4.1. The 5th Amendment: The Moon Cinema Case
Constitution has a body as well as a psyche. Physically it is the accumulation of fundamental rules but psychologically it is the harbor of aspirations core to the nationhood. This is a sacred charter requiring sacred allegiance and defence to the last breath. Unfortunately ours was invaded and tormented erratically for selfish ends ‘both during the time when it was functioning and during the time when it was not allowed to function.( MH Rahman, Our experience with Constitutionalism, BJL 2:2, 1998, p 118.)
Like others, our judiciary also remained cold to those hot political issues, of course until recently a Division Bench of the High Court Division thought it ‘best for the country that we put our records correct, once and for all’. This was in theBangladesh Italian Marble Works Ltd v. Government of Bangladesh and Others 2006 (Spl) BLT (HCD) 1, the famous Moon Cinema case. Mentioning the page numbers in brackets the present write-up tries to dig out the key principles laid down by the Court in that 242-page judgment.
The moon cinema controversy
After 1971, the Holding No 11 and 12, Waisghat was declared to be abandoned property. Though the Holding No 12 was released later, Holding No 11 housing the Moon Cinema House was not released. The petitioner challenged the order declaring the said property as abandoned. The High Court Division in Writ Petition No 67 of 1976 directed the respondents to hand over the possession in favor of the petitioners. In due course the Ministry of Industries deleted the 11, Waisghat from the list of abandoned property and released that in favour of the petitioner with a direction to the Freedom Fighters’ Welfare Association to handover the possession. But the Association filed the petition for Special Leave to Appeal No 291 of 1977 which was dismissed on 20.1.1978. Even then the Association declined to release the property on a new excuse.
It was the Martial Law Regulation VII of 1977. Section 6(1) of the MLR VII declared that if any property was taken over as an abandoned property, any judgment of any court in that regard would stand annulled and be of no effect notwithstanding any defect in such taking over. That MLR VII of 1977 was given constitutional protection through the Fifth Amendment. Since in the face of MLR VII even the orders of the High Court Division could not be executed to the prejudice of the petitioners, they filed three writ petitions in 1994, 1997 and 2000 consecutively. The first two were summarily dismissed for not challenging the Fifth Amendment itself and the last one was dismissed for default. So the petitioner filed the present one and challenged the vires of the Fifth Amendment.
The Fifth Amendment: a historical account
In the darkness of the night of August 15, 1975 Bangabandhu was brutally killed along with almost all of his family members, perhaps with democracy also. On August 20, Khandker Mushtaq Ahmed declared Martial Law with effect from August 15 and thereby, in the words of the Court ‘committed the offence of sedition against the Republic of Bangladesh (Bangladesh Italian Marble Works Ltd v. Bangladesh 2006 (Spl) BLT (HCD) 75).
During the turmoiling 1st week of November, Mushtaq nominated Justice Sayem as the President. Ziaur Rahman came to the scene as the Deputy Martial Law Administrator on November 7, 1975. On November 29, 1976 Justice Sayem was to declare Zia as the Chief Martial Law Administrator to sustain himself as a figure head President.( 3 Moudud Ahmed,Democracy and Challenge of Development: A study of Politics and Military Interventions in Bangladesh (Dhaka: UPL 1978), p 51.)
Zia took oath as President on April 20, 1977 due to the ‘deteriorating health’ condition of Sayem. While even ‘a Chairman of a Union Council had to be elected and couldn’t be nominated, nomination could be made to the highest office of the Republic (Bangladesh Italian Marble Works Ltd v. Bangladesh, Ibid., p.93.)
Zia arranged a referendum ‘unknown to the constitution or any other law of the land’ to obtain ‘confidence’ of the people. He hammered a 99 percent of the total vote cast. The Presidential Poll was scheduled in June 1978 and Zia put his candidature. That time he got 76.73 percent to become a ‘democratic’ President. After forming BNP in August 1978, he arranged the Parliamentary Election on February 18, 1979. BNP got 207 parliamentary seats and 41 percent of the total vote cast. The newly formed rubber stamp parliament was called in session on April 5 1979. In the very first session it passed the Fifth Amendment Act which ratified and confirmed all the Proclamations, Martial Law Regulations and Orders made during the period from August 15, 1975 to April 9, 1979 and judged them to be validly made. But history had its own judgment to be rendered in due course. The truth finds its way through the historic judgment of the High Court Division in the present case. The Judiciary, the third umpire lights the red holding: ‘Taking over of power by Khandaker Mushtaq Ahmed, nomination of Justice Sayem as President, appointment of Ziaur Rahman as Deputy Chief Martial Law Administrator, handing over of the office of Chief Martial Law Administrator to Ziaur Rahman, nomination of Ziaur Rahman as the President and Referendum Order of 1977 – were all without lawful authority and in an unlawful manner’.
‘The Constitution (Fifth Amendment) Act, 1979 (Act I of 1979) is illegal and void ab initio.
Should the Court venture into political questions?
While judicial review of parliamentary legislation is marked as a precursor of constitutional supremacy, judicial review of the constitutional amendments is seen with both reverence and suspicion.( Mustafa Kamal, Bangladesh Constitution: Trends and Issues (Dhaka: Dhaka University, 1994), p. 139.)
Some argue that constitutional amendment involves a Political Question to be better resolved within political discourse than in the court arena n(Omar Imtiaz and Hossain Zakir, constitution and legal continuity, the Daily Star, Law and Our Rights, September 17 and 24, 2005.)
Judicial adventure into this field might perturb some fait accompli settled by the political and historical discourse and create confusion rather than clarification. But the High Court Division in this instance considered itself a social, if not political institution and so couldn’t keep its eyes shut to the legal needs of the society (Bangladesh Italian Marble Works Ltd v. Bangladesh, Ibid., p.164)
The Judges felt themselves bound to declare what had to be declared, in vindication of their oath taken in accordance with the constitution, otherwise they themselves, they noted, ‘would be violating the Constitution and the oath taken to protect the Constitution and thereby betraying the Nation. In response to the political warmth of the issue the Court seems not to care who is pleased and who is hurt by its decision. It is better to hurt ‘a few than the country’ to distinguish between right and wrong.
On ‘Efficacy’ and ‘Necessity’
Kelsen’s theory of Successful Revolution and its efficacy has long been a fascinating issue in Martial Law talk. Faced with intermittent coups d’etat, the courts used his theory of revolutionary legality, in pure or modified forms, as a rule of decision to validate the rule of guns while Kelsen himself emphasized that it is a theory of effectiveness, not a rule of decision to adjudicate validity.13The Court, in this instance, simply holds that Kelsen’s theory can only be used to explain the past incidents. Any judge in deciding a case may call upon many a legal theory in establishing his own point of view but should not regard it as precedent(Bangladesh Italian Marble Works Ltd v. Bangladesh, Ibid., p.174). As to the doctrine of necessity, the Court asserts,
“The Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men at all times, and under all circumstances” Emergency must be faced through constitutional method not by extra constitutional interventions and so, turmoil or crisis in the country is no excuse for any violation of the Constitution.
The plea that passing of a long time since its adoption without being challenged immunizes the Fifth Amendment from constitutional challenge was sharply rejected by the Court. ‘No one acquires a vested or protected right in violation of the Constitution by long use even when that span of time covers our entire national existence and indeed predates it.
Is there any ‘Martial Law Jurisprudence’?
Relying on earlier Supreme Court decisions, one of the pleaders appearing before the Court tried to establish a sort of ‘Martial Law Jurisprudence rising from the wake of two Martial Law regimes.19 The Court rejected the contention in unequivocal terms, “We are not aware of any such Martial Law Jurisprudence either under our Constitution or any other laws of the land”.20 There is no such law in Bangladesh as Martial Law, no such authority as Martial Law Authority21 and hence no such jurisprudence as Martial Law Jurisprudence.
An ill-tailored amendment
While invalidating the Fifth Amendment Act the Court found six major technical flaws in it:
Firstly, the authority of a Marital Law Administrator to amend the Constitution is absolutely intolerable. An amendment can be made by proper authority as enjoined in the Constitution but not by any other person or group of persons how high or powerful or mighty they may appear to be.
Secondly, the Amendment being completely alien to the spirit and structure of the Constitution is attacked by the phrase ‘any other law inconsistent with this constitution shall be void to the extent of inconsistency’ in Article 7.
Thirdly, the provisions sought to be ratified, confirmed and validated by the Fifth Amendment were illegal. If the provisions sought to be validated were illegal then how could the instrument itself be legal?
The Fourth Schedule is not meant to be the dumping ground for all illegalities.
Fourthly, Article 142(1)(a)(i) of the Constitution provides that no Bill for any amendment shall be allowed to proceed unless the long title thereof expressly states that it will amend a provision of the Constitution. The Fifth Amendment did not contain such long title.
Fifthly, the term ‘amendment’ does not mean the abrogation or destruction or a change in the fundamental character of the Constitution.
The words ‘ratified, confirmed and declared to be validly made’ appearing in the Fifth Amendment Act are anything but amendment.28
Taking care of the concern that a legal vacuum may ensue if all the things from August 15, 1975 to April 9, 1979 were declared void, the Court condoned some illegalities on the greater interest of the community provided that those acts could have been legally done at least by the proper authority. Condonations were made in respect of provisions which did not change the basic structures of the Constitution and which deleted the various provisions of the Fourth Amendment but not in respect of omission of any provision enshrined in the original Constitution. Nor were condoned the amendments made in the Preamble, Articles 6, 8, 9, 10, 12, 25, 38 and 142. It means the revival of those provisions as they were in the original Constitution. But condonation does not mean that for the sake of continuity, ‘the Constitution has to be soiled with illegalities’. Rather, the perpetrators of such illegalities should be suitably punished and condemned so that in future no adventurist, no usurper, would have the audacity to defy the people their Constitution, their Government, established by them with their consent.
Symbolizing an extra ordinary legal scholarship, the judgment has put a high water mark in our constitutional history. Wherever may our political convenience or inconvenience lie, we must bow a judiciary which holds, “The Martial Law Authorities in imposing Martial Law behaved like an alien force conquering Bangladesh all over again, thereby transforming themselves as usurpers, plain and simple” .
4.2. The 8th Amendment: The Doctrine of Basic Structure of the Constitution
The case of Anwar Hossain Chowdhury v. Bangladesh (1989 BLD (SPL) 1.)
Popularly known as the 8th Amendment case is a historic judgment in the constitutional history of independent Bangladesh.
Background of the Case
After martial law was imposed on 24th March, 1982, on 8th May the CMLA by amending the Schedule to the Proclamation of the 24th March, 1982 had set up six permanent Benches of the High Court Division at Chittagong, Commila, Jessore Barishal, Sylhet and Rampur. By a further amendment of the Proclamation by Proclamation Order no III of 1986 these permanent Benches were designed as “Circuit Benches” and it was provided that when Article 100 of the Constitution would be revived, the Circuit Benches should be deemed to be sessions of the HCD at Dhaka under that Article.2Martial law was withdrawn on 10th November, 1986 and the Constitution was fully revived on the same date. As the Constitution was revived the Proclamation Order no III of 1986 was no longer operative and the Chief Justice under the revived Article 100 in consultation with the President, proceeded to implement the provisions of six sessions benches in the same places where Circuit Benches were functioning during the martial law period. The Chief Justice issued six other notifications specifying the jurisdiction to be exercised by each session and the areas covered by them. However, when the Chief Justice issued under the revived Article 100 six other notifications specifying the jurisdiction to be exercised by each session of area are covered by them, it added fuel to the fire and the lawyers became more agitated. Perhaps with a view to stopping this agitation and movement the government passed the Constitution (Eighth Amendment) Act, 1988 which substituted Article 100 by a new article creating permanent Benches of the High Court Division in the six aforesaid places (Article 100 as amended by the 8th Amendment Act runs the following:-
100. Seat of the Supreme Court
(1)Subject to this Article, the permanent seat of the Supreme Court shall be in the capital.
(2)The High Court Division and the judges thereof shall sit at the permanent seat of the Supreme Court and at the seats of its permanent Benches.
(3)The High Court Division shall have a permanent Bench each at Barishal, Chittagong, Comilla, Jessore, Rangpur and Sylhet, and each permanent Bench shall have such Benches as the Chief Justice may determine from time to time.
(4)A permanent Bench shall consist of such number of judges of the High Court Division as the Chief Justice may deem it necessary to nominate to that Bench from time to time and on such nomination the judges shall be deemed to have been transferred to that Bench.
(5)The President shall, in consultation with the Chief Justice, assign the area in relation to which each permanent Bench shall have jurisdiction, powers and functions conferred on the High Court Division by this constitution or any other law; and the area not so assigned shall be the area in relation to which the HCD sitting at the permanent seat of the Supreme Court shall have such jurisdiction, powers and functions.
(6)The Chief Justice shall make rules to provide for all incidentals, supplemental or consequential matters relating to the permanent Benches.)
The Constitution (8th Amendment) Case
By two writ petitions the amended Article 100 and the notification of the Chief Justice were challenged as ultra vires.A Division Bench of the HCD dismissed the petitions summarily. Leave was granted by the Appellate Division to consider the Constitutionality of the Amendment. After a sound hearing the Appellate Division by a majority of 3 to 1 struck down the 8th Amendment as far as it related to the Creation of permanent Benches outside Dhaka by substitution of Article 100.The ground shown by the court was that the impugned amended Article 100 changed the character and nature of the function and jurisdiction of the HCD as envisaged in the Constitution. Such an amendment changing the basic structure of the Constitution was ultra vires and therefore not tenable in law. This was a historic judgment in the sense that it was the first time since the birth of the nation that the Supreme Court of Bangladesh was striking down on amendment to the Constitution made by the parliament, the supreme and sovereign law making body under the Constitution. The judgment aroused serious controversies on the issue of parliaments authority to amend the Constitution and whether the Supreme Court could restrict the amending power of the parliament. And whether four or five judges sitting on a Bench could be more wise or have more authority than the 330 members of parliament elected by the people.
Principle Arguments on Behalf of the Appellants
The unitary character of the Republic is a basic feature of our Constitution and the plenary judicial power of an integrated Supreme Court completely in line with the unitary character of the Republic is also a basic feature of our constitution which cannot be altered or damaged. The power of amendment of the Constitution under Article 142 is a power under the Constitution and not beyond it and it is not an unlimited power. The concept that parliament has unlimited power of amendment is inconsistent with the concept of the supremacy of the Constitution embodied in the preamble and Article 7of the Constitution. The impugned Amendment being Contrary to the concept of integrated judicial system and unitary character of the Republic has destroyed these basic features.
Argument by the State
Article 142 of the Constitution provides that any provision of the Constitution can be amended by way of addition, alteration, substitution or repeal by an Act of Parliament. This amendment proceeding is a special one since such an Act can be passed only by two-thirds of the total number of MPs.So the parliament has unfettered power to amend any provision of the Constitution, there cannot be any implied limitation of parliament’s power of amendment of the Constitution. The power of amendment under Article 142 is a constituent power; not an ordinary legislative power. The amending power of the parliament is in no way limited or otherwise controlled by some vague doctrine of repugnancy to the preamble and Article 7 declaring the supremacy of the Constitution. The independence of judiciary and separation of powers are basic features of our Constitution but the impugned amendment has not affected either of the two. The main issues to be decided by the court were, therefore, the implied limitation of power of amendment of the Constitution, difference between legislative power and constituent power, the meaning of the term “amendment” and the “basic structure” doctrine.
The Principal Arguments of the Judgment
1. The Constitution stands on certain fundamental principles which are its structural pillars which the parliament cannot amend by its amending power for, if these pillars are demolished or damaged, then the whole constitutional edifice will fall down. Some of the basic structures are:-
(i).Sovereignty belongs to the people.
(ii).Supremacy of the Constitution.
(v).Independence of judiciary.
(vii).Separation of powers.
This structural pillar of the Constitution stands beyond any change by amendatory process. If by exercising the amending power these principles are curtailed it is the court’s duty to restrain it. The amended Article 100 has created more than one permanent seat of the Supreme Court thus destroying the unitary character of the judiciary; the transferability of judges has a likely effect of jeopardizing the independence of the judiciary, a basic feature of the Constitution. And the amendment has resulted in irreconcilable repugnancies to all other existing provisions of the Constitution rendering the High Court Division virtually unworkable in its original form.
2. The amended Article 100 is ultra vires because it has destroyed the essential Limb of the judiciary namely, of the Supreme Court of Bangladesh by setting up rival courts to the High Court Division in the name of permanent Benches conferring full jurisdictions, powers and functions of the High Court Division. Beside this, this amended Article is inconsistent with Article 44, 94,101 and 102 of the Constitution. The Amendment has reduced Articles 108,109,110 and 111 nugatory. It has directly violated Article 114.The Amendment is illegal because there is no provision of transfer of cases from one permanent Bench to another Bench which is essential requisite for dispensation.
3. If any provision can be called the ‘pole star’ of the Constitution, then it is the preamble. The impugned Amendment is to be examined on the touchstone of the preamble with or without resorting to the doctrine of basic structure. The preamble is not only a part of the Constitution; it now stands as an entrenched provision that cannot be amended by the parliament alone. When parliament cannot by itself amend the preamble, it cannot indirectly by amending a provision of the Constitution impair or destroy the fundamental aim of our society. One of the fundamental aims of our society is to secure the rule of law for all citizens and in furtherance of that aim part VI and other provisions were incorporated in the Constitution. By the impugned Amendment that structure of the rule of law has been badly impaired and as a result the High Court Division has fallen into sixes and sevens-six at the seats of the permanent Benches and the seven at the permanent seat of the Supreme Court. The above quotations from the judgment make it clear that the centre-point on which the majority judges relied to declare the impugned amendment illegal was the doctrine of the basic structure of the Constitution.
The Doctrine of Basic Structure
This doctrine is not a well-settled principle of constitutional law; it is rather a recent trend in and a growing principle of constitutional jurisprudence. As M.H.Rahman.J. says in the 8th Amendment case that the doctrine has developed in a climate where the executive, commanding an overwhelming majority in the legislature, gets snap amendments of the Constitution passed without a Green Paper or White Paper, without eliciting any public opinion, without sending the Bill to any select committee and without giving sufficient time to the members of the parliament for deliberation on the Bill for amendment.10 The initial trace or origin of the concept of basic structure of the Constitution can be found in the Sub-Continent, as Dr.Kamal Hossain submitted in 8th Amendment case, in a decision of the Dhaka High Court (Abdul Haque v. Fazlul Quder Chowhury PLD 1963,Dac.669).This decision was upheld by the Pakistan Supreme Court in Fazlul Quder Chowdhury v. Abdul Haque11 where the court held—“franchise and form of government are fundamental features of a Constitution and the power conferred upon the Presidency by the constitution of Pakistan to remove difficulties does not extend to making an alteration in a fundamental feature of the Constitution”.
Problems of the Doctrine of Basic Structure
There still remains a considerable controversy and differences of opinion as to the substance of the doctrine of ‘basic structure’. Because what actually is meant by the doctrine? What subject-matters will come under the category of ‘basic feature’? Which particular features of a Constitution are basic and which are not? These are the questions which are still haunting both the judges and researchers. In 8th Amendment case of Bangladesh the judges could not come into unanimity as to what constitute ‘basic feature’ of the Constitution. According to B.H.Chowdury .J.21 features are basic features of our constitution. Justice Sahabuddin Ahmed has mentioned six features are basic features of our constitution.
Philosophy underlying the Doctrine of Basic Structure
One might argue that this doctrine is vague and should be rejected. But Sahabuddin Ahmed .J. in the 8th Amendment case1989 BLD (SPL) 1 says that ‘the doctrine of basic structure cannotbe rejected if consequences of its rejection is taken into consideration’. The consequence of rejecting the doctrine of basic structure would be so grave and so opposed to the objectives of the Constitution that the consequence of uncertainty would be insignificant by comparison.
Defects of Doctrine of Basic Structure
There are some defects in the Doctrine of Basic Structure which are mentioned below:-
Firstly, any provision of the Constitution may come, if judges so interprets, under the umbrella of this doctrine giving rise to vagaries of clashing principles.
Secondly, this will give rise to differences of opinion among the judges which has been seen in every case upholding ‘basic structure” doctrine.
Thirdly, the judge may, by applying any provision under the umbrella of “basic feature” principle, reduce or narrow down the justifiable scope of amending power of the parliament. And the absolute judicial dictation, in other words, the whim of judiciary may take the place of constitutional limit in respect of amending power of the Constitution.
Thus with a view to avoiding some of the defects of the doctrine of basic structure it also grows as a sound principle of Constitutional law. Both the judges and researchers should take the ‘basic structure’ principle in a special sense rather than in general or numerable sense. In special sense or in real or substantive sense the doctrine of ‘basic structure’ means those fundamental principles and objectives of the Constitution which are its structural pillars and on which the whole edifice of the Constitution is erected and if these principles are taken away or destroyed, the Constitution will lose its original and inherent identity and character. So if it is found that a constitutional amendment made by parliament has affected or is likely to destroy any of the basic features of the Constitution, then the amendment should be declared unconstitutional and void. And in this substantive sense the doctrine necessarily indicates and means the ‘preamble’ of the Constitution. This is because it is the preamble which, in the way of embodying
philosophy of the Constitution, contains the fundamental principles and objectives as fundamental aims or goal of the notion. Taking the preamble as a guiding star, or touchstone or centre point judges should explain and nourish the doctrine. It is pertinent to mention here that Justice Muhammad Habibur Rahman in 8th Amendment case specifically and with emphasis meant ‘preamble’ of the Constitution as the pole star in relation to the doctrine of ‘basic structure’.
4.3. The 10th Amendment: Women Members of Parliament
Women of all continents can look back that they were once marginalized from the mainstream of society and have come out a long way from that position on the basis of equality, justice, peace and development. The two concepts-women’s rights and peace- have been interlinked because promotion of women’s rights promotes peace. In other words, peace prevails in society when women’s rights are established and protected as those with men. The origin of women’s subordination lies in political theories, propounded by men. The concern for individual autonomy and freedom for men has later been extended to a concern for women’s equality, freedom and autonomy. The eligible women voters in the country are more than those of men. During the general election, women cast their votes more than men did. This demonstrates that women are conscious to exercise their rights, if environment is made safe and secure. Although the 1972 Constitution (Articles 10, 19, 27, 28, and 29,) provides equality of men and women, traditional social norms and orthodox religious precepts have discriminated between men and women in society. By the 10th Amendment of our Constitution there is a provision for reserved seats for woman to ensure the rights of the woman. According to the existing provisions of the Constitution of Bangladesh woman member may be of two types-general woman members and special women members. Those who according to Article 65(2) of the Constitution are elected from single territorial constituencies by direct election are called general women members of parliament. And those who according to Article 65(3) of the Constitution as amended by 14th Amendment Act are elected indirectly in reserved seats for women by the directly elected members of parliament may be called as special women members of parliament.
Tenth Amendment: Background of the Women Members Reserved seats
This Amendment was passed in the 4th parliament on 12th June, 1990.It was mainly related to the reserved women seats in the parliament as provided for in Article 65.The original Constitution provided for 15 reserved seats for women members and this provision remained in force for 10 years. But in 1979 through the 5th Amendment the number of reserved seats was increased from 15 to 30 and the period this provision was to remain in force was extended from 10 to 15 years. This period expired on 10th December 1987 and as such the 4th Parliament on 10th December 1987 and as such the 4thParliament did not have any reserved women seats. There were, therefore, debates and discussions within Ershad’s ruling party whether such a reservation was necessary or desirable. The mode of election for women’s reserved seats and their role in the parliament had prompted a weekly to term these 30 ladies as “30 sets ornaments in parliament’.3 However Ershad and his ruling party decided to keep such reservation for another period of 10 years. To that end the Constitution (Tenth Amendment) Bill was introduced on 10th June and passed on 12th June, 1990.This Amendment reinserted clause (3) to Article 65 providing for 30 reserved women seats for a further period of 10 years beginning with the commencement of the next parliament. However, on 16 May, 2004, the 8th Parliament passed the Constitution 14th Amendment Act whereby provisions have been made for 45 women members in reserved seats for another ten years starting from the 8thParliament.
The Constitution (10th Amendment) Case
In Dr.Ahmed Hussain v.Banglades (44DLR (AD),109.), the petitioner having unsuccessfully challenged the vires of the aforesaid Tenth Amendment of the Constitution sought leave to appeal from the judgment of the High Court Division dated 28-11-91 in Writ Petition No.2306 of 1990.The leave petition was dismissed on 2-3-92,44DLR (AD) 109, decided on March .
2, 1992.The petitioner Dr.Ahmed Hussain challenged the Tenth Amendment of the Constitution being violation of Article 121 and 122(1) of the Constitution. Article 121 provides that there shall be one electoral roll for each constituency for the purposes of elections to Parliament,and no special electoral roll shall be prepared so as to classify electors according to religion, race caste or sex.Article 122(1) provides that the elections to Parliament shall be on the basis of adult franchise. It was held by the Appellate Division that the principle of single electoral roll for each constituency and the principle of adult franchise are not violated in the case of election to reserved seats for 30 women members, because the Constitution on the date of its commencement provided for two different kinds of elections.300 members in general seats are to be elected directly on the basis of adult franchise. Additionally, some seats reserved for women members are to be filled up by a method of indirect election. There is thus no conflict between the Constitution (Tenth Amendment) Act and Article 121 and 122(1) of the Constitution. It was argued that the method of indirect election for the seats reserved exclusively for women has destroyed the principle of democracy as expressed in the Preamble, in clause (1) of Article 7 and in Article 8 and 11 of the Constitution. The Appellate Division held (judgment by M.H.Rahman.J.) that a system of indirect election cannot be called undemocratic. It is provided in the Constitution itself. Article 28 clauses (4) of the Constitution provides that nothing in this article shall prevent the State from making special provision in favour of, among others, women 7 and therefore the amendment is also not violation of Article 28.
Justification for Women Members Reserved seats
The Constitution of the country recognizes that all citizens are equal before law and undertakes to give them equal opportunities. However, it is also accepted that in reality
all section of society are not equal and therefore, the need for special provisions for any disadvantaged sections of the society is also recognized. In question of reserved seats for women members in parliament it is argued that to compare with men women in our country are in a disadvantaged situation; their status is unequal and subordinate to that of men in the society. This is why the provisions of reserved seats for women were incorporated in the Constitution. The purpose was to ensure a minimum representation of women in parliament, and to ensure a wider participation by them in national politics.
Criticism of Women Members Reserved Seats
The provision of reserved seats for women was made for a specific period of 10 years only but method of election has made the whole pious purpose meaningless. It is for the method of election that these 45 women members are being used as a ready tool or ‘vote bank’ at the hand of the majority party rather than true representation. Because they are elected or selected on the basis of proportional representation of the parties in the parliament.
Among the various ways of electing representatives, direct elections are considered the most democratic. So, it would be better to recommend for direct election. If we were to follow a system of one person two ballots, women candidates could be directly elected by the people to the women seats. Each political party would nominate candidates to the women seats as it does for general seats. Each voter would have two ballot papers; one for the candidates to the general seats, and other for the women seat. He or she would cast one ballot for the general seat and one for the women seat resulting in 330 directly elected members of parliament. Administratively or logistically this would not be a major problem if different colored ballot papers are used.
It cannot be denied that though women constitute half of our population, they continue to be an under privileged section of our society. So reservation of seats for women members are nothing undemocratic; rather a good sign of social and political development. There needs to be a pledge that women are not to be discriminated in society. The state institutions and mechanisms established to implement laws are to be strengthened. The rights of women under the Constitution and laws are not known to women in the countryside and there needs to be an awareness program of these rights so that they know their position in the society.