RAMCHANDRA MAHTON Vs. STATE OF BIHAR

JUDGEMENT

(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 Section 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. State, AIR 1951 Bom 470, which was affirmed in appeal by the Supreme Court in Yusuf Abdul Aziz v. State of Bombay, 1954 SCA 398: (AIR 1954 SC 321), it was held that Section 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 discrimination in favour of women on behalf of the appellant was negatived both by the Bombay High Court and by the learned Judges of the Supreme Court. It was held that Article 14 read with Article 15 validate the impugned clause of Section 497 of the Indian Penal Code. The ground in support of this view assigned by the learned Judges of the Bombay High Court was that the special right of women may be justified in India on account of the peculiar social position of women in this country. It is no doubt true that in the case of Nain Sukh Das v. State of Uttar Pradesh, 1953 SCR 1184: (AIR 1953 SC 384) there is a general observation that a by-election held on communal lines on the basis of separate electorates in a municipality would offend against Article 15(1) of the Constitution and an election held after the Constitution in pursuance of such a law subject to Clause (4) would be void. This seems to lend some support to the contention urged by learned counsel for the petitioners. The following observation in the judgment, referring to Article 15(1), is relevant;

(3.) That was a case, however, relating to an election based on communal and religious difference, for which no exception is provided in any of the clauses of Article 15, Clause (4) providing as it does for exemption being confined to socially and educationally backward classes of citizen and for Scheduled castes and Scheduled Tribes. In the case of women, however, the position is different. It is 110 doubt true that in some of the standard commentaries on Clause (3) of Article 15, reference has been made to the fact that Clause (3), in so far as it is an exception to the rule against discrimination, should be confined to justifiable discrimination in favour of women to the extent that it rests upon physical structure, performance of maternal functions and physical well-being, but it would not justify discrimination in favour of women in respect of political rights, for political backwardness is not a condition peculiar to women in India and large sections of the male population are equally backward. In my opinion, however, the view of the learned author, as opposed to the view of the High Court of Bombay in the case not only of Yusuf Abdul Aziz, AIR 1951 Bom 470 but also of Dattatraya v. State of Bombay, AIR 1953 Bom 311, does not stand on a sound footing. It has been laid down in that decision that Article 15(3) is a proviso to Article 15(1), and full effect must be given to the proviso. The proper way to construe Article 15(3) is that whereas under Article 15(1), discrimination in favour of men only on the ground of sex is not permissible, by reason of Article 15(3) discrimination in favour of women, is permissible, and when the State does discriminate in favour of women, it does not offend against Article 15(1). Therefore, 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. The question may be looked at from another angle. Clauses (1) and (3) of Article 15 may be read together like this that whereas under Clause (1) the State is prohibited from passing any law, which will be in the nature of discrimination against any citizen on grounds of religion, race, caste, sex, place of birth or any of them, it does not prohibit the State from making any special provision for women and children. Conferment of the right of co-option referred to in this case cannot but be regarded as a special provision, and I am unable to see why the plain words of Clause (3) of Article 15 should not be given their full effect. So long as Clause (3) stands as it is, there is no scope for the argument that any special right conferred upon women in the special circumstances prevailing in this country can be struck down as going against Clause (1) of Article 15. I am satisfied, therefore, that the opinion expressed by the learned Judges of the High Court of Bombay must be accepted as laying down a correct proposition of law in interpreting Clauses (1) and (3) of Article 15 as standing together, Clause (3) operating in the nature of a proviso to Clause (1).