1. The petitioners herein have challenged the Ordinance No. 5 of 1991 dated 27th July, 1991 published in the Tamil Nadu Government Gazette (Extraordinary) dated 28th July, 1991. In the course of the hearing of the writ petitions, however, the Tamil Nadu Co-operative Societies (Appointment of Special Officers) Act, 1991 has been notified. They have amended the prayer and sought a declaration that it is void and unconstitutional.
2. The statement of Reasons and Objects in the Amendment Act is the same as in the Ordinance and the provisions therein are the same as in the Ordinance, It is useful to notice that the Legislature of the State has enacted the Tamil Nadu Co-operative Societies Act, 1983 (Tamil Nadu Act 30 of 1983) repealing the Tamil Nadu Co-operative Societies Act, 1961 (Tamil Nadu Act 53 of 1961) and the Tamil Nadu Co-operative Land Development Banks Act, 1934 (Tamil Nadu Act 10 of 1934) to amend and consolidate the law relating to and to make better provision for the organisation, management and supervision of co-operative societies in the State of Tamil Nadu (See Preamble to the Act 30 of 1983). The Preamble to the Act 30 of 1983 contains inter alia that,
To provide for an orderly development of the co-operative movement in accordance with co-operative principles such as open membership, democratic management, limited interest on capital, distribution of surplus based on patronage, provision for co-operative education and co-operation among co-operatives for the promotion of thrift, self-help and mutual aid among persons with common socio-economic needs so as to bring about improvement in agriculture and industry, better methods of production, better business and better living and for that purpose to amend and consolidate the law relating to co-operative societies in the State of Tamil Nadu.
The Legislature enacted the law.
3. The Act brought all societies, whether agricultural producers, marketing society, agricultural service co-operative society, milk producers society, oilseeds growers society, self-reliant society weavers, society, and scheduled co-operative society and whether with limited or unlimited liability under the definition of a 'primary society' except an apex society or a central society as defined in Section 2(21) thereof.
4. Chapter IV of the Act deals with the management of registered societies and contains a specific provision to the effect that the ultimate authority of a registered society shall vest in the general body of its members and in Section 33 that the management of every registered society shall vest in a board constituted in accordance with the provisions of the Act, the Rules and the By-laws, which shall exercise such powers and perform such duties as may be conferred or imposed on it by the Act, the Rules and the By-laws, and in Section 33(10) that the term of office of a member who is elected to any board constituted under the Act the Rules or the By-laws shall be three years and the term of office of a member of any board nominated thereto by the Government, the Registrar or the prescribed authority or the financing bank, if such member is not a Government servant shall not exceed three years, and the term of office of a member of any board who is a nominee of another society or other interest, such as the Tamil Nadu State Agricultural Marketing Board, shall not exceed three years.
5. The Act also provides for declaration and removal of members of the Board, and who shall not be eligible for being elected or nominated as a member of the Board of any registered society, in Section 34 thus indicating as to who may be elected or nominated. In Sub-section (2) thereof, the Act states,
A member of the board shall cease to hold the office as such if he-
(a) becomes subject to any of the disqualifications mentioned in Sub-section (1):
Provided that a member of the board who ceases to hold office by reason of his having incurred the disqualification mentioned in,-(i) Sub-clause (i) of Clause (b) of Sub-section (1) shall not be eligible for re-election or re-nomination as a member of the board of the registered society of which he was a member or for election or nomination to the board of any other registered society;(ii) Sub-clauses (iii) or (iv) of the said Clause (b), shall not be eligible for re-election or re-nonmination as a member of that board or for re-election or nomination to the board of any other registered society, for a period of three years which shall be reckoned,-
(A) in the case of the disqualification mentioned in Sub-clause (i) the said Clause (b), from the date on which the dues referred to therein have been fully cleared; and
(B) in the case of disqualification mentioned in Sub-cluase (iii) or (iv) of the said Clause (b), from the date on which the dues involved in such decree, decision, award, order, certificate or application in respect of which proceedings have been initiated, have been fully discharged; Provided further that where a member of the board ceases to hold his office as such by reason of his having been sentenced for any offence under this Act, and the sentence is annulled on appeal or revision he shall be restored to office for such portion of the period for which he was elected or nominated as may remain unexpired at the date of such restoration and any person elected or nominated to fill the vacancy in the interim shall, on such restoration, vacate office; or
(b) ceases to be a member of the registered society; or
(c) purchases directly or indirectly any property of other members of the registered society brought to sale for recovery of any money due from such other member to the registered society; or
(d) absents himself from four consecutive meetings of the board or from all meetings of the board for a continuous period of three months, whichever is longer:
Provided that the member ceasing to hold office under this clause may be restored in accordance with the procedure prescribed if such member makes an application for condonation of the absence,' and Sub-section (3) of Section 34, The board of a registered society may suo motu, and shall on an application made by any person, consider whether any member of the board was or has become disqualified to hold office as such under this section and take a decision. Such a decision shall be communicated to the member and the applicant concerned, if any;
Provided that no decision shall be taken unless the member of the board is given an opportunity of making his representation: Provided further that pending such decision, the member of the board shall be entitled to continue as such as if he is qualified or is not disqualified.
6. Section 35 of the Act says that every person shall, prior to his election or nomination as a member of the board of any registered society, give such registered society, intimation of, and shall, before taking charge of his office as such member of the board sell or divest himself of any interest other than investment and borrowing which he may have for his own benefit whether in his own name or otherwise, in any contract made with the registered society or in any sale or purchase made by the registered society privately or in any auction or in any contract or transaction of the registered society and it shall not be lawful for a member of the board of any such society, so long as he holds office to acquire or purchase any such interest other than investment and borrowing and if he, under any will or by succession or by gift becomes entitled for his own benefit to such financial interest, he shall sell the same within three months after becoming so entitled thereto and he shall also within three months, sever any connections he may have and cease to have any such financial interest direct or indirect other than investment and borrowing provided that nothing contained in the Sub-section shall apply to such class of contracts, sales, purchases or transactions as may be prescribed and, under Sub-section (2), empowers the Registrar to remove such member from the office of membership of the board, who failed to comply with the said provision, Sub-section (3) of this section, however, says,
No member shall be removed under Sub-section (2) without being given an opportunity of making his representations. A copy of the order removing him shall be communicated to him.
7. Besides the above, there is another provision in Section 36 which reads as follows:
(1) Where in the course of an audit under Section 80 or an inquiry under Section 81 or an inspection or investigation under Section 82 or inspection of books under Section 83 it appears that a person who is, or was a member of a board has misappropriated or fraudulently retained any money or other property or been guilty of breach of trust in relation to the society or of any corrupt practice as defined in Section 162 or of gross or persistent negligence in connection with the conduct and management of, or of gross mismanagement of the affairs of the society, the Registrar may, without prejudice to any other action that may be taken against such member by order in writing, disqualify him permanently from holding in future any office in any registered society. The Registrar shall, if such person holds office of members of the board, also by the same order remove him from that office.
(2) No person shall be disqualified or removed under Sub-section (1) without being given up an opportunity of making his representations. A copy of the order disqualifying or removing him shall be communicated to him.
8. Sections 82 and 83 of the Act are put in Chapter IX providing for audit and inquiry by the Registrar or by some person authorised by him into the constitution, working and financial condition of a registered society or any alleged misappropriation, fraudulent retension of any money or property, breach of trust, corrupt practice or mismanagement in relation to that society or into any particular aspect of the working of the society and also inspection and investigation by the Registrar of his own motion or on the application of a creditor of a registered society or by any person authorised by him, into the affairs of the registered society in general or any alleged misappropriation fraudulent retention of any money or property, breach of trust, corrupt practice or mismanagement in relation to that society or into any particular aspect of the working of the society, having the same powers as in Section 81 to hold inquiry, and inspection of books by financing banks and maintenance of accounts by registered societies. Sections 87 to 89 of this chapter of the Act provide for surcharge, supersession of the board and appointment of Special Officers in certain circumstances. The provision in Section 88 reads as follows:
(1) (a) The Registrar-(i) may, if he is of opinion that the board of any registered society is not functioning properly or wilfully disobeys or wilfully fails to comply with any order or direction issued by the Registrar under this Act or the Rules
(ii) shall, where for two consecutive co-operative years-
(A) in the case of a financing bank more than sixty per cent of the total dues to the financing bank from its members remain unpaid or the number of defaulting members of such financing bank exceeds sixty per cent of the total number of members indebted to such bank, and
(B) in the case of other registered societies, more than seventy per cent of the total dues to the registered society from its members remain unpaid or the number of defaulting members of such registered society exceeds seventy per cent of the total number of members indebted to such society after giving the board of the registered society or the financial bank, as the case may be, an opportunity of making its representations, by order in writing, supersede the board and appoint a Government servant or an employee of any body corporate owned or controlled by the Government (hereinafter referred to as the Special Officer) to manage the affairs of the society for a specified period not exceeding one year:
Provided that an order under this Sub-section shal be passed within a period of three months from the date of issue of notice of supersession or such further period or periods as the next higher authority may permit but such extended period or periods shall not exceed six months in the aggregate:
Provided further that in computing the total dues remaining unpaid for the purposes of item (ii), any instalment or sum which is not recoverable by reason of any remission or suspension or order of stay passed by the appropriate authority due to adverse seasonal conditions or any other reason shall be excluded in respect of that instalment or sum: Provided also that for the purposes of computing the number of defaulting members referred to in item (ii) any member who is not liable to pay any instalment or sum by reason of any remission or suspension or order of stay passed by the appropriate authority due to adverse seasonal conditions or any other reason shall be excluded in respect of that instalment or sum,
(b) The period specified in such order may at the discretion of the Registrar, be extended from time to time provided that such order shall not remain in force for more than two years in the aggregate:
Provided that where on the date of commencement of this Act, the period of supersession exceeds one and half years, the Registrar may extend the period of supersession for such further period or periods not exceeding six months in the aggregate. (2) Where a Special Officer is appointed, the Registrar may appoint an advisory board consisting of not more than five persons from among the members of that society who are not disqualified for being elected or nominated to the board of that society to advise the Special Officer in such matters as may be specified by him. The Registrar may at any time withdraw any person or persons so appointed under this Sub-section and fill up the vacancy or vacancies by fresh appointment.
(3) The Special Officer appointed under Sub-section (1) shall, subject to the control of the Registrar and to such directions as he may, from time to time give, have power to exercise all or any of the functions of the board or of any officer of the society and to take such action as may be required in the interest of the society.
(4) The Registrar may fix the remuneration payable to the Special Officer appointed under Sub-section (1). The amount of remuneration so fixed and such other expenditure incidental to the management of the society during the period of supersession as may be approved by the Registrar shall be payable from the funds of the society.
(5) The Special Officer appointed under Sub-section (1) shall arrange for the constitution of a new board in accordance with the provisions of this Act, the Rules and the By-laws so that the new board may be constituted and the members thereof come into office at the expiry of the period of hisappointment.
(6) Before passing an order under Sub-section (1)(a)(i) in respect of any registered society, the Registrar shall consult in the manner prescribed the board of the financing bank to which the society is indebted:
Provided that if the financing bank does not communicate its comments within fifteen days of the receipt of a communication from the. Registrar in this regard, the board of the financing bank shall be deemed to have no comments to make on the order proposed to be passed under Sub-section (1). (7) Nothing contained in this section shall be deemed to affect the power of the Registrar to order the winding up of the society under Section 137.
(8) An order under Sub-section (1) shall take effect from the date specified therein unless stayed by an order of the appellate authority. Where an order under Sub-section (1) is reversed on appeal, the Special Officer appointed under Sub-section (1) shall forthwith hand over the management of the society to the board.
(9) Any paid officer of servant of the registered society against whom there is a prima facie evidence that he was also responsible for the acts leading to the supersession of the board under this section, shall, without prejudice to any other action that may be taken against him under this Act or any other law, be liable to disciplinary action including suspension, pending enquiry into grave charges.
This is followed by the provision in Section 89, which states:
(i) the term of office of the board of any registered society has expired and a new board cannot be constituted in accordance with the provisions of this Act, the Rules and the By-laws; or
(ii) the new board constituted fails to enter, or is prevented from entering upon office on the expiration of the term of office of the earlier board: or
(iii) the existing board has tendered resignation en bloc; or
(iv) (a) vacancies have arisen for any reason, or (b) one or more members of the board have tendered resignation and the number of remaining members cannot form the quorum for the meeting of the board, The Registrar may, of his own motion or on application of any member of theregistered society, and in the case of a new board which has failed to enter, or prevented from entering, upon office, after giving the members of the said board an opportunity of making their representations, by order appoint a Government servant or an employee of any body corporate owned or controlled by the Government (hereinafter referred to as the Special Officer) for a specified period not exceeding six months to manage the affairs of the registered society pending the constitution of a new board, or as the case may be, the entering upon office by the new board: Provided that the period specified in such order may for special reasons to be recorded in writing by the Registrar, be extended from time to time but such order shall not remain in force for more than one year in the aggregate. (2) The provisions of Sub-sections (2) to (5) and Sub-sections (7) and (8) of Section 88, so far as may be, shall apply in relation to the appointment of a Special Officer under Sub-section (1), as they apply in relation to the appointment of a Special Officer under Sub-section (1) of the said Section 88.
9. The Act thus is a comprehensive compendium of the actions that may be taken against a member of the Society who may be guilty of misappropriation or fraudulent retention of any money or other property of the society or of breach of trust in relation to the society or of any corrupt practice or of gross or persistent negligence in connection with the conduct and management of or gross mismanagement of the affairs of the society and for the supersession of the society if it is not functioning properly or wilfully disobeying or wilfully failing to comply with any order or direction issued by the Registrar.
10. Besides the individual liability as to disqualification as a member of the Board of the society, in the case of any person who is or was entrusted with the organisation or management of the society or any past or present officer or servant of the society, the Act gives power to the Registrar either to himself frame charges against such person or officer or servant or to authorise any other person to do so for a surcharge proceeding under Section 87 of the Act subject to a limitation of seven years from the date of the act or omission leading to such offence.
11. Although the Act received the assent of the President of India on 15th July, 1983 and published in the Tamil Nadu Government GazetteExtraordinary of Part IV, Section 2 dated 1st November, 1983 it became operational only in the year 1988 and nothing followed under this Act except the election held in October, 1990. After the elections and nominations of the women and S.C./S.T. representatives, etc., when the new board assumed office, the Ordinance terminated its tenure with effect from the appointed day, that is to say, the date on which the Ordinance came into force (28.7.1991). The Ordinance and its successor Act have however got a long Preamble and state as follows:
An Act to provide for the appointment in the public interest of Special Officers for certain primary societies in the State of Tamil Nadu Whereas the Tamil Nadu Co-operative Societies Act, 1983 (Tamil Nadu Act 30 of 1983) as amended by the Tamil Nadu Co-operative Societies (Amendment) Act, 1990 (Tamil Nadu Act 26 of 1990), provides for thirty per cent representation for women and eighteen per cent representation for Scheduled Castes and Scheduled Tribes in the boards of registered co-operative societies and for nomination of the representatives of women and Scheduled Castes and Scheduled Tribes, if women and Scheduled Castes and Scheduled Tribes members are not elected to that extent. And where as in the election to the boards of the primary co-operative societies held in the year 1990, representatives of women and Scheduled Castes and Scheduled Tribes were not elected to the extent of thirty per cent and eighteen per cent respectively: And whereas a large number of representatives of women and Scheduled Casted and Scheduled Tribes, disproportionate to the elected members have been nominated, which resulted in an abnormal tilt towards the nominated members:
And whereas the abnormal tilt towards the nominated members will not be conducive to the orderly development of co-operative movement but also be not in consonance with the principles of democratic management of co-operatives:
And whereas a number of complaints have been received by the Government regarding the malpractices in the conduct of election and in the management of the affairs of the primary co-operative societies:
And whereas the Government with a view to set right the abnormal tilt towards the nominated members and also to ensure the proper management of the said co-operative 'societies, have decided to amend the Tamil Nadu Co-operative Societies Act, 1983 (Tamil Nadu Act 30 of 1983) suitably and also to conduct election to all co-operative societies under the said Act as proposed to be amended: And whereas pending amendment, it has been decided to supersede the boards of management of the primary societies and to appoint Special Officers for a limited period, in the public interest:
Be it enacted by the Legislative Assembly of the State of Tamil Nadu in the Forty-Second Years of the Republic of India as follows: (in the place of the last paragraph above, the Ordinance contained/contains, And whereas the Legislative Assembly of the State is not in session and the Governor of Tamil Nadu is satisfied that circumstances exist which render it necessary for him to take immediate action for the purposes hereinafter appearing:
Now therefore, in exercise of the powers conferred by Clause (1) of Article 213 of the Constitution, the Governor hereby promulgates the following Ordinance.
12. After Sections 1 and 2 which give the short title and commencement and definitions of the expressions 'appointed day', 'board', 'Co-operative Societies Act', 'Government' and 'primary society' the Ordinance and the successor Act in Section 3 contain a provision as to term of office of members of board of certain primary societies to expire. This section reads as follows:
Notwithstanding anything contained in the Co-operative Societies Act, or in any other law for the time being in force, or in any decree or order of any court, tribunal or other authority, the term of office of every member (whether elected or nominated) of the board of every primary society, including its president and vice-president, holding office as such as, immediately before the appointed day, shall expire on the appointed day and such members shall vacate their office on and from the appointed day,
the appointed day being the date of the promulgation of the Ordinance. Section 4 of the Ordinance and the Amendment Act empowers the State Government to appoint a person as Special Officer to manage the affairs of such a superseded primary society prescribing as follows:
(1) (a) Notwithstanding anything contained in the Co-operative Societies Act, or in any other law for the time being in force, or in any decree or order of any court, tribunal or other authority, on and from the appointed day, the Government shall appoint a person as Special Officer to manage the affairs of any primary society referred to in Section 3.
(b) Nothing in this Sub-section shall prevent the appointment of the same person as Special Officer for two or more primary societies.
(2) Each Special Officer appointed under Sub-section (1) shall hold office for a period of one year with effect on and from the appointed day or for such shorter period as the Government may, by notification, specify in this behalf. Provided that if any vacancy arises in the office of the Special Officer, the vacancy shall be filled up the Government and the person so appointed in the vacancy shall hold office for the remainder of the said period.
(3) The Special Officer appointed under Sub-section (1), subject to the control of the Registrar and to such directions as he may, from time to time, give shall exercise all or any of the functions of the board or of any officer of the primary society and take such action as may be required in the interest of such primary society.
(4) The Government may fix the remuneration payable to the Special Officer appointed under Sub-section (1) and the amount of remuneration so fixed and such other expenditure incidental to the management of the primary society as may be approved by the Registrar, shall, subject to such directions as the Government may give in this regard, be payable from the funds of such primary society.
(5) The Special Officer appointed under Sub-section (1) shall arrange for the constitution of a new board in accordance with the provisions of the Co-operative Societies Act and the Rules made thereunder and By-laws of such primary society, so that the new board may be constituted and the members thereof come into office at the expiry of the period of appointment of the Special Officer.
For the interregnum, that is to say from the date of termination of the term of office of every member, whether elected or nominated, of the Board of every primary society until the expiry of the period of appointment of the Special Officer, the ordinance or the Act has got a prescription. Section 5 of the Ordinance or the Act provides as follows:
(1) Notwithstanding anything contained in the Co-operative Societies Act, the Government may appoint an advisory board consisting of not more than five non-official members to advise such Special Officer.
(2) The members of the Advisory Board shall be entitled to receive such allowances or fees and other amenities as may be prescribed.
(3) The Advisory Board shall be consulted by the Special Officer on all matters relating to the affairs of the primary society.
Section 6oftheOrdinanceor the Act has extended the application of the provisions of the Co-operative Societies Act and the Rules made thereunder to a Special Officer appointed under Sub-section (1) of Section 4 as they apply in relation to a Special Officer under Sub-section (1) of Section 88 of the Co-operative Societies Act. Since under Sections 4 and 5, the Government is required to do certain functions, Scc.7 provides for a delegation by the State to the Registrar to exercise any of the powers vested in them under Section 4 or under Section 5 in respect of all or any of the primary societies. This section reads as follows:
(1) The Government may, by notification, authorise the Registrar to exercise any of the powers vested in them under Section 4 or under Section 5 in respect of all or any of the primary societies.
(2) The exercise of any power delegated under Sub-section (1) shall be subject to such restrictions and conditions as may be specified in the notification and subject also to control and revision by the Government.
Section 9 provides for the rule making power of State Government and Section 10 provides for.
Notwithstanding anything contained in the Co-operative Societies Act, or in any other law for the time being in force or in any decree or order of any court, tribunal or other authority. -
(a) every member elected to the board of primary society but not assumed office immediately before the appointed day shall be deemed never to have been elected as such member; and
(b) any dispute appeal, revision, review or other proceedings in respect of any election to a primary society pending before any court or other authority on the appointed day shall abate.
13. Learned Counsel appearing for the parties have addressed us at length on the execise of power by the Governor of the State under Article 213 of the Constitution of India in promulgating the Ordinance and taken us through the various provisions of law and the constitutional rights of the members of the Board of the Co-operative Society as well as the statutory rights under the Co-operative Societies Act, 1983. They have contended interalia that Clause (1) of Article 213 of the Constitution relating to the satisfaction of the Governor is composite, that is, the satisfaction relates to the existence of circumstances as well as the necessity to take immediate action on account of those circumstances and since the circumstances mentioned in the Preamble to the Ordinance are not immediate and present or and are vague and not germane to the object stipulated in that clause of the article, the promulgation of the Ordinance is a colourable exercise of power and that the effect of the legislation has been to settle the dispute between the complainants on the one hand and the elected members and office bearers of the managing board of the Co-operative Society on the other, a matter beyond the competence of the Legislature and in any event, smacks of all the characteristics of Bills of Attainder. They have attacked Sections 3and 5 in particular, which interalia terminate the election or nomination of every member of the Board of every primary society including its President and Vice President notwithstanding the provisions aforementioned which fixed a tenure of three years and the appointment of the Advisory Board by the Government consisting of not more that five non-official members to advise the Special Officer on the ground that the former is unconstitutional and ultra vires Section 33(10) of the Co-operative Societies Act, 1983 and other similar provisions therein and latter for its unconstitutionality as it gives arbitrary power to the Government to bring in lieu of the members of the society any person to advise the Special Officer. They have worded their submissions differently but attacked precisely on the same grounds the Ordinance as well as the Act contending that the Legislature's interference is violative of the petitioner's freedom of association guaranteed under Article 19(1)(c) of the Constitution of India. Since the Ordinance has been repealed by the Act, it is only of academic interest to examine whether the conditions precedent for promulgation of the Ordinance existed and the Governor had reasons to be satisfied to legislate under Article 213 of the Constitution of India.
14. Courts in India have examined the language in Article 213 of the Constitution which falls in Chapter IV of the Constitution headed as the legislative power of the Governor and reads as follows:
(1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require:
Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if-
(a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature: or
(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President: or
(c) an Act of the Legislature of the Slate containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.
(2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such ordinance....
and pronounced that even a plain reading of this would indicate that it has got two distinct aspects one being pristinely objective and the other being entirely subjective. The objective and the factual aspect is that the Legislature, where it is a unicameral one, must not be in session, and where it is a bicameral one, both the Houses of the legislature should not be in session. If the legislature is in session, the power of the Governor to issue Ordinances is negatived. The other aspect which is purely subjective is with regard to the existence of circumstances which necessitate the immediacy of the promulgation of the Ordinance. Clause (2) of this Article declares that the Ordinance shall have the same force and effect as an act of the legislature of the state assented to by the Governor. Thus it is no less an Act of Legislature than an enactment by the Legislature. What thus may be the scope of judicial review of such legislative action, when it is not in dispute that when the Ordinance was promulgated, the Legislature of the State which is a unicameral one was not in session and thus this factual requirement existed. A long time of unbroken precedent that the satisfaction of the Governor-General or the Government with regard to the immediacy in the Ordinance making power under the Government of India Acts 1915 and 1935 in the pre-Constitution era is available saying that the satisfaction was not justiciable (see the judgments of the Privy Council in Bhagat Singh v. Emperor A.I.R. 1951 P.C. 111 : 34 L.W. 53, Emperor v. Benoarilal Sharma and in Emperor v. Sibnath Baneijee (1945)2 M.L.J. 325 : 1945 M.W.N. 546 : 1945 M.W.N. 94 : 2211. C. 243 : 1945 F.C.R. 195 : 1945 F.L.J. 222 : 721. A. 241 : A.I.R. 1945 P.C. 75 (5 and Lakhi Narayan Dos v. Province of Bihar A.I.R. 1950 S.C. 59, it is said:
It is admitted that the Bihar Legislature was not in session when this Ordinance was passed it was urged, however, in the court below, and the argument was repeated before us, that no circumstance existed as is contemplated by Section 88(1) which could justify the Governor in promulgating this Ordinance. This obviously is a matter which is not within the competence of Courts to investigate. The language of the section shows clearly that it is the Governor and the Governor alone who has got to satisfy himself as to the existence of circumstances necessitating the promulgation of an Ordinance. The existence of such necessity is not a justiciable matter which the Courts could be called upon to determine by applying an objective test....On promulgating an Ordinance the Governor-General is not bound as a matter of law to expound reasons therefor nor is he bound to prove affirmatively in a Court of law that a State of emergency did actually exist. The language of Section 88 postulates only one condition, namely, the satisfaction of the Governor as to the existence of justifying circumstances and the Preamble to the Ordinance expresses in clear terms that this condition has been fulfilled. The first contention of the appellants must therefore be rejected.
15. Carries on Statute Law, Seventh Edition, 1971, has stated as under:
When a particular form of legislative enactment, which has received authoritative interpretation, whether by judicial decision or by a long course of practice, is adopted in the framing of later statute, it is a sound rule of construction to hold that the words so adopted were intended by the Legislature to bear the meaning which had been so put upon them.
16. In the light of the above, when we recall the debate in the Constituent Assembly (See Constituent Assembly Debates, Vol.8, page 214), we have to presume that the Constituent Assembly was fully aware of the same and intended to retain the same legal results by employing virtually identical phraseology in Arts. 123 and 213 of the Constitution (Art. 123 is the President's power). When the Parliament is not in session, to promulgate an Ordinance, in the above debate Dr. Ambedkarrepelled the criticism against the retention of the Ordinance making power inthe Constitution and pointed out that the legislative power conferred on thePresident and the Governor was not a parallel power of legislation, but oneexercisable only when both the houses of the Legislature were not in session. Soin the post-Constitution era, when the Court examined such contentions, italways accepted the necessity of immediate action for promulgating an Ordinancebeing a matter purely the subjective satisfaction of the Governor. This viewexpressed by the Supreme Court in State of Punjab v. Sat Pal Singh : 1SCR478 , Rustom Cawasjee Cooper v. Union of India : 3SCR530 ; S. K. G. Sugar Private Ltd. v. State of Bihar : 1SCR312 and in R. K. Garg v. Union of India A.I.R. 1981 S.C. 2138, holds the field although there are some observations in the judgment of the Supreme Court in A. K. Roy v. Union of India : 1982CriLJ340 , wherein it has been observed at one place,.It is arguable that the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President's satisfaction.' and again,
That is why we do not feel called upon to examine the correctness of the submission made by the learned Attorney General that in the very nature of things, the satisfaction' of the President which is the basis on which he promulgates an Ordinance is founded upon materials which may not be available to others and which may not be disclosed without detriment to public interest and that the circumstances justifying the issuance of the Ordinance as well as the necessity to issue it lie solely within the President's judgment and are, therefore, not justiciable.
17. We say so with respect for, in a later judgment of the Constitution Bench of the Supreme Court in the case of T. Venkata Reddy v. State of Andhra Pradesh : 3SCR509 , the judgment in the case of A. K. Roy v. Union of India : 1982CriLJ340 , has been taken into consideration and yet, the law stated in the same terms as in the case of R. K. Garg v. Union of India A.I.R. 1981 S.C. 2138, has been reiterated in these words:
The above view has been approved by another Constitution Bench of this Court in A.K. Roy v. Union of India : 1982CriLJ340 . Both these decisions have firmly established that an ordinance is a 'law' and should be approached on that basis. The language of Clause (2) of Article 213 of the Constitution leaves no room for doubt. An ordinance promulgated under either of these two articles has the same force and effect as an Act of Parliament or an Act of the State Legislature, as the case may be. When once the above conclusion is reached the next question which arises for consideration is whether it is permissible to strike down an Ordinance on the ground of non-application of mind or mala fides or that the prevailing circumstances did not warrant the issue of the Ordinance in other words, the question is whether the validity of an Ordinance can be tested on grounds similar to those on which an executive or judicial action is tested. The legislative action under our Constitution is subject only to the limitations prescribed by the Constitution and no other to. Any law made by the Legislature, which it is not competent to pass, which is violative of the provisions in Part III of the Constitution or any other constitutional provision is ineffective. It is a settled rule of constitutional law that the question whether a statute is constitutional or not is always a question of power of the Legislature concerned, dependent upon the subject-matter of the statute the manner in which it is accomplished and the mode of enacting it. While the courts can declare a statute 'unconstitutional when it transgresses constitutional limits, they arc precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motives of the Legislature in passing a statute is beyond the scrutiny of courts. Nor can the Courts examine whether the legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative Act are for the determination of the legislative authority and are not for determination by the courts. An Ordinance passed either under Article 123 or under Article 213 of the Constitution stands on the same footing. When the Constitution says that the Ordinance making power is legislative power and an Ordinance shall have the same force as an Act, an Ordinance should be clothed with all the attributes of an Act of legislature carrying with it all its incidents, immunities and limitations under the Constitution. In cannot be treated as an executive action or administrative decision.
In this judgment, the Supreme Court has said in no uncertain words that the true legal position about the justiciability of these issues in relation to an ordinance has been expressed in K. Nagaraj v. State of A.P. : (1985)ILLJ444SC , in these words:
It is impossible to accept the submission that the Ordinance can be invalidated on the ground of non application of mind. The power to issue an Ordinance is not an executive power but is the power of the executive to legislate. The power of the Governor to promulgate an Ordinance is contained in Article 213 which occurs in Chapter IV of Part. VI of the Constitution. The heading of that Chapter is 'Legislative Power of the Governor'. This power is plenary within its field like the power of the State Legislature to pass laws and there are no limitations upon the power except those to which the legislative power of the State Legislature is subject. Therefore, though an Ordinance can be invalidated for contravention of the constitutional limitations which exist upon the power of the State legislature to pass laws it cannot be declared invalid for the reason of non-application of mind, any more than any other law can be. An Executive Act is liable to be struck down on the ground of non-application of mind. Not the act of a Legislature.
18. A Full Bench of the Patna High Court has gone into this aspect in the case of Lalit Narayan Mishra v. State A.I.R. 1987 Pat 53. As in some judgments of the Supreme Court, so in the Patna Full Bench judgment also, a reference has been made to the judgment of a Constitution Bench of the Supreme Court comprising seven Judges in the case of Samsher Singh v. State of Punjab : (1974)IILLJ465SC . It can never be in doubt that in promulgating an Ordinance under Article 213 of the Constitution of India, the Governor or under Article 123 of the Constitution of India, the President, acts on the aid and advice of the Council of Ministers for exercising the legislative power of the Executive, that is to say, the Governor or the President as the case may be. They will, for all purposes, have the legislative power of the Constitutional Government. In Samsher Singh v. State of Punjab : (1974)IILLJ465SC , the Supreme Court has observed:
For the foregoing reasons we hold that the President as well as the Governor acts on the aid and advice of the Council of Ministers in executive action and is not required by the Constitution to act personally without the aid and advice of the Council of Ministers or against the aid and advice of the Council of Ministers.
and proceeded further to hold that what advice is rendered to the President or the Governor by the Council of Ministers is beyond the judicial review except for limited purposes. In the case of R. K. Garg v. Union of India A.I.R. 1981 S.C. 2138, this has been clearly stated that even in the legislative field the Governor equally, if not doubly is bound by the aid and advice of the Council of Ministers. The Patna Full Bench has reiterated the said view. We do not propose to repeat the exercise. We hold accordingly that the subjective satisfaction of the Governor, who acted with the aid and advice of the Council of Ministers in promulgating the Ordinance is beyond the judicial review, and the validity of the Ordinance cannot be examined on the grounds of bona fides or mala fides of the advice of the Council of Ministers or the satisfaction of the Governor. But the Court, however, may examine whether in purporting to promulgate an Ordinance, the Executive has in sum and substance gone beyond its-competence meaning the competence of the legislature and/or violated any provision in Part III of the Constitution (Fundamental Rights) or any other provision of the Constitution. Since we are aware that in the case of A. K. Roy v. Union of India : 1982CriLJ340 , the Supreme Court as well as in the case of Lalit Narayan Mishra v. State A.I.R. 1987 Pat 53, the Full Bench of the Patna High Court, despite finding that the exercise of legislative power of promulgation of an Ordinance by the Governor cannot be impeached on the grounds of mala fide, examined whether there was any substance in the allegation of malice and found on facts in favour of the validity of the law, we, for the said reason, heard learned Counsel for the parlies in detail on such allegations as well. Those, however, are no longer relevant for, if the Amendment Act is valid, the invalidity of the Ordinance will be of no consequence.
19. The judgment of the Supreme Court in the case of D.C.Wadhwa v. State of Bihar : 1SCR798 , proceeded on the footing that there was an abuse of the constitutional authority in repeatedly promulgating Ordinances and such a strategem would be repugnant to the constitutional scheme, as it would enable the Executive to transgress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indirectly arrogate to itself the law making function of the Legislature.
20. Beyond the above statement of law by the Supreme Court that the Legislature cannot violate the constitutional prohibition and transgress its legislative power in a situation as one in D.C. Wadhwa v. State of Bihar : 1SCR798 , the Supreme Court has said more than once as in the case of K. G. Gajapati Narayanan Deo v. State of Orissa : 1SCR1 .
It is the substance of the Act that is material and not merely the form or outward appearance, and if the subject matter in substance is something which is beyond the powers of that Legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. The Legislature cannot violate the constitutional prohibitions by employing an indirect method.
and in the case of P. Vajravelu Mu'daliar v. Special Deputy Collector, Madras : 1SCR614 , that when it is said that Legislation is a colourable one, what is means is that the Legislature has transgressed its legislative power in a covert or indirect manner.
21. It is indeed necesary in construing a statute to see the consequences and then to test the legislative intent. It is the consequence for which a law is designed to achieve some object or to remove or arrest a mischief. The motive behind the legislation has to be distinguished from the legislative intent. The former will fall in the category of bona fides, or malice in law or malice in fact generally called mala fides, the latter will be in the realm of operation - post enactment. This post enactment operation or effect may show that the Act in substance is something which is beyond the powers of the legislature to legislate upon and that the legislature has transgressed its power by adopting a device in a covert or indirect manner to achieve something other than the subject of legislation.
22. To support the above view, we have the authorities of the Supreme Court in the case of K.G.Gajapati Narayanan Deo v. State of Orissa : 1SCR1 , and P.Vajravelu Mudaliar v. Special Deputy Collector, Madras : 1SCR614 .
23. Item 32 of List II of the Seventh Schedule of the Constitution gives to the State Legislature power to make laws with respect to 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, co-operative societies. Item 43 of List I of the Seventh Schedule of the Constitution gives to the Union the power to make laws with respect to incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations but not including co-operative societies.
24. Article 19(1)(c) gives to all citizens the right to form associations or unions. Clause (4) of Article 19 of the Constitution, however, states that nothing in this clause shall affect the operation of any existing law in so far as it imposes or prevents the State from making any law imposing in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said clause. The right to form associations or unions is thus made subject to the laws that the Union or the State Legislatures make within the limits of their powers and in respect of co-operative societies, subject to the laws made by the State Legislature as to incorporation, formation or regulation of the society or the winding up thereof.
25. The Supreme Court has indicated how to interpret the nature and contents of the fundamental rights in Dwarkadas Shrinivas of Bombay v. Sholapur Spinning and Weaving Ltd : 1SCR674 , and Sakal Papers (P) Ltd. v. Union of India A.I.R. 1972 S.C. 305 and in L.N.Mishra Institute of E.D. and Social Change v. State of Bihar : 3SCR311 , the Supreme Court has observed,
In these two decisions, it has been laid down that while considering the nature and content of the fundamental rights, the Court must not be too astute to interpret the language of the Constitution in so literal a sense as to whittle them down, but must interpret the same in a manner which would enable the citizens to enjoy the right guaranteed by it in the fullest measure subject of course, to permissible restrictions. Further, in construing the Constitution it is the substance and the practical result of the act of the State that should be considered rather than its purely legal aspects and that the correct approach in such cases should be to enquire as to what in substance is the loss or injury caused to the citizens and not merely what manner and method has been adopted by the State in placing the restriction.
Having so said as to what the Supreme Court has held in Dwarkadas Shrinivas of Bombay v. Sholapur Spinning and Weaving Ltd. : 1SCR674 , in this judgment, it is added.
The above principles, as laid down in those two decisions, are well settled and no exception can be taken to them. It is true that the provisions of the Constitution, particularly the provisions relating to the fundamental rights, should not be construed in a pedantic manner, but should be construed in a manner, that would enable the citizens to enjoy the rights in the fullest measure. But, that does not surely mean and it was not the intention of this Court to lay down that in construing the provisions relating to fundamental rights it should be stretched to the extent of covering even certain extent of extraneous matters which would be far from the the ambit and scope of the fundamental rights. Article 19(1)(c) confers a right on the citizens to form association.
26. In Damayanthi Naranga v. Union of India : 3SCR840 , a law enacted under Entry 63, List I of the Seventh Schedule was challenged as violative of the fundamental right under Article 19(1)(c) of the Constitution. The Act declared the institution known as Hindi Sahitya Sammelan as an institution of national importance and constituted a statutory Sammelan as a body corporate by the name of the Hindi Sahitya Sammelar?. The Sammelan was to consist of the first members of the Society and all persons who might become thereafter in accordance with the rules made in that behalf by the first Governing Body to be constituted by the Central Government by notification. It also provided for vesting in the Sammelan of all property movable or immovable or of belonging to the society. Holding that if this law infringed the fundamental right of the citizens who constituted the society, the Supreme Court observed as follows:
It was argued that the right guaranteed by Article 19(1)(c) is only to form an association and, consequently, any regulation of the affairs of the Association, after it has been formed, will not amount to a breach of that right. It is true that it has been held by this Court that, after an Association has been formed and the right under Article 19(1)(c) has been exercised by the members forming it, they have no right to claim that its activities must also be permitted to be carried on in the manner they desire. Those cases are, however inapplicable to the present case. The Act does not merely regulate the administration of the affairs of the Society, what it does is to alter the composition of the Society itself as we have indicated above. The result of this change in composition is that the members, who voluntarily formed the Association, are now compelled to act in that Association with other members who have been imposed as members by the Act and in whose admission to membership they had no say. Such alteration in the composition of the Association itself clearly interfere with the right to continue to function as members of the Association which was voluntarily formed by the original founders. The right to form an association, in our opinion, necessarily implies that the persons forming the Association have also the right to continue to be associated with only those whom they voluntarily admit in the Association. Any law, by which members are introduced in the voluntary Association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association. If we were to accept the submission that the right guaranteed by Article 19(1)(c) is confined to the initial stage of forming an Association with the membership either chosen by the founders or regulated by. rules made by the Association itself, the right would be meaningless because, as soon as an Association is formed, a law may be passed interfering with its composition, so that the Association formed may not be able to function at all. The right can be effective only if it is held to include within it the right to continue the Association with its composition as voluntarily agreed upon by the persons forming the Association....
There are two other cases referred to in this judgment by the Supreme Court, (1) the case of O.K. Ghosh v. E. X. Joseph : (1962)IILLJ615SC , and (2) the Case of State of Madras v. V.G.Row : 1952CriLJ966 . In O. K. Ghosh v. E. X. Joseph : (1962)IILLJ615SC , the rule which said that no Government servant would join or continue to be a member of the Service Association of the Government servants, which had not within a period of six months from its formation, obtained the recognition of the Government under the rules prescribed in that behalf or recognition in respect of which had been refused or withdrawn by the Government under the said rules was declared ultra vires for the above reason that the Government servants were entitled to form associations or unions and that the rule imposed a restriction on this right. In Damayanthi Naranga v. Union of India : 3SCR840 , the Supreme Court thus said, .
That case, thus, supports our view that the right to form an Association includes the right to its continuance and any law altering the composition of the Association compulsorily will be a breach of the right to form the Association.
27. Damayanthi Naranga v. Union of India : 3SCR840 , however, has been distinguished by the Supreme Court in L.N. Mishra Institute of E.D. and Social Change v. State of Bihar : 3SCR311 , saying that the decisionin the Damayanthi Naranga v. Union of India : 3SCR840 , has no manner of application to the facts of the present case. In that case, the composition of the Society was interfered with by introducing new members which was construed by the Court as interference with the fundamental right of the Society to form association and continue the same. In the instant case, the composition of the society had not been touched at all. All that has been done is to nationalise the Institute of the Society by the acquisition of the assets and properties relating to the Institute. The Society may constitute its governing body in accordance with its rules without any interference by the Government.'
28. All India Bank Employees' Association v. National Industrial Tribunal : (1961)IILLJ385SC , is another case decided by the Supreme Court in which it is said that the right guaranteed by Article 19(1)(c) of the Constitution does not carry with it a concomitant right that unions formed for protecting the interests of labour shall achieve their object that any interference to such achievement by any law would be constitutional unless it could be justified under Article 19(4) as being in the interests of public order or morality and that the right under Article 19(1)(c) extends only to the formation of an association or union and in so far as the activities of the association or union are concerned or as regards the steps which the union might take to achieve its object, they are subject to such laws as may be framed and such laws cannot be tested under Article 19(4). But then this has to be understood that the. statement of law in Damayanthi Naranga v. Union of India : 3SCR840 , that right to form an association will include within it the right to continue the association. As held in L.N.Mishra Institute of E.D. and Social Change v. State of Bihar : 3SCR311 , Article 19(1)(c) does not extend to or embrace within it the objects or purposes or the activities of an association. In other words, it does not carry with it a further guarantee that the objects or purposes or activities of an association so formed shall not be interfered with by law except on grounds as mentioned in Article 19(1) namely, sovereignty and integrity of India or public order or morality. Thus the competence of the State Legislature has to be tested on the anvil of the right under Article 19(1)(c) that those who form the association have the right to continue the association and that in any interference in their right to continue the association will be an infringement of the right under Article 19(1)(c) and thus beyond the legislative competence unless protected under Article 19(4) of the Constitution.
29. There is, however, some observation in the Constitution Bench judgment of the Supreme Court in Daman Singh v. State of Punjab : 3SCR580 , with respect to a legislation providing for compulsory amalgamation of co-operative societies. The Supreme Court, however, noticed that Article 31-A(1)(c) of the Constitution protected such a law and also observed.
Once a person becomes a member of a co-operative society, he loses his individuality quo the society and he has no independent rights except those given to him by the statute and the by-laws. He must act and speak through the society or rather, the society alone can act and speak for him quo rights or duties of the society as a body. So if the statute which authorises compulsory amalgamation of co-operative societies provides for notice to the societies concerned, the requirement of natural justice is fully satisfied. The notice to the society will be deemed as notice to all its members.
30. The above observation was made by the Supreme Court in regard to the argument that the law giving power to amalgamate without notice to the individual members of the concerned co-operative societies violated the principles of natural justice.
31. Before, however, we advert to the facts of instant case and refer to the case of Smt. Indira Gandhi v. Raj Narain : 2SCR347 , which is a store house of many informations that the Courts may like to bear in mind in cases where legislative power qua right of citizens is required to be examined, we may refer to the case of Ameenmnissa v. Mahboob Begum : 4SCR404 . In that case, an Act known as Walliudowla Succession Act, 1950 was challenged as a law void under Article 13(2) of the Constitution to the extent that it affected the rights of the respondents, who petitioned before the High Court under Article 226 of the Constitution. The object of the impugned Act was to put an end to the disputes that existed at the time regarding the succession to the 'Matrooka' or personal estate of Nawab Walliuddowla, a wealthy noble man and a high dignitary of Hyderabad. The Act itself dismissed the claims of succession to the said property put forward by two of the alleged wives of the late Nawab named Mahboob Begum and Kadiran Begum and their children. The Supreme Court observed,
It is well settled that a Legislature which has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws to attain particular objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not 'per se' amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the Legislature has in view....The British Parliament enjoys legislative omnipotence and there are no constitutional limitations upon its authority or power. There were indeed a few statutes passed by the Provincial Legislature in India during British days which regulated succession to the estate of certain princely families. The Bijni Succession Act (II of 1911) passed by the Assam Legislature is an enactment of this type and it did shut out the rights of certain persons who claimed the Bijni estate under the Law of Inheritance. But at that time the Governor-General of India had express authority under the provisions of the Government of India Act, 1915, to authorize the Provincial Legislatures to make laws regarding subjects of a private nature. Quite apart from this, no question of infraction of the equal protection rule could arise in pre-Constitution days. We are not unmindful of the fact that the presumption is in favour of the constitutionality of an enactment but when on the fact of it a piece of legislation is palpably unreasonable and discriminatory and the selection or classification made by it cannot be justified on any conceivable or rational ground, the court has got to invalidate the enactment on the ground of its violating the equal protection clause.
This judgment thus is an authority that a law which will affect the private right will be ultra vires. Article 14 of the Constitution and thus invalid under Article 13(2) thereof. Coming to the case of Smt. Indira Gandhi v. Raj Narain : 2SCR347 , one of the contentions before the Supreme Court was that judicial review is an essential feature on basic structure. It is the doc-trine of separation of power that, just as legislative and executive functions, judicial review is the basic or essential function assigned to the courts/tribunals or other form of judicial mechanism. Ray, C.J. in his separate judgment has noted the information in regard to election disputes in these words: 'In England formerly Parliament used to hear election disputes. In 1870 Parliament found that because of political factions it would be better to leave the task of deciding controverted elections to Judges. Parliament delegated its power of deciding controverted elections to Courts. Under the English Law the Courts hear and make a report to Parliament. In America each House shall be the Judge of the elections, returns and qualifications of its own Members. That is Article 1, Section 5 of the American Constitution. In Australia any question of a disputed election to either House, shall be determined by the House in which the question arises. Under the German Federal Republic Constitution the legislature decides whether a person has lost his seat. Against the decision of the Bundestag an appeal shall lie to the Federal Constitutional Court.
The view of Story on the American Constitution is that the power to judge elections, returns and qualifications of the members of each House composing the legislature is to be lodged the legislature. Story stays that no other body can be so perpetually watchful to guard its own rights and privileges from infringement (See Story page 585)
In Corpus Juris, Vol.16 (1956), it is said that the judiciary cannot exercise powers which are to be found in the other two departments of Government which are normally legislative powers or which are generally executive in their nature. All matters relating to or affecting elections are political questions, and as such, are not questions for the judiciary. All matters relating to or affecting elections are in the absence of controlling constitutional or statutory provisions to the contrary, political questions and, as such, are, not questions for the judiciary. So, subject to express constitutional restrictions, all matters relating to the holding of elections and determining their results, including contests are political questions (pp.691,692,710).
In Corpus Juris, Vol.29 (1965), it is stated that under constitutional provision conferring on the legislature the power to determine by law, before what authority, and in what manner the trial of contested elections shall be conducted, the legislature is given broad power. A constitutional provision authorising the legislature to provide for the mode of contesting elections in all cases not otherwise specifically provided for in the Constitution itself confers on the legislature adequate authority to provide for all election contests and to determine where and by what means election contests shall be conducted. The right to contest an election is not a common law right. Elections belong to the political branch of the Government and, in the absence of the special constitutional or statutory provisions are beyond the control of the judicial power. Sections 245, 246). A contested election case is a proceeding in which the public is interested, since it is for the public good. An election contest is not merely a proceeding for the adjudication arid settlement of the private rights of rival claimants to an office. It is the public interest, not the parties' claims, which is the paramount legislative concern. [Section 247]
In America disputed elections are decided by the Legislature. In Taylor v. Beckham 44 L.Ed. 547, the American Supreme Court held that a determination of an election contest for the office of the Governor is a political question and is not justiciable. In Truman H. Newberry v. United States of America 65 L.Ed. 913, the American Supreme Court held that the manner of elections can be controlled. In David S. Bany v. United States of America Ex. Rel., Tomas W. Cunningham, 73 L.Ed. 867, the decision of the American Supreme Court in Charles W. Baker v. Joe C.Carr, 7 L.Ed. 663, was referred to in order to find out as to what aspects of election would be justiciable and not a political question. In Charles W. Baker v. Joe C. Carr, 7 L.Ed. 663, the delimitation of constituencies was held to be a justiciable issue. In Jullian Bond v. James Sloppy Floyd, 17 L. Ed.235, the exclusion of an elected representative because of his statement attacking the Vietnam policy was held to be justiciable on the ground that it was not within the jurisdiction of the Legislature to find out whether a member was sincere in regard to his mouth of the legislature. In Adam Clayton Powell v. John W. Mc.Cormack 23 L.Ed. 491, the disqualification by the House of a Congressman on the basis of qualification on the ground which was not in the Constitution was held to be justiciable. The Federal District Court has jurisdiction over the subject matter of controversies arising under the Constitution. The conferment of power on each House in America to be a judge of elections is an exclusive ground of power and constitutes the House to be the sole and ultimate Tribunal. The American decisions show that if the House claims additional power to disqualify a member on the ground other than those stated in the Constitution judicial review against disqualification would be available. in Jullian Bond v. James Sloppy Floyd 17 L.Ed. 235, disqualification was on an unconstitutional ground that his statement on Vietnam policy was a matter of free speech and expression. The court did not decide an election dispute but as a custodian of judicial power judged whether the House was acting within its power.
Parliament itself can also hear election disputes. That was the English practice until the Grenville Act, 1968 when Parliament conferred power on courts. Before 1770, controverted elections were tried by the whole House of Commons as party questions. The House found that the exercise of its privilege could be submitted to a Tribunal constituted by the law to secure impartiality in the administration of justice according to the laws of the land. In 1868 the jurisdiction of the House is the trial of controverted elections was transferred by statute to the courts of law. The present procedure is contained in the English Representation of the People Act, 1949. The trial is confided to judges selected from the judiciary. Provision is made in each case for constituting a rata from whom these judges are selected. The house has no cognizance of these proceedings until their determination when the judges certify their determination when the judgescertify their determination in writing, to the Speaker, which is final to all intents and purposes. Trial is not a proceeding of the House. The judges are to make a report in any case where charge has been made in the petition of corrupt and illegal practice. Provision is also made for the trial of a special case. All certificates and reports of the election court are entered in the Journals of the House. Under Section 124(5) of the English Representation of the People Act, 1949, it is the duty of the House to make orders for carrying the determination of the judges into execution.'
32. Khanna, J. and others who constituted the majority of the Bench of the Supreme Court, have given to us clear reason as to the role that a legislature may play with respect to matters which should be left for adjudication by the Courts. Before, however, we refer to their views in this regard, we may take notice of the issue that the Supreme Court was considering.
33. The election of Shrimathi Indira Gandhi, who incidentally was the Prime Minister of the country was challenged before the Allahabad High Court. The Court accepted the case of the petitioner and held that the election was vitiated for the reason of certain corrupt practices and other violations of the rules of law. The Parliament in the exercise of its constitutional power passed the Constitution (Thirty-Ninth Amendment) Act, 1975. By the Amendment, Article 71 of the Constitution was substituted by a new Article and that Article provided by Clause (1) that subject to the provisions of the Constitution, Parliament may, by law, regulate any matter relating to or connected with the decision of a President or Vice President including the grounds on which such election may be questioned. By Clause (2) of the Article, it was provided that all doubts and disputes arising out of or in connection with the election of President or Vice-President shall be inquired into and decided by such authority or body in such manner as may be provided for by or under any law referred to in Clause (1), Clause (3) stated that the validity of any such law referred to in Clause (1) and the decision of any authority or body under such law shall not be called in question in any court. By Clause 4 of the Amendment, Article 329-A was inserted reading as follows:
A special provision as to elections to Parliament in the case of Prime Minister and Speaker: (1) subject to the provisions of Chapter II of Part V (except sub-Clause (e), of Clause (1) of Article 102) no election (a) to either House of Parliament of a person who holds the office of the Prime Minister at the time of such election or is appointed as Prime Minister after such election:
(b) to the House of the people of a person who holds the office of a Speaker of that House at the time of such election or who is chosen as the Speaker for that House after such election: shall be called in question except before such authority (not being any such authority as is referred to in Clause (b) of Article 329 or body and in such manner as may be provided for by or under any law made by Parliament and any such law may provide for all other matters relating to doubts and disputes in relation to such election including the grounds on which such election may be questioned; (2) The validity of any such law as it referred to in Clause (1) and the decision of any authority or body under such law shall not be called in question in any court.
(3) Where any person is appointed as Prime Minister or as the case may be, chosen to the office of the Speaker of the House of the People, while an election petition referred to in Clause (b) of Article 329 in respect of his election to either House of Parliament or, as the case may be, to the House of the People is pending, such election petition shall abate upon such person being appointed as Prime Minister or, as the case may be, being chosen to the office of the Speaker of the House of the People, but such election may be called in question under any such law as is referred to in Clause (1).
(4) No law made by Parliament before commencement of the Constitution (Thirtyninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in Clause (1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void, or has, before such commencement, been declared to be void under any such law, and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.
(5) Any appeal or cross appeal against any such order of any court as is referred to in Clause (4) pending immediately before the commencement of the Constitution of (Thirty Ninth Amendment) Act, 1975 before the Supreme Court shall be disposed of in conformity with the provisions of Clause (4). (6) The provisions of this Article shall have effect notwithstanding anything contained in this Constitution.
34. The contention before the Court was that Clause (4) above damaged some of the basic structures of the Constitution. The argument was that although the amending body could declare that the election of the appellant shall not be deemed to be void and the judgment of the High Court to be void on the basis that no law relating to election petition and matters connected therewith would apply to the election, yet the amending body could not have held the election to be valid as it did not ascertain the facts relating to the election and apply the relevant law to them (Italics is ours). The submission was that by its very nature, an election dispute in a democratic system of government raises questions which can be decided only by the exercise of judicial power; that by retrospectively rendering the forum for investigation into the complaints regarding the validity of the election of the appellant coram non judice, and by the amending body judging its validity without ascertaining the facts (Italics is ours) and applying the relevant law, the Amendment has fundamentally damaged an essential feature of the democratic structure of the Constitution, namely, free and fair election.
35. Khanna, J., referred to the judgment of the Judicial Committee in the case of Don John Douglas Liyange v. The Queen, 1967 A.C. 259, in which the validity of the Criminal Law (Special Provisions) Act, 1962 of the Parliament of Ceylon was examined and declared ultra vires and void on the ground that it involved the usurpation and infringement by the Legislature of the judicial powers inconsistent with the written constitution of Ceylon. The Judicial Committee, however, expressly referred to the fact that he impugned legislation had not been passed by two-third majority in the manner required for the amendment of the Constitution contained in Section 29(4) of the Constitution and observed:
There was speculation during the argument as to what the position would be if Parliament sought to procure such a result by first amending the Constitution by a two-thirds majority. But such a situation does not arise here. In so far as any Act passed without recourse to Scc.29(4) of the Constitution purports to usurp or infringe the judicial power it is ultra vires.
Our Supreme Court, however, expressed no final opinion about it but said,
The declaration that her election was to be valid in all respects necessarily involved the process of going into the grounds on which her election had been assailed and holding those grounds to be either factually incorrect or to be of such a nature as in law did not warrant the declaration of her election to be void. The case of the appellant is that some of the grounds mentioned against her were factually incorrect and in respect of those grounds the findings of the High Court are against the respondent and in her favour. In respect of some other grounds, except in one or two matters there is not much divergence between the appellant and the respondent on the question of facts. The point of controversy between the parties mainly is that, according to the respondent, those facts constituted corrupt practice as defined in Section 123 of the Representation of People Act, while according to the appellant those facts did not constitute corrupt practice. In any case, according to the appellant, in view of the amendment made in the Representation of People Act by amending Acts 58 of 1974 and 40 of 1975, these facts did not constitute corrupt practice. The declaration made in part (iii) of Clause (4) that the election of the appellant was to be valid in all respects was tantamount in the very nature of things to the repelling of the grounds advanced by the respondent to challenge the election of the appellant. Question therefore arises as to what, if any, was the law which was applied in repelling the grounds advanced by the respondent to challenge the election of the appellant. So far as the existing law relating to election disputes was concerned, part (i) of Clause (4) expressly stated that such a law would not apply to the petition filed by the respondent to challenge the election of the appellant. This means that the provisions of the Representation of the People Act were not to apply to the petition filed by the respondent against the appellant. This also means that the amending Acts 58 of 1974 and 40 of 1975 were not to apply to the dispute relating to election of the appellant.
The dispute relating to the election of the appellant is also not to be governed by law which is to be enacted under Clause (1) of Article 329-A. Such a law would apply only to future elections. The result is that so far as the dispute relating to the election of the appellant is concerned, a legal vacuum came into existence. It was open to the constituent authority to fill that vacuum by prescribing a law which was to govern the dispute arising out of the petition filed by the respondent to challenge the election of the appellant. The constituent authority, however, did not do so and straightaway proceeded to declare the election of the appellant to be valid. There is nothing in Clause (4) to indicate that the constituent authority applied any law in declaring the election of the appellant to be valid and if so, what was that law.
I am unable to accede to the argument that the constituent authority kept in view the provisions of the Representation of People Act as amended by Act 58 of 1974 and 40 of 1975 and their impact on the challenge to the election of the appellant in declaring the election of the appellant to be valid. The difficulty in accepting this argument is that in part (i) of Clause (4) the constituent authority expressly stated that the previous law, namely, the Representation of People Act as amended in so far as it related to election petitions and matters connected therewith was not to apply so far as the challenge to the election of the appellant was concerned. It is also difficult to agree that the constituent authority took into account some other unspecified law or norm in declaring the election of the appellant to be valid. As mentioned earlier, there is nothing in Clause (4) to indicate that the constituent authority took into account some other law and norm and if so, what that law or norm was. The position which thus emerges is that according to Clause (4) no law was to apply for adjudicating upon the challenge to the election of the appellant and the same was in terms of part (iii) to be valid in all respects. The question with which we are concerned is whether the provisions of Clause (4) of Article 329-A by which the constituent authority in effect prescribed that no election law was to govern the challenge to the election of the appellant and that the same in any case was to be valid in all respects is a permissible piece of constitutional amendment or whether it is void on the ground that it affects the basic structure of the Constitution.
36. Khanna, J., referred to various authorities including the judgments in the case of His Holiness Kesavananda Bharathi v. State of Kerala : AIR1973SC1461 and N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors. : 1SCR218 , to state that democratic set-up was part of the basic structure of the Constitution Democracy postulates that there should be periodical elections, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representatives. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of deference to mass opinion. Free and fair elections require that the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections. Even in the absence of unfair means and malpractices, sometimes the result of an election is materially affected because of the improper rejection of ballot papers. Likewise, the result of an election may be materially affected on account of the improper rejection of a nomination paper. Disputes, therefore, arise with regard to the validity of elections. For the resolving of those disputes, the different democratic countries of the world have made provisions prescribing the law and the forum for the resolving of those disputes. In the judgment of Khanna, J., it is said,
To give a few examples, we may refer to the United Kingdom where a Parliamentary election petition is tried by two judges on the rota for the trial of parliamentary election petitions in accordance with the Representation of the People Act, 1949. Section 5 of Article 1 of the U.S. Constitution provides that each House (Senate and the House of Representatives) shall be the judge of the elections, returns and qualifications of its own members, Section 47 of the Australian Constitution provides that until the Parliament otherwise provides, any question respecting the qualification of a Senator or of a member of the House of Representative, or respecting a vacancy in either House of Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises. Article 55 of the Japanese Constitution states that each House shall judge disputes related to qualifications of its members. However, in order to deny a seat to any member, it is necessary to pass a resolution by a majority of two-thirds or more of the members present Article 46 of the Ireland Constitution provides that the Althing itself decides whether its members are legally elected and also whether a member is disqualified. Article 64 of the Norwegian Constitution states that the representatives elected shall be furnished with certificates, the validity of which shall be submitted to the judgment of Storting. Article 59 of the French Constitution provides that the Constitutional Council shall rule, in the case of disagreement, on the regularity of the election of deputies and senators. Article 41 of the German Federal Republic Constitution states that the scrutiny of election shall be the responsibility of the Bundestag. It shall also decide whether a deputy has lost his seat in the Bundenstag. Against the decision of the Bundestag an appeal shall lie to the Federal Constitutional Court. Details shall be regulated by a federal law. According to Article 66 of the Italian Constitution, each Chamber decides as to the validity of the admission of its own Members and as to cases subsequently arising concerning ineligibility and incompatibility. In Turkey Article 75 provides inter alia that it shall be the function of Supreme Election Board to review and pass final judgment on all irregularities, complaints and objections regarding election matters during and after elections. The function and powers of the Supreme Election Board shall be regulated by law. Article 53 of the Malaysian Constitution provides that if any question arises whether a member of a House of Parliament has become disqualified for membership, the decision of that House shall be final.
37. Having thus examined the laws in different countries, Khanna, J., said,
Not much argument is needed to show that unless there be a machinery for resolving an election dispute and for going into the allegations that elections were not free and fair being vitiated by malpractices, the provision that a candidate should not resort to malpractices would be in the nature of a mere pious wish without any legal sanction. It is further plain that if the validity of the election of a candidate is challenged on some grounds, the said election can be declared to be valid only if we provide a forum for going into those grounds and prescribe a law for adjudicating upon those grounds. If the said forum finds that the grounds advanced to challenge the election are not well-founded or are not sufficient to in validace the election in accordance with the prescribed law or dismisses the petition to challenge the election on some other ground, in such an event it can be said that the election of the returned candidate is valid. Besides other things, election laws lay down a code of conduct in election matters and prescribe, what may be called, rules of electoral morality. Election laws also contain a provision for resolving disputes and determination of controversies which must inevitably arise in election matters as they arise in other spheres of human activity. The object of such a provision is to enforce rules of electoral morality and to punish deviance from the prescribed code of conduct in election matters. It is manifest that but for such a provision, there would be no sanction for the above code of conduct and rules of electoral morality. It is also plain that nothing would bring the code of conduct into greater contempt and make a greater mockery of it than the absence of a provision to punish its violation. The position would become all the more glaring that even though a provision exists on the statute book for punishing violation of the code of conduct in election matters, a particular election is made immune and granted exemption from the operation of such a provision.' Khanna, J., also, however, observed,
I agree that it is not necessary in a democratic set-up that disputes relating to the validity of the elections must be settled by courts of law. There are many countries like France, Japan and the United States of America where consistently with the democratic set-up the determination of such controversies is by Legislatures or by authorities other than the courts. The question with which we are concerned, however, is whether it is permissible in a democratic set-up that a dispute with regard to the validity of a particular election shall not be raised before any forum and shall not be governed by law and whether such an election can be declared, despite the existence of a dispute relating to its validity, to be valid by making the existing law relating to election disputes not applicable to it and also by not applying any other election law to such a dispute. The answer to such a question, for the reason given earlier by me, should be in the negative.
38. Khanna, J., has referred to the case of State of Orissa v. Bhupendra Kumar Bose (1962) 2 S.C.R. 380, in these words:
It arose out of elections to the Cuttack Municipality held in December, 1957 to March 1958 as a result of which 27 appellants were declared elected as Councillors. The respondent, who was defeated at the elections, filed a writ petition before the High Court challenging the elections. The High Court held that the electoral rolls had not been prepared in accordance with the provisions of the Orissa Municipalities Act 1950, as the age qualification had been published too late thereby curtailing the period of claims and objections to the preliminary roll to 2 days from 21 days as prescribed. The High Court consequently set aside the elections. The State took the view that the judgment affected not merely the Cuttack Municipality but other municipalities also. Accordingly, the Governor promulgated an Ordinance validating the elections to the Cuttack Municipality and validating the electoral rolls prepared in respect of various municipalities. The respondent thereupon filed a writ petition before the High Court contending that the ordinance was unconstitutional. The High Court struck down the Ordinance. One of the grounds which weighed with the High Court in striking down the Ordinance was that it contravened Article 14 of the Constitution. The State and the Councillors came in appeal to this Court. It was held by this Court that the Ordinance was valid and that it successfully cured the invalidity of the electoral rolls and of elections to the Cuttack Municipality. The Ordinance was further held not to offend Article 14 of the Constitution as its object was not only to save the elections to the Cuttack Municipality, but also to other municipalities whose validity might be challenged on similar grounds. The Ordinance, in the opinion of the Court, did not single out the respondent for discriminatory treatment. Gajendragadkar, J., (as he then was) speaking for the Constitution Bench of this Court observed: 'The Cuttack Municipal elections had been set aside by the High Court and if the Governor thought that in the public interest, having regard to the factors enumerated in the Preamble to the Ordinance, it was necessary to validate the said elections, it would not necessarily follow that the Ordinance suffers from the vice contravening Article 14.
Therefore, if the infirmity in the electoral rolls on which the decision of the High Court in the earlier writ petition was based, had not been applicable to the electoral rolls in regard to other Municipalities in the State of Orissa, then it may have been open to the Governor to issue an Ordinance only in respect of the Cuttack Municipal Elections, and if, on account of special circumstances or reasons applicable to the Cuttack Municipal Elections, a law was passed in respect of the said elections alone, it could not have been challenged as unconstitutional under Article 14. Similarly, if Mr. Bose was the only litigant affected by the decision and as such formed a class by himself, it would have been open to the Legislature to make a law only in respect of his case. But as we have already pointed out, the Ordinance does not purport to limit its operation only to the Cuttack Municipality; it purports to validate the Cuttack Municipal Elections and the electoral rolls in respect of other Municipalities as well. Therefore, we are satisfied that the High Court was in error in coming to the conclusion that Section 4 contravenes Article 14 of the the Constitution.
39. The above passage clarifies that the Legislature shall be competent to enact a law with respect to election disputes and that there would be no contravention of Article 14 of the Constitution in case it is applied to a class of the elected candidates, and that can be done amending the basic provisions under which elections are challenged in Courts. But such amendment should not affect the basic structures of democratic set-up.
40. What are the basic structures of the Constitution are pointed out by the Supreme Court in His Holiness Kesavananda Bharathi, Sirpadagalavaru v. State of Kerala and Anr. : AIR1973SC1461 . The illustrations include.
(1) supremacy of the Constitution,
(2) democratic republican form of government,
(3) secular character of the Constitution,
(4) separation of powers among the Legislature, Executive and Judiciary,
(5) the federal character of the Constitution.
(6) Rule of Law,
(7) equality of status and of opportunity;
(8) justice, social, economic and political;
(9) unity and integrity of the nation, and
(10) the dignity of the individual secured by various provisions of the Constitution. The consensus being that democracy is a basic structure of the Constitution.
The consensus being that democracy is a basic structure of the Constitution.
41. Mathew, J., in his separate judgment in the case of Smt. Indira Gandhi v. Raj Narain : 2SCR347 , held that Clause (4) of Article 329-A of the Constitution destroyed the basic structure of the Constitution and observed,
One way of looking at the first part of Clause (4) is that the amending body has, with retrospective effect, repealed the law relating to election petition in respect of the persons specified in Clause (1) and hence the judgment renderedon the basis of the previous law relating to election petition became automatically void, and the amending body was merely stating the consequence of the retrospective repeal of the law and therefore the declaration that the judgment was void was not an exercise of judicial function. On the other hand, it might be possible function to view the first part of Clause (4) as an exercise of judicial power for the reason that, even assuming that by virtue of the retrospective repeal of the law relating to election petition, there was no jurisdiction in the High Court to entertain or try the election petition and pass the judgment, a repeal simpliciter did not render the judgment ipso facto void, the amending body was performing a function which has traditionally been in the province of court. Be that as it may, I feel no doubt that the amending body, when it declared the election of the appellant to be valid, had to ascertain the adjudicative facts and apply the relevant norm for adjudging its validity. If however, the amending body did not ascertain the facts relating to the election and apply the relevant norm the declaration of the validity of the election was a fiat of a sui generis character of the amending body.
Adjudicative facts as indicated by Mathew, J. are facts about the parties or their activities, businesses and properties usually answering the questions of who did what, where, when, how why, with what motive or intent; adjudicative facts are roughly the kind of facts that go to a jury in a jury case. Legislative facts do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law, policy and discretion. Mathew, J., also pointed out that facts pertaining to the parties and their activities that is, adjudicative facts, are intrinsically the kind of facts that ordinarily ought not to be determined without giving the parties a chance to know and to meet any evidence that may be unfavourable to them, that is, without providing the parties an opportunity for trial. He also observed in one place that an election dispute has a public aspect in that it is concerned more with the right of aconstituency to be represented by a particular candidate. But it does not follow from the public character of the controversy that there is no lis between the parties to the election contest, and that the lis can be resolved otherwise than by ascertaining the facts relating to the election, and applying the relevant law. He has said,
According to the historic analysis, the essence of the distinction between the legislative power and judicial power is that the legislature makes new law which becomes binding on all persons over whom the legislature exercises legislative power; the judicature applies already existing law in the resolution of disputes between particular parties; and judges may not deviate from this duty. This view of the distinction between the obligation to apply and enforce rules and a discretion to modify rules are make new rules was at one time applied uncompromisingly in describing functions as legislative or judicial. Thus De Lolme said that courts of equity as then existing in England had a legislative function. They are, he said, a kind of inferior experimental legislature, continually employed in finding out and providing law remedies for those new species of cases for which neither the courts of common law, nor the legislature have as yet found it convenient or practicable to establish any (see the Constitution of England, New Ed. (1800 p. 149). Though this would how that neither for logic nor in language has the boundary between legislation and adjudication ever been rigidly and clearly drawn, the distinction between the two is well established. If, therefore, the decision of the amending body that the election of the appellant was valid was the result of the exercise of judicial power or of despotic discretion governed solely by considerations of political expediency, the question is, whether that decision, though couched in the form of an enactment, can be characterized as an amendment of the Constitution.
42. Explaining his own observations in His Holiness Kesavananda Bharathi v. State of Kerala : AIR1973SC1461 ..Under the Indian Constitution, the original sovereign-the people-created, by the amending clause of the Constitution, a lessor sovereign, almost co-extensive in power with itself. This sovereign, the one established by the revolutionary act of the full or complete sovereign has been called by Max Radin, the 'prosovereign', the holder of the amending power under the Constitution,' Mathew, J., said,
I fully appreciate that 'sovereign', if conceived of as an omnipotent being has no existence in the real world. Several thoughtful writers have deprecated the use of the expression in legal discussion as it has the logical and religious overtones. Nevertheless, as the practice has become inveterate, it will only create confusion if any departure is made in this case from the practice. If it is made clear that the sovereign is not a 'mortal God' and can express himself or itself only in the manner and form prescribed by law and can be sovereign only when he or it acts in a certain way also prescribed by law, then perhaps the use of the expression will have no harmful consequence.' Mathew, J., quoted from 'The Theory of Sovereignty Restated by WJ. Rees quoted at page 68 of 'In Defence of Sovereignty', ed. W.L. Stankiewiez, (Mind, Vol. LIX 1950),
'Legal sovereignty' is a capacity to determine the actions of persons in certain intended ways by means of a law....where the actions of those who exercise the authority, in those respects in which they do exercise it, are not subject to any exercise by other persons of the kind of authority which they are exercising.
43. The distinction between constitution law and ordinary law in a constitution like ours is that the validity of the constitutional law cannot be challenged whereas that of ordinary law can be challenged on the touchstone of constitution. But constitutional law is as much law as ordinary law. A Constitution cannot consist of a string of isolated dooms and thus constitutional law as much as the ordinary law must stand the test of being in no way transgressing into the fields reserved for others in the democratic framework. Mathew, J., has said,
A judgment or sentence which is the result of the exercise of judicial power or of despotic discretion is not a law as it has got the generality which is an essential characteristic of law. A despotic decision without ascertaining the facts of a case and applying the law to them, though dressed in the garb of law, is like a bill of attainder. It is a legislative judgment.
44. We are not saying more, for we ourselves may commit transgression of the constitutional limitation, upon it we are only looking into some of the observations in this behalf in the judgment of the Supreme Court in the case of Smt. Indira Gandhi v. Raj Namin : 2SCR347 , we do not propose to extract many other passages in the separate judgments of the Honourable Judges constituting the Bench. We, however, cannot resist from referring to a small passage in the judgment of Mathew, J., which reads,
It is no doubt true that the House of Commons in England used to pass bills of attainder. But the practice has fallen into desuetude, since the year 1696. A bill of attainder is a special Act of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. The legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions (See 3 J. Story, Commentaries on the Constitution of the United States (Boston, 1833), 1388.
In U.S. v. Brown, the Supreme Court of United States of America stated that the main reason why the power to pass bill at attainder was taken away from the Congress was:
Everyone must concede that a legislative body, from its number and organisation and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamour, is not properly constituted to try with coolness, caution, and impartiality a criminal charge, especially in those cases in which the popular feeling is strongly excited the very class of cases most likely to be prosecuted by this mode' (see Cooley, Constitutional Limitations, pp.536-537, 8th ed., (1927) Macaulay's account of the attainder of Sir John Fenwick in 1696, the last in the History of the House of Commons, is particularly vivid:
Much the same reason will apply to the resolution of an election dispute by an amending body as it consists, in all democratic countries, of an assembly of parsons like Parliament.
45. Being aware, however, of the fact that the Parliament or appropriate Legislature may confer upon itself the judicial power as well, Mathew, J., said,
The major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence; and, the difficulty has been to discover the practical means of achieving this grand objective and to find the opportunity for applying these means in the ever shifting tangle of human affairs. A large part of the effort of man over centuries has been expended in seeking a solution of this great problem. A reign of law, in contrast to the tyranny of power can be achieved only through separating appropriately the several powers of government. If the law makers should also be the constant administrators and dispensers of law and justice, then, the people, would be left without a remedy in case of injustice since no appeal can lie under the fiat against such a supremacy. And, in this age-old search of political philosophers for the secret of sound government, combined with individual liberty, it was Montesquieu who first saw the light. He was the first among the political philosophers who saw the necessity of separating judicial power from the Executive and Legislative branches of government. Montesquieu was the first to conceive of the three functions of government as exercised by three organs, each juxtaposed against others. He realised that the efficient operation of government involved a certain degree of overlapping and that the theory of checks and balances required each organ to impede too great an aggrandizement of authority by the other two powers... There can be no liberty where the legislative and executive powers are united in the same person or body of Magistrates, or, if the power of judging be not separated from the legislative and executive powers...Nobody can deny that by passing a law within its competence, Parliament can vest judicial power in any authority for deciding a dispute or vest a part of that power in itself for resolving a controversy, as there is no exclusive vesting of judicial power in courts by the Constitution. The doctrine of separation of powers which is directed against the concentration of the whole or substantial part of the judicial power in the Legislature or the Executive would not be a bar to the vesting of such a power in itself. But, until a law is passed enabling it to do so, its potential judicial power would not become actual...A sovereign in any system of civilized jurisprudence is not like an oriental despot who can do anything he likes, in any manner he likes and at any time he likes. That the Nizam of Hyderabad had legislative, judicial and executive powers and could exercise any one of them by a firman has no relevance when we are considering how a pre-sovereign the holder of the amending power-in a country governed by a constitution should function. Such a sovereign can express 'himself only by passing a particular kind of law; and not through sporadic acts... If the basic postulate that a sovereign can act only by enacting laws is correct, then that is a limitation upon his power to do anything he likes. If I may re-parte the classical statement of Sir Owen Dixon: The law that a sovereign can act only by law is supreme but as to what may be done by a law so made, the sovereign is supreme over that law (See 'Law and the Constitution', 50 Law Quarterly Rev. 590, 604). Of course, this is subject to the theory of basic structure. In other words, even though a sovereign can act only by making law, the law he so makes may vest the authority to exercise judicial power in himself, without such law he cannot exercise judicial power.
46. The case of Damayanthi Naranga v. Union of India : 3SCR840 , which has been distinguished in the case of L.N. Mishra Institute of E.D. and Social Change v. State of Bihar : 3SCR311 , is relevant for the purpose of understanding as to what is the meaningand extent of freedom to form an association. The Hindi Sahitya Sammelan was a registered society founded for the development ad propagation of Hindi. After a number of years of its successful working, difference arose between its members and this has resulted in litigation. In 1956, the Uttar Pradesh Legislature passed the Uttar Pradesh Hindi Sahitya Sammelan Act under which a statutory body was created under the name of the Hindi Sahitya Sammelan. This Act was declared as void by the Allahabad High Court as violating the freedom to form an association under Article 19(1)(c) of the Constitution. Thereafter, Parliament enacted the Hindi Sahitya Sammelan Act, 1962, legislating under Entry 63, List I of the Seventh Schedule, declaring that the institution known as Hindi Sahitya Sammelan' is an institution of national importance and by the Act constituted a statutory Sammelan as a body corporate. Under Section 4(1) of the Act, the Sammelan was to consist of the first members of the Society and all persons who might become thereafter in accordance with the rules made in that behalf by the first Governing Body to be constituted by the Central Government by notification. The Supreme Court held, that the right guaranteed by Article 19(1)(c) cannot be confined to the initial stage of forming an Association and if it is so confined, the right would be meaningless, because, as soon as an Association is formed a law may be passed interfering with its composition, so that the association formed may not be able to function at all. The right can be effective only, if it is held to include within it the right to continue the Association with its composition as voluntarily agreed upon by the persons forming the Association.
47. We have reiterated the statement of the principles of law by the Supreme Court in the case of Damayanthi Naranga v. Union of India : 3SCR840 , forweshall presently see when we advert to the facts of the instant case that the formation of the societies voluntarily by the members thereof strictly in accordance with the provisions of the Act and the rules, regulations and by-laws framed thereunder and the statutory right to elect and nominate as provided under the Act, the members to constitute the Board of Management has been suddenly dealt with by the Legislature by introducing the Amendment Act. We have already seen that in the case of L. N. Mishra Institute of E.D. and Social Change v. State of Bihar : 3SCR311 , the Supreme Court has pointed out that Damayanthi Naranga v. Union of India : 3SCR840 , was one in which the Act did not merely regulate the administration or the affairs of the society, but it altered the composition of the society itself. The result of this change in composition was that the members, who voluntarily formed the society, were compelled to act in the Association with other members who have been imposed as members by the Act and in whose admission to membership, they had no say and that the right to form an association necessarily implied that the persons forming the Association had also the right to continue to be associated with only those whom they voluntarily admitted in the Association. Any law by which members were introduced in the voluntary Association without any option being given to the members to keep them out of any law which had taken away the membership of those who had voluntarily joined it, according to the Supreme Court would be a law violating the right to form an association and further that the right guaranteed by Article 19(1)(c) was not confined to initial stage of the forming of Association, but also included within it the right to continue in the Association. In the case of All India Bank Employees' Association v. National Industrial Tribunal : (1961)IILLJ385SC , the Supreme Court observed that the right guaranteed by Article 19(1)(c) of the Constitution does not carry with it a concomitant right that unions formed for protecting the 'interests of labour shall achieve their object such that any interference to such achievement by any law would be unconstitutional unless it could be justified under Article 19(4) as being in the interests of public order or morality and that the right under Article 19(1)(c) extends only to the formation of an association or union and in so far as the activities of the association or union are concerned or as regards the steps which the union might take to achieve its object, they are subject to such laws as may be framed and such laws cannot be tested under Article 19(4).
48. These observations of the Supreme Court thus show that there can be laws regulating/restricting the exercise of the right under Article19(1)(c) as provided under Article 19(4) of the Constitution that is to say, in the interests of the sovereignty and integrity of India and Public order or morality as well as beyond within the legislative competence such as in the case of co-operative societies and other societies as to incorporation, regulation and winding up (See Item 32 of the State List).
49. Our brief study of the relevant aspects of the laws which enable to Courts to go into the validity of the enactments by the legislatures thus compels us to restrict our examination of the validity of the impugned Amendment Act to seeing whether the Amendment Act in substance is beyond the powers of the Legislature to legislate upon or whether the Legislature has transgressed its power by adopting a device in oblique or covert manner to achieve something other than the subject of legislation or whether by it there is any encroachment upon the fundamental freedom to form associations, which right includes the right to its continuance without interference. We cannot, as courts of law, enquire into the propriety of the exercise of the legislative power. We have to proceed on the assumption that the legislative discretion is properly exercised. We must repel any arguments as to the ill motive or mala fides, for Courts must keep off from such examination. We have, however, seen the limitation on the legislative power of the State. Item 32 of the State List of the Seventh Schedule empowers the State legislature to legislate with respect to incorporation, regulation and winding up of corporations and co-operative societies. Such laws as to incorporation and regulation of Co-operative societies can undoubtedly take into their fold all schemes as to the Constitution of the Board of Management etc., fixation of tenure of a member of the Board of Management and the determination of the members' rights. Since the legislature is competent also to make laws providing for forums for adjudication of disputes it, with or without the right to sue in a Civil or Criminal Court, can create a special forum for adjudication of disputes arising under its laws or even embracing various other kinds of disputes which otherwise will fall within the jurisdiction of the Civil and/or Criminal Courts. We have already noticed that a machinery for resolving election disputes and for going into the allegations that elections were not free and fair, being vitiated by malpractices is a must, for it will be going against the basic structure of the Constitution if elections are made automatically void or automatically valid and if such a power is assumed by the Legislature, it will amount to exercise of judicial power. Adjudicatory facts are facts about the parties or their activities, businesses and properties usually answering the questions of who did what where, when, how, why, with what, motive or intent, the kind of facts that go to court or Tribunal unlike legislative facts which do not concern the immediate parties and which only give to the Legislature the basis for formation of policy and thus enacting laws. Ordinarily, the petitioner or the complainant and the person against whom allegations are made should get opportunity to have their say and unless they got such opportunity, a lis between the parties will not be determined or decided. To confirm or annul without ever being ascertained and without there being answers to what, where, when, how and why, will be unfair and unjust. Unless there is a forum for such determination, even though purporting to be an act of a legislature of a Democratic Republic, it shall be an act of a despot. Members elected or nominated in accordance with the provisions of Tamil Nadu Act 30of 1983, and having a tenure, have been unseated by the enactment in 'Section 3 of the Ordinance and the Act as under this the term of office has been made to expire on the appointed day and thus they have been asked to vacate their office on and from the appointed day. That has been done for the reasons inter alia, that
(1) the Tamil Nadu Co-operative Societies Amendment Act, 1990 (Tamilnadu Act 26 of 1990) provided for thirty per cent representation for Women and 18 per cent representation for Scheduled Castes and Scheduled Tribes in the boards of registered co-operative societies and for nomination of the representatives of women and Scheduled Castes and Scheduled Tribes if women and Scheduled Castes and Scheduled Tribes members were not elected to that extent; In the election to the boards of the primary co-operative societies held in the year 1990, representatives of women and Scheduled Castes and Scheduled Tribes were not elected in the extent of thirty per cent and eighteen per cent respectively. A large number of representatives of women' Scheduled Castes and Scheduled Tribes disproportionate to the elected members have been nominated. This had resulted in an abnormal tilt towards the nominated members. The abnormal tilt towards nominated members was not conducive to the orderly development of co-operative movement. It was also not in consonance with the principles of democratic management of co-operatives. (2) A number of complaints has been received by the Government regarding the malpractices in the conduct of election and in the management of the affairs of the primary co-operative societies.
50. For these reasons the Government with a view to set right the abnormal tilt towards the nominated members and also to ensure the proper management of the said co-operative societies, decided to amend the Act suitably and also to conduct election to all co-operative societies after the amendment. Pending amendment, it was decided to supersede the boards of management of the primary societies and to appoint Special Officers for a limited period in the public interest.
51. The first above, which has been one of the reasons for the Amendment Act resulted not on account of any fault on the part of the members of the society but for the reason of the provisions in the Tamil Nadu Co-operative Societies Amendment Act, 1990 which prescribes thirty per cent representation for woman and eighteen per cent representation to Scheduled Castes and Scheduled Tribes in the boards of registered co-operative societies and for nomination of the representatives of women and Scheduled Castes and Scheduled Tribes members if they were not elected to that extent. No one can question the authority of the Legislature to amending the provisions that created a tilt in favour of nominated members. But this tilt, if at all, was caused not for any other reason, but the power to nominate created by Tamil Nadu Act 26 of 1990. Those who got elected or nominated, acquired a statutory right and the Act which gave such right to them still holds the field. The Preamble says that the Government has decided to amend the Act 30 of 1983 suitably so that the tilt does not exist. This amendment is yet to be made. The Government's desire to make the amendment may or may not be accepted by the Legislature, the Legislature may decide in favour of continuing the amendments by Tamil Nadu Act 26 of 1990, it may not put forward future amendments.
52. We have not found any provision in the Act which empowers the State Government to receive complaints and/or to determine whether the complaints were true or not. It is, however said, that a number of complaints were received by the Government regarding malpractices in the conduct of election and in the management of the affairs of the primary co-operative societies. The Act has provided forums for such complaints to be made and empowered the forums to adjudicate. These provisions are besides what Section 9 of the Code of Civil Procedure prescribes that any Civil dispute can be taken to a civil court of competent jurisdiction or various provisions of the major and minor criminal laws. The questions what, where, when, how, why, with what motive and intent all falling in the category of adjudicative facts have been answered by the legislature that those who have been elected for a term of office shall cease forthwith to hold their respective offices and in their place the Special Officers shall assume charge. 52-A. The Legislature's competence to make laws with respect to co-operative societies in item 32 of the State List which is confined to make laws as to incorporation, regulation and winding up of co-operative societies does not and cannot extend to judging electoral malpractices in the elections held for the membership of the Board and/or other office bearers of the society. True, as held by the Supreme Court, in a democratic set-up, disputes relating to the validity of elections need not be settled by Courts of law only. Nonetheless, an independent mechanism alone can justify interference on the ground of electoral malpractices in the tenure of office of the elected members of the Board. A decision as to maladministration by those who have been elected to administer the society in accordance with the provisions of the Act, the Rules and the By-laws will be despotic if the rule of adversary adjudication is ignored and on complaints in the hands of the Government of the State. A legislative decision imposed upon the society and its members that those constituting the Board indulged in maladministration, will be a pronouncement of guilt of a sort in exercise of legislative power without there being any adjudication. No Legislature shall assume such power, We say so with respect, for as observed in U.S. v. Brown, 381 U.S. 487, by the Supreme Court of United States of America,
Every one must concede that a legislative body, from its numbers and organisation and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamour, is not properly constituted to try with coolness, caution, and impartiality a criminal charge, especially in those cases in which the popular feeling is strongly excited the very class of cases most likely to be prosecuted by this mode.
The charges that were brought before the Government and which formed the basis of the Ordinance and the Act may not essentially be criminal charges, but they are in the nature of allegations that may safely be called quasi-criminal, reiterating the words Mathew, J, in the case of Smt. Indira Gandhi v. Raj Narain : 2SCR347 ,
even though a sovereign can act only by making law, the law he so makes may vest the authority to exercise judicial power.
The legislature could exercise the judicial power only if a law made by it for the said purpose empowered it to act in judicial capacity. The sovereign act of the legislature in the teeth of basic structure theory is an exercise that we must not countenance.
53. Section 5 of the Act, which has given to the Government power to appoint an Advisory Board consisting of not more than five non-official members to advise the Special Officer and which Board shall be consulted by the Special Officer on all matters relating to the affairs of the primary society, is perhaps a provision which creates somesemblance of a democratic functioning of the society during the interregnum for which the Special Officer has been appointed under the impugned Amendment Act. But then it is not indicated who will be the members of this Advisory Board. If they are coming from areas they are not covered by the primary society concerned in the sense that not all the persons who qualify for membership in the society, it is going to pollute the society and interfere with the right of the members of the society under Article 19(1)(c) of the Constitution. There are laws which give power to the Government to nominate until a regular body is created in accordance with law. There are laws which say that a municipal board or any other local self government may be constituted in a particular area until such constitution of the municipality or the self-government, certain persons are nominated and notified to function as the board of the local self-government. But then such persons must qualify to be members of the board of municipality and/or the local self-government. If they come otherwise to constitute the board of management, they not only interfere with the right of the local self-government but also interfere with the freedom of association. In the case of Baldev Singh v. State of M.P. : AIR1987SC1239 , the Supreme Court pointed out.
Ours is a democratic polity. At every level, from the villages up to the national level, democratic institutions have been introduced. The villages are under Gram Panchayats, urban areas under Municipalities and Corporations, districts are under Parishads; for the State there is a Legislature and for the entire country. We have the Parliament. People residing within Gram Panchayats have their electoral rights to exercise and in exercise of such rights, they have, elected their representatives. Citizens of India have a right to decide, what should be the nature of their society in which they live-agrarian, semi-urban or urban. Admittedly, the way of life varies, depending upon where one lives.
That was a judgment in which they say that guidelines are necessary and if detailed guidelines are not indicated in the section, yet from the provisions contained therein, it can be gathered as to what guidelines are given. We are, however, informed that rules have not been framed prescribing qualifications for members of the Advisory Board. It is thus premature to say that for the reason of absence of any qualification of the five non-official members to constitute the Advisory Board of the society, the constitutional guarantees have been violated. The absence of guidelines, no doubt, render a provision of law arbitrary. But arbitrariness with respect to the nomination of five non-official members to advise the Special Officer, can be rectified by the rules and if care is taken to ensure that such members come from amongst the members of the society only and belong to the categories which constitute the board. Therefore, it is not possible at this stage to say that Section 5 of the impugned Act is stricken by such a serious vice which will render it invalid.
54. Another infirmity argued before us is in respect of the appointment of Special Officers. Sub-section (2) of Section 7 of the Amendment Act has given to the Government the power to authorise the Registrar by notification to exercise any of the powers vested in them under Section 4 or under Section 5 in respect of all or any of the primary societies. It is said that in many societies persons who are not the Registrar but appointed to exercise some or all the powers of the Registrar have been authorised by the Government to appoint Special Officers. Some of the appointment letters of the Special Officers have been produced before the Court. Section 3 of 1083 Act says,
The Government may appoint any officer of the Government to be Registrar of Co-operative Societies for the State of Tamil Nadu or any portion of it or for any class or classes or category or categories of registered societies and may, by general or special order, confer on any other officer of the Government or any officer of any body corporate owned or controlled by the Government all or any of the powers of a Registrar under this Act.
The two divisions of Section 3 of the Act clearly distinguish between an officer, who is appointed as the Registrar and the officer of the Government or any officer of any body corporate owned or controlled by the Government who is vested with all or any of the powers of the Registrar under the Act. While a person who falls in the first category is the Registrar, since the Act contemplates delegation of the governmental functions under Section 4 or Section 5 of the Amendment Act to him, he can be authorised by the Government to appoint Special Officers, those who, however, fall in the second category, they are not the Registrar. They are persons who have been given a limited role to exercise all or some of the powers of the Registrar under the Act. Merely because such powers are conferred upon them, they cannot be the Registrar, although they function as Registrar for the purposes of the Act, 1983. They cannot act as delegates of the State Government for Section 7of the Amendment Act limits the delegation to Registrar only.
55. The view that we have taken may lead it to hold that the Amendment Act is a colourable exercise of power and the legislature has acted beyond its competence in terminating the tenure of elected or nominated members of the boards of management of the primary co-operative societies. Our conclusions will also lead us to hold that appointments of the Special Officers by the persons who are not appointed as the Registrar but are merely conferred the powers of the Registrar are illegal.
56. We are, however, aware of the fact that the societies have already been superseded and the Special Officers have been appointed and the administration of the societies has been taken over by them. In the case of S. L. Kapoor v. Jagmohan : 1SCR746 , the Supreme Court found that supersession of a municipal committee was illegal, but then put the question what relief should be given to the appellant? The superseded Municipal Committee's term was almost reaching its completion. The Supreme Court said,
If now the order is quashed and the Committee is directed to be reinstated with liberty to the Lt. Governor to proceed according to law-this should be our order ordinarily, it may lead to confusion and even chaos in the affairs of the Municipality ... We have held that the notification is vitiated by the failure to observe the principles of natural justice and we let the matter rest there. We neither quash the notification nor reinstate the Committee. Nor are we to be understood as having expressed any opinion on the merits of the supersession. We allow the appeal in the manner indicated.
57. When we ask the same question, we find a situation in which the petitioners may suggest that the Amendment Act as well as the consequential appointment of the Special Officers should be quashed. That will be ordinarily an order that a Court on account of the findings recorded by us may pass. Thus, if the Amendment Act goes and consequently the Special Officer is also out of office, unless there is a mandamus issued to restore the erstwhile members of the Boards of Management to their respective offices, there shall be no one to manage the affairs of the superseded societies. Should we then follow this course and issue a mandamus to restore the erstwhile members of the Boards of Management to their respective offices? Only a few of the superseded societies have come before us. Many thousands have accepted supersession and the Special Officers are comfortably functioning in such societies. It is not known how in the event of removal of the Special Officers, this Court would succeed in reinstating the removed members of the Board to their respective offices. While the Amendment Act and the supersession may be said to have affected the society, which is a juristic entity, the persons de facto affected are such members, who were elected and/or nominated, but were removed as a consequence of the enforcement of the Amendment Act. Most of them or not before us. Those who are before us claim to represent their respective societies. It will be difficult to transfer to them the management of the society in the absence of any mechanism created for the said purpose. There shall be confusion all around and the Court may not and should not like to create chaos. We have carefully examined the facts of individual cases. It has been conceded on behalf of the respondents that the Board of Management of the Society petitioner in W.P. No. 13883 of 1991 has not been superseded and no Special Officer has been appointed in that Society. So far as other petitioners are concerned, their grievance is that although Boards of Management of their societies were constituted and they were entitled to continue for their full term of office, they have been removed by the appointment of the Special Officers. In some of the cases, their further grievance is that the Special Officers have been appointed not by the Registrar but by the persons who have been only empowered to act as Registrar. Yet, any change in the status quo without a scheme to re-start the democratic process, in our opinion, shall cause and confound confusion and chaos.
58. The respondents have submitted a scheme and it is said that they have submitted this scheme before the Supreme Court in W.P. (Civil) No. 758 of 1991. The scheme states that the State of Tamil Nadu proposed to hold elections for the primary co-operative societies. The Schedule for conducting the elections is as follows:
(i) Enrolment of Women and Scheduled Castes/Schedule Tribes members to the required extent by 31.12.1991.
(ii) Amending the Tamil Nadu Co-operative Societies Act, 1983 and the Tamil Nadu Co-operative Societies Rules, 1988 by 31.01.1992.
(iii) Amending by-laws of various co-operative societies by 28.02.1992.
(iv) Completing the elections for all the primary co-operative societies by 31.05.1992.
This solemn promise, we have every reason to believe, shall be fulfilled by the State and it shall in no way depart from the schedule. We are unaware of the amendment that may be made in the Act, the rules and the bylaws. Therefore, it is not possible to predicate how they will affect the members of the society. We, however, hope and believe that the State will do nothing that will infringe any such right of the members of the primary co-operative societies which will give rise to further litigations. The schedule, if adhered to, will bring back the management in the hands of the members of the society and thus the Amendment Act shall operate only as a transitory law and the Special Officers shall function only as a stop gap arrangement. We, for the said reason, determine as above that the Amendment Act suffers from the vice of legislative incompetence and arbitrariness thus violating Arts. 14 and 13 of the Constitution of India but issue no writ either in the nature of certiorari or in the nature of mandamus. We, however, direct the State to act in accordance with the schedule for enrolment of women, Scheduled Castes and Scheduled Tribes members to the required extent, for amending the Tamil Nadu Co-operative Societies Act, 1983 and the Tamil Nadu Co-operative Societies Rule, 1988 and by-laws of various co-operative societies and for completing the elections for all primary co-operative societies without fail.
59. With the directions as above, the writ petitions are disposed of. No costs.