TMI Blog2021 (9) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... when it comes to Multi State Co-operative Societies with objects not confined to one state, the legislative power would be that of the Union of India which is contained in Entry 44 List I. It may thus be seen that there is no overlap whatsoever so far as the subject co-operative societies is concerned. Co-operative societies as a subject matter belongs wholly and exclusively to the State legislatures to legislate upon, whereas multi-State cooperative societies i.e., co-operative societies having objects not confined to one state alone, is exclusively within the ken of Parliament. This being the case, it may safely be concluded, on the facts of this case, that there is no overlap and hence, no need to apply the federal supremacy principle as laid down by the judgments of this court - If the subject matter of an amendment falls within the proviso, then the additional procedural requirement is that such amendment shall also be required to be ratified by the legislatures of not less than one half of the States by resolution to that effect passed by those legislatures before the bill making provision for such amendment is presented to the President for assent. A challenge to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aded or argued before either the High Court or before us. This being the case, we declare that Part IXB of the Constitution of India is operative insofar as multi-State co-operative societies are concerned. The judgment of the High Court is upheld except to the extent that it strikes down the entirety of Part IXB of the Constitution of India - it is declared that Part IXB of the Constitution of India is operative only insofar as it concerns multi-State cooperative societies both within the various States and in the Union territories of India - Appeal disposed off. As per K.M. JOSEPH, J. I am in complete agreement with the reasoning and conclusion in regard to the provisions relating to Article 240ZI to Article 243ZQ and Article 243ZT, being unconstitutional for non-compliance, with the mandate of the proviso to Article 368(2) of the Constitution of India. However, I regret my inability to concur with the view taken that the Doctrine of Severability will apply to sustain Article 243ZR and Article 243ZS to the multistate cooperative societies operating in the Union Territories, and that, it would not apply to cooperative societies confined to the territories of the Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned and esteemed Brother in regard to the application of the Doctrine of Severability. - Appeal dismissed. Dissenting orders passed in regard to the application of the Doctrine of Severability. - CIVIL APPEAL NOS.9108-9109 of 2014, 2826 OF 2021 (@ SLP (CIVIL) NO.13329 OF 2018), CIVIL APPEAL NO. 2825 OF 2021 (@ SLP (CIVIL) NO.13215 OF 2018), CIVIL APPEAL NO.282 OF 2020, 281 OF 2020, 2827 OF 2021 (@ SLP (CIVIL) NO.14227 OF 2020) - - - Dated:- 20-7-2021 - R. F. NARIMAN, B.R. GAVAI AND K.M. JOSEPH, JJ. For the Appellant : Mr. K.K. Venugopal, Attorney General, Mr. Tushar Mehta, SG, Mr. Kanu Agrawal, Adv., Mr. Zoheb Hussain, Adv., Ms. Meenakshi Grover, Adv., Mr. S.K. Gupta, Adv., Ms. Shraddha Deshmukh, Adv., Mr. Chinmayee Chandra, Adv., Mr. Amrish Kumar, Adv., Mr. Raj Bahadur Yadav, AOR, Mr. P.K. Jani, Sr. Adv., Mr. Mohit Paul, AOR, Ms. Shikha Sarin, Adv., Ms. Sunaina Phul, Adv., Mr. Sahil M. Shah, Adv., Mr. Shivang Jani, Adv. For the Respondent : Mr. Masoom K. Shah, Adv., Mr. Vishwas K. Shah, Adv., Mrs. Neha Shah, Adv., Mr. Dhrupad Patel, Adv., Mr. Anup Jain, AOR, Mr. Udit Gupta, Adv., Mr. Abhishek Baid, Adv., Mr. Pulkit Tare, Adv., Ms. Ritika Sinha, Adv., Mr. V. K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx xxx xxx (c) to form associations or unions or co-operative societies; xxx xxx xxx Art 43B. Promotion of co-operative societies.- The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies. SEVENTH SCHEDULE (Article 246) List I-Union List xxx xxx xxx 43. Incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations, but not including co-operative societies. 44. Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities. xxx xxx xxx List II-State List xxx xxx xxx 32. Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; cooperative societies. xxx xxx xxx 4. On 07.12.2004, a conference of ministers dealing with co-operatives in the various states resolved to amend the Constitution to ensure democratic, autonomous and profession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, there is a need to initiate fundamental reforms to revitalize these institutions in order to ensure their contribution in the economic development of the country and to serve the interests of members and public at large and also to ensure their autonomy, democratic functioning and professional management. 2. The co-operative societies is a subject enumerated inEntry 32 of the State List of the Seventh Schedule of the Constitution and the State Legislatures have accordingly enacted legislations on co-operative societies. Within the framework of State Acts, growth of co-operatives on large scale was envisaged as part of the efforts for securing social and economic justice and equitable distribution of the fruits of development. It has, however, been experienced that in spite of considerable expansion of co-operatives, their performance in qualitative terms has not been up to the desired level. Considering the need for reforms in the Cooperative Societies Acts of the States, consultations with the State Governments 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not only ensurethe autonomous and democratic functioning of cooperatives, but also ensure the accountability of management to the members and other stakeholders and shall provide for deterrence for violation of the provisions of the law. 5. The Bill seeks to achieve the above objectives. (Emphasis supplied) 6. A new Part IXB was then inserted as follows: PART IXB THE CO-OPERATIVE SOCIETIES 243ZH. Definitions. - In this Part, unless the context otherwise requires,- (a) authorised person means a person referred to as suchin article 243ZQ; (b) board means the board of directors or the governingbody of a co-operative 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 society registered ordeemed to be registered under any law relating to cooperative societies for the time being in force in any State; (d) multi-State co-operative society means a society withobjects 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 bea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in any other field relating to the objects and activities undertaken by the co-operative society, as members of the board of such society: Provided that the number of such co-opted members shall not exceed two in addition to twenty-one directors specified in the first proviso to clause (1): Provided further that such co-opted members shall not have the right to vote in any election of the cooperative society in their capacity as such member or to be eligible to be elected as office bearers of the board: Provided also that the functional directors of a co-operative society shall also be the members of the board and such members shall be excluded for the purpose of counting 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... least once in each financial year. (2) The Legislature of a State shall, by law, lay down theminimum qualifications and experience of auditors and auditing firms that shall be eligible for auditing accounts of the co-operative societies. (3) Every co-operative society shall cause to be audited byan auditor or auditing firms referred to in clause (2) appointed by the general body of the co-operative society: Provided that such auditors or auditing firms shall be appointed from a panel approved by a State Government or an authority authorised by the State Government in this behalf. (4) The accounts of every co-operative society shall beaudited within six months of the close of the financial year to which such accounts relate. (5) The audit report of the accounts of an apex co-operativesociety, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourteen days from the date on which such deduction is made; (d) any officer or custodian who wilfully fails to handovercustody of books, accounts, documents, records, cash, security and other property belonging to a co-operative society of which he is an officer or custodian, to an authorised person; and (e) whoever, before, during or after the election ofmembers of the board or office bearers, adopts any corrupt practice. 243ZR. Application to multi-State co-operative societies.- The provisions of this Part shall apply to the multi-State cooperative societies subject to the modification that any reference to Legislature of a State , State Act or State Government shall be construed as a reference to Parliament , Central Act or the Central Government respectively. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consultation with the State Governments as a result of which no State Government has come forward to challenge the same. The learned Attorney General, on a reading of several judgments of this Court dealing with ratification of constitutional amendments, argued that there is no change either directly or in effect to Article 246(3) of the Constitution of India, from which the legislative power of the States contained in List II of the 7th Schedule flows, or in Entry 32 of List II of the 7th Schedule. In point of fact, a reading of Part IXB would show that no additional legislative power has been given to the Union. All subject matters relating to co-operative societies fall solely within the legislative domain of the States. Apart from reading out passages in Sankari Prasad Singh Deo v. Union of India, 1952 SCR 89; Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933 and Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, the learned Attorney General relied strongly upon observations in the dissenting judgments of Wanchoo, J. Ramaswamy, J. and Bachawat, J. in Golak Nath v. State of Punjab, (1967) 2 SCR 762. According to him, the examples given by Wanchoo, J. are apposite. On the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad co-operative societies contained in Entry 32, List II of the 7th Schedule is now being made subject to Part IXB which is a part of the Constitution of India. He argued that Parliament in its constituent capacity can deal with State subjects, and relied upon the insertion of Article 21A by Constitution (Eighty Sixth Amendment) Act, 2002. He then argued that as a matter of fact, Part IXB read with Article 43B enhances the basic structure of the Constitution and relied strongly upon the judgment in Vipulbhai M. Chaudhary v. Gujarat Coop. Milk Mktg. Federation Ltd., (2015) 8 SCC 1 to demonstrate that this judgment, though not dealing with the constitutional validity of the 97th Amendment, yet held that the said Amendment is a great step forward in bringing uniformity and order to the co-operatives movement in India. 11. Shri Masoom K. Shah, learned counsel appearing for the Respondent No.1 in Civil Appeal No. 9108-9109 of 2014, has made an impassioned plea that the donee of a limited amending power cannot do indirectly what it is not permitted to do directly. According to him, a coach-and-four is driven into the principle of federalism as understood by our Constitution, by curt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gue that even if 17 States thereafter amend their laws in furtherance of the Constitutional Amendment, this would make no difference to the constitutional position if in fact the requisite ratification under Article 368(2) proviso is lacking. The validity of a constitutional amendment does not depend upon whether a State government accepts it or whether a State government challenges it. He then went on to make two further arguments insofar as multi-State co-operative societies are concerned. First and foremost, given the tests of severability, he argued that multi-State co-operative societies are inextricably entwined with co-operative societies and the 97th Constitution Amendment would never have been enacted for multi-State cooperative societies alone. Even otherwise, the challenge made in the Writ Petition was to the entirety of Part IXB and the part relating to multi-State co-operative societies, not being severable, the entirety of Part IXB has correctly been held to be unconstitutional by the impugned judgment. He also argued that if this Constitutional Amendment is allowed to pass constitutional muster without ratification, there would be no end to further amendments which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014 CA Nos. 9108-9109/2014, broadly supported the submissions made by Shri Shah and Ms. Sinha. 14. Having heard learned counsel for all the parties, it is first important to advert to the constitutional scheme of legislative relations between the Union of India and the States. This is laid down in Part IXB, Chapter I in Articles 245 and 246 as follows: - PART XI RELATIONS BETWEEN THE UNION AND THE STATES CHAPTER I.-LEGISLATIVE RELATIONS Distribution of Legislative Powers 245. Extent of laws made by Parliament and by the Legislatures of States. - (1) Subject to the provisions of this Constitution, Parliamentmay 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. (2) No law made by Parliament shall be deemed to beinvalid on the ground that it would have extraterritorial operation. 246. Subject-matter of laws made by Parliament and by the Legislatures of States. - (1) Notwithstanding anything in clauses (2) and (3),Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6(2) and the subject to clause contained in Article 246(3), this Court, following Federal Court and Privy Council judgments, has held that these non-obstante and subject to clauses lay down the doctrine of federal supremacy, which can be stated thus: topics in the State List have to give way to topics contained in the Union or Concurrent List in the event of an overlap between entries in these lists. Such overlap is not to be easily found on the contrary, it is only in the case of an inevitable and irreconcilable conflict that the width of an entry in the State List can be curtailed by an overlap with an entry in either List 1 or List 3. Thus, in Kerala SEB v. Indian Aluminium Co. Ltd., (1976) 1 SCC 466, this Court held: - 5. In view of the provisions of Article 254, the power of Parliament to legislate in regard to matters in List III, which are dealt with by clause (2), is supreme the Parliament has exclusive power to legislate with respect to matters in List 1. The State Legislature has exclusive power to legislate with respect to matters in List II. But this is subject to the provisions of clause (1) [leaving out for the moment the reference to clause (2)]. The power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the entries in the Union and State Lists. In the case of a seeming conflict between the entries in the two Lists, the entries should be read together without giving a narrow and restricted sense to either of them. Secondly, an attempt should be made to see whether the two entries cannot be reconciled so as to avoid a conflict of jurisdiction. It should be considered whether a fair reconciliation can be achieved by giving to the language of the Union Legislative List a meaning which, if less wide than it might in another context bear, is yet one that can properly be given to it and equally giving to the language of the State Legislative List a meaning which it can properly bear. The non obstante clause in Article 246(1) must operate only if such reconciliation should prove impossible. Thirdly, no question of conflict between the two Lists will arise if the impugned legislation, by the application of the doctrine of pith and substance appears to fall exclusively under one list, and the encroachment upon another list is only incidental. (at page 165) 19. Likewise, in Goodricke Group Ltd. v. State of W.B., 1995 Supp (1) SCC 707, this Court reiterated this constitutional sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legislature in the event of an overlap of the law made by Parliament with respect to a matter enumerated in List I and a law made by the State Legislature with respect to a matter enumerated in List II of the Seventh Schedule. 10. There is no doubt that both Parliament and the StateLegislature are supreme in their respective assigned fields. It is the duty of the court to interpret the legislations made by Parliament and the State Legislature in such a manner as to avoid any conflict. However, if the conflict is unavoidable, and the two enactments are irreconcilable, then by the force of the non obstante clause in clause (1) of Article 246, the parliamentary legislation would prevail notwithstanding the exclusive power of the State Legislature to make a law with respect to a matter enumerated in the State List. 21. In Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd., (2007) 6 SCC 236, it was held: 92. The first three clauses of Article 246 of the Constitution relate to the demarcation of legislative powers between Parliament and the State Legislatures. Under clause (1), notwithstanding anything contained in clauses (2) and (3), Parliament has been given the exclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... List III (Concurrent List). The exclusive power of the State Legislature to legislate with respect to any of the matters enumerated in List II has to be exercised subject to clause (1) i.e. the exclusive power of Parliament to legislate with respect to matters enumerated in List I. As a consequence, if there is a conflict between an entry in List I and an entry in List II, which is not capable of reconciliation, the power of Parliament to legislate with respect to a matter enumerated in List II must supersede pro tanto the exercise of power of the State Legislature. 26. Both Parliament and the State Legislature haveconcurrent powers of legislation with respect to any of the matters enumerated in List III. The words notwithstanding anything contained in clauses (2) and (3) in Article 246(1) and the words subject to clauses (1) and (2) in Article 246(3) lay down the principle of federal supremacy viz. that in case of inevitable conflict between the Union and State powers, the Union power as enumerated in List I shall prevail over the State power as enumerated in Lists II and III and in case of an overlapping between Lists II and III, the latter shall prevail. 27. Though, un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was designed to treat cooperative societies as institutions distinct from corporations. On the other hand one would think that the very mention of cooperative societies both in Entry 43 of List I and Entry 32 of List II along with other corporations gave an indication that the Constitution makers were of the view that cooperative societies were of the same genus as other corporations and all were corporations. In fact the very express exclusion of cooperative societies from Entry 43 of List I is indicative of the view that but for such exclusion, cooperative societies would be comprehended within the meaning of expression corporations . 24. Likewise, in Apex Cooperative Bank of Urban Bank of Maharashtra Goa Ltd. v. Maharashtra State Cooperative Bank Ltd., (2003) 11 SCC 66, this Court delineated the two separate spheres relating to multi-State co-operative societies and cooperative societies as follows: - 25. Another aspect which must be noticed is that in theConstitution of India, the subject pertaining to cooperative societies is in the State List i.e. Entry 32 of List II of Schedule VII. The Union List has Entry 44 of List I of Schedule VII which deals with corporations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no overlap and hence, no need to apply the federal supremacy principle as laid down by the judgments of this court. What we are therefore left with is the exclusive power to make laws, so far as co-operative societies are concerned, with the State Legislatures, which is contained in Article 246(3) read with Entry 32 of List II. In fact, in K. Damodarasamy Naidu Bros. v. State of T.N., (2000) 1 SCC 521, this court held: 21. Parliament, when exercising the powers to amend the Constitution under Article 368, cannot and does not amend State Acts. There is no other provision in the Constitution which so permits and there is no judgment of this Court that so holds. The power to make laws for the States in respect of matters listed in List II in the Seventh Schedule is exclusively that of the State Legislatures. .. (emphasis supplied) 27. At this stage it is important to refer to the power of amendment of the Constitution contained in Article 368 of the Constitution of India. Article 368 reads as follows: - PART XX AMENDMENT OF THE CONSTITUTION 368. Power of Parliament to amend the Constitution and procedure therefor. - (1) Notwithstanding anything in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Union and the State Governments, Article 241 which deals with High Courts for Union territories, and Article 279A which deals with the Goods and Services Tax Council. In this case, we are not directly concerned with Sub-clause (a) of the proviso. 30. Sub-clause (b) of the proviso is important and speaks of Chapter IV of Part V which deals with the Union Judiciary consisting of the Supreme Court of India, Chapter V of Part VI which deals with the High Courts in the States, and Chapter I of Part XI which deals with legislative relations between the Union and the States. We are directly concerned with sub-clause (b) insofar as the impact of a constitutional amendment on Article 246, which is part of Chapter I of Part XI, is concerned. 31. Sub-clause (c) of the proviso then speaks of any change being made in any of the lists in the 7th Schedule, which would certainly include Entry 32 List 2 of the 7th Schedule, with which we are directly concerned. Sub-clauses (d) and (e) refer to the representation of the States in Parliament and a change to be made in the provisions of Article 368 itself respectively, with which we are not directly concerned. 32. If the subject mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitations are those which restrict the field of the exercise of the amending power. Procedural limitations on the other hand are those which impose restrictions with regard to the mode of exercise of the amending power. Both these limitations touch and affect the constituent power itself, disregard of which invalidates its exercise. (See Kihoto Hollohan v. Zachillhu [1992 Supp (2) SCC 651].) 35. In I.R. Coelho v. State of T.N., (2007) 2 SCC 1, this Court held: 122. The scope and content of the words constituent power expressly stated in the amended Article 368 came up for consideration in Indira Gandhi case [1975 Supp SCC 1]. Article 329-A(4) was struck down because it crossed the implied limitation of amending power, that it made the controlled Constitution uncontrolled, that it removed all limitations on the power to amend and that it sought to eliminate the golden triangle of Article 21 read with Articles 14 and 19. (See also Minerva Mills case [(1980) 3 SCC 625].) 123. It is Kesavananda Bharati case [(1973) 4 SCC 225] read with clarification of Khanna, J. in Indira Gandhi case [1975 Supp SCC 1] which takes us one step forward, namely, that fundamental rights are inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 SCC 225] the discussion was on the amending power conferred by unamended Article 368 which did not use the words constituent power . We have already noted the difference between original power of framing the Constitution known as constituent power and the nature of constituent power vested in Parliament under Article 368. By addition of the words constituent power in Article 368, the amending body, namely, Parliament does not become the original Constituent Assembly. It remains a Parliament under a controlled Constitution. Even after the words constituent power are inserted in Article 368, the limitations of doctrine of basic structure would continue to apply to Parliament. It is on this premise that clauses (4) and (5) inserted in Article 368 by the 42nd Amendment were struck down in Minerva Mills case [(1980) 3 SCC 625]. 36. A challenge to a constitutional amendment may, therefore, be on procedural or substantive grounds as stated hereinabove. The present case concerns itself with the procedural ground contained inArticle 368(2) proviso. 37. For Article 368(2) proviso to apply, various tests have been laid down by this Court in some of its judgments. Since the tests ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so do not become invalid. (D) That even if the effect of non-ratification by theLegislature of the States is to invalidate Paragraph 7 alone, the whole of the Tenth Schedule fails for non-severability. Doctrine of severability, as applied to ordinary statutes to promote their constitutionality, is inapplicable to constitutional amendments. Even otherwise, having regard to legislative intent and scheme of the Tenth Schedule, the other provisions of the Tenth Schedule, after the severance and excision of Paragraph 7, become truncated, and unworkable and cannot stand and operate independently. The Legislature would not have enacted the Tenth Schedule without Paragraph 7 which forms its heart and core. xxx xxx xxx 40. In dealing with whether Paragraph 7 would require ratification by the States, this Court dealt with Sankari Prasad Singh (supra) and Sajjan Singh (supra) as follows: - 58. In Sankari Prasad case [1952 SCR 89], the question was whether the amendment introducing Articles 31-A and 31-B in the Constitution required ratification under the said proviso. Repelling this contention it was observed: (SCR p. 108) It will be seen that these articles do not either in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsignificant order. The impugned Act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained. 61. The propositions that fell for consideration in Sankari Prasad Singh [1952 SCR 89] and Sajjan Singh cases [(1965) 1 SCR 933] are indeed different. There the jurisdiction and power of the courts under Articles 136 and 226 were not sought to be taken away nor was there any change brought about in those provisions either in terms or in effect , since the very rights which could be adjudicated under and enforced by the courts were themselves taken away by the Constitution. The result was that there was no area for the jurisdiction of the courts to operate upon. Matters are entirely different in the context of Paragraph 7. Indeed the aforesaid cases, by necessary implication support the point urged for the petitioners. The changes in Chapter IV of Part V and Chapter V of Part VI envisaged by the proviso need not be direct. The change could be either in terms of or in effect . It is not necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 103 or 192 in accordance with the opinion of the Election Commission which was the scheme under the two earlier Bills which lapsed. However, some learned counsel contended placing reliance on Sankari Prasad Singh Deo v. Union of India [1952 SCR 89] and Sajjan Singh v. State of Rajasthan [(1965) 1 SCR 933] that the effect of such total exclusion of the jurisdiction of the Supreme Court and the High Courts does not make a change in Articles 136, 226 and 227. A close reading of these decisions indicates that instead of supporting this contention, they do in fact negative it. 157. In Sankari Prasad [1952 SCR 89] the challenge was to Articles 31-A and 31 2DB inserted in the Constitution by the Constitution (First Amendment) Act, 1951. One of the objections was based on absence of ratification under Article 368. While rejecting this argument, the Constitution Bench held as under: (SCR p. 108) It will be seen that these articles do not either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136. Article 31-A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can arise and, therefore, the cause of action subsists, but the remedy is curtailed or extinguished so that the cause of action cannot be enforced for want of that remedy, then the change made is in the remedy and not in the subsisting right. To this latter category, Sankari Prasad [1952 SCR 89] and Sajjan Singh [(1965) 1 SCR 933] have no application. This is clear from the above quoted passage in Sankari Prasad [1952 SCR 89] which clearly brings out this distinction between a change in the right and a change in the remedy. 160. The present case, in unequivocal terms, is that ofdestroying the remedy by enacting Paragraph 7 in the Tenth Schedule making a total exclusion of judicial review including that by the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution. But for Paragraph 7 which deals with the remedy and not the right, the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Articles 226 and 227 would remain unimpaired to challenge the decision under Paragraph 6, as in the case of decisions relating to other disqualifications specified in clause (1) of Articles 102 and 191, which remedy conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han dismissed the challenge to the Constitution 102 nd Amendment Act as follows: 448. We do not find any merit in the challenge to the Constitution 102nd Amendment. The Constitution 102 nd Amendment does not violate any basic feature of the Constitution. The argument of the learned counsel for the petitioner is that Article 368 has not been followed since the Constitution 102nd Amendment was not ratified by the necessary majority of the State. The Parliament never intended to take the rights of the State regarding identification of backward classes, the Constitution 102nd Amendment was not covered by Proviso to Article 368 subclause (2), hence, the same did not require any ratification. The argument of procedural violation in passing the 102nd Constitutional Amendment cannot also be accepted. We uphold the Constitution 102nd Amendment interpreted in the manner as above. 45. This was re-stated in conclusions 27 and 32 found in paragraph 450 by Bhushan, J., and concurred with by Nazeer, J., as follows: - 450. From our foregoing discussion and finding we arrive at following conclusions: xxx xxx xxx (27) It is, thus, clear as sun light that Parliamentary intention disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rameters, the alteration of the content of state legislative power in an oblique and peripheral manner would not constitute a violation of the concept of federalism. It is only if the amendment takes away the very essence of federalism or effectively divests the federal content of the constitution, and denudes the states of their effective power to legislate or frame executive policies (co-extensive with legislative power) that the amendment would take away an essential feature or violate the basic structure of the Constitution. Applying such a benchmark, this court is of the opinion that the power of identification of SEBCs hitherto exercised by the states and now shifted to the domain of the President (and for its modification, to Parliament) by virtue of Article 342A does not in any manner violate the essential features or basic structure of the Constitution. The 102nd Amendment is also not contrary to or violative of proviso to Article 368(2) of the Constitution of India. As a result, it is held that the writ petition is without merit; it is dismissed. (emphasis in original) 49. And under the heading conclusions , it was held: 188. xxx xxx xxx (5) Re. Point No. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se there is some effect indirectly on an entrenched Article by amendment of an unentrenched Article it is not necessary that there should be ratification in such circumstances also . (see pages 844-845) 53. If by this, the learned Judge intended to constrict the test laid down in Sajjan Singh s case (supra) by introducing a further test, namely, necessitating amendment of an entrenched Article , it is clear that this judgment cannot be considered to be good law especially after the judgments of both the majority and minority in Kihoto Hollohan (supra). The same goes for Bachawat, J s minority judgment in Golak Nath (supra) in which the learned Judge held: The contention that the constitutional amendments of Part III had the effect of changing Articles 226 and 245 and could not be passed without complying with the proviso to Article 368 is not tenable. A constitutional amendment which does not profess to amend Article 226 directly or by inserting or striking words therein cannot be regarded as seeking to make any change in it and thus falling within the constitutional inhibition of the proviso. Article 226 gives power to the High Court throughout the territories in relation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... federal supremacy principle outlined hereinabove, yet within their own sphere, the States have exclusive power to legislate on topics reserved exclusively to them (see Bhim Singh v. Union of India, (2010) 5 SCC 538 at paras 45, 46 and 48; B.P. Singhal v. Union of India, (2010) 6 SCC 331 at paras 40-42). 58. There can be no doubt whatsoever that Article 246(3) read with List II of the 7th Schedule of the Constitution of India reflects an important constitutional principle that can be said to form part of the basic structure of the Constitution, namely, the fact that the Constitution is not unitary but quasi-federal in character. The question that arises before us is as to whether this principle can be said to have been infracted by inserting Part IXB into the Constitution of India so that the States legislative powers contained in Article 246(3) read with Entry 32 List II of the 7th Schedule can be said to have been affected in a significant manner. At this juncture, it is also important to have a look at the judgment of this Court in Builders' Assn. of India v. Union of India (supra). In this judgment, apart from a challenge made on substantive grounds, the Constitution (4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RAJYA SABHA SECRETARIAT PARLIAMENT HOUSE, NEW DELHI No. ₹ 1/21/S1-B Dated: 31-1-1982 Memorandum In pursuance of Article 368 of the Constitution of India, the assent copy of the Constitution (Forty-sixth Amendment) Bill, is presented to the President. This Bill has been passed by the Houses of Parliament and has been also ratified by the legislatures of not less than one-half of the States in accordance with the provision of the proviso to clause (2) of Article 368 of the Constitution. Legislatures of the following States have passed resolutions ratifying the amendments: (1) Haryana (2) Himachal Pradesh (3) Karnataka (4) Madhya Pradesh (5) Maharashtra (6) Manipur (7) Meghalaya (8) Orissa (9) Punjab (10) Rajasthan (11) Sikkim (12) Tamil Nadu A copy each of the letters received from these legislatures is placed below. sd/- (Sudarshan Agarwal) Secretary General To The Secretary to the President, (Through the Secretary, Ministry of Law) The Attorney General has also produced before us the file containing the resolutions passed by the legislatures of the 12 States referred to in the Memorandum, set out above. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution of India, form always gives way to substance. There can be no manner of doubt that had exceptions been provided in Entry 32 List II itself, such amendment to Entry 32 List II would require ratification. There can also be no doubt that in effect if the subject matter co-operative societies had been either expanded or curtailed by adding a definition clause in Article 366 of the Constitution of India, such expansion or curtailment would also require ratification as significant changes have been made in effect in Entry 32 List II of the Constitution of India. Likewise, if a separate part is added in the Constitution of India, the direct effect of adding such part being to curtail the width of Entry 32 List II in a significant manner, again, in effect Entry 32 List II is directly impacted, again requiring ratification. It is of no moment that one method is chosen or preferred to another so long as Entry 32 List II is curtailed either by adding or deleting words in Entry 32 itself or by doing so through an indirect methodology, namely, adding a new definition clause in Article 366 or adding a new part to the Constitution of India. 62. Judged by these principles, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve years from the date of election. IV. The State Legislature under Article 243ZJ(3) is bound to make provisions for co-option of members to the board having experience in the field of banking, management, finance or specialization in any other field relating to the objects and activities undertaken by the co-operative society, the number of such co-opted members being restricted to two, as also the fact that such co-opted members shall not have the right to vote. V. Under Article 243ZK(1), the non-obstante clause contained therein makes it clear that the State legislature has to lay down that the election of a board shall be conducted before the expiry of the term of the board. VI. Under Article 243ZL, a State legislature can only supersede a board for a period not exceeding 6 months, if certain enumerated conditions alone are satisfied. VII. Under Article 243ZM, minimum qualifications and experience of auditors and auditing firms have to be laid down by a State Legislature, and co-operatives societies have to be audited only by such persons or firms. VIII. Under Article 243ZN, the Legislature of a State must provide that the annual general body meeting of every co- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction of the available provisions as held by this Court in Pratap Chandra Mehta case [(2011) 9 SCC 573]. 67. The aforesaid analysis of Part IXB of the Constitution leads to the result that though Article 246(3) and Entry 32, List II of the 7th Schedule have not been changed in letter, yet the impact upon the aforesaid articles cannot be said to be insignificant. On the contrary, it is clear that by curtailing the width of Entry 32, List II of the 7th Schedule, Part IXB seeks to effect a significant change in Article 246(3) read with Entry 32 List II of the 7th Schedule inasmuch as the State s exclusive power to make laws with regard to the subject of co-operative societies is significantly curtailed thereby directly impacting the quasi-federal principle contained therein. Quite clearly, therefore, Part IXB, insofar as it applies to co-operative societies which operate within a State, would therefore require ratification under both sub-clauses (b) and (c) of the proviso to Article 368(2) of the Constitution of India. 68. It is interesting to note that Part IX of the Constitution of India which was inserted into the Constitution by the Constitution (73rd Amendment) Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endments, the Constitution 97th Amendment Act also required ratification. 70. Shri Jani, however, argued that the constituent power that is exercised in enacting the 97th Amendment cannot be assimilated with legislative power, and that once the Constitution stands amended by insertion of Part IXB, Article 245 mandates that all legislation made under Article 246 read with Lists in the 7th Schedule to the Constitution of India is subject to the provisions of the Constitution, so that legislation made under Article 246(3) read with Entry 32 List II becomes subject to the provisions of Part IXB which is now a part of the Constitution of India. 71. This argument is a classic instance of putting the cart before the horse. Nobody doubts that had the amendment been ratified under Article 368(2) proviso as held by us above, it would then operate, as a result of which legislation under Article 246(3) read with Entry 32 List II of the 7th Schedule would then become subject to Part IXB. In the present case, ratification not having been effected, the Amendment is non est. This argument is therefore rejected. 72. Shri Venugopal then argued that 17 out of 28 States had enacted legislatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it could be so severed and that the rest of the 10th Schedule would therefore operate. This was held by the majority as follows: - 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], Minerva Mills Ltd. v. Union of India [(1980) 3 SCC 625], P. Sambamurthy v. State of A.P. [(1987) 1 SCC 362] ]. 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 measure which seeks to amend various provisions of the Constitution some of which may attract clauses (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legislatures of the States is the amendment seeking to make the change in the provisions referred to in clauses (a) to (e) of the proviso. The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso. The proviso can have, therefore, no bearing on the validity of the amendments which do not fall within its ambit. Indeed the following observations of this Court in Sajjan Singh case [(1965) 1 SCR 933 : AIR 1965 SC 845] are apposite: (SCR p. 940) In our opinion, the two parts of Article 368 must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged. 72. During the arguments reliance was placed on the words before the Bill making provision for such amendment is presented to the President for assent to sustain the argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hedules as well as in other provisions of the Constitution requiring special majority under Article 368(2) and such a law, even though passed by the simple majority and not by special majority, may be upheld in respect of the amendments made in the First and Fourth Schedules. There is really no difference in principle between the condition requiring passing of the Bill by a special majority before its presentation to the President for assent contained in Article 368(2) and the condition for ratification of the amendment by the legislatures of not less than one-half of the States before the Bill is presented to the President for assent contained in the proviso. The principle of severability can be equally applied to a composite amendment which contains amendments in provisions which do not require ratification by States as well as amendment in provisions which require such ratification and by application of the doctrine of severability, the amendment can be upheld in respect of the amendments which do not require ratification and which are within the competence of Parliament alone. Only these amendments in provisions which require ratification under the proviso need to be struck dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified. That Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7. 76. Article 243ZR of Part IXB makes it clear that all the provisions of this Part which apply to multi-State co-operative societies would apply subject to the modification that any reference to a Legislature of a State, State Act or State Government shall be construed as a reference to Parliament, Central Act or the Central Government respectively. The learned Attorney General therefore argued that instead of having two separate parts within Part IXB, one dealing with State co-operative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vives can and does stand independently and is workable. It was faintly suggested by learned counsel for the Respondents that the consequence of this Court holding that the Constitution 97th Amendment Act is void for want of ratification would render the entire amendment still-born, as a result of which no part of the amendment can survive. We reject this argument for two reasons. If the doctrine of severability were not to apply for the afore-stated reason, then the majority judgment in Kihoto Hollohan (supra) would be incorrect. This very reasoning would then render the entire Constitution 52nd Amendment, which inserted the Tenth Schedule to the Constitution of India, constitutionally infirm as then the entirety of the amendment would have to be declared void for want of ratification, which would be in the teeth of the majority judgment in Kihoto Hollohan (supra). Further, on this reasoning, the amendments made in Article 19 and the addition of Article 43B would also have to be struck down, which was not pleaded or argued before either the High Court or before us. This being the case, we declare that Part IXB of the Constitution of India is operative insofar as multi-State co-oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion territories of India. The appeals are accordingly disposed of. JUDGMENT K.M. JOSEPH, J. 1. I have gone through the draft Judgment authored by my learned and esteemed Brother Justice Rohinton Fali Nariman. 2. I am in complete agreement with the reasoning and conclusion in regard to the provisions relating to Article 240ZI to Article 243ZQ and Article 243ZT, being unconstitutional for non-compliance, with the mandate of the proviso to Article 368(2) of the Constitution of India. However, I regret my inability to concur with the view taken that the Doctrine of Severability will apply to sustain Article 243ZR and Article 243ZS to the multistate cooperative societies operating in the Union Territories, and that, it would not apply to cooperative societies confined to the territories of the Union Territories. 3. Part IXB of the Constitution of India came to be inserted by the Ninety-Seventh Amendment to the Constitution. 4. The High Court has found the Articles 243ZH to 243ZT unconstitutional. The other parts of the Ninety-Seventh Amendment were found not to be affected. The ground was essentially that there was no ratification as required under the proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f directors as may be provided by the Legislature of a State, by law: Provided that the maximum number of directors of a co-operative society shall not exceed twenty-one: Provided further that the Legislature of a State shall, by law, provide for the reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on board of every cooperative society consisting of individuals as members and having members from such class of category of persons. (2) The term of office of elected membersof the board and its office bearers shall be five years from the date of election and the term of office bearers shall be coterminous with the term of the board: Provided that the board may fill a casual vacancy on the board by nomination out of the same class of members in respect of which the casual vacancy has arisen, if the term of office of the board is less than half of its original term. (3) The Legislature of a State shall,by law, make provisions for co-option of persons to be members of the board having experience in the field of banking, management, finance or specialisation in any other field relating to the objects and activities undertaken b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment shareholding or loan or financial assistance or any guarantee by the Government: Provided also that in case of a co-operative society carrying on the business of banking, the provisions of the Banking Regulation Act, 1949 shall also apply: Provided also that in case of a co-operative society, other than a multi- State co-operative society, carrying on the business of banking, the provisions of this clause shall have the effect as if for the words six months , the words one year had been substituted. (2) In case of supersession of aboard, the administrator appointed to manage the affairs of such cooperative society shall arrange for conduct of elections within the period specified in clause (1) and hand over the management to the elected board. (3) The Legislature of a Statemay, by law, make provisions for the conditions of service of the administrator. 243ZM. Audit of accounts of cooperative societies.-(1) The Legislature of a State may, by law, make provisions with respect to the maintenance of accounts by the cooperative societies and the auditing of such accounts at least once in each financial year. (2) The Legislature of a Stateshall, by law, lay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y meeting and conduct of elections when due; and (f) any other information required by the Registrar in pursuance of any of the provisions of the State Act. 243ZQ. Offences and penalties.-(1) The Legislature of a State may, by law, make provisions for the offences relating to the co-operative societies and penalties for such offences. (2) A law made by the Legislature of a State under clause (1) shall include the commission of the following act or omission as offences, namely:- (a) a co-operative society or anofficer or member thereof wilfully makes a false return or furnishes false information, or any person wilfully not furnishes any information required from him by a person authorised in this behalf under the provisions of the State Act; (b) any person wilfully or without anyreasonable excuse disobeys any summons, requisition or lawful written order issued under the provisions of the State Act; (c) any employer who, withoutsufficient cause, fails to pay to a co-operative society amount deducted by him from its employee within a period of fourteen days from the date on which such deduction is made; (d) any officer or custodian whowilfully fails to handover custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a substantive impact on the provisions covered by the proviso to Article 368(2). There is also a clear impact on Article 246(3), which deals with the exclusive powers of the State Legislature and, therefore, there is a change brought about in regard to the provisions contained in Chapter I of Part XI of the Constitution, which is contained in clause (b) to the proviso of Article 368(2). 6. Having found that these provisions cannot survive, the question arises whether Article 243ZR and 243ZS, can continue to exist. What is pressed into service, however, in this regard, by learned Attorney General, is that the Doctrine of Severability would apply. 7. The learned Attorney General has contended that Parliament, vide Article 243ZR, has dealt with multistate cooperative societies, in regard to which, it has exclusive legislative competence and, instead of duplicating the provisions, the device of reference is utilised and Article 243ZR really manifests Parliaments resolve to apply the very same provisions as was intended for cooperative societies covered by Entry 32 of List II, viz., cooperative societies made under a law passed by the State Legislature. It would be no different, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he validparts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, Vol. 82, p. 156; Sutherland on Statutory Construction, Vol. 2 pp. 176-177. 2. If the valid and invalid provisionsare so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. Vide Cooley's Constitutional Limitations, Vol. I at pp. 360-361; Crawford on Statutory Construction, pp. 217-218. 3. Even when the provisions which arevalid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat if such amendment seeks to make any change in- (a) article 54, article 55, article73, article 162, article 241 or article 279A or (b) Chapter IV of Part V, Chapter V ofPart VI, or Chapter I of Part XI, or (c) any of the Lists in the SeventhSchedule, 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. (3) Nothing in article 13 shall applyto any amendment made under this article. (4) No amendment of this Constitution(including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground. (5) For the removal of doubts, it ishereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat is applied is that if it is possible to construe a statute so that its validity can be sustained against a constitutional attack it should be so construed and that when part of a statute is valid and part is void, the valid part must be separated from the invalid part. This is done by applying the doctrine of severability. The rationale of this doctrine has been explained by Cooley in the following words: [ Cooley: Constitutional Limitations, (8th edn.) Vol. I pp. 35960.] It will sometimes be found that an act of the legislature is opposed in some of its provisions to the Constitution, while others, standing by themselves, would be unobjectionable. So the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case the portion which conflicts with the Constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity. Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence of Parliament insofar as it relates to provisions other than those mentioned in clauses (a) to (e) of proviso to Article 368(2) but in respect of the amendments 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. 70. Is there anything compelling in the proviso to Article 368(2) requiring it to be construed as excluding the doctrine of severability to such an amendment? It is settled rule of statutory construction that the proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case and that where the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) 1 SCR 933 : AIR 1965 SC 845] are apposite: (SCR p. 940) In our opinion, the two parts of Article 368 must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged. xxx xxx xxx 73. A similar situation 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d against the limitation on the amending power. A comparison of the language used in clause (4) of Section 29 with that of Article 368(2) would show that both the provisions bear a general similarity of purpose and both the provisions require the passing of the Bill by special majority before it was presented for assent. The same principle would, therefore, apply while considering the validity of a composite amendment which makes alterations in the First and Fourth Schedules as well as in other provisions of the Constitution requiring special majority under Article 368(2) and such a law, even though passed by the simple majority and not by special majority, may be upheld in respect of the amendments made in the First and Fourth Schedules. There is really no difference in principle between the condition requiring passing of the Bill by a special majority before its presentation to the President for assent contained in Article 368(2) and the condition for ratification of the amendment by the legislatures of not less than one-half of the States before the Bill is presented to the President for assent contained in the proviso. The principle of severability can be equally applied to a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as follows: STATEMENT OF OBJECTS AND REASONS The co-operative sector, over the years, has made significant contribution to various sectors of national economy and has achieved voluminous growth. However, it has shown weaknesses in safeguarding the interests of the members and fulfilment of objects for which these institutions were organised. There have been instances where elections have been postponed indefinitely and nominated office bearers or administrators remaining in-charge of these institutions for a long time. This reduces the accountability of the management of co-operative societies to their members. Inadequate professionalism in management in many of the co-operative institutions has led to poor services and low productivity. Cooperatives need to run on well-established democratic principles and elections held on time and in a free and fair manner. Therefore, there is a need to initiate fundamental reforms to revitalize these institutions in order to ensure their contribution in the economic development of the country and to serve the interests of members and public at large and also to ensure their autonomy, democratic functioning and professional managemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears from the date of election in respect of the elected members of the board and its office bearers; (d) providing for a maximum time limit ofsix months during which a board of directors of co-operative society could be kept under supersession or suspension; (e) providing for independent professional audit; (f) providing for right of information to the members of the co-operative societies; (g) empowering the State Governments to obtain periodic reports of activities and accounts of co-operative societies; (h) providing for the reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on the board of every co-operative society, which have individuals as members from such categories; (i) providing for offences relating to co-operative societies and penalties in respect of such offences. 4. It is expected that these provisionswill not only ensure the autonomous and democratic functioning of co-operatives, but also ensure the accountability of management to the members and other stakeholders and shall provide for deterrence for violation of the provisions of the law. 5. The Bill seeks to achieve the aboveobjectives. (Emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laring the other set of provisions as invalid, the remaining provisions would remain a complete Code, independent of the rest, then, the distinct and separate provisions, which manifests a complete Code, can become enforceable. 22. The third Rule provides that even if they (the provisions) are distinct and separate, if they all form part of a single scheme, which is intended to be operative as a whole, then, also the invalidity of a part, will result in failure of a whole. In Kihoto Hollohan (supra), this Court, after bearing in mind the Rules, apparently laid down in R.M.D. Chamarbaugwalla (supra), has proceeded to clearly articulate (in paragraph-76) the test, inter-alia, viz., as to whether, after severance, what survives, can stand independently and is workable. 23. In this regard, it is plain from the Statement of Objects and Reasons, that Parliament was fully aware that Entry 32 clothed the Legislatures of the State with exclusive legislative power to make laws in regard to cooperative societies, which were not multistate cooperative societies. Parliament was fully aware that laws had already been made by State Legislatures, but yet, the object was to usher in reforms b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enth Schedule, even after jettisoning the provisions of paragraph-7. It was found that pronouncing the said provision as infirm had no impact on the workability of the other provisions which related to and provided for remedies against the evil of defection. 27. The question boils down to this. Are the provisions of Article 243ZR and 243ZS independent provisions and workable? For the sake of clarity, the provisions are referred in question namely Article 243ZR and 243ZS. 243ZR. Application to multi-State cooperative societies. The provisions of this Part shall apply to the multi-State co-operative societies subject to the modification that any reference to Legislature of a State , State Act or State Government shall be construed as a reference to Parliament , Central Act or the Central Government respectively. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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