Judgment :- Mishra, J.: The petitioners herein have challenged the Ordinance No.5 of 1991 dated 27th July, 1991 published in the Tamil Nadu Government Gazette (Extraordinary) dated 28th July, 1991. In the course of the hearing of the writ petitions, however, the Tamil Nadu Co operative Societies (Appointment of Special Officers) Act, 1991 has been notified. They have amended the prayer and sought a declaration that it is void and unconstitutional. 2. The statement of Reasons and Objects in the Amendment Act is the same as in Ordinance and the provisions therein are the same as in the Ordinance, It is useful to notice that the Legislature of the State has enacted the Tamil Nadu Co-operative Societies Act, 1983 (Tamil Nadu Act 30 of 1983) repealing the Tamil Nadu Co-operative Societies Act, 1961 (Tamil Nadu Act 53 of 1961) and the Tamil Nadu Co-operative Land Development Banks Act, 1934 (Tamil Nadu Act 10 of 1934) to amend and consolidate the law relating to and to make better provision for the organisation, management and supervision of co-operative societies in the State of Tamil Nadu (See Preamble to the Act 30 of 1983). The Preamble to the Act 30 of 1983 contains that, "to provide for an orderly development of the co-operative movement in accordance with operative principles such as open membership, democratic management, limited interest capital, distribution of surplus based on patronage, provision for co-operative education co-operation among co-operatives for the promotion of thrift, self-help and mutual among persons with common socio-economic needs so as to bring about improvement agriculture and industry, better methods of production, better business and better living for that purpose to amend and consolidate the law relating to co-operative societies in State of Tamil Nadu." The Legislature enacted the law. 3. The Act brought all societies, whether agricultural producers, marketing society, agricultural service co-operative society, milk producers society, oilseeds growers society, self-reliant society weavers, society, and scheduled co-operative society and whether limited or unlimited liability under the definition of a "primary society" except an apex society or a central society as defined in Sec.2(2l) thereof. 4. 3. The Act brought all societies, whether agricultural producers, marketing society, agricultural service co-operative society, milk producers society, oilseeds growers society, self-reliant society weavers, society, and scheduled co-operative society and whether limited or unlimited liability under the definition of a "primary society" except an apex society or a central society as defined in Sec.2(2l) thereof. 4. Chapter IV of the Act deals with the management of registered societies and contains specific provision to the effect that the ultimate authority of a registered society shall vest the general body of its members and in Sec.33 that the management of every registered society shall vest in a board constituted in accordance with the provisions of the Act, Rules and the By-laws, which shall exercise such powers and perform such duties as may conferred or imposed on it by the Act, the Rules and the By-laws, and in Sec.33(10) that term of office of a member who is elected to any board constituted under the Act the Rules or the By-laws shall be three years and the term of office of a member of any board nominated thereto by the Government, the Registrar or the prescribed authority or financing bank, if such member is not a Government servant shall not exceed three years, and the term of office of a member of any board who is a nominee of another society other interest, such as the Tamil Nadu State Agricultural Marketing Board, shall not exceed three years. 5. The Act also provides for declaration and removal of members of the Board, and who not be eligible for being elected or nominated as a member of the Board of any registered society, in Sec.34 thus indicating as to who may be elected or nominated. 5. The Act also provides for declaration and removal of members of the Board, and who not be eligible for being elected or nominated as a member of the Board of any registered society, in Sec.34 thus indicating as to who may be elected or nominated. In sub thereof, the Act states, "A member of the board shall cease to hold the office as such if he- (a) becomes subject to any of the disqualifications mentioned in Sub-sec.(l): Provided that a member of the board who ceases to hold office by reason of his having incurred the disqualification mentioned in,-(i) Sub-clause (i) of Clause (b) of sub shall not be eligible for re-election or re-nomination as a member of the board of registered society of which he was a member or for election or nomination to the board any other registered society; (ii) Sub-clauses (iii) or (iv) of the said Clause (b), shall not be eligible for re-election or nonmination as a member of that board or for re-election or nomination to the board of other registered society, for a period of three years which shall be reckoned,- (A) in the case of the disqualification mentioned in Sub-clause (i) the said Clause (b), the date on which the dues referred to therein have been fully cleared; and (B) in the case of disqualification mentioned in sub-clause (iii) or (iv) of the said Clause from the date on which the dues involved in such decree, decision, award, order, certificate or application in respect of which proceedings have been initiated, have been discharged; Provided further that where a member of the board ceases to hold his office such by reason of his having been sentenced for any offence under this Act, and sentence is annulled on appeal or revision he shall be restored to office for such portion the period for which he was elected or nominated as may remain unexpired at the date such restoration and any person elected or nominated to fill the vacancy in the interim shall, on such restoration, vacate office; or (b) ceases to be a member of the registered society; or (c) purchases directly or indirectly any property of other members of the registered society brought to sale for recovery of any money due from such other member to the registered society; or (d) absents himself from four consecutive meetings of the board or from all meetings board for a continuous period of three months, whichever is longer: Provided that the member ceasing to hold office under this clause may be restored accordance with the procedure prescribed if such member makes an application condonation of the absence," and sub-sec.(3) of Sec.34, "The board of a registered society may suo motu, and shall on an application made person, consider whether any member of the board was or has become disqualified office as such under this section and take a decision. Such a decision shall be communicated to the member and the applicant concerned, if any; Provided that no decision shall be taken unless the member of the board is given opportunity of making his representation: Provided further that pending such decision, member of the board shall be entitled to continue as such as if he is qualified or disqualified." 6. Sec.35 of the Act says that every person shall, prior to his election or nomination member of the board of any registered society, give such registered society, intimation and shall, before taking charge of his office as such member of the board sell or himself of any interest other than investment and borrowing which he may have for his benefit whether in his own name or otherwise, in any contract made with the registered society or in any sale or purchase made by the registered society privately or in any or in any contract or transaction of the registered society and it shall not be lawful member of the board of any such society, so long as he holds office to acquire or purchase any such interest other than investment and borrowing and if he, under any will succession or by gift becomes entitled for his own benefit to such financial interest, he sell the same within three months after becoming so entitled thereto and he shall also three months, sever any connections he may have and cease to have any such interest direct or indirect other than investment and borrowing provided that contained in the subsection shall apply to such class of contracts, sales, purchases transactions as may be prescribed and, under Sub-sec. (2), empowers the Registrar remove such member from the office of membership of the board, who failed to comply the said provision, Sub-sec.(3) of this section, however, says, "No member shall be removed under Sub-sec.(2) without being given an opportunity making his representations. A copy of the order removing him shall be communicated him." 7. (2), empowers the Registrar remove such member from the office of membership of the board, who failed to comply the said provision, Sub-sec.(3) of this section, however, says, "No member shall be removed under Sub-sec.(2) without being given an opportunity making his representations. A copy of the order removing him shall be communicated him." 7. Besides the above, there is another provision in Sec.36 which reads as follows: "(1) Where in the course of an audit under Sec.80 or an inquiry under Sec.81 inspection or investigation under Sec.82 or inspection of books under Sec.83 it appears a person who is, or was a member of a board has misappropriated or fraudulently any money or other property or been guilty of breach of trust in relation to the society any corrupt practice as defined in Sec. 162 or of gross or persistent negligence in connection with the conduct and management of, or of gross mismanagement of the affairs society, the Registrar may, without prejudice to any other action that may be taken such member by order in writing, disqualify him permanently from holding in future office in any registered society. The Registrar shall, if such person holds office of members the board, also by the same order remove him from that office. (2) No person shall be disqualified or removed under Sub-sec.(1) without being given opportunity of making his representations. A copy of the order disqualifying or removing shall be communicated to him." 8. Secs.82 and 83 of the Act are put in Chapter IX providing for audit and inquiry Registrar or by some person authorised by him into the constitution, working and financial condition of a registered society or any alleged misappropriation, fraudulent retension money or property, breach of trust, corrupt practice or mismanagement in relation to society or into any particular aspect of the working of the society and also inspection investigation by the Registrar of his own motion or on the application of a creditor registered society or by any person authorised by him, into the affairs of the registered society in general or any alleged misappropriation fraudulent retention of any money or property, breach of trust, corrupt practice or mismanagement in relation to that society or into particular aspect of the working of the society having the same powers as in Sec.81 to inquiry, and inspection of books by financing banks and maintenance of accounts registered societies. Secs.87 to 89 of this chapter of the Act provide for surcharge, supersession of the board and appointment of Special Officers in certain circumstances. Secs.87 to 89 of this chapter of the Act provide for surcharge, supersession of the board and appointment of Special Officers in certain circumstances. provision in Sec.88 reads as follows: "(1) (a) The Registrar- (i) may, if he is of opinion that the board of any-registered society is not functioning properly or wilfully disobeys or wilfully fails to comply with any order or direction issued the Registrar under this Act or the Rules (ii) shall, where for two consecutive co-operative years- (A) in the case of a financing bank more than sixty per cent of the total dues to the financing bank from its members remain unpaid or the number of defaulting members of financing bank exceeds sixty per cent of the total number of members indebted to bank, and (B) in the case of other registered societies, more than seventy per cent of the total dues the registered society from its members remain unpaid or the number of defaulting members of such registered society exceeds seventy per cent of the total number members indebted to such society after giving the board of the registered society or financial bank, as the case may be, an opportunity of making its representations, by order writing, supersede the board and appoint a Government servant or an employee of any corporate owned or controlled by the Government (hereinafter referred to as the Special Officer) to manage the affairs of the society for a specified period not exceeding one Provided that an order under this sub-section shal be passed within a period of three months from the date of issue of notice of supersession or such further period or periods as the higher authority may permit but such extended period or periods shall not exceed months in the aggregate: Provided further that in computing the total dues remaining unpaid for the purposes of (ii), any instalment or sum which is not recoverable by reason of any remission suspension or order of stay passed by the appropriate authority due to adverse seasonal conditions or any other reason shall be excluded in respect of that instalment or Provided also that for the purposes of computing the number of defaulting members referred to in item (ii) any member who is not liable to pay any instalment or sum by reason remission or suspension or order of stay passed by the appropriate authority due to seasonal conditions or any other reason shall be excluded in respect of that instalment sum, (b) The period specified in such order may at the discretion of the Registrar, be extended from time to time provided that such order shall not remain in force for more than two in the aggregate: Provided that whereon the date of commencement of this Act, the period of supersession exceeds one and half years, the Registrar may extend the period of supersession for further period or periods not exceeding six months in the aggregate. (2) Where a Special Officer is appointed, the Registrar may appoint an advisory consisting of not more than five persons from among the members of that society who not disqualified for being elected or nominated to the board of that society to advise Special Officer in such matters as may be specified by him. The Registrar may at any withdraw any person or persons so appointed under this sub-section and fill up the vacancy or vacancies by fresh appointment. (3) The Special Officer appointed under Sub-sec.(1) shall, subject to the control Registrar and to such directions as he may, from time to time give, have power to exercise all or any of the functions of the board or of any officer of the society and to take such as may be required in the interest of the society. (4) The Registrar may fix the remuneration payable to the Special Officer appointed Sub-sec.(1). The amount of remuneration so fixed and such other expenditure incidental the management of the society during the period of supersession as may be approved Registrar shall be payable from the funds of the society. (5) The Special “ Officer appointed under Sub-sec.(1) shall arrange for the constitution new board in accordance with the provisions of this Act, the Rules and the By-laws the new board may be constituted and the members thereof come into office at the period of his appointment. (6) Before passing an order under Sub-sec.(1)(a)(i) in respect of any registered society, Registrar shall consult in the manner prescribed the board of the financing bank to which society is indebted: Provided that if the financing bank does not communicate its comments within fifteen the receipt of a communication from the Registrar in this regard, the board of the financing bank shall be deemed to have no comments to make on the order proposed to be under Sub-sec.(1). (7) Nothing contained in this section shall be deemed to affect the power of the Registrar order the winding up of the society under Sec.137. (8) An order under Sub-sec.(1) shall take effect from the date specified therein unless by an order of the appellate authority. Where an order under Sub-sec(1) is reversed appeal, the Special Officer appointed under Sub-sec.(1) shall forthwith hand over management of the society to the board. (8) An order under Sub-sec.(1) shall take effect from the date specified therein unless by an order of the appellate authority. Where an order under Sub-sec(1) is reversed appeal, the Special Officer appointed under Sub-sec.(1) shall forthwith hand over management of the society to the board. (9) Any paid officer of servant of the registered society against whom there is a prima evidence that he was also responsible for the acts leading to the supersession of the under this section, shall, without prejudice to any other action that may be taken against under this Act or any other law, be liable to disciplinary action including suspension, enquiry into grave charges. ” This is followed by the provision in Sec.89, which states: “(1) Where- (i) the term of office of the board of any registered society has expired and a new cannot be constituted in accordance with the provisions of this Act, the Rules and laws; or (ii) the new board constituted fails to enter, or is prevented from entering upon office expiration of the term of office of the earlier board: or (iii) the existing board has tendered resignation en bloc; or (iv) (a) vacancies have arisen for any reason, or (b) one or more members of the board tendered resignation and the number of remaining members cannot form the quorum meeting of the board, The Registrar may, of his own motion or on application of any member of the society, and in the case of a new board which has failed to enter, or prevented from entering, upon office, after giving the members of the said board an opportunity of making representations, by order appoint a Government servant or an employee of any corporate owned or controlled by the Government (hereinafter referred to as the Officer) for a specified period not exceeding six months to manage the affairs registered society pending the constitution of a new board, or as the case may entering upon office by the new board: Provided that the period specified in such order may for special reasons to be recorded writing by the Registrar, be extended from time to time but such order shall not remain force for more than one year in the aggregate. (2) The provisions of Sub-secs.(2) to (5) and Sub-secs.(7) and (8) of Sec.88, so maybe, shall apply in relation to the appointment of a Special Officer under Sub-sec.(1), they apply in relation to the appointment of a Special Officer under Sub-sec(1) of Sec.88.” 9. The Act thus is a comprehensive compendium of the actions that maybe taken member of the Society who may be guilty of misappropriation or fraudulent retention money or other property of the society or of breach of trust in relation to the society any corrupt practice or of gross or persistent negligence in connection with the conduct management of or gross mismanagement of the affairs of the society and supersession of the society if it is not functioning properly or wilfully disobeying failing to comply with any order or direction issued by the Registrar. 10. Besides the individual liability as to disqualification as a member of the Board society, in the case of any person who is or was entrusted with the organisation or management of the society or any past or present officer or servant the society, the Act gives power to the Registrar either to himself frame charges against such person or officer or servant or to authorise any other person to do so for a surcharge proceeding under Sec.87 of the Act subject to a limitation of seven years from the date the act or omission leading to such offence. 11. Although the Act received the assent of the President of India on 15th July, 1983 published in the Tamil Nadu Government Gazette Extraodinary of Part IV, Sec.2 dated November, 1983 it became operational only in the year 1988 and nothing followed this Act except the election held in October, 1990. After the elections and nominations women and S.C./S.T. representatives, etc., when the new board assumed office, Ordinance terminated its tenure with effect from the appointed day, that is to say, the on which the Ordinance came into force (28.7.1991). After the elections and nominations women and S.C./S.T. representatives, etc., when the new board assumed office, Ordinance terminated its tenure with effect from the appointed day, that is to say, the on which the Ordinance came into force (28.7.1991). The Ordinance and its successor have however got a long Preamble and state as follows: "An Act to provide for the appointment in the public interest of Special Officers for certain primary societies in the State of Tamil Nadu: Whereas the Tamil Nadu Co-operative Societies Act, 1983 (Tamil Nadu Act 30 of 1983) as amended by the Tamil Nadu Co Societies (Amendment) Act, 1990 (Tamil Nadu Act 26 of 1990), provides for thirty per representation for women and eighteen per cent representation for Scheduled Castes Scheduled Tribes in the boards of registered co-operative societies and for nomination representatives of women and Scheduled Castes and Scheduled Tribes, if women Scheduled Castes and Scheduled Tribes members are not elected to that extent. And whereas in the election to the boards of the primary co-operative societies held in year 1990, representatives of women and Scheduled Castes and Scheduled Tribes were elected to the extent of thirty per cent and eighteen per cent respectively: And whereas a large number of representatives of women and Scheduled Casted Scheduled Tribes, disproportionate to the elected members have been nominated, resulted in an abnormal tilt towards the nominated members: And whereas the abnormal tilt towards the nominated members will not be conducive orderly development of co-operative movement but also be not in consonance with principles of democratic management of co-operatives: And whereas a number of complaints have been received by the Government regarding malpractices in the conduct of election and in the management of the affairs of the primary co-operative societies: And whereas the Government with a view to set right the abnormal tilt towards nominated members and also to ensure the proper management of the said co societies, have decided to amend the Tamil Nadu Co-operative Societies Act, 1983 Nadu Act 30 of 1983) suitably and also to conduct election to all co-operative societies the said Act as proposed to be amended: And whereas pending amendment, it has been decided to supersede the boards management of the primary societies and to appoint Special Officers for a limited period, the public interest: Be it enacted by the Legislative Assembly of the. State of Tamil Nadu in the Forty Years of the Republic of India as follows: (in the place of the last paragraph above, Ordinance contained/contains, And whereas the Legislative Assembly of the State is not in session and the Governor Tamil Nadu is satisfied that circumstances exist which render it necessary for him to immediate action for the purposes hereinafter appearing: Now therefore, in exercise of the powers conferred by Clause (1) of Art.213 Constitution, the Governor hereby promulgates the following Ordinance." 12. After Secs.1 and 2 which give the short title and commencement and definitions expressions "appointed day", "board", "Co-operative Societies Act", "Government" "primary society" the Ordinance and the successor Act in Sec.3 contain a provision term of office of members of board of certain primary societies to expire. This section as follows: "Notwithstanding anything contained in the Co-operative Societies Act, or in any other for the time being in force, or in any decree or order of any court, tribunal or authority, the term of office of every member (whether elected or nominated) of the of every primary society, including its president and vice-president, holding office as as, immediately before the appointed day, shall expire on the appointed day and members shall vacate their office on and from the appointed day, “the appointed day being the date of the promulgation of the Ordinance. Sec.4 of Ordinance and the Amendment Act empowers the State Government to appoint a person Special Officer to manage the affairs of such a superseded primary society prescribing follows: “(1) (a) Notwithstanding anything contained in the Co-operative Societies Act, or in other law for the time being in force, or in any decree or order of any court, tribunal or authority, on and from the appointed day, the Government shall appoint a person as Officer to manage the affairs of any primary society referred to in Sec.3. (b) Nothing in this sub section shall prevent the appointment of the same person as Officer for two or more primary societies. (2) Each Special Officer appointed under Sub-sec.(1)shall hold office for a period of one with effect on and from the appointed day or for such shorter period as the Government may, by notification, specify in this behalf. (b) Nothing in this sub section shall prevent the appointment of the same person as Officer for two or more primary societies. (2) Each Special Officer appointed under Sub-sec.(1)shall hold office for a period of one with effect on and from the appointed day or for such shorter period as the Government may, by notification, specify in this behalf. Provided that if any vacancy arises in the office the Special Officer, the vacancy shall be filled up the Government and the person appointed in the vacancy shall hold office for the remainder of the said period. (3) The Special Officer appointed under Sub-sec.(l), subject to the control of the Registrar and to such directions as he may, from time to time, give shall exercise all or any functions of the board or of any officer of the primary society and take such action as required in the interest of such primary society. (4) The Government may fix the remuneration payable to the Special Officer appointed under sub-sec.(l) and the amount of remuneration so fixed and such other expenditure incidental to the management of the primary society as may be approved by the Registrar, shall, subject to such directions as the Government may give in this regard, be payable the funds of such primary society. (5) The Special Officer appointed under Sub-sec.(l) shall arrange for the constitution new board in accordance with the provisions of the Co-operative Societies Act and the made thereunder and By-laws of such primary society, so that the new board may constituted and the members thereof come into office at the expiry of the period appointment of the Special Officer. “For the interregnum, that is to say from the date of termination of the term of office of member, whether elected or nominated, of the Board of every primary society until expiry of the period of appointment of the Special Officer, the ordinance or the Act has prescription. Sec.5 of the Ordinance or the Act provides as follows: “(1) Notwithstanding anything contained in the Co-operative Societies Act, the Government may appoint an advisory board consisting of not more than five non-official members advise such Special Officer. (2) The members of the Advisory Board shall be entitled to receive such allowances or and other amenities as may be prescribed. Sec.5 of the Ordinance or the Act provides as follows: “(1) Notwithstanding anything contained in the Co-operative Societies Act, the Government may appoint an advisory board consisting of not more than five non-official members advise such Special Officer. (2) The members of the Advisory Board shall be entitled to receive such allowances or and other amenities as may be prescribed. (3) The Advisory Board shall be consulted by the Special Officer on all matters relating affairs of the primary society. “ Sec.6 of the Ordinance or the Act has extended the application of the provisions of the operative Societies Act and the Rules made thereunder to a Special Officer appointed Sub-sec.(1) of Sec.4 as they apply in relation to a Special Officer under Sub- Sec.88 of the Co-operative Societies Act. Since under Secs.4 and 5, the Government required to do certain functions, Sec.7 provides for a delegation by the State to the Registrar to exercise any of the powers vested in them under Sec.4 or under Sec.5 in respect of any of the primary societies. This section reads as follows: “(1) The Government may, by notification, authorise the Registrar to exercise any powers vested in them under Sec.4 or under Sec.5 in respect of all or any of the societies. (2) The exercise of any power delegated under Sub-sec.(1) shall be subject to restrictions and conditions as may be specified in the notification and subject also to control and revision by the Government. “Sec.9 provides for the rule making power of State Government and Sec.10 provides for.” Notwithstanding anything contained in the Co-operative Societies Act, or in any other for the time being in force or in any decree or order of any court, tribunal or other ity--- (a) every member elected to the board of primary society but not assumed immediately before the appointed day shall be deemd never to have been elected as member; and (b) any dispute appeal, revision, rview or other proceedings in repspect of any election primary society pending before any court or other authority on the appointed day abate.” 13. Learned counsel appearing for the parties have addressed us at length on the execise power by the Governor of the State under Art.213 of the Constitution of India promulgating the Ordinance and taken us through the various provisions of law and constitutional rights of the members of the Board of the Co-operative Society as well statutory rights under the Co-operative Societies Act, 1983. They have contended that Clause (l)of Art.213 of the Constitution relating to the satisfaction of the Governor composite, that is, the satisfaction relates to the existence of circumstances as well necessity to take immediate action on account of those circumstances and since circumstances mentioned in the Preamble to the Ordinance are not immediate and present and are vague and not germane to the object stipulated in that clause of the article, promulgation of the Ordinance is a colourable exercise of power and that the effect legislation has been to settle the dispute between the complainants on the one hand elected members and office bearers of the managing board of the Co-operative Society the other, a matter beyond the competence of the Legislature and in any event, smacks the characteristics of Bills of Attainder. They have attacked Secs.3 and 5 in particular, inter alia terminate the election or nomination of every member of the Board of primary society including its President and Vice President notwithstanding the provisions aforementioned which fixed a tenure of three years and the appointment of the Board by the Government consisting of not more that five non-official members to advise Special Officer on the ground that the former is unconstitutional and ultra vires Sec.33(10) of the Co-operative Societies Act, 1983 and other similar provisions therein and latter for unconstitutionality as it gives arbitrary power to the Government to bring in lieu of members of the society any person to advise the Special Officer. They have worded submissions differently but attacked precisely on the same grounds the Ordinance as well the Act contending that the Legislature’s interference is violative of the petitioner of association guaranteed under Art.l9(1)(c) of the Constitution of India. Since the Ordinance has been repealed by the Act, it is only of academic interest to examine whether conditions precedent for promulgation of the Ordinance existed and the Governor reasons to be satisfied to legislate under Art.213 of the Constitution of India. 14. Since the Ordinance has been repealed by the Act, it is only of academic interest to examine whether conditions precedent for promulgation of the Ordinance existed and the Governor reasons to be satisfied to legislate under Art.213 of the Constitution of India. 14. Courts in India have examined the language in Art.213 of the Constitution which falls Chapter IV of the Constitution headed as the legislative power of the Governor and reads follows: ” (1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are session, the Governor is satisfied that circumstances exist which render it necessary for to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require: Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if-- (a) a Bill containing the same provisions would under this Constitution have required previous sanction of the President for the introduction thereof into the Legislature: or (b) he would have deemed it necessary to reserve a Bill containing the same provisions the consideration of the President: or (c) an Act of the Legislature of the State containing the same provisions would under Constitution have been invalid unless, having been reserved for the consideration of President, it had received the assent of the President. (2) An Ordinance promulgated under this Article shall have the same force and effect as Act of the Legislature of the State assented to by the Governor, but every ordinance....." and pronounced that even a plain reading of this would indicate that it has got two distinct aspects one being pristinely objective and the other being entirely subjective. The objective and the factual aspect is that the Legislature, where it is a unicameral one, must not be session, and where it is a bicameral one, both the Houses of the legislature should not be session. If the legislature is in session, the power of the Governor to issue Ordinances negatived. The other aspect which is purely subjective is with regard to the existence circumstances which necessitate the immediacy of the promulgation of the Ordinance. Clause (2) of this Article declares that the Ordinance shall have the same force and effect an act of the legislature of the state assented to by the Governor. The other aspect which is purely subjective is with regard to the existence circumstances which necessitate the immediacy of the promulgation of the Ordinance. Clause (2) of this Article declares that the Ordinance shall have the same force and effect an act of the legislature of the state assented to by the Governor. Thus it is no less an Legislature than an enactment by the Legislature. What thus may be the scope of judicial review of such legislative action, when it is not in dispute that when the Ordinance promulgated, the Legislature of the State which is a unicameral one was not in session thus this factual requirement existed. A long time of unbroken precedent that the satisfaction of the Governor-General or the Government with regard to the immediacy in the Ordinance making power under the Government of India Acts 1915 and 1935 in the pre-Constitution is available saying that the satisfaction was not justiciable (see the judgments of the Council in Bhagat Singh v. Emperor, A.I.R. 1951 P.C. 111: 34 L. W. 53, Emperor Benoarilal Sharma, (1945)1 M.L.J. 76: 1945 F.C.R. 161:1945 F.L.J. 1.1945 M. W.N. 41 (1945) M.W.N. (Crl.) 1: 58 L.W. 64: A.I.R. 1945 P.C. 48 and in Emperor v. Sibnath Banerjee, (1945)2 M.L.J. 325:1945 M.W.N. 546:1945 M.W.N. (Crl.) 94:221 I.C. 243:1945 195:1945 F.L.J. 222: 72 LA. 241: A.I.R. 1945 P.C. 156 and Lakhi Narayan Das v. Province Bihar, A.I.R. 1950 S.C. 59, it is said: "It is admitted that the Bihar Legislature was not in session when this Ordinance was it was urged, however, in the court below, and the argument was repeated before us, that circumstance existed as is contemplated by Sec.88(l) which could justify the Governor promulgating this Ordinance. This obviously is a matter which is not within the competence of Courts to investigate. The language of the section shows clearly that it is the Governor the Governor alone who has got to satisfy himself as to the existence of circumstances necessitating the promulgation of an Ordinance. The existence of such necessity is justiciable matter which the Courts could be called upon to determine by applying objective test.....On promulgating an Ordinance the Governor-General is not bound matter of law to expound reasons therefor nor is he bound to prove affirmatively in a of law that a State of emergency did actually exist. The existence of such necessity is justiciable matter which the Courts could be called upon to determine by applying objective test.....On promulgating an Ordinance the Governor-General is not bound matter of law to expound reasons therefor nor is he bound to prove affirmatively in a of law that a State of emergency did actually exist. The language of Sec.88 postulates one condition, namely, the satisfaction of the Governor as to the existence of justifying circumstances and the Preamble to the Ordinance expresses in clear terms that this condition has been fulfilled. The first contention of the appellants must therefore be rejected." 15. Craies on Statute Law, Seventh Edition, 1971, has stated as under: "When a particular form of legislative enactment, which has received authoritative interpretation, whether by judicial decision or by a long course of practice, is adopted framing of later statute, it is a sound rule of construction to hold that the words so adopted were intended by the Legislature to bear the meaning which had been so put upon them." 16. In the light of the above, when we recall the debate in the Constituent Assembly Constituent Assembly Debates, Vol.8, page 214), we have to presume that the Constituent Assembly was fully aware of the same and intended to retain the same legal results employing virtually identical phraseology in Arts. 123 and 213 of the Constitution (Art. the President’s power). When the Parliament is not in session, to promulgate an Ordinance, in the above debate Dr.Ambedkar repelled the criticism against the retention of Ordinance making power in the Constitution and pointed out that the legislative conferred on the President and the Governor was not a parallel power of legislation, but exercisable only when both the houses of the Legislature were not in session. So in the Constitution era, when the Court examined such contentions, it always accepted necessity of immediate action for promulgating an Ordinance being a matter purely the subjective satisfaction of the Governor. So in the Constitution era, when the Court examined such contentions, it always accepted necessity of immediate action for promulgating an Ordinance being a matter purely the subjective satisfaction of the Governor. This view expressed Supreme Court in Store of Punjab v. Sat Pal Singh, A.I.R. 1969 S.C. 903, Rustom Cawasjee Cooper v. Union of India, (1970)1 S.C.J. 564:A.I.R. 1970S.C 564; S.K.G.Sugar Private State of Bihar, A.I.R. 1974 S.C. 1533: (1974)4 S.C.C. 827 :1974 Tax.L.R. 2245 R.K.Garg v. Union of India, A.I.R. 1981 S.C. 2138, holds the field although there are observations in the judgment of the Supreme Court in A.K.Roy v. Union of India, A.I.R. S.C. 710: 1982 Crl. L.J. 340: (1982)1 S.C.C. 272: (1982)2 S.C.J. 68, wherein it has observed at one place, ".....It is arguable that the 44th Constitution Amendment Act leaves no doubt that review is not totally excluded in regard to the question relating to the President satisfaction." and again, "That is why we do not feel called upon to examine the correctness of the submission by the learned Attorney General that in the very nature of things, the satisfaction President which is the basis on which he promulgates an Ordinance is founded materials which may not be available to others and which may not be disclosed detriment to public interest and that the circumstances justifying the issuance Ordinance as well as the necessity to issue it lie solely within the President’s judgment are, therefore, not justiciable." 17. We say so with respect for, in a later judgment of the Constitution Bench of the Supreme Court in the case of T. Venkata Reddy v. State of Andhra Pradesh, A.I.R. 1985 S.C. 724, judgment in the case of A.K.Roy v. Union of India, A.I.R. 1982 S.C. 710:1982 Crl. L.J. (1982)1 S.C.C. 272: (1982)2 S.C.J. 68, has been taken into consideration and yet, stated in the same terms as in the case of R.K.Garg v. Union of India, A.I.R. 1981 S.C. has been reiterated in these words: "The above view has been approved by another Constitution Bench of this Court in v. Union of India, A.I.R. 1982 S.C. 710: 1982 Crl.L.J. 340: (1982)1 S.C.C. 272: S.C.J. 68. Both these decisions have firmly established that an ordinance is a should be approached on that basis. The language of Clause (2) of Art.213 Constitution leaves no room for doubt. Both these decisions have firmly established that an ordinance is a should be approached on that basis. The language of Clause (2) of Art.213 Constitution leaves no room for doubt. An ordinance promulgated under either of these articles has the same force and effect as an Act of Parliament or an Act of the Legislature, as the case may be. When once the above conclusion is reached the question which arises for consideration is whether it is permissible to strike down Ordinance on the ground of non-application of mind or mala fides or that the prevailing circumstances did not warrant the issue of the Ordinance in other words, the question whether the validity of an Ordinance can be tested on grounds similar to those on which executive or judicial action is tested. The legislative action under our Constitution is only to the limitations prescribed by the Constitution and no other to. Any law made Legislature, which it is not competent to pass, which is violative of the provisions in of the Constitution or any other constitutional provision is ineffective. It is a settled constitutional law that the question whether a statute is constitutional or not is always question of power of the Legislature concerned, dependent upon the subject-matter statute the manner in which it is accomplished and the mode of enacting it. While the can declare a statute "unconstitutional when it transgresses constitutional limits, they precluded from inquiring into the propriety of the exercise of the legislative power. It be assumed that the legislative discretion is properly exercised. The motives Legislature in passing a statute is beyond the scrutiny of courts. Nor can the Courts examine whether the legislature had applied its mind to the provisions of a statute before passing The propriety, expediency and necessity of a legislative Act are for the determination legislative authority and are not for determination by the courts. An Ordinance passed under Art.123 or under Art.213 of the Constitution stands on the same footing. When Constitution says that the Ordinance making power is legislative power and an Ordinance shall have the same force as an Act, an Ordinance should be clothed with all the attributes an Act of legislature carrying with it all its incidents, immunities and limitations under Constitution. When Constitution says that the Ordinance making power is legislative power and an Ordinance shall have the same force as an Act, an Ordinance should be clothed with all the attributes an Act of legislature carrying with it all its incidents, immunities and limitations under Constitution. In cannot be treated as an executive action or administrative decision." In this judgment, the Supreme Court has said in no uncertain words that the true position about the justiciability of these issues in relation to an ordinance has been expressed in K.Nagaraj v. State of A.P., (1985)1 Scale. 31 at 50, in these words: "It is impossible to accept the submission that the Ordinance can be invalidated on ground of non application of mind. The power to issue an Ordinance is not an executive power but is the power of the executive to legislate. The power of the Governor promulgate an Ordinance is contained in Art.213 which occurs in Chapter IV of Part. VI Constitution. The heading of that Chapter is "Legislative Power of the Governor’. is plenary within its field like the power of the State Legislature to pass laws and there are limitations upon the power except those to which the legislative power of the Legislature is subject. Therefore, though an Ordinance can be invalidated for contravention the constitutional limitations which exist upon the power of the State legislature to pass it cannot be declared invalid for the reason of non-application of mind, any more than other law can be. An Executive Act is liable to be struck down on the ground of application of mind. Not the act of a Legislature." 18. A Full Bench of the Patna High Court has gone into this aspect in the case Narayan Mishra v. State, A.I.R. 1987 Patna 53. As in some judgments of the Supreme so in the Patna Full Bench judgment also, a reference has been made to the judgment Constitution Bench of the Supreme Court comprising seven Judges in the case of Singh v. State of Punjab, A.I.R. 1974S.C. 2192:1974 Lab.I.C. 1280. As in some judgments of the Supreme so in the Patna Full Bench judgment also, a reference has been made to the judgment Constitution Bench of the Supreme Court comprising seven Judges in the case of Singh v. State of Punjab, A.I.R. 1974S.C. 2192:1974 Lab.I.C. 1280. It can never be in that in promulgating an Ordinance under Art.213 of the Constitution of India, the Governor or under Art. 123 of the Constitution of India, the President, acts on the aid and advice Council of Ministers for exercising the legislative power of the Executive, that is to say, Governor or the President as the case may be. They will, for all purposes, have the legislative power of the Constitutional Government. In Samsher Singh v. State of Punjab, A.I.R. S.C. 2192:1974 Lab.l.C. 1280, the Supreme Court has observed: "For the foregoing reasons we hold that the President as well as the Governor acts on the aid and advice of the Council of Ministers in executive action and is not required by the Constitution to act personally without the aid and advice of the Council of Ministers or against the aid and advice of Council of Ministers." and proceeded further to hold that what advice is rendered to the President or the Governor by the Council of Ministers is beyond the judicial review except for limited purposes. In case of R.K.Garg v. Union of India, A.I.R. 1981 S.C. 2138, this has been clearly stated even in the legislative field the Governor equally, if not doubly is bound by the aid and of the Council of Ministers. The Patna Full Bench has reiterated the said view. We do propose to repeat the exercise. We hold accordingly that the subjective satisfaction of Governor, who acted with the aid and advice of the Council of Ministers in promulgating Ordinance is beyond the judicial review, and the validity of the Ordinance cannot examined on the grounds of bona fides or mala fides of the advice of the Council of Ministers or the satisfaction of the Governor. But the Court, however, may examine whether purporting to promulgate an Ordinance, the Executive has in sum and substance beyond its competence meaning the competence of the legislature and/or violated provision in Part III of the Constitution (Fundamental Rights) or any other provision of Constitution. But the Court, however, may examine whether purporting to promulgate an Ordinance, the Executive has in sum and substance beyond its competence meaning the competence of the legislature and/or violated provision in Part III of the Constitution (Fundamental Rights) or any other provision of Constitution. Since we are aware that in the case of A.K.Roy v. Union of India, A.I.R S.C. 710:1982 Crl.L.J. 340: (1982)1 S.C.C. 272: (1982)2 S.C.J. 68, the Supreme Court well as in the case of Lalit Narayan Mishra v. State, A.I.R. 1987 Patna 53, the Full Bench the Patna High Court, despite finding that the exercise of legislative power of promulgation an Ordinance by the Governor cannot be impeached on the grounds of mala fide, whether there was any substance in the allegation of malice and found on facts in favour the validity of the law, we, for the said reason, heard learned counsel for the parties in detail on such allegations as well. Those, however, are no longer relevant for, if the Amendment Act is valid, the invalidity of the Ordinance will be of no consequence. 19. The judgment of the Supreme Court in the case of D.C. Wadhwa v. State of Bihar, A.I.R. 1987 S.C. 579, proceeded on the footing that there was an abuse of the constitutional authority in repeatedly promulgating Ordinances and such a strategem would be repugnant to the constitutional scheme, as it would enable the Executive to transgress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indirectly arrogate to itself the law making function Legislature. 20. Beyond the above statement of law by the Supreme Court that the Legislature violate the constitutional prohibition and transgress its legislative power in a situation in DC. Wadhwa v. State of Bihar, A.I.R. 1987S.C. 579, the Supreme Court has said than once as in the case of K.G.Gajapati Narayanan Deo v. State of Orissa, A.I.R. 1953 375:1953 S.C.J. 592:1954 S.C.R. 1. "It is the substance of the Act that is material and not merely the form or appearance, and if the subject matter in substance is something which is beyond the of that Legislature to legislate upon, the form in which the law is clothed would not from condemnation. "It is the substance of the Act that is material and not merely the form or appearance, and if the subject matter in substance is something which is beyond the of that Legislature to legislate upon, the form in which the law is clothed would not from condemnation. The Legislature cannot violate the constitutional prohibitions employing an indirect method." and in the case of P.Vajravelu Mudaliar v. Special Deputy Collector, Madras, (1964)2 (S.C.) 173: (1969)2 An.W.R. (S.C.) 173: (1969)2 S.C.J. 703.A.I.R. 1965S.C. 1017, when it is said that Legislation is a colourable one, what is means is that the Legislature transgressed its legislative power in a covert or indirect manner. 21. It is indeed necessary in construing a statute to see the consequences and then the legislative intent. It is the consequence for which a law is designed to achieve object or to remove or arrest a mischief. The motive behind the legislation has distinguished from the legislative intent. The former will fall in the category of bona malice in law or malice in fact generally called mala fides, the latter will be in the operation - post enactment. This post enactment operation or effect may show that in substance is something which is beyond the powers of the legislature to legislate upon that the legislature has transgressed its power by adopting a device in a covert or manner to achieve something other than the subject of legislation. 22. To support the above view, we have the authorities of the Supreme Court in the K.G.Gajapati Narayanan Deo v. State of Orissa, A.I.R. 1953 S.C. 375:1953 S.C.J. 592:1954 S.C.R. 1, and P.Vajravelu Mudaliar v. Special Deputy Collector, Madras, (1964)2 M.L.J. (S.C.) (1969)2 An.W.R. (S.C.) 173: (1969)2 S.C.J. 703: A.I.R. 1965 S.C. 1017. 23. Item 32of List II of the Seventh Schedule of the Constitution gives to the Legislature power to make laws with respect to incorporation, regulation and winding corporations other than those specified in List I, and universities, unincorporated literary, scientific, religious and other societies and associations, co-operative societies. 43 of List I of the Seventh Schedule of the Constitution gives to the Union the power to laws with respect to incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations but not including co societies. 24. Art.l9(1)(c) gives to all citizens the right to form associations or unions. 43 of List I of the Seventh Schedule of the Constitution gives to the Union the power to laws with respect to incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations but not including co societies. 24. Art.l9(1)(c) gives to all citizens the right to form associations or unions. Clause Art.19 of the Constitution, however, states that nothing in this clause shall affect operation of any existing law in so far as it imposes or prevents the State from making law imposing in the interests of the sovereignty and integrity of India or public morality, reasonable restrictions on the exercise of the right conferred by the said The right to form associations or unions is thus made subject to the laws that the State Legislatures make within the limits of their powers and in respect of co societies, subject to the laws made by the State Legislature as to incorporation, formation regulation of the society or the winding up thereof. 25. The Supreme Court has indicated how to interpret the nature and contents fundamental rights in Dwarkadas Shrinivas of Bombay v. Sholapur Spinning and Ltd, (1954)1 M.L.J. 355:1954 S.C.J. 175:1954 S.C.R. 674:A.I.R. 1954 S.C. 119, Papers (P) Ltd. v. Union of India, A.I.R. 1972 S.C. 305 and in L.N.Mishra Institute of E.D. Social Change v. State of Bihar, A.I.R. 1988 S.C. 1136, the Supreme Court has observed, "In these two decisions, it has been laid down that while considering the nature and of the fundamental rights, the Court must not be too astute to interpret the language Constitution in so literal a sense as to whittle them down, but must interpret the same manner which would enable the citizens to enjoy the right guaranteed by it in the fullest measure subject of course, to permissible restrictions. Further, in construing the Constitution it is the substance and the practical result of the act of the State that should be considered rather than its purely legal aspects and that the correct approach in such cases should be enquire as to what in substance is the loss or injury caused to the citizens and not merely what manner and method has been adopted by the State in placing the restriction. Having so said as to what the Supreme Court has held in Dwarkadas Shrinivas of Bombay Sholapur Spinning and Weaving Ltd., (1954)1 M.L.J. 355:1954 S.C.J. 175:1954 S.C.R. A.I.R. 1954 S.C. 119, in this judgment, it is added.” The above principles, as laid down in those two decisions, are well settled and no exception can be taken to them. It is true that the provisions of the Constitution, particularly provisions relating to the fundamental rights, should not be construed in a pedantic manner, but should be construed in a manner, that would enable the citizens to enjoy the rights in fullest measure. But, that does not surely mean and it was not the intention of this Court lay down that in construing the provisions relating to fundamental rights it should stretched to the extent of covering even certain extent of extraneous matters which would far from the ambit and scope of the fundamental rights. Art.l9(l)(c) confers a right on citizens to form association.” 26. In Damayanthi Naranga v. Union of India, A.I.R. 1971 S.C. 966: (1971)3 S.C.R. 840 , law enacted under Entry 63, List I of the Seventh Schedule was challenged as violative of fundamental right under Art.l9(l)(c) of the Constitution. The Act declared the institution known as Hindi Sahitya Sammelan as an institution of national importance and constituted statutory Sammelan as a body corporate by the name of the Hindi Sahitya Sammelan. Sammelan was to consist of the first members of the Society and all persons who might become thereafter in accordance with the rules made in that behalf by the first Governing Body to be constituted by the Central Government by notification. It also provided for vesting in the Sammelan of all property movable or immovable or of belonging to the society. Holding that if this law infringed the fundamental right of the citizens who constituted society, the Supreme Court observed as follows: “It was agreed, that the right guaranteed by Art.19(1)(c) is only to form an association consequently, any regulation of the affairs of the Association, after it has been formed, not amount to a breach of that right. Holding that if this law infringed the fundamental right of the citizens who constituted society, the Supreme Court observed as follows: “It was agreed, that the right guaranteed by Art.19(1)(c) is only to form an association consequently, any regulation of the affairs of the Association, after it has been formed, not amount to a breach of that right. It is true that it has been held by this Court that, after an Association has been formed and the right under Art.19(1)(c) has been exercised by members forming it, they have no right to claim that its activities must also be permitted be carried on in the manner they desire. Those cases are, however inapplicable to present case. The Act does not merely regulate the administration of the affairs of 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 say. Such 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 original founders. The right to form an association, in our opinion, necessarily implies the persons forming the Association have also the right to continue to be associated only those whom they voluntarily admit in the Association. Any law, by which members introduced in the voluntary Association without any option being given to the members 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 submission that the right guaranteed by Art.19(1)(c) is confined to the initial stage of forming an 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 Association is formed, a law may be passed interfering with its composition, so Association formed may not be able to function at all. The right can be effective only held to include within it the right to continue the Association with its composition as voluntarily agreed upon by the persons forming the Association...." There are two other cases referred to in this judgment by the Supreme Court, (1) the case O.K.Ghosh v. E.X.Joseph, A.I.R. 1963 S.C. 812: (1962)2 Lab. L.J. 615: (1963)3 S.C.R. and (2) the Case of State of Madras v. V.G.Row, A.I.R. 1952 S.C. 196: (1952)2 M.L.J. 1952 S.C.R. 597:1952 S.C.J. 253. In O.K.Ghosh v. E.X.Joseph, A.I.R 1963 S.C. 812: (1962)2 Lab.LJ. 615: (1963)3 S.C.R. 789, the rule which said that no Government servant would or continue to be a member of the Service Association of the Government servants, had not within a period of six months from its formation, obtained the recognition of Government under the rules prescribed in that behalf or recognition in respect of which been refused or withdrawn by the Government under the said rules was declared for the above reason that the Government servants were entitled to form associations unions and that the rule imposed a restriction on this right. In Damayanthi Naranga v. of India, AIR 1971 S.C. 966 : (1971)3 S.C.R. 840 , the Supreme Court thus said, "That case, thus, supports our view that the right to form an Association includes the right its continuance and any law altering the composition of the Association compulsorily will breach of the right to form the Association." 27. Damayanthi Naranga v. Union of India, A.I.R. 1971 S.C. 966: (1971)3 S.C.R. however, has been distinguished by the Supreme Court in L.N.Mishra Institute of E.D. Social Change v. State of Bihar, A.I.R. 1988 S.C. 1136, saying that the decision in Damayanthi Naranga v. Union of India, A.I.R. 1971 S.C. 966: (1971)3 S.C.R. 840 , manner of application to the facts of the present case. In that case, the composition of Society was interfered with by introducing new members which was construed by the as interference with the fundamental right of the Society to form association and continue the same. In the instant case, the composition of the society had not been touched at all that has been done is to nationalise the Institute of the Society by the acquisition of assets and properties relating to the Institute. The Society may constitute its governing in accordance with its rules without any interference by the Government." 28. In the instant case, the composition of the society had not been touched at all that has been done is to nationalise the Institute of the Society by the acquisition of assets and properties relating to the Institute. The Society may constitute its governing in accordance with its rules without any interference by the Government." 28. All India Bank Employees’ Association v. National Industrial Tribunal, A.I.R. 1962S.C. 171: (1961)2 Lab.LJ. 285: (1962)32 Com.Case 414, is another case decided by the Supreme Court in which it is said that the right guaranteed by Art.19(1)(c) of the Constitution does carry with it a concomitant right that unions formed for protecting the interests of labour shall achieve their object that any interference to such achievement by any law would constitutional unless it could be justified under Art.19(4) as being in the interests of public order or morality and that the right under Art.19(1)(c) extends only to the formation of association or union and in so far as the activities of the association or union are concerned or as regards the steps which the union might take to achieve its object, they are subject such laws as may be framed and such laws cannot be tested under Art.19(4). But then has to be understood that the statement of law in DamayanthiNaranga v. Union of A.I.R. 1971 S.C. 966: (1971)3 S.C.R. 840 , that right to form an association will include within it the right to continue the association. As held in L.N.Mishra Institute of E.D. Social Change v. State of Bihar, A.I.R. 1988 S.C. 1136, Art.19(1)(c) does not extend embrace within it the objects or purposes or the activities of an association. In other words, it does not carry with it a further guarantee that the objects or purposes or activities of association so formed shall not be interfered with by law except on grounds as mentioned Art. 19(1) namely, sovereignty and integrity of India or public order or morality. Thus competence of the State Legislature has to be tested on the anvil of the right under Art.l9(1) (c) that those who form the association have the right to continue the association and that any interference in their right to continue the association will be an infringement of the under Art.19(1)(c) and thus beyond the legislative competence unless protected under Art.19 (4) of the Constitution. 29. 29. There is, however, some observation in the Constitution Bench judgment of the Supreme Court in Daman Singh v. State of Punjab, A.I.R. 1985 S.C. 973, with respect to a legislation providing for compulsory amalgamation of co-operative societies. The Supreme Court, however, noticed that Art.31-A(1)(c) of the Constitution protected such a law and observed. "Once a person becomes a member of a co-operative society, he loses his individuality quo the society and he has no rights except those given to him by the statute and the by-laws. He must act through the society or rather, the society alone can act and speak for him quo duties of the society as a body. So if the statute which authorises compulsory amalgamation of co-operative societies provides for notice to the societies concerned, the requirement natural justice is fully satisfied. The notice to the society will be deemed as notice members.” 30. The above observation was made by the Supreme Court in regard to the argument the law giving power to amalgamate without notice to the individual members concerned co-operative societies violated the principles of natural justice. 31. Before, however, we advert to the facts of instant case and refer to the Smt.Indira Gandhi v. Raj Narain, A.I.R 1975 S.C. 2292: (1976)2 S.C.R. 347 , which house of many informations that the Courts may like to bear in mind in cases legislative power qua right of citizens is required to be examined, we may refer to the Ameerunnissa v. Mahboob Begum, 1953 S.C.J. 61:1953 S.L.R. 404: A.I.R. 1953 S.C. that case, an Act known as Walliudowla Succession Act, 1950 was challenged as under Art. 13(2) of the Constitution to the extent that it affected the rights respondents, who petitioned before the High Court under Art.226of the Constitution. object of the impugned Act was to put an end to the disputes that existed at regarding the succession to the ‘ Matrooka ’ or personal estate of Nawab Walliuddowla, wealthy noble man and a high dignitary of Hyderabad, the Act itself dismissed the succession to the said property put forward by two of the alleged wives of the late named Mahboob Begum and Kadiran Begum and their children. The Supreme observed, ” It is well settled that a Legislature which has to deal with diverse problems arising infinite variety of human relations must, of necessity, have the power of making special to attain particular objects; and for that purpose it must have large powers of selection classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not ‘ per se ’ amount to discrimination within the inhibition the equal protection clause. To attract the operation of the clause, it is necessary that the selection or differentiation is unreasonable or arbitrary; that it does not rest rational basis having regard to the object which the Legislature has in view....The Parliament enjoys legislative omnipotence and there are no constitutional limitations authority or power. There were indeed a few statutes passed by the Provincial Legislature India during British days which regulated succession to the estate of certain princely The Bijni Succession Act (II of 1911) passed by the Assam Legislature is an enactment type and it did shut out the rights of certain persons who claimed the Bijni estate under Law of Inheritance. But at that time the Governor-General of India had express under the provisions of the Government of India Act, 1915, to authorize the Legislatures to make laws regarding subjects of a private nature. Quite apart from question of infraction of the equal protection rule could arise in pre-Constitution days. not unmindful of the fact that the presumption is in favour of the constitutionality enactment but when on the fact of it a piece of legislation is palpably unreasonable discriminatory and the selection ‘ or classification made by it cannot be justified conceivable or rational ground, the court has got to invalidate the enactment on the of its violating the equal protection clause. “ This judgment thus is an authority that a law which will affect the private right will vires. Art 14 of the Constitution and thus invalid under Art.13(2) thereof. Coming to of Smt.Indira Gandhi v. Raj Narain, A.I.R. 1975 S.C. 2292: (1976)2 S.C.R. 347 , contentions before the Supreme Court was that judicial review is an essential feature basic structure. It is the doc-trine of separation of power that just as legislative executive functions, judicial review is the basic or essential function assigned courts/tribunals or other form of judicial mechanism. It is the doc-trine of separation of power that just as legislative executive functions, judicial review is the basic or essential function assigned courts/tribunals or other form of judicial mechanism. Ray, C.J. in his separate judgment noted the information in regard to election disputes in these words: ” In England formerly Parliament used to hear election disputes. In 1870 Parliament found that because of political factions it would better to leave the task of deciding controverted elections to Judges. Parliament delegated power of deciding controverted elections to Courts. Under the English Law the Courts and make a report to Parliament. In America each House shall be the Judge of the elections, returns and qualifications of its own Members. That is Art.1, Sec.5 of the American Constitution. In Australia any question of a disputed election to either House, shall determined by the House in which the question arises. Under the German Federal Republic Constitution the legislature decides whether a person has lost his seat. Against the decision of the Bundestagan appeal shall lie to the Federal Constitutional Court. The view of Story the American Constitution is that the power to judge elections, returns and qualifications the members of each House composing the legislature is to be lodged the legislature. stays that no other body can be so perpetually watchful to guard its own rights and privileges from infringement (See Story page 585) In Corpus Juris, Vol.16 (1956), it is said that the judiciary cannot exercise powers which to be found in the other two departments of Government which are normally legislative powers or which are generally executive in their nature. All matters relating to or affecting elections are political questions, and as such, are not questions for the judiciary. All relating to or affecting elections are in the absence of controlling constitutional or statutory provisions to the contrary, political questions and, as such, are, not questions judiciary. So, subject to express constitutional restrictions, all matters relating to the of elections and determining their results, including contests are political questions (pp.691, 692, 710). In Corpus Juris, Vol.29 (1965), it is stated that under constitutional provision conferring the legislature the power to determine by law, before what authority, and in what the trial of contested elections shall be conducted, the legislature is given broad power. In Corpus Juris, Vol.29 (1965), it is stated that under constitutional provision conferring the legislature the power to determine by law, before what authority, and in what the trial of contested elections shall be conducted, the legislature is given broad power. constitutional provision authorising the legislature to provide for the mode of contesting elections in all cases not otherwise specifically provided for in the Constitution itself on the legislature adequate authority to provide for all election contests and to determine where and by what means election contests shall be conducted. The right to contest election is not a common law right. Elections belong to the political branch Government and, in the absence of the special constitutional or statutory provisions beyond the control of the judicial power. Secs.245, 246). A contested election case proceeding in which the public is interested, since it is for the public good. An contest is not merely a proceeding for the adjudication and settlement of the private rights rival claimants to an office. It is the public interest, not the parties ’ claims, which paramount legislative concern. [Sec.247] In America disputed elections are decided Legislature. In Taylor v. Beckham, 44 L.Ed, 547, the American Supreme Court held determination of an election contest for the office of the Governor is a political question is not justiciable. In Truman H.Newberry v. United States of America, 65 L.Ed. 913, American Supreme Court held that the manner of elections can be controlled. In S.Barry v. United States of America, Ex. Rel, Tomas W.Cunningham, 73 L.Ed. 867, decision of the American Supreme Court in Charles W.Baker v. Joe C.Carr, 7 L.Ed. 2nd was referred to in order to find out as to what aspects of election would be justiciable a political question. In Charles W.Baker v. Joe C.Carr, 7 L.Ed. 2nd 663, the delimitation constituencies was held to be a justiciable issue. In Jullian Bond v. James Sloppy Floyd, L.Ed. 2nd. 235, the exclusion of an elected representative because of his statement attacking the Vietnam policy was held to be justiciable on the ground that it was not within jurisdiction of the Legislature to find out whether a member was sincere in regard mouth of the legislature. In Adam Clayton Powell v. John W.Mc.Cormack, 23 L.Ed. 2nd. 2nd. 235, the exclusion of an elected representative because of his statement attacking the Vietnam policy was held to be justiciable on the ground that it was not within jurisdiction of the Legislature to find out whether a member was sincere in regard mouth of the legislature. In Adam Clayton Powell v. John W.Mc.Cormack, 23 L.Ed. 2nd. the disqualification by the House of a Congressman on the basis of qualification ground which was not in the Constitution was held to be justiciable. The Federal Court has jurisdiction over the subject matter of controversies arising under the Constitution. The conferment of power on each House America to be a judge of elections is an exclusive ground of power and constitutes the to be the sole and ultimate Tribunal. The American decisions show that if the House claims additional power to disqualify a member on the ground other than those stated in Constitution judicial review against disqualification would be available. In Jullian Bond James Sloppy Floyd, 17 L.Ed. 2nd. 235, disqualification was on an unconstitutional ground that his statement on Vietnam policy was a matter of free speech and expression. The did not decide an election dispute but as a custodian of judicial power judged whether House was acting within its power. Parliament itself can also hear election disputes. That the English practice until the Grenville Act, 1968 when Parliament conferred power on courts. Before 1770, controverted elections were tried by the whole House of Commons as questions. The House found that the exercise of its privilege could be submitted to a Tribunal constituted by the law to secure impartiality in the administration of justice according to laws of the land. In 1868 the jurisdiction of the House is the trial of controverted elections was transferred by statute to the courts of law. The present procedure is contained in English Representation of the People Act, 1949. The trial is confided to judges selected the judiciary. Provision is made in each case for constituting a rata from whom these judges are selected. The house has no cognizance of these proceedings until their determination when the judges certify their determination when the judges cerify their determination writing, to the Speaker, which is final to all intents and purposes. Trial is not a proceeding the House. Provision is made in each case for constituting a rata from whom these judges are selected. The house has no cognizance of these proceedings until their determination when the judges certify their determination when the judges cerify their determination writing, to the Speaker, which is final to all intents and purposes. Trial is not a proceeding the House. The judges are to make a report in any case where charge has been made in petition of corrupt and illegal practice. Provision is also made for the trial of a special All certificates and reports of the election court are entered in the Journals of the House. Under Sec.l24(5) of the English Representation of the People Act, 1949, it is the duty of House to make orders for carrying the determination of the judges into execution.” 32. Khanna, J. and others who constituted the majority of the Bench of the Supreme Court, have given to us clear reason as to the role that a legislature may play with respect matters which should be left for adjudication by the Courts. Before, however, we refer their views in this regard, we may take notice of the issue that the Supreme Court considering. 33. The election of Shrimathi Indira Gandhi, who incidentally was the Prime Minister of country was challenged before the Allahabad High Court. The Court accepted the case of petitioner and held that the election was vitiated for the reason of certain corrupt practices and other violations of the rules of law. The Parliament in the exercise of its constitutional power passed the Constitution (Thirty-Ninth Amendment) Act, 1975. By the Amendment, Art.71 of the Constitution was substituted by a new Article and that Article provided Clause (1) that subject to the provisions of the Constitution, Parliament may, by regulate any matter relating to or connected with the decision of a President or President including the grounds on which such election may be questioned. By the Amendment, Art.71 of the Constitution was substituted by a new Article and that Article provided Clause (1) that subject to the provisions of the Constitution, Parliament may, by regulate any matter relating to or connected with the decision of a President or President including the grounds on which such election may be questioned. By Clause (2) the Article, it was provided that all doubts and disputes arising out of or in connection the election of President or Vice-President shall be inquired into and decided by authority or body in such manner as may be provided for by or under any law referred Clause (1), Clause (3) stated that the validity of any such law referred to in Clause (1) the decision of any authority or body under such law shall not be called in question in court. By Clause 4 of the Amendment, Art.329-A was inserted reading as follows: ” A special provision as to elections to Parliament in the case of Prime Minister and Speaker: (1) subject to the provisions of Chapter II of Part V (except sub-Clause (e), of Clause (1) Art.102) no election (a) to either House of Parliament of a person who holds the office of Prime Minister at the time of such election or is appointed as Prime Minister after election: (b) to the House of the people of a person who holds the office of a Speaker of that House the time of such election or who is chosen as the Speaker for that House after such shall be called in question except before such authority (not being any such authority as is referred to in Clause (b) of Art.329 or in such manner as may be provided for by or under any law made by Parliament such law may provide for all other matters relating to doubts and disputes in relation election including the grounds on which such election may be questioned; (2) The validity of any such law as it referred to in Clause (1) and the decision authority or body under such law shall not be called in question in any court. (3) Where any person is appointed as Prime Minister or as the case may be, chosen office of the Speaker of the House of the People, while an election petition referred Clause (b) of Art.329 in respect of his election to either House of Parliament or, as may be, to the House of the People is pending, such election petition shall abate person being appointed as Prime Minister or, as the case may be, being chosen to of the Speaker of the House of the People, but such election may be called in question any such law as is referred to in Clause (1). (4) No law made by Parliament before commencement of the Constitution (Thirtyninth Amendment) Act, 1975, in so far as it relates to election petitions and matters therewith shall apply or shall be deemed ever to have applied to or in relation to the of any such person as is referred to in Clause (1) to either House of Parliament election shall not be deemed to be void or ever to have become void on any ground such election could be declared to be void, or has, before such commencement, declared to be void under any such law, and notwithstanding any order made by any before such commencement, declaring such election to be void, such election shall to be valid in all respects and any such order and any finding on which such order shall be and shall be deemed always to have been void and of no effect. (5) Any appeal or cross appeal against any such order of any court as is referred to (4) pending immediately before the commencement of the Constitution of (Thirty Amendment) Act, 1975 before the Supreme Court shall be disposed of in conformity provisions of Clause (4). (6) The provisions of this Article shall have effect notwithstanding anything contained in this Constitution”. 34. The contention before the Court was that Clause (4) above damaged some of structures of the Constitution. (6) The provisions of this Article shall have effect notwithstanding anything contained in this Constitution”. 34. The contention before the Court was that Clause (4) above damaged some of structures of the Constitution. The argument was that although the amending body declare that the election of the appellant shall not be deemed to be void and the judgment the High Court to be void on the basis that no law relating to election petition and connected therewith would apply to the election, yet the amending body could not the election to be valid as it did not ascertain the facts relating to the election and relevant law to them (Italics is ours). The submission was that by its very nature, an dispute in a democratic system of government raises questions which can be decided the exercise of judicial power; that by retrospectively rendering the forum for investigation into the complaints regarding the validity of the election of the appellant coram non and by the amending body judging its validity without ascertaining the facts (Italics is and applying the relevant law, the Amendment has fundamentally damaged an essential feature of the democratic structure of the Constitution, namely, free and fair election. 35. Khanna, J., referred to the judgment of the Judicial Committee in the case of Douglas Liyange v. The Queen, 1967 A.C. 259, in which the validity of the Criminal (Special Provisions) Act, 1962 of the Parliament of Ceylon was examined and declared vires and void on the ground that it involved the usurpation and infringement by Legislature of the judicial powers inconsistent with the written constitution of Ceylon. Judicial Committee, however, expressly referred to the fact that he impugned legislation not been passed by two-third majority in the manner required for the amendment of Constitution contained in Sec.29(4) of the Constitution and observed: “There was speculation during the argument as to what the position would be if Parliament sought to procure such a result by first amending the Constitution by a two-thirds majority. But such a situation does not arise here. In so far as any Act passed without recourse Sec.29(4) of the Constitution purports to usurp or infringe the judicial power it is ultra vires. But such a situation does not arise here. In so far as any Act passed without recourse Sec.29(4) of the Constitution purports to usurp or infringe the judicial power it is ultra vires. “Our Supreme Court, however, expressed final opinion about it but said” The declaration that her election was to be valid in all respects necessarily involved process of going into the grounds on which her election had been assailed and holding grounds to be either factually incorrect or to be of such a nature as in law did not warrant declaration of her election to be void. The case of the appellant is that some of the grounds mentioned against her were factually incorrect and in respect of those grounds the findings of the High Court are against the respondent and in her favour. In respect of some grounds, except in one or two matters there is not much divergence between the appellant and the respondent on the question of facts. The point of controversy between the parties mainly is that, according to the respondent, those facts constituted corrupt practice defined in Sec.123 of the Representation of People Act, while according to the appellant those facts did not constitute corrupt practice. In any case, according to the appellant, view of the amendment made in the Representation of People Act by amending Acts 1974 and 40 of 1975, these facts did not constitute corrupt practice. The declaration made part (iii) of Clause (4) that the election of the appellant was to be valid in all respects tantamount in the very nature of things to the repelling of the grounds advanced by respondent to challenge the election of the appellant. Question therefore arises as to what, any, was the law which was applied in repelling the grounds advanced by the respondent challenge the election of the appellant. So far as the existing law relating to election disputes was concerned, part (i) of Clause (4) expressly stated that such a law would not apply to petition filed by the respondent to challenge the election of the appellant. This means the provisions of the Representation of the People Act were not to apply to the petition by the respondent against the appellant. This also means that the amending Acts 58 of and 40 of 1975 were not to apply to the dispute relating to election of the appellant. This means the provisions of the Representation of the People Act were not to apply to the petition by the respondent against the appellant. This also means that the amending Acts 58 of and 40 of 1975 were not to apply to the dispute relating to election of the appellant. The dispute relating to the election of the appellant is also not to be governed by law which to be enacted under Clause (1) of Art.329-A. Such a law would apply only to future elections. The result is that so far as the dispute relating to the election of the appellant is concerned, legal vacuum came into existence. It was open to the constituent authority to fill vacuum by prescribing a law which was to govern the dispute arising out of the petition by the respondent to challenge the election of the appellant. The constituent authority, however, did not do so and straight away proceeded to declare the election of the appellant to be valid. There is nothing in Clause (4) to indicate that the constituent authority any law in declaring the election of the appellant to be valid and if so, what was that law. I am unable to accede to the argument that the constituent authority kept in view provisions of the Representation of People Act as amended by Act 58 of 1974 and 40 of and their impact on the challenge to the election of the appellant in declaring the election the appellant to be valid. The difficulty in accepting this argument is that in part (i) of (4) the constituent authority expressly stated that the previous law, namely, Representation of People Act as amended in so far as it related to election petitions matters connected therewith was not to apply so far as the challenge to the election appellant was concerned. It is also difficult to agree that the constituent authority took account some other unspecified law or norm in declaring the election of the appellant valid. It is also difficult to agree that the constituent authority took account some other unspecified law or norm in declaring the election of the appellant valid. As mentioned earlier, there is nothing in Clause (4) to indicate that the constituent authority took into account some other law and norm and if so, what that law or norm The position which thus emerges is that according to Clause (4) no law was to apply adjudicating upon the challenge to the election of the appellant and the same was in terms part (iii) to be valid in all respects. The question with which we are concerned is whether provisions of Clause (4) of Art.329-A by which the constituent authority in effect prescribed that no election law was to govern the challenge to the election of the appellant and that same in any case was to be valid in all respects is a permissible piece of constitutional amendment or whether it is void on the ground that it affects the basic structure of the Constitution. 36. Khanna, J., referred to various authorities including the judgments in the case Holiness Kesavananda Bharathi v. State of Kerala, A.I.R. 1973 S.C. 1461: (1973) (Supp.) 1: (1973)4 S.C.C. 325 and N.P.Ponnuswami v. Returning Officer, Namakkal Constituency and others, 1952 S.C.R. 218, to state that democratic set-up was part basic structure of the Constitution Democracy postulates that there should be periodical elections, so that people may be in a position either to re-elect the old representatives they so choose, to change the representatives and elect in their place other representatives. Democracy further contemplates that the elections should be free and fair, so that the may be in a position to vote for candidates of their choice. Democracy can indeed only upon the faith that elections are free and fair and not rigged and manipulated that are effective instruments of ascertaining popular will both in reality and form and mere rituals calculated to generate illusion of deference to mass opinion. Free and elections require that the candidates and their agents should not resort to unfair means malpractices as may impinge upon the process of free and fair elections. Even in the of unfair means and malpractices, sometimes the result of an election is materially because of the improper rejection of ballot papers. Free and elections require that the candidates and their agents should not resort to unfair means malpractices as may impinge upon the process of free and fair elections. Even in the of unfair means and malpractices, sometimes the result of an election is materially because of the improper rejection of ballot papers. Likewise, the result of an election materially affected on account of the improper rejection of a nomination paper. Disputes, therefore, arise with regard to the validity of elections. For the resolving of those disputes, the different democratic countries of the world have made provisions prescribing the law the forum for the resolving of those disputes. In the judgment of Khanna, J., it is said” To give a few examples, we may refer to the United Kingdom where a Parliamentary election petition is tried by two judges on the rota for the trial of parliamentary petitions in accordance with the Representation of the People Act, 1949. Sec.5 of Art.1 U.S. Constitution provides that each House (Senate and the House of Representatives) be the judge of the elections, returns and qualifications of its own members, Sec.47 Australian Constitution provides that until the Parliament otherwise provides, any question respecting the qualification of a Senator or of a member of the House of Representative, respecting a vacancy in either House of Parliament, and any question of a disputed to either House, shall be determined by the House in which the question arises. Art.55 Japanese Constitution states that each House shall judge disputes related to qualifications its members. However, in order to deny a seat to any member, it is necessary to resolution by a majority of two-thirds or more of the members present Art.46 of the Constitution provides that the Althing itself decides whether its members are legally and also whether a member is disqualified. Art.64 of the Norwegian Constitution states the representatives elected shall be furnished with certificates, the validity of which shall submitted to the judgment of Storting. Art.59 of the French Constitution provides that Constitutional Council shall rule, in the case of disagreement, on the regularity election of deputies and senators. Art.41 of the German Federal Republic Constitution that the scrutiny of election shall be the responsibility of the Bundestag. It shall also whether a deputy has lost his seat in the Bundenstag. Against the decision of the Bundestag an appeal shall lie to the Federal Constitutional Court. Art.41 of the German Federal Republic Constitution that the scrutiny of election shall be the responsibility of the Bundestag. It shall also whether a deputy has lost his seat in the Bundenstag. Against the decision of the Bundestag an appeal shall lie to the Federal Constitutional Court. Details shall be regulated by a law. According to Art.66 of the Italian Constitution, each Chamber decides as to the of the admission of its own Members and as to cases subsequently arising concerning ineligibility and incompatibility. In Turkey Art.75 provides inter alia that it shall function of Supreme Election Board to review and pass final judgment on all irregularities, complaints and objections regarding election matters during and after elections. The function and powers of the Supreme Election Board shall be regulated by law. Art.53 of the Malaysian Constitution provides that if any question arises whether a member of a House of Parliament has become disqualified for membership, the decision of that House shall be final.” 37. Having thus examined the laws in different countries, Khanna, J., said,” argument is needed to show that unless there be a machinery for resolving an election dispute and for going into allegations that elections were not free and fair being vitiated by malpractices, the provision that a candidate should not resort to malpractices would be in the nature of a mere wish without any legal sanction. It is further plain that if the validity of the election candidate is challenged on some grounds, the said election can be declared to be valid if we provide a forum for going into those grounds and prescribe a law for adjudicating those grounds. If the said forum finds that the grounds advanced to challenge the are not well-founded or are not sufficient to invalidate the election in accordance with prescribed law or dismisses the petition to challenge the election on some other ground, such an event it can be said that the election of the returned candidate is valid. Besides other things, election laws lay down a code of conduct in election matters prescribe, what may be called, rules of electoral morality. Election laws also provision for resolving disputes and determination of controversies which must arise in election matters as they arise in other spheres of human activity. Besides other things, election laws lay down a code of conduct in election matters prescribe, what may be called, rules of electoral morality. Election laws also provision for resolving disputes and determination of controversies which must arise in election matters as they arise in other spheres of human activity. The object a provision is to enforce rules of electoral morality and to punish deviance prescribed code of conduct in election matters. It is manifest that but for such a there would be no sanction for the above code of conduct and rules of electoral morality. also plain that nothing would bring the code of conduct into greater contempt and greater mockery of it than the absence of a provision to punish its violation. The would become all the more glaring that even though a provision exists on the statute for punishing violation of the code of conduct in election matters, a particular election made immune and granted exemption from the operation of such a provision. “Khanna, J., also, however, observed, ” I agree that it is not necessary in a democratic set-up that disputes relating to the elections must be settled by courts of law. There are many countries like France, and the United States of America where consistently with the democratic set determination of such controversies is by Legislatures or by authorities other than the The question with which we are concerned, however, is whether it is permissible democratic set-up that a dispute with regard to the validity of a particular election be raised before any forum and shall not be governed by law and whether such an can be declared, despite the existence of a dispute relating to its validity, to be making the existing law relating to election disputes not applicable to it and also applying any other election law to such a dispute. The answer to such a question, reason given earlier by me, should be in the negative.” 38. Khanna, J., has referred to the case of State of Orissa v. Bhupendra Kumar Base, 2 S.C.R. (Supp.) 380, in these words: “It arose out of elections to the Cuttack Municipality held in December, 1957 to March as a result of which 27 appellants were declared elected as Councillors. The respondent, was defeated at the elections, filed a writ petition before the High Court challenging elections. The respondent, was defeated at the elections, filed a writ petition before the High Court challenging elections. The High Court held that the electoral rolls had not been prepared in accordance with the provisions of the Orissa Municipalities Act 1950, as the age qualification had published too late thereby curtailing the period of claims and objections to the preliminary roll to 2 days from 21 days as prescribed. The High Court consequently set aside elections. The State took the view that the judgment affected not merely the Municipality but other municipalities also. Accordingly, the Governor promulgated Ordinance validating the elections to the Cuttack Municipality and validating the rolls prepared in respect of various municipalities. The respondent thereupon filed petition before the High Court contending that the ordinance was unconstitutional. Court struck down the Ordinance. One of the grounds which weighed with the High striking down the Ordinance was that it contravened Art.14of the Constitution. The State the Councillors came in appeal to this Court. It was held by this Court that the Ordinance valid and that it successfully cured the invalidity of the electoral rolls and of elections Cuttack Municipality. The Ordinance was further held not to offend Art.14 of the Constitution object was not only to save the elections to the Cuttack Municipality, but also to municipalities whose validity might be challenged on similar grounds. The Ordinance, opinion of the Court, did not single out the respondent for discriminatory treatment. Gajendragadkar, J., (as he then was) speaking for the Constitution Bench of this observed: "The Cuttack Municipal elections had been set aside by the High Court and Governor thought that in the public interest, having regard to the factors enumerated Preamble to the Ordinance, it was necessary to validate the said elections, it would necessarily follow that the Ordinance suffers from the vice contravening Art.14." "Therefore, if the infirmity in the electoral rolls on which the decision of the High Court earlier writ petition was based, had not been applicable to the electoral rolls in regard other Municipalities in the State of Orissa, then it may have been open to the Governor issue an Ordinance only in respect of the Cuttack Municipal Elections, and if, on account special circumstances or reasons applicable to the Cuttack Municipal Elections, a law passed in respect of the said elections alone, it could not have been challenged unconstitutional under Art.14. Similarly, if Mr.Bose was the only litigant affected by decision and as such formed a class by himself, it would have been open to the Legislature make a law only in respect of his case. But as we have already pointed out, the Ordinance does not purport to limit its operation only to the Cuttack Municipality; it purports to validate the Cuttack Municipal Elections and the electoral rolls in respect of other Municipalities well. Therefore, we are satisfied that the High Court was in error in coming to the conclusion that Sec.4 contravenes Art.14 of the Constitution." 39. The above passage clarifies that the Legislature shall be competent to enact a law respect to election disputes and that there would be no contravention of Art.14 of Constitution in case it is applied to a class of the elected candidates, and that can be amending the basic provisions under which elections are challenged in Courts. But amendment should not affect the basic structures of democratic set-up. 40. What are the basic structures of the Constitution are pointed out by the Supreme in His Holiness Kesavananda Bharathi, Sirpadagalavaru v. State of Kerala and another, 1973 S.C. 1461: (1973) S.C.R. (Supp.) 1: (1973)4 S.C.C. 325. The illustrations include. (1) supremacy of the Constitution, (2) democratic republican form of government, (3) secular character of the Constitution, (4) separation of powers among the Legislature, Executive and Judiciary, (5) the federal character of the Constitution. (6) Rule of Law, (7) equality of status and of opportunity; (8) justice, social, economic and political ; (9) unity and integrity of the nation, and (10) the dignity of the individual secured by various provisions of the Constitution. consensus being that democracy is a basic structure of the Constitution. The consensus being that democracy is a basic structure of the Constitution. 41. consensus being that democracy is a basic structure of the Constitution. The consensus being that democracy is a basic structure of the Constitution. 41. Mathew, J., in his separate judgment in the case of Smt.Indira Gandhi v. Raj A.I.R. 1975 S.C. 2292: (1976)2 S.C.R. 347 , held that Clause (4) of Art.329 Constitution destroyed the basic structure of the Constitution and observed, "One way of looking at the first part of Clause (4) is that the amending body has, retrospective effect, repealed the law relating to election petition in respect of the persons specified in Clause (1)and hence the judgment rendered on the basis of the previous relating to election petition became automatically void, and the amending body was stating the consequence of the retrospective repeal of the law and therefore the declaration that the judgment was void was not an exercise of judicial function. On the other hand, might be possible function to view the first part of Clause (4) as an exercise of judicial for the reason that, even assuming that by virtue of the retrospective repeal of the relating to election petition, there was no jurisdiction in the High Court to entertain or election petition and pass the judgment, a repeal simpliciter did not render the judgment facto void, the amending body was performing a function which has traditionally been in the province of court. Be that may, I feel no doubt that the amending body, when it declared the election of the to be valid, had to ascertain the adjudicative facts and apply the relevant norm for its validity. If however, the amending body did not ascertain the facts relating to the and apply the relevant norm the declaration of the validity of the election was a fiat generis character of the amending body. “Adjudicative facts as indicated by Mathew, J. are facts about the parties or their businesses and properties usually answering the questions of who did what, where, how why, with what motive or intent; adjudicative facts are roughly the kind of facts to a jury in a jury case. Legislative facts do not usually concern the immediate parties general facts which help the tribunal decide questions of law, policy and discretion. Legislative facts do not usually concern the immediate parties general facts which help the tribunal decide questions of law, policy and discretion. J., also pointed out that facts pertaining to the parties and their activities that is, adjudicative facts, are intrinsically the kind of facts that ordinarily ought not to be determined giving the parties a chance to know and to meet any evidence that may be unfavourable them, that is, without providing the parties an opportunity for trial. He also observed place that an election dispute has a public aspect in that it is concerned more with of a constituency to be represented by a particular candidate. But it does not follow public character of the controversy that there is no lis between the parties to the contest, and that the lis can be resolved otherwise than by ascertaining the facts relating the election, and applying the relevant law. He has said, ” According to the historic analysis, the essence of the distinction between the legislative power and judicial power is that the legislature makes new law which becomes binding persons over whom the legislature exercises legislative power; the judicature applies existing law in the resolution of disputes between particular parties; and judges deviate from this duty. This view of the distinction between the obligation to apply enforce rules and a discretion to modify rules are make new rules was at one time uncompromisingly in describing functions as legislative or judicial. Thus De Lolme courts of equity as then existing in England had a legislative function. They are, he kind of inferior experimental legislature, continually employed in finding out and law remedies for those new species of cases for which neither the courts of common the legislature have as yet found it convenient or practicable to establish any Constitution of England, New Ed. (1800 p. 149). Though this would how that neither nor in language has the boundary between legislation and adjudication ever been rigidly clearly drawn, the distinction between the two is well established. If, therefore, the of the amending body that the election of the appellant was valid was the result exercise of judicial power or of despotic discretion governed solely by considerations political expediency, the question is, whether that decision, though couched in the form enactment, can be characterized as an amendment of the Constitution.” 42. If, therefore, the of the amending body that the election of the appellant was valid was the result exercise of judicial power or of despotic discretion governed solely by considerations political expediency, the question is, whether that decision, though couched in the form enactment, can be characterized as an amendment of the Constitution.” 42. Explaining his own observations in His Holiness Kesavananda Bharathi v. State of A.I.R. 1973 S.C. 1461: 1973 S.C.R. (Supp.) 1: (1973)4 S.C.C. 325.” ...Under the Indian Constitution, the original sovereign-the people-created, by the clause of the Constitution, a lessor sovereign, almost co-extensive in power with itself. sovereign, the one established by the revolutionary act of the full or complete sovereign been called by Max Radin, the “pro-sovereign” , the holder of the amending power under Constitution, “Mathew, J., said,” I fully appreciate that ‘sovereign’, if conceived of as an omnipotent being has no existence the real world. Several thoughtful writers have deprecated the use of the expression discussion as it has the logical and religious overtones. Nevertheless, as the practice become inveterate, it will only create confusion if any departure is made in this case practice. If it is made clear that the sovereign is not a ‘mortal God’ and can express or itself only in the manner and form prescribed by law and can be sovereign only or it acts in a certain way also prescribed by law, then perhaps the use of the expression will have no harmful consequence. “Mathew, J., quoted from” The Theory of Sovereignty Restated by W.J.Rees quoted at of “In Defence of Sovereignty’, ed. W.L.Stankiewicz (Mind, Vol.LIX 1950),” ‘Legal sovereignty’ is a capacity to determine the actions of persons in certain intended by means of a law.....where the actions of those who exercise the authority, in respects in which they do exercise it, are not subject to any exercise by other persons kind of authority which they are exercising.” 43. The distinction between constitution law and ordinary law in a constitution like that the validity of the constitutional law cannot be challenged whereas that of ordinary can be challenged on the touchstone of constitution. But constitutional law is as much ordinary law. A Constitution cannot consist of a string of isolated dooms and constitutional law as much as the ordinary law must stand the test of being in no transgressing into the fields reserved for others in the democratic framework. But constitutional law is as much ordinary law. A Constitution cannot consist of a string of isolated dooms and constitutional law as much as the ordinary law must stand the test of being in no transgressing into the fields reserved for others in the democratic framework. Mathew, has said,” A judgment or sentence which is the result of the exercise of judicial power or of discretion is not a law as it has got the generality which is an essential characteristic A despotic decision without ascertaining the facts of a case and applying the law to though dressed in the garb of law, is like a bill of attainder. It is a legislative judgment. 44. We are not saying more, for we ourselves may commit transgression constitutional limitation, upon it we are only looking into some of the observations behalf in the judgment of the Supreme. Court in the case of Smt. Indira Gandhi Narain, A.I.R. 1975 S.C. 2292: (1976)2 S.C.R. 347 , we do not propose to extract many passages in the separate judgments of the Honourable Judges constituting the Bench however, cannot resist from referring to a small passage in the judgment of Mathew, which reads,” It is no doubt true that the House of Commons in England used to pass bills of attainder. But the practice has fallen into desuetude, since the year 1696. A bill of attainder is a Act of the legislature, as inflict capital punishments upon persons supposed to be guilty high offences, such as treason and felony, without any conviction in the ordinary course judicial proceedings. The legislature assumes judicial magistracy, pronouncing upon the of the party without any of the common forms and guards of trial and satisfying itself proofs, when such proofs are within its reach, whether they are conformable to the evidence or not. In short, in all such cases, the legislature exercises the highest power sovereignty, and what may be properly deemed an irresponsible despotic discretion, governed solely by what it deems political necessity or expediency, and too often under influence of unreasonable fears, or unfounded suspicions (See 3 J. Story, Commentaries the Constitution of the United States (Boston, 1833), 1388. In U.Sv. In short, in all such cases, the legislature exercises the highest power sovereignty, and what may be properly deemed an irresponsible despotic discretion, governed solely by what it deems political necessity or expediency, and too often under influence of unreasonable fears, or unfounded suspicions (See 3 J. Story, Commentaries the Constitution of the United States (Boston, 1833), 1388. In U.Sv. Brown, the Supreme Court of United States of America stated that the main why the power to pass bill at attainder was taken away from the Congress was: “Everyone must concede that a legislative body, from its number and organisation and the very intimate dependence of its members upon the people, which renders them liable be peculiarly susceptible to popular clamour, is not properly constituted to try with coolness, caution, and impartiality a criminal charge, especially in those cases in which the feeling is strongly excited the very class of cases most likely to be prosecuted mode” (see Cooley, Constitutional Limitations, pp.536-537, 8th ed., (1927) Macaulay account of the attainder of Sir John Fenwick in 1696, the last in the History of the House Commons, is particularly vivid: Much the same reason will apply to the resolution of an election dispute by an amending body as it consists, in all democratic countries, of an assembly of persons like Parliament. 45. Being aware, however, of the fact that the Parliament or appropriate Legislature confer upon itself the judicial power as well, Mathew, J., said,” The major problem of human society is to combine that degree of liberty without which is tyranny with that degree of law without which liberty becomes licence; and, the has been to discover the practical means of achieving this grand objective and to opportunity for applying these means in the ever shifting tangle of human affairs. A large part of the effort of man over centuries been expended in seeking a solution of this great problem. A reign of law, in contrast tyranny of power can be achieved only through separating appropriately the several of government. If the law makers should also be the constant administrators and dispensers of law and justice, then, the people, would be left without a remedy in case of injustice no appeal can lie under the fiat against such a supremacy. A reign of law, in contrast tyranny of power can be achieved only through separating appropriately the several of government. If the law makers should also be the constant administrators and dispensers of law and justice, then, the people, would be left without a remedy in case of injustice no appeal can lie under the fiat against such a supremacy. And, in this age-old political philosophers for the secret of sound government, combined with individual was Montesquieu who first saw the light. He was the first among the political philosophers who saw the necessity of separating judicial power from the Executive and Legislative branches of government. Montesquieu was the first to conceive of the three functions government as exercised by three organs, each juxtaposed against others. He realised the efficient operation of government involved a certain degree of overlapping and theory of checks and balances required each organ to impede too great an aggrandizement of authority by the other two powers... There can be no liberty where the legislative executive powers are united in the same person or body of Magistrates, or, if the judging be not separated from the legislative and executive powers...Nobody can deny by passing a law within its competence, Parliament can vest judicial power in any for deciding a dispute or vest a part of that power in itself for resolving a controversy, there is no exclusive vesting of judicial power in courts by the Constitution. The doctrine separation of powers which is directed against the concentration of the whole or substantial part of the judicial power in the Legislature or the Executive would not be a bar vesting of such a power in itself. But, until a law is passed enabling it to do so, its judicial power would not become actual. A sovereign in any system of civilized jurisprudence is not like an oriental despot who can do anything he likes, in any manner he likes and time he likes. That the Nizam of Hyderabad had legislative, judicial and executive powers could exercise any one of them by a firman has no relevance when we are considering pre-sovereign the holder of the amending power-in a country governed by a constitution should function. Such a sovereign can express ‘himself only by passing a particular law; and not through sporadic acts... That the Nizam of Hyderabad had legislative, judicial and executive powers could exercise any one of them by a firman has no relevance when we are considering pre-sovereign the holder of the amending power-in a country governed by a constitution should function. Such a sovereign can express ‘himself only by passing a particular law; and not through sporadic acts... If the basic postulate that a sovereign can act enacting laws is correct, then that is a limitation upon his power to do anything he may re-parte the classical statement of Sir Owen Dixon: The law that a sovereign only by law is supreme but as to what may be done by a law so made, the sovereign supreme over that law (See ‘Law and the Constitution “50 Law Quarterly Rev. 590, course, this is subject to the theory of basic structure. In other words, even sovereign can act only by making law, the law he so makes may vest the authority exercise judicial power in himself, without such law he cannot exercise judicial power. 46. The case of Damayanthi Naranga v. Union of India, A.I.R. 1971 S.C.966: (1971)3 840, which has been distinguished in the case of L.N.Mishra Institute of E.D. and Change v. StateofBihar,A.I.R. 1988 S.C. 1136, is relevant for the purpose of understanding as to what is the meaning and extent of freedom to form an association. The Hindi Sammelan was a registered society founded for the development ad propagation After a number of years of its successful working, difference arose between its members this has resulted in litigation. In 1956, the Uttar Pradesh Legislature passed the Pradesh Hindi Sahitya Sammelan Act under which a statutory body was created under name of the Hindi Sahitya Sammelan. This Act was declared as void by the Allahabad Court as violating the freedom to form an association under Art.19(1)(c) of the Constitution. Thereafter, Parliament enacted the Hindi Sahitya Sammelan Act, 1962, legislating Entry 63, List I of the Seventh Schedule, declaring that the institution known Sahitya Sammelan ’ is an institution of national importance and by the Act constituted statutory Sammelan as a body corporate. Under Sec.4(1) of the Act, the Sammelan consist of the first members of the Society and all persons who might become thereafter accordance with the rules made in that behalf by the first Governing Body to be constituted by the Central Government by notification. Under Sec.4(1) of the Act, the Sammelan consist of the first members of the Society and all persons who might become thereafter accordance with the rules made in that behalf by the first Governing Body to be constituted by the Central Government by notification. The Supreme Court held, that the right guaranteed by (c) cannot be confined to the initial stage of forming an Association and if it is so the right would be meaningless, because, as soon as an Association is formed a law passed interfering with its composition, so that the association formed may not be function at all. The right can be effective only, if it is held to include within it the continue the Association with its composition as voluntarily agreed upon by the forming the Association. 47. We have reiterated the statement of the principles of law by the Supreme Court case of Damayanthi Naranga v. Union of India, A.I.R. 1971 S.C. 966: (1971)3 S.C.R. we shall presently see when we advert to the facts of the instant case that the formation the societies voluntarily by the members thereof strictly in accordance with the provisions the Act and the rules, regulations and by-laws framed thereunder and the statutory elect and nominate as provided under the Act, the members to constitute the Management has been suddenly dealt with by the Legislature by introducing the Amendment Act. We have already seen that in the case of L.N.Mishra Institute of E.D. and Social v. State of Bihar, A.I.R. 1988 S.C. 1136, the Supreme Court has pointed Damayanthi Naranga v. Union of India, A.I.R. 1971 S.C. 966: (1971)3 S.C.R. 840 , in which the Act did not merely regulate the administration or the affairs of the society, altered the composition of the society itself. The result of this change in composition the members, who voluntarily formed the society, were compelled to act in the Association with other members who have been imposed as members by the Act and in whose to membership, they had no say and that the right to form an association necessarily that the persons forming the Association had also the right to continue to be associated only those whom they voluntarily admitted in the Association. Any law by which were introduced in the voluntary Association without any option being given to the to keep them out of any law which had taken away the membership of those voluntarily joined it, according to the Supreme Court would be a law violating the form an association and further that the right guaranteed by Art.l9(1)(c) was not confined initial stage of the forming of Association, but also included within it the right to continue the Association. In the case of All India Bank Employees’ Association v. National Tribunal, AIR 1962 S.C. 171 : (1961)2 Lab.LJ. 285: (1962)32 Com.Case 414, the Court observed that the right guaranteed by Art.19(1)(c) of the Constitution does with it a concomitant right that unions formed for protecting the ‘ interests of labour achieve their object such that any interference to such achievement by any law unconstitutional unless it could be justified under Art. 19(4) as being in the interests order or morality and that the right under Art.19(1)(c) extends only to the formation association or union and in so far, as the activities of the association or union are concerned or as regards the steps which the union might take to achieve its object, they are subject such laws as may be framed and such laws cannot be tested under Art. 19(4). 48. These observations of the Supreme Court thus show that there can regulating/restricting the exercise of the right under Art.19(1)(c) as provided under of the Constitution that is to say, in the interests of the sovereignty and integrity of India Public order or morality as well as beyond within the legislative competence such as case of co-operative societies and other societies as to incorporation, regulation and up (See Item 32 of the State List). 49. Our brief study of the relevant aspects of the laws which enable to Courts to go validity of the enactments by the legislatures thus compels us to restrict our examination the validity of the impugned Amendment Act to seeing whether the Amendment substance is beyond the powers of the Legislature to legislate upon or whether Legislature has transgressed its power by adopting a device in oblique or covert manner achieve something other than the subject of legislation or whether by it there encroachment upon the fundamental freedom to form associations, which right includes right to its continuance without interference. We cannot, as courts of law, enquire propriety of the exercise of the legislative power. We have to proceed on the assumption the legislative discretion is properly exercised. We must repel any arguments as to motive or mala fides, for Courts must keep off from such examination. We have, however, seen the limitation on the legislative power of the State. Item 32 of the State List Seventh Schedule empowers the State legislature to legislate with respect to incorporation, regulation and winding up of corporations and co-operative societies. Such laws incorporation and regulation of Co-operative societies can undoubtedly take into their schemes as to the Constitution of the Board of Management etc., fixation of tenure member of the Board of Management and the determination of the members ’ rights. the legislature is competent also to make laws providing for forums for adjudication disputes it, with or without the right to sue in a Civil or Criminal Court, can create forum for adjudication of disputes arising under its laws or even embracing various kinds of disputes which otherwise will fall within the jurisdiction of the Civil and/or Courts. We have already noticed that a machinery for resolving election disputes going into the allegations that elections were not free and fair, being vitiated by malpractices is a must, for it will be going against the basic structure of the Constitution if elections made automatically void or automatically valid and if such a power is assumed Legislature, it will amount to exercise of judicial power. Adjudicatory facts are facts parties or their activities, businesses and properties usually answering the questions did what where, when, how, why, with what, motive or intent, the kind of facts that court or Tribunal unlike legislative facts which do not concern the immediate parties which only give to the Legislature the basis for formation of policy and thus enacting Ordinarily, the petitioner or the complainant and the person against whom allegations made should get opportunity to have their say and unless they got such opportunity, between the parties will not be determined or decided. To confirm or annul without being ascertained and without there being answers to what, where, when, how and why, be unfair and unjust. Unless there is a forum for such determination, even though purporting to be an act of a legislature of a Democratic Republic, it shall be an act of a despot. To confirm or annul without being ascertained and without there being answers to what, where, when, how and why, be unfair and unjust. Unless there is a forum for such determination, even though purporting to be an act of a legislature of a Democratic Republic, it shall be an act of a despot. Members elected or nominated in accordance with the provisions of Tamil Nadu Act 30 of 1983, having a tenure, have been unseated by the enactment in’ Sec.3 of the Ordinance Act as under this the term of office has been made to expire on the appointed day and they have been asked to vacate their office on and from the appointed day. That has done for the reasons inter alia, that (1) the Tamil Nadu Co-operative Societies Amendment Act, 1990 (Tamil Nadu Act 1990) provided for thirty per cent representation for Women and 18 per cent representation for Scheduled Castes and Scheduled Tribes in the boards of registered co-operative and for nomination of the representatives of women and Scheduled Castes and Scheduled Tribes if women and Scheduled Castes and Scheduled Tribes members were not elected that extent; In the election to the boards of the primary co-operative societies held year 1990, representatives of women and Scheduled Castes and Scheduled Tribes were elected in the extent of thirty per cent and eighteen per cent respectively. A large number representatives of women’ Scheduled Castes and Scheduled Tribes disproportionate elected members have been nominated. This had resulted in an abnormal tilt towards nominated members. The abnormal tilt towards nominated members was not conducive the orderly development of co-operative movement. It was also not in consonance with principles of democratic management of co-operatives. (2) A number of complaints has received by the Government regarding the malpractices in the conduct of election and management of the affairs of the primary co-operative societies. 50. For these reasons the Government with a view to set right the abnormal tilt towards nominated members and also to ensure the proper management of the said co societies, decided to amend the Act suitably and also to conduct election to all co societies after the amendment. Pending amendment, it was decided to supersede the of management of the primary societies and to appoint Special Officers for a limited in the public interest. 51. Pending amendment, it was decided to supersede the of management of the primary societies and to appoint Special Officers for a limited in the public interest. 51. The first above, which has been one of the reasons for the Amendment Act resulted on account of any fault on the part of the members of the society but for the reason provisions in the Tamil Nadu Co-operative Societies Amendment Act, 1990 which prescribes thirty per cent representation for woman and eighteen per cent representation to Scheduled Castes and Scheduled Tribes in the boards of registered co-operative societies and for nomination of the representatives of women and Scheduled Castes and Scheduled Tribes members if they were not elected to that extent. No one question the authority of the Legislature to amending the provisions that created a favour of nominated members. But this tilt, if at all, was caused not for any other but the power to nominate created by Tamil Nadu Act 26 of 1990. Those who got elected nominated, acquired a statutory right and the Act which gave such right to them still the field. The Preamble says that the Government has decided to amend the Act 30 of suitably so that the tilt does not exist. This amendment is yet to be made. The Government desire to make the amendment may or may not be accepted by the Legislature, Legislature may decide in favour of continuing the amendments by Tamil Nadu Act 1990, it may not put forward future amendments. 52. We have not found any provision in the Act which empowers the State Government receive complaints and/or to determine whether the complaints were true or not. however said, that a number of complaints were received by the Government regarding malpractices in the conduct of election and in the management of the affairs of the co-operative societies. The Act has provided forums for such complaints to be made empowered the forums to adjudicate. These provisions are besides what Sec.9 of the Code Civil Procedure prescribes that any Civil dispute can be taken to a civil court of competent jurisdiction or various provisions of the major and minor criminal laws. The Act has provided forums for such complaints to be made empowered the forums to adjudicate. These provisions are besides what Sec.9 of the Code Civil Procedure prescribes that any Civil dispute can be taken to a civil court of competent jurisdiction or various provisions of the major and minor criminal laws. The questions where, when, how, why, with what motive and intent all falling in the category adjudicative facts have been answered by the legislature that those who have been for a term of office shall cease forthwith to hold their respective offices and in their place Special Officers shall assume charge. 52-A. The Legislature ’ s competence to make laws respect to co-operative societies in item 32 of the State List which is confined to make as to incorporation, regulation and winding up of co-operative societies does not and extend to judging electoral malpractices in the elections held for the membership Board and/or other office-bearers of the society. True, as held by the Supreme Court, democratic set-up, disputes relating to the validity of elections need not be settled by of law only. Nonetheless, an independent mechanism alone can justify interference ground of electoral malpractices in the tenure of office of the elected members of the A decision as to maladministration by those who have been elected to administer the in accordance with the provisions of the Act, the Rules and the By-laws will be despotic rule of adversary adjudication is ignored and on complaints in the hands of the Government of the State. A legislative decision imposed upon the society and its members that constituting the Board indulged in maladministration, will be a pronouncement of guilt sort in exercise of legislative power without there being any adjudication. No Legislature assume such power, We say so with respect, for as observed in U.S. v. Brown, 381 U.S. by the Supreme Court of United States of America, “ Every one must concede that a legislative body, from its numbers and organisation and the very intimate dependence of its members upon the people, which renders them liable be peculiarly susceptible to popular clamour, is not properly constituted to try with coolness, caution, and impartiality a criminal charge, especially in those cases in which the feeling is strongly excited the very class of cases most likely to be prosecuted by this mode. The charges that were brought before the Government and which formed the basis Ordinance and the Act may not essentially be criminal charges, but they are in the nature allegations that may safely be called quasi-criminal, reiterating the words Mathew, J, case of Smt.Indira Gandhi v. Raj Narain, A.I.R. 1975 S.C. 2292: (1976)2 S.C.R. 347 , “even though a sovereign can act only by making law, the law he so makes may vest authority to exercise judicial power. ” The legislature could exercise the judicial power only if a law made by it for the said purpose empowered it to act in judicial capacity. The sovereign act of the legislature in the teeth basic structure theory is an exercise that we must not countenance. 53. Sec.5 of the Act, which has given to the Government power to appoint an Advisory consisting of not more than five non-official members to advise the Special Officer and Board shall be consulted by the Special Officer on all matters relating to the affairs of the primary society, is perhaps a provision which some sembance of a democratic functioning of the society during the interregnum for the Special Officer has been appointed under the impugned Amendment Act. But then not indicated who will be the members of this Advisory Board. If they are coming from they are not covered by the primary society concerned in the sense that not all the who qualify for membership in the society, it is going to pollute the society and interfere the right of the members of the society under Art.19(1)(c)of the Constitution. There are which give power to the Government to nominate until a regular body is created accordance with law. There are laws which say that a municipal board or any other local government may be constituted in a particular area until such constitution municipality or the self-government, certain persons are nominated and notified to as the board of the local self-government. But then such persons must qualify members of the board of municipality and/or the local self-government. If they otherwise to constitute the board of management, they not only interfere with the local self-government but also interfere with the freedom of association. In the Baldev Singh v. State of M.P., A.I.R. 1987 S.C. 1239, the Supreme Court pointed out. “Ours is a democratic polity. If they otherwise to constitute the board of management, they not only interfere with the local self-government but also interfere with the freedom of association. In the Baldev Singh v. State of M.P., A.I.R. 1987 S.C. 1239, the Supreme Court pointed out. “Ours is a democratic polity. At every level, from the villages up to the national democratic institutions have been introduced. The villages are under Gram Panchayats, urban areas under Municipalities and Corporations, districts are under Parishads; State there is a Legislature and for the entire country. We have the Parliament residing within Gram Panchayats have their electoral rights to exercise and in exercise such rights, they have elected their representatives. Citizens of India have a right to what should be the nature of their society in which they live-agrarian, semi-urban or Admittedly, the way of life varies, depending upon where one lives.” That was a judgment in which they say that guidelines are necessary and if guidelines are not indicated in the section, yet from the provisions contained therein, be gathered as to what guidelines are given. We are, however, informed that rules have been framed prescribing qualifications for members of the Advisory Board. It premature to say that for the reason of absence of any qualification of the five non members to constitute the Advisory Board of the society, the constitutional guarantees been violated. The absence of guidelines, no doubt, render a provision of law arbitrary. arbitrariness with respect to the nomination of five non-official members to advise Special Officer, can be rectified by the rules and if care is taken to ensure that members come from amongst the members of the society only and belong to the categories which constitute the board. Therefore, it is not possible at this stage to say that Sec.5 impugned Act is stricken by such a serious vice which will render it invalid. 54. Another infirmity argued before us is in respect of the appointment of Special Sub-sec.(2) of Sec.7 of the Amendment Act has given to the Government the power authorise the Registrar by notification to exercise any of the powers vested in them Sec.4 or under Sec.5 in respect of all or any of the primary societies. 54. Another infirmity argued before us is in respect of the appointment of Special Sub-sec.(2) of Sec.7 of the Amendment Act has given to the Government the power authorise the Registrar by notification to exercise any of the powers vested in them Sec.4 or under Sec.5 in respect of all or any of the primary societies. It is said that in societies persons who are not the Registrar but appointed to exercise some or all the of the Registrar have been authorised by the Government to appoint Special Officers of the appointment letters of the Special Officers have been produced before the Court. of 1983 Act says, “The Government may appoint any officer of the Government to be Registrar of Co Societies for the State of Tamil Nadu or any portion of it or for any class or classes category or categories of registered societies and may, by general or special order, confer any other officer of the Government or any officer of any body corporate owned or by the Government all or any of the powers of a Registrar under this Act. ” The two divisions of Sec.3 of the Act clearly distinguish between an officer, who is as the Registrar and the officer of the Government or any officer of any body owned or controlled by the Government who is vested with all or any of the powers Registrar under the Act. While a person who falls in the first category is the Registrar, the Act contemplates delegation of the governmental functions under Sec.4 or Sec.5 Amendment Act to him, he can be authorised by the Government to appoint Special Officers, those who, however, fall second category, they are not the Registrar. They are persons who have been given a role to exercise all or some of the powers of the Registrar under the Act. Merely because such powers are conferred upon them, they cannot be the Registrar, although they function as Registrar for the purposes of the Act, 1983. They cannot act as delegates of the Government for Sec.7 of the Amendment Act limits the delegation to Registrar only. 55. The view that we have taken may lead it to hold that the Amendment Act is a colourable exercise of power and the legislature has acted beyond its competence in terminating tenure of elected or nominated members of the boards of management of the primary operative societies. 55. The view that we have taken may lead it to hold that the Amendment Act is a colourable exercise of power and the legislature has acted beyond its competence in terminating tenure of elected or nominated members of the boards of management of the primary operative societies. Our conclusions will also lead us to hold that appointments of the Officers by the persons who are not appointed as the Registrar but are merely conferred powers of the Registrar are illegal. 56. We are, however, aware of the fact that the societies have already been superseded the Special Officers have been appointed and the administration of the societies has taken over by them. In the case of S.L.Kapoor v. Jagmohan, A.I.R. 1981 S.C. 136: (1981)1 S.C.R. 746 , the Supreme Court found that supersession of a municipal committee was but then put the question what relief should be given to the appellant? The superseded Municipal Committee’s term was almost reaching its completion. The Supreme Court said, “If now the order is quashed and the Committee is directed to be reinstated with liberty the Lt.Governor to proceed according to law this should be our order ordinarily-, it may to confusion and even chaos in the affairs of the Municipality...We have held that notification is vitiated by the failure to observe the principles of natural justice and we matter rest there. We neither quash the notification nor reinstate the Committee. Nor are to be understood as having expressed any opinion on the merits of the supersession. allow the appeal in the manner indicated.” 57. When we ask the same question, we find a situation in which the petitioners suggest that the Amendment Act as well as the consequential appointment of the Special Officers should be quashed. That will be ordinarily an order that a Court on account of findings recorded by us may pass. Thus, if the Amendment Act goes and consequently Special Officer is also out of office, unless there is a mandamus issued to restore erstwhile members of the Boards of Management to their respective offices, there shall one to manage the affairs of the superseded societies. Should we then follow this and issue a mandamus to restore the erstwhile members of the Boards of Management their respective offices? Should we then follow this and issue a mandamus to restore the erstwhile members of the Boards of Management their respective offices? Only a few of the superseded societies have come before us thousands have accepted supersession and the Special Officers are comfortably functioning such societies. It is not known how in the event of removal of the Special Officers, Court would succeed in reinstating the removed members of the Board to their respective offices. While the Amendment Act and the supersession may be said to have affected society, which is a juristic entity, the persons de facto affected are such members, who elected and/or nominated, but were removed as a consequence of the enforcement of Amendment Act. Most of them or not before us. Those who are before us claim to represent their respective societies. It will be difficult to transfer to them the management of society in the absence of any mechanism created for the said purpose. There shall confusion all around and the Court may not and should not like to create chaos. We carefully examined the facts of individual cases. It has been conceded on behalf of respondents that the Board of Management of the Society petitioner in W.P.No.13883 1991 has not been superseded and no Special Officer has been appointed in that Society as other petitioners are concerned, their grievance is that although Boards Management of their societies were constituted and they were entitled to continue for full term of office, they have been removed by the appointment of the Special Officers. some of the cases, their further grievance is that the Special Officers have been appointed not by the Registrar but by the persons who have been only empowered to act as Registrar. Yet, any change in the status quo without a scheme to re-start the democratic process, our opinion, shall cause and confound confusion and chaos. 58. The respondents have submitted a scheme and it is said that they have submitted scheme before the Supreme Court in W.P. (Civil) No.758 of 1991. The scheme states that the of Tamil Nadu proposed to hold elections for the primary co-operative societies. Schedule for conducting the elections is as follows: “(i) Enrolment of Women and Scheduled Castes/ Schedule Tribes members to the required extent by 31.12.1991. (ii) Amending the Tamil Nadu Co-operative Societies Act, 1983 and the Tamil Nadu operative Societies Rules, 1988 by 31.01.1992. The scheme states that the of Tamil Nadu proposed to hold elections for the primary co-operative societies. Schedule for conducting the elections is as follows: “(i) Enrolment of Women and Scheduled Castes/ Schedule Tribes members to the required extent by 31.12.1991. (ii) Amending the Tamil Nadu Co-operative Societies Act, 1983 and the Tamil Nadu operative Societies Rules, 1988 by 31.01.1992. (iii) Amending by-laws of various co-operative societies by 28.02.1992. (iv) Completing the elections for all the primary co-operative societies by 31.05.1992. This solemn promise, we have every reason to believe, shall be fulfilled by the State and shall in no way depart from the schedule. We are unaware of the amendment that may made in the Act, the rules and the bylaws. Therefore, it is not possible to predicate how will affect the members of the society. We, however, hope and believe that the State will nothing that will infringe any such right of the members of the primary co-operative societies which will give rise to further litigations. The schedule, if adhered to, will bring back management in the hands of the members of the society and thus the Amendment Act operate only as a transitory law and the Special Officers shall function only as a stop arrangement. We, for the said reason, determine as above that the Amendment Act suffers from the vice of legislative incompetence and arbitrariness thus violating Arts. 14 and the Constitution of India but issue no writ either in the nature of certiorari or in the nature mandamus. We, however, direct the State to act in accordance with the schedule enrolment of women, Scheduled Castes and Scheduled Tribes members to the required extent, for amending the Tamil Nadu Co-operative Societies Act, 1983 and the Tamil Co-operative Societies Rule, 1988 and by-laws of various co-operative societies and completing the elections for all primary co-operative societies without fail. 59. With the directions as above, the writ petitions are disposed of. No costs. Petitions disposed of with the directions.