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SUPREME COURT

`Membership can be restricted to a religion’

Wednesday 20 April 2005

Legal Correspondent

Cooperative society not a State: Supreme Court

- Plea filed by Zoroastrian society

- Cautious approach needed

- Does not fall under Article 12

- Membership not fundamental right

NEW DELHI: The Supreme Court has held that a co-operative society can restrict its membership to a class of persons or to a community or religion and that such restriction is not violative of the provisions of the Constitution. The court said that in secular India it might be somewhat retrograde to conceive of co-operative societies confined to a group of members or followers of a particular religion, a particular mode of life or a particular persuasion.

A Bench, comprising Justice B.N. Agrawal and Justice P.K. Balasubramanyan, pointed out that the fundamental rights enshrined in the Constitution were normally enforced against State action or action by other authorities who might come within the purview of Article 12 (State) of the Constitution.

Since a co-operative society was not a State, it was not possible to argue that a person had a fundamental right to become a member of a voluntary association or of a co-operative society governed by its own byelaws.

Writing the judgment for the Bench, Justice Balasubramanyan said: "The argument that public policy is as reflected by the constitutional guarantees, which govern rights and obligations, has to be approached with caution.It will be easy for State Legislatures to provide in their Co-operative Societies Acts as confined to a group, a sex, a religion or members of a particular persuasion or way of life.

But that is different from saying that in the name of open membership, subject to its byelaws contemplated by the relevant provisions of the Act, a direction could be issued to ignore the by-laws and to admit a person who is not qualified to become a Member."

The Zoroastrian Co-operative Housing Society of the Parsi community had challenged the Gujarat High Court verdict that the restriction in byelaws of the society to the effect that the membership would be limited only to persons belonging to the community would be an unfair restriction.

Allowing an appeal from the society against the High Court judgment, the Supreme Court observed that it was open to the Parsi community to try to preserve its culture and way of life and, in that process, to work for the advancement of members of that community by enabling them to acquire membership in a society and allotment of lands or buildings in one’s capacity as a member of that society to preserve its object of advancement of the community.

"It is also open to the members of the Parsi community, who came together to form the co-operative society, to prescribe that members of the community for whose benefit the society was formed, alone could aspire to be the member of the society," the Bench said and set aside the High Court judgment.

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