Guj HC: Guj HC:

The Gujarat high court has held that parts of the 97th amendment to India’s Constitution of 2012, which made the right to form societies fundamental, were unconstitutional for usurping state power.

A bench of Chief Justice Bhaskar Bhattacharya and Justice J B Pardiwala yesterday held that some provisions of the 97th amendment, which was made law in January 2012 and notified on February 2012, violated the principle of federalism reported the Business Standard and the PTI.

The public interest litigation’s (PIL) petitioner, Rajendra Shah of Consumer Protection Analytic Committee (CPAC), who was represented by advocates Masoom Shah and Vishwas Shah, argued that “‘Union’ of India has no legislative competence to enact Law for co-operative society which is otherwise exclusively State Subject” and “shakes the very foundation of the Union of States ie Federal Structure”.

The 97th amendment’s aim was to “enhance public faith in cooperatives” and protect them from “avoidable political or bureaucratic influence”, by making co-operatives a fundamental right under Article 19(l)(c) of the Constitution and inserting article 43B that states should promote co-operative societies.

Some states had ratified the amendment before 14 February 2013 but it would take effect even without ratification. Some cooperatives have welcomed it as enshrining the right to form cooperatives as a fundamental right, while state governments have seen it as an attack on their sovereignty of regulating the societies.

The petition stated:

“by impugned Amendment on the State’s Subject, Parliament has not given Opportunity to reject the same as per said Proviso of the Art. 368, in view of Subject Amendment if State Legislature is not pass or ratify or reject it, then, under such situations, such Amendment automatic coming in to force and it shall be binding to All States.

By such effect of said Amendment, Power of State Legislative under Proviso of U/A. 368 to ratify or reject is taken away. This is nothing but Parliament has interfered and encroached Power of Legislature of State.”

Co-operatives, which operate in sectors ranging from banking to local housing and farming, have over 200 million members in India, according to the petition.

The full text of the judgment was not yet available at the time of going to press.

Download and read petition (RTF document)

Photo by Kaushik Patel

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Like +0 Object -0 Oxford, here I come again! 23 Apr 13, 17:03
Does this striking down of the relevant provision as unconstitutional by the Guj HC hold good for the other states as well?
Refer to 226(2)
Refer to SC judgment (Kusum Inglots, by J Sinha) as well
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Like +0 Object -0 Queen Mary LLM Candidate 24 Apr 13, 18:02
As far as I know, a central law which is declared unconstitutional by one High Court will cease to operate throughout the Country.
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Like +0 Object -0 Guest 24 Apr 13, 22:19
@ Queen Candidate--- Legally speaking, it matters little what YOU think is correct or wrong answer, unless you support it with legal authorities.
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