97th Constitutional Amendment Bill : Autonomy to Cooperatives.

97th Constitutional Amendment Bill : Autonomy to Cooperatives.      

Dr. Balraj Bishnoi (Author)                                                                                                                                            

Abstract                                                                                                                                                                                              THERE IS NO MENTION OF SECURITY OF COOPERATIVE STAFF IN THE AMENDMENT BILL.THE AMENDMENT BILL WILL NOT BE HELPFUL FOR COOPERATIVE STAFF OF VARIOUS COOPERATIVE SOCIETIES. The Security of employment is a matter of Labour Laws. Current Labour Law do not grant such protection. Constitution does not directly protect employment. It has to be under a Statute of the State concerning employment. SECURITIES ARE FOR GOVERNMENT EMPLOYEE IT MAY BE STATE GOVERNMENT OR CENTRAL GOVERNMENT. COOPERATIVE STAFF OF VARIOUS COOPERATIVE SOCIETIES ARE MEN OF ANOTHER PLANET. ALL COOPERATIVE STAFF OF INDIA SHOULD BE UNITED.

97th Constitutional amendment is a landmark for Cooperatives development and give right to form cooperative societies as a fundamental right. The Parliament also accorded right to set up a specialized agency such as Election Commission which conducts election of the cooperative societies in our country. Union Cooperative and Agriculture Minister said that “the bill would usher in an era of professionalization and democratization" thereby strengthening the cooperative movement in India. The effective date of 97th amendment & the details of notification is as follows; Ministry of Agriculture (Department of Agriculture and Cooperation, Notification No. 265(E), dated February 8, 2012, published in the Gazette of India, Extra., Part II, Section 3(ii), dated 13th February, 2012, p.1, No. 235. In exercise of the powers conferred by sub-section (2) of Section 1 of the Constitution (Ninety Seventh Amendment) Act, 2011 (2012-CCL-II-14), the Central Government hereby appoints the 15th day of February, 2012 as the date on which said Act shall come into force. Ninety seventh amendment is yet to be enforced.  all Gazette notifications checked but  not find any notification for the enforcement of the act assented on dtd: 12.02.2012

The basic points in brief are:
 1 Right to form Cooperatives is a fundamental rights                                                                                                                            2  Cooperatives could set up agency which would oversee election;                                                                                                  3 Uniformity in the tenure of Cooperative Board of Directors;                                                                                                              4 Provisions for incorporation, regulation and winding up of co-operative societies based on the principles of        democratic member-control and autonomous functioning;                                                                                                                    5 Specifying the maximum number of directors of a co-operative society to be not exceeding twenty-one members;                6 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;                                                                                                                                                                                               7 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;                                                                                                                                                           8 Providing for independent professional audit;                                                                                                                                     9 Providing for right of information to the members of the co-operative societies;                                                                         10 Empowering the State Governments to obtain periodic reports of activities and accounts of co-operative societies;           11 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; and                                     12 Providing for offences relating to co-operative societies and penalties in respect of such offences.

OBSERVATION and ANALYSIS

1 It should be of great interest with urgency as to how the State enacts legislation confirming to the amended Constitution and with what urgency. Since NCP chief has been instrumental in getting this Bill through, and his party is a Coalition Partner in Government, it can be hoped that NCP SUPREMO will be the first to strive for percolating the opportunity created by this amendment.

2 This is an important act passed by Parliament as Cooperatives are under the grip of government officials.

3 Will some one explain what difference it will make to people who are given one more Fundamental Right to form Cooperatives. There was no prohibition so far any way. This will help people of India to reap benefit of this new right sooner than otherwise. The question remains, whether a legal right was not enough that a Fundamental right had to be conferred on the Citizens.

4 THERE IS NO MENTION OF SECURITY OF COOPERATIVE STAFF IN THE AMENDMENT BILL.THE AMENDMENT BILL WILL NOT BE HELPFUL FOR COOPERATIVE STAFF OF VARIOUS COOPERATIVE SOCIETIES. The Security of employment is a matter of Labour Laws. Current Labour Law do not grant such protection. Constitution does not directly protect employment. It has to be under a Statute of the State concerning employment. SECURITIES ARE FOR GOVERNMENT EMPLOYEE IT MAY BE STATE GOVERNMENT OR CENTRAL GOVERNMENT. COOPERATIVE STAFF OF VARIOUS COOPERATIVE SOCIETIES ARE MEN OF ANOTHER PLANET. ALL COOPERATIVE STAFF OF INDIA SHOULD BE UNITED.

SIGNIFICANCE and COMPLEXITIES

Cooperative staff is  selected through Service Commission. thus  protection of cooperative staff as selection is free and fair. The State Government State Service Commission which has been entrusted with the task of selecting persons for appointment to certain posts other than Group-D posts in all the Apex Co-operative Institutions including the State Co-operative Bank and the State Co-operative Agriculture and Rural Development Bank, Central Co-operative Banks and other Central Societies, Primary Co-operative Agriculture and Rural Development Banks and Primary Urban Co-operative Banks.

The Selection Committee of the Commission consists of the Chairman and other two members of the Commission, a representative of the State-level or District-level Co-operative Society as the case may be and a representative of the Co-operative Society for which the selection is to be made. In case of selection of employees for a State Level Co-operative Society, the Selection Committee consists of the Chairman and two other members of the Commission, a representative of the State Level Co-operative Society for which the selection of employees is to be made and one officer of the Co-operation Directorate to be nominated by Registrar of Co-operative Societies.
Every Co-operative Society has to consult the Commission on all disciplinary matters affecting any of its employees appointed on the recommendation of the Commission and on such matters as may be specified by the State Government by Notification.

What is the situation of PACS and central cooperative Banks after the implementation of Vaidyanathan committee package; still in dilemma.
In Kerala discussions are going on to decide whether central package is beneficial for the cooperatives. Cooperative sectors are to be merged with Panchayat and Municipality immediately. Appointment should be made through Service Commission. PACS and wholesale; It is not possible for Wholesale Con. cooperative society Ltd to give salary to the cooperative staff by retail selling rice, mustard oil etc. They need government project and financial support.

What Constitutional Amendment Act  intends by inserting Article 43B is to be taken seriously by the Government. This is because Article 43B directs the Governments of all the States of India that State shall promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies. State has no direct role. Nor the state to be blamed.

It is another matter that the Indian Federalism permits a State Government of the Political Party supporting the Centre in passing the Constitutional Amendment, not to accept the directions of the same Constitutional Amendment. People (Salaried Class) of the State Government take Control of Cooperatives are understandable. But the Legislature thinks differently as can be seen in the Provisions of Cooperative Societies Law; in the Constitutional Amendment.

It is the Bill of 2009.The Bill has got the assent of the Hon. President is not also clear. If not, when the Bill will have the same, what would be the fate of the Board of such cooperatives where the Directors had been elected in 2009 for three (3) years ? Will it be continued on the basis of the power of the amendment Bill in question or it would be dissolved as per recent amendment done by the State Govt. 

Presidential assent is a formality. The other formality is Union Government announcing the date on which the Amendment Act comes in to effect. The Constitutional Amendment emphasize on Freedom to Cooperative Managements from the State interference. The flip side is Members of Societies have to exercise vigil over management of their society. The Board can be superseded in case of State aided Societies when mismanagement is reported. Where a Society is not State Aided Board can not be superseded, so members are given freedom with higher responsibility. The recruitment of Co-operative Staff and taking disciplinary actions will become history after one year of the date announced by the Union Government, the Recruitment Commission’s activities would be viewed as State Interference. Directive Principle as per new Article 43B is not mandatory but new provisions about Board are mandatory for the states to follow. It will be very necessary for at least particular number of the Members to sort up against delinquent Board and be prepared to join the Board. They have to shed their shyness / indifference as regards management of their Societies

Number of Directors are as specified in bye laws subject to maximum of 15.Bye laws specify whether 15 includes Reservation or have to be additional. If the Bye Laws are silent about Reservation then that will be additional Seats as these are reserved under the Act.

It is understood that President has assented to the bill on 12-01-2012.
Whether government notification is available? Moreover the number of the bill is shown as 97 instead of 111 in the final bill approved by Parliament.

Keeping in view of the recommendation of  Vaidhayanathan Committee, the  Cooperative Societies Act-2006 was framed to limit the Government intervention in Cooperatives specially in Short Term Credit Structure. But it is the interventional affair of the Government by introduction of undemocratic Cooperative Societies (Amendment) Act, 2011 to frustrate the democracy in the constitution of management of co-operative societies in the International Year of Cooperatives-2012 as declared by United Nation.

243ZT- Notwithstanding anything in this Part, any provision of any law relating to cooperative societies in force in a State immediately before the commencement of the Constitution (Ninety-seventh Amendment) Act, 2011, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is less. For example about suspension of the management of societies, one important provision is made in Article 243ZL (1) as under;  Notwithstanding anything contained in any law for the time being in force, no board shall be superseded or kept under suspension for a period exceeding six months: Provided further that the board of any such co-operative society shall not be superseded or kept under suspension where there is no Government shareholding or financial assistance or any guarantee by the Government. If any State Law has a provision of suspending Boards where no financial support of State exists, this power of suspension will cease to be operative after one year.

The political and bureaucratic interference all along have ruined the cooperative sector. Only now it has been exposed through the constitutional amendment. The contravening provisions of state legislatures can not be made use as against to the notified constitutional provisions. One year time is given only to bring the inconsistency into consistency as it can not be done overnight. As such, the inconsistent provisions are allowed to continue for correcting the things and not to make things worst further. Therefore, no Government will make use of inconsistent provisions even now.

State Cooperative Societies Laws are very divergent and to be able to understand any issue fully one needs to go through three documents viz The State Act. The Rules made there under and the registered Bye Laws of the Society as these three make up for a complete law subject to State Notifications. Whenever an issue is confronted these three have to be consulted. There can be difference amongst individuals as regards comprehension, interpretation application of practical issue etc and above all passion for Co-operatives as an area.

It is true cooperative laws in our country are highly inconsistent and user friendly for politicians and bureaucrats. Very few are able to understand Cooperatives, is a form of governance like any other form of governance (proprietorship, partnership etc.) and the activities of cooperative societies are governed by activity related legislations, example; banking activity is governed by B R Act etc. Unfortunately, cooperative laws are made in such a way to supersede all activity related laws and thereby create inconsistency.

All the learned should utilize the constitutional amendment and to confine the making of cooperative law only to the extent of governance. This way we can bring a clarity and mitigate exploitation on cooperatives.

Cooperatives are still under the seize of the politicians. Well there is nothing arm in it but as they climb the ladder of cooperative, they fell it as a useless thing. It would be nice if this bill helps to curb this menace.

Conclusion:         

Cooperatives are the breeding ground for politicians. Democratic governance are basically cooperative governance. Obviously, politicians of any democratic country are the fruits of cooperatives, who respect the umbrella of cooperatives for survival. Cooperatives & Democracy are synonymous and work parts of same coin. 

CONCLUSION                                                                                                                                                                                                                                         Mainly 2 factors coming in the way of success of Cooperatives; a) How fast the 97th Constitutional Amendment can curb the malpractices of few politicians & bureaucrats is very difficult to say, but the idea is to empower every Indian by granting him a Fundamental right of forming Cooperative societies without the State adversely affecting & controlling their rights; and b) Protecting one’s own right is  duty and to ensure this constitutional protection Indian citizens needful to unite against corrupt practices by bureaucrats and politicians .  Fundamental right will work as catalyst of Cooperative development.

                                              The Constitutional Amendment emphasize on freedom to Cooperative Management bodies from the State interference. The flip side is Members of Societies have to exercise vigil over management of their society. The Board can be superseded in case of State aided Societies when mismanagement is reported. Where a Society is not State Aided Board cannot be superseded, so members are given freedom with higher responsibility, after one year i.e.  15. 2. 2013 and Boards of unaided societies will have no fear of supersession.  The Board mismanaging a Society will have to be controlled by members themselves. The members will have to manage disputes to set right the managements. Where the Board stick to power beyond the tenure, members will have to take this up by majority decisions and State will not come to the rescue as it happens today.

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