Once Substantive Provisions Of Part IXB Are Held Unconstitutional, Provisions On Multi-State Co-operative Societies Can't Be Saved : Justice Joseph's Dissent

The Doctrine of Severability must apply on surer foundations, said Justice KM Joseph while opining that the entire Part IXB of the Constitution dealing with co-operative societies is liable to be struck down.The majority judgment by Justice RF Nariman (Justice BR Gavai concurring) invoked doctrine of severability to hold that Part IXB of the Constitution of India is operative insofar as multi-State co-operative societies are concerned. However, Justice Joseph, in his dissent, held that the provisions of Part IXB dealing with multi-state co-operative societies cannot be saved."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.", Justice Joseph said.The judge expressed his complete agreement with the majority judgment reasoning and conclusion in regard to the provisions relating to Article 240ZI to Article 243ZQ and Article 243ZT. But according to him, the Doctrine of Severability cannot be applied to sustain Article 243ZR and Article 243ZS to the multistate cooperative societies operating in various states and Union Territories.Referring to R.M.D. Chamarbaugwalla and another v. Union of India , the judge said that there are three Rules to apply the doctrine of severability:It is the intention of the Legislature, that is the determining factor. The question to be asked is, whether the Legislature would have enacted the valid Part, if it had known that the rest of the Statute was invalid.To enquire whether the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another. If the seemingly valid provisions are so distinct and separate, that after declaring 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 enforceableEven 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.The judge applied these Rules to Part IXB and observed as follows: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 show that the substantive provisions, which actually conditioned the legislative power, among other things, was directed against the State Legislatures.28. Both these provisions are entirely dependent upon the provisions contained in Article 243ZI to 243ZQ. This is for the reason that both these provisions expressly provide that the 'provisions of this part', which clearly means the foregoing provisions, which are contained in Article 243ZI to 243ZQ, are to apply in regard to multistate cooperative societies and to Union Territories with the modifications, which are indicated therein. There can be application and modifications of something which exists. There cannot be either, when the elaborate provisions are to be treated as not born30. 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 provisions the court would have to resurrect the dead provisions contained in Article 243ZI to 243ZQ and Article 243ZT. The Doctrine of Severability must apply on surer foundations. It is my view that unless the provisions, which have been found unconstitutional, are kept alive, Articles 243R and 243ZQ are plainly unworkable.How majority judgment applied doctrine of severability? The majority judgment struck down Part IXB insofar as it applies to...

Once Substantive Provisions Of Part IXB Are Held Unconstitutional, Provisions On Multi-State Co-operative Societies Can't Be Saved : Justice Joseph's Dissent

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