INTERNAL MOOT COURT ASSESSMENT

BEFORE
THE HONOURABLE SUPREME COURT OF ARYAVARTA

MEMORIAL ON BEHALF OF RESPONDENT

In the matter of

97th constitutional amendment of Aryavarta

Between
ANMOL , A CO-OPERATIVE BANKING SOCIETY ………………PETITIONER

V.
UNION OF ARYAVARTA……………………………..RESPONDENT

MEMORIAL SUBMITTED BY COUNSEL FOR THE RESPONDENT

Mahatma Gandhi university in partial fulfillment of Moot Court assessment for the
award of degree of bachelors of law

SUBMITTED BY:
GROUP NUMBER 3

1|Page
 TABLE OF CONTENTS

1.INDEX OF ABBREVIATIONS……………………………………………3
2. INDEX OF AUTHORITIES…………………………………………..…. 4
3. STATEMENT OF JURISDICTION……………………………………….5
4. STATEMENT OF FACTS ………………………………………………...6
5. QUESTIONS PRESENTED ……………………………………………...7
6. SUMMARY OF ARGUMENTS ………………………………………… 8
7. ARGUMENTS ADVANCED BY RESPONDENT………………………..9
8. PRAYER…………………………………………………………………..16

2|Page
 LIST OF ABBREVIATION

A.I.R All India Reporter

Art.
Article

Ed. Edition

Hon’ble Honourable

Ltd. Limited

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

& And

U.O.I Union Of India

v./vs. Versus

COI Constitution of India

3|Page
 INDEX OF AUTHORITIES
CASES:-

1.Laxmi and co. Anand R. Deshpande 1973

2.Indira Nehru Gandhi V. Shai Raj Narain and Anr

3.Rajendra N Sha vs. Union of India

4.SR Bommai vs. Union of India (1994)

5.Sankari Prasad Singh Deo v. Union of India, 1952 SCR 89

6.Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933

7.Kihoto Hollohan v.Zachillhu, 1992 Supp (2) SCC 651

8.Golak Nath v. State of Punjab, (1967) 2 SCR 762

9.Vipulbhai M. Chaudhary v. Gujarat Coop. Milk Mktg. Federation Ltd., (2015) 8 SCC

10.Mehsana District Co-operative Milk Producers Union

11.Cellular Operators Assn. of India v. TRAI, (2016) 7 SCC 703

BOOKS:-

1.M.P Jain ,Indian Constitutional law(6th Ed.Reprint 2012,Lexis Nexis Butterworth Wadhwa,
Nagpur)

2.V.N Shukla, Constitution of India, 10th Ed.,Eastern Book Company,Lucknow 2001

3. J.N Pandey, Constitutional Law of India, 37th Edition, Central Law Agency,

Allahabad, 2001.

4|Page
 STATEMENT OF JURISDICTION

The SC has the jurisdiction in the matter of special leave petition under Art.136:

The constitution of India vest "discretionary power" in the Supreme Court of India. The
Supreme Court of India may in its discretion be able to grant special leave to appeal from any
judgment or decree or order in any matter or cause made or passed by any Court/tribunal in the
territory of India. The Supreme Court of India may also refuse to grant the leave to appeal by
exercising its discretion.

An aggrieved party from the judgment or decree of high court cannot claim special leave to
appeal as a right but it is privilege which the Supreme Court of India is vested with and this
leave to appeal can be granted by it only.

5|Page
 STATEMENT OF FACTS

Aryavarta is a developing country situated in the continent of Asiaasia. Aryavarta has been a
British Colony for approximately 190 years. It is one of the biggest countries of Asiaasia having
diversity in its population in terms of language, culture and geography. Aryavarta became
independent in the year 1947 from the British Empire and the people of Aryavarta gave to
themselves their own Constitution in the year 1950. The Constitution makers, after referring to
the Constitutions of different countries, gave to its people one of the most unique Constitutions
keeping in mind the population, demography, cultural and linguistic diversity of Aryavarta.

Vijay-rashtra is one of the most developed states in Aryavarta. In the year 1978, a person called
Paschim Patel initiated a movement of co-operative society in Vijay-rashtra. He stayed in a
small village called “Dariya” from where he opened a small co-operative dairy which today
has become the country‟s biggest co-operative society. His colleague Purab Shyam who was
the village mukhiya helped him in connecting with the local people and with the technological
and management supervision of Paschim Patel, the co-operative society “Grandmother Dairy”
became the biggest co-operative society in Aryavarta.

In the year 1986, Vijay-rashtra assembly elections had taken place wherein for the first time,
the Government of Poora Vijay-rashtra Apna (“PGA”) political party came into power. The
ruling party of Aryavarta Kutch-Saurashtra-Bhuj (“KSB”) was thrown out of power form
Vijay-rashtra. Purab Shyam, who belonged to KSB was out of power in his constituency and
his control over the people and the co-operative society had reduced. Meanwhile “Grandmother
Dairy‟s” governing body‟s term which was supposed to be over on 23.6.2012, was to face
elections for the new governing body.

In backdrop of these events, the Parliament of Aryavarta brought about the constitutional
amendment in the co-operative society sector, inserting certain provisions in the constitution
called the 97th amendment. Due to the provisions of the new constitutional amendment, the
term of the governing body of “Grandmother Dairy” which was supposed to be over on
23.06.2012, got extended for another two years. The Constitutional amendment also mandated
the states of Aryavarta including the state of Vijayrashtra to amend their local acts pertaining
to co-operative societies in conformity with the new constitutional amendment. Mr. Paschim
Patel, the pioneer in bringing the co-operative society reform in Vijay-rashtra, felt that the said

6|Page
amendment was brought about only to save the representation of KSB political party in
“Grandmother Dairy”. He filed a petition in the High Court of Vijay-rashtra under Article 226
of the Constitution of Aryavarta seeking a prayer inter alia for holding elections in
“Grandmother Dairy” in conformity with the local co-operative society act of Vijay-rashtra. He
also prayed for quashing and setting aside of the 97th Constitutional Amendment on several
grounds, one of them being non-conformity with the procedure laid down under Article 368
(2) of the Constitution of India.

The Hon‟ble High Court of Vijay-rashtra dismissed the petition on all grounds and directed
“Grandmother Dairy” to hold elections after two years in conformity with the new
constitutional amendment. The said judgment was received well by the State of Aryavarta and
surprisingly Mr. Paschim Patel did not challenge the decision before the Hon‟ble Supreme
Court. However, another co-operative banking society called “ANMOL” wanted to challenge
the same before the Hon‟ble Court. Hence, “ANMOL” through its Managing director filed a
petition under Article 136 of the Constitution in the Hon‟ble Supreme Court of Aryavarta.

7|Page
 ISSUES PRESENTED

1. WHETHER THE PETITION FILED BY ANMOL IS MAINTAINABLE OR

NOT?

2. WHETHER 97TH AMENDMENT IS CONSTITUTIONALLY VALID OR

NOT?

3. WHETHER PART IX-B IS INVALID DUE TO A LACK OF RATIFICATION

BY HALF THE STATES AS REQUIRED BY ARTICLE 368(2)?

8|Page
 SUMMARY OF ARGUMENTS

❖ ISSUE 1: WHETHER THE PETITION FILED BY ANMOL IS

MAINTAINABLE OR NOT?

It is humbly submitted that the special leave petition is not maintainable. The petition
to block the changes is intenable since they are unable to contest the legality of Act
.The state cooperative provisions were in force . The state's state legislature is free to
pass legislation pertaining to certain topics .Since the modified Act didn't limit any of
the petitioners rights,the petition is not maintainable

❖ ISSUE 2: WHETHER 97TH AMENDMENT IS CONSTITUTIONALLY VALID

OR NOT?

It is humbly requested to held the 97th amendment constitutionally valid.The petitioner

here challenged the constitutionality of the amendment.This amendment doesn’t curtail
any provisions of the Constitution. No State Government has come forward to challenge
the same. It showcase an implied consent from the states.so it is very clear that union
doesn’t violated any provisions of constitutions and it doesn’t destroyed the basic
structure of constitution.Thus, it can be requested that this amendment is valid and it
will not curtail any provisions of constitution. Therefore 97th amendment is
constitutionally valid.

❖ ISSUE 3: WHETHER PART IX-B IS INVALID DUE TO A LACK OF

RATIFICATION BY HALF THE STATES AS REQUIRED BY ARTICLE
368(2)?

It is humbly requested that the part IX-B affords provisions for cooperative societies
and multi cooperative societies.Cooperative organizations are completely within the
control of the states, according to article 9B, and the union has no additional legislative
competence over them.If the doctrine of severability is followed, multistate cooperative
societies ratified by more than one state as well as union territories may be deemed to
be covered by part IX-B.Applying the aforementioned doctrine, it is found that state
cooperative organizations cannot be transferred without ratification. Part IX-B ought to
be maintained.

9|Page
 ARGUMENTS ADVANCED

❖ ISSUE 1-WHETHER THE PETITION FILED BY ANMOL IS

MAINTAINABLE OR NOT?

The "co-operative societies" is a topic listed in Entry 32 of the State List of the Seventh
Schedule of the Constitution, and the State Legislatures have passed laws on cooperative
organisations in response. Large-scale co-operative development was envisioned within the
parameters of State Acts as a component of the pursuit of social and economic justice and the
fair sharing of the benefits of development. Although cooperatives have grown significantly, it
has been seen that their performance in terms of quality has fallen short of the expected level.

The petition filed by ANMOL to struck down the amendment is not maintainable because they
can not argue the validity of this Act which is aimed at the development of co-operative
societies. They were ruled by the state co-operative provisions. State legislature of their
respective state is bound free to make laws on their subjects. In that sense we can arrive at a
conclusion that the petitioner had no locus standi. Because none of their rights were curtailed
by this amendment Act.

❖ ISSUE 2-WHETHER 97TH AMENDMENT IS CONSTITUTIONALLY VALID

OR NOT?

The Constitution 97th Amendment Act sought to achieve vital social and economic objectives
in regard to the functioning of co-operative societies in India, which is a sector that has made
a significant contribution to the economy of the nation. It referred to and relied upon Article
243ZR to state that, in reality, Part IXB is in two separate parts – one dealing with multi-State
co-operative societies which have ramifications beyond merely one State, and co-operative
societies which exist and operate within a particular state.

The Central Government is committed to making sure the country's cooperative societies run
democratically, professionally, independently, and sustainably. It is suggested to add a new Part
to the Constitution in order to provide certain provisions that cover the essential in order to
bring about the required reforms,the characteristics of cooperative societies' operations, such
as democratic, independent, and professional functioning.

10 | P a g e
Additionally, it is suggested that a new article be added to Part IV of the Constitution (Directive
Principles of State Policy) directing the States to work to encourage cooperative society
formation that is voluntary, autonomy, democratic control, and professional management. The
proposed new Part of the Constitution, among other things, aims to give the Parliament the
authority to pass suitable laws governing multi-State cooperative organisations and other
cooperative societies, laying out the following provisions:

(a) provisions for incorporation, regulation arid winding up of co-operative societies based on
the principles of democratic member-control, member-economic participation and autonomous
functioning;

(b) specifying the maximum number of directors of a co-operative society to be not exceeding
twenty-one members;

(c) providing 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) providing for a maximum time limit of six months during which a board of directors of co-
operative society could be kept under supersession or suspension;

(e) providing for independent professional audit;

(f) providing for right of information to the members of the co-operative societies;

(g) empowering the State Governments to obtain periodic reports of activities and accounts of
co-operative societies;

(h) providing 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) providing for offences relating to co-operative societies and penalties in respect of such
offences

In addition to guaranteeing the autonomous and democratic operation of cooperatives, it is

anticipated that these rules will also ensure management's accountability to members and other
stakeholders and serve as a deterrent for breaking the law.

11 | P a g e
He claimed that even though there was no issue with multi-State cooperative organisations, the
whole of Part IXB had been rejected, which amounted to throwing away the baby with the
bathwater.

Neither Entry 32 of List II of the 7th Schedule nor Article 246(3) of the Indian Constitution,
which derives the legislative authority of the States contained therein, have been changed in
any way. In actuality, a reading of Part IXB would demonstrate that the Union has not been
granted any further legislative authority. The States alone have sole legislative authority over
all issues pertaining to cooperative societies.

Apart from reading out passages in Sankari Prasad Singh Deo v. Union of India1, 1952 SCR
89; Sajjan Singh v. State of Rajasthan2 (1965) 1 SCR 933 and Kihoto Hollohan v.Zachillhu,
1992 Supp (2) SCC 6513 can be relied strongly upon observations in the dissenting judgments
of Wanchoo, J. Ramaswamy, J. and Bachawat, J. in Golak Nath v. State of Punjab, (1967) 2
SCR 7624 for understanding the above mentioned fact.

The Amendment provided legal status and protection to Co-operative societies, and it makes
an effort to address all of their issues and develop effective management techniques. It also
aims to promote Co-operative economic activities that advance rural India. The amendment
was expected to ensure Co-operatives’ democratic and autonomous operation, as well as
management transparency with members and other stakeholders.

In fact, a reading of part IX B reveals that the Union has no new legislative authority over
cooperative societies and that it is entirely under the jurisdiction of the states.

As a matter of fact,Part IXB read with Article 43B enhances the basic structure of the
Constitution and relied strongly upon the judgment in Vipulbhai M. Chaudhary v. Gujarat
Coop. Milk Mktg. Federation Ltd., (2015) 8 SCC 5 to demonstrate that this argument though
not dealing with the constitutional validity of the 97th Amendment, yet held that the said
Amendment is a great step forward in bringing uniformity and order to the co-operatives
movement in India.

1 Sankari Prasad Singh Deo v.U.O.I,1952SCR 89

2 Sajjan singh v. state of rajasthan,(1965)1 SCR 933
3 Kihoto hollohan v.zachilhu,1992 Supp(2)SCC 651
4 .Golak nath v. state of Punjab,(1967) 2 SCR 762
5 Vipulbhai M. Chaudhary v. Gujarat Coop. Milk Mktg. Federation Ltd., (2015) 8 SCC

12 | P a g e
No State Government has come forward to challenge the same. It showcase an implied consent
from the states.so it is very clear that union doesn’t violated any provisions of constitutions and
it doesn’t destroyed the basic structure of constitution.

Thus, it can be said that this amendment is valid and it will not curtail any provisions of
constitution. Therefore 97th amendment is constitutionally valid.

❖ ISSUE 3-WHETHER PART IX-B IS INVALID DUE TO LACK OF

RATIFICATION BY HALF THE STATES AS REQUIRED BY
ARTICLE 368(2)?

The 97th Amendment Act has been essential in attaining crucial social and economic progress
in India’s cooperative societies, a sector that has contributed significantly to the country’s
economy. Part IX-B provides provisions for both co-operative societies and multi-state co-
operative societies, which are split into two parts. The entire Part IXB was ruled down by the
High Court, “throwing out the baby with the bathwater,” despite the fact that multi-State Co-
operative societies were not challenged.

The Co-operatives have grown greatly since the time the Amendment was established, but their
qualitative performance hasn't kept up with expectations. In light of the necessity for
modifications in the State Co-operative Societies Acts, numerous consultations with state
governments and gatherings of state cooperative ministers have taken place. As a result, there
was a critical need to alter the Constitution in order to safeguard cooperatives' autonomy,
democratic operation, and protection from unwarranted outside meddling.

The "deficiencies" in defending the interests of cooperative members and attaining these
institutions' goals can be marked as the justification for the Amendment. To ensure that these
institutions contribute to the economic development of the nation and serve the interests of its
citizens, fundamental reforms were necessary to revitalize them.

In fact, a reading of part IX-B reveals that the union has no new legislative authority over co-
operative societies and that it is entirely under the jurisdiction of the states. If the doctrine of
severability is applied, and it could be finds that State co-operative societies cannot be impacted
without ratification, multi-State co-operative societies with ratifications beyond one state, as
well as Union territories, can be held to be covered by Part IXB, and that, on applying the
aforementioned doctrine, Part IXB should be upheld.

13 | P a g e
Article 368(2) in The Constitution Of Aryavarta1949 laid down:

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for
the purpose in either House of Parliament, and when the Bill is passed in each House by a
majority of the total membership of that House present and voting, it shall be presented to the
President who shall give his assent to the Bill and thereupon the Constitution shall stand
amended in accordance with the terms of the Bill: Provided that if such amendment seeks to
make any change in

(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article, the amendment shall also require to be ratified by the
Legislature of not less than one half of the States by resolution to that effect passed by those
Legislatures before the Bill making provision for such amendment is presented to the President
for assent

Here we have to look 368(2)(e)that is the parliament need the ratification of not less than half
of the states.At the same time Article 249 empowers the parliament to legislate with respect to
a matter in the state list in the national interest.

Shri Prakash Jani, learned senior advocate appearing on behalf of the Mehsana District Co-
operative Milk Producers Union6 in Civil Appeal No. 282 of 2020 will support these
arguments. In addition, that it must never be forgotten that while inserting Part IXB into the
Constitution of India, Parliament has exercised its ‘constituent’ power and not ‘legislative’
power. Read with Article 245 of the Constitution of India, it would then be clear that since the
legislative power of the States in Article 246(3) is subject to the provisions of the Constitution
of India, the legislative head ‘co-operative societies’ contained in Entry 32, List II of the 7th
Schedule is now being made subject to Part IXB which is a part of the Constitution of India.
He argued that Parliament in its constituent capacity can deal with State subjects, and relied
upon the insertion of Article 21A by Constitution (Eighty Sixth Amendment) Act, 2002. As a
matter of fact, Part IXB read with Article 43B enhances the basic structure of the Constitution

6 Mehsana district co-operative civil suit,(2005)195 CTR Guj 385

14 | P a g e
and relied strongly upon the judgment in Vipul Bhai Chaudhary v. Gujarat Coop. Milk Mktg.
Federation Ltd., (2015) 8 SCC 1 7 to demonstrate that this judgment, though not dealing with
the constitutional validity of the 97th Amendment, yet held that the said Amendment is a great
step forward in bringing uniformity and order to the co-operative’s movement in India.

In Cellular Operators Assn. of India v. TRAI, (2016) 7 SCC 703 (para 57)8, to argue that even
if 17 States thereafter amend their laws in furtherance of the Constitutional Amendment, this
would make no difference to the constitutional position if in fact the requisite ratification under
Article 368(2) proviso is lacking. The validity of a constitutional amendment does not depend
upon whether a State government accepts it or whether a State government challenges it. He
then went on to make two further arguments insofar as multi-State co-operative societies are
concerned. First and foremost, given the tests of severability, and also states that multi-State
co-operative societies are inextricably entwined with co-operative societies and the 97th
Constitution Amendment would never have been enacted for multi-State co-operative societies
alone. Even otherwise, the challenge made in the Writ Petition was to the entirety of Part IXB
and the part relating to multi-State co-operative societies, not being severable, the entirety of
Part IXB has correctly been held to be unconstitutional by the impugned judgment. It was also
argued that if this Constitutional Amendment is allowed to pass constitutional muster without
ratification, there would be no end to further amendments which would then indirectly rob the
States of their legislative powers, changing a quasi-federal state into a unitary one.

If the doctrine of severability is to be applied, then in the event that State cooperative societies
cannot be impacted without ratification, multi-State cooperative societies, which have
ramifications beyond one state, could be held to be covered by Part IXB, as would Union
territories, and that on applying the aforesaid doctrine, Part IXB would be severable at least
insofar as the multi-State cooperative societies are concerned, ought to be supported.

No State Government has come forward to challenge the amendment which showcase the
impiled consent of the state legislature.so that it cannot be said that part IX-B is invalid due to
the lack of ratification by half of the states.

7 Vipul Bhai Chaudhary v. Gujarat Coop. Milk Mktg. Federation Ltd., (2015) 8 SCC 1
8 Cellular Operators Assn. of India v. TRAI, (2016) 7 SCC 703 (para 57)

15 | P a g e
 PRAYER

WHEREFORE, in the lights of the facts used, issues raised,arguments advanced and
authorities cited,it is most humbly and respectfully prayed that this Hon’ble court may
be pleased to adjudge and declare that:

1. The petition filed by ANMOL are not maintainable

2. That the 97th amendment is constitutionally valid
3. Dismiss the petition filed by ANMOL

The court may also be please to pass any order, which this Hon’ble court may deem fit in the
light of justice, equity and good conscience.

Place : SD/-
Date : (Counsel for Defendant)

16 | P a g e
17 | P a g e