Karnataka High Court
Sri Konkadi Padmanabha vs The Union Of India on 11 September, 2015
Equivalent citations: AIR 2016 (NOC) 218 (KAR.), 2016 (1) AKR 44 (2016) 1 KCCR 50, (2016) 1 KCCR 50
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W.P.No.1393/2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF SEPTEMBER 2015
BEFORE
THE HON'BLE MR. JUSTICE H.G.RAMESH
R
WRIT PETITION No.1393/2015 (CS-RES)
BETWEEN:
SRI KONKADI PADMANABHA
S/O N.NARAYANA BHAT
AGED ABOUT 63 YEARS
RESIDING AT KONKADI
IDKIDU VILLAGE AND POST
TANTWAL TALUK AND DISTRICT
DAKSHINA KANNADA
THE PRESIDENT, M/S CAMPCO LTD.
MANGALORE, D.K- 575 004 ... PETITIONER
(BY SRI K.G.RAGHAVAN, SR.COUNSEL FOR
SRI ARUNA SHYAM.M, ADVOCATE)
AND:
THE UNION OF INDIA
DEPARTMENT OF HOME AFFAIRS
REPRESENTED BY ITS SECRETARY
NEW DELHI - 110 001 ... RESPONDENT
(BY SRI PRABHULING K NAVADGI, ASG)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED SECTION 44(2) OF THE MULTI-STATE CO-OPERATIVE
SOCIETIES ACT, 2002, THEREBY DECLARE THE SAME AS HARSH,
ARBITRARY, UNSCIENTIFIC, IRRATIONAL, UNCONSTITUTIONAL
AND VIOLATIVE OF FUNDAMENTAL RIGHTS AND ULTRA-VIRES
OF THE CONSTITUTION.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 24.07.2015 FOR ORDERS IN PRINCIPAL BENCH,
BENGALURU AND COMING ON FOR PRONOUNCEMENT OF
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ORDERS IN KALABURAGI BENCH, THIS DAY, H.G.RAMESH J.
DELIVERED THE FOLLOWING:
ORDER
H.G.RAMESH, J. :
Whether restriction of term limits imposed by the Parliament under Section 44(2) of the multi-state co-operative societies Act, 2002 for seeking re-election to the post of President of a multi-state co-operative society is constitutionally valid?
This is the question that requires determination in this writ petition. The question is answered in the affirmative. For clarity, it is necessary to state that there is difference between term limits and term lengths. Term limits limit the number of terms or number of times a person can be elected to office. Term lengths denote duration of a term.
2. The case of the petitioner is that he was elected as President of the Central Arecanut & Cocoa Marketing and Processing Co-operative Ltd. (CAMPCO Ltd.) which is a multi- state co-operative society and his term is coming to an end shortly. His grievance is that, in view of Section 44(2) of the multi-state co-operative societies Act, 2002 ('the Act'), he is not eligible to seek re-election to the post of President as he -3- W.P.No.1393/2015 has held the office of President during two consecutive terms, either full or part. According to the petitioner, Section 44(2) of the Act which imposes restriction on seeking re-election to the post of President is violative of Articles 14 & 19(1)(c) of the Constitution of India, and therefore, it is unconstitutional.
3. Section 44 of the multi-state co-operative societies Act, 2002 reads as follows:
"44. Prohibition to hold office of chairperson or president or vice-chairperson or vice-president in certain cases.―(1) No member of a board shall be eligible to be elected as the chairperson or president or vice-chairperson or vice-president of a multi-State co-operative society if such member is a Minister in the Central Government or a State Government.
(2) No member of a board shall be eligible to be elected as the chairperson or president of a multi-State co-operative society, after he has held the office as such during two consecutive terms, whether full or part:
Provided that a member who has ceased to hold the office of the chairperson or president continuously for one full term shall again be eligible for election to the office as such.
Explanation.―Where any member holding the office of the chairperson or president at the commencement of this Act is again elected to that office after such commencement, he shall for the purpose of this section, be deemed to have held office for one term before such election."
(Emphasis supplied)
4. Sri K.G.Raghavan, learned Senior Counsel appearing for the petitioner contended that the right to form a -4- W.P.No.1393/2015 Co-operative Society under Article 19(1)(c) of the Constitution is not restricted only to the initial stage of forming a Co-operative Society. It includes right to administer it and right to continue the co-operative society with its own composition. According to the learned Senior Counsel, the impugned provision will interfere with the composition of a multi-state co-operative society, and therefore, it is violative of Article 19(1)(c) of the Constitution. He submitted that co-operative societies are democratic organisations and their affairs should be administered by persons elected in a manner agreed to by the members. Restricting the right of members of a board (board of directors) to seek re-election to the post of President and restricting the right of a Board to elect a President of its choice will be against democratic functioning of a co-operative society. He also submitted that whether a member of a Board deserves more terms as President should best be left to the Board. According to the learned Senior Counsel, there is no rationale in restricting the right to seek re-election, and therefore, Section 44(2) of the Act is arbitrary and violative of Article 14 of the Constitution. -5- W.P.No.1393/2015 In support of the writ petition, he referred to the following decisions:
1. AIR 1962 SC 171, A.I.B.E. Assocn. v. N.I. Tribunal
2. 1971 (1) SCC 678, Damyanti Naranga v. Union of India
3. (1988)2 SCC 433, L.N.M. Institute of Economic Dev. and Social Change v. State of Bihar
4. (1989)4 SCC 496, Asom Rastrabhasa Prachar Samiti v. State of Assam
5. Manu/DE/2008/2010, Rajinder Kumar Sharma & Another vs. Lt.Governor and Others
6. AIR 2015 SC 1960, Vipulbhai M. Chaudhary v. Gujarat Co-op. Milk Marketing Federation Ltd.
5. Sri Prabhuling K. Navadgi, learned Additional Solicitor General appearing for the Union of India contended that the right of citizens under Article 19(1)(c) is limited to form associations or unions or co-operative societies. According to the learned ASG, the right of a member of a board to seek re-election to the post of President is a statutory right flowing from the Act and is not a fundamental right under Article 19(1)(c) of the Constitution. He submitted that Section 44(2) of the Act is aimed at preventing concentration of power and to give opportunity to all the members of a Society to participate in the management of the society, and, therefore, it is neither arbitrary nor irrational. He also referred to Part IXB of the Constitution which relates to co-operative societies. He further submitted -6- W.P.No.1393/2015 that the impugned provision will not interfere with the composition of multi-state co-operative societies. Accordingly, he sought for dismissal of the writ petition. In support of validity of the impugned provision, he relied on the following decisions:
1. AIR 1962 SC 263, M/s. Raghubar Dayal v. Union of India
2. 1993 Supp (3) SCC 259, Bhandara District Central Coop. Bank Ltd. v. State of Maharashtra
3. (1997)3 SCC 681, State of U.P. v. C.O.D. Chheoki Employees' Coop. Society Ltd.
4. (2004)1 SCC 712, Dharam Dutt v. Union of India
5. (2005)5 SCC 632, Zoroastrian Coop. Housing Society Ltd. v. District Registrar, Coop. Societies (Urban)
6. (2011)9 SCC 286, A.P.Dairy Development Corpn. Federation v.
B.Narasimha Reddy
6. In the context of the question raised, it is pertinent to have a look at the global thinking on imposing restriction of term limits to seek re-election. In several countries, provisions like Section 44(2) of the Act are in operation. There are more than 160 democracies in the world. In more than 100 electoral democracies which include United States of America, France, Germany, Finland, Ireland, Poland, Brazil, Russia, South Korea etc., term limits are imposed for heads of State and/or heads of Government. In this context, reference may be made to Section 1 of Article XXII -7- W.P.No.1393/2015 of the Constitution of the United States brought by XXII Amendment:
"ARTICLE XXII SECTION 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term of which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term."
The Amendment extracted above limits the number of times that a person can be elected as President of the United States. A person cannot be elected as President more than twice, and a person who has served more than two years of a term to which someone else was elected cannot be elected more than once. The above amendment was passed by the United States Congress in the year 1947 and ratified by the required number of States in the year 1951. Amending the United States constitution is a complicated process. It has only been accomplished 27 times though the Constitution has been in operation since 1789. Supporters of the amendment argue that term limits prevent Dictatorships and will make the President less likely -8- W.P.No.1393/2015 to hand out political favours, such as grants and subsidies to swing states, in an effort to get re-elected. Supporters of term limits also state that an infusion of fresh blood and new ideas on a regular basis is good for democracy.
7. In the context of the above discussion, it is appropriate to refer to the views of Alexis De Tocqueville (1805-1859), who was a French political thinker and historian best known for his works 'Democracy in America', and 'The old Regime and the Revolution'. His critical observations in 'Democracy in America' (Chap.1.8.3) on re- eligibility of the President of the United States to seek re-election are relevant to be quoted:
"When the head of the executive power is re- eligible, it is the State which is the source of intrigue and corruption--........................ The natural evil of democracy is that it subordinates all authority to the slightest desires of the majority--The re-election of the President encourages this evil.
................. Intrigue and corruption are the natural defects of elective government; but when the head of the State can be re-elected these evils rise to a great height, and compromise the very existence of the country. When a simple candidate seeks to rise by intrigue, his manoeuvres must necessarily be limited to a narrow sphere; but when the chief magistrate enters the lists, he borrows the strength of the government for his own purposes. In the former case the feeble resources of an individual are in action; in the latter, the State itself, with all its immense influence, is busied in the work of corruption and cabal. The private citizen, who employs the most immoral practices to acquire power, can only act in a manner indirectly prejudicial to the public prosperity. But if the representative of the executive descends into -9- W.P.No.1393/2015 the combat, the cares of government dwindle into second-rate importance, and the success of his election is his first concern. All laws and all the negotiations he undertakes are to him nothing more than electioneering schemes; places become the reward of services rendered, not to the nation, but to its chief; and the influence of the government, if not injurious to the country, is at least no longer beneficial to the community for which it was created.
It is impossible to consider the ordinary course of affairs in the United States without perceiving that the desire of being re-elected is the chief aim of the President; that his whole administration, and even his most indifferent measures, tend to this object; and that, as the crisis approaches, his personal interest takes the place of his interest in the public good. The principle of re-eligibility renders the corrupt influence of elective government still more extensive and pernicious."
8. Thomas Jefferson, who was the third President of the United States (1801-09) and an ardent proponent of democracy had warned against unlimited tenure in the following words:
"..........and history shows how easily that (unlimited tenure) degenerates into an inheritance".
9. As stated above, in a large number of democratic countries, term limits are imposed under their respective constitutions or laws. However, in India, no term limits are imposed for head of State or head of Government.
10. Imposing term limits is not without criticism. It is criticised as anti-democratic as it restricts voters' choices.
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W.P.No.1393/2015Opponents of term limits argue that it undermines the sovereignty and freedom of the people. It is stated that it is for the people to decide when a politician is not suitable for the office.
11. With the above preface, let me examine whether Section 44(2) of the Act is violative of Articles 14 & 19(1)(c) of the Constitution. Article 19 of the Constitution of India to the extent it is relevant to this case requires to be noticed:
"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) to assemble peaceably and without arms;
(c) to form associations or unions or co-operative societies;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and ***
(g) to practise any profession, or to carry on any occupation, trade or business.
.............................................................................................. (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."
Article 14 of the Constitution may also be noticed:
"14. Equality before law.-The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
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12. How a Court should examine the matter when it is confronted with a challenge to the constitutional validity of any legislative enactment by reference to Article 19 of the Constitution is stated by the Supreme Court in Dharam Dutt v. Union of India [(2004)1 SCC 712]. Scope of the right under Article 19(1)(c) is also stated therein. The following observations made therein are pertinent:
"37. The Court, confronted with a challenge to the constitutional validity of any legislative enactment by reference to Article 19 of the Constitution, shall first ask what is the sweep of the fundamental right guaranteed by the relevant sub-clause out of sub-clauses (a) to (g) of clause (1). If the right canvassed falls within the sweep and expanse of any of the sub-clauses of clause (1), then the next question to be asked would be, whether the impugned law imposes a reasonable restriction falling within the scope of clauses (2) to (6) respectively. However, if the right sought to be canvassed does not fall within the sweep of the fundamental rights but is a mere concomitant or adjunct or expansion or incidence of that right, then the validity thereof is not to be tested by reference to clauses (2) to (6). The test which it would be required to satisfy for its constitutional validity is one of reasonableness, as propounded in the case of V.G. Row or if it comes into conflict with any other provision of the Constitution.
45. However, even in Damyanti Naranga case the Constitution Bench has held 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.
48. It is well settled 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 who attacks the validity of the legislation to place all materials before the Court which would make out a case for invalidating the legislation. .........................."
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13. Whether the right to stand for election is a fundamental right? On this aspect, it is apposite to refer to the following observations made by the Supreme Court in Jamuna Prasad v. Lachhi Ram (AIR 1954 SC 686):
"(5) ............... The right to stand as a candidate and contest an election is not a common law right. It is a special right created by the statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members of Parliament.
.........."
In the light of the law laid down by the Supreme Court in the above decision, a member of a board of a multi-state co-operative society cannot claim any fundamental right under Article 19(1)(c) of the Constitution to seek re-election to the post of President. Right to stand for election or re- election is a statutory right regulated by law and not a fundamental right. As the right to stand for re-election under Section 44(2) of the Act does not fall within the ambit of Article 19(1)(c) of the Constitution, testing its validity with reference to clause (4) of Article 19 of the Constitution does not arise.
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W.P.No.1393/2015The following observations in State of U.P. v. C.O.D. Chheoki Employees' Coop. Society Ltd. [(1997) 3 SCC 681] require to be noticed:
"17. So, the society having been formed is governed by the provisions of the Act. The individual members do not have any fundamental right to the management of the committee except in accordance with the provisions of the Act, rules and bye-laws. The management of the Committee is regulated by Section 29 of the Act. The composition thereof is also regulated by the Act and has to be in accordance with the Rules and the bye-laws. The Rules referred to hereinbefore have to be in furtherance of and in conformity with the provisions contained in Section 130(2)(xii) and (xii-A) and the Rules providing for reservation in the election of the Committee or for nomination to the Management Committee of the members belonging to the weaker sections and women should be to effectuate socio-economic and political justice assured by the Preamble, Articles 38 and 46 of the Constitution."
14. The ambit and scope of the fundamental right under Article 19(1)(c) of the Constitution is explained by a five judge bench of the Supreme Court in Damyanti Naranga v. Union of India [1971(1) SCC 678] :
"6. ............... 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
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alteration in the composition of the Association itself clearly interferes 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 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. ................."
If any law interferes with the right of citizens (forming an association, union or co-operative society) to continue to be associated with only those whom they voluntarily admit to the association, union or society, such a law will be violative of Article 19(1)(c) of the Constitution. In my opinion, Section 44(2) of the Act is not such a law as it does not interfere with the aforesaid right of citizens.
15. Whether a law can be struck down on the ground that it is arbitrary, irrational or unwise, is examined by the Supreme Court in the following five decisions:
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(i) Sarup Singh v. State of Punjab (AIR 1959 SC 860) :
"5 ............... and whatever justification some people may feel in their criticisms of the political wisdom of a particular legislative or executive action, this Court cannot be called upon to embark on an enquiry into pubic policy or investigate into questions of political wisdom or even to pronounce upon motives of the legislature in enacting a law which it is otherwise competent to make. ..................."
(ii) Delhi Cloth and General Mills Co. Ltd. v. Union of India [(1983) 4 SCC 166] :
"25. ............... The submission leaves us cold. What form a regulatory measure must take is for the legislature to decide and the court would not examine its wisdom or efficacy except to the extent that Article 13 of the Constitution is attracted. .........................................................."
(iii) Delhi Cloth & General Mills Ltd. v. S.Paramjit Singh [(1990)4 SCC 723] :
"11. The legislature in its wisdom is presumed to understand and appreciate correctly the problems of the State and the needs of the people made manifest by experience. Absent blatant disregard of constitutional provisions, legislative innovation by social and economic experimentation must be permitted to continue without judicial interference."
(iv) State of A.P. v. MCDOWELL & CO. [(1996) 3 SCC 709] :
"43. .......... No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. .........."
(v) Karnataka Bank Ltd. v. State of A.P. [(2008) 2 SCC 254] :
"19. .......... In pronouncing on the constitutional validity of a statute, the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law. If that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on
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that power, the law must be upheld whatever a court may think of it."
The above decisions state that Courts cannot sit in judgment over the wisdom of legislature in enacting a law unless it offends constitutional limitations. The object of Section 44(2) of the Act is to prevent concentration of power and to give opportunity to all the members of a society to participate in its management. Therefore, Section 44(2) of the Act cannot be said to be irrational or arbitrary offending Article 14 of the Constitution.
16. A provision restricting the right to seek re-election, which is similar to the one impugned in this petition, fell for consideration before a three judge bench of the Supreme Court in Bhandara District Central Coop. Bank Ltd. v. State of Maharashtra [1993 Supp (3) SCC 259]. The Supreme Court while upholding its validity has observed as follows:
"5. We have considered the argument and examined the provisions of the Act placed before us by the learned counsel for the parties. It appears that there is clear basis for selecting the category of persons to be referred to by the expression "designated officer" for the purposes of Sections 73-A, 73-C, 73-D and 73-E, and the policy in this regard is perfectly reasonable, having regard to the object of the amendment. The impugned provisions restrict the period for which a person either elected or appointed (under the Act, the rules or the by-laws), who is entitled to give directions in relation to business of a society, can remain in office. The object of the amendment is clearly discernible as preventing a person or a group of persons from monopolising the affairs of a society by exercising
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control thereon indefinitely for a long period. A cooperative society is not meant to be run as a close preserve of an individual or a group of persons. "Cooperative" has been understood as a form of organisation where persons voluntarily associate together on a basis of equality for the promotion of their economic interests. The emphasis is on 'cooperation'. It is, therefore, desirable to have the active participation of as many members as may be possible. The Statement of Objects and Reasons for the 1969 Amendment has mentioned that the object of the Act was not being fully achieved as a group of persons were found holding the key positions in several important cooperative institutions simultaneously and for long periods, with a result that new leadership was not being built up to the desired extent. To check this unhealthy tendency and to give a more democratic character to the cooperative institutions, it was found necessary to prescribe the limitations in the statute itself by amendment. When after watching the effect of the earlier amendments, the Gujarat Legislature found that the goal was not fully achieved, and a further amendment was necessary, the impugned provisions were inserted in the Act. All this has been done for realising the objective set out by the Act and is clearly in the public interest."
17. In Tippannappa v. State [(1983)2 Kar.L.J. 269], a restrictive provision similar to the one impugned herein was upheld by this Court with the following observations:
"11. But S.29-D does not, in terms, go so far. S.29-D was incorporated in the Act by Kar.Act No.39/1976. Previous to that a person could have held office, as an office bearer of a society, for any length of period. S.29-D puts a limitation or a bar on that and prohibits a person from holding any such office beyond the period of six consecutive years at a stretch. If he holds office in one or the other capacity continuously for six years, he must make way for others to any such office. This change has been brought about in the law to prevent powerful persons from entrenching themselves in the office creating in themselves a vested interest therein thereby preventing others, less powerful financially or otherwise, though fully qualified in all other respects, from actively participating in the management of the society concerned. What is it that S.29-D wants to achieve? It wants to prevent the danger referred to above and facilitate others
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from fully sharing the responsibility of an elective office of a co-operative society so that it helps in furthering co-operation and self help among all sections of the population of a local area."
A Division Bench of this Court in K.P. Shenoy vs. State of Karnataka (ILR 1995 KAR 510) has endorsed the above view in Tippannappa (supra) in the following words:
"8...................................................... If, as a matter of policy, a restriction is imposed in the Statute to restrict the period of office of a member of Managing Committee, the same would promote the object of enabling others to participate in the management of the society thereby promoting co-operation movement."
18. For the reasons stated above, my conclusions are as follows:
(i) The Parliament, in its wisdom, has thought it fit to impose restriction of term limits for seeking re-
election to the post of President of a multi-state co- operative society. Courts cannot sit in judgment over the wisdom of legislature in enacting a law unless it offends constitutional limitations. The object of term limits imposed under Section 44(2) of the Act is to avoid concentration of power, prevent stagnation and to give opportunity to all the members of a society to participate in its management. Hence, the restriction of term limits imposed by the Parliament under Section 44(2) of the Act for seeking re-election cannot be said to be irrational or arbitrary, and therefore, Section 44(2) is not violative of Article 14 of the Constitution.
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(ii) Section 44(2) of the Act does not place any restriction on the right of citizens to form co-operative societies. It does not interfere with the right of citizens, forming a co-operative society, to continue to be associated with only those whom they voluntarily admit to the society. Therefore, it is not violative of Article 19(1)(c) of the Constitution.
(iii) Right to seek re-election to the post of President of a multi-state co-operative society is a statutory right regulated under the Act and not a fundamental right under Article 19(1)(c) of the Constitution.
(iv) Section 44(2) of the Act is constitutionally valid as it does not offend any of the provisions of the Constitution. The writ petition is accordingly dismissed. No order as to costs.
Petition dismissed.
Sd/-
JUDGE bns/hkh.