The delay in the implementation of the crucial 97th Constitutional amendment has forced me to write to you- the first citizen of the country. I appeal to you to invoke Article 355 to ensure the states implement 97CAA without further delay.
“Parliament, with a view to enhance public faith in the co-operative institutions and to insulate them to avoidable political or bureaucratic interference brought in Constitutional (97th Amendment) Act, 2011, received the assent of the President on 12.01.2012, notified in the Gazette of India on 13.01.2012 and came into force on 15.02.2012.” [The Supreme Court Of India in Thalappalam Ser. Coop. Bank Ltd.& … vs State Of Kerala & Ors., decided on 7 October, 2013 Bench K.S. Radhakrishnan, A K Sikri JJ in CIVIL APPEAL NO. 9017 OF 2013]
The Constitution (97th Amendment) Act 2011 (for short 97CAA) made integrated three fold amendments to the Constitution of India concerning the Indian Cooperatives;
1.To Fundamental Rights [Part III]
2.To directive principles of the State Policy [Part IV]
3.To body of the Constitution of India: inserting New Part IXB: The Cooperative Societies
Conferring forming cooperative society a fundamental right to citizens the Parliament as a follow-up step inserted new directive principle of State Policy under Article 43B that “The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.”
The Parliaments’ resolve to boost up growth of Indian Cooperative Movement through constitutional reforms which will enhance public faith in the co-operative institutions and will insulate them to avoidable political or bureaucratic interference” has been very effectively backed up by insertion of an exclusive part in the Constitution of India namely “Part IXB: The Cooperative Societies” In fact it was candidly admitted by the Government of India in these words in the statement of objects and reasons moving the Constitution ( 111th Amendment ) Bill 2009 on 11th November 2009; with a view to bring the necessary reforms, it is proposed to incorporate a new Part in the Constitution so as to provide for certain provisions covering the vital aspects of working of co-operative societies like democratic, autonomous and professional functioning.
Article 243ZT of this Part of the Constitution demonstrated this resolve in no uncertain words;: “243ZT. Notwithstanding anything in this Part, any provision of any law relating to co-operative societies in force in a State immediately before the commencement of the Constitution (Ninety-seventh Amendment) Act, 2011, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is less.’
It is a constitutional proclamation that any Cooperative Society Law of any State or Union Territory inconsistent with constitutional provisions as per “Part IXB: The Cooperative Societies” shall be inoperative after a year of coming in to force as notified in the Gazette of India. This date for the State Laws to align to all provisions of Part IXB got crystallized as 14.02.2013.
Those who are in touch with happenings under Cooperative Society Laws of the Country, know that the States are lukewarm to perform constitutional duties towards the Constitutional Mandates laid down under “Part IXB: The Cooperative Societies”
As a matter of fact Punjab High Court directed Chandigarh administration to expedite implementation of 73CAA.
https://www.indiancooperative.com/tag/97th-caa/
The State of Maharashtra has belatedly enacted the Maharashtra Cooperative Societies (Amendment) Act 2013 in August 2013, having quite a few diametrically opposite provisions to Constitutional Mandates under 97CAA. For example Constitution wants States to make cooperatives autonomous but the State has now conferred power on the Registrar even to specify the internal regulations of cooperative society(bye-Laws) at his sole discretion which is worldwide left to members as these are contracts inter se the members and State has no case to meddle into.
Article 245 of the Constitution of India unequivocally proclaims that ; “ Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.” If any State in breach of the provisions of this Article enacts law which has provisions contrary to any provision under any Articles of the Constitution a million dollar question is whether the Parliament or President has any constitutional power to direct the States to take actions so as to uphold the sanctity of the Constitutional Mandates?
Article 355 of the Constitution of India casts twin magnanimous duties on Union Government (the Central Executive) namely ” It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.”
The first duty can be well appreciated and it requires no discussion neither it is relevant to this area of concerns.
“No organ of a State or any individual would be able to fulfill the constitutional obligation cast on it, unless the Constitution also confers adequate powers on it for fulfilling the obligation.” Dr Ambedkar explained the basis of Article 355;
So one can hope to find in the Constitution of India, express powers vested in the Union Government to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.” Enacting laws is a legislative function and we are not debating on that as the constitutional duty is with reference to “running the government – carrying out the duties of the State Executive ” and not the functions of the legislature of the State. If any State passes a law which is in conflict with Constitutional provision to strike it as unconstitutional is a judicial function.
But if the State Executive is in breach of constitutional duty on account of its inaction as required to be taken under a specific constitutional provision, is it not the same thing as “the government of the concerned State is not carried on in accordance with the provisions of this Constitution especially as laid down in “Part IXB: The Cooperative Societies” ? After all the government is comprised of various departments having duties to perform under statues which are enacted in view of a specific Constitutional Mandate.
Let’s take as an illustration a specific issue of election to the managing committees of cooperative societies to be organized by a State Cooperative Election Authority before the expiry of the tenure of existing committee. In the State of Maharashtra this constitutional duty enjoined under the M C S Act 1960 on account of Constitutional Mandate under “Part IXB: The Cooperative Societies” has not been discharged since the SCEA has not been given its head by the State despite a direction by the Bombay High Court on 4th December 2013 to do so with in 15 days of the direction. Is the Union not guilty of deceleration of its duty enjoined under “Part IXB: The Cooperative Societies” of the Constitution of India? Is the only punishment is through ballot after 5 years?
Dr Ambedkar speaking in the Constituent Assembly on Article 355, expressed his expectations on the part of the President of India in these words:”I hope the first thing he ‘will do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution.”
The Union Government has been assigned a duty to ensure that “things happen in every State the way in which they were intended to happen in the Constitution? Or does the scheme of constitution expect a citizen to complaint to the Judiciary that the State Executive is not ensuring that things were happening in the way in which they were intended to happen in the Constitution.” Commit a crime of judicial over reach?
What Dr Ambedkar meant in these words namely that ”I hope the first thing he (the President) ‘will do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution.” meant that in the cited example, the first thing the President ‘will do would be to issue a mere warning to States having not conducted elections to the managing committee where they have fallen due already but not conducted as a lapse on the part of the State. Is that it is too small a breach of constitutional provision by the State that it does not warrant President’s intervention of the level of dismissing the Government?
Several wrong full dismissals of Governments on whole sale basis, as political impropriety have taken place, but not a single warning is known to have been issued to State Governments for not complying with such vital Constitutional Mandate. Is it another kind of political expediency ?
Was it not an issue important enough for the President of India to invoke provision of Article 356 (1)(a) to assume to himself the power exercisable by the Governor namely to appoint a head of SCEA, directing election to the managing committee of cooperative societies whose tenure was going to expire shortly? India does not have hundreds of States that it was a herculean tasks for President’s office to handle. It’s already more than 30 months that the 97 CAA laid down this duty on every State but no attempt has been made to comply with it. Most provisions of the Maharashtra Cooperative Societies (Amendment) Act 2013 cannot be implemented as on 100 matters of this enactment the state is to frame rules which make the amendments to main Statute operational. This has also not been attempted. Draft Rules issued nearly with a year’s delay, are pending for over 6 months.
Is it that as the heading of the Article 356 suggests namely “Provisions in case of failure of constitutional machinery in State.” Is it that there is a “wait” for a breakdown to happen? Is it intended under Article 355 that the President intervenes with proclamation of the PRESIDENT rule only when the State Government has stopped functioning completely and not in minor matters howsoever, important for common man.
The Executive of the State (any department of the State Government not appointing a constitutional authority at State Level is not an issue covered within the meaning of a duty contemplated under the Article 355 namely ‘things in the States shall happen in the way in which they were intended to happen in the Constitution”
What exactly is the Constitutional Machinery Mr. President that the UNION is waiting to breakdown? Is this not a breakdown of a State Machinery in relation to regulating a globally acclaimed social and economic sector the cooperatives, that even after 2 and half years of the Parliament enacting 97CAA the State is operating as per law as it stood prior to this historical enactment passed unanimously by both the houses of Parliament. Most cooperators are aware that far more important reforms were suggested in the nineties by several official Committees in the nineties. Only very few of them found place in the Constitution ( 111th Amendment ) Bill 2009 i.e. after two decades and 5 years are gone bye and cooperatives have a legal frame work of the nineties.
Let me recall Para 7 of Statement Of Objects And Reasons placee in the Parliament moving the 111th Amendment Bill 2009 on 22-11-2009 namely; ”The Central Government is committed to ensure that the co-operative societies in the country function in a democratic, professional, autonomous and economically sound manner.” What a commitment and what the actions are of Central Government!!! Surely this was not the reason for fall of UPA-II. Hope it was so.