COMMON JUDGMENT
Introduction:
A rash of writ petitions has been filed: some by existing societies and some by yet-to-be-born societies. Some of the existing societies seek expansion; the other complain of competition as a result of that proposed expansion. Yet-to-be-born societies assert that their right to be established is a fundamental right under Article 19 (1) (c) of the Constitution. They complain about what is termed unconstitutional restriction in Section 7 (1) (c) of the Kerala Co- operative Societies Act coming in their way of getting registered as new societies.
2. Though the petitioners are different, the respondents are,
3
WPC 12728/13 & con. cases 2 more or less, the same. Further, through all the issues—disparate as they seem—runs a common theme: the vires of Section 7 (1) (c) of the Act. Hence, I propose to consider and dispose of all the writ petitions through a common judgment. The facts and legal submissions from each writ petition are referred to the extent relevant.
W.P. (C) No. 12728/2013:
3. The petitioner, an Urban Co-operative Society, was established on 01.01.1988 with eight revenue villages in Wayanad District as its area of operation. Later, it has further extended its operations into a few more villages of the same district. The petitioner is a Class IV society.
4. On the other hand, the third respondent is an Urban Co- operative Bank with its area of operation limited to Bathery Taluk. Beginning from 2003, the third respondent Bank has intermittently tried to extend its area of operation but, at every turn, it faced
4
WPC 12728/13 & con. cases 3 opposition—and successfully, at that—from the petitioner. Eventually, in 2012 the third respondent succeeded in its efforts to have its area of operation extended despite the petitioner's objection. The objection all along has been that the third respondent's expansion is nothing but an encroachment on the petitioner's area of operation and that it starkly violates Section 7(c) of the Kerala Co-operative Societies Act ('the Act'). The first respondent, the Joint Registrar of Co-operative Societies, issued Exhibit P9 order rejecting the petitioner's objections and consequently permitting the third respondent to extend its area of operation.
5. Impugning Exhibit P9 order, the petitioner Bank has filed the present writ petitions.
6. Sri P. C. Sasidharan, the learned counsel for the petitioner, has strenuously contended that Section 7(c) of the Act is eloquent that no society shall have its area of operation extended encroaching upon the area of operation of any other society, more particularly a
5
WPC 12728/13 & con. cases 4 similar society. According to him, the petitioner and the third respondent are similar societies. Emphasizing Section 12 of the Act, the learned counsel has also contended that no amendment of the bye-laws can be permitted if it violates the statutory mandate—in this case, Section 7(c) of the Act.
7. In elaboration of his submissions, the learned counsel has submitted that in terms of Section 8 of the Act, no co-operative society shall be registered if it is likely to be economically unsound or its registration may have an adverse effect on the co-operative movement.
8. Referring to section 80 of the Act and Rule 15 of the Kerala Co-operative Societies Rules ('the Rules'), in relation to the impugned Exhibit P9 order, the learned counsel contends that it is entirely fallacious on the first respondent's part to hold that the petitioner and the third respondent are two different societies when they are, he argues, one and the same type. Expatiating on his
6
WPC 12728/13 & con. cases 5 submissions, the learned counsel has emphasised that among the three types of societies, both Urban Co-operative Bank and Primary Agricultural Credit Society fall under the same category.
9. Summing up his submissions, the learned counsel has submitted that Exhibit P9 order cannot be sustained and accordingly deserves to be set aside.
W.P. (C) No.926 of 2016:
10. Apart from filing its counter affidavit in W.P. (C) No. 12728/2013, the third respondent Bank filed W.P.(C) No.926/2016 seeking, in effect, implementation of exhibit P9 order, which was assailed in W.P.(C) No. 12728/2013. As the pleadings in W.P. (C) No.925/2016 are in defence of Exhibit P9 order, it is appropriate to straightaway advert to the contentions of the learned Senior Counsel for the third respondent.
11. Sri T.A. Shaji, the learned Senior Counsel, to begin with, has contended that the third respondent Bank amended the bye-laws
7
WPC 12728/13 & con. cases 6 and had them registered under Section 12 read with Rule 9 of the Rules. Vehemently opposing the petitioner's contention that the petitioner and the third respondent belong to the same category, the learned Senior Counsel has drawn my attention to Section 2 of the Act. The Urban Co-operative Bank and Urban Co-operative Society, according to him, are distinct and different, as seen from the definitions in clauses (ta) and (taa) of Section 2 of the Act.
12. In elaboration, the learned Senior Counsel has also contended that Section 7(1) (c) comes into operation only when there is overlapping of areas of similar societies. He has further submitted that an Urban Co-operative Banks is a distinct entity placed under the heading "insured co-operative bank" in rule 15 under category (1) AA.
13. Further expatiating on his submissions, the learned Senior Counsel has submitted that the third respondent has already been included in the newly constituted TAFCUB, a joint body of the
8
WPC 12728/13 & con. cases 7 Reserve Bank of India, the State Government, and Urban Banks Federation formed consequent to the MOU entered into between the Reserve Bank of India and Government of Kerala in 2008. With its huge deposit base, the third respondent Bank, already included in Tier-II category, has been permitted by the RBI to open its branches anywhere in the district. According to him, by an order dated 26.03.2015, the RBI has allowed the third respondent to open branches in its newly extended areas.
14. Adverting to the fact that the petitioner Society obtained an interim stay against the third respondent's establishing any branches in 2013, the learned Senior Counsel contends that for about three years it has been obstructive of the third respondent's efforts to expand. The learned Senior Counsel would emphasise that the third respondent Bank, having obtained all the necessary permits, has already taken the required building in certain areas on lease. Any delay in permitting the third respondent to open its branches,
9
WPC 12728/13 & con. cases 8 according to him, will have an adverse impact on its banking operations, thereby depriving the customers of quality banking services.
15. Eventually the learned Senior Counsel has referred to Exhibit P5 in W.P.(C)No.925/2016, a communication from the Registrar of Co-operative Societies permitting the third respondent to open new branches. It is the learned Senior Counsel's singular contention that despite Exhibit P5, an order given by a superior official, the first respondent has issued Exhibit P6 nullifying Exhibit P5. In that context, the learned Senior Counsel has sought the judicial intervention: the quashing of exhibit P6, so that the third respondent could proceed further to establish new branches.
16. In the end, the learned Senior Counsel has submitted that in the light of the 97thconstitutional amendment, establishing a co-operative society has become a fundamental right and if any restriction must be read into the said fundamental right, it ought to
10
WPC 12728/13 & con. cases 9 be within the four corners of the explanations provided under clauses
(2) to (6) of Article 19, but not beyond. In other words, the learned Senior Counsel would have us accept that Section 7(c) has to yield to the constitutional mandate under Article 243-Z, if one were to assume the petitioner and the third respondent to be similar Societies with areas overlapping.
W.P. (C) No.15889/2013:
17. The petitioner, an Urban Co-operative Society registered in 1997, also apprehends that the third respondent has been trying to encroach upon its area of operation. After initial objections, the petitioner filed W.P. (C) No.1853/2013, which this Court disposed on 18.01.2013 directing the Registrar of Co-operative Societies to consider the petitioner's objections.
18. As is evident from the record, after considering the petitioner's objections the first respondent passed Exhibit P7 order permitting the third respondent to extend its area of operation.
11
WPC 12728/13 & con. cases 10 Exhibit P7 in this writ petition is Exhibit P9 in W.P. (C) No.12728/2013.
W.P. (C) No.37829/2015:
19. The same Urban Co-operative Society filed a second writ petition questioning the consequential steps taken by the third respondent in the wake of the extended area of its operations on the strength of Exhibit P9 order.
W.P. (C) No.13988/2014:
20. The petitioner is the Apex Co-operative Bank having the whole district of Wayanad as its area of operation. It has also, like other rival societies, mounted a challenge against the third respondent's extending its area of operation.
W.P. (C) No.27122 of 2015:
21. The petitioner, the Chief Promoter of a proposed Co- operative Society at Bharananganam Grama Panchayat, Kottayam District, initially applied to the Assistant Registrar for registering a
12
WPC 12728/13 & con. cases 11 new society. Despite the Assistant Registrar's recommendation, the Joint Registrar refused to register the new society. Aggrieved, the petitioner filed WP (C) No.19056/2015, in which this Court directed the Joint Registrar to pass a speaking order, for it has found the impugned order to be cryptic and devoid of reasoning.
22. Consequently, through an order dated 15.11.2014, the Joint Registrar permitted the petitioner to raise the preliminary paid- up capital. After raising the necessary capital, the petitioner renewed his request. Complaining that the Joint Registrar had passed no orders on his application, the petitioner, once again, filed WP (C) No.16094 of 2015. The result: another rejection by the Joint Registrar. Predictably, one more time, the petitioner filed WP (C) No.19056/2015 impugning the second rejection. This Court, through its judgment, dated 17.7.2015, further directed the Joint Registrar to pass orders in terms of Section 7 of the Act. This time, too, it resulted in another rejection, dated 7.8.2015. Assailing the final
13
WPC 12728/13 & con. cases 12 rejection, the petitioner has filed this writ petition.
23. The learned counsel for the petitioner has strenuously contended that the Joint Registrar is not justified in repeatedly rejecting the petitioner's request for having the new society registered. According to him, Section 7 of the Act provides for an elaborate procedural mechanism to be followed by the Joint Registrar while he considers any application for registering a society. He did not follow the procedure.
24. The learned counsel has also contended that the Joint Registrar has infracted the principles of natural justice, for he has not heard the petitioner before rejecting the petitioner's claim. He has also contended that the impugned order of rejection is devoid of any merit. Eventually, he has urged this Court to direct the Joint Registrar to register the new society.
W.P. (C) No.31061/2015:
25. The petitioner is said to be the Chief Promoter of a
14
WPC 12728/13 & con. cases 13 proposed Agricultural Improvement Co-operative Society with its office at Alanadu in Bharananganam Panchayat. The petitioner with other promoters initially applied before the second respondent for registering the co-operative society with the entire Panchayat as its area of operation. The third respondent, after conducting a preliminary verification of records and after conducting an enquiry, recommended for registration of the society.
26. When the application for registration reached the second respondent's office, he directed the petitioner to submit a revised application liming the area of operation of the proposed Society. Accordingly, the general body of the promoters met, resolved to limit its area of operation to six wards, and submitted a revised proposal. The third respondent recommended for registration of the society as a primary co-operative society by the third respondent. In anticipation of the society's registration, the petitioner collected the share capital of the society from its promoters and deposited it.
15
WPC 12728/13 & con. cases 14
27. But the second respondent has not further processed the petitioner's application under Sections 6 and 7 of the Act despite the petitioner satisfying all the statutory requirements.
28. The petitioner further complains that one Sri Regi Mathew has also applied for registration of a society by showing all the thirteen wards of same Grama Panchayat as its area of operation. The application rejected, Sri Regi Mathew has challenged the order in W.P. (C) No.27122/2015. The petitioner suspects that the authorities do not want to process his application until this Court decides Sri Regi Mathew's writ petition.
29. The learned counsel for the petitioner, in the above factual background, has submitted that given the 97thConstitutional Amendment, the petitioner's right to establish a co-operative society is fundamental. It cannot be negated. He has also taken me through various constitutional and statutory provisions. The sum and substance of his argument is that Section 7 (1) (c) of the Act is ultra
16
WPC 12728/13 & con. cases 15 vires in the light of 97thConstitutional Amendment. According to him, even if Sri Regi Mathew's application for registration of another society in the same area is pending, still the third respondent is bound to register the petitioner's society. Despite the petitioners' plea for judicial invalidation of legislation, the first respondent has not filed any counter affidavit; nor has it made any substantial submissions to sustain Section 7(1)(c) of the Act.
The Relief Sought:
30. A declaration that Section 7(1) (C) of the Kerala Co- operative Societies Act, 1969, which impedes the registration of new Co-operative Societies of similar type in the same area of operation is hit by Article 19(1)(C) of the Constitution of India; the said provision is illegal and unconstitutional. A consequential direction, too, is sought: to command the Joint Registrar to consider the petitioner's application in the light of the Assistant Registrar's recommendation.
17
WPC 12728/13 & con. cases 16
31. Heard Sri P.C.Sasidharan, the learned counsel for the petitioners in W.P. (C) No.12728 of 2013; Sri T. A.Shaji, the learned Senior Counsel for the petitioner in W. P. (C) No.925 of 2016; Sri. P.K.Ramkumar, the learned counsel for the petitioners in W.P. (C) Nos.15889 of 2013 & 37829 of 2015; Sri Millu Dandapani, the learned counsel for the petitioner in W.P. (C) No.13988 of 2014; Sri Shaji Thomas, the learned counsel for the petitioner in W.P. (C) No.31601 of 2015; and Sri Baby Thomas, the learned Counsel for the petitioner in W.P. (C) No.27122 of 2015, as well as the learned Government Pleader, apart from perusing the record.
Issue:
Is Section 7 (1) (c) of the Kerala Co-operative Societies Act unconstitutional?
Discussion:
32. Though many issues have been raised, the primary or threshold issue concerns the impact of 97thConstitutional Amendment—the insertion of 'co-operative societies' into Article 19
18
WPC 12728/13 & con. cases 17
(1) (c)—on Section 7 (1) (c) of the Kerala Co-operative Societies Act, 1969 ('the Act'). On the outcome of this threshold issue depends the need or necessity of adjudicating the other issues: If Section 7 (1)
(c) cannot survive in the backdrop of the 97thConstitutional Amendment, the adjudication of other issues may also be obviated. Hence, I propose to proceed confining the discussion to the primary issue.
33. As the issue is a pure question of law with a constitutional significant, I may discuss the statutory scheme first. Act 21 of 1969 was enacted to consolidate, amend, and unify the laws relating to co-operative societies in the State of Kerala.
Statutory Scheme:
The Act:
34. The preamble to the Act spells out that the Act aims at an orderly development of the Co-operative sector in the State under the Co-operative principles: to self-govern the democratic institutions
19
WPC 12728/13 & con. cases 18 to achieve the objects of equity, social justice, and economic development, as envisaged in the Directive Principles of State Policy of the Constitution of India. It is also to promote scientific and technological development, health care, market intervention, and management excellence in the Co-operative Sector.
35. The Statement of Objects and Reasons ('SOR') of the Act further delineates that the laws relating to co-operative societies had been strewn around in different principalities and the Unified Madras State. It was, then, considered necessary to enact a uniform law on the subject applicable throughout the State, for the field of co- operative activity had been expanding.
36. As to the establishment of the Societies, the talismanic provision is Section 7—especially Sub-clause (c) of Clause (1), which reads restrictions into the right to establish the co-operative societies. As most of the rival societies have made the provision their sheet-anchor, it is but apposite to examine the provision, which
20
WPC 12728/13 & con. cases 19 reads, to the extent relevant, thus:
Section 7:- (1) If the Registrar is satisfied-
(a) That the application complies with the provisions of this Act and the rules;
(b) That the objects of the proposed society are in accordance with Section 4;
(c) That the area of operation of the proposed society and the area of operation of another society of similar type do not overlap.
(d) That the proposed bye-laws are not contrary to the provisions of this Act and the rules; and
(e) That the proposed society complies with the requirements of sound business;
He may register the society and its bye-laws within a period of ninety days from the date of receipt of the application.
(2) . . .
(3) . . .
(4) . . .
(emphasis added
Constitutional Mandate:
37. In the Statement of Objects and Reasons (SOR) to the Constitutional Amendment, these reformatory reasons have been cited as the reason for the amendment: (a) weaknesses in safeguarding the interests of the members and fulfilment of objects for which the co-operative institutions were organised; (b)
21
WPC 12728/13 & con. cases 20 Postponement of elections indefinitely and ad-hoc administration by nominated office bearers or administrators; (c) reduced accountability; (d) inadequate professional management and low productivity; and (e) the need to run the cooperatives on well- established democratic principles.
38. To achieve the above objective, the Amendment has, apart from inserting 'co-operative societies' in Article 19 (1) (c), has incorporated a new Part (Part IX-B) in the Constitution, which is in addition to adding a new article (Art.43-B) in Part IV of the Constitution (Directive Principles of State Policy). The State Legislatures have been empowered to make laws to provide for these matters:
(a) Incorporation, regulation and winding up of co-operative societies based on the principles of democratic member- control, member-economic participation, and autonomous functioning;
(b) to specify the maximum number of directors of a co- operative society to be not exceeding twenty-one members;
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WPC 12728/13 & con. cases 21
(c) to provide for a fixed term of five years from the date of election in respect of the elected members of the board and its office bearers;
(d) to provide for a maximum time limit of six months during which a board of directors of co-operative society could be superseded or kept under suspension;
(e) to provide for independent professional audit;
(f) to provide for the right of information to the members of the co-operative societies;
(g) to empower the State Governments to obtain periodic reports of activities and accounts of co-operative societies;
(h) to provide for the reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on the board of every co-operative society, which have individuals as members from such categories;
(i) to provide for offences relating to co-operative societies and penalties in respect of such offences.
The Constitutional Amendment:
39. 97thConstitutional Amendment received the assent of the President on 12.01.2012, notified in the Gazette of India on 13.01.2012, and came into force on 15.02.2012. The effect of the amendment is set out below:
Articles 19:
19. Protection of certain rights regarding freedom of speech, etc. -
(1) All citizens shall have the right.-
(a) to freedom of speech and expression;
(b) xxx
(c) to form associations or unions, co-operative societies;
23
WPC 12728/13 & con. cases 22
(d) to (g) xxx
(2) Nothing in Sub-clause (a) of Clause (i) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
(3) xxx
(4) Nothing in Sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent 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 sub-clause.
(5) xxx
(6) xxx"
Article 43-B:
43-B. Promotion of co-operative societies—The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.
Part IX-B: The Co-operative Societies
40. Article 243-ZH is a lexical clause defining various expressions. Article 243-ZI empowers the Legislature of a State to make provisions concerning the incorporation, regulation, and winding up of co-operative societies. It shall be based on the
24
WPC 12728/13 & con. cases 23 principles of voluntary formation, democratic member-control, member-economic participation, and autonomous functioning. Article 243-ZJ delineates on the number and term of members of the board and its office bearers. Article 243-ZK deals with the election of members of board; Article 243-ZL with supersession and suspension of board and interim management; Article 243-ZM with audit of accounts of co-operative societies; Article 243-ZN with the convening of general body meetings; Article 243-ZO with the right of a member to get information; Article 243-ZP with returns; Article 243-ZQ with offences and penalties; whereas Articles 243-ZR and 243-ZS deal with multi-State co-operative societies Union territories respectively.
41. If we examine further, Article 243-ZT, beginning with a non-obstante clause, protects the extant laws inconsistent with Part IX-B to be in force until amended or repealed or until the expiration of one year from such commencement, whichever is less. Indisputably, the expiration took place long back. As observed in
25
WPC 12728/13 & con. cases 24 Vipulbhai M. Chaudhary v. State of Gujarat1by 12.01.2013, all laws on cooperative societies were bound to be 'restructured' in consonance with the 97thAmendment. In any case, any provision in the Act or Rules or Bye-laws inconsistent with the Constitution shall be inoperative thereafter. Straight and simple is the constitutional mandate in Articles 43-B and 243 ZI to all the States and the competent authorities to structure cooperative societies as conceived in the Constitutional Amendment.
Fundamental Right:
42. In Thalappalam Service Coop. Bank Ltd., v. State of Kerala2 the Apex Court has discussed the autonomy of co-operatives vis-à- vis the constitutional provisions. It has tellingly observed in para 19 of the judgment that the rights of the citizens to form co-operative societies voluntarily has now been raised to the level of a fundamental right and State shall endeavour to promote their autonomous functioning. Thalappalam further observes (Para 20)
1
(2015) 8 SCC 1
(2013) 16 SCC 82
2
WPC 12728/13 & con. cases 25 that the constitutional amendment has been effected to encourage economic activities of co-operatives, which in turn help the rural India progress. Societies are expected, according to Thalappalam, not only to ensure the autonomous and democratic functioning of cooperatives, but also accountability of the management to the members and other stake-holders.
43. Once we accept that establishing a co-operative society is a fundamental right, the corollary is to examine the impact of constitutional limitations on that fundamental right. Clauses (2) to (6) of Article 19 enumerate the limitations on all the fundamental freedoms listed out in sub-clauses (1) to (5) of Clause (1) of the same Article. For our purpose, Clause (4) is relevant. It reads thus:
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent 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 Sub-clause.
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WPC 12728/13 & con. cases 26
44. As we shall see, the restrictions based on the sovereignty and integrity of India, the security of the State, public order, decency or morality run common in certain other clauses dealing with the other fundamental freedoms: notably Clauses (2) & (3).
Freedom of Association:
45. Forming a co-operative society combines two fundamental freedoms: 1. Right to form associations, etc,; 2. Right to carry on economic activity. But the latter falls short of a right under Art.19 (1) (g), for establishing a co-operative society can hardly be called a profession. Nor can be it called an occupation, trade, or business, all of which have the motive of making a living out of it, and, incidentally, the motive of making profit, too. A cooperative society is a collective effort of a given group of people to improve their economic lot collectively, however. That said, we should also acknowledge that running the society may be imbued with sound
28
WPC 12728/13 & con. cases 27 business principles, but that financial prudence does not by itself qualify it to be a trade as has been contemplated under Sub-clause
(g) of Art.19 (1). It is, therefore, essentially a right under Art.19 (1) (c).
46. As regards restrictions on fundamental freedoms, our constitutional courts have taken as one of the determinative criteria the doctrine of clear and present danger initially expounded by Justice Oliver Wendell Holmes Jr., in Schenck v. United States3. Before indulging in a detailed discussion on jurisprudential contours of public order, I may briefly note the comparative perspective on the issue whether the threat to 'public order' can be likened with 'the clear and present danger'.
47. To begin with, I may note that the American Constitution has not mentioned the right to form an association or the association of people as a fundamental right; nor do the Amendments, which contain the core of fundamental freedoms. Yet, by judicial
29
WPC 12728/13 & con. cases 28 interpretation—we may as well call innovation—the American Supreme Court construed the First Amendment (free speech) and the Fourteenth Amendment (due process) to include certain penumbral or peripheral rights: Freedom to associate and privacy in one's associations are included. First, the First Amendment has been read as implicitly protecting people's right to associate with each other for expressive purposes. Second, this right has further been held to be a facet of due process. In NAACP v. Patterson4the American Supreme Court has gone a step further and held thus:
[I]t is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the
"liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.
(internal citations omitted; emphasis supplied)
4
WPC 12728/13 & con. cases 29 freedom of expressive association. The freedom of intimate association protects ''certain kinds of highly personal relationships,'' such as marriage. The freedom of expressive association, on the other hand, protects ''the right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends5. Succinctly stated, the American Supreme Court has taken the right as an aspect of free speech. In contrast, our Constitution has expressly enumerated the right to association as fundamental rather than peripheral. The upshot is that its curtailment must be strictly construed.
Clear and Present Danger:
49. The "clear and present danger" doctrine, an enduring one, was born out of Schenck in 1919. The question before the Supreme Court was whether the defendant, the general secretary of the Socialist Party of America, had a First-Amendment right to distribute pamphlets opposed to the draft during the First World War. The
Encyclopedia of the American Constitution, Vol.3, P.1110
5
WPC 12728/13 & con. cases 30 Court ruled unanimously that the defendant did not have that right. Justice Holmes admirably asserted thus:
We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.
50. After much cogitation and precedential churning, the American Supreme Court in Dennis v. United States6converted the clear and present danger test into a clear and probable danger test. It led to a balancing test. While imminence and immediacy test is the essential requirement in the doctrine of clear and danger, the probable danger test (seriousness of the anticipated evil as its guiding factor) is the essential requirement in the doctrine of clear
341 U.S. 494 (1951)
6
WPC 12728/13 & con. cases 31 and probable danger. In other words, in the aftermath of Dennis, the Court moved away from the clear and present danger test and relied instead on ad hoc balancing to determine the limits of First Amendment protection in the area of internal security. It may, however, be interesting to note that the US Supreme Court has again veered back to the Holmes' proposition in Brandenburg v. Ohio7 (1969), by reaffirming the essential concept of the clear and present danger doctrine, but by limiting its application to what could be termed as an "imminent lawless action."
Public Order:
51. Before we examine the semantic as well as the constitutional significance of the term 'Public Order,' it is apt to bear in mind that the expression is not unique in its application to the rights under Art.19 (1) (c). It is employed in other parts of the same article, too. The question, therefore, is whether the expression is analogous, if not synonymous to, with that used in other parts. The
395 U.S. 444 (1969)
7
WPC 12728/13 & con. cases 32 Apex Court in O.K. Ghosh v. E.X. Joseph8, has squarely answered this decisional dilemma thus:
The words "public order" occur even in clause (2), which refers, inter alia, to security of the State and public order. There can be no doubt that the said words must have the same meaning in both clauses (2) and (4). So far as clause (2) is concerned, security of the State having been expressly and specifically provided for, public order cannot include the security of State, though in its widest sense it may be capable of including the said concept. Therefore, in clause (2), public order is virtually synonymous with public peace, safety and tranquillity. The denotation of the said words cannot be any wider in clause (4). That is one consideration which it is necessary to bear in mind. When clause (4) refers to the restriction imposed in the interests of public order, it is necessary to enquire as to what is the effect of the words "in the interests of". This clause again cannot be interpreted to mean that even if the connection between the restriction and the public order is remote and indirect, the restriction can be said to be in the interests of public order. A restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct. Indirect or far-fetched or unreal connection between the restriction and public order would not fall within the purview of the expression
"in the interests of public order". This interpretation is strengthened by the other requirement of clause (4) that, by itself, the restriction ought to be reasonable. It would be difficult to hold that a restriction which does not directly relate to public order can be said to be reasonable on the ground that its connection with public order is remote or far-fetched. That is another consideration which is relevant. Therefore, reading the two requirements of clause (4), it follows that the impugned restriction can be said to satisfy the test of clause (4) only if its connection with public order is shown to be rationally proximate and direct.
AIR 1963 SC 812
8
WPC 12728/13 & con. cases 33
52. The above proposition on the inter-relationship of different clauses in Art.19 can be tabulated thus9:
Art.19 Nature of Right Restrictions Sl.
No.
(1) (a) Freedom of Speech and Expression
(i)
(ii)
(iii)
(iv)
(v)
the sovereignty and integrity of India the security of the State
friendly relations with foreign States
public order, decency or morality in relation to contempt of court, defamation or incitement to an offence
(b) right to assemble peaceably and
without arms
(i)
(ii)
the sovereignty and integrity of India
public order
(c) Right to form associations or unions; co-
operative societies
(i) (ii) the sovereignty and integrity of India
public order or morality
(d) & (e) right to move freely and/or to reside and settle throughout the
territory of India (i)
(ii)
In the interest of the general public
the protection of the interests of Scheduled Tribes
(f) deleted deleted
Taking a cue from Dharam Dutt v. Union of India, (2004) 1 SCC 712.
9
WPC 12728/13 & con. cases 34
(g) right to practise any profession, or to carry on any occupation, trade or business
(i)
(ii)
the professional or technical qualifications necessary for practising of any profession or carrying on of any occupation, trade or business
the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.
53. "Public order" is an expression of wide connotation and signifies that state of tranquility which prevails among the members of a political society because of the internal regulations enforced by the government which they have established10. In the context of preventive detention, the Apex Court has further held that the expression 'in the interest of public order' in the Constitution can take within itself not only those acts which disturb the security of the State or are within ordre publique as described but also certain acts which disturb public tranquility or are breaches of the peace11. Public
10
Romesh Thappar v. State Of Madras, AIR 1950 SC 124
Madhu Limaye v. Sub-Divisional Magistrate, AIR 1971 SC 2486
11
WPC 12728/13 & con. cases 35 order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order12.
54. In furtherance of what was said in Arun Ghosh, the Supreme Court in Kanu Biswas v. State Of West Bengal .13has formulated a test to determine what amounts to disturbing the public order: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed? Referring to the expression of public order employed both in Art.19 (2) and (6) of the Constitution, the Apex
12
Arun Ghosh v. State Of West Bengal ., AIR 1970 SC 1228
AIR 1972 SC 1656
13
WPC 12728/13 & con. cases 36 Court has further held that our social interest ordinarily demands the free propagation and interchange of views but circumstances may arise when the social interest in public order may require a reasonable subordination of the social interest in free speech and expression to the needs of our social interest in public order. Our Constitution recognises this necessity and has attempted to strike a balance between the two social interests. It permits the imposition of reasonable restrictions on the freedom of speech and expression in the interest of public order and on the freedom of carrying on trade or business in the interest of the general public14.
55. Again, with specific reference to Art.19 (2), which contains similar expressions of exceptions as does Art.19 (4), the Supreme Court, after examining the American and English law on the subject, holds in Supdt., Central Prison v. Ram Manohar Lohia15that all the grounds mentioned in Art.19 (2) can be brought under the general head "public order" in its most comprehensive sense. But the
14
Virendra v. State Of Punjab, AIR 1957 SC 896
AIR 1960 SC 633
15
WPC 12728/13 & con. cases 37 juxtaposition of the different grounds indicates that, though sometimes they tend to overlap, they must be ordinarily intended to exclude each other. In the end, the Constitution Bench has held that
"Public order" is synonymous with public safety and tranquility: It is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State.
56. Ram Manohar Lohia tellingly observes that the restriction made "in the interests of public order" must also have reasonable relation to the object to be achieved i.e. the public order. If the restriction has no proximate relationship to the achievement of public order, it cannot be said that the restriction is a reasonable restriction within the meaning of the said clause. Indeed, though forming an association is a fundamental right, insistence that its activities must also be permitted to be carried on in the manner the members desire is not. (See Smt. Damyanti Naranga's case (supra).
39
WPC 12728/13 & con. cases 38
Pre-Amendment Position:
57. In State of U.P. vs. C.O.D Chheoki Employees' Cooperative Society16, the Apex Court has held that no citizen has a fundamental right under Article 19(1) (c) to become a member of a Co-operative Society. His right is governed by the statute. So, the right to become or to continue being a member of the society is a statutory right. In Zoroastrian Cooperative Housing Society Ltd. vs. District Registrar, Cooperative Societies (Urban)17, too, it is held that no one has a fundamental right to become a member of a co-operative society.
Invalidation of Legislation:
58. Judicial invalidation of any legislation, as is well known, can be on two grounds: (1) lack of legislative competence, and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. Legion are the precedents that the presumption of constitutionality is strong and its dislodging needs a factor that unwaveringly establishes the
16
(1997) 3 SCC 681 at para 16
(2005) 5 SCC 632
17
WPC 12728/13 & con. cases 39 invalidity of the impugned provision. It is not, then, a matter of surmise or conjecture; on the contrary, it is to be tested and to be found sound as a concrete countervailing force drawing its strength from the constitutional sanctions.
59. In Charanjit Lal Chowdhury v. The Union of India and Ors.18, as has been reiterated in Ayurvedic and Unani Tibia, College
v. State of Delhi,19the Hon'ble Supreme Court has held that while dealing with a challenge to the constitutional validity of any legislation, the court should prima facie lean in favour of constitutionality and should support the legislation, if it is possible to do so, on any reasonable ground. And it is for the party that attacks the validity of the legislation to place all materials before the Court to make out a case for invalidating the legislation.
Effect of Section 7 (1) (c) of the Act on Citizen's Fundamental Right:
60. Let us hypothesize that an authority acting under Section 7
18
1950 SCR 869
AIR 1962 SC 458
19
WPC 12728/13 & con. cases 40
(1) (c) of the Act refuses to register a co-operative society—validly, at that. Then, closely examined, Section 7(1) (c) reveals two facets:
(1) It compels the members of a proposed society (whose formation is declined on the ground in Sub-clause (c)), to either join a similar existing society or not join one at all; and (2) it would, as a corollary, suggest that the existing society has a corresponding duty to take in such new persons as members who, but for the existing society, would have formed a new society. Therefore, it negates the will of two sets of people: (a) Denies the desire of non-members to form a society; (b) denies the will of existing members to admit those non- members. An echo of this principle can be found in Damyanti Naranga v. Union of India20in which it is held thus:
"[T]he 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
(1971) 1 SCC 678
20
WPC 12728/13 & con. cases 41 submission that the right guaranteed by Article 19(1)(c) is confined to the initial stage of forming an Association and does not protect the right to continue the 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." [underlining added]
61. Damyanti Naranga further holds that "under Article 19(4), reasonable restrictions can be imposed only in the interests of the sovereignty and integrity of India, or in the interests of public order or morality. It has not been contended on behalf of the respondent, nor could it be contended that this alteration of the Constitution of the Society in the manner laid down by the Act was in the interests of the sovereignty and integrity of India, or in the interests of public order or morality."
62. In Andhra Pradesh Dairy Development Corporation Federation vs. B. Narasimha Reddy21another aspect of the members' right is highlighted:
(2011) 9 SCC 286, in P.47
21
WPC 12728/13 & con. cases 42 The co-operative movement by its very nature, is a form of voluntary association where individuals unite for mutual benefit in the production and distribution of wealth upon principles of equity, reason and common good. So, the basic purpose of forming a co-operative society remains to promote the economic interest of its members in accordance with the well recognised co-operative principles. Members of an association have the right to be associated only with those whom they consider eligible to be admitted and have right to deny admission to those with whom they do not want to associate. The right to form an association cannot be infringed by forced inclusion of unwarranted persons in a group. Right to associate is for the purpose of enjoying in expressive activities. The constitutional right to freely associate with others encompasses associational ties designed to further the social, legal and economic benefits of the members of the association. By statutory interventions, the State is not permitted to change the fundamental character of the association or alter the composition of the society itself. The significant encroachment upon associational freedom cannot be justified on the basis of any interest of the Government. However, when the association gets registered under the Co-operative Societies Act, it is governed by the provisions of the Act and rules framed thereunder. In case the association has an option/choice to get registered under a particular statute, if there are more than one statutes operating in the field, the State cannot force the society to get itself registered under a statute for which the society has not applied.
(emphasis added)
Morality:
63. Morality shapes law. And the obverse, too, happens. 'Moral questions tug the sleeves of our legal and political practices.' Art.19
44
WPC 12728/13 & con. cases 43
(2) speaks of decency and morality, whereas Art.19 (4) confines itself to only morality. Black's Law Dictionary22narrowly defines morality as (1) conformity with recognized rules of correct conduct;
(2) the character of being virtuous, especially in sexual matters. Quoting from William P. Golding's Philosphy of Law, the lexicon differentiates between morality and ethics: A government official arraigned on a 'moral charge' will be accused of something quite different from one accused of an 'ethics violation.' The same lexicon defines public morality as (1) the ideals or general moral beliefs of a society; (2) the ideals or actions of an individual to the extent that they affect others.
64. Morality as a constitutional concept—especially as a check on a fundamental right—does not seem to have attracted the attention it deserved judicially or even academically. The morality underlined in Article 19 is distinct and different from, say, constitutional morality, which is a nation's adherence to the core
9 th Ed.
22
WPC 12728/13 & con. cases 44 principles of the constitutional democracy: constitutionalism.
65. It may be true that morality, propounds Martin Luther King Jr, cannot be legislated, but behaviour can be regulated; it may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that's pretty important23. Contrasted, in The Common Law, Oliver Wendell Holmes Jr., reasons that while the terminology of morals is still retained, and while the law does still and always, in a certain sense, measure legal liability by moral standards, it nevertheless, by the very necessity of its nature, is continually transmuting those moral standards into external or objective ones, from which the actual guilt of the party concerned is wholly eliminated24. Holmes further observes that "a man may have as bad a heart as he chooses, if his conduct is within the rules. In other words, the standards of the law are external standards, and, however much it may take moral considerations into account, it does
23
Martin Luther King, Jr., Address at Cornell College, Mount Vernon, as quoted in The Oxford Dictionary of American Legal Quotations, P.311
P.38 (1881) extracted from iBooks
24
WPC 12728/13 & con. cases 45 so only for the purpose of drawing a line between such bodily motions and rests as it permits, and such as it does not. What the law really forbids, and the only thing it forbids, is the act on the wrong side of the line, be that act blameworthy or otherwise."25
66. Further, the celebrated judge-jurist emphatically declares:
"For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal idea uncoloured by anything outside the law."26
67. Morality gets hitched more often with the spiritual and less often with the temporal. Addressing moral coercion of public opinion, John Stuart Mill27says that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any
25
Ibid, Lecture III. Torts—Trespass and Negligence
26
10 Harvard Law Review 457, 464 (1897)
On Liberty, The Floating Press, 1909 Ed. (Reprinted 2009)
27
WPC 12728/13 & con. cases 46 member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinions of others, to do so would be wise or even right. This assertion was heavily criticised by James Fitzjames Stephen28and, much later, by Lord Devlin.29
68. H.L.A. Hart in his lecture Law, Liberty and Morality30has critically analysed Mill's assertion and the criticism aimed against it. First, he contextualises the issue by referring to the House of Lord's much reviled judgment in Shaw v. Director of Public Prosecutions31:
[t]he law is not impotent to convict those who conspire to corrupt public morals. It was a revival of the legal moralism asserted by Lord Mansfield in Jones v. Randall, 1774 that Courts should function as the custos morum—the general censor and guardian of the public
28
the great Vicetorian judge and historian of the Criminal Law
29
a member of the House of Lord
30
OUP, 1963
[1961] 2 All ER 446
31
WPC 12728/13 & con. cases 47 manners. Hart derides the decision as authorising gross invasion of individual liberty.
69. Next, Hart focuses on Wolfenden Committee Report, 1957, which examined the contours of criminal relating to both prostitution and homosexuality. It is interesting to note that on homosexuality, the Committee recommended that homosexual practices between consenting adults in private should no longer be a crime; on prostitution, they unanimously recommended that, though it should not itself be made illegal, legislation should be passed "to drive it off the streets'' on the ground that public soliciting was an offensive nuisance to ordinary citizens32. Hart commends the Committee's Report that "[T]he function [of the criminal law], as we see it, is to preserve public order and decency, to protect the citizen from what is offensive or injurious and to provide sufficient safeguards against exploitation or corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind
Hart's Law, Liberty and Morality, OUP, P.13
32
WPC 12728/13 & con. cases 48 or in experienced…" In Section 61 of the Report it reads: "There must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business.''33
70. Hart accepts Lord Delvin's theory that a shared morality is the cement of society; without it there would be aggregates of individuals but no society. But he cautions that we must not view the conduct of an individual in isolation from its effect on the moral code: if we remember this, we can see that one who is "no menace to others" nonetheless may by his immoral conduct "threaten one of the great moral principles on which society is based." In this sense the breach of moral principle is an offence "against society as a whole." While accepting Lord Delvin's view, Hart nevertheless emphasises that the society may have to use the law to preserve its morality as it uses it safeguard anything else essential to its existence.
71. In conclusion, in the chapter Moral Populism and
Ibid, Pp.14-15
33
WPC 12728/13 & con. cases 49 Democracy, Hart holds (p.79): It is fatally easy to believe that loyalty to democratic principles entails acceptance of what may be termed moral populism: the view that the majority have a moral right to dictate all should live. The central mistake is a failure to distinguish the acceptable principle that political power is best entrusted to the majority from the unacceptable claim that what the majority with the power is beyond criticism and must never be resisted."
72. Change is the fundamental norm of society and is, most often, a sure sign of its progress. Statusquoism even in moral sphere without legal sanction is an anathema to the dynamic democratic process; our xenophobic views cannot be masqueraded as moral standards. Morality is amorphous and idiosyncratic. Enforcing morality de hors legislative sanction can be destructive of federal fibre of our polity: It is veiled vigilantism. Viewed from any perspective, the moral fibre of the society as has been put in a
51
WPC 12728/13 & con. cases 50 definite legal frame does not seem to have been affected in this case.
Inter-relation between Article 19(1) (c) and Article 43B:
73. Any interpretation of the content of the rights under Article 19(1) (c) would subsume the wide, liberal content of Article 43B. Thus, the concepts of democratic functioning, voluntary formation, etc., in the newly introduced Article 43B would transmute themselves into fundamental features of Article 19 (1) (c).
74. The inter-play between Part III and Part IV of the Constitution has been admirably highlighted in Unnikrishnan v. State of A.P.34 True, Unnikrishan was overruled in TMA Pai Foundaton v. State of Karnataka,35but only insofar as it framed the 'Scheme' relating to the grant of admissions, and other related matters. So the proposition now being referred to remains intact. After elaborately considering the issue, Unnikrishnan holds in para 153 of the judgment that the fundamental rights and directive principles are supplementary and
34
1993 (1) SCC 645
(2002) 8 SCC 481
35
WPC 12728/13 & con. cases 51 complementary to each other and that the provisions in Part-Ill should be interpreted having regard to the Preamble and the Direc- tive principles of the State policy. It opines that the court may not entirely ignore these directive principles of State policy laid down in Part-IV of the Constitution but should adopt the principle of harmo- nious construction and should attempt to give effect to both funda- mental rights and directive principles as much as possible.
75. Unnikrishnan invokes the dictum of U.P.S.C. Board v. Haris- hankar36that this command of the Constitution [directive principles] must be ever present in the minds of the Judges while interpreting statutes which concern themselves directly or indirectly with matters set out in the Directive Principles of State Policy. To conclude, we may emphatically hold that Parts III and IV are supplementary and complementary to each other. And the fundamental Rights must be construed in the light of the Directive Principles, too. Not to be left is the dictum of a Seven-Judge Bench in State of Gujarat v. Mirzapur
A.I.R. 1979 S.C. 65
36
WPC 12728/13 & con. cases 52 Moti Kureshi Kassab Jamat37, in judging the reasonableness of the re- striction the court has to bear in mind the directive principles of State Policy.
Does 'Public Order' Save Section 7 (1) (c):
76. Despite the constitutional amendment, a preexisting law holds the field if it does not conflict with the amended constitutional mandate. As seen earlier, the legislature has been given the neces- sary leverage to rein any regnant piece of legislation out of sync with the constitutional mandate: One year is the period prescribed for that purpose (Article 243 ZT).
77. Recently in Ramlila Maidan Incident in re.38, the Supreme Court has held (para 30) that the term 'social order' has a very wide ambit. It includes 'law and order', 'public order', and 'the security of the State', too. The security of the State is the core subject, and public order as well as law and order follows it. It has quoted with approval the dictum of Dr. Ram Manohar Lohia (supra) to hold that
37
2005 (8) SCC 534, at Pp 561 -62
(2012) 5 SCC 1
38
WPC 12728/13 & con. cases 53 an activity which affects 'law and order' may not affect 'public order' and an activity which might be prejudicial to 'public order' may not affect 'security of the State'. The absence of 'public order' is an aggravated form of disturbance of public peace which affects the general current of public life. Any act which merely affects the security of others may not constitute a breach of 'public order'.
Travelling Beyond Clear and Present Danger:
78. The American Constitution is succinct and almost reticent. Framers left out whatever they had felt inalienable and inherent as a matter of constitutionalism: whatever a human being required to live a life of liberty and dignity. They had left out even the bill of rights or fundamental rights, for they are so fundamental that need no conferring. An instrument such as constitution only recognizes them —what is obvious needs no reiteration or enumeration was, perhaps, the belief of the framers. The amendments have been effected subsequently for some of the constituent States demanded they be made explicit, their preeminence and prevalence notwithstanding.
55
WPC 12728/13 & con. cases 54 American Constitution, one of the earliest political charters, had the advantage of only hindsight. But Indian Constitution, coming into being a couple of centuries later, is eclectic and heterogeneous.
79. Absent express, enumerative legislative powers in the American Constitution, its Apex Court had to contrive many doctrines —illustratively, police power (a misnomer of policy power), eminent domain, clear and present danger—to contain the fervid due process doctrine. Contrasted, Indian constitution with its derivative wisdom has enumerated not only the fundamental freedoms but also the limitation on them. With its subtle, sublime acts of balancing the right and duty, freedom and restraint, power and deference; Indian Constitution needs no doctrinal crutches to prop itself unlike its American counterpart, whose hindsight is India's foresight. We may, thus, summarise that the fundamental freedom of association, say establishing a co-operative society, under Art.19 (1) (c) is subjected to only those limitations specified under Art.19 (4). And none else.
56
WPC 12728/13 & con. cases 55
80. To sum up, as to reasonable restrictions, even in the name of public order and morality, Section 7 (1) (c) of the Act offers very little as justification to sustain it in the face of Article 19 (1) (c) of the Constitution of India.
Brass Tacks:
81. Back to the basics, we may examine whether Section 7 (1)
(c) saves itself from invalidation: It is possible if the limitation prescribed in that provision has the attribute of any of the contingencies contemplated in Art.19 (4) of the Constitution. Pure and simple, Section 7 (1) (c) enjoins the establishment of another society of similar type in an existing society's area of operation. Even a fecund mind of excuses and justifications, I think, cannot contrive a connection between the plebeian protective restriction in Section 7
(1) (c) of the Act and the exalted constitutional limitation in Art.19
(4).
82. Though I set out in detail the pleadings and the
57
WPC 12728/13 & con. cases 56 submissions as have been addressed by the counsel on other issues, I have not discussed them for the need is obviated. The core issue having been answered, the concomitants have paled into insignificance.
Result:
83. On the strength of the above discussion, this Court holds that Section 7 (1) (c) of the Kerala Co-operative Societies Act, 1969, is ultra vires and unconstitutional for it falls foul of Article 19 (1) (c) of the Constitution of India. So is the declaration.
84. Parenthetically stated, despite Article 19 (1) (c), in terms of Chapter IX-B of the Constitution, the regulatory regime still remains
58
WPC 12728/13 & con. cases 57 of 2015, and 13988 of 2014 are dismissed. W.P. (C) No.925 of 2016 is allowed as prayed for. W.P. (C) Nos.31061 and 27122 of 2015 are allowed with a direction to the authorities to consider the petitioners' applications without reference to the constitutionally invalidated Section 7 (1) (c) of the Kerala Co-operative Societies Act, 1969. No order on costs.
Sd/- Dama Seshadri Naidu, Judge
css/ true copy
P.S.TO JUDGE
59