27 Mar 2010

50 percent reservation for women excessive: High Court

While our respected Parliamentarians are busy supporting (and countering) reservation of fifty percent for women in the Parliament and State Assemblies, the Rajasthan High Court in a recent decision has already declared fifty percent reservation for women in the local municipalities. While the reservation in the Rajasthan municipalities was of one-third for women, it was increased to one-half by amendment, which was challenged in the High Court. A division Bench of the High Court, headed by the Chief Justice himself agreed that the reservation was excessive and no justification was provided to this regard by the Government.

The Petitioner had argued before the High Court that "Reservation of women has been raised from one-third to one-half of the total seats meant for Scheduled Castes, Scheduled Tribes, Backward Classes and even for open category. It is contended that without ascertaining even proportionate population of women, amendment has been made to provide reservation to women to the extent of 50% of the total seats. Taking note of the aforesaid reservation to women to the Scheduled Castes, Scheduled Tribes and Backward Classes comes out to be more than 50% of the total seats, rather it comes out to be more than 75% of the total seats, thus the same is excessive. On account of excessive reservation, ordinary citizen is deprived to contest election, which cannot be said to be in consonance with the spirit of the Constitution of India. The Government is having no material to justify women reservation in excess to one-third of the total seats earlier reserved. No survey was conducted before the amendment. Referring to the proportionate population ratio between male and female it was urged that total population of male is more than the population of the female, thus reservation in favour of the women/female to the extent of 50% of seats would disproportionate to the population of female, thus, it is a case of excessive reservation."

The High Court, setting aside 50 percent reservation, declared as under;

... we have to keep in mind that while providing reservation to any caste or category, it should not be an excessive reservation. The respondents have not come with any material to justify amendment in sub-section 6 and 7 of the Act and consequential amendment in the Rules. They have not even furnished the details of the proportionate population between male and female in the State of Rajasthan. In view of aforesaid, the State has supported the amendment only based on arguments. 
Since reservation to Scheduled Castes and Scheduled Tribes has been kept limited in proportion to the population, we have to keep in mind the aforesaid legal position to adjudicate the issue raised herein. One-third of the total seats have been reserved for women as per constitutional provision itself. It is no doubt true that over and above one-third of the total seats, women can be given reservation but then it should not be out of proportion. The reservation to any category and caste should be rational and not excessive. The Hon’ble Supreme Court, while considering the matter in the case of Indra Sawhney (supra) put a rider that reservation should not exceed to 50% in ordinary case. The aforesaid judgment was in reference to Article 16 of the Constitution of India thus cannot be applied as such, however the ratio of the aforesaid judgment can be looked into for judging the issue as to whether there exist excessive reservation in favour of women or not. Article 14 of the Constitution guarantee right of equality among the citizens. If for example, total proportionate population ratio between male and female is 55% and 45% respectively in any State then reservation of 50% seats for women candidates in proportion to population would be more than 50%. 
In the present case, respondents have not given proportionate population ratio to justify their action and to show that they have not provided excess reservation to the women. In absence of such figures, we are constrained to give a specific opinion on the aforesaid issue. However, keeping in mind provisions of Article 243 T of the Constitution as well as Articles 14 and 15, we are of the view that if proportionate population of the women is less than the male then reservation of 50% seats for women is excessive and, in that case, Article 14 of the Constitution is violated, hence, amended provisions, as challenged, deserve to be struck down being ultra vires.

1 comment:

Bhagwad said...

A good post. 50% reservation is definitely too high. It's a good thing our court system is sufficiently independent to do the right thing instead of the popular thing.

The recent SC obervations on pre-marital sex for example were priceless! Of course, it shouldn't even have come up in the first place, but when it did, the right thing happened.