Difficult For Court To Order Immediate Implementation Of Women's Reservation, Says Supreme Court

A bench of Justices Sanjiv Khanna and SVN Bhatti was hearing a public interest litigation (PIL) petition filed by Congress leader Jaya Thakur, claiming that a constitutional amendment, once passed with overwhelming support in a special session called for the purpose, cannot be withheld.

During today's hearing, Senior Advocate Vikas Singh, appearing for the petitioner, argued that while a census was required before introducing backward classes quota since the Constitution required the government to first determine the adequacy of their representation, such an exercise was wholly unnecessary for reserving seats for women in the state and union legislatures. "But, what has the census got to do with the women's reservation bill?" the senior counsel asked, before adding that the clause deferring the implementation of the constitutional amendment ought to be struck down as arbitrary.

The bench, however, expressed its disinclination to strike down the offending clause. "It will be very difficult for us to do that. We'll be virtually legislating then," Justice Khanna told the senior counsel. The judge also added, "This is a very good step. This has already been examined in a matter."

"There's a pending matter," Singh pointed out at this juncture, referring to a 2021 plea by the National Federation of Indian Women (NFIW) that is currently being heard by the apex court. In this plea, the organisation has sought the reintroduction of the women's reservation bill, which, despite being passed by the Rajya Sabha in 2010, lapsed after the dissolution of 15th Lok Sabha since it was not tabled in the lower house. One month before the the union cabinet approved the tabling of the Constitution (One Hundred and Twenty-eighth Amendment) Bill, 2023, the Justice Khanna-led bench had pulled up the central government for not making its stand clear on the issue of women's reservation, asking why it had not filed a response to NFIW's public interest litigation petition. 

"You have not filed a reply. Why are you shying away? Why have you not filed a reply? Say you want to implement it, or not. It’s too important an issue to be thrown on the backburner. It’s too important. It concerns all of us," the bench had told the Centre's law officer during the hearing in August. 

Today, while refusing to issue notice in Thakur's petition, the top court agreed to hear it with NFIW's plea. In parting however, Justice Khanna observed, "We have understood your argument. You're saying census is not required. But there are a lot of issues. Seats will have to be first reserved..."

Singh protested. "This is not mentioned in the constitutional amendment. There's not a whisper..."

"May not be so, but quotas are always fixed on that basis. This is implemented by the rules. We are not dismissing this, but will take it up along with the other matter," Justice Khanna replied, adjourning the hearing until November 22. 

Background

On September 29, President of India Droupadi Murmu gave her assent to the women’s reservation bill that passed both houses of parliament with broad bipartisan support earlier that month. The Constitution (One Hundred and Sixth Amendment) Act, 2023 – which will come into effect after a delimitation exercise is conducted following the next census – seeks to reserve one-third of seats for women in the Lok Sabha, the upper houses of the state legislatures, and the Delhi legislative assembly. Not only this, the act also introduces horizontal reservation for women from scheduled castes (SC) and scheduled tribes (ST) within the women’s quota.

The amendment act has modified one constitutional provision, i.e., Article 239AA (special provisions with respect to Delhi), and inserted three new articles namely Articles 330A, 332A, and 334A – the first two seeking to introduce 33 per cent reservation in Lok Sabha and the state legislative assemblies respectively. Article 334A contains a sunset clause declaring that this affirmative action policy will come to an end after 15 years. Not only this, but the article also clarifies that women’s reservation will be granted only after an exercise of delimitation is undertaken for the purpose following the first census after the enactment of the act.

During the debate in the two houses on the women’s reservation bill, opposition leaders, even while broadly supporting the legislation, questioned the clause that sought to defer its implementation and urged the union government to dispense with the requirement of conducting a census and a delimitation exercise first. Last month, Congress leader Dr Jaya Thakur also filed a public interest litigation praying for a declaration that this clog was ‘void-ab initio’ and seeking the immediate implementation of the Constitution (One Hundred and Sixth Amendment) Act, 2023

Thakur’s plea states that the constitutional amendment must not be withheld for an uncertain period, especially because the bill was passed in a special session specifically called for this purpose and had been passed with overwhelming support by both houses of the parliament. The writ petition states –

“In the democratic process, all corners of the society’s representation is required, but for the last 75 years, there has been no adequate representation of women in the parliament as well as in the state legislatures. This has been a long pending demand for decades and the parliament rightly passed the above act for 33 per cent reservation. The clog that the said act will be implemented “after the delimitation is undertaken for this purpose after the relevant figures for the first census” may kindly be declared as ‘void-ab-initio’, for immediate implementation of the 33 per cent women reservation.”

Case Details

Jaya Thakur v. Union of India & Anr. | Writ Petition (Civil) No. 1181 of 2023