ASHOK KUMAR MALPANI Vs. STATE OF M P

JUDGEMENT

(1.) In this batch of writ petition, the centroidal issue that has been sought to be assiduously pyramided with immense gloss is that the amendments brought into force in the M. P. Municipal Corporation Act, 1956 (in short 'the 1956 Act') and the M. P. Municipalities Act, 1961 by the M. P. Nagar Palika Vidhi (Sanshodhan) Adhiniyam, 2007 as a consequence of which the reservation in favour of women has increased from 33% to 50%.in Municipal Corporations and Municipalities in the State of M. P. is unsustainable being violative of Arts. 14 and 15( 1) of the Constitution and as a sequitur thereof, Rule 3 of the Madhya Pradesh Municipalities (Reservation of Wards for Scheduled Castes, Scheduled Tribes, Other Backward Classes and Women) Rules, 1994 (for brevity 'the 1994 Rules') as amended vide notification dated 3-9-2007 is also unconstitutional. The aforesaid structure of the edifice has led to the prayer declaring the statutory provisions as ultra vires and quashment of the consequent notifications and orders. In spite of various range of asseverations of facts in the writ petitions, the learned counsel for the petitioners restricted the relief to the constitutional validity of the provisions pertaining to reservation for women and, therefore, the factual matrix as regards the said spectrum shall only be expo sited. For the sake of clarity and convenience, the facts in W. P. No. 8122/2009 are uncurtained and unfurled herein.

(2.) In the petition, the contents of Section 11 of the 1956 Act have been narrated and special reference has been made to sub-sections (3) and (4) indicating that prior to the amendment Act No. 16 of 2007, the said subsections provided reservation of one-third of total number of seats for women belonging to each category. It is set forth that Section 11 provides compartmentalised reservation for Scheduled Castes. Scheduled Tribes, Other Backward Classes and Women. The reservation made in favour of the women candidates is vertical inasmuch as the same is dependent on the final number of elected candidates in the election. In order to make special provisions for women, the Legislature had earlier provided reservation of one- third seats for candidates belonging to women category which was sufficient and adequate. Apart from the seats reserved for women, women also contest election from unreserved seats and succeed. There are instances where in the elections of local bodies, women candidates conteste d in unreserved seats and got elected against male candidates which goes a long way to show that reservation made prior to the amendment ensured proper and adequate representation of women in the municipal corporation. It is pleaded that in spite of the aforesaid, in subsections (3) and (4), in place of the words "not less than 1/3rd", the words ''as nearly as possible 50%" have been substituted. In view of the amendments carried out by the notification dated 3-9-2007, the Rules have been amended.

(3.) It is contended that the amendment in sub-section 11(3) and (4) and the corresponding amendment carried out in the rules creates a discrimination on the ground of sex which is impermissible under Arts. 14 and 15(1) of the Constitution of India. Though Art. 15(3), empowers the State to make special provisions for women, yet the said provision cannot be stretched to such an extent that it discriminates other classes in an arbitrary manner. It is put forth that the increase of reservation from one-third to 50% operates as discrimination as such a reservation is vertical and when counted along with the reservation meant for other classes, the total percentage of reservation would come to 75% which is contrary to the law laid down in Indra Sawhney and others v. Union of India and others, 1992 Supp (3) SCC 212. It is urged that the success of women candidates in elections reflects in a crystallized manner that the women candidates do not suffer any disparity which requires the further crutches of reservation. The increase of reservation from 1/3rd to half is not founded on any scientific or systematic study and there is no material to show that women need reservation to that extent for ensuring adequate representation in local self government. Such a reservation, it is contended, is irrational, arbitrary and smacks of total discrimination violating the basic facet of Article 14 of the Constitution.