Article 15(3) of the Constitution, which allows the State to make special provisions for women, operates as a proviso to Article 15(1), which prohibits discrimination on grounds of sex. Therefore, the State may discriminate in favor of women against men, but it may not discriminate in favor of men against women.

Misra, J.

1. This petition is directed against the constitution of Panchayat Samiti of the Hilsa Block, including the co-option, both of which are challenged as illegal and void. Learned counsel for the petitioners raised several grounds in the petition against the validity of the constitution of the Panchayat Samiti. In view, however, of certain decisions of this Court he has not thought it proper to urge them at this stage. He has confined his argument to the sole question as to whether the provision in Sec. 5 (1) (v) (b) of the Bihar Panchayat Samitis and Zila Parishads Act, 1961, is valid in view of the provisions of Article 15 of the Constitution of India. The above provision is to the effect that certain persons shall be co-opted in the prescribed manner by the members mentioned in Clauses (i) to (iv) of Sub-section (1). Clause (b) refers to two women residing in the Block, if women are not otherwise members. Learned counsel has contended that reservation of this right for women residing within the jurisdiction of the Block to have two of them co-opted goes against Article 15 of the Constitution, inasmuch as it amounts to discrimination against men. He has sought to develop his argument by giving an extreme instance of a case when other members of the Samiti also happen to be women. Then, adding two women by co-option in terms of Sub-clause (b) of Clause (v) of Sub-section (1) would be patently unjust and would amount to discrimination against the menfolk residing within the limits of a particular Block, wherefrom members are to be elected or co-opted for constituting the Panchayat Samiti of that Block. The argument, as it has been formulated, is obviously lacking in substance, inasmuch as Clause (b) itself says that two women residing in the Block are to be co-opted only if women are not otherwise members, which shows that if other members of the Panchayat Samiti are women, Sub-clause (b) will become nugatory and two more women cannot of necessity be co-opted in terms of this sub-clause.

2. A broader question, however, raised by learned counsel for the petitioners that political right cannot be conferred on women as such in the matter of constitution of the local body, such as the Panchayat Samiti, remains to be dealt with. Learned counsel has contended that this cannot be so, because it is not in consonance with Article 15(1) of the Constitution. Article 15(1) no doubt 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." Clause (2) provides that "no citizen shall on grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability restriction, or condition with regard to access to shops, public restaurants, hotels and places of public entertainment, or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public". Clause (3) provides; "Nothing in this Article shall prevent the State from making any special provision for women and children". Clause (4) runs thus: "Nothing in this Article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes". The relevant clauses, therefore, are (1) and (3). The scope of the application of these two clauses has been considered in a number of decisions. In the case of Yusuf Abdul Aziz V/s. State, AIR 1951 Bom 470, which was affirmed in appeal by the Supreme Court in Yusuf Abdul Aziz V/s. State of Bombay, 1954 SCA 398: (AIR 1954 SC 321), it was held that Sec. 497 of the Indian Penal Code making, on a charge of adultery, the male offender liable, but also providing that in such a case the wife shall not be punishable as an abettor is not ultra vires. The ground of dis