Case Study on State Assemblies of North East India: Need for Reservations for Women

[Editorial Note: Constitutional Renaissance’s Research on State assemblies of North East can be accessed here]

In this article, we conducted a research on the incumbent Members of Legislative Assembly (‘MLAs’) in eight states of North East (Assam, Tripura, Manipur, Mizoram, Arunachal Pradesh, Sikkim, Meghalaya and Nagaland) as a sample data to analyse the number of women MLA in these regions, their family backgrounds, political parties and their income, whether they are from a relatively poor or rich background (click here to see our summarised research). This research tries to answer the question “whether women are proportionally represented in the State Assemblies according to their population in the state.” As the Tribune reports, ‘the Perception of Electoral Integrity Index gave India 40/100, under the Varieties of Democracy’s Female Rights Index, with India performing its lowest in political power. In the EIU’s Democracy Index (2019), India suffered a downfall in political participation from 7.22 to 6.67.’ Currently, in-state assembly elections, there is no proportional reservation for women, unlike in the third tier of government (Panchayats) where we have 33% reservation for women. Through this research, we will be proposing that there is a requirement for proportional reservation for women in the state assemblies and in Parliament to avoid ‘political lockout’ and to keep our democracy legitimate.

Liberal Constitution and ‘political lockout’

In liberal constitutions, like that of India, the state has an indispensable duty to protect the rights of the citizens and to ensure that the freedoms and civil liberties are not compromised at any cost. Although the denial of these civil liberties presents many stability problems for democracy. But ‘political lockout’ of a section of society out of power raises concerns with regard to the whole legitimacy of the democracy. That section of society could be Scheduled Castes, Scheduled Tribes, Other Backward Classes or women as well. In the words of Tarunabh Khaitan, political lockout means ‘when a group comprehensively loses any genuine prospects of garnering even a threshold level of political power at least some of the time, it has been ‘locked out’ of power’. We have always thought of political representation debate with regard to caste and religion. But keeping a whole group, which is women, out of politics may also repose serious threat to the legitimacy of the liberal order established by the Constitution. For instance, if a particular group is kept out of power for long and they are refused to participate in decisions which affect their lives, then that group will lose faith in the democracy as their interests are not fulfilled either represented in the law-making body. We have seen in the past when committees are formed for a particular purpose but they keep out a section of a society which are the most affected section, then it raises alarming concerns about that committee, to an extend delegitimizing it (for instance, see this). Through our research, we have found that women in north-east have been kept out of power for some time and they have been denied equal participation in the law-making process. In the northeast alone, out of 498 seats (MLAs) spread over eight different states, there are only 24 elected women representatives.

The research displays a lot of flustering concerns: about the legitimacy of democracy. Scholar Choudhary argues in his book that

‘the ambition of liberal constitutionalism is that a constitutional order must both be legitimate and must enjoy the allegiance of a sufficient number of its citizens.’

If a group, be it, women, any caste, any class, is kept out of power for some time then ‘that has the capacity to destabilise the constitutional settlement’. Through our research, we saw that the women who are in politics, and who become MLAs, are relatively richer to those women who do not get into politics. The data shows that all of the women MLAs who get elected are relatively richer with assets ranging from Rs. 1,49,77,798 (of a member from Tripura) to Rs. 1,86,28,851 (of a member from Assam). The plight of a woman who is not relatively rich and is not represented in the law-making process is so much that it might make the state assemblies illegitimate and no longer liberal as it does not represent democracy, rather a ‘plutocracy’. Plutocracy is a society that is ruled or controlled by people of great wealth or income. A majority group, who is relatively poor, is kept out of power.

Research shows us that there are no single women in all the states who are ‘relatively poor’ as compared to others. The MLA with the lowest income among all of them is from Tripura (CPI(M) party) who has assets worth Rs. 7,05,142 (But we never know if this has increased after getting elected as an MLA). If a set of group, which has a defining characteristic that is relatively poor and not-men, is kept out of political power (even the minimum share of power), then ‘the guarantee of fair political opportunity has been compromised’ (see Tarun Khaitan’s research). If need to make a democracy legitimate of authority beyond the formal declaration of ‘free and fair elections’, we must address the issues of ‘political lockout’, under-representation and every group must get a chance to represent itself in the position of power.

As Geetika Dang, Research analyst from Brookings India put it ‘while Mizoram has never elected a female member Parliament [as also shown through our research even in the case of state assemblies], perhaps the starkest example of the lack of female representation comes from Nagaland that has failed to elect a single female MLA in 55 years of statehood. Rano Shaiza, a member of United Democratic Party, was the first and only woman in this state who was elected to Lok Sabha in 1977.’ Our research shows that currently in Mizoram and Nagaland there are no women MLAs in an area where the population of women is 5.41 lakhs and 9.53 lakhs respectively. There is no state in North East India which does not regularly make laws for women but the voices of the women are not heard in the halls of the legislature as there is no one to represent them. Further, the data from Manipur raises more alarming concerns as for 14.17 lakhs women, there is only one MLA.

We also found something interesting that out of these total 24 elected MLAs in the North East region, only 4 of them have some kind of political background. Rest of them did not have any sort of political background, neither their husbands nor their parents are in politics. This shows a positive trend that women are becoming independent and without any political support, they are standing up and coming into a profession which is termed as ‘dirty’ in common parlance (but we are not sure about their political connection through other connections).

Although, it is true that every woman in North-East have a right to vote guaranteed by the Constitution, but just formal declaration of equality cannot justify the inequality faced by women in the law-making process (or even in their share of political power). Hence, there is a need for a minimum reservation of seats for women in the legislative assemblies.

 Answering the ‘inequality’ in Representation: A ‘Localised’ Solution?

One of the methods to ensure women representation in North-East region is by making sure all the women come together to support other women, basically lobby the support. This needs to be done through the Gandhian methods of localising the issues and answering them through a bottoms-up approach. As Simi Malhotra, Director of the Centre for North East Studies and Policy Research, Jamia Millia Islamia, said in a Development Seminar in 2019 that, “the paternalistic baggage of ethnicity, and hence the ethnic divide within the northeastern states, has been an impediment in this direction.  At the grassroots level, the women’s movement in the northeast and associated synergies and outlets of solidarity have to be explored.” But this casts another issue which is inevitable that only those women who are relatively richer will be able to organise women and get the support like how we see in national politics. Even the first generation politicians have strong economical backing. We hardly see any MP or MLA from a relatively poor background. As we have seen through our research that most of the women who are elected as MLAs are from an economically richer section of society.

Further, this, bottoms-up approach, is not an absolute guarantee that women will be represented in the assembly because keeping women out of politics is not just a problem of political parties who do not give chance to women, but also a constitutional and a social problem. The preamble uses the words ‘We the People’ gives ourselves this constitution, but if the ‘supreme document’ cannot guarantee a group minimum power in the political machinery, then the faith of that group would be shaken and hence, the problems need constitutional insurance/reservations.

‘Political Assurance’: Proportionate Reservation

Political empowerment of women is a necessity in eliminating gender inequality and discrimination. Political power is a (sort) of guarantee to the women which will ensure that the elected regime remains legitimate addressing all the issues related to women. If we look at the historical account of the efforts made to reserve seats for women in Lok Sabha and State Assemblies, we can trace a ‘background note’ by the Law Ministry which shows that efforts made to reserve seats for women in State Assemblies and House of People always failed due to lack of political consensus.

Again in 2008, Rajya Sabha’s Department related to Parliamentary Standing Committee on Personnel, public grievances, law and justice presented its 36th Report on The Constitution (One Hundred and Eighth Amendment) Bill, 2008 in which the committee recommended for proportionate reservation for women in Lok Sabha and State Assemblies. Further AIDMK member orally stated before the committee on the need for reservation for women.

Reservation for women is not a bounty but it is an honest recognition of their contribution to social development and to the society at large.

We have seen the justices of the High Court in the past few years (as well) making “misogynistic observations” in cases involving penal sections like Rape, Assault etc. It shows the mindset of the society towards the women that is horrific and has no place in the 21st century and it enhances the need for a political assurance as ‘there is no logic in saying that women are deficient in physical, mental and intellectual capabilities. Still, they have been forced to be earmarked as the weaker sections of the society. In fact, by keeping 50 per cent of the society weaker we have made the whole society weak. In such a situation, some compulsory legislative measures need to be taken for proportionate representation of the women in the State Assemblies and the Lok Sabha as well.’

The arguments against the reservation of women state that women empowerment cannot be done through such measures, instead, we need a societal change where everyone changes from within. But such ‘Gandhian’ bottom’s up approach fails in the long run as the people do not have an incentive to change their attitude and behaviour towards the other gender. Rather, constitutional insurances which guarantee formal equality accelerates the ‘process of change’ in the society as seen in the case and experiment of Reservation of 33% for women in Panchayati Raj. The Committee which recommended the reservation for women also observed that ‘the data shows that through 1/3rd reservation of seats for women in Panchayats and Nagarpalikas, they have been able to make meaningful contributions and that the actual representation of women in Panchayati Raj institutions has gone up to 42.3% i.e., beyond the reservation percentage.’

Impossibility of Reservation in Rajya Sabha: ‘Article 80 of the Constitution specifies that members of state assemblies will elect Rajya Sabha MPs through a single transferable vote.  This implies that the votes are first allocated to the most preferred candidate, and then to the next preferred candidate, and so on.  This system cannot accommodate the principle of reserving a certain number of seats for a particular group.  Currently, Rajya Sabha does not have a reservation for SCs and STs. Therefore, any system that provides reservation in Rajya Sabha implies that the Constitution must be amended to jettison the Single Transferable Vote system.’

Anyhow, leaving the Rajya Sabha aside, the Preamble of the Indian Constitution states and guarantees that every citizen must be secured of ‘equality of status and opportunity’. These commitments in the Preamble must be the objective of the legislature which they must seek to achieve while enacting an amendment for reservation of women. The data shows that the women are not represented equally in the Assemblies and there is a need for change, or else questions against the legitimacy of the democracy will strengthen. Equality for women is not just a game of mockery and gimmickry for ‘International women’s day’, but it is a continuous effort to eradicate various social, economic and political gaps between the genders.

This is a research conducted by Chaitanya Singh, Founder and Editor of Constitutional Renaissance Blog. The author would like to thank Ms Raksha Tripathy, Ms Sulagna Sarkar and Mr Yuvraj Ranolia for assisting in data analysis and research.

A Conservative Amendment in a Liberal Constitution: The First Amendment

[Editorial Note: The author would like to thank Tripurdaman Singh for his book Sixteen Stormy Days: The Story of the First Amendment of the Constitution of India and Amit Varma for a wonderful discussion on his podcast Seen and the Unseen]

It was the year 1951 and the Supreme Court had passed two judgments, Brij Bhushan v. the State of Delhi and Romesh Thapar v. the State of Madras, upholding the freedom of speech and expression as guaranteed under the Article 19(1) of the Indian Constitution. It was before the First Constitutional Amendment when the Constitution was considered to be ‘fairly liberal’ as the freedoms guaranteed under Article 19 were not subject to so many restrictions as we see today. Restrictions were there in the original Constitution as well, no doubt, as they are necessary. Then, the freedoms were the rights and the restrictions were the exceptions to those rights. But what followed after these two judgments was an act of Parliament (more of Nehru’s) which turned the freedoms into (somewhat) exceptions.

The First Constitutional Amendment, 1951

It has to be kept in mind that the first amendment was discussed and passed by the provisional parliament which did not have a ‘popular mandate’. It was the provisional Parliament’s members who framed the Constitution but they were not the constituent assembly. But for Nehru, it did not make any difference, as he said in the assembly:

“Now, that Constituent Assembly which has gone into the history of India is no more; but we who sit here, or nearly all of us, still continue that tradition, that link. In fact, it is we after all, who was the Constituent Assembly and who drafted this Constitution. Then we were not supposed to be competent enough to draft the Constitution. But now, the work we did was so perfect that we are not now competent enough to touch it! That is rather an odd argument.” 

He was right somehow, they were not competent to amend the Constitution as they did not have any popular mandate and this amendment could have waited till the elections. But it was nothing, but sixty stormy days of debates, discussion and dictatorial behaviour! Before the amendment, Article 19(2) read as:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”

It did not have any ‘reasonable restriction’ clause in it. But the restrictions were not so much. After the amendment, clause 2 of Article 19 read as follows:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

This means that parliament can frame a ‘law’ which can restrict the freedom of speech and expression if that law is in furtherance of the restrictions given thereunder. Restrictions like public order or incitement to an offence are vague and can create a long-lasting chilling effect and they are, even now. Suppose, there is a rally in protest against any law passed by the state, then the state can restrict that protest and say it violates the public order, hence, citizens cannot exercise their right to speak against the government and they can invoke the draconian section 124A (Sedition) of IPC, 1860 [which is an offence under a law made by the state].

The Reasons for Amendment and the Opposing Views

In the cases of Brij Bhusan and Romesh Thapar, the government attempted to curb the freedom of the press and the right to free speech and expression. But the Court struck down that imposed restraint on civil liberties. When the question of interpretation of Article 19 came up, the Supreme Court held that if the maintenance of public, order or securing the public safety was something which did not affect the security of the State or the overthrowing of the State, then there could be no restriction on freedom of speech. The amendment was being made to overrule these judgments [hence, the words public order etc. were added], but PM Nehru said ingeniously in the assembly as he said: “We are not putting down any kind of curb or restraint. We are removing certain doubts so as to enable Parliament to function if it so chooses and when it chooses. Nothing else happens when this Bill is passed except to clarify the authority of Parliament.” These amendments have chilling effects till now. We still see so many violations of civil rights in the name of these so-called restrictions.

Nehru’s vision of freedom was more conservative (and not so liberal) as a Prime Minister than as a leader of the Congress party during the freedom struggle. According to him, the freedom of speech ‘carries with itself responsibilities and obligations’ and if they are not performed, then there would be no freedom. This goes against liberal thought.

The Parliament and the government could have dealt with the problems of public order or incitement of offence through preventive detention laws. Now, supposing there are persons who are preaching murder and who are doing, something of that character, supposing there is some newspaper which is doing something of that character and the writer is there, the individual can be secured under the Preventive Detention Act. So, if the Parliament or the Government want to prevent a person or group of persons from committing acts which they consider to be against the interests of public order, then they are already clothed with sufficient authority to do so.

The amendment does not bear any fruit, except increasing the power of the government. Another restriction which is placed is the restriction on criticism or speech on ‘friendly relations with other states’. On this Shyama Prasad Mukherjee, who I feel is a text-book example of a classic liberal during the debates, said: “I have not been able to find any precedent in any part of the civilised world whereby law under the provisions of the Constitution criticism of foreign powers is taboo.

He cast doubts on the meaning of ‘friendly relations with other states’, as he said: “we may say anything about a foreign country with the utmost friendship in our hearts but if that country misunderstands and says that it offends it or it affects our friendly relations with them, you are at once bound by the provisions of the Constitution.” If the government today passes any law in furtherance of these restrictions, then anything can be restricted and the civil liberties and freedoms will merely become exceptions.

The fears apprehended by Dr Shyama Prasad Mukherjee are now re-surfacing back in 2020 as we witness internet shutdown(s) in Kashmir using Section 144 of Criminal Procedure Code, use of draconian laws like National Security Act and Unlawful Activities Prevention Act (UAPA) to curb Freedom of Speech and Expression among other violations. We see these violations of free speech and civil liberties and the reason (not the sole reason though) behind such regressive measures is this hurried, hasty and (“unconstitutional”) First Constitutional Amendment Act. PM Nehru, despite his charismatic leadership and vision, did put the Constitution and civil liberties in danger.

In conclusion, let us revisit the prophetic warning given by Dr Mukherjee and try to draw parallels in contemporary times:

“Maybe you [Nehru] will continue for eternity, in the next generation, for generations unborn; that is quite possible. But supposing some other party comes into authority? What is the precedent you are laying down?

The fears imagined by Mukherjee in 1951 still haunts us today!