Bombay High Court
Kapoorchand Durgaprasad Gupta vs The Municipal Corporation Of on 30 November, 2011
Author: P.B.Majmudar
Bench: P.B.Majmudar, Mridula Bhatkar
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 ::: Downloaded on - 09/06/2013 17:58:09 ::: 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 ::: Downloaded on - 09/06/2013 17:58:09 ::: 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 ::: Downloaded on - 09/06/2013 17:58:09 ::: 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 ::: Downloaded on - 09/06/2013 17:58:09 ::: 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 ::: Downloaded on - 09/06/2013 17:58:09 ::: 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 ::: Downloaded on - 09/06/2013 17:58:09 ::: 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 ::: Downloaded on - 09/06/2013 17:58:09 ::: 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, ::: Downloaded on - 09/06/2013 17:58:09 ::: 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 ::: Downloaded on - 09/06/2013 17:58:09 ::: 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 ::: Downloaded on - 09/06/2013 17:58:09 ::: 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 ::: Downloaded on - 09/06/2013 17:58:09 ::: 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 ::: Downloaded on - 09/06/2013 17:58:09 ::: 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 ::: Downloaded on - 09/06/2013 17:58:09 ::: 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 ::: Downloaded on - 09/06/2013 17:58:09 ::: 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 had applied its mind properly, it would not have increased the reservation from "one-third" to "one-half" so far as City of Mumbai is ::: Downloaded on - 09/06/2013 17:58:09 ::: ssp 16 WP 1577 of 2011 concerned.
14. Considering the aforesaid judgment of the Supreme Court, it is crystal that the nature and purpose of reservation in connection with the local self-government is different from higher education and public employment. In view of the said judgment, Article 243-T form a distinct and independent constitutional basis and in a given case, such reservation can be given for a shorter period. The Supreme Court accordingly held the provisions of Articles 243-D(4) and 243-T(4) as constitutionally valid as it is in the nature of giving reservations in favour of backward classes.
15. The Supreme Court however, has observed that 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 in case of excessive reservation beyond 50%. The aforesaid amendment in the Constitution is held to be valid. In our view, the observations made by the Supreme Court in connection with the Scs/STs and other reserved category also equally applied so far as reservation of women is concerned, as amendment in the constitutional provision is similar in nature.
16. However, the question which is raised before us is that the reservation in question is excessive in nature and beyond 50%. It is required to be noted that as per the constitutional amendment, minimum ::: Downloaded on - 09/06/2013 17:58:09 ::: ssp 17 WP 1577 of 2011 one-third reservation is the mandate of the Constitution in every Municipalities for women and in a given case, if the legislation in its wisdom decides to increase such reservation, it is within the powers of the State Government to increase such a reservation. In our view, the legislation is empowered to enact the law increasing the minimum reservation provided in the Constitution upto appropriate percentage and such reservation can be increased upto 50%. If in a given case, if it is increased beyond 50%, perhaps one may complain that it is excessive and arbitrary. We are required to find out whether 50% reservation provided in any way can be said to be arbitrary, discriminatory and illegal.
17. In this connection, it is required to be appreciated that as per affidavit-in-reply of the State Government, the one-third reservation provided in the Constitution has resulted into women taking part more effectively in the affairs of the Municipal Councils and their contribution as an elected representatives has been found to be extremely encouraging.
On the basis of the total population, the State Government has ultimately decided to raise such reservation from one-third to one-half. Such increase is within the competence of the State Legislation and therefore, it cannot be said that if any enactment is made in this behalf, increasing the reservation from one-third to one-half is unconstitutional or the State Legislation has no power to increase such reservation. In a male ::: Downloaded on - 09/06/2013 17:58:09 ::: ssp 18 WP 1577 of 2011 dominated society, if the Legislation wisdom has decided to uplift the position of the women in the society and to put the women equally with the men, and if the Constitution provides for such upliftment, in our view, the law enacted by the State Legislation in providing reservation upto one-
half, cannot be struck down by this Court on the ground that it is arbitrary or violative of Article 14 of the Constitution of India. Though, in a given case, if reservation is increased more than 50% to larger extent, the Court may strike down such provisions on the ground of unreasonable and excessive reservation and it is hit by Article 14 of the Constitution.
18. In so far as the facts and circumstances of the case is concerned, it is required to be noted that general reservation provided to women candidates of SCs and STs will merge in the total reservation i.e. 50% provided to women and therefore, it cannot be said that the reservation is excessive or more than 50%, as today so far as the women quota is concerned, the reservation is fixed upto 50%, which will take care of SCs and STs also. It is not the case where over and above 50% reservation for women, additional reservation is also provided for SCs, STs and OBCs and infact, that quota is now merged in the total 50% reservation which is provided for women.
19. In so far as the argument regarding the State Government has not applied its mind is concerned, we are afraid that the said aspect is ::: Downloaded on - 09/06/2013 17:58:09 ::: ssp 19 WP 1577 of 2011 not in our domain. In a petition under Article 226 of the Constitution of India, when an Act enacted by the State legislation is challenged on the ground that there is no application of mind, the Court cannot strike down the said enactment on the said ground. The powers of the judicial review in such cases do not permit us to travel beyond the permissible limit. In the case of T.Venkata Reddy and Ors. V/s. State of Andhra Pradesh1 wherein it was held that the Ordinance framed by the Andhra Pradesh Government is not open to challenge on ground of non-application of mind and mala fides. In para No.14, the Supreme Court observed that "14. The above view has been approved by another Constitution Bench of this Court in A.K.Roy V/s. Union of India 2. Both these decisions have firmly established that an ordinance is a 'law' and should be approached on that basis. The language of clause (2) of Article 123 and of clause (2) of Article 213 of the Constitution leaves no room for doubt. An ordinance promulgated under either of these two articles has the same force and effect as an Act of Parliament or an Act of the State Legislature, as the case may be. When once the above conclusion is reached the next question which arises for consideration is whether it is permissible to strike down an Ordinance on the ground of non-application of mind or mala fides or that the prevailing circumstances did not warrant the issue of the Ordinance. In other words, the question is whether the validity of an Ordinance can be tested on grounds similar to those on which an executive or judicial action is tested. The legislative action under our Constitution is subject only to the limitations prescribed by the Constitution and to no other. Any law made by the Legislature, which it is not competent to pass, which is violative of the provisions in 1 (1985) 3 SCC 198 2 (1982) 2 SCR 272 ::: Downloaded on - 09/06/2013 17:58:09 ::: ssp 20 WP 1577 of 2011 Part III of the Constitution or any other constitutional provision is ineffective. It is a settled rule of constitutional law that the question whether a stature is constitutional or not is always a question of power of the Legislature concerned, dependent upon the subject matter of the statute, the manner in which it is accomplished and the mode of enacting it. While the Courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motive of the Legislature in passing a statute is beyond the scrutiny of courts. Nor can the courts examine whether the Legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for determination by the courts. An Ordinance passed either under Article 123 or under Article 213 of the Constitution stands on the same footing. When the Constitution says that the Ordinance making power is legislative power and an Ordinance shall have the same force as an Act, an Ordinance should be clothed with all the attributes of an Act of Legislature carrying with it all its incidents, immunities and limitations under the Constitution. It cannot be treated as an executive action or an administrative decision.
20. Where in a given case, there is a non-application of mind in enacting any legislation, is not a matter of judicial review and on that ground, it cannot be said that such provision is unconstitutional. The legislation in its wisdom has decided that looking to the need of the society and with a view to uplift and encourage, they may come forward and able to take active part in the functioning of local bodies, this Court cannot strike down the said enactment made on the ground that the ::: Downloaded on - 09/06/2013 17:58:09 ::: ssp 21 WP 1577 of 2011 legislation has not properly considered the data or basis before enacting the law. Ultimately on what basis the State legislation has deemed if fit to amend the law by increasing the reservation, is the subject matter which is in the domain of legislation and this Court cannot substitute its own views and strike down the legislation enacted on the ground that in view of the Court, it should have been 45% or it should have been 40%. In a given case, if the reservation is so excessive, the Court may interfere and strike down the said enactment.
20. However, today considering the need for encouraging the women's participating in the local bodies, if reservation has been extended upto 50%, in our view, it cannot be said that the reservation is so excessive that it may result arbitrariness and it may hit Article 14 of the Constitution of India. It is required to be noted that on behalf of the State Government, it is argued that there is no separate reservation for SCs/STs and OBCs women candidates and the 50% reservation provided for women merges with the increased reservation. But, if there is above 50% reservation, the Court may come to the conclusion that it is an excessive reservation. As pointed out earlier, the reservation provided for Scs/STs and backward classes of women is now not separately considered and it will form part of the reservation provided for women. Considering the same, it cannot be said that the amendment in the Act, is required to be ::: Downloaded on - 09/06/2013 17:58:09 ::: ssp 22 WP 1577 of 2011 struck down on the ground that it is violative of the constitutional provisions and hit by Article 14 of the Constitution. The State Legislation is competent to frame such legislation which is in consonance of the mandate of the Constitution. We failed to understand as to how the increased reservation will affect the basic structure of the Constitution. If equal participation of women is permitted which is the need of the day and which the legislation has considered in its wisdom, the law enacted by the State Legislature cannot be struck down on the ground that it is discriminatory and violative of Article 14 of the Constitution. It is not possible to accept the contention of the learned counsel for the petitioner that such reservation may be restricted to Municipalities in the rural areas such as Aurangabad, Nagpur, which are not the cosmopolitan cities and the women residing in the city of Mumbai do not require any further protection by way of such reservation. We do not have any data available with us by which we can come to the conclusion that every women residing in the Mumbai does not want any such reservation. It may be true that Mumbai being the cosmopolitan city, the percentage of qualified and efficient women maybe more as compared to other parts of the State, but we cannot take judicial notice that all the women residing in the Mumbai are so well educated and equipped that they do not need any such additional reservation in the reserved quota in the matter of ::: Downloaded on - 09/06/2013 17:58:09 ::: ssp 23 WP 1577 of 2011 municipal elections. It cannot be ruled out that even in the Mumbai, there are people who belongs to weaker section of the society and even most of the women are residing in slums or even in huts and they may not be that much equipped as compared to other women. This Court therefore, cannot take judicial notice that the women residing in Mumbai City is so refined that they do not need additional reservation i.e. 50% from one-third which is the minimum requirement of the Constitution. In any case, when the State legislation in its wisdom has prescribed 50% reservation, in our view, the enactment in the Act cannot be said to be arbitrary and discriminatory and that the said enactment is required to be struck down by this Court by exercising powers under Article 226 of the Constitution of India.
21. However, before parting with the judgment, we would like to say that it is for the State Government to periodically consider this issue of reservation and in future, if it is felt that 50% reservation provided today is required to be suitably reduced upto the constitutional requirement and it is for the State to consider this aspect as deemed fit.
This aspect is left to the wisdom of the State legislation. We accordingly do not find any merits in the petition, as according to us, the amendment made in the Mumbai Municipal Corporation Act, by raising the reservation from one-third to one-half, cannot be said to be arbitrary, excessive and ::: Downloaded on - 09/06/2013 17:58:09 ::: ssp 24 WP 1577 of 2011 discriminatory, which requires to be struck down by this Court in its extra ordinary jurisdiction under Article 226 of the Constitution of India. The writ petition is accordingly dismissed with no order as to costs.
( MRS.MRIDULA BHATKAR, J.) ( P.B.MAJMUDAR, J.)
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