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SCOI Report: CJI declines Vishakha inspiration to create women reservation in state cabinets

SC declines to get involved in executive reservations
SC declines to get involved in executive reservations

DK Aruna vs Union of India (WP (c) 512/2015) was dismissed by a three-Judge Bench headed by Chief Justice of India (CJI), HL Dattu on Friday, 7 August, after spirited arguments in the court for 15 minutes.

Aruna, a member of the Telangana Legislative Assembly, filed this petition alleging gender discrimination by the chief ministers of seven states, for not inducting women into their council of ministers.

The states in the petition are Telangana, Uttar Pradesh, Delhi, Punjab, Nagaland, Mizoram, and Puducherry.

She was represented by senior advocate Meenakshi Arora; advocate K Sravan Kumar drafted Aruna’s petition.

Aruna was a minister for Information and Public Relations department for five years from 2009 to 2014 in the undivided state of Andhra Pradesh, and has been a legislator since 2004.

Aruna claimed in the petition that the chief ministers of these States were not inducting women due to a lack of clarity in Article 164 of the Constitution, which relates to other provisions as ministers, to be appointed by the Governor on the advice of the Chief Minister.

The article contains a proviso for the states of Chattisgarh, Jharkhand, Madhya Pradesh and Orissa, that there should be a minister in charge of tribal welfare who may, in addition, be in charge of the welfare of the scheduled castes and backward classes or any other work.

The article has other provisos too, which qualify the Chief Minister’s discretion in recommending Ministers for appointment by the Governor. This is to suggest that there is no unfettered discretion of the Chief Minister to appoint anyone as Minister under Article 164.

In her petition, Aruna cited Article 15(2) and (3) that prohibit discrimination on grounds only of religion, race, sex, place of birth, and that this shall not prevent the state from making any special provision for women and children.

She also alleged that the chief ministers of these states violated Article 16(2) of the constitution, which states that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

Aruna’s contention was that since Article 164 was silent on women, it gives scope for the chief ministers to neglect women in their cabinets. The petition regretted that one woman could not be found worthy of representing 30 crore population in seven states as ministers in these States.

More importantly, she pointed out that the discretion/prerogative/privilege conferred on the chief ministers in the matter of constituting council of ministers was an unguided power, contrary to the basic tenets of democracy enshrined in the Constitution.

Although the petition prayed for issue of writ of mandamus directing the respondent states to consider the inclusion of female members of the house in their respective council of ministers, the CJI expressed his difficulty in issuing a mandamus in this regard, asking what the court do if there was a similar petition seeking higher representation of women among judges.

Arora told the bench that in the Vishakha case, the Supreme Court had stepped into the void created by the legislature and laid down guidelines to be followed to avoid sexual harassment in work places. The inability of Parliament to legislate the Women’s Reservation Bill for years, was cited as a reason why the Court should step in.

She clarified that the petitioner was not seeking reservation in the ministries for women, but only alleging that the present position of no representation to women must be corrected, as it amounted to discrimination.

A report by Rukmini S in The Hindu in February headlined Glass ceilings in State Cabinets revealed that just 39 of the 568 ministers in state governments were women.

Photo by Vagawi

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