Can Supreme Court direct the women reservation in legislature?

 

Can  Supreme Court direct the women reservation in legislature?

 

Women reservation bill  seeking to advance reservation of 33% seats for women in an expanded Lok Sabha and state Assemblies   in the parliament  was  introduced by way of Constitution Amendment 131st  Bill 2026 .There was  lack of numbers of votes in support of the amendment  Bill so the Bill could not be passed and therefore, the efforts of the ruling party could not get the desirable result. There are whispers  in the corridor of media and Courts  that now by way of Public Interest Litigation the same can be given effect through the writ of mandamus  of the Honorable Supreme Court.

 Order for  women reservation of 30 % (20% by way of election  + 10% co opted members) in the  Bar Councils as per the directions of the Apex court is reported to be  invoked as precedent. The question arises for the people of India, whether the same can be replicated or not. What is the difference between the two illustrations ,  in reservation of seats in the   Bar councils and  reservation of the seats in the legislature, which includes the state legislature and the parliament. Both are said to be  affirmative action for the empowerment of women.

 The above conspectus  reminds the first amendment of the constitution of India, where reservation policy was challenged by  one women Champakam Dorairajan. The impugned policy of reservation  was struck down by the Honorable Supreme Court in the absence of explicit provision of enabling clause for women for affirmative action in the constitution of India. By way of first amendment in the constitution ,  article 15(4)  was inserted to pave the  path for socially and educationally backward class of people which helped  the women centric reservation or affirmative action in education.

 The effect of the directions of the Apex court in the women reservation in Bar Councils amounts to amendment in the Advocates  Act 1961.The point of deliberation is whether such direction can be issued   in the exercise of judicial review? Does this not constitute  encroachment  on the legislative powers of the Parliament? This is said to be blatant violation of separation of power doctrine. It is appropriate to mention    Deoki Nandan Agarwal case(AIR 1992 SC 96) of three judges bench of the Apex Court which helps to understand the role of Courts in a democratic scheme of governance in exercise of judicial restrain. It was observed -

“It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.”

 This order of reservation of women in  Bar councils  does not has  binding precedence. It is said to be  sub silentio . It said to be a  decision or rule accepted implicitly without formal discussion. This reminds Jeet S Bisht case((2007 6 SCC 586) wherein it was observed by three Judges Bench of the Apex Court that the decision given  in  All India Judges Association Case (1993 4 SCC 288) was sub silentio. It was observed -

 “16.We have carefully gone through the above decision. We fully agree with the observations in this judgment that Judges should get adequate salaries and allowances to enable them to function impartially and with a free mind, but we do not agree that that decision has laid down any principle of law that the salaries, allowances and other conditions of Judges should be fixed by the judiciary.

 17.The salaries, allowances and other conditions of service of Judges are either fixed by the Constitution (e.g. the age of superannuation and salaries of Supreme Court and High Court Judges) or by the legislature or the executive. In fact this is the position all over the world.

 18.No doubt in the aforesaid decision various direction have been given by this Court but in our opinion that was done without any discussion as to whether such directions can validly be given by the Court at all. The decision therefore passed sub silentio.”

 There is no ratio decidendi in the order of reservation of women in Bar Councils except a passing reference to the  constitutional ethos and noble cause of  women empowerment. The Supreme Court is the  Highest Constitutional  Court of India. But  principle of rule of law signifies that  no one is above law. Even Supreme Court, can't be above law.

 Now, the moot question is, whether the decision which is sub silentio  in violation of doctrine of precedent would set a good example in the movement of women empowerment in India? Honest self introspection is required that ends and means must be noble, legitimate asmuch as  upholding the constitutional morality. Does being part of Judiciary, accord special status to the effect  that basic jurisprudence is set at rest for attaining affirmative action. What type of example it has set for judicial discipline , judicial propriety and judicial restrain. Where are the boundaries ? It has set a bad example of judicial activism in the name of affirmative action.

What has changed from the era of Champakam Dorairajan(1951) challenging the reservation policy not in consonance of the constitutional scheme to the present day  directions  amounting to amendment of the The Advocates Act 1961? Answer is not encouraging. It has resulted in  the loss , erosion and weakening of judicial restrain , judicial discipline and judicial propriety.

 There is a legitimate question for the people who favour women upliftment  and  support women reservation .Whether the  Apex court will dare to pass directions for reservation in the legislature in the name of promoting the constitutional ethos and the noble cause of women empowerment often described as affirmative action.

 Surya Pratap Singh Rajawat

Advocate

Rajasthan High Court Jaipur