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TMI Blog2021 (9) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Anjani Aiyagari, AOR, Ms. Hemantika Wahi, AOR, Mr. Tushar Mehta, Solicitor General, Ms. Manisha Lavkumar, Sr. Adv., Mr. Aniruddha P. Mayee, AOR JUDGMENT R.F. Nariman, J. 1. Applications for intervention are allowed. Leave granted. 2. These appeals raise an important question as to the vires of the Constitution (Ninety Seventh Amendment) Act, 2011 [the "Constitution 97th Amendment Act"] which inter alia introduced Part IXB under the chapter heading 'The Co-operative Societies'. The Constitution 97th Amendment Act was passed by the requisite majority of the Lok Sabha on 27.12.2011 and the Rajya Sabha on 28.12.2011. The Presidential assent to the aforesaid Amendment followed on 12.01.2012 and the said Amendment was published in the Official Gazette of India on 13.01.2012, coming into force with effect from 15.02.2012. The important question raised in these petitions and decided by a division bench of the Gujarat High Court by the impugned judgment dated 22.04.2013 is whether Part IXB is non est for want of ratification by half of the States under the proviso to Article 368(2). The impugned judgment of the High Court has declared that the said constitutional amendment inserting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tonomous functioning, democratic control and professional management; for regular and timely conduct of elections, general body meetings and professional audit. The meeting ended stating: "The conference also noted that the central government has taken a laudable step by enacting the Multi-State Cooperative Societies Act, 2002, conforming to the thrust areas of reforms in co-operative legislation and has been widely appreciated. The conference while appreciating the initiative taken by the central government resolved that this subject too should be considered by the high power committee. It was, therefore, resolved a high power committee would be constituted by the Central Government consisting of representatives of the State governments, concerned Ministries of the central government, eminent cooperators and other public officials to review the achievements during the last 100 years and challenges before it and to suggest ways and means to face them and to give a new direction to movement. The constitution of the Committee and terms of reference are to be decided by the Central Government." 5. Pursuant to these minutes, and after various consultations by the Centre with the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir democratic functioning. 3. The Central Government is committed to ensure that theco-operative societies in the country function in a democratic, professional, autonomous and economically sound manner. 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. A new article is also proposed to be inserted in Part IV of the Constitution (Directive Principles of State Policy) for the States to endeavor to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies. 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, laying down the following matters, namely:- (a) provisions for incorporation, regulation arid windingup of co-operative societies based on the principles of democratic member-control, member-economic participation and aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elected by the board of any co-operative society; (f) "Registrar" means the Central Registrar appointed by theCentral Government in relation to the multi-State cooperative societies and the Registrar for co-operative societies appointed by the State Government under the law made by the Legislature of a State in relation to co-operative societies; (g) "State Act" means any law made by the Legislature of aState; (h) "State level co-operative society" means a co-operativesociety having its area of operation extending to the whole of a State and defined as such in any law made by the Legislature of a State. 243ZI. Incorporation of co-operative societies. - Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to the incorporation, regulation and winding up of co-operative societies based on the principles of voluntary formation, democratic member-control, member-economic participation and autonomous functioning. 243ZJ. Number and term of members of board and its office bearers. - (1) The board shall consist of such number of directors asmay be provided by the Legislature of a State, by law: Provided that the maxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a State, by law: Provided that the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such elections. 243ZL. Supersession and suspension of board and interim management. - (1) Notwithstanding anything contained in any law for thetime being in force, no board shall be superseded or kept under supersession for a period exceeding six months: Provided that the board may be superseded or kept under suspension in a case- (i) of its persistent default; or (ii) of negligence in the performance of its duties; or (iii) the board has committed any act prejudicial to theinterests of the co-operative society or its members; or (iv) there is stalemate in the constitution or functions of the board; or (v) the authority or body as provided by the Legislature of a State, by law, under clause (2) of article 243ZK, has failed to conduct elections in accordance with the provisions of the State Act: Provided further that the board of any such co-operative society shall not be superseded or kept under suspension where there is no Government shareholding or loan or financial assistance or any guarantee by the Government: Provided also tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of a co-operative society to the books, information and accounts of the cooperative society kept in regular transaction of its business with such members. (2) The Legislature of a State may, by law, make provisionsto ensure the participation of members of the management of the co-operative society providing minimum requirement of attending meetings by the members and utilising the minimum level of services as may be provided in such law. (3) The Legislature of a State may, by law, provide for cooperative education and training for its members. 243ZP. Returns. - (1) Every co-operative society shall file returns, within six months of the close of every financial year, to the authority designated by the State Government including the following matters, namely: - (a) annual report of its activities; (b) its audited statement of accounts; (c) plan for surplus disposal as approved by the generalbody of the co-operative society; (d) list of amendments to the bye-laws of the co- operative society, if any; (e) declaration regarding date of holding of its generalbody meeting and conduct of elections when due; and (f) any other information required by the Registrar i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43ZT. Continuance of existing laws.- Notwithstanding anything in this Part, any provision of any law relating to co-operative societies in force in a State immediately before the commencement of the Constitution (Ninety-seventh Amendment) Act, 2011, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is less.] 7. As stated hereinabove, in the public interest, a Writ Petition being WP No. 166 of 2012 filed before the Gujarat High Court succeeded vide the impugned judgment dated 22.04.2013, by which Part IXB was declared to be ultra vires for want of ratification by the State Legislatures under Article 368(2) proviso. 8. Shri K.K. Venugopal, the learned Attorney General for India, has submitted, relying upon the Statement of Objects and Reasons, that the Constitution 97th Amendment Act sought to achieve vital social and economic objectives in regard to the functioning of co-operative societies in India, which is a sector that has made a significant contribution to the economy of the nation. He re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of all courts including the Supreme Court and the High Courts, in regard to all matters covered by the 10th Schedule, this Court held that ratification would be necessary. The learned Attorney General then argued that the additional finding of the Division Bench that the Constitutional Amendment violated the basic structure of the Constitution, in that it tinkered with the federal structure of the Constitution, was wholly uncalled for and unwarranted inasmuch as the real issue in this case is one and one only, as to whether ratification is or is not necessary. If it be held that ratification is necessary, then it is unnecessary to fall back upon basic structure. Likewise, if it is held that ratification would not be necessary, then the Constitutional Amendment, which in fact strengthens the basic structure of the Constitution in streamlining the co-operative movement, would belie the finding of the High Court. 9. He also argued that if the doctrine of severability is to be applied, then in the event of this Court finding that State co-operative societies cannot be impacted without following ratification, multiState co-operative societies, which have ramifications beyond one st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amendment has now been fettered by the provisions of Part IXB in several material particulars; for example, the fixation of the maximum number of directors of co-operative societies; the reservation provision contained in 243ZJ; the duration of the term of office of elected members of the board of co-operative societies etc. In short, what has been done is to add exception after exception to Entry 32 thereby carving out of Entry 32 a number of matters which otherwise were exclusively within the domain of the State Legislatures. He relied strongly upon Articles 243ZI & 243ZT, making it clear that there is a direct assault on Entry 32, List II of the 7th Schedule inasmuch as after one year, all State legislations that are contrary to the provisions of Part IXB are of no effect, and that an affirmative obligation is cast upon the States to enact legislation only in accordance with the restrictions contained in Part IXB. He also strongly relied upon the very judgments cited by the learned Attorney General to argue that, in effect, as a direct inroad is made into Article 246(3) and Entry 32 List 2, such amendment would have to be struck down for want of ratification as it impacts a v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ti-State Co-operative Societies, since a change has been made in Entry 44 List I which contains the power to legislate qua Multi-State Co-operative Societies, the width of the Entry is curtailed by Part IXB of the Constitution, which would, therefore, in any case require ratification by the States. To this contention, the learned Attorney General replied by submitting that it is only those Entries such as Entry 2A of List I (referred to in Entry 2 which is subject to Entry 2A) that would be covered by the proviso to Article 368(2) if one were to bear in mind that Article 368(2) proviso has been enacted with the object of preserving the quasi-federal structure of the Constitution. 13. Smt. Ritika Sinha, learned counsel appearing for the Intervenor in IA No. 3/2014 in CA Nos. 9108-9109/2014, stressed the language of Article 243ZI and 243ZT. According to her, these Articles make it clear that the States' legislative competence has expressly been made subject to the provisions of Part IXB, thereby engrafting an exception, directly, to Entry 32 of List II. Also, the non-obstante clause in Article 243ZT would make it clear that State legislation that has been enacted under a plenary pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Constitution referred to as the "Concurrent List"). (3) Subject to clauses (1) and (2), the Legislature of anyState has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List"). (4) Parliament has power to make laws with respect to anymatter for any part of the territory of India not included 2 [in a State] notwithstanding that such matter is a matter enumerated in the State List. 15. A cursory reading of these Articles would show that whereas Parliament may make laws for the whole or any part of the territory of India, the legislation of a State may make laws for the whole or any part of the State. Article 246 then goes on to refer to laws with respect to any of the matters enumerated in 3 Lists contained in the 7th schedule to the Constitution of India. List I contains subjects or topics on which Parliament has exclusive power to make laws; List III in the Concurrent List contains topics on which both Legislatures may make laws; and List II, with which we are directly concerned, gives the States exclusive power to make laws for suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3)? They mean that where an entry is in general terms in List II and part of that entry is in specific terms in List I, the entry in List I takes effect notwithstanding the entry in List II. This is also on the principle that the "special" excludes the "general" and the general entry in List II is subject to the special entry in List 1. For instance, though house accommodation and rent control might fall within either the State list or the concurrent list, Entry 3 in List I of Seventh Schedule carves out the subject of rent control and house accommodation in Cantonments from the general subject of house accommodation and rent control (see Indu Bhusan v. Sundari Devi [(1969) 2 SCC 289]. Furthermore, the word "notwithstanding" in clause (1) also means that if it is not possible to reconcile the two entries the entry in List I will prevail. But before that happens attempt should be made to decide in which list a particular legislation falls. For deciding under which entry a particular legislation falls the theory of "pith and substance" has been evolved by the courts. If in pith and substance a legislation falls within one list or the other but some portion of the subject-matter of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d must be construed liberally is too well-settled to require any elaboration. It is equally well-recognised that where there are three lists containing a large number of entries, there is bound to be some overlapping among them. In such a situation, the rule of pith and substance has to be applied to determine to which entry does a given piece of legislation relate. Once it is so determined, any incidental trenching on the field reserved to the other legislature is of no consequence. Of course, the extent of encroachment may be an element in determining whether the Act is a colourable piece of legislation. Yet another relevant principle is the one enunciated in Union of India v. H.S. Dhillon [(1971) 2 SCC 779] where the legislative competence of Parliament to enact a law is questioned, all that one has to ask is whether it relates to any of the entries in List II and if it does not, no further question need be asked and Parliament's legislative competence must be upheld. This decision also explains why did the Founding Fathers find it necessary to have three lists. In International Tourist Corpn. v. State of Haryana [(1981) 2 SCC 318] however, a caution has been administered th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II in the Seventh Schedule described in the Constitution as the "Concurrent List" notwithstanding anything contained in subclause (3). Under clause (3) the State Legislatures have been given exclusive powers to make laws in respect of matters enumerated in List II in the Seventh Schedule described as the "State List" but subject to clauses (1) and (2). The three lists while enumerating in detail the legislative subjects carefully distribute the areas of legislative authority between Parliament (List I) and the State (List II). The supremacy of Parliament has been provided for by the non obstante clause in Article 246(1) and the words "subject to" in Articles 246(2) and (3). Therefore, under Article 246(1) if any of the entries in the three lists overlap, the entry in List I will prevail. Additionally, some of the entries in the State List have been made expressly subject to the power of Parliament to legislate either under List I or under List III. Entries in the lists of the Seventh Schedule have been liberally interpreted; nevertheless courts have been wary of upsetting this balance by a process of interpretation so as to deprive any entry of its content and reduce it to "useless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no quarrel with the broad proposition that under the Constitution there is a clear demarcation of legislative powers between the Union and the States and they have to confine themselves within the field entrusted to them. It may also be borne in mind that the function of the lists is not to confer powers; they merely demarcate the legislative field. But the issue we are called upon to determine is that when the scheme of the Constitution prohibits encroachment by the Union upon a matter which exclusively falls within the domain of the State Legislature, like public order, police, etc., can the third organ of the State viz. the judiciary, direct CBI, an agency established by the Union to do something in respect of a State subject, without the consent of the State Government concerned? 23. So far as co-operative societies are concerned, it can be seen that it is entirely a matter for the States to legislate upon, being the last subject matter mentioned in Entry 32 List II. At this stage, it is important to note that Entry 43 of List I, which deals with incorporation, regulation and winding up of trading corporations including banking, insurance and financial corporations expressly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, from the constitutional provisions it is clear that matters pertaining to cooperative societies are in the State List. Thus many States have enacted laws relating to cooperative societies. We have not seen other Acts. However, as this case concerns a society in Maharashtra, the Maharashtra Cooperative Societies Act was shown to us. Significantly, this law does not define a cooperative society. It did not need to, as a society registered under it would be automatically covered. The need to define a cooperative society arises only in a Central legislation which does not cover all cooperative societies and thus needs to indicate to which society it applies. 25. Likewise, in Thalappalam Service Coop. Bank Ltd. v. State of Kerala, (2013) 16 SCC 82, this Court held: 26. The cooperative society is a State subject underSchedule VII List II Entry 32 to the Constitution of India. Most of the States in India enacted their own Cooperative Societies Act with a view to provide for the orderly development of the cooperative sector in the State to achieve the objects of equity, social justice and economic development, as envisaged in the directive principles of State policy, enunciated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in- (a) article 54, article 55, article 73, article 162, article 241 orarticle 279A or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter Iof Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. xxx xxx xxx 28. It may be seen that Article 368(1) refers to Parliament, which may exercise its "constituent power" to amend the constitution by way of addition, variation or repeal of any provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssent. Unlike the 73rd and 74th Constitution Amendments Acts, which inserted Part IX dealing with Panchayats and Part IXA dealing with Municipalities, which amendments were also ratified by not less than one half of the States, the 97th Amendment which inserts the chapter dealing with co-operative societies has not been so ratified. The question which arises in this appeal is whether the addition of this chapter can be said to be void or non est for want of such ratification. 33. At this point, it is important to first deal with the ambit of Parliament's 'constituent power' referred to in Article 368(1). Several judgments of this Court have held that though an amendment of the Constitution is the exercise of constituent power which differs from ordinary legislative power, such constituent power does not convert Parliament into an original constituent assembly. Parliament being the donee of a limited power may only exercise such power in accordance with both the procedural and substantive limitations contained in the Constitution of India. The procedural limitations are contained in Sub-Article 2 of Article 368. The substantive limitation has been laid down by the celebrated decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icles provide a test to judge the validity of the amendment by which laws are included in the Ninth Schedule. 124. Since power to amend the Constitution is not unlimited,if changes brought about by amendments destroy the identity of the Constitution, such amendments would be void. That is why when entire Part III is sought to be taken away by a constitutional amendment by the exercise of constituent power under Article 368 by adding the legislation in the Ninth Schedule, the question arises as to the extent of judicial scrutiny available to determine whether it alters the fundamentals of the Constitution. Secularism is one such fundamental, equality is the other, to give a few examples to illustrate the point. It would show that it is impermissible to destroy Articles 14 and 15 or abrogate or en bloc eliminate these fundamental rights. To further illustrate the point, it may be noted that Parliament can make additions in the three legislative lists, but cannot abrogate all the lists as it would abrogate the federal structure. 125. The question can be looked at from yet another anglealso. Can Parliament increase the amending power by amendment of Article 368 to confer on itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court was concerned with the constitutional validity of the 10th Schedule on both substantive and procedural grounds. So far as the procedural ground is concerned, Paragraph 7, which barred the jurisdiction of all courts, was said to have required ratification by the States and the 10th Schedule, not having been ratified by the States, it was urged that the entire amendment would be infirm on this count. Paragraph 7 of the 10th Schedule is set out in para 16 of the judgment as follows: - "7. Bar of jurisdiction of courts. - Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule." 39. In para 24, several questions were set out which were required to be answered by the Constitution Bench in that case. We are directly concerned with questions (B) to (D) which read as follows: - 24. On the contentions raised and urged at the hearing the questions that fall for consideration are the following: xxx xxx xxx (B) Having regard to the legislative history and evolution ofthe principles underlying the Tenth Schedule, Paragraph 7 thereof in terms and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a provision, would be liable to be impugned under Article 13. It is not correct to say that the powers of the High Court under Article 226 to issue writs 'for the enforcement of any of the rights conferred by Part III' or of this Court under Articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected. They remain just the same as they were before: only a certain class of case has been excluded from the purview of Part III and the courts could no longer interfere, not because their powers were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their power in such cases." 59. In Sajjan Singh case [(1965) 1 SCR 933] a similar contention was raised against the validity of the Constitution (Seventeenth Amendment) Act, 1964 by which Article 31-A was again amended and 44 statutes were added to the Ninth Schedule to the Constitution. The question again was whether the amendment required ratification under the proviso to Article 368. This Court noticed the question thus: (SCR p. 940) "The question which calls for our decision is: what would be the requirement about making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase [(1965) 1 SCR 933] where it was observed: (SCR p. 944) "If the effect of the amendment made in the fundamental rights on Article 226 is direct and not incidental and is of a very significant order, different considerations may perhaps arise." 62. In the present case, though the amendment does not bring in any change directly in the language of Articles 136, 226 and 227 of the Constitution, however, in effect paragraph 7 curtails the operation of those articles respecting matters falling under the Tenth Schedule. There is a change in the effect in Articles 136, 226 and 227 within the meaning of clause (b) of the proviso to Article 368(2). Paragraph 7, therefore, attracts the proviso and ratification was necessary. Accordingly, on Point (B), we hold: "That having regard to the background and evolution of the principles underlying the Constitution (Fifty-second Amendment) Act, 1985, insofar as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt under Articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected. They remain just the same as they were before: only a certain class of case has been excluded from the purview of Part III and the courts could no longer interfere, not because their powers were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their powers in such cases." 158. The test applied was whether the impugned provisionsinserted by the constitutional amendment did 'either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136'. Thus the change may be either in terms i.e. explicit or in effect in these articles to require ratification. The ground for rejection of the argument therein was that the remedy in the courts remained unimpaired and unaffected by the change and the change was really by extinction of the right to seek the remedy. In other words, the change was in the right and not the remedy of approaching the court since there was no occasion to invoke the remedy, the right itself being taken away. To the same effect is the decision in Sajjan Singh [(1965 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s undisputed that the proviso toclause (2) of Article 368 is attracted requiring ratification by the specified number of State Legislatures before presentation of the Bill seeking to make the constitutional amendment to the President for his assent. 42. In a recent decision, namely, Dr. Jaishri Laxmanrao Patil v. Chief Minister and Ors., 2021 SCC OnLine SC 362, this court considered the validity of the Constitution (102nd Amendment) Act, 2018 which, inter alia, inserted Articles 366(26C) and 342A. As a result of this amendment, the President alone, to the exclusion of all other authorities, is empowered to identify Socially and Economically Backward Classes (SEBCs) and include them in a list to be published under Article 342A(1), which shall be deemed to include SEBCs in relation to each State and Union territory for the purposes of the Constitution. 43. This 102nd Amendment Act was challenged, inter alia, on the ground that not being ratified by at least half of the States, the Constitutional Amendment was infirm. Six questions were framed before a Constitution Bench of this Court. We are concerned here with questions 4 to 6 insofar as the 102nd Amendment Act is concerned, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (One Hundred and second Amendment) Act, 2018. 46. However, Justice Ravindra Bhat differed from Justices Bhushan and Nazeer and was joined by Justice L. Nageswara Rao and Justice Hemant Gupta (see paras 455 and 481 of the judgment). 47. After setting out the amendments made to the Constitution by the 102nd Amendment Act, Justice Bhat held: 669. This Court is also of the opinion that the change brought about by the 102nd Amendment, especially Article 342A is only with respect to the process of identification of SEBCs and their list. Necessarily, the power to frame policies and legislation with regard to all other matters, i.e. the welfare schemes for SEBCs, setting up of institutions, grants, scholarships, extent of reservations and special provisions under Article 15(4), 15(5) and 16(4) are entirely with by the State Government in relation to its institutions and its public services (including services under agencies and corporations and companies controlled by the State Government). In other words, the extent of reservations, the kind of benefits, the quantum of scholarships, the number of schools which are to be specially provided under Article 15(4) or any other beneficia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16 - except with respect to identification of SEBCs, remains undisturbed. xxx xxx xxx (6) Re Point No. 6: Article 342A of the Constitution by denuding States power to legislate or classify in respect of "any backward class of citizens" does not affect or damage the federal polity and does not violate the basic structure of the Constitution of India. 50. However, Shri Venugopal, learned Attorney General, strongly relied upon the judgments of Wanchoo, J. Ramaswamy, J. and Bachawat, J. in Golak Nath (supra). Though these judgments are minority judgments in that case, Shri Venugopal argued that there is nothing in the majority judgments against what is stated in these judgments insofar as ratification is concerned, and that therefore these judgments would have considerable persuasive value in determining whether ratification is or is not required under Article 368(2) proviso. 51. Wanchoo, J. in Golak Nath (supra) deals with this subject at some length. He states: - "If there is no actual change directly in the entrenched provision, no ratification is required, even if any amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cannot issue writs for the enforcement of those rights its power under Article 226 is affected incidentally. But an alteration in the area of its territories or in the number of persons or authorities within those territories or in the number of enforceable rights under Part III or other rights incidentally affecting the power of the High Court under Article 226 cannot be regarded as an amendment of that article. (at page 919) 54. This passage again is at variance with the test laid down in Sankari Prasad Singh Deo (supra) and the judgment in Kihoto Hollohan (supra) which make it clear that any impact on "an entrenched Article" would require ratification if such impact is not insignificant - i.e., that in effect, there is a change in an "entrenched Article" which significantly impacts the content of the said Article including constitutional principles contained therein. 55. Likewise, Ramaswamy, J's minority judgment at pages 943 to 945 expressing similar views again cannot hold water in view of what has been stated in Sajjan Singh (supra) and both the majority and minority judgments in Kihoto Hollohan (supra). 56. A reading of the aforesaid judgments would indicate that the " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution 46th Amendment Act on Entry 54 List II in introducing Sub-Article 29A by way of a definition clause contained in Article 366, thus expanding the scope of Entry 54 List II. This Court repelled the aforesaid contention holding that, in point of fact, ratification had been obtained, as follows: 28. The first contention raised before us regarding theconstitutionality of the 46th Amendment need not detain us long. This contention was based on the assumption that the legislatures of not less than one-half of the States which were in existence during the relevant period had not ratified the Bill which ultimately became the 46th Amendment before the President gave his assent. It was argued that such ratification was necessary since the provisions contained in the 46th Amendment had the effect of enlarging the scope of Entry 54 of List II of the Seventh Schedule to the Constitution by empowering the legislatures of States to levy sales tax on the turnover relating to the transactions referred to in sub-clauses (a) to (f) of clause (29-A) of Article 366 of the Constitution which they could not have done before the 46th Amendment. It was contended that irrespective of the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislatures of States. We hope that this suggestion will be followed by the Central Secretariat hereafter since we found that even the Attorney General was not quite sure till the case was taken up for hearing that the Bill which had become the 46th Amendment had been duly ratified by the required number of States. 59. Indeed, H.M. Seervai, in his celebrated commentary 'Constitutional Law of India' (4th Edition) at page 3156, has this to say: "Articles 245 and 246 are in Chapter1, Part XI of the Constitution, which is one of the matters mentioned in cl. (b) of the proviso, and the legislative lists are mentioned in cl. (c) of the proviso. Changes can be made in the legislative lists by addition, variation, or repeal of an entry, or by transposing an entry from one list to another, but the lists themselves cannot be repealed." (Emphasis supplied) 60. A reading of Builders' Assn. of India v. Union of India (supra) and the aforesaid extract from Seervai's commentary would show that any significant addition or curtailment of a field of legislation which is contained in an Entry in List II of the 7th Schedule of the Constitution would also amount to a 'change' so as to attract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter this it is stated that the Central government is committed to ensure that co-operative societies in the country function in a democratic, professional, autonomous and economically sound manner. It is then stated that the new part to be inserted in the Constitution would contain provisions which would drastically curtail the powers of the State legislatures in that such legislations by the States would now have to conform to the newly inserted part. 63. Part IX B of the Constitution consists of Articles 243ZH to 243ZT. 64. Article 243ZH is the definition Article which defines co-operative societies in sub-clause (c) as meaning society registered or deemed to be registered under a State law, as opposed to a multi-State cooperative society defined in sub-clause (d), which is a society with objects not confined to one State and registered under a law for the time being in force relating to such co-operatives. By Article 243ZI, it is made clear that the legislature of a State may only make law insofar as it applies to incorporation, regulation and winding up of a co-operative society, subject to the provisions of Part IXB. The restrictions contained in Part IXB may now be set out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separate subject matters, the Legislature of a State must mandatorily include such subject matters. 65. From all the above, it is clear that the exclusive legislative power that is contained in Entry 32 List II has been significantly and substantially impacted in that such exclusive power is now subjected to a large number of curtailments. Indeed, Article 243ZI specifically mandates that the exclusive legislative power contained in Entry 32 List II of the State Legislature is now severely curtailed as it can only be exercised subject to the provisions of Part IXB; and further, Article 243ZT makes it clear that all State laws which do not conform to the restrictions mentioned in Part IXB automatically come to an end on the expiration of one year from the commencement of the Constitution 97th Amendment Act. 66. Indeed, this Court in Vipulbhai M. Chaudhary v. Gujarat Coop. Milk Mktg. Federation Ltd. (supra), referred to the effect of Article 243ZT as follows: 27. Article 243-ZT of the Constitution requires the laws relating to cooperative societies in force in the States prior to the commencement of the Amendment Act to be in tune with and in terms of the constitutional concept a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose of local self-government or village administration. 69. Both the Constitution 73rd and 74th Amendments were sent for ratification and were ratified by Legislatures of more than half the States. The reason is not far to see - like Part IXB, several restrictions are laid down before the States can legislate on Panchayats and Municipalities. Like Part IXB, such legislation is subject to Parts IX and IXA - see Article 243C and Article 243R. Again, like Article 243ZT in Part IXB, Articles 243N and 243ZF provide that State laws which are inconsistent with the provisions of Parts IX and IXA respectively will automatically cease after the expiration of one year from the commencement of the two Constitutional Amendments. In addition to these provisions, Parts IX and IXA also contain Article 243O and Article 243ZG ousting the jurisdiction of the courts and thereby, in effect, curtailing the provisions of Articles 136, 226 and 227 of the Constitution of India. Ratification of the Constitution 72nd and 73rd Amendments was therefore necessary both under clauses (b) and (c) of the proviso to Article 368(2) in that Article 136 was in effect curtailed (Article 136 occurring in Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutional amendment as being procedurally infirm, it is the duty of the court to examine such challenge on merits as the Constitution of India is a national charter of governance affecting persons, citizens and institutions alike. 73. It was then argued by Shri Venugopal, learned Attorney General for India, that the impugned judgment's finding that one of the basic features of the Constitution, the principle of federalism has been affected was a finding that was unnecessary once it was found that the Amendment fell foul of Article 368(2) proviso. Shri Venugopal is right that there was no argument made that even de hors ratification, Part IXB otherwise falls foul of the basic structure doctrine as laid down in Kesavananda Bharati's case (supra). We reiterate that our judgment is confined to the procedural aspect of Article 368(2) proviso, there being no substantive challenge to Part IXB on the ground that it violates the basic structure doctrine as laid down in Kesavananda Bharati's case (supra). 74. We now come to an important argument made by Shri Venugopal that even if it be held that Part IXB is constitutionally infirm qua cooperative societies operating within a State, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... introduced in provisions referred to in clauses (a) to (e) of proviso to Article 368(2), Parliament alone is not competent to make such amendments on account of some constitutionally recognised federal principle being invoked. If the doctrine of severability can be applied it can be upheld as valid in respect of the amendments within the competence of Parliament and only the amendments which Parliament alone was not competent to make could be declared invalid. xxx xxx xxx 71. The proviso to Article 368(2) appears to have been introduced with a view to giving effect to the federal principle. In the matter of amendment of provisions specified in clauses (a) to (e) relating to legislative and executive powers of the States vis-a-vis the Union, the Judiciary, the election of the President and the amending power itself, which have a bearing on the States, the proviso imposes an additional requirement of ratification of the amendment which seeks to effect a change in those provisions before the Bill is presented for the assent of the President. It is salutary that the scope of the proviso is confined to the limits prescribed therein and is not construed so as to take away the power in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on can arise in the context of the main part of Article 368(2) which provides: "when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the Members of that House present and voting, it shall be presented to the President". Here also a condition is imposed that the Bill shall be presented to the President for his assent only after it has been passed in each House by the prescribed special majority. An amendment in the First and Fourth Schedules referable to Article 4 can be introduced by Parliament by an ordinary law passed by simple majority. There may be a Bill which may contain amendments made in the First and Fourth Schedules as well as amendments in other provisions of the Constitution excluding those referred to in the proviso which can be amended only by a special majority under Article 368(2) and the Bill after having been passed only by an ordinary majority instead of a special majority has received the assent of the President. The amendments which are made in the First and Fourth Schedules by the said Amendment Act were validly made in view of Article 4 but the amendments in other provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itutional amendment and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body politic. The ouster of jurisdiction of courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions. 77. We accordingly hold on contentions (C) and (D): That there is nothing in the said proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that 'thereupon the Constitution shall stand amended' the operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other not requiring ratification, was severable, as a result of which Paragraph 7 alone of the 10th Schedule of the Constitution was struck down for want of ratification by the States. There can be no doubt that in its application to multi-State co-operative societies, neither Article 246(3) nor Entry 32 List II of the 7th Schedule would be attracted. Equally, the test of severability laid down in Kihoto Hollohan (supra) which required the court in that case to ascertain whether the legislature would at all have enacted the law if the severed part was not part of the law cannot be said to apply in a case like the present where, had the amendment dealing with multi-State co-operative societies been in a separate part of Part IXB, such test would be inapplicable. The Statement of Objects and Reasons for the Constitution 97th Amendment Act makes this clear. It states: "The proposed new Part in the Constitution, inter alia, seeks to empower the Parliament in respect of multi-State cooperative societies and the State Legislatures in cases of other co-operative societies to make appropriate law, laying down the following matters, namely:- "(Emphasis supplied) It is clear, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would operate in Union territories is Part IXB only insofar as it applies to multi-State co-operative societies. So far as cooperative societies within a Union territory are concerned, the same infirmity as is found in the main part of the judgment continues insofar as the legislative subject "co-operative societies" is concerned under Entry 32 List II. Therefore, for co-operative societies which have no ramifications outside the Union territory itself, Part IXB will have no application. 79. We now come to the argument of Shri Shah that even so far as multi-State co-operative societies are concerned, since Entry 44 List I gets truncated in the same manner as Entry 32 List II, the Constitutional Amendment would require ratification so far as multiState co-operative societies are concerned since a change in effect is made in List I, which would be covered by clause (c) of the proviso to Article 368 of the Constitution. On a reading of the writ petition filed before the High Court, no such ground has been raised. On the contrary, all the grounds raised have reference to infraction of the federal principle and the fact that the subject "cooperative societies" is affected by the amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erative society, by whatever name called, to which the direction and control of the management of the affairs of a society is entrusted to; (c) "co-operative society" means a societyregistered or deemed to be registered under any law relating to co-operative societies for the time being in force in any State; (d) "multi-State co-operative society"means a society with objects not confined to one State and registered or deemed to be registered under any law for the time being in force relating to such cooperatives; (e) "Office bearer" means a President,Vice-President, Chairperson, ViceChairperson, Secretary or Treasurer, of a co-operative society and includes any other person to be elected by the board of any cooperative society; (f) "Registrar" means the CentralRegistrar appointed by the Central Government in relation to the multi-State co-operative societies and the Registrar for co-operative societies appointed by the State Government under the law made by the Legislature of a State in relation to co-operative societies; (g) "State Act" means any law made by theLegislature of a State; (h) "State level co-operative society"means a co-operative society having its area of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the total number of directors specified in the first proviso to clause (1). 243ZK. Election of members of board.- (1) Notwithstanding anything contained in any law made by the Legislature of a State, the election of a board shall be conducted before the expiry of the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the term of the office of members of the outgoing board. (2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a co-operative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law: Provided that the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such elections. 243ZL. Supersession and suspension of board and interim management.-(1) Notwithstanding anything contained in any law for the time being in force, no board shall be superseded or kept under supersession for a period exceeding six months: Provided that the board may be superseded or kept under suspension in a case- (i) of its persistent default; or (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich such accounts relate. (5) The audit report of theaccounts of an apex co-operative society, as may be defined by the State Act, shall be laid before the State Legislature in the manner, as may be provided by the State Legislature, by law. 243ZN. Convening of general body meetings.-The Legislature of a State may, by law, make provisions that the annual general body meeting of every co-operative society shall be convened within a period of six months of close of the financial year to transact the business as may be provided in such law. 243ZO. Right of a member to get information.-(1) The Legislature of a State may, by law, provide for access to every member of a co-operative society to the books, information and accounts of the cooperative society kept in regular transaction of its business with such members. (2) The Legislature of a State may, bylaw, make provisions to ensure the participation of members of the management of the co-operative society providing minimum requirement of attending meetings by the members and utilising the minimum level of services as may be provided in such law. (3) The Legislature of a State may, bylaw, provide for co-operative education an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spectively. 243ZS. Application to Union territories.-The provisions of this Part shall apply to the Union territories and shall, in their application to a Union territory, having no Legislative Assembly as if the references to the Legislature of a State were a reference to the administrator thereof appointed under article 239 and, in relation to a Union territory having a Legislative Assembly, to that Legislative Assembly: Provided that the President may, by notification in the Official Gazette, direct that the provisions of this Part shall not apply to any Union territory or part thereof as he may specify in the notification. 243ZT. Continuance of existing laws.- Notwithstanding anything in this Part, any provision of any law relating to co-operative societies in force in a State immediately before the commencement of the Constitution (Ninety-seventh Amendment) Act, 2011, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is less." 5. Article 243ZH is the definition clause. It is clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceded by a very elaborate exercise, which is that, there was a meet of Ministers of Cooperation of various States and resolutions were passed [These Resolutions are not to be mistaken for the Resolutions to be passed by the State Legislatures, as contemplated in the proviso to Article 368(2)]. It is contended on behalf of the Respondent No. 1 and the learned Counsel for the Intervenors that it may have been different, if the substantial provisions, as contained in Article 243ZI to 243ZQ, which related to cooperative societies, embraced by Entry 32 of List II, were expressly enacted to apply to multistate cooperative societies and to the cooperative societies operating in the Union Territory, and thereafter, such provisions were also made to apply to cooperative societies operating under laws made by the State Legislatures but this is not the position. 10. The Doctrine of Severability came up for consideration in R.M.D. Chamarbaugwalla and another v. Union of India and another AIR 1957 SC 628. Therein, this Court has laid down certain Rules in this regard. They read as follows: "22. That being the position in law, it is now necessary to consider whether the impugned provisions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provision therein. 6. If after the invalid portion isexpunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, Vol. 2, p. 194. 7. In determining the legislative intenton the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction, Vol. 2, pp. 177-178." 11. We are, in this case, concerned with a case of an amendment to the Constitution, which has been carried out under Article 368. Article 368 reads as follows: "368. Power of Parliament to amend the Constitution and procedure therefor.- (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fflicted with the vice of non-compliance with the procedure, which is mandatory. Resultantly, the said provisions must be treated as still born. These provisions are void in law. The definition clause Article 243ZH clearly would have no meaning and would cease to be workable. The only question, which, therefore, arisesis when provisions of the amendment to the Constitution are found to be void, for the reason that the mandate of the proviso to Article 368(2) has not been complied with, whether the Doctrine of Severability could be applied to sustain the other provisions, which may not require Parliament to follow the procedure under the proviso to Article 368(2). 14. This question is not res integra as it has been considered by the Constitution Bench of this Court in Kihoto Hollohan v. Zachillhu and others (1992) Suppl.2 SCC 651. The Court in the said case, was dealing with a challenge to the Tenth Schedule to the Constitution. Parliament, by virtue of the Tenth Schedule purported to deal with the evil of defection. After providing for various aspects, it also purported to oust the jurisdiction of all courts by virtue of paragraph-7, which reads as follow: "7. Bar of jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional." xxx xxx xxx 68. The doctrine of severability has been applied by this Court in cases of challenge to the validity of an amendment on the ground of disregard of the substantive limitations on the amending power, namely, alteration of the basic structure. But only the offending part of the amendment which had the effect of altering the basic structure was struck down while the rest of the amendment was upheld. [See Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225 : 1973 Supp SCR 1] , Minerva Mills Ltd. v. Union of India [(1980) 3 SCC 625 : (1981) 1 SCR 206] , P. Sambamurthy v. State of A.P. [(1987) 1 SCC 362 : (1987) 2 ATC 502 : (1987) 1 SCR 879] ]. 69. Is there anything in the procedural limitations imposed by sub-article (2) of Article 368 which excludes the doctrine of severability in respect of a law which violates the said limitations? Such a violation may arise when there is a composite Bill or what is in statutory context or jargon called a 'Rag-Bag' measure seeking amendments to several statutes under one amending me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposes an additional requirement of ratification of the amendment which seeks to effect a change in those provisions before the Bill is presented for the assent of the President. It is salutary that the scope of the proviso is confined to the limits prescribed therein and is not construed so as to take away the power in the main part of Article 368(2). An amendment which otherwise fulfils the requirements of Article 368(2) and is outside the specified cases which require ratification cannot be denied legitimacy on the ground alone of the company it keeps. The main part of Article 368(2) directs that when a Bill which has been passed by the requisite special majority by both the Houses has received the assent of the President "the Constitution shall stand amended in accordance with the terms of the Bill". The proviso cannot have the effect of interdicting this constitutional declaration and mandate to mean that in a case where the proviso has not been complied - even the amendments which do not fall within the ambit of the proviso also become abortive. The words "the amendment shall also require to be ratified by the legislature" indicate that what is required to be ratified by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on the amending power to a level higher than the substantive limitations. xxx xxx xxx 75. In that case, it was found that Section 41 of the Bribery Amendment Act, 1958 made a provision for appointment of a panel by the Governor-General on the advice of the Minister of Justice for selecting members of the Bribery Tribunal while Section 55 of the Constitution vested the appointment, transfer, dismissal and disciplinary control of judicial officers in the Judicial Service Commission. It was held that the legislature had purported to pass a law which, being in conflict with Section 55 of the Order in Council, must be treated, if it is to be valid, as an implied alteration of the constitutional provisions about the appointment of judicial officers and could only be made by laws which comply with the special legislative procedure laid down in Section 29(4). Since there was nothing to show that the Bribery Amendment Act, 1951 was passed by the necessary two-thirds majority, it was held that "any Bill which does not comply with the condition precedent of the proviso, is and remains, even though it receives the Royal Assent, invalid and ultra vires". Applying the doctrine of severabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd independently and is workable. If the provisions of the Tenth Schedule are considered in the background of the legislative history, namely, the report of the 'Committee on Defections' as well as the earlier Bills which were moved to curb the evil of defection it would be evident that the main purpose underlying the constitutional amendment and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body politic. The ouster of jurisdiction of courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions." (Emphasis supplied) 16. The first Rule laid down in R.M.D. Chamarbaugwalla (supra) is that, it is the intention of the Legislature, that is the determining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments have been held at several occasions and in the conferences of State Co-operative Ministers. A strong need has been felt for amending the Constitution so as to keep the cooperatives free from unnecessary outside interferences and also to ensure, their autonomous organisational set up and their democratic functioning. 3. The Central Government is committed toensure that the co-operative societies in the country function in a democratic, professional, autonomous and economically sound manner. 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. 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. 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 Legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltation with the State Governments were held several times. The Central Government was committed, it is stated to ensure that the cooperative societies, in the country, were to function in a democratic, professional, autonomous and economically sound manner. It is in this connection that Part IXB was inserted to empower Parliament in respect of multistate cooperative societies, and State Legislatures, in case of other cooperative societies, to make appropriate law. 19. The intention, therefore, discernible was that Parliament intended to provide a uniform set of legislative norms and create rights, liabilities and powers across the board through the length and breadth of the country. In fact, it was to inform all cooperative societies, whether they were governed by laws made by the State Legislatures, falling under Entry 32 of List II of Seventh Schedule, or the appropriate Entry under List I. 20. In other words, homogeneity was sought to be introduced without any discrimination between cooperative societies falling within the legislative domain of State Legislatures and of Parliament. The setting and the manner, in which the Articles have been ordered in Part IXB, would go to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he meet of State Cooperative Ministers. All of this appears to point out that, having regard to the law holding the field and the relevant principles in question, it appears that Parliament would not have made the amendment, had it known that the provisions contained in Articles 243ZI to 243ZQ would not pass muster. The object was clearly to have identical provisions in place to govern cooperative societies. Uniformity and, in fact, identical treatment for all cooperative societies whether they are created under State Law or by Parliament, was the goal. 24. It is true that what the proviso to Article 368(2) contemplates is, that the ratification by the requisite number of States is done before the Bill I presented to the President of India for assent. 25. It is the duty of the Court to strive to uphold the law made by the Legislature. When it comes to an amendment to the Constitution, this presumption of constitutionality, and also the duty of the Court, becomes even more pronounced. If, indeed, on the Doctrine of Severability, the provisions contained in Article 243QR and Article 243QS, can be sustained, I would agree that the law must survive rather than perish. The question, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omething which exists. There cannot be either, when the elaborate provisions are to be treated as not born. 29. Are these provisions independent and workable? I will proceed on the basis that Parliament intended to produce homogeneity in regard to certain legislative value judgments which would be cast in stone in a manner of speaking by having those values declared in the grund norm itself. It would appear to be that these values were to apply, across the board, to cooperative societies born under laws made by the State Legislatures, as also, to those made by Parliament. 30. More importantly, once the Court has painted the relevant provisions, which are the substantial provisions (Article 243ZI to 243ZQ), with the brush of unconstitutionality, rendering those provisions, still born, it would appear that the provisions contained in Article 243ZR and Article 243ZS would not have the crutches without which these provisions cease to be workable and are impossible to sustain. The unconstitutional part, which is to be an integral part of Article 243ZR and Article 243ZS, must continue to exist, if the provisions', in question, are to bear life. In other words, to sustain these provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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