By I C Naik
The Apex Court on March 19 2015 has thrown a huge opportunity for the all India Apex Cooperative body NCUI to become a game changer for the Indian Cooperative Movement. The Bench has extensively drawn upon the wisdom of international legal luminaries on the clarity of the role of the judiciary to discern the constitutional mandates/imperatives which are lacking in the statutory enactments triggered by the constitutional amendments.
While examining the veracity of a majority decision of a cooperative board of Asian dairy giant Amul in the context of the constitutional status now conferred to cooperatives vide the Constitution (97th Amendment ) Act 2011 (97CAA) the Apex Court rejected the ratio laid by several of its own decisions on the restrictions recognized by the judiciary not to read the law beyond the explicit boundaries of statutory provision. The Bench referred to its earlier decision in Jyoti Basu and others v. Debi Ghosal and others, (1982) 1 SCC 691 on this constraint and brought out as to how, post 97CAA this restraint is not a reality.
It was true then that “a right to elect is not a fundamental right nor a common law right; it is a statutory right, and any question relating to election has to be resorted within the four corners of the Act” the Bench endorsed. Now “In the background of the constitutional mandate under 97CAA, “the question is not what the statute does say but what the statute must say”. If the Act or the Rules or the Bye-laws do not say what they should say in terms of the Constitution, it is the duty of the court to read the constitutional spirit and concept into the Acts.”
Borrowing from “Statutory Interpretation” by Francis Bennion, 6th Edition, p.137 [Francis Alan Roscoe Bennion 2 January 1923 – 28 January 2015) ] the Bench quoted at Para 49 of the order “The truth is that courts are inescapably possessed of some degree of legislative power. Enacted legislation lays down rules in advance.
The commands of Parliament are deliberate prospective commands. The very concept of enacted legislation postulates an authoritative interpreter who operates ex post facto. No such interpreter can avoid legislating in the course of exercising that function. It can be done by regarding the breadth or other obscurity of the express language as conferring a delegated legislative power to elaborate its meaning in accordance with public policy (including legal policy)
The opportunity opened up to NCUI is to take Cooperative Movement to infinitive heights not imagined over last more than 100 years. The whole gamut of cooperative society laws enacted by the legislatures of the states post 97CAA is now open to its immense research to identify the gaps and persuade all concerned including the Apex Court to focus on aligning them to the nitty-gritty of the National Policy on Cooperatives announced by the Department of Agriculture and Cooperation, Ministry of Agriculture, Government of India and adopted in March, 2002.
As pointed out by the Apex Court in Para 8 of the said Order this policy is wholly based on the definition, values and principles stated in the International Cooperative Alliance Statement on the Cooperative Identity adopted in Manchester, United Kingdom on 23.09.1995. And finally the Court observed “97th Amendment to the Constitution of India, in fact, gave a constitutional frame to this policy.”
Now onwards it should be a goal of NCUI to focus its total attention exclusively on this objective for several years to come. Are you listening Dr. Chandra Pal Singh Yadav? This post is to commemorate your splendid “ghar-wapsi” to the President’s Chair of this coveted Institution.