SC Discusses Constitutionality Of Maharashtra Co-Operative Societies Act Provision Disqualifying Committee Members On Having Third Child

The Supreme Court vacation bench of Justice Adarsh Kumar Goel and Justice UU Lalit on Friday contemplated on the constitutional validity of section 73CA(1)(vii) of the Maharashtra Co-operative Societies Act of 1960 in so far as the provision mandates that a person having more than 2 children shall be ineligible for being elected, nominated, appointed, or co-opted, or for being a member of a committee of a society registered under the Act of 1960.

The present writ petitioner before the apex court had ceased to be a member of the Board of Directors of the Bassein Catholic Co- operative Bank Ltd. w.e.f. March 9 under Section 73CA of the Act of 1960. This cessation of directorship is on the ground that the petitioner had become a father of third child on March 20, 2016, i.e., during the tenure of his office.

Senior counsel Arvind Datar submitted before the bench, “The impugned provision of the Act of 1960 has no bearing or rational connection with the qualification of a person for being a member of the Board of Directors of the Co-operative Bank”.

The  judgment in the matter of Javed v. State of Haryana  [AIR 2003 SC 3057] was referred, where the Supreme Court had rejected the challenge under Articles 14, 21 and 25 of the Constitution to section 175(1)(q) of the Haryana Panchayati Raj Act of 1994, which stipulated that “no person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who… has more than two living children”.

It was contended that in the said judgment, the apex court had observed that since one of the objectives of the legislation of 1994 was to encourage family planning, the classification based on the number of children was reasonable for the purpose of Article 14.

Relying on the other grounds for disqualification as per section 73CA of the Act of 1960, it was further argued that being a defaulter of the society, perpetrating indiscipline in the society, competing with the society’s business, financial impropriety etc were rational grounds for disqualification of a person from being a member of a committee of the society, but disqualification on the ground of having more than 2 children has no reasonable nexus with the objectives of the Act.

Observing that the disqualification under Section 73CA operates at two levels: one, for debarring a person from being elected etc to a committee of a society, and two, for restraining him from continuing as a member of the committee, the bench remarked that the vires of the said provision needs to be considered.

Finally, the top court disposed of the writ petition in view of a similar matter pending before the Nagpur Bench of the Bombay High Court, with liberty to the petitioner to approach the high court.