Govt opposes plea for immediate implementation of women’s quota

The Indian government has opposed a petition to implement a law reserving one-third of seats in the Lok Sabha and state assemblies for women, contending that it does not argue how the constitutional amendment violates the basic structure of the Constitution. The petition seeks the implementation of the law before the 2024 general elections. The government has requested two weeks to respond to the petition. The Supreme Court has agreed to issue a formal notice to the government and has adjourned the matter for three weeks.

 The Union government on Monday opposed a petition demanding immediate implementation of the 2023 Nari Shakti Vandan Adhiniyam, so that one-third of the seats in Lok Sabha and state assemblies are reserved for women before the 2024 general elections, contending that the plea failed to argue how the constitutional amendment fell afoul of the basic structure of the Constitution.

On September 18, the Centre introduced the Constitution (128th Amendment) Bill 2023 dealing with 33% women reservation in Parliament and state assemblies that was approved by both the Lok Sabha and the Rajya Sabha (Getty Images/iStockphoto)

Raising preliminary objection to the maintainability of the petition, the Centre told a bench of justices Sanjiv Khanna and Dipankar Datta that the public interest litigation (PIL) questioning the constitutional amendments has not made any contention to demonstrate that the inclusion of census and delimitation as pre-conditions to the implementation of the 33% quota for women breached the doctrine of basic structure – a judicial check on Parliament’s power to amend the Constitution.

“Learned solicitor general is appearing in this matter. He has a preliminary objection. There is a challenge to constitutional amendment but no pleading on basic structure is there in this petition. They are also seeking some interim orders, but we have the preliminary objection to the maintainability,” advocate Kanu Agrawal, assisting solicitor general (S-G) Tushar Mehta in the case, submitted. Mehta was not present during the brief hearing.

At this, the bench asked for an affidavit from the Centre, detailing its objections to the PIL filed by Congress leader Jaya Thakur in October. While Agrawal said they would need two weeks to submit the written reply, senior counsel Vikas Singh, appearing for Thakur, pressed for an expeditious hearing. “General elections can be announced anytime soon. Please, hear it immediately after two weeks or the whole purpose of filing this petition will be defeated,” said Singh, adding there is also a request for an interim order.

Singh also questioned why women reservation is made amenable to scientific data from census when the same was not done when one-third reservation was provided to women in local body polls for the first time in 1992.

Responding, the bench said that it would not want to comment on the plea for an interim order without looking at the Centre’s response. “We don’t want to say anything about the interim order today. Let the reply come first,” it told Singh.

As the court proceeded to adjourn the matter by three weeks to let the Centre submit its reply, senior counsel Mahalakshmi Pavani, who also represented Thakur, requested the bench to issue a formal notice to the Union government.

Accepting her request, the bench recorded in its order that the formal notice on behalf of the Centre was being waived by Agrawal as he appeared for the government.

The doctrine of basic structure was evolved by a 13-judge bench of the Supreme Court in its historic 1973 judgment in the Kesavananda Bharati Case, laying down that Parliament can amend any part of the Constitution but cannot tinder with its basic structure – a check on the executive and the legislative powers of the government. The verdict established firmly that Parliament does not enjoy unfettered power to amend the Constitution and that there are certain basic features that are beyond the scope of alterations. It clarified that Parliament is authorised to amend any part of the Constitution, including the fundamental rights, but at the same time, such amendments cannot remain immune from the power of the constitutional courts to exercise its power of judicial review to scrutinise all amendments and not just those affecting fundamental rights.

While the Constitution bench in the 1973 judgment identified some of the features, including supremacy of the Constitution, unity and sovereignty of India, secular character of the Constitution and separation of power as the basic structure of the Constitution, the court clarified the list is not exhaustive. Later, the top court added some more features such as rule of law, judicial review and free and fair elections to the list of basic structure.

On September 18, the Centre introduced the Constitution (128th Amendment) Bill 2023 dealing with 33% women reservation in Parliament and state assemblies that was approved by both the Lok Sabha and the Rajya Sabha. The Nari Shakti Vandan Adhiniyam, as it is called, got the Presidential assent on September 28.

By way of constitutional amendments, the law provided that implementation of the 33% quota will be subject to the next census and the subsequent delimitation exercise – redrawing of Lok Sabha and assembly constituencies – so as to ascertain the particular number of seats to be earmarked for women candidates. It added that the quota for women in Lok Sabha and assemblies will continue for 15 years although Parliament can later extend the benefit period.

Congress leader Thakur approached the Supreme Court in October for immediate implementation of the 33% women reservation law and sought annulment of the provision in the Act making such reservation subject to the conduct of census and the subsequent delimitation exercise.

The petition contended that the object of granting reservation to women cannot be defeated by allowing it to come into effect only after the exercise of delimitation is carried out and based on the relevant figures, the next census is carried out.

The petition challenged the words – after the delimitation is undertaken for this purpose after the relevant figures for the first census – and sought an order from the top court to declare this “clog” to be void ab initio.

The petition argued that there is no requirement for carrying out census or delimitation to implement the 33% women quota law as the proportion is fixed at 33% of the existing seats. The petition presented figures of representation of women in assemblies across the state to show that only 4% women in the country get representation in elections.

“Despite its publication, the object of the Act cannot be withheld for uncertain period,” said Thakur, who is general secretary of the women wing of Madhya Pradesh unit of Congress party.