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5. Mr. Rajendra Tiwari, learned Senior Counsel, Mr. J.K. Lodhi and Mr. Mohammed Kasim, learned Counsel for the petitioners assailing the constitutional validity of the aforesaid provision have submitted that by incorporation of the aforesaid provision by which the concept of quorum, in a different way, has become an imperative and categorical mandate, the basic conception of democracy is destroyed and the democracy being an essential feature of the Constitution, the provision can not withstand scrutiny when tested on the anvil of the Constitutional provisions. It is submitted by them that the provision is not protected under Articles 15(3) and 15(4) of the Constitution of India inasmuch as the same is not in the realm of protective discrimination but does tantamount to a discrimination which is destructive, non-affirmative and hence, impermissible. It is further urged by them that though the power of self-governance has been conferred on the Gram Panchayat under the provisions of the Constitution but the said provisions would neither engulf nor encompass in its denotative contour or connotative expanse the concept of quorum of this nature. It is also argued by the learned Counsel for the petitioners that the provision if allowed to stand, would be contrary to the wholesome concept of welfare state, being totally unworkable as the conception of unworkability is inherent in the provision itself. It is further proponed that even if it is regarded as a special provision it is unreasonable and irrational and is totally inconsistent with the interest of community or society as a whole and as a logical corollary invites the frown of second limb of Article 14 of the Constitution. It is also argued that if the provision is dissected and analysed it is a negation of the spirit of the Act and instead of subserving the object of the Act subverts it by creating a classification at the level of quorum which has no intelligible differentia and the avowed purpose which it is supposed to achieve, hence is fundamentally and basically self- defeating.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) 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 and the Scheduled Tribes."

There can be no cavil over the proposition that the said Constitutional provisions enable the Legislature to make special provisions for women, Scheduled Castes and Scheduled Tribes and permit protective discrimination, but the said provisions have to stand the test of reasonability and rationality. In this context we think it condign to notice few decisions. In the case of Toguru Sudhakar Reddy and Anr. v. The Govt. of Andhra Pradesh and Ors., AIR 1994 SC 544 the Apex Court declared the provision in the A.P. Co-operative Societies Act, 1964 wherein power was conferred on the Registrar to nominate two women members who had the right to vote as constitutional.

10. In the case of Dr. Preeti Srivastava and Anr. v. State of Madhya Pradesh and Ors., AIR 1999 SC 2894, it has been held as under:--

"...... While the object of Article 15(4) is to advance the equality principle by providing for protective discrimination in favour of the weaker sections so that they may become stronger and be able to compete equally with others more fortunate, one can not also ignore the wider interests of society while devising such special provisions. Undoubtedly, protective discrimination in favour of the backward, including Scheduled Castes and Scheduled Tribes inasmuch as in the interest of society as the protected groups. At that same time, there may be other national interests, such as promoting excellence as the highest level and providing the best talent in the country with the maximum available facilities to excel and contribute to society, which have also to be borne in mind. Special provisions must strike a reasonable balance between these diverse national interests. Moreover, study and training at the level of specialities and super-specialities in medicine involve discharging the duties attached to certain specified medical posts in the hospital attached to the medical institutions giving education in specialities and super-specialities."

26. There is subtle and fine distinction between protective discrimination and a protective discrimination that destroys a larger public interest or social interest and also defeats the fundamental requirement of the body polity. The proponement that the said provision is in consonance with Articles 15(3) and 15(4), in our considered opinion, is neither correct nor sound inasmuch as the concept of reservation to that extent would not be within the ambit and sweep of protective or affirmative discrimination. We are disposed to think so as there is reservation in respect of seats and a further reservation would tantamount to reservation within reservation. We may hasten to clarify that on he first flush the provision may not appear to be reservation because it has been grafted and woven into the concept of quorum but on an deeper probe and keener scrutiny it becomes patent that there is reservation in the quorum inasmuch as without the presence of the reserved categories of persons the 'Gram Sabha' becomes non-functional. It is so, as no alternative has been provided under the Act. An argument may be advanced that the empowerment of the women is a necessity and the same has to be done keeping in view the historical and cultural background in which women have led their lives for centuries, and keeping in view that they belong to the weaker sections of the society a balance has to be struck by conferring more power on them. It may be felt that to endow women with more power and proceed for affirmative discrimination as far as Scheduled Castes and Scheduled Tribes are concerned, is the call and warrant of the day and should not be deferred till tomorrow. It may be urged that in a progressive democracy such a recognition is sine qua non and the instant provision achieves it but, a pregnant and significant one, that the weaker sections have been protected at the level of the Panchayat as per reservation of seats as is demonstrable from the provisions of the Constitution and to put them in a further smaller group they have the latent potentiality as well as patent power to act in contra democratic way. It would not be within the ambit and sweep of special provision which would stand the test of reasonableness and non-arbitrariness which is a part of the Article 14 of the Constitution as that would be farther than the Constitutional latitudes. The conception of mini reservation in fact, destroys the principle of affirmative protection as it has proceeded to such an extent by which if we are permitted to say, a small fish in a big pond threatens the big fishes that it has the sharpness to destroy them.