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SC quashes some provisions of 97th Amendment dealing with co-operative societies

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Doctrine of Severability

Mains level : Management of Cooperatives

In a major boost for federalism, the Supreme Court has struck down parts of the 97th Constitution amendment which shrank the exclusive authority of States over their cooperative societies.

Background

  • The Gujarat High Court in 2013 had held that the amendment, to the extent it introduced conditions for state laws on co-operative societies, was liable to be struck down.
  • This amendment was passed without the ratification of one-half of the state legislatures as mandated by Article 368(2) of the Constitution.
  • As per Article 368(2), ratification of one-half of state legislatures is required for an amendment that makes changes to an entry in the state list.
  • Since co-operative societies were a state subject as per Entry 32 in List II of the Seventh Schedule, the amendment introducing Part IX B required ratification as per Article 368(2), the High Court ruled.

What was 97th Amendment about?

  • The 97th constitutional amendment dealt with issues related to the effective management of cooperative societies in the country.
  • It was passed by Parliament in December 2011 and had come into effect from February 15, 2012.
  • Part IXB, introduced in the Constitution through the 97th Amendment of 2012, dictated the terms for running cooperative societies.
  • The provisions in the amendment went to the extent of determining the number of directors a society should have or their length of tenure and even the necessary expertise.

What is the recent Judgement?

  • In a majority judgment, the supreme court has held that cooperative societies come under the “exclusive legislative power” of State legislatures.
  • The judgment may be significant in the background of fears voiced by the States whether the new Central Ministry of Cooperation would disempower them.
  • The change in the Constitution has amended Article 19(1)(c) to give protection to the cooperatives and inserted Article 43 B and Part IX B, relating to them.
  • The Centre has contended that the provision does not denude the States of its power to enact laws with regard to cooperatives.

Exceptions to the amendment

  • The Supreme court did not strike down the portions of Part IXB of the Amendment concerning “Multi-State Cooperative Societies” due to the lack of ratification.
  • When it comes to Multi-State Co-operative Societies (MSCS) with objects not confined to one State, the legislative power would be that of the Union of India.

What was the dissenting opinion?

  • In his dissent, Justice K.M. Joseph said the doctrine of severability would not operate to distinguish between single-State cooperatives and MSCS.
  • The judge said the entire Part IXB should be struck down on the ground of absence of ratification.

Back2Basics: Doctrine of Severability

  • Article 13 deals with laws inconsistent with or in derogation of fundamental rights.
  • It also deals with all laws enforced in India, before the commencement of the Constitution.
  • The doctrine of Severability in Article 13 can be understood in two dimensions
  1. Article 13(1) validates all Pre-Constitutional Law and thereby declares that all pre-Constitutional laws in force before the commencement of the Indian Constitution shall be void if they are inconsistent with the fundamental rights.
  2. Article 13(2) mandates the State that it shall not make any law that takes away or abridges the fundamental rights conferred in Part III of the Indian Constitution and any law contraventions this clause shall be void.
  • This doctrine widens the scope for Judicial Review on unconstitutional parts of any law.
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