In case of UOI vs. Rajendra N.Shah, the Supreme Court struck down 97th amendment partially on 20th July 2021.
UOI vs. Rajendra N.Shah
‘Fundamental Right To Form Cooperative Societies’, ‘Article 43B’: Remnants Of 97th Constitutional Amendment After Supreme Court Judgment
the Supreme Court annulled most of the provisions introduced by the 97th Constitutional Amendment as the necessary ratification by the States pursuant as per Article 368(2) of the Constitution had not been obtained.
The majority (2: 1) also stated that Part IXB is operational with regards to multi-state co-operatives. But, there are a couple of important provisions placed by the 97th Amendment that have not been touched by the ruling and, therefore, still remain part of the Constitution.
Section 2 of the Amendment Act added the word “cooperative societies” to Article 19 (1) (c), that now reads as follows:
All citizens have the right to form associations or trade unions or cooperatives.
The amendment also introduced Article 43B (in Directive Principles of State Policy) which states that “States shall endeavor to promote voluntary training, self-employment, democratic control and professional management of cooperative societies”.
The provisions of the 97th amendment relating to Articles 19 and 43B are not affected as the appeal before the Court concerned only Part IXB inserted by the 97th amendment.
However, Justice RF Nariman’s ruling addresses the thesis raised by one of the parties that the consequence of holding that the 97th Constitution Amendment Act is null and void due to lack of ratification would make the entire amendment stillborn, so no part of the the amendment can survive.
“We reject this argument for two reasons. If the doctrine of separability were not to apply for the reason mentioned above, then the majority judgment in Kihoto Hollohan would be wrong. This same reasoning would then render the entire 52nd amendment of the Constitution, that inserted the tenth Schedule to the Constitution of India, constitutionally invalid as in that case the entire amendment would have to be declared null for lack of ratification, which would be contrary to the ruling of the majority in Kihoto Hollohan , the changes made to Article 19 and the addition of Article 43B, which was not invoked or alleged either before the High Court or before us, should also be annulled. “, observed the Court. According to Judge KM Joseph’s dissent, to uphold the provisions (243ZR and 243ZS) the court would have to resurrect the dead provisions contained in Articles 243ZI to 243ZQ and Article 243ZT.
The majority ruling accepted the thesis raised by the Center according to which instead of having two separate parts within Part IXB, one concerning state cooperative companies, the well-known legislative device of the “reference” to the existing provisions was instead used by the Article 243 ZR and that therefore the issue should be considered as if a separate part had been enacted within Part IXB regarding multi-state cooperatives.
The legislative device of incorporation by referral is a known device where the legislator, instead of repeating the provisions, incorporates them to apply it to other subjects (in this case the multi-state cooperative societies) for convenience.
This means that the Party’s provisions (although not applicable to cooperative societies) will continue to apply to multistate cooperative societies, subject to the change that any reference to ” Legislature of a State”, “State Act” or State Government “must be interpreted as a reference to “Parliament”, “Central Act” or “Central Government” respectively. Furthermore, the provisions of this part apply to “multi-state cooperatives” operating in the territories of the Union with the modification suggested in article 243 ZS.
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