R.F.NARIMAN,J. - (1.) Applications for intervention are allowed. Leave granted.
(2.) These appeals raise an important question as to the vires of the Constitution (Ninety Seventh Amendment) Act, 2011 [the "Constitution 97th Amendment Act"] which inter alia introduced Part IXB under the chapter heading The Co-operative Societies'. The Constitution 97th Amendment Act was passed by the requisite majority of the Lok Sabha on 27.12.2011 and the Rajya Sabha on 28.12.2011. The Presidential assent to the aforesaid Amendment followed on 12.01.2012 and the said Amendment was published in the Official Gazette of India on 13.01.2012, coming into force with effect from 15.02.2012. The important question raised in these petitions and decided by a division bench of the Gujarat High Court by the impugned judgment dated 22.04.2013 is whether Part IXB is non est for want of ratification by half of the States under the proviso to Article 368(2). The impugned judgment of the High Court has declared that the said constitutional amendment inserting Part IXB is ultra vires the Constitution of India for want of the requisite ratification under Article 368(2) proviso, which however will not impact amendments that have been made in Article 19(1)(c) and in inserting Article 43B in the Constitution of India.
(3.) The co-operatives movement in India can be legislatively traced to two British Acts, namely, the Cooperative Societies Act, 1904 and the Co-operative Societies Act, 1912. Under the Government of India Act, 1919, the subject 'co-operative societies' was contained in entry 13 of the Provincial list. This was continued by the Government of India Act, 1935, 'co-operative societies' being contained in entry 33 of the Provincial list. This was then further continued by the Constitution of India, this time the same entry falling within Schedule VII List II, i.e., the State List as a part of entry 32 thereof. It is therefore important at this stage to set out the constitutional scheme insofar as it applies to co-operative societies thus: Art 19. Protection of certain rights regarding freedom of speech, etc.- (1) All citizens shall have the right- xxx xxx xxx (c) to form associations or unions or co-operative societies; xxx xxx xxx Art 43B. Promotion of co-operative societies.- The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies. SEVENTH SCHEDULE (Article 246) List I-Union List xxx xxx xxx 43. Incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations, but not including co-operative societies. 44. Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities. xxx xxx xxx List II-State List xxx xxx xxx 32. Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; cooperative societies. xxx xxx xxx ;