‘Fundamental Right To Form Cooperative Societies’, ‘Article 43B’: Remnants Of 97th Constitutional Amendment After Supreme Court Judgment

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Case: Union of India vs Rajendra N Shah

Coram: Justices RF Nariman, KM Joseph and BR Gavai

Case No: [CA 9108-9109 of 2014]

Court Observation: “We reject this argument for two reasons. If the doctrine of severability were not to apply for the aforestated reason, then the majority judgment in Kihoto Hollohan (supra) would be incorrect. This very reasoning would then render the entire Constitution 52nd Amendment, which inserted the Tenth Schedule to the Constitution of India, constitutionally infirm as then the entirety of the amendment would have to be declared void for want of ratification, which would be in the teeth of the majority judgment in Kihoto Hollohan (supra). Further, on this reasoning, the amendments made in Article 19 and the addition of Article 43B would also have to be struck down, which was not pleaded or argued before either the High Court or before us.”


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