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Guj HC: Certain provisions of 97th amendment unconstitutional

Claims that India has no legislative competence to enact law for co-operative society which is exclusively a state subject under the constitution

BS Reporter  |  Mumbai/ Ahmedabad 

Gujarat High Court on Monday declared certain provisions of the 97th amendment to the Constitution of India, dealing with cooperative societies, as unconstitutional and ordered them to be quashed.

The judgement was passed by Chief Justice Bhaskar Bhattacharya and Justice J B Pardiwala acting on a public interest litigation (PIL) filed by Rajendra Shah of Consumer Protection Analytic Committee (CPAC ), claiming that Union of India has no legislative competence to enact Law for co-operative society which is exclusively a state subject under the Constitution of India. Counsel for the petitioner Masoom Shah and Vishwas Shah said that exact provisions declared unconstitutional would be known only after receipt of copy of the order. They however, said that court has held that 97th amendment was an infringement on the basic structure of fedralism where only state can make law for cooperative societies.

The 97th amendment with regard to promotion of cooperatives by the state government was passed by the Lok Sabha and Rajya Sabha in December 2011, had received Presidential assent in January this year, published in Gazette of India on the next day and the came into affect from February 15.

During the course of argument, the petitioners had argued that the 97th Constitutional amendment is not required as it legislates and encroaches on the occupied field of the State legislation thus it's a patent case of transgression Constitutional power. The Constitution amendment Act, cannot be used as a device to indirectly legislate on the State Entry, when directly it is prohibited, they argued.

The PIL further alleged that the 97th Amendment violates the procedure as laid down in articled 368 (2) for an amendment of the Constitution.

"As per Proviso of the Article 368, if Parliament intents to amend or delete, any of the Lists in the Seventh Schedule, such Amendment shall require to be ratified by the Legislature of not less than one half of the States by resolution to the effect passed by those Legislatures before the Bill making provision for such Amendment is presented to the President for Assent," it said. "Therefore, for amending or deleting any Lists of Seven Schedule ratification of State Legislative is unavoidable... and is basic requirement," the petitioner had claimed.

First Published: Mon, April 22 2013. 20:18 IST
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