Legislative Competence over Societies: Entry 32 and the State Acts

The Societies Registration Act is a central statute of 1860, but the power to legislate about societies today lies chiefly with the States. That combination explains the patchwork a student meets in practice: the same twenty sections read differently in Uttar Pradesh, Punjab or Maharashtra, and several States have replaced the Act altogether. Understanding the Act's internal scheme and the constitutional entries that govern changes to it is the key to reading any provision correctly.

1. The internal scheme

• Formation (sections 1 to 3). Seven or more persons, a memorandum stating name, objects and the governing body, rules certified by three members of that body, and a certificate of registration from the Registrar.
• Annual list (section 4). The names, addresses and occupations of the governing body filed each year after the annual general meeting, or in January where the rules provide for none.
• Property and litigation (sections 5 to 8). Property not vested in trustees is deemed vested in the governing body; suits are brought in the name of an officer designated by the rules; they do not abate on change of office; decrees run against society property.
• Members (sections 9 to 11 and 15). Bye-law penalties are recoverable; members who default or damage property are sued as strangers, and those who misappropriate are prosecuted as strangers; members in arrears beyond three months cannot vote.
• Alteration and dissolution (sections 12 to 14). Purposes may be altered or societies amalgamated by a special procedure requiring three-fifths of votes and confirmation; dissolution requires three-fifths of members; surplus never goes to members.
• Definitions and coverage (sections 16 to 20). Governing body; registration of earlier bodies; inspection of documents; and the societies eligible for registration.

Figure 1: The Act read as a life cycle

2. The constitutional entries

• The second limb of Entry 32 squarely covers societies under the 1860 Act, which are unincorporated. This is why the States may amend the Act for their territories or replace it.
• Entry 44 of List I reserves to Parliament the incorporation, regulation and winding up of corporations, trading or not, whose objects are not confined to one State. A registered society is not a corporation, so this entry does not ordinarily displace State power.
• Entries 62 to 64 of List I allow Parliament to legislate for institutions declared to be of national importance, the route used for the Hindi Sahitya Sammelan and the Indian Council of World Affairs.
• Entries 10 and 28 of List III (trusts and trustees; charities, charitable institutions and endowments) give both legislatures a concurrent foothold where a society's property is held on charitable trust.
• The Act itself, as existing law, continues under Article 372 until altered by the competent legislature.

Figure 2: The entries that decide who may legislate

3. The cases on competence

Asom Rashtrabhasha Prachar Samiti v. State of Assam, (1989) 4 SCC 496 supplies the counterpoint: a State could not stretch the education entry in the Concurrent List to justify taking over a society's management, and the law fell under Article 19(1)(c). Competence and fundamental rights are separate hurdles, and a law must clear both.

Figure 3: Three layers of law a society may live under

4. How States have used their power

• Amending States (for example Uttar Pradesh, Punjab and Maharashtra) have added provisions on renewal of registration, elections, accounts, change of name and the Registrar's powers.
• Replacing States have enacted full statutes, among them Karnataka (1960), West Bengal (1961), Madhya Pradesh (1973), Tamil Nadu (1975), Rajasthan (1958) and Haryana (2012). In Kerala the former Travancore-Cochin area has its own 1955 Act for literary, scientific and charitable societies.
• Common additions include inquiry and inspection powers, supersession of the governing body with an administrator, cancellation of registration, and audit requirements.
• A society registered in Delhi, where the Act applies as extended with Punjab amendments, is often used by bodies operating nationally; its objects may reach across States without making it a corporation under Entry 44.

5. Quick Revision

1. The Act's scheme follows a society's life from formation to dissolution.
2. Registered societies are unincorporated, hence a State subject.
3. Parliament reaches particular institutions through the Union entries on national importance.
4. Competence is separate from Article 19(1)(c).
5. Identify the State law before applying any provision.

6. Frequently Asked Questions

If the Act is a State subject, why is it still called a central Act?

Because it was enacted by the Governor-General's Legislative Council in 1860 for British India, before the present division of powers existed. On the commencement of the Constitution it continued as existing law under Article 372, and the power to alter it now lies with whichever legislature is competent over its subject matter, which for unincorporated societies is the State legislature under Entry 32 of List II. The text therefore remains a single central enactment in form, while in substance it has become a family of State laws, each version being the 1860 text as altered for that territory.

Can Parliament amend the 1860 Act for the whole country?

Not generally, since the subject lies in the State List. Parliament can legislate for Union territories without legislatures, for particular institutions declared to be of national importance, for matters like income tax and foreign contribution that affect societies through Union List entries, and in the situations Articles 249 to 253 contemplate. A general overhaul of societies law across India would require State action or a resolution under Article 252 by two or more States inviting Parliament to legislate for them.

Does a society that works across States need registration in each?

Ordinarily no. The 1860 Act and most State laws allow a society to have objects and activities that extend beyond the State of registration, and many national bodies are registered in one State and operate everywhere. The State of registration determines the governing statute and the Registrar with supervisory jurisdiction. Some State laws require a society operating within them to file information or register a branch, and grant or licensing schemes may impose their own conditions, so the position should be checked State by State when a society plans to work across several of them.

7. Related Topics and Provisions

• History and object of the 1860 Act
• Freedom of association under Article 19(1)(c)
• Legal personality of a registered society
• State societies laws: an overview
• Registrar's powers under State laws
• Society, trust and section 8 company compared