Right To Stand As Candidate & Contest Election A Special Right: Kerala High Court Upholds S. 28(2A) Of Co-Operative Societies Amendment Act
The Kerala High Court allowed a batch of 33 Intra-Court Appeals filed by the State against the Judgment of the Single Bench which struck down the amendment to the Act.
Justice Amit Rawal, Justice K.V. Jayakumar, Kerala High Court
The Kerala High Court has upheld Section 28(2A) of the 2024 amendment under the Kerala Co-operative Societies Act, 1969.
The Court was deciding a batch of 33 Intra-Court Appeals filed by the State against the Judgment of the Single Bench which struck down the aforesaid amendment.
A Division Bench comprising Justice Amit Rawal and Justice K.V. Jayakumar held, “The pith and substance of the findings extracted above, leaves no manner of doubt that the right to stand as a candidate and contest election is not a common law right but a special right created by a statute and can be only exercised on the conditions laid down by the statute. It is not a fundamental right as observed by the Single Bench much less to be violative of directive principles as per Article 43B of the Constitution of India, PART IV, Directive Principles of State Policy. These two factors have not been pondered while striking down the amendment in the judgment under challenge.”
Advocate General K. Gopalakrishna Kurup, Senior Government Pleader T.K. Vipindas, and Special Government Pleader P.P. Thajudeen represented the Appellants while Senior Advocate George Poonthottam represented the Respondents.
Background
As per the impugned amendment, no member of the Committee of the Society shall be eligible for election to the Committee for more than three consecutive terms, irrespective of whether the term is in full or in part. The said amendment as per the explanation only relates to the credit societies indulging into extending the facility of loan. The credit societies which would mean the Kerala State Co-operative Bank Limited, Primary Agricultural Credit Societies, Service Co-operative Banks, Regional Co-operative Banks, Rural Banks, Farmer's Service Co-operative banks, Urban Co-operative Banks, the Kerala State Co-operative Agricultural and Rural Development Bank Limited, Primary Co-operative Agricultural and Rural Development Bank, Urban Co operative Societies, Agricultural Improvement Co-operative Societies, Employees Credit Societies, Rural Co-operative Societies, Primary Housing Co-operative Societies, and Kerala State Housing Federation.
By way of 97th amendment in 2011, PART IX-B was introduced in the Constitution of India by inserting Article 243-ZH to ZT. Article 243-ZJ deals with the number and term of members of board prescribing that the maximum number of directors of a Co-operative Society shall not exceed twenty-one (21) and term of office of elected members of the board and its office bearers shall be five years from the date of election and the election as per Article 243-ZK has to be conducted before the expiry of the term of the board. The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a co-operative Society shall vest in such an authority or body, as provided by the legislature of a State, by law provided that the Legislature of a State may, by law provide for the procedure and guidelines for the conduct of such elections.
The grounds which weighed with the Single Bench in striking out the amendment caused in Section 28(2A) of the Act primarily has been on the premise of being a fundamental right, autonomous power given to the Society to incorporate such conditions in the bye-laws of the Society with no power to the State legislature to cause amendment in the statute barring a member for contesting the elections who had been a member for a period of three years.
Reasoning
The High Court in the above context of the case, observed, “The whole focus had been only on the autonomy of the Society. Meaning thereby, the Society, in view of the autonomy granted will be like a plant 'touch me not' which is not the main purpose and object of the introduction of amendment of the constitution of India. No reasoning or rational has been assigned while rendering a finding in paragraph 55 that the election of the managing committee of any Society for the 4th consecutive term will not develop any vested right.”
The Court said that in case, the findings in the Judgment under challenge is permitted to sustain, it will render unfettered and unbridled powers to the member of the Society to indulge into misappropriation and will be against the principles of administrative law.
“The ratio of decidendi culled out in the judgments cited on behalf of the respondents was basically on account of the exclusion of certain diary and milk Co-operative Societies from the provisions of the Andhrapradesh Co-operative Society and therefore definitely would be violative of the Article 14 of the constitution of India. The right to contest, for the sake of repetition is not a fundamental right but right from the statute”, it added.
Accordingly, the High Court allowed the Appeals and set aside the findings of the Single Judge.
Cause Title- State of Kerala v. Joe Thomas & Ors. (Neutral Citation: 2025:KER:38198)
