Manjalayil House, Kothamangalam, Ernakulam District, Kerala v Union of India, State of Kerala, State Election Commission

IN THE HIGH COURT OF KERALA AT ERNAKULAM MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 WP(C).No. 30986 of 2009(P) -------------------------- MANJALAYIL HOUSE, KOTHAMANGALAM, ERNAKULAM DISTRICT, KERALA. ## BY ADV. SRI.N.J.MATHEWS SRI.V.RAJENDRAN (PERUMBAVOO R) 1. UNION OF INDIA, REPRESENTED BY - SECRETARY, LAW, JUSTICE AND COMPANY AFFAIRS, BISHAMBAR DASS MARG, NEW DELHI-110 001. 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 3. STATE ELECTION COMMISSION, CORPORATION BUILDING, M.G.ROAD, THIRUVANANTHAPURAM-695 039, REPRESENTED BY - ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R3 SRI.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR FOR R1 ADVOCATE GENERAL FOR R2 MR.T.B.HOOD, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/01/2010, ALONG WITH WP(C) NO.36028/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.30986/2009 ## APPENDIX ## PETITIONER'S EXHIBITS P1 : COPY OF THE STATEMENT OF OBJECTS AND REASONS ACCOMPANYING THE CONSTITUTION (73RD AMENDMENT) ACT. P2 : COPY OF THE STATEMENT OF OBJECTS AND REASONS ACCOMPANYING THE CONSTITUTION (74TH AMENDMENT) ACT. //TRUE COPY // PA TO JUDGE. jg ## ANTONY DOMINIC, J. ------------------------- ## W.P.(C.) Nos.30986 (P) & 36028 (W) of 2009 --------------------------------Dated, this the 11[th] day of January, 2010 ## J U D G M E N T Issue raised in these writ petitions being common, cases were heard and are disposed of together. For convenience, pleadings in WP(C) No.30986/2009 are referred to. 2. Prayers sought in these writ petitions are the following:- “i) To declare that Articles 243D(2), 243D(3), 243D(4) along with its second proviso, 243T(2), 243T(3) and the portion of Article 243T(4) of the Constitution of India providing for reservation in favour of women are beyond the amending power vested in the 1[st] respondent under Article 368 of the Constitution of India, since the said provisions damage part of its basic structure or destroy some of its essential features as stated in this Writ Petition and therefore unconstitutional; ii) To declare that Section 7(5), 7(6), 8(5), 8(6), 9(5), 9(6) and 153(b) of Kerala Panchayat Raj Act, 1994 and Sections 6(6), 6(9), 10(4), 10(5) of the Kerala Municipality Act, 1994 are unconstitutional being violative of Articles 14, 15(1) and 19(1)(a) read with Article 19(2) of the Constitution of India; iii) Issue a Writ Order or direction in the nature of prohibition to respondents 2 and 3 from giving effect to Section 7(5), 7(6), 8 (5), 8(6), 9(5), 9(6) and 153(b) of Kerala Panchayat Raj Act, 1994 and Sections 6(6), 6(9), 10(4), 10(5) of the Kerala Municipality Act, 1994; WP(C) Nos.30986 & 36028/2009 -2- iv) Grant such other reliefs, including interim reliefs, as may be found just, necessary and reasonable in the circumstances of the case.” 3. In these writ petitions, the challenge is mainly against the validity of the 73[rd] and 74[th] Constitution Amendments and the consequent provisions inserted to the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994. 4. Briefly stated, the facts of the case are that through the Constitution (73[rd] Amendment) Act, 1992, Part IX consisting of Articles 243 to 243-O was incorporated in the Constitution with effect from 01/06/1993. As a result thereof, by virtue of Article 243D, seats have been reserved in Panchayats for Scheduled Castes, Scheduled Tribes and Women. Under the Constitution (74[th] Amendment) Act, 1992, Part IX-A with the heading “The Municipalities” consisting Articles 243-P to 243-ZG was incorporated in the Constitution with effect from 01/06/1993. As a result thereof, reservation of seats similar to what is introduced for Panchayats for SC, ST and Women was introduced in the Municipalities also, under Article 243-T. Consequent upon the above Amendment Acts, the 2[nd] respondent State, incorporated WP(C) Nos.30986 & 36028/2009 -3- corresponding provisions in the Kerala Panchayat Raj Act, 1994 and in the Kerala Municipality Act, 1994. 5. In the Kerala Panchayat Raj Act, 1994, Sections 7, 8 & 9 deal with the reservation for women in Village Panchayat, Block Panchayat and District Panchayat. Similarly provision has been made that 1/3[rd] of the seats reserved for SC/ST are reserved for women belonging to those categories, and 1/3[rd] of the total seats to be filled in by election, shall be reserved for women. The same pattern is provided in respect of Block Panchayat and District Panchayat as well. Consequent provisions have also been incorporated in Section 153 of the Kerala Panchayat Raj Act, where also 1/3[rd] of the total number of office of the President on each level are reserved. According to the petitioners, the same pattern of reservation is provided in Municipality and Municipal Corporation also in terms of the Kerala Municipalities Act as per Sections 6 & 10 thereof. It is in this background, the petitioners are challenging the respective enactments stated above. 6. The contention raised by the learned counsel for the petitioners is that the amendment providing for reservation in favour of women is based on sex and hence is violative of the WP(C) Nos.30986 & 36028/2009 -4- provisions contained in Article 15 of the Constitution of India. It is also their contention that even Article 15(3) providing an exception to Article 15(1), was not incorporated for purposes such as what has been done in this case. 7. Article 15(1) of the Constitution provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. However, Article 15(3) provides that nothing in Article 15 shall prevent the State from making any special provision for women or children. 8. This provision has come up for judicial scrutiny on various occasions. In the decision in Om Narain Agarwal and Others v. Nagar Palika, Shahjahanpur and Others (AIR 1993 SC 1440), after examining the scope of Articles 14 & 15(3), the Apex Court has held that Clause (3) of Article 15 is an exception to Article 14 and Clauses (1) & (2) of Article 15. It has been held that Article 15(1) provides that the State shall not discriminate against any citizen on the grounds mentioned therein, and that Article 15 (3) provides that nothing in the Article shall prevent the State from making any special provision for women and children. Appreciating the scope of this provision, it has been held that Article 15(3) means WP(C) Nos.30986 & 36028/2009 -5- that in case any special provision is made for women, the same would not be violative on the ground of sex, which is prohibited under Clauses (1) & (2) of Article 15 of the Constitution. On this basis, a special provision for nominating women members to the Municipality by virtue of the provisions contained in the United Provinces Municipalities Act has been upheld by the Apex Court reversing the High Court judgment taking a contrary view. 9. Subsequently, in Toguru Sudhakar Reddy and Another v. The Govt. of Andhra Pradesh and others (AIR 1994 SC 544), the provision of the Andhra Pradesh Co-operative Societies Act providing for nomination by Registrar of two women members to certain class of societies has been upheld by the Apex Court applying Article 15(3) referred to above. Again in Govt. of Andhra Pradesh v. P.B.Vijaykumar and another (AIR 1995 SC 1648), after examining the scope of Article 15(3), the Apex Court has held that insertion of Clause 15(3) is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped, and that it is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and WP(C) Nos.30986 & 36028/2009 -6- women that Clause (3) is placed in Article 15 with the object to strengthen and improve the status of women. On this reasoning, the Apex Court held that the reservation of post for women is permissible under Article 15(3) of the Constitution. 10. The next judgment, which is relevant in this case, is Vijay Lakshmi v. Punjab University and others (AIR 2003 SC 3331), where the question considered was the validity of preference given to women for being appointed as Principal of the Government College for Girls. While, upholding the validity of the provisions providing for such reservation, in paragraph 10 of the judgment the Apex Court has surveyed all relevant previous judgments. Paragraph 10, to the extent it is relevant, reads as under:- “........... ............. DECISIONS DEALING WITH SIMILAR SPECIAL PROVISONS FOR WOMEN. a) Under S.497 of the Indian Penal Code, the offence of adultery can only be committed by a man and wife woman is not punishable as abettor. It was contended that the said section was violative of Arts.14 and 15 of the Constitution. This Court negatived the said contention of Yusuf Abdul Aziz v. The State of Bombay and Husseinbhoy Laljee (1954 SCR 930) and referred to Art.15(3) which provides that nothing in the Article shall prevent the State from making special provisions for women and held WP(C) Nos.30986 & 36028/2009 -7- thus:- “It was argued that Cl.(3) should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crimes. We are unable to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a licence to commit the offence of which punishment has been prohibited. Article 14 is general and must be read with the other provisions, which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in S.497 of the Indian Penal Code.” b) In Dattatraya Motiram More v. State of Bombay (AIR 1953 Bom.311) provisions of the Bombay Municipal Boroughs Act, 1925 which reserved seats for women in the election were challenged on the ground that they offended Arts.14, 15 and 16 of the Constitution. That contention was negatived by the Court and explaining the scope of Art.15, the Court (Chagla, C.J.) observed that it must always be borne in mind that the discrimination which is not permissible under Art.15(1) is a discrimination which is only on one of the grounds mentioned in Art.15(1). If there is a discrimination in favour of a particular sex, that discrimination would be permissible provided it is not only on the ground of sex, or, in other words, the classification on the ground of sex is permissible provided that classification is the result of other considerations besides the fact that the persons belonging to that WP(C) Nos.30986 & 36028/2009 -8- class are of a particular sex. The Court further held thus:- “........ Article 15(3) is obviously a proviso to Art.15(1) and proper effect must be given to the proviso. It is true that in construing a proviso one must not nullify the section itself. A proviso merely carves out something from the section itself, but it does not and cannot destroy the whole section. The proper way to construe Art.15(3), in our opinion, is that whereas under Art.15(1) discrimination in favour of men only on the ground of sex is not permissible, by reason of Art.15(3) discrimination in favour of women is permissible, and when the State does discriminate in favour of women, it does not offend against Art.15 (1). Therefore, as a result of the joint operation of Art.15(1) and Art.15(3) the State may discriminate in favour of women against men, but it may not discriminate in favour of men against women. ....” c) Dealing with the similar contentions, in B.R.Acharya and another v. State of Gujarat and another (1988 Lab IC 1465), the learned single Judge of the Gujarat High Court (R.C.Mankad, J.) observed thus:- “It is clear from the affidavit-in-reply filed on behalf of the respondent-State that there are certain posts which are meant only for lady officers. The institutions, where destitute women, unmarried mothers, etc. are kept, are headed by lady Superintendent. Since the post is of lady Superintendent, only lady officers are considered eligible for such posts. The petitioners, however, contended that they should not be discriminated only on the ground of sex. They should also be WP(C) Nos.30986 & 36028/2009 -9- considered eligible for promotion to such post. This claim made by the petitioners cannot be accepted. The institutions which are headed by Lady Superintendents are exclusively for women, and it is for the Government to decide as a matter of policy whether or not such institutions should be headed by only lady officers. Merely because at some stage there is a common cadre in which the officers of both the sexes are appointed, does not mean that all posts in the higher cadre must also be filled in by persons belonging to both the sexes. Having regard to the nature of duties to be performed, it is open to the State Government to decide that the institutions which are exclusively meant for women should be headed by only women or lady officers. The Government cannot be compelled to appoint male officers to head such institutions, if it does not consider it advisable to do so. If a special provision is made for women, the petitioners cannot made grievance that they have been discriminated against. Incidentally it may be pointed out that Art.15 of the Constitution of India prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Clause (3) of the said article however, provides “nothing in this article shall prevent the State from making any special provision for women and children.” I, therefore, do not find any substance in the petitioners' contention that they should be considered to be eligible for promotion to the post of Lady Superintendent.” d) In Union of India v. K.P.Prabhakaran ({1997} 11 SCC 638), WP(C) Nos.30986 & 36028/2009 -10- this Court held that the circular providing appointment on the post of Inquiry-cum-Reservation Clerks in four metropolitan cities of Madras, Bombay, Calcutta and Delhi to be manned only by women was not violative of Art.14 or 16 of the Constitution. e) Further, in Government of A.P. v. P.B.Vijaya Kumar ((1995) 4 SCC 520) the Court dealt with the similar question regarding validity of R.22(a) of the Andhra Pradesh State and Subordinate Service Rules providing reservation to the extent of 30% for women in the matter of direct recruitment to the post-governed by the said Rules. The Andhra Pradesh High Court declared the said Rules to be invalid. This Court while reversing the decision of the High Court held thus:- “....... Article 15 deals with every kind of State action in relation to the citizen of this country and every sphere of the activity of the State is controlled by Art.15(1) and therefore, there was no reason to exclude from the ambit of Art.15(1) employment under the State. At the same time, Art.15(3) permits special provisions for women. Both Arts.15(1) and 15 (3) go together. ........ This power conferred by Art.15(3) is wide enough to cover the entire range of State activity including employment under the State. This Court further held thus:- An important limb of this concept of gender equality is creating job opportunity for women. To say that under Art.15(3), job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this article. Making special provisions for women in respect of employment or posts under the State is an integral part of Art.15(3). This power conferred under Art.15 WP(C) Nos.30986 & 36028/2009 -11- (3) is not whittled down in any manner by Art.16.” f) Further, this Court in Toguru Sudhakar Reddy and another v. Government of A.P. and others (1993 Supp.(4) SCC 439) approved the reasoning of the High Court of Andhra Pradesh wherein it was held that reservation beyond 50% for the women was permissible under Art.15(3) of the Constitution and that ratio in M.R.Balaji v. State of Mysore (1963 Supp.(1) SCR 439) was only confined to the reservation under Arts.15(4) and 16(4) of the Constitution of India.” 11. It is important to note that in the above judgment, the Apex Court has referred to the judgment in Dattatraya Motiram More v. State of Bombay (AIR 1953 Bom. 311) rendered by a Division Bench of the Bombay High Court upholding Section 10 (1)(c) of the Bombay Municipal Boroughs Act and the Rules made thereunder providing for reservation of seats for women. 12. In addition to all these, the judgment of the Andhra Pradesh High Court in P.Sagar and others v. State of Andhra Pradesh, represented by Health Department, Hyderabad and others (AIR 1968 Andhra Pradesh 165) upholding the Rules for selection for admission to Medical Colleges in Andhra and Telangana Area, providing reservation of 30% seats for women, which was upheld as one permissible under Article 15(3), also needs to be noticed in this context. WP(C) Nos.30986 & 36028/2009 -12- The principles laid down in the aforesaid judgments are a complete answer to the contentions of the petitioners that the Constitution (73[rd] and 74[th] Amendment) Acts and the consequent provisions inserted in the Kerala Panchayat Raj Act, 1994 and the Kerala Municipalities Act, 1994 are offending by Article 15 of the Constitution of India. In the light of the principles laid down in the decisions noticed above, the challenge raised in these writ petitions has to fail. For these reasons, these writ petitions will stand dismissed. (ANTONY DOMINIC, JUDGE) jg