ssp 1 WP 1577 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1577 OF 2011 Kapoorchand Durgaprasad Gupta, age 45 years, of Mumbai, Indian Inhabitant, residing at 26, Natwarlal Ganatra Chawl, Sai Nagar Compound, M.G.Road, Kandivali (W), Mumbai – 400 067 .....Petitioner versus 1. The Municipal Corporation of Brihan Mumbai a Body Corporate, constituted under the provisions of Bombay Municipal Corporation Act, 1888, having their Office at Mahapalika Marg, Bombay – 400 001. 2. The State of Maharashtra through the Secretary, Urban Development Department, Manatralaya, Mumbai – 400 032. ..... Respondents Mr.N.H.Seervai, Senior Advocate i/by Sunil and Co., for the petitioner. Ms.P.A.Purandare, for respondent No.1. Ms.Uma Palsule-Desai, AGP, for respondent No.2. CORAM: P.B.MAJMUDAR & MRS.MRIDULA BHATKAR, JJ. DATE: 30 th NOVEMBER, 2011 ORAL JUDGMENT ( PER P.B.MAJMUDAR, J. ) :- 1. By way of this petition, the petitioner has challenged the amendment made in the Bombay Municipal Corporation Act, 1888, by amending Section 5A to the Bombay Municipal Corporation Act. By the ssp 2 WP 1577 of 2011 said amendment in sub-section 2(b), for the words “one-third” which is provided for the women reservation, it is added as “one-half”, meaning thereby that the reservation provided for the election to the Bombay Municipal Corporation Act, is increased from “one-third” to one-half” i.e. 50%. The said amendment in the Act, has been challenged by the petitioner on the ground that providing 50% reservation for the women is excessive, arbitrary and is against the democratic principles and may affect the basic structure of the Constitution of India, as everybody has equal right to take part in the election and by increasing the quota, the person from general category may not get same equal opportunity of contesting the election. The provisions is also challenged on the ground that providing excessive reservation may amount to arbitrary action on the part of the State Government and therefore, if an action is arbitrary the same is hit by Article 14 of the Constitution of India and therefore, such amendment is ultra vires to the Constitution of India and is required to be struck down by appropriate writ, order or direction under Article 226 of the Constitution of India, by restoring the earlier provisions by which “one- third” reservation was kept in the Act. 2. It is the say of the petitioner that in so far as the City of Mumbai is concerned, it is a cosmopolitan city and therefore, women residing within the Corporation limit of Mumbai City may not require that ssp 3 WP 1577 of 2011 much protection by providing additional reservation, as compared to other rural areas in the State of Maharashtra. On behalf of the petitioner, it is submitted that the legislation has not applied its mind on the relevant aspect of the matter while amending the Act and different yardsticks should have been adopted for different Municipal Corporations like Pune, Nagpur, Aurangabad, as compared to Mumbai. 3. The learned counsel for the petitioner vehemently submitted that by the impugned Act, the unequals are treated equally, which is discriminatory and the State Government has not applied its mind totally to the women population inhabiting in the limits of the Bombay Municipal Corporation. It is submitted that there is no reason to increase the reservation for women from “one-third” to “one-half” and if other reservations are included, such as SC, ST, OBC, it may travel upto 65%. It is also submitted that the said enactment is made without proper application of mind and it is not based on any scientific data regarding the total population of the women so far as the Mumbai Municipal Corporation area is concerned. It is submitted that the total percentage of reservation before the enactment of the Act and till the last election in 2007 stood at approximately 55 percent of the total number of seats or 125 out of 227 seats. 4. The main attack of the petitioner to the provisions of the ssp 4 WP 1577 of 2011 Act is on the ground of excessive reservation. It is submitted that in so far as the City of Mumbai is concerned, there was no necessity to increase the reservation for women and therefore, qua Mumbai and the area of Brihan Mumbai as covered and governed by the Mumbai Municipal Corporation Act, 1888, the reservation of seats for more than “one-third” is absolutely arbitrary as there was no necessity for providing excessive reservation so far as Mumbai city is concerned. Out of 227 seats, 114 seats are reserved for women. In any case, the Mumbai Municipal Corporation should not have equated with other rural areas of the State and on that basis, so far as the reservation of “one-half” to the Mumbai City is concerned, the same is required to be struck down as arbitrary, discriminatory and violative of Article 14 of the Constitution of India. It is submitted that it was not the intention of the framer of the Constitution that excessive reservation may be provided in a particular area in the matter of conducting elections of local bodies and in so far as the women in Mumbai city is concerned, they cannot be equated with the rest of the part of the State and therefore, the legislation should have considered this aspect before making applicable the same to the Corporation area of Mumbai is concerned. It is submitted that the reservation in question for women is not based on any cogent material. It is pointed out that the women are not at disadvantage position ssp 5 WP 1577 of 2011 as compared to men in the matter of contesting elections to the Municipal Corporations. It is submitted that such a excessive reservation should be treated as bad, as it may affect the basic structure of the Constitution of India. It is submitted that in a given case, if the reservation is increased to some extent, one may not take objection, but in the instant case, after considering the other reservations, it may go upto 66%, which is marginally more and it cannot be treated as reasonable and rational. It is submitted that the reservation is an exception and it is not a rule and even in Parliament and Assembly, reservation for women is upto 33% and no amendments have been made in the respective Acts, by increasing the same upto 50%. 5. The provisions of the said Act is accordingly challenged on the aforesaid grounds and it is prayed that the amendment made in the said Act, may be struck down as it is violative of Article 14 of the Constitution and it is arbitrary and the respondents may be directed that the election should be held on the basis of non-amended provisions i.e. by providing “one-third” reservation for women. 6. The petition has been resisted on behalf of the State Government by filing appropriate affidavit-in-reply. On behalf of the State government, the petition is opposed on the ground that it is not open to the Court to strike down any statutory provision on the ground that the ssp 6 WP 1577 of 2011 amendment has been made without application of mind or that it is arbitrary. On behalf of the State Government, it is submitted that the amendment is made in view of the mandate of the Constitution and more precisely as per the provisions of Article 243T of the Constitution of India. The learned AGP submitted that the reservation provided for election cannot be equated with the reservation as in service matter wherein the provisions of Article 16 of the Constitution of India is applicable. It is submitted that after considering the scientific data, the State Legislature in its wisdom thought it fit to increase the reservation from “one-third” to “one-half” with a view to uplift and encourage the participation of the women in the local bodies and to compete equally with the men and to bring the women in the mainstream of the society. It is submitted that the entry in politics has enhanced the self-esteem, confidence and decision making ability of the women. The object of the amendment is that the positive contribution made by the elected women representatives needs to be sustained by ensuring continued participation of women in the political process. The learned AGP submits that a need was felt for increasing such reservation from “one-third” to “one-half” that the said Act is amended. It is argued by the learned AGP that the reservation for women in the urban local bodies has ensured that women from all sections including weaker sections have started participating in the democratic process and the ssp 7 WP 1577 of 2011 elected women representatives have brought greater focus to the programmes concerned with women empowerment and have helped in addressing the issues having special impact on the lives of the women. It is denied that the situation and need for reservation of seats in Municipal Corporations throughout the State of Maharashtra is not uniform and the need for increase in reservation for women in the State belonging to various Municipalities is unequal and not similarly situated. It is also denied that the women residing in Mumbai are not in a disadvantageous position to that of women in small towns. It is denied that by providing such reservation, any fundamental right is violated and it cannot be said that the amendment is violative of any Articles of the Constitution. It is submitted that the State is duty bound to raise the position of women to that of men and that even as per the mandate of Article 15(3), the State is duty bound to raise the standard and position of women and children. It is also submitted that if the State discriminates in favour of women by providing reservation for them, it does not violate Article 15(1) and the joint operation of Article 15(1) and Article 15(3) permits the State to discriminate in favour of women against men but not to discriminate in favour of men against the women. It is further submitted that looking to the statistics and population of women in the State of Maharashtra, a need was felt that the women’s representation should be enhanced and to keep ssp 8 WP 1577 of 2011 parallel with the men, that the aforesaid amendment has been made. Lastly, it is submitted that the legislation in its wisdom has increased such reservation and in view of the same, this Court cannot strike down the aforesaid amendment on the ground that it is violative of Article 14 of the Constitution of India or that it is arbitrary and unconstitutional in any manner. 7. We have heard both the sides at great length. The question which arises for consideration is as to whether the amendment made in the Act, by which reservation for women has been increased from “one- third” to “one-half” is unconstitutional or it is violative of Article 14 of the Constitution of India. During the course of hearing, the learned counsel for the petitioner specifically submitted that it is not his submission that the State has no power to provide reservation by enacting the law or that such reservation is prohibited by any constitutional provision. He however, submits that his argument is restricted only qua excessive reservation and arbitrariness, as according to him, such amendment is arbitrary and violative of Article 14 of the Constitution. 8. In order to appreciate the rival submissions, a reference is required to be made to Article 15 of the Constitution of India, which reads as under : 15. Prohibition of discrimination on grounds of religion, ssp 9 WP 1577 of 2011 race, caste, sex or place of birth : - (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) 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 - (a) 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 general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children .......... 9. By way of Constitution (83rd Amendment Act, 2000), a special provision has been made in connection with the Municipalities. Article 243(T) of the Constitution, provides that : 243T. Reservation of Seats – (1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality. (2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or as the case may be, the Scheduled Tribes. (3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filed by direct election in every Municipality shall be reserved for women and such seats may be allotted by ssp 10 WP 1577 of 2011 rotation to different constituencies in a Municipality. 10. By the said Chapter IXA, which is added in view of Eighty Third Amendment Act, 2000, the special provision have been made regarding the Municipalities, which includes : - (a) ‘Committee’ means a Committee constituted under article 243S; (b) ‘district’ means a district in a State; (c) ‘Metropolitan area’ means an area having a population of ten lakhs or more, comprised in one or more districts and consisting of two or more Municipalities or Panchayats or other contiguous area, specified by the Governor by public notification to be a Metropolitan area for the purposes of this Part; (d) ‘Municipal area’ means the territorial area of a Municipality as is notified by the Governor; (e) ‘Municipality’ means an institution of self-government constituted under article 243Q; (f) ‘Panchayat’ means a Panchayat constituted under article 243B; (g) ‘population’ means to the population as ascertained at the last preceding census of which the relevant figures have been published. It also includes the reservation of seats, composition of wards, Committees etc. So far as the mandate of Article 243(T) is concerned, it provides compulsory reservation which should not be less than “one-third” of the total number of seats reserved for women belonging to the SC and ST and as per sub-clause (3) not less than “one-third” (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by ssp 11 WP 1577 of 2011 direction election in every Municipality shall be reserved for women. As per the Constitutional mandate, in every Municipality, minimum “one- third” seats are required to be reserved for women as per sub-clause(3) of Article 243(T). Based on the said aspect, initially in the Act, “one-third” seats were reserved for women candidates. Now, by the subsequent amendment, the same has been increased to “one-half”. 11. The statement of objects and reasons so as to bring the amendment in the said Act, which is dated 21st March, 2011, read as under : In pursuance of mandate of article 243T of the Constitution of India, the laws relating to the Municipal Corporations and Municipal Councils have been amended by the Maharashtra Municipal Corporations and Municipal Councils (Amendment) Act, 1994 (Mah.XLI of 1994) Accordingly, at present, one third of the total number of seats of the Councillors to be filed in by direct election in the Municipal Corporations and Municipal Councils are reserved for women, including the seats reserved for women belonging to Scheduled Castes, Scheduled Tribes and Backward Class of citizens. Similarly, one third of the offices of Mayor of the Municipal Corporations and President of the Municipal Councils are reserved for women under the rules made under the relevant Municipal laws. The reservations for women in the urban local bodies have ensured that women from all sections including from weaker sections have started participating in the democratic process. Further reservations for women as Mayors and Presidents in the urban local bodies have brought them into leadership positions. Such reservations has enhanced the social status of women in the society. At the same time, these women representatives have brought greater focus to the programmes concerned with women empowerment and ssp 12 WP 1577 of 2011 helped in addressing the issues having special impact on the lives of the women. The Government of Maharashtra, has therefore, decided to enhance the reservation for women from the existing one-third to one-half, by amending the Municipal Corporation and Municipal Council laws. The Bill seeks to suitably amend the Mumbai Municipal Corporation Act (Bom.III of 1888), the Bombay Provincial Municipal Corporations Act, 1949 (Bom.LIX of 1949), the City of Nagpur Corporation Act, 1948 (C.P. And Bearer II of 1950) and the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965 (Mah.XL of 1965) to achieve the above objectives. 12. Since the Constitution itself provides minimum one- third seats to be reserved for women, it is rightly argued by the learned counsel for the petitioner that he is not saying that one-third cannot be increased as it is only minimum requirement of the Constitution. However, his argument is in respect of excessive reservation and arbitrariness on the ground that such reservation has been made without application of proper mind. In order to substantiate his argument to the effect that the reservation is arbitrary and excessive, he has relied upon a decision of the Constitution Bench of the Supreme Court in the case of K.Krishna Murthy (Dr.) and Ors., V/s. Union of India and Anr.1 In the above case, the Supreme Court has considered the provisions of Articles 243(T) and 15(4) and 16(4) of the Constitution in connection 1 (2010) 7 SCC 202 ssp 13 WP 1577 of 2011 with the local self government institutions and bodies. Para No.60 of the said judgment reads as under : 60. There is no doubt in our minds that excessive and disproportionate reservations provided by the State Legislations can indeed be the subject matter of specific challenges before the Courts. However, the same does not justify the striking down of Article 243-D(6) and 243-T(6) which are constitutional provisions that enable reservations in favour of backward classes in the first place. As far as the challenge against the various State legislations is concerned, we were not provided with adequate materials or argumentation that could help us to make a decision about the same. The identification of backward classes for the purpose of reservations is an executive function and as per the mandate of Article 340, dedicated commissions need to be appointed to conduct a rigorous empirical inquiry into the nature and implications of backwardness. The Supreme Court has considered the quantum of reservation in connection with the backward class in local self government and it has been observed in para 64, as under : 64. In the absence of explicit constitutional guidance as to the quantum of reservation in favour of backward classes in local self-government, the rule of thumb is that of proportionate reservation. However, we must lay stress on the fact that the upper ceiling of 50% (quantitative limitation) with respect to vertical reservations in favour of Scs/STs/OBCs should not be breached. On the question of breaching this upper ceiling, the arguments made by the petitioners were a little misconceived since they had accounted for vertical reservations in favour of Scs/STs/OBCs as well as horizontal reservations in favour of women to assert that the 50% ceiling had been breached in some of the States. This was clearly a misunderstanding of the position since the horizontal reservations in favour of women are meant to intersect with the vertical reservations ssp 14 WP 1577 of 2011 in favour of Scs/STs/OBCs, since one-third of the seats reserved for the latter categories are to be reserved for women belonging to the same. This means that seats earmarked for women belonging to the general category are not accounted for if one has to gauge whether the upper ceiling of 50% has been breached. In para No.66, the Supreme Court has observed that - 66. Admittedly, reservations in excess of 50% do exist in some exceptional cases, when it comes to the domain of political representation. For instance, the Legislative Assemblies of the States of Arunachal Pradesh, Nagaland, Meghalaya, Mizoram and Sikkim have reservation that are far in excess of the 50% limit. However, such a position is the outcome of exceptional consideration in relation to these areas. Similarly, vertical reservations in excess of 50% are permissible in the composition of local self-government institutions located in the Fifth Schedule Areas. In the concluding paragraph, the Supreme Court observed that - 82. In view of the above, our conclusions are : (i) The nature and purpose of reservations in the context of local self-government is considerably different from that of higher education and public employment. In this sense, Article 243D and Article 243T form a distinct and independent constitutional basis for affirmative action and the principles that have been evolved in relation to the reservation policies enabled by Articles 15(4) and 16(4) cannot be readily applied in the context of local self- government. Even when made, they need not be for a period of corresponding to the period of reservation for the purposes of Articles 15(4) and 16(4), but can be much shorter. (ii) Article 243-D(6) and Article 243-T(6) are constitutionally valid since they are in the nature of provisions which merely enable the State Legislatures to reserve seats and chairperson posts in favour of backward classes. Concerns about disproportionate reservations should be raised by way of specific challenges against the ssp 15 WP 1577 of 2011 State Legislations. (iii) We are not in a position to examine the claims about overbreadth in the quantum of reservations provided for OBCs under the impugned State legislations since there is no contemporaneous empirical date. The onus is on the executive to conduct a rigorous investigation into the patterns of backwardness that act as barriers to political participation which are indeed quite different from the patterns of disadvantages in the matter of access to education and employment. As we have considered and decided only the constitutional validity of Articles 243-D(6) and 243-T(6), it will be open to the petitioners or any aggrieved party to challenge any State legislation enacted in pursuance of the said constitutional provisions before the High Court. We are of the view that the identification of “backward classes” under Article 243-D(6) and Article 243- T(6) should be distinct from the identification of SEBCs for the purpose of Article 15(4) and that of backward classes for the purpose of Article 16(4). (iv) The upper ceiling of 50% vertical reservations in favour of Scs/STs/OBCs should not be breached in the context of local self-government. Exceptions can only be made in the order to safeguard the interests of the Scheduled Tribes in the matter of their representation in Panchayats located in the Scheduled Areas. (v) The reservation of chairperson posts in the manner contemplated by Articles 243-D(4) and 243-T(4) is constitutionally valid. These chairperson posts cannot be equated with solitary posts in the context of public employment. 13. Relying on the aforesaid judgment and on the aforesaid premise, the learned counsel for the petitioner argued that no exceptional circumstances exist in the instant case and according to him, if the Legislature