'Restricts Women From Contesting From General Wards": Punjab & Haryana HC Issues Notice On Plea Challenging Haryana Panchayati Raj (Second Amendment) Act

A Division Bench led by Chief Justice Ravi Shanker Jha has issued notice on the petition filed by two women members of Zila Parishads in Haryana.

The Petitioners have averred that the impugned Act restricts women from contesting election from general ward, thereby restricting the participation of women by 50%.

It may be noted that the impugned Act has inter alia amended Sections 9, 59 and 120 of the Haryana Panchayati Raj Act, 1994 which deal with the reservation of seats in Gram Panchayat, Panchayat Samiti and Zila Parishad.

As per the impugned amendment, the wards in Gram Panchayats, Block Samitis and Zila Parishads are to be sequentially numbered and the even numbered wards are to be reserved for women candidates and the odd numbered wards are to be kept in other category where "persons other than woman" may contest

"Consequently, there are no general or open category seats. As a result of the impugned amendment, women electors who are otherwise eligible to contest elections to the Panchayati Raj institutions have been restricted to contest only from the wards which are specially reserved for women. Consequently, woman candidates such as the petitioners who wish to contest elections to these institutions shall not be able to file their nomination papers from odd numbered wards which should have been general wards that are open for all," the Petitioners contend.

Reliance is placed on the Supreme Court's decision in Bihari Lal Rada v. Anil Jain (Tinu), (2009) 4 SCC 1, which dealt with the question of whether a candidate who got elected from a seat reserved for Backward Class could be elected as President, where the post of President was to be filled by members belonging to general category.

While upholding the election, the Top Court had observed,

"The 1973 Act makes available the minimum number of seats to the Scheduled Castes and Backward Classes by way of reservation in proportion to their population. This does not prevent the Scheduled Castes and Backward Classes in getting themselves elected from the unreserved seats on their own merit."

The Petitioner also argued that the scheme of reservation laid down in the impugned amendment is manifestly illegal and is against the spirit and provisions of Part IX of Constitution and the Haryana Panchayati Raj Act 1994. Article 243-D of the Constitution provides for reservation of not less than 1/3rd seats for women in Panchayati Raj institutions.

"The rationale behind the reservation of not less than 1/3rd seats for women was to increase the participation of women in the Panchayati Raj institutions and not to restrict the same as has been done by the impugned amendment," the plea states.

Interestingly, it is pointed out that in effect, the amendment seeks to provide reservation to men in odd numbered wards, by using the qualification "persons other than woman".

"It is trite that reservation for males is impermissible under our Constitution and legal system. Similarly the restriction creates gender bias and discrimination for women who being the other sex are to be given equal and fair treatment in terms of Article 15 of Constitution. An interpretation of the term "persons other than woman", as used in the impugned amendment, leaves no room of doubt that the said terms creates another class of persons who are other than women," the Petitioners argued.

The plea urges the High Court to quash the impugned amended provisions to the extent that the women candidates have been restricted from contesting elections from general wards, as patently illegal, discriminatory, unconstitutional being violative of Article 14, 15 & 243-D of the Constitution of India.

It is also prayed that the Respondents be directed to make necessary amendments, so as to allow the petitioners to contest from odd numbered wards also, in the event they satisfy the 29 eligibility criteria, as laid down in the Haryana Panchayati Raj Act, 1994.

In the interim, the Petitioner has urged the Court to stay the implementation of the impugned amendment.

The Petitioners are represented by Advocates Deepkaran Dalal, Amandeep Singh and Harmanjit Singh.

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