Farida Akhter and others Vs Bangladesh 11 MLR (AD) 2006 [14 Amendment Case]

Fact: Petitioners of this case respectively challenging the constitutionality of section 3 and 8 of The Constitution (Fourth Amendment Act), 2004, Article 65(3) of The Constitution and also paragraph 23 inthe fourth schedule of The constitution purporting to reserve 45 seats in the Parliament exclusively for women to be elected on the principles set forth by the Parliament by writ petition number 707 and 789 whereas Leave to Appeal no. 708, challenge the constitutionality of Act No. 30 of 2004 being Jatiya Sangsad ( Sanrakhita Mahila Ashan ) Nirbachan Ain, 2004 being ultra vires to the Constitution and violation of the fundamental rights of the petitioners.

Argument: Election of 45 reserve seats for women by the procedure of single transferable vote, which is not just workable but arbitrary, capricious and contrary to the basic structure of the Constitution due to the following reasons:

a)      The number 45 is absolutely absurd, unworkable and implementable because it is not a number which is divisible by 300 existing general seats. Therefore, these 45 reserved seats will be without any corresponding constituencies whatsoever and as such there shall be inconsistency between Article 119(c), 121 and 122 of the Constitution, which contemplates that each and every parliamentary seat shall have corresponding constituency.

b)     Under the new system of the law, every political party who have 6.67 seats in the general election entitled to one reserved woman MP. This is discriminatory amongst the smaller parties who have less than 6.67 seats or independent MPs as they will not have a representation through a woman MP. It will be discriminatory amongst MPs from the general seat when they will indirectly elect 45 women MP’s for reserved seats, which is inconsistent with Article 27 of the Constitution.

c)      A woman who is otherwise eligible to become MP, but who does not belong to any political party is debarred from becoming MP for the reserved seat under the impugned amendment.

d)     The above amendment is void-ab-initio as article 65(3) itself a temporary provision and it is absurd to have a temporary special provision (4^th Schedule) arising out of a temporary provision. The 4^th Schedule in any event has always been used to insert temporary laws not Articles of the Constitution itself. The 4^th Schedule is not capable of absorbing temporary Articles of the Constitution itself.

Mr. A. J. Mohammad Ali, the learned Attorney-General appearing for the respondents. Government has submitted with reference to Article 65(2) and Article 121 of the Constitution that the Parliament shall consists of 300 members to elect in accordance with law from the single constituency by direct election. Article 11 provides that there shall be one electoral roll for each constituency for the purpose of election to Parliament and that’s why for Article 65(3), no special electoral roll shall be provided so as to hold the election according to their sex. The learned Attorney-General has further submitted that the amendment in question which is a substitution of the old clause providing 30 reserved seats by 45 reserved seats so not offended the basic structure of the Constitution and it is not an amendment  of any substantial nature but only the number has been increased by way of substitution.

In the case of Dr. Ahmed Hossain Vs Bangladesh, it is held that substitution of earlier clause 3 of Article 65 or the Constitution by the new one cannot be challenged ultra vires the Constitution for the simple reason that the said provision was there in the Constitution since its commencement.

Judgement: The validity of the impugned Act providing methodologies and procedure for the election to the women reserved seats in keeping with the mandate, purpose and object of the amendment to the constitution in Article 65(3), if judged by the touch stone of the constitution, we do not find the same to be inconsistent or repugnant or ultra vires the constitution or offending any law. On the other hand, the same is designed to reflect the purpose and procedure and for materializing the object of the amended provision of the Constitution providing for election to the 45 reserved seats for the women in the Parliament on the basis of procedure of proportional representation in the Parliament through single transferable vote promoting the cause of democracy through a process which could not be termed as undemocratic. That’s why the petitions are dismissed.