The Supreme Court on 20-07-2021 struck down certain parts of 97th Constitutional amendment act but upheld the validity of remaining part of the amendment by doing so saved the amendment. The parts which were struck down by the honourable court dealt with setting up of the cooperative society and their functions. The judgement was 2:1 majority verdict. It upheld the judgement of Gujrat High Court which was given by HC in 2013 in which the Amendment was struck down to the extent it introduced part IX B in Indian constitution to deal with cooperative society. The 97th Constitutional amendment dealt with constitution and effective functioning of cooperative society.

The judgement was given by a bench of Justice K M Joseph, R F Nariman and B R Gavai. They struck down part IX B of The Constitution of India but did not stuck down whole of the 97th Amendment rather they saved remaining part of the amendment. But Justice K M Joseph gave dissenting judgement in this regard as he struck down whole of the 97th amendment.

The 97th Constitutional amendment was passes in December 2011 by the parliament of India and it came into effect on 15 Feb 2012. It required at least one-half state legislature’s rectification as it dealt with an exclusive state subject. As per Article 368(2) one half of states legislatures’ rectification is required when making changes to an entry in the state list.

The court noted that Part IX B laid down several mandates which restricted the power of state legislature in relation of making rule for cooperative society. The court held the 97th amendment had the effect of encroachment upon state legislature by parliament of India as it denuded states of their exclusive power to enact law on state subject.

The court said the Co-Operative society is still in the List II of the 7th schedule of the constitution so they are state subject and if parliament wanted to go with amendment they should first have had brought Co-Operative society in either List I or List II of constitution or they should have taken rectification by majority of states. But without doing so the parliament violated the provisions of Article 368 (2) of the Constitution. The court stated the doctrine of doctrine of colourable legislation states parliament can’t do indirectly, what it is not permitted to do directly.

Justice R F Nariman wrote the majority judgement in this case and held that exclusive legislative power of states given by constitution under seventh schedule List II form the basic structure of constitution.

Name of the Case:- Union Of India Vs Rajendra N Shah & others.

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