Is Ratification By States Needed For Constitution Amendment On Cooperative Societies? Supreme Court Hears Appeals Against Gujarat HC Judgment Striking Down 97th Amendment

The Supreme Court on Wednesday heard detailed arguments in the appeals filed by the Union of India challenging Gujarat High Court's judgment striking down certain provisions of the 97th constitutional amendment relating to cooperative societies.The Gujarat High Court had quashed the amendment for no recourse being taken to Article 368(2) of the Constitution providing for ratification by the majority of the State Legislatures.A three-judge bench of Justice RF Nariman, Justice KM Joseph, and Justice BR Gavai posted the matter for hearing tomorrow, after hearing extensive arguments by Attorney General KK Venugopal, Adv Masoom Shah and Senior Adv Prakash Jain.A Division Bench of Justice Bhaskar Bhattacharya and Justice JB Pardiwala of the Gujarat High Court had in April 2013 passed the impugned judgement on a PIL filed seeking quashing of the Constitution [97th amendment] Act, 2011 introducing part IXB, as ultra vires the Constitution of India.Submissions made by AG On Behalf of Union of India: Attorney General KK Venugopal appearing for Union of India began his submissions stating that "I had cited three cases, Shankari Prasad, Sajjan Singh and Kihoto, but there is a very interesting discussion on Justice Wanchoo on this, that is there are three dissenting judgements in the Golaknath judgement".AG submitted "The majority had held that Article 13 is only so far constitutional amendments are concerned under 368, they are the procedure and are in the nature of law and not constitutional law. Therefore they had said all these amendments were hit by Article 13 and these were struck down. However, the chaos would have been so great they had to resort to prospective overruling.""So far as these 3 judges are concerned, they had held that though there is procedure of amendment in article 368, the amendment is in nature of constitutional law and not mere law. So Article 13 won't apply." AG added."The question was what about article 32 A and 31 B as they had been added as amendment without reference to proviso to Article 368 (2) in which case they would have to go through gamut of ratification of half the states. This was dealt with in the Golaknath judgement, by Mr Wanchoo elaborately" AG added.AG pointed out that so far as 9th schedule is concerned, there are 285 Acts and major acts including, Railway companies Emergency provision Act, Mines and Minerals Act, etc. All these acts have been withdrawn from competence of the High Court under 226 and competence of Supreme Court under Article 32 and 136. Inspite of this, so far as Shankari Prasad and Sajjan Singh is concerned they have held that there is no effect or impact."In this backdrop my Lordships will have to consider my case as well", AG said. The Bench stated that "If you look at Shankari prasad, etc they dealt with arguments based on impact on Article 226 and 32. Article 226, 32 are remedies provided in the Constitution, they are actually meant to enforce fundamental rights. ""In this case, what we're dealing with in this case is power which is granted. The real power is under Article 246, but 246 incidentally is also independently protected under proviso to Article 368", the Bench added."Now take for instance Article 240 3J, which has been inserted by amendment, provides that State may make a law and shall provide by law that number of members of committee shall not exceed 24. Take a case where tomorrow when State Legislature wants to increase or decrease the maximum number , it obviously becomes impossible on basis of Marbury vs Madison, of course you can't have an ordinary legislation going against the Constitution so it will be struck down." Justice Joseph said."The minimal intervention has been done to bring out uniformity throughout the country including so far as Parliament itself is concerned. Look at the vast amplitude of requirements in this act, and see So far as the amendment is concerned, see if its minimal or not.Therefore there is a vast ocean of provisions dealing with minutely every aspect of cooperation. " AG stated reading out chapters from the Act.Justice Joseph stated that " the question is when you have a power, either to exercise or refuse to exercise, then you put a gun on the State Legislature saying that you have a power to make the law. The essence of the power is also to have a discretion whether to exercise it or not. It is for Legislature as a sovereign body, and you cannot place any limits on a sovereign body like Legislature in law making, subject to those found in the constitution as expounded by the Courts. The limits on a sovereign legislature like a State Legislature in a quasi federal set up are well settled. Here through this method you have taken by amending the Constitution. For example supposing you had made these provisions, in exercise of legislative power, it'd have been struck down.""For example article 240 provides for legislature of seats for Scheduled caste and Schedule Tribes. Can you say that in every part of ...

Is Ratification By States Needed For Constitution Amendment On Cooperative Societies? Supreme Court Hears Appeals Against Gujarat HC Judgment Striking Down 97th Amendment

Srishti Ojha

This is a premium content
Available exclusively to
Our subscribers

INR 1099+GST

Tags

Srishti Ojha

Is Ratification By States Needed For Constitution Amendment On Cooperative Societies? Supreme Court Hears Appeals Against Gujarat HC Judgment Striking Down 97th Amendment

Srishti Ojha

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

Tags

Srishti Ojha

This is a premium content
Available exclusively to
Our subscribers