SHAMIMA SULTANA VS BANGLADESH 57 DLR 2005

 

 Analysis of the Fact:

10 petitioners in this writ petition who were elected as ward commissioners in the seats reserved for female candidates in Khulna City Corporation under section 04 of the Khulna City Corporation Ordinance, 1984. A circular was issued under the signature of the joint secretary, Ministry of Local Government specifying the duties of the ward commissioners. It allowed certain functions only for the members elected for the general seats but not to the members of the reserved seats. Being aggrieve by the circular the petitioners moved to the Court. 

Rule nisi of the High Court Division:

A rule nisi was issued calling upon the respondent to show cause as to why the circular should not be declared to have been issued without lawful authority.

Argument from the petitioner:

It was argued

Ø  The Constitution of Bangladesh proclaimed the equality man and woman in all the spheres of national life including in the elected public offices. In order to ensure equal participation of woman in public offices a positive discrimination is not only permitted but also encouraged under Article 28(4) of our Constitution.

Ø  Khulna City Corporation was a corporate body to be run according to the provision of the Ordinance. The Government cannot interfere in the functions of the Corporation by the impugned circular.

Ø  The Framers of the Constitution not only provided for reserved seats for women in the parliament but also left adequate indications in Article 28(4) to make special provisions in favor of women and children or for the development of the backward sections of citizens and in pursuance of that spirit in the constitution section04 was amended in the Ordinance providing for reserved seats for women as Commissioners in the City Corporation. So the impugned circular was in violative of the spirit of the Article 65(3) and 28(4) of our Constitution.

Ø  Some quotations were also cited from the book EQUALITY OF SEX by Mr. Justice V.R Krishna Ayer, page 145

The fight is not for women’s status but for human worth. The claim is not to end the inequality of women but to restore the universal justice. The soul of man is woman when she goes there is no goodness strength left.

Argument from the Respondent:

It was argued that

•      Reasonable classification was permissible but the petitioner could not claim to be equal with the commissioners elected in the general seats. No discrimination was made among the commissioners elected in the reserved seats and there was no violation of the article

27. They were the class by themselves. It was said in the case ST Stephen’s College vs University of Delhi AIR 1992 SC 1630 that to treat unequals differently according to their inequality is not only permitted but also required. If the commissioners elected in the reserved seats were given similar benefits and duties at par with the commissioners elected in the general seats that shall be discriminatory to these commissioners.

•      In the light of section 153(d) of the said Ordinance the impugned order or circular was issued by the respondent within the ambit of the ordinance for the general guidelines of the corporation.

Opinion from the Amicus Curiae:

Dr Kamal Hossain as an amicus curiae explained that very few women contested the elections in the National Assembly and in the Provincial Assembly in the elections held in 1970, although nearly 50% of the population was women. As such as a stepping stone to begin with and in order to encourage the women to participate in the national politics in larger numbers. Such a provision was made for a very limited period of time only.

Issues:

1)      Whether Government can issue such a circular spelling out the duties and functions of the commissioners elected in the general seats and also in the reserved seats?

2)      Whether the guidelines given in the concerned circular dated 23.9.2002 is discriminatory towards the women ward commissioners elected from the reserved seats?

Decision:

Finally the decision came out that the circular issued was illegal and without lawful authority. Once elected the commissioners whether in the general seats or in the reserved seats, male or female are equal in all respects and they shall be so treated by all concerned. 

Reasoning behind the decision:

The above decision was taken on the ground that the government had got limited power of superintendence over the functions of the City Corporation strictly within the ambit of the ordinance and the government could not demarcate the duties between the commissioners in the General Seats and Reserved Seats was completely discriminatory in the light of articles 28(1) and 28(4) and it went against the spirit of the lofty ideals depicted in the articles 10, 27 and 65(3) of our Constitution.

Principle:

Members of reserved seats should be treated equally with the members of general seats which is the main spirit of our constitution.

Importance of this case:

The decision of this case has created a new era in women’s participation in local and national level as people’s representatives. This decision has widened the scope of meaning Discrimination towards Woman by evaluating the historical back grounds of creation of man and woman, various religious and philosophical ideologies, and decisions of various prominent cases. This case has raised the status of woman by giving them equal treatment in every sphere of life, home and outside. It is very much pertinent to mention that the spirit of the different articles and historical backgrounds of the creation of the Constitution were clearly used.