Union of India vs Rajendra N. Shah and Another

Constitution of India, 1950 – Part IXB (consisting of Arts.243ZH to 243ZT) inserted by the Constitution 97th Amendment Act and Art.368(2) proviso – Constitutional amendment inserting Part IXB found to be ultra vires the Constitution for want of requisite ratification under Art.368(2) proviso – Whether, even if Part IXB is constitutionally infirm qua co-operative societies operating within a State, it would yet operate qua multi-State co-operative societies and in Union territories which are not States – Held (per R.F. Nariman, J. [for himself and B.R. Gavai, J.]) (per majority) – The Constitution 97th Amendment Act is void for want of ratification but it cannot be said that this would render the entire amendment stillborn – The Statement of Objects and Reasons for the Constitution 97th Amendment Act makes it clear that the Scheme qua multi-State cooperative societies is separate from the Scheme dealing with “other cooperative societies”, Parliament being empowered, so far as multi-State cooperative societies are concerned, and the State legislatures having to make appropriate laws laying down certain matters so far as “other cooperative societies” are concerned – Part IXB of the Constitution is operative insofar as it concerns multiState co-operative societies both within the various States and in the Union territories of India – Held (per K.M. Joseph, J.) (dissenting) – Doctrine of Severability must apply on surer foundations – Provisions relating to Art.243ZI to Art.243ZQ and Art.243ZT, are unconstitutional for non-compliance, with the mandate of the proviso to Art.368(2) of the Constitution – However, it cannot be said that the Doctrine of Severability will apply to sustain Art.243ZR and Art.243ZS to the multistate cooperative societies operating in the Union Territories, and that, it would not apply to cooperative societies confined to the Union Territories – Once the Court has painted the substantial provisions (Art.243ZI to 243ZQ), with the brush of unconstitutionality, rendering those provisions, still born, the provisions contained in Art.243ZR and Art.243ZS cease to be workable and are impossible to sustain – Constitution (Ninety Seventh Amendment) Act, 2011 – Doctrine of Severability – Applicability – Co-operative Societies.

Disposing of the appeals, the Court

HELD:

Per R. F. Nariman, J. [for himself and B. R. Gavai, J.)]

1.1. Our Constitution has been described as quasi-federal in that, so far as legislative powers are concerned, though there is a tilt in favour of the Centre vis-à-vis the States given the federal supremacy principle, yet within their own sphere, the States have exclusive power to legislate on topics reserved exclusively to them. Article 246(3) read with List II of the 7th Schedule of the Constitution of India reflects an important constitutional principle that can be said to form part of the basic structure of the Constitution, namely, the fact that the Constitution is not unitary but quasi-federal in character. [Paras 57, 58][517-B-D]

1.2. Article 246 of the Constitution contains the power to legislate, the topics of legislation contained in the three Lists are described as ‘fields of legislation’. The non-obstante clause contained in Articles 246(1) and 246(2) and the ‘subject to’ clause contained in Article 246(3) lay down the doctrine of federal supremacy, i.e. topics in the State List have to give way to topics contained in the Union or Concurrent List in the event of an overlap between entries in these lists. Such overlap is not to be easily found – on the contrary, it is only in the case of an inevitable and irreconcilable conflict that the width of an entry in the State List can be curtailed by an overlap with an entry in either List 1 or List 3. [Paras 16, 17][491-G; 492-A-C]

2.1. So far as co-operative societies are concerned, it is entirely a matter for the States to legislate upon, being the last subject matter mentioned in Entry 32 List II. Entry 43 of List I, which deals with incorporation, regulation and winding up of trading corporations including banking, insurance and financial corporations expressly excludes co-operative societies from its ambit. Entry 44 List I, which is wider than Entry 43 in that it is not limited to trading corporations, speaks of corporations with objects not confined to one State. When it comes to Multi State Co-operative Societies with objects not confined to one state, the legislative power would be that of the Union of India which is contained in Entry 44 List I. [Para 23][497-E-G]

2.2. There are two separate spheres relating to multi-State co-operative societies and cooperative societies. There is no overlap whatsoever so far as the subject ‘co-operative societies’ is concerned. Co-operative societies as a subject matter belongs wholly and exclusively to the State legislatures to legislate upon, whereas multi-State cooperative societies i.e., co-operative societies having objects not confined to one state alone, is exclusively within the ken of Parliament. This being the case, it may safely be concluded, on the facts of this case, that there is no overlap and hence, no need to apply the federal supremacy principle. There is exclusive power to make laws, so far as cooperative societies are concerned, with the State Legislatures, which is contained in Article 246(3) read with Entry 32 of List II. [Para 26][499-D-F]

3.1. The power of amendment of the Constitution is contained in Article 368 of the Constitution of India. Article 368(1) refers to Parliament, which may exercise its “constituent power” to amend the constitution by way of addition, variation or repeal of any provision of the Constitution. This however has to be in accordance with the mandatory procedure laid down in the Article. So far as amendments that are made to any of the provisions of the Constitution, save and except Articles like Article 4 which expressly state that though the Constitution may be amended, no such amendment shall be deemed to be an amendment of the Constitution for the purpose of Article 368, all other articles of the Constitution may be amended but only in accordance with the procedure laid down in Sub-Article (2). However, there is a procedure when it comes to amending certain specified articles/provisions in the proviso to Article 368(2). [Paras 27, 28 and 29][500-A; 501-A-D]

3.2. Sub-clause (b) of the proviso speaks of Chapter IV of Part V which deals with the Union Judiciary consisting of the Supreme Court of India, Chapter V of Part VI which deals with the High Courts in the States, and Chapter I of Part XI which deals with legislative relations between the Union and the States. Sub-clause (c) of the proviso then speaks of any change being made in any of the lists in the 7th Schedule, which would certainly include Entry 32 List 2 of the 7th Schedule. [Paras 30, 31][501D-G]

3.3. If the subject matter of an amendment falls within the proviso, then the additional procedural requirement is that such amendment shall also be required to be ratified by the legislatures of not less than one half of the States by resolution to that effect passed by those legislatures before the bill making provision for such amendment is presented to the President for assent. Unlike the 73rd and 74th Constitution Amendments Acts, which inserted Part IX dealing with Panchayats and Part IXA dealing with Municipalities, which amendments were also ratified by not less than one half of the States, the 97th Amendment which inserts the chapter dealing with co-operative societies has not been so ratified. [Para 32][501-G-H; 502-A-B]

4.1. The ambit of Parliament’s ‘constituent power’ is referred to in Article 368(1). Though an amendment of the Constitution is the exercise of constituent power which differs from ordinary legislative power, such constituent power does not convert Parliament into an original constituent assembly. Parliament being the donee of a limited power may only exercise such power in accordance with both the procedural and substantive limitations contained in the Constitution of India. The procedural limitations are contained in Sub-Article 2 of Article 368. The substantive limitation is that a constitutional amendment can only pass muster if it does not damage the basic structure or essential features of the Constitution. [Para 33][502-B-E]

4.2. A challenge to a constitutional amendment may, therefore, be on procedural or substantive grounds. The present case concerns itself with the procedural ground contained in Article 368(2) proviso. For Article 368(2) proviso to apply, various tests have been laid down by this Court in some of its judgments. The tests laid down in Sankari Prasad Singh and Sajjan Singh are referred to in Kihoto Hollohan’s case. A reading of the judgments would indicate that the “change” spoken about by Article 368 (2) proviso in any provision of the Constitution need not be direct in the sense of adding, subtracting, or modifying the language of the particular Article or provision spoken of in the proviso. The judgments speak of a ‘change-in effect’ which would mean a change which, though not in the language of any provision of the Constitution, would yet be a change which would impact a particular article and the principle contained therein in some significant way. [Paras 36, 37 and 56][504-F-G; 516-G-H; 517-A]

5. A reading of the Builders’ Assn. of India case and the Seervai’s commentary would show that any significant addition or curtailment of a field of legislation which is contained in an Entry in List II of the 7th Schedule of the Constitution would also amount to a ‘change’ so as to attract the proviso to Article 368(2). It is not necessary that a change referred to in the proviso to Article 368(2) would only be if some part of a subject matter given to the States were transferred to Parliament or vice versa. Even without such transfer, if there is enlargement or curtailment of the subject matter contained in a field of legislation exclusively reserved to the States, then in effect a change has been made to an entry in a legislative list, which change, if significant, would attract the proviso to Article 368(2) and therefore require ratification. [Para 60][520-D-F]

6. In matters affecting the Constitution of India, form always gives way to substance. Had exceptions been provided in Entry

32 List II itself, such amendment to Entry 32 List II would require ratification. Also, in effect if the subject matter “co-operative societies” had been either expanded or curtailed by adding a definition clause in Article 366 of the Constitution of India, such expansion or curtailment would also require ratification as significant changes have been made in effect in Entry 32 List II of the Constitution of India. Likewise, if a separate part is added in the Constitution of India, the direct effect of adding such part being to curtail the width of Entry 32 List II in a significant manner, again, in effect Entry 32 List II is directly impacted, again requiring ratification. It is of no moment that one method is chosen or preferred to another so long as Entry 32 List II is curtailed either by adding or deleting words in Entry 32 itself or by doing so through an indirect methodology, namely, adding a new definition clause in Article 366 or adding a new part to the Constitution of India. [Para 61][520-G-H; 521-A-C]

7.1. Part IX B of the Constitution consists of Articles 243ZH to 243ZT. From the restrictions contained in Part IXB, it is clear that the exclusive legislative power that is contained in Entry 32 List II has been significantly and substantially impacted in that such exclusive power is now subjected to a large number of curtailments. Indeed, Article 243ZI specifically mandates that the exclusive legislative power contained in Entry 32 List II of the State Legislature is now severely curtailed as it can only be exercised subject to the provisions of Part IXB; and further, Article 243ZT makes it clear that all State laws which do not conform to the restrictions mentioned in Part IXB automatically come to an end on the expiration of one year from the commencement of the Constitution 97 th Amendment Act. [Paras 64, 65][521-E-G; 523-C-D]

7.2. An analysis of Part IXB of the Constitution leads to the result that though Article 246(3) and Entry 32, List II of the 7th Schedule have not been ‘changed’ in letter, yet the impact upon the aforesaid articles cannot be said to be insignificant. On the contrary, it is clear that by curtailing the width of Entry 32, List II of the 7th Schedule, Part IXB seeks to effect a significant change in Article 246(3) read with Entry 32 List II of the 7th Schedule inasmuch as the State’s exclusive power to make laws with regard to the subject of co-operative societies is significantly curtailed thereby directly impacting the quasi-federal principle contained therein. Quite clearly, therefore, Part IXB, insofar as it applies to co-operative societies which operate within a State, would therefore require ratification under both sub-clauses (b) and (c) of the proviso to Article 368(2) of the Constitution of India. [Para 67][524-A-C]

8. Part IX of the Constitution of India was inserted into the Constitution by the Constitution (73rd Amendment) Act, 1992 and Part IXA inserted into the Constitution by the Constitution (74th Amendment) Act, 1992 made similar provisions qua Panchayats and Municipalities. Both the Constitution 73 rd and 74 th Amendments were sent for ratification and were ratified by Legislatures of more than half the States. The reason is not far to see – like Part IXB, several restrictions are laid down before the States can legislate on Panchayats and Municipalities. Like Part IXB, such legislation is subject to Parts IX and IXA – see Article 243C and Article 243R. Again, like Article 243ZT in Part IXB, Articles 243N and 243ZF provide that State laws which are inconsistent with the provisions of Parts IX and IXA respectively will automatically cease after the expiration of one year from the commencement of the two Constitutional Amendments. In addition to these provisions, Parts IX and IXA also contain Article 243O and Article 243ZG ousting the jurisdiction of the courts and thereby, in effect, curtailing the provisions of Articles 136,

226 and 227 of the Constitution of India. Ratification of the Constitution 72nd and 73rd Amendments was therefore necessary both under clauses (b) and (c) of the proviso to Article 368(2) in that Article 136 was in effect curtailed (Article 136 occurring in Chapter IV of Part V of the Constitution of India); Articles 226 and 227 were in effect curtailed (which occur in Chapter V of Part VI of the Constitution of India); Article 246(3) was in effect curtailed (which forms part of the Chapter I of Part XI of the Constitution of India); and Entry 5 List 2, 7th Schedule was also in effect curtailed, which is referrable to sub-clause (c) of the proviso to Article 368(2) of the Constitution of India. It is clear therefore that even previous constitutional practice of Parliament acting in its constituent capacity qua similar subject matters reinforces the submission of the respondent that, like the 73 rd and 74th Amendments, the Constitution 97th Amendment Act also required ratification. [Paras 68, 69][524-C-H; 525-A-C]

9.1. It was argued that the constituent power that is exercised in enacting the 97th Amendment cannot be assimilated with legislative power, and that once the Constitution stands amended by insertion of Part IXB, Article 245 mandates that all legislation made under Article 246 read with Lists in the 7 th Schedule to the Constitution of India is subject to the provisions of the Constitution, so that legislation made under Article 246(3) read with Entry 32 List II becomes subject to the provisions of Part IXB which is now a part of the Constitution of India. This argument is a classic instance of putting the cart before the horse. Nobody doubts that had the amendment been ratified under Article 368(2) proviso, it would then operate, as a result of which legislation under Article 246(3) read with Entry 32 List II of the 7th Schedule would then become subject to Part IXB. In the present case, ratification not having been effected, the Amendment is non est. This argument is therefore rejected. [Paras 70, 71][525-D-F]

9.2. It was then argued that 17 out of 28 States had enacted legislations incorporating provisions of Part IXB, and that, therefore, they had impliedly accepted the restrictions laid down in the said Part. This argument need not detain this Court inasmuch as the procedure laid down in Article 368(2) proviso requires ratification of legislatures of one half of the States by resolutions to that effect. This has admittedly not been done in the present case. Also, the argument that no State has come forward to challenge the 97th Constitution Amendment does not take the matter any further. When a citizen of India challenges a constitutional amendment as being procedurally infirm, it is the duty of the court to examine such challenge on merits as the Constitution of India is a national charter of governance affecting persons, citizens and institutions alike. [Para 72][525-G-H; 526A-B]

10.1. It was then argued that instead of having two separate parts within Part IXB, one dealing with State co-operative societies and one dealing with multi-State co-operative societies, the well-known legislative device of “reference” to existing provisions was instead utilised by Article 243ZR and therefore one should view the matter as if a separate part within Part IXB has been enacted insofar as multi-State co-operative societies are concerned. There is substance in this argument. The Statement of Objects and Reasons for the Constitution 97 th Amendment Act makes it clear that the Scheme qua multi-State cooperative societies is separate from the Scheme dealing with “other cooperative societies”, Parliament being empowered, so far as multi-State cooperative societies are concerned, and the State legislatures having to make appropriate laws laying down certain matters so far as “other cooperative societies” are concerned. The effect of Article 246ZR is as if multi-State cooperative societies are separately dealt with in a separate subchapter contained within Part IXB. Also, there is no doubt that after severance what survives can and does stand independently and is workable. [Paras 76, 77][531-G-H; 532-D-G]

10.2. It was suggested by the Respondents that the consequence of this Court holding that the Constitution 97 th Amendment Act is void for want of ratification would render the entire amendment still-born, as a result of which no part of the amendment can survive. This argument is rejected for two reasons. If the doctrine of severability were not to apply for the afore-stated reason, then the majority judgment in Kihoto Hollohancase would be incorrect. This very reasoning would then render the entire Constitution 52nd Amendment, which inserted the Tenth Schedule to the Constitution of India, constitutionally infirm as then the entirety of the amendment would have to be declared void for want of ratification, which would be in the teeth of the majority judgment in Kihoto Hollohan case. Further, on this reasoning, the amendments made in Article 19 and the addition of Article 43B would also have to be struck down, which was not pleaded or argued before either the High Court or before this Court. This being the case, it is declared that Part IXB of the Constitution of India is operative insofar as multi-State cooperative societies are concerned. [Para 77][532-G-H; 533-AC]

11.1. There can be no doubt that Article 246(3) does not apply to Union territories. Instead, Article 246(4) applies to Union territories, by means of which Parliament can use the State List also to legislate insofar as the Union territories are concerned. However, given the truncation of Entry 32 List II of the 7 th Schedule by Part IXB, what would operate in Union territories is Part IXB only insofar as it applies to multi-State co-operative societies. So far as co-operative societies within a Union territory are concerned, the same infirmity as is found in the main part of the judgment continues insofar as the legislative subject “cooperative societies” is concerned under Entry 32 List II. Therefore, for co-operative societies which have no ramifications outside the Union territory itself, Part IXB will have no application. [Para 78][533-C-F]

11.2. The judgment of the High Court is upheld except to the extent that it strikes down the entirety of Part IXB of the Constitution of India. It is declared that Part IXB of the Constitution of India is operative only insofar as it concerns multiState co-operative societies both within the various States and in the Union territories of India. [Para 80][534-A-B] Kihoto Hollohan v. Zachillhu 1992 Supp (2) SCC 651 : [1992] 1 SCR 686 – followed.

Sankari Prasad Singh Deo v. Union of India [1952] SCR 89; Sajjan Singh v. State of Rajasthan [1965] 1 SCR 933; Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 3 SCR 130; Kerala SEB v. Indian

Aluminium Co. Ltd., (1976) 1 SCC 466 : [1976] 1 SCR 552; Goodricke Group Ltd. v. State of W.B., 1995 Supp (1) SCC 707: [1994] 6 Suppl. SCR 120; Govt. of A.P. v. J.B. Educational Society, (2005) 3 SCC 212 : [2005] 2 SCR 302; Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd. (2007) 6 SCC 236 : [2007]

4 SCR 823; State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 : [2010] 2 SCR 97; Daman Singh v. State of Punjab, (1985) 2 SCC

670 : [1985] 3 SCR 580; Apex Cooperative Bank of Urban Bank of Maharashtra & Goa Ltd. v.

Maharashtra State Cooperative Bank Ltd., (2003) 11 SCC 66; Thalappalam Service Coop. Bank Ltd. v. State of Kerala (2013) 16 SCC 82 : [2013] 14 SCR 475; K. Damodarasamy Naidu & Bros. v. State of T.N., (2000)

1 SCC 521 : [1999] 3 Suppl. SCR 597; Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : [1973] Suppl. SCR 1; M. Nagaraj v. Union of India, (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336; I.R. Coelho v. State of T.N., (2007) 2 SCC 1 : [2007] 1 SCR 706; Dr. Jaishri Laxmanrao Patil v. Chief Minister and Ors., 2021 SCC OnLine SC 362; Bhim Singh v. Union of India, (2010) 5 SCC 538: [2010] 6 SCR 218; B.P. Singhal v. Union of India, (2010) 6 SCC 331; Builders’ Assn. of India v. Union of India (1989) 2 SCC 645 and Vipulbhai M. Chaudhary v. Gujarat Coop. Milk Mktg. Federation Ltd. (2015) 8 SCC 1: [2015] 3 SCR 997 – relied on.

Golak Nath v. State of Punjab [1967] 2 SCR 762; Cellular Operators Assn. of India v. TRAI, (2016) 7 SCC

703 : [2016] 9 SCR 1 and D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378 : [1987] 1 SCR 798 –

referred to.

‘Constitutional Law of India’ (4 th Edition) by H.M. Seervai, p.3156 – referred to.

per K.M. Joseph, J. (partly dissenting)

1. The provisions relating to Article 240ZI to Article 243ZQ and Article 243ZT, are unconstitutional for non-compliance, with the mandate of the proviso to Article 368(2) of the Constitution of India. However, it cannot be said that the Doctrine of Severability will apply to sustain Article 243ZR and Article 243ZS to the multistate cooperative societies operating in the Union Territories, and that, it would not apply to cooperative societies confined to the territories of the Union Territories. [Para 2][534C-E]

2. The Doctrine of Severability came up for consideration in R.M.D. Chamarbaugwalla case. Therein, this Court has laid down certain Rules in this regard. [Para 10][542-E]

3.1. The first Rule laid down in R.M.D. Chamarbaugwalla case is that, it is the intention of the Legislature, that is the determining factor. The test is also laid down that the question to be asked is, whether the Legislature would have enacted the valid Part, if it had known that the rest of the Statute was invalid. Also, in determining the legislative intent, it will be legitimate to take into account, the history of the legislation and its objects, inter-alia. [Para 16][552-C-D]

3.2. From the Statement of Objects and Reasons for the Ninety-Seventh Amendment, it is discernible that there were weaknesses found in safeguarding the interests of the members of the cooperative societies. Elections were being postponed indefinitely. There was inadequate professionalism in management. It was found that cooperatives needed to be run on well-established democratic principles and elections had to be held on time and in a free and fair manner. It was further noted that “cooperative societies” is a subject enumerated in Entry 32 of the State List of the Seventh Schedule. That laws were made by the State Legislatures, were noticed. Reforms, were in short, found necessary in the Cooperative Society Acts of the States. Consultation with the State Governments were held several times. The Central Government was committed, it is stated to ensure that the cooperative societies, in the country, were to function in a democratic, professional, autonomous and economically sound manner. It is in this connection that Part IXB was inserted to empower Parliament in respect of multistate cooperative societies, and State Legislatures, in case of other cooperative societies, to make appropriate law. [Para 18][554-FH; 555-A-C]

3.3. The intention discernible was that Parliament intended to provide a uniform set of legislative norms and create rights, liabilities and powers across the board through the length and breadth of the country. In fact, it was to inform all cooperative societies, whether they were governed by laws made by the State Legislatures, falling under Entry 32 of List II of Seventh Schedule, or the appropriate Entry under List I. In other words, homogeneity was sought to be introduced without any discrimination between cooperative societies falling within the legislative domain of State Legislatures and of Parliament. The setting and the manner, in which the Articles have been ordered in Part IXB, would go to show that the substantive provisions, which actually conditioned the legislative power, among other things, was directed against the State Legislatures. [Paras 19, 20][555-C-E]

4. The second Rule laid down in R.M.D. Chamarbaugwalla case is to enquire whether the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another. It is further declared that if the seemingly valid provisions are so distinct and separate, that after declaring the other set of provisions as invalid, the remaining provisions would remain a complete Code, independent of the rest, then, the distinct and separate provisions, which manifests a complete Code, can become enforceable. [Para 21][555-E-G]

5. The third Rule provides that even if they (the provisions) are distinct and separate, if they all form part of a single scheme, which is intended to be operative as a whole, then, also the invalidity of a part, will result in failure of a whole. In Kihoto Hollohan case, this Court, after bearing in mind the Rules, apparently laid down in R.M.D. Chamarbaugwalla case, has proceeded to clearly articulate the test, inter-alia, viz., as to whether, after severance, what survives, can stand independently and is workable. [Para 22][555-G-H; 556-A]

6. It is plain from the Statement of Objects and Reasons, that Parliament was fully aware that Entry 32 clothed the Legislatures of the State with exclusive legislative power to make laws in regard to cooperative societies, which were not multistate cooperative societies. Parliament was fully aware that laws had already been made by State Legislatures, but yet, the object was to usher in reforms by the legislative route, and what is more, a Constitutional Amendment, which clearly involved, a change in regard to the entrenched provisions. The Ninety-Seventh Amendment was passed in 2012, several years after the decision in Kihoto Hollohan case. It is clear that the law was laid down by the Constitution Bench of this Court in Kihoto Hollohan case, that having regard to the sublime purpose behind the proviso to Article 368(2), which was to foster and secure the federal nature of the Constitution, what mattered was the substance and not the form. It appears to be further clear that an effort was made to take the States on board by holding several meetings between the States, and what is more, Resolutions were passed apparently at the meet of State Cooperative Ministers. All of this appears to point out that, having regard to the law holding the field and the relevant principles in question, it appears that Parliament would not have made the amendment, had it known that the provisions contained in Articles 243ZI to 243ZQ would not pass muster. The object was clearly to have identical provisions in place to govern cooperative societies. Uniformity and, in fact, identical treatment for all cooperative societies whether they are created under State Law or by Parliament, was the goal. [Para 23] [556-B-F]

7. It is the duty of the Court to strive to uphold the law made by the Legislature. When it comes to an amendment to the Constitution, this presumption of constitutionality, and also the duty of the Court, becomes even more pronounced. If, indeed, on the Doctrine of Severability, the provisions contained in Article 243QR and Article 243QS, can be sustained, the law must survive rather than perish. The question, however, is on the terms of the provisions in question (Articles 243QR and 243QS), and bearing in mind the principles, can they survive on their own, after the invalidation of Article 243ZH to Article 243ZQ and Article 243ZT. Are the provisions of Article 243ZR and 243ZS independent provisions and workable? Both these provisions are entirely dependent upon the provisions contained in Article 243ZI to 243ZQ. This is for the reason that both these provisions expressly provide that the ‘provisions of this part’, which clearly means the foregoing provisions, which are contained in Article 243ZI to 243ZQ, are to apply in regard to multistate cooperative societies and to Union Territories with the modifications, which are indicated therein. There can be application and modifications of something which exists. There cannot be either, when the elaborate provisions are to be treated as not born. Are these provisions independent and workable? One will proceed on the basis that Parliament intended to produce homogeneity in regard to certain legislative value judgments which would be cast in stone in a manner of speaking by having those values declared in the grundnorm itself. It would appear to be that these values were to apply, across the board, to cooperative societies born under laws made by the State Legislatures, as also, to those made by Parliament. More importantly, once the Court has painted the relevant provisions, which are the substantial provisions (Article 243ZI to 243ZQ), with the brush of unconstitutionality, rendering those provisions, still born, it would appear that the provisions contained in Article 243ZR and Article 243ZS would not have the crutches without which these provisions cease to be workable and are impossible to sustain. The unconstitutional part, which is to be an integral part of Article 243ZR and Article 243ZS, must continue to exist, if the provisions’, in question, are to bear life. In other words, to sustain these provisions the court would have to resurrect the dead provisions contained in Article 243ZI to 243ZQ and Article 243ZT. The Doctrine of Severability must apply on surer foundations. Unless the provisions, which have been found unconstitutional, are kept alive, Articles 243ZR and 243ZQ are plainly unworkable. [Paras 25, 27, 28, 29, 30][556-G-H; 557A-C, G-H; 558-A-E] Kihoto Hollohan v. Zachillhu and others (1992) Suppl.

2 SCC 651 : [1992] 1 SCR 686 – followed.

R.M.D. Chamarbaugwalla and another v. Union of India and another AIR 1957 SC 628: [1957] SCR 930 – relied on.