly be decided by a High Court under Art. 226. More,over, disputes of the nature described in Art. 131 being usually of an urgent nature should be decided by this Court to obviate dilatoriness of a possible appeal. The original proceeding is decided once and for all by this Court
e. The Indian Constitution is not federal in character, but has been characterised as quasi-federal in nature. Even though the executive and legislative functions of the Centre and States have been defined and distributed, there runs through it all a thread or rein in the hands of the Centre in both the fields.
5. Just as the PILs are heard on account of their significance of public interest and at times taken up suo moto, perhaps this dispute, (though formally not raised by any State “ a passive resistance through inaction or a “go-slow” itself is a kind of evidence of dispute worth taking cognizance) is a very fit and urgent matter for adjudication on Constitutional Validity of Part IXB of the Constitution. The reforming of cooperative sector through constitutional means was under discussions since 1990s in India. The Cooperative movement has become a global phenomenon concerning social and economic wellbeing of humans including every Indian who has now been conferred with a fundamental right of being a part of the cooperative movement. Inversely hearing this matter as a dispute to be resolved by the Apex Court is perhaps not an in-consequential constitutional duty in terms of a provision of Article 131 of the Constitution.
6. The above is a humble prayer of a writer, who craves a pardon for this indulgence