ORDER
K. Sukumaran, J.
1. The petitioner, a member of the Manimala Panchayat Service Cooperative Bank, contends that Section 28 A of the Co-operative Societies Act, 1969 newly introduced under the Co-operative Societies (Amendment) Ordinance, 1985 is ultra vires of Article 14 of the Constitution. Section 28A mandates that in the Committee of every Society one seat each shall be reserved for a woman and a person belonging to the Scheduled Castes or Scheduled Tribes.
2. The proposal to conduct election to the Committee of the Society on 31-5-1986 is also challenged. The notice dated 5-5-1986, indicated that the election will be for 13 members, one of whom will be a woman and one, a member belonging to the scheduled castes/scheduled tribes. The pre-existing number of the Committee was 11. The number has been increased Under the enabling provision of Section 28A and fixed as 13.
3. The challenge against Section 28A, is without substance. No materials have been furnished to show how the provision generates discriminatory results or arbitrariness in the functioning of the co-operative societies. It is very rarely that one notices a woman member in the governing set up of a co-operative society. Their absence in the co-operative committees is so universal and so notorious as could even be taken judicial notice of.
4. It is a sad fact that despite the passage of nearly four decades after the ushering in of the Constitution, women have not advanced much in many areas of human activity. The necessity for making a special provision for women and children had been recognised in the context of Article 15 of the Constitution. The endeavour to eliminate inequalities in status, facilities and opportunities, is one of the proclaimed Directive Principles of State Policy (vide Article 38).
5. Prejudices, strong prejudices, existed against women for a long period of history. There has been seepage of such prejudices even in unexpected places — the enlightened minds. Look, for example, the decision rendered in 1873 by the Supreme Court of America which shut to the women’s face the entry door to the lawyers’ profession; and read the observations :
“…..the Civil Law as well as nature herself has always recognised wide difference with respective spheres and destinies of men and women. Man is or should be woman’s protector or defender. The natural and proper timidity and delicacy which belongs “to the female sex, evidently unfits it for many of the occupations of civil life…..”
Perhaps that is the reason why Andre Beteille observed that in the 19th century, even in America, few people seriously believed that the doctrine of equality of opportunity was intended to cover Negroes or women. Even in the beginning of the 20th century, the same impression about women would appear to have continued in that country. Justice Brewer, of the American Supreme Court, in the course of his opinion given in Curt Muller v. State of Oregon, (1907) 208 US 412 observed :
“……History discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present….. even though all restrictions on political, personal, and contractual rights were taken away, and she stood, so far as statutes are concerned, upon, an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection…..”
6. The situation, however, has vastly changed. The theory of Emile Durkheim, the French sociologist, that the difference in brain size between men and women increased with the advance of civilisation has now been fully discredited. Time is long long past, when as in the 17th century France, woman could be treated as a weaker vessel fit only to bear children for their male masters. The shackles have been broken by the women. Even the very Supreme Court of America which barred the women’s entry to the Bar, has now with it, Justice Sandva Day O’Connor, the first woman judge.
7. The progress made by women in recent times, however, does not mean that all has been achieved or attained by women.
8. Even on a global view, women still suffer the pangs of inequality. Though women constitute about 50 per cent of the population, effective participation in the political administration is, to them, still a teasing illusion. The findings of world bodies like the UNICEF present a picture of the women all over the world still dragging their feet.
9. The international situation in 1984, was pictured thus:
“While women represent 50 per cent of the world adult population and a third of official labour force, they perform nearly two-thirds of all working hours receive a tenth of world’ income and own less than one per cent of world property”.
An Analysis of the situation of Children in India, UNICEF, 1984, page 79.)
10. The Indian situation is not different. Chapter VI of that publication deals with the legal protection afforded to women in India, It is noted :
“Only a small part of the social disabilities of women has been checked by laws incorporating social reforms. Legislation introducing changes against traditional ways of life has been slow. Even where laws have been enacted, their enforcement and acceptance depend on public opinion and response as well as on the commitment and competence of those in charge of administration…..”
(See page 78 of the above-mentioned report)
11. Recent studies made in relation to the Indian women indicate that some progress has been made in some fields (like education and medicine). Such progress has been noticeable mostly in the upper strata of the society. The prestigious Indian Administrative Service has (unlike Indian Civil Service under the British which did not admit women) many posts occupied by women though the percentage is still only around 20. Even in the elected bodies like the Parliament and the State legislatures, the feminine faces are few in number. The women members of Parliament were 14 in a house of 489 in 1952, 35 out of 494 in 1962 and 28 out of 528 in 1980 and 39 out of 544 in 1984.
12. There is, therefore, much force and substance in the observation that “large inequalities in the distribution of life chances continue to exist in India despite the creation of the most extensive legal equality as available under the Constitution of India”. The reason is not far to seek. Indian women in particular had suffered under the legal system as available under the Hindu law which governed the vast majority of India’s population. In relation to the extra handicap of the Indian woman, Andre Beteille noted :
“Especially in societies which have inherited from the past severe inequalities in the distribution of life chances, equality of opportunity can advance very little without some independent advance, being made in equality condition by imposing limits through social intervention on both the rewards and the penalties of competition.”
(See FACETS of India’s Development, G.L. Mehta Memorial Lectures : 1976-1986, page 71 at 79).
The march and direction of history is fairly evident. The necessity for a conscious and sustained effort to promote the position of women is thus a very live one. It is in this background that the purposive legislation of Section 28-A has to be understood and assessed.
13. In the prevailing situation, a provision for reservation made under Section 28-A can only be viewed as a wholesome, useful and commendable one, intended for the advancement of the Society in general and of the women in particular. When the Nation is on the march to the 21st century, it is essential that the vehicles of change move on both the wheels. If one of the wheels is deficient or defective, it will doubtless hamper all the progress; and can even wreck the coach. Section 28A is a small step in the correct and progressive direction in off-setting the ill-effects of age-old handicaps of women. Only the forces of reaction and retrogression, who would like to take the Nation to the slippery slope of the 12th century and even deeper, can venture to challenge such a well meant and socially benevolent provision. No Court of law can taken kindly to such a venture. The attack made by the petitioner has to be turned down; and strongly too.
14. Equally devoid of substance is the reservation to the Scheduled Castes/ Scheduled Tribes. The reservation measures in diverse fields of activity, have yielded their results. However, the victims of oppression for generation have, still miles and miles to go, to reach a stage of equal status and strength with the other sections of the Society. A provision for reservation for such weaker sections of Society is salutary, progressive and in consonance with the Constitutional scheme and objectives.
15. It is to be noted that Co-operative societies are the units of democracy at the grass-root level. It is only in the fitness of things that members who belong to the hitherto oppressed sections of the Society are given adequate experience and opportunity in dealing with the governance of the affairs of the society, though on a minuscule scale, as they are dealt with at the level of the Co-operative Societies.
16. Counsel complains that the number of members had been fixed by a bye-law of the Society as 11, that without an amendment of the bye-law, the number could not be increased and that the election notice fixing the number of members as 13, without an earlier attempt to amend the bye-law, is devoid of jurisdiction. I do not find any substance in this contention. The provisions of the bye-law are swept by the feet, when the statutory provision operates with its full force and effect. No bye-law can overpower the provisions of a statute. As noted earlier, the State mandates the presence of a women member and a member of the Scheduled Castes/Scheduled Tribes, in the Committee of the Co-operative Society. It is open to the Society to earmark two of the existing seats in the Committee for reservation as contemplated under Section 28A, one for the women and one for the Scheduled Castes/Scheduled Tribes. It is equally open to the Society to leave the existing pattern in tact, stipulating for the members to be elected in accordance with the existing procedure, and to provide additionally for the two seats, one for women and one for the Scheduled Castes/Scheduled Tribes. As to which of these courses should be adopted is a matter for the Society to decide. No formal change of the bye-law is visualised for achieving the above object. The section does not say so. When the section does not say so, it is not necessary to read into the section, any cumbersome or additional provision, which will have only the effect of defeating and delaying the implementation of the salutary provision of Section 28A.
17. Yet another ground is available in this case for rejecting this contention of the petitioner. If all that is necessary for increasing the number of members is only a decision by the Society, that could be reached in the ordinary way decisions are taken. In the present case, it is conceded, that there is no elected committee. The administration of the society is vested in the Administrator appointed in that behalf. According to the decisions of this Court now holding the field, the Administrator can exercise all the powers of a Committee (vide George v. Joint Registrar, 1985 Ker LT 836. It is, therefore, open to the Administrator to take a decision with the same legal efficacy as is possible for a Committee functioning virtually as the Committee of the Society, the Administrator could decide whether the representation to the women and Scheduled Castes/Scheduled Tribes members could be achieved by increasing the number of members of the Society or reserving the seats from among the existing members. If he has chosen one of the courses open to him, his decision is fully within his competence and power. When the Administrator has decided to have the election with an added number and with reserved representation for the woman and the Scheduled Caste/Scheduled Tribe member, the action cannot be assailed as illegal. Viewed that way, the fixation of the number of Committee as 13 and proceeding with the election on that basis, could not be upset by this writ Court.
In the light of the above discussion, the writ petition fails and it is accordingly dismissed.