DR AHMED HUSSAIN VS BANGLADESH 44 DLR AD 1992

 Statement of the Fact:

The petitioner challenged the vires of the Constitution Tenth Amendment Act,1990 before the High Court Division which provided that thirty seats shall be reserved for the women for the next ten years.

Argument from the petitioner:

It was argued that

 By the impugned Act the period for reservation of thirty seats for women members was further extended but the period for reservation of thirty seats expired on 16^th December, 1987. So no extension could be made.

 The impugned act was violative of the provisions of Articles 121 and 122(1) of the Constitution.

 The impugned amendment by providing for indirect election for the seats reserved exclusively for the women had destroyed the principle of democracy as expressed in the preamble, in clause (1) of Article 7, 8 and 11 of the Constitution.

Decision:

The petition was dismissed.

Reasoning behind the decision;

The above decision was taken on the following grounds:

 Clause 3 of Article 65 was present, not deleted from the Constitution. The substitution of the earlier clause 3 by the new one can not be challenged as ultra vires.

 The Constitution on the date of its commencement provided for two different trends of elections. Three hundred members of the parliament are to be elected in accordance with the law from the single territorial constituency by direct election. Members for seats reserved exclusively for women are to be elected by the members of the parliament, according to the law. The Representation of the People (Seats for Women Members) Order 1973 provides for the law. So, there is no conflict between the impugned amendment and Articles 121 and 122(1) of the Constitution.

 A system of indirect election cannot be called undemocratic. It is provided in the Constitution itself. The amendment was not violative of Article 28. Clause 4 of Article 28 provides that nothing in this Article shall prevent the state which expression includes Parliament from making special provision in favor of women.

Principle:

Two principles came out from the judgment of the case:

•      An amendment of a provision of the Constitution though the tenure of the particular provision has expired but still is present in the Constitution does not become ultra vires.

•      An indirect election cannot be called undemocratic and State can take any measure for the advancement of women as per the provision of Article 28(4) of our Constitution.

Importance of the case:

This case has played a significant role by removing the obstacle in the way of women’s empowerment by maintaining the special provision of reserved seats in the Parliament.