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2.1 According to the petitioner, the power under Article 368 of the Constitution of India itself is the basic structure of the Constitution of India and the fact that by the impugned constitutional amendment, the procedure prescribed in the article 368(2) of the Constitution, which recognizes the federal structure of the Constitution as one of the basic structures, has not been followed, is violative of the Constitution. The petitioner contends that the subject-matter Co-operative Societies does not fall in the 7th Schedule Entry 45 of List I of the Constitution and those are specifically excluded from entry no. 43 of List 1. Therefore, according to the petitioner, the State legislature is the only competent authority in law to enact the laws for the co-operative societies and on that ground, the proposed amendment should be set aside as violative of the Constitution of India as the consent of the majority of the State Legislatures was not received before presenting the Bill proposing the amendment to the President of India.

2.2 According to the petitioner, it is settled law that a constitutional authority cannot do something indirectly which it is not permitted to do directly and if there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adopting a subterfuge. By the impugned constitutional amendment, according to the petitioner, the Parliament, a creature of the Constitution, and not vice-a-versa, has violated the basic structure of the Constitution by not complying with the requirements of Article 368 (2) of the Constitution.

19.1 By relying upon the said decision, Mr. Shah strenuously contended that the object of the amendment before us is to overcome the provision contained in Article 368[2] by taking ratification of majority of the State Legislatures and thus, we should strike down the said provision.

20. We also find substance in the contentions of Mr. Shah that by the amendment impugned in this writ-application, one of the basic structures of the Constitution, viz. the principles of federalism has been affected. There is no dispute that federalism is one of the basic structure of our Constitution. Once the subject of Co-Operative Societies is in the List II of the 7th Schedule, by depriving the State Legislatures of their free exercise of right to enact on the said subject and by curtailment of their right over the subject matter to abide by the newly enacted provision of the Constitution without following the requirement of ratification as provided in Article 368(2), the doctrine of federalism which is one of the basic features of the Constitution has been infringed.

We, thus, find that the above decision relied upon by Mr. Champaneri does not help his client in any way.

25. Mr. Champaneri also relied upon paragraphs 108 to 122 of the judgment of the Supreme Court in the case of Ashoka Kumar Thakur v. Union of India reported in (2008) 6 SCC 1.

In those paragraphs, the Supreme Court dealt with the question whether the 93rd amendment of the Constitution was against the basic structure of the Constitution or not. By the Constitution [93rd amendment] Act, 2005, clause (5) was added to Article 15 of the Constitution which is an enabling provisions which states that nothing in Article 15 or in sub-clause (g) of Clause (I) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to the educational institutions including private educational institutions, whether aided or unaided by the State. In such a case it was held by the Supreme Court that the said amendment does not violate the basic structure of the Constitution so far as it relates to aided educational institutions. The Supreme Court further held that the question whether reservation could be made for SCs, STs or SEBCs in private educational institutions on the basis of the Constitution [93rd amendment] or whether reservation could be given in such institutions or whether any such legislation would be violative of Article 19(1)(g) or Article 14 of the Constitution or whether the said amendment which enables the State Legislatures or Parliament to make such legislation are all questions to be decided in a properly constituted lis between the affected parties and others who support such legislation.