DATTATRAYA MOTIRAM MORE Vs. STATE OF BOMBAY

JUDGEMENT

(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 and 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", and 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 in our opinion "appoint' ment" must be read 'ejusdem generis' with "employment". Further, the expression "under the State" makes it clear that the person holding office to which Article 16 (1) applies is a person who stands to the State as a subordinate would to a higher officer, or, in other words, there must be a relationship of employer and employee between the parson, holding office and the State or at least there must be an element of subordination to the State in the office contemplated by Article 16 (1 ). We are dealing here with councillors of a borough Municipality, and the question, is, can it be said of a councillor of a borough municipality that he is employed or appointed to an office under the State? The State, here, in view of Article 12, must mean a local authority. Would it be true to say of a councillor of a borough, municipality that ha is subordinate to the local authority, or that there is the relationship of employer and employee between him and the local authority? The sections of the Bombay Municipal Boroughs Act, to which attention has just been drawn, make it clear that a councillor is a part of the Municipality in which the government of the municipal borough has been vested. Therefore, far from being a person who holds office under tho local authority, a councillor is part of the local authority itself, and therefore, it is clear that the equality of opportunity which is required under Article 16 (1) is not in relation to an election to a local authority.