Back
IN THE HIGH COURT OF BOMBAY
Chagla, C.J. and Dixit Y.V. , J.
Appellants: Dattatraya Motiram More
Vs.
Respondent: State of Bombay
Special Civil Appln. Nos. 1653, 1855 and 1917 of 1952
Decided On: 18.11.1952
Counsels:
For Appellant/Petitioner/Plaintiff: R.B. Kotwal, B.G. Thakor, Rajani Patel, V.B. Patel and B.B. Patel, Advs.
For Respondents/Defendant: M.P. Amin, Adv. General, Little Co., G.S. Gypte, K.B. Sukthankar, K.S. Daundkar and D.V. Patel, Advs.
B.Competency of State Legislature - reservation for women - held, unless there is some provision in the Constitution itself which prohibits the State Legislature from providing for separate representation for women, the mere fact that the Constitution has not provided for any reservation for women in Parliament or in State Legislatures cannot be used as an argument against the competency of the State Legislature. ( para 5)
C.Discrimination - reservation of seats for women in local government - contention: discriminating in favour of women against men - Article 15 of the Constitution - reservation for women does not offend against Art 15(1) by reason of Article 15(3) - held, as a result of the Joint operation of Article 15(1) and Article 15(3) the State may discriminate in favour of women against men, but it may not - discriminate in favour of men against women. In this particular case, even if in making special provision for women by giving them reserved seats the State has discriminated against men, by reason of Article 15(3) the Constitution has permitted the Slate to do so even though the provision may result in discrimination only on the ground of sex. ( para 7)
D.Article 15(3) of the Constitution - contention: this article is only applicable to new future legislations to be enacted after commencement of the constitution - not tenable - the whole scheme of Article 13 is to make laws, which are inconsistent with Part III, void, not only if they were in force before the commencement of the Constitution, but also if they were enacted after the Constitution came into force. ( para 8)
E.Fundamental rights - violation - reservation a seat as councilor for women in Municipality - contention: violation of Article 14, 15 and 16 of the Constitution - Held, the provision made in the Municipal Boroughs Act for reservation of seats and the rules made by Government with regard to the reservation of seats for election to the Jalgaon Municipality are intra vires and they do not offend against any provision of the Constitution. ( para 11)
Extract of Judgment : It is said that even today women are more backward than men. It is the duty of the State to raise the position of women to that of men. It is rightly urged that it would be very difficult for women to be elected if there was no reservation in their favour, and Government may well take the view that women are very necessary in local authorities because the point of view of women must be placed before the councilors before they decide any question affecting the Municipality. ( Para 7)
Article 16 deals with a limited subject, the subject of employment or appointment by the State, "the State" used in the wide sense in which Article 12 defines that expression and art. 1C emphasises that the State in appointing or jn employing persons shall give equal opportunity to all citizens and will not make any person ineligible to hold an office or discriminate against him in respect of that office on ground of religion, race, caste, sex or place of birth. Article 15 is more general in its application and it deals with all cases of discrimination which do not fall expressly under Article 16. Our Constitution does not permit any discrimination at all, subject to, as has been pointed out, what is provided for women and children, and therefore although a case of discrimination may not fall under Article 16, it may still fall under Article 15(1) if it is not saved under Article 15(3). (Para 10)
(1) This is a petition by a resident of Jalgaon who is a tax payer of the Jalgaon Municipality and a voter in one of the wards, challenging certain provisions of the Bombay Municipal Boroughs Act, 1925, which reserves seats for women in the election to the Jalgaon Municipality. The relevant provision of the Act is Section 10(1)(c), which provides that the State Government shall, from time to time, generally or specially for each Municipality, make rules consistent with this Act (and we are quoting the relevant part of the Sub-section) prescribing the number and extent of the wards to be constituted in each municipal borough, the number of councillors to be elected by each ward and the number of seats, if any, to be reserved for the representation of women; and pursuant to this Sub-section Government have made rules reserving four seats for women out of the 35 elected seats for the Jalgaon Municipality, and the contention of the petitioner is that this reservation offends against Arts. 14, 15 and 16 of the Constitution, and, therefore, the provision with regard to reservation of seats for women is ultra vires.
(2) Before we look to the articles of the Constitution, it will be perhaps better if we look to the scheme of the Bombay Municipal Boroughs Act with regard to the election of councillors. Section 8 provides that in every municipal borough there shall be a Municipality, and every such Municipality shall be a body corporate and shall have perpetual succession and a common seal, and may sue and be sued in its corporate name through its Chief officer. Section 9 provides that every such Municipality shall consist of elected councillors nominated councillors. Section 30 provides that the municipal government of a municipal borough vests in the Municipality.
(3) Now, the provision with regard to reservation of seats for women is challenged principally on the ground that it offends against Article 10(1) of the Constitution. That article provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, and the contention of the petitioner is that a councillor holds an office, and equality of opportunity is denied to men in the election to that office. It is said that by reserving four seats for women, men have not equal opportunity with women in contesting those seats and being elected for these seats. It is pointed out that Article 16(1) advisedly does not refer to an office of profit as some of the other articles in the Constitution do, for instance, Articles 58(2), 59(2), 64, 66(4), 102(1), 191(1)(a) and 158(2). Therefore, it is urged that the fact that a councillor does not hold an office of profit should make no difference to the Court applying Article 16(1) to that office. The question that we have to consider is, what are the offices to which Article 16(1) was intended to apply. The marginal note of art. 16 is "Equality of opportunity in matters of public employment", although a marginal note of a section cannot be permitted to cut down or extend the scope and ambit of a section, the marginal note may be looked at in order to understand the drift of the section and to help the Court in construing the section. Therefore, if the marginal note is of any assistance at all, it is clear that Article 16 was intended to apply to oliices which were filled by public employment. The expression "office" by itself is rather a colourless expression. When a person holds office, he is given certain rights; he has to discharge certain duties and obligations and responsibilities; but from the mere fact that ho holds office it is not clear whether the office is a paid office, whether he stands in any relationship of subordination to any higher person, or whether there is a relationship of master and servant between him and someone else. The language used in Article 16(1) is "employment or appointment to any office under the State," and
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
