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 Diaphanous upon Constituent Assembly- II: In Purview of Women in Politics and their Remembrance

[This is a post by Diksha Dadu, Contributing Member]

In my previous article, I discussed the position of women in the Constituent Assembly and their attributes that led to the formation and participation of more women in politics and leadership roles thereof. Further, I also highlighted vital reforms brought about by the women while building our Constitution from scratch. In this article, I will be jotting down in continuance of the previous writing, the various reforms especially by the women and for the women which led to a structural and equally built political and constitutional structure in recent times. 

Abolition of Women Trafficking and Unequal Societal Norms and its Critiques thereof

“The average woman in this country has suffered now for centuries from inequalities heaped upon her by laws, customs and practices of people who have fallen from the heights of that civilisation of which we are all so proud, and in praise of which Dr Sir S. Radhakrishnan has always spoken”, argued Shrimati Hansa Mehta while criticising purdah system and women trafficking in Indian social norms. She was against the purdah system as women were confined within the four walls of their homes and were restricted to follow a certain social norm, therefore, she strongly opined for a better living in terms of societal norms and cultural ethnicity including a better standard of living for women. Since independence, the Indian women have been reduced to such a state of helplessness that she has become easy prey of those who wish to exploit in certain situations like giving dowry in a wedding, forceful marriages against the will of the women, and objections when women wanted to work. These situations were predominant post-independence and it was very difficult for women to take their stand and speak against the will of their families. Therefore, the women leaders in the Constituent Assembly voiced their opinion through debates and speeches for the abolition of such a system. She, further, debated over equality and proper state of living for Indian women who were forced into marriage and even forced into not remarrying if their husband dies.

“I may tell you, and I may draw your attention that no wife, no mother is feeling secure; And they are not sure when their husbands would come back, whether they would return home or not. Also, the menfolk, when they go out, are not quite sure by the time they return home, whether the wife or the daughters are safe there in the house.” 

That is the position, opined Shrimati G. Durgabai while pointing fingers towards the state and role of the state in protection of women. She believed that women are not safe inside and outside their houses because of the conventional approaches in society such as the dowry system, devadasi system and purdah system. She, however, supported the ideology of Mr Pandit Thakur Das Bhargava and argued extensively that such norms should be reviewed and women should be given equal and equitable status as men, for men and women are humans and humanity is the greatest work of God. 

However, it is pertinent to note that at times women took no interest whatsoever for voicing up their opinion on such vital constitutional matters themselves. Amongst the others, some important and abhorrent acts were domestic violence, dowry system, prostitution and devadasi system. It could be because of the patriarchal societal norms which restricted them from voicing their opinion and led them to live a cattle life. In this regard, the discussion about the amendment moved by K.T. Shah to draft Article 17 (Presently Article 23) on trafficking in human beings is worth noting. He observed:

“That in clause (1) of Article 17, for the words `Traffic in human beings and beggar’, the words `Traffic in human beings or their dedication in the name of religion to be Devadasis or be subject to other forms of enslavement and degradation and beggar’ be substituted.”

However, one of the women members expressed her reluctance for having such an amendment on the ground that the practice of Devadasi system had been made illegal in the State of Madras. Similarly, T. T. Krishnamachari launched a scathing attack on Shah’s suggestion by observing and pointing out that fundamental rights which are already incorporated in the constitution must be used as a strict action and must not be abused and action must be set up. 

“…. If those abuses are such where vested interests are likely to seek perpetuation of those abuses, well, I think we have to provide against them, but if public opinion is sufficiently mobilized against those abuses, I do not think we ought to put a blot on the fair name of India, possibly, by enacting in our constitution a ban on such abuses. …and do not try to import into these fundamental rights age-old peculiarities of ours that still persist, bad as they are in particular parts of society which can be made to disappear by suitable legislation in due course, perhaps in two, three or four years….”, reiterated T. T. Krishnamachari.

Therefore, if we look at the above excerpts from the past closely we will be able to derive two bold viewpoints. Firstly, the framers in the assembly who were against dowry practice and other such societal norms which gave women a secondary position in society. Secondly, the framers who believed that women should be associated with household chores and men with the outside work, and that purdah system made them respectable. One of the notable women for this approach was Begum Aizaz Rasu who criticised reservation for any particular sect yet agreed with Dr Ambedkar that it is for the majority to realise its duty not to discriminate against any minority. She believed that equality must prevail at all times and citizens, irrespective of men or women should be fully aware of their responsibilities and to evolve a system best suited to the needs, requirements, culture and genius of the people living here. Furthermore, it is essential to throw some light upon her closing remarks during the constituent Assembly Debate of 31 July 1947 wherein she instilled a sense of pride and respect while referring her speech to Dr B.R Ambedkar’s ideology as:

“Sir, as a woman, I have very great satisfaction in the fact that no discrimination will be made on account of sex. It is in the fitness of things that such a provision should have been made in the Draft Constitution, and I am sure women can look forward to equality of opportunity under the new Constitution. We feel that our interests are absolutely identical with those of the majority, and expect that the majority would deal justly and fairly with all minorities. At the same time, as has been pointed out by some honourable Members in their speeches, reservation of seats for minorities in the Services is a very essential thing and I hope that the members of this House will consider it when we deal with that question.”

Concluding Remarks

“Equal right is a great thing and it is only fitting that it has been included in the Constitution. People outside have been saying that India did not give equal rights to her women. Now we can say that when the Indian people themselves framed their Constitution they have given rights to women equal with every other citizen of the country”, stated Shrimati Ammu Swaminathan.

However, even in present time women around the world at every socio-political level find themselves under-represented in parliament and far removed from decision-making levels which can be seen by looking at the ratio of female judges in the Hon’ble Supreme Court of India. Even today the political or the public field is uneven and not conducive to women’s participation. Throughout the world, women face obstacles to their participation in politics and barriers are to be found in prevailing social and economic regimes, as well as in existing political structures in India.

Moreover, Indian politics advertises women from a particular political background which is the primary reason among others as to why most of the women are unwilling to engage in the election system. Their proportion in the Parliament, as well as State Legislatures and other top political hierarchies, is not very significant and their participation in politics as voters, candidates, campaigners and office-holders in political parties, on an equal footing with men, remains a dream.

Gender Equality or Religious Beliefs: Conflicting Rights?

[This is a post by Panya Mathur, Contributing Member]

“Religion is regarded by the common people as true, by the wise as false, and by the rulers as useful.” -Lucius Annaeus Seneca

Through this article, I intend to introduce the concept of Right to Religion as well as Right to Equality as enshrined under the Constitution of India. I will be discussing the scope of these rights in detail and will be commenting briefly on the case of Indian Young Lawyers Association v. State of Kerala, popularly known as the Sabrimala Judgement, which is a landmark judgement that shines some light on the conflict between these fundamental rights.

Right to religious freedom

Articles 25 to 28 of the Constitution of India provide the right to freedom of religion. The right to practice any religion freely is provided under Article 25 of the Constitution of India.

Under Article 25, two distinct terms namely religion and conscience have been conceptualized. While the bare constitution makes no mention of these aforementioned terms, the jurisprudence of the courts has laid down comprehensively the meaning and boundaries of the term ‘religion’. In one of its earliest cases, Comm., Hindu Religious Endowments Madras v. Sri Lakshmindru Thirtha Swamiar of Sri Shirur Mutt, the Supreme Court has laid down extensively the meaning and ambit of ‘religion’,

“…religion is certainly a matter of faith with individuals or communities and not necessarily theistic… a religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well- being, but it would not be correct to say that religion is nothing else but a doctrine of belief…it may prescribe rituals and observances, and modes of worship…might even extend to matters of food and dress.”

On the other hand, Article 26 of the Constitution of India guarantees to every independent religious denomination the right to manage its affairs and maintain institutions for religious purposes and to manage and maintain the same. The interpretation of the term ‘religion’ for the purposes of Article 26 of the Constitution is a set of practices that have its belief in a basic set of doctrines and beliefs that the followers of such religion base their very spiritual well-being depend upon. The case of S.P. Mittal v. Union of India laid down a three-part test to determine whether a said group of religious worshippers can be construed to be a religious denomination for the purposes of Article 26 of the Constitution of India:

1.  Must be a collection of individuals who have a set of beliefs or doctrines which they regard as conducive to their spiritual well-being;

2.  A common organisation;

3. A distinctive name;

These two articles form the very basis of the fundamental right to practice a religion of choice to every citizen of the country. However, the rights enshrined under Article 25 are subject to public order, morality and health. Morality, in itself a very ambiguous and broad term, which gives rise to a plethora of interpretations across the population. Even the courts have failed to clarify the scope of the term ‘morality’ through its judgements and have resorted to an approach that differs from case to case.

Right to Equality

Article 14 of the Constitution of India mandates that the State shall not deny to any person equality before the law or equal protection of laws. It reads as:  “Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The permissible classification must satisfy the twin sets, namely:

(i) the classification must be founded on an intelligible differential which distinguishes persons or things grouped together from others left out of the class, and;

(ii) such differentia must have a rational relation with the object sought to be achieved by the legislation.  

In the case of Budhan v. State of Bihar, the Hon’ble Court stated that the validity of the Act depends on the object of the legislation in view and whatever has a reasonable relation to the object or purpose of the legislation is a reasonable basis for classification of the objects coming under the purview of the enactment. The court further stated that what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It has been a well-settled principle by the Supreme Court in the case of FN Balsara v. State of Bombay that in every form of classification, there would exist some form of inequality, and the mere existence of such inequality is not enough to violate Article 14 of the Constitution.

It can be very well conferred from the various judgements pronounced by the Supreme Court that if a particular belief is deeply rooted in the various practices of the worshippers of a particular religion, then there exists a reasonable nexus between the object of the legislation and the classification itself; therefore, making the religious practice valid, and not arbitrary.

However, it is pertinent to note that Equality and non-discrimination are certainly one facet of Constitutional Morality. However, the concept of equality and non- discrimination in matters of religion cannot be viewed in isolation. Constitutional morality requires the harmonization or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined. (Constitutional Morality viz-a-viz will be discussed later on this blog)

Sabarimala Judgment

A five-judge Constitutional bench of the Hon‘ble Supreme Court ruled 4:1 in favour of allowing women of all ages to enter the temple and found the practice prejudicial in its very essence and that it violates women‘s right to practice religion. It also ruled that the devotees of Lord Ayyappa do not constitute a separate religious denomination as they do not have any common religious tenets specific and different to themselves other than those which are customary to the Hindu religion. The verdict established the principle that individual freedom prevails over professed group rights, even in religious matters and relooks at the stigmatization of women devotees based on a medieval perspective that menstruation symbolizes impurity and pollution. It declares that the exclusion on the basis of impurity is a form of untouchability. Justice Indu Malhotra, however, delivered a dissenting opinion. She argued that constitutional morality in a secular polity, such as India, requires a ‘harmonisation‘ of various competing claims to fundamental rights. She stated that the Court must respect a religious denomination’s right to manage their internal affairs, regardless of whether their practices are rational or logical. Justice Indu Malhotra also highlighted that the primary reason for the imposition of this custom is the very well-being of the idol itself and that the well-being of the idol can be translated to the well-being of the devotees thereunder and since such ideas are distilled into the human brain to be a part of one’s religious practices itself, it becomes a part of the person’s faith and therefore, cannot be violated by demolishing such faith under the guise of superstition or irrationality.

This judgement gave rise to a rather heated debate where citizens began to criticize the apex court for overreaching its judicial powers. Academicians across the country believe that notions of rationality cannot be invoked in matters of religion by courts and the apex court should have refrained from doing so. But some people also celebrated the decision as they believed that the practices which legitimise menstrual taboos due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement, the right to education, and the right of entry to places of worship and eventually their access to the public sphere. It is, however, fairly disappointing that not a lot of attention was paid to the constitutional framework that was discussed in this case and how the principle of harmonious construction was held to be of grave importance.

A five-judge Constitutional bench of the Hon‘ble Supreme Court ruled 4:1 in favour of allowing women of all ages to enter the temple and found the practice prejudicial in its very essence and that it violates women‘s right to practice religion. It also ruled that the devotees of Lord Ayyappa do not constitute a separate religious denomination as they do not have any common religious tenets specific and different to themselves other than those which are customary to the Hindu religion. The verdict established the principle that individual freedom prevails over professed group rights, even in religious matters and relooks at the stigmatization of women devotees based on a medieval perspective that menstruation symbolizes impurity and pollution. It declares that the exclusion on the basis of impurity is a form of untouchability. Justice Indu Malhotra, however, delivered a dissenting opinion. She argued that constitutional morality in a secular polity, such as India, requires a ‘harmonisation‘ of various competing claims to fundamental rights. She stated that the Court must respect a religious denomination’s right to manage their internal affairs, regardless of whether their practices are rational or logical. Justice Indu Malhotra also highlighted that the primary reason for the imposition of this custom is the very well-being of the idol itself and that the well-being of the idol can be translated to the well-being of the devotees thereunder and since such ideas are distilled into the human brain to be a part of one’s religious practices itself, it becomes a part of the person’s faith and therefore, cannot be violated by demolishing such faith under the guise of superstition or irrationality.

This judgement gave rise to a rather heated debate where citizens began to criticize the apex court for overreaching its judicial powers. Academicians across the country believe that notions of rationality cannot be invoked in matters of religion by courts and the apex court should have refrained from doing so. But some people also celebrated the decision as they believed that the practices which legitimise menstrual taboos due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement, the right to education, and the right of entry to places of worship and eventually their access to the public sphere. It is, however, fairly disappointing that not a lot of attention was paid to the constitutional framework that was discussed in this case and how the principle of harmonious construction was held to be of grave importance.

Concluding Remarks

The philosophy of testing religious practices under the ambit of only Article 14, and the principles of rationality that it engages in, is in primary derogation of the Constitution in itself. By only applying the twin test laid down in Article 14 of the Constitution i.e. the fact that there should be a reasonable nexus between the object of the law and the very concept of intelligible differentia, the fundamental right protected under Article 25 of the Constitution of India is left untouched and undiscussed.  Furthermore, as discussed in the case of Bijoe Emanuel & Ors. v. State of Kerala & Ors, this Hon’ble Court laid down that the personal view of judges are irrelevant in ascertaining whether a particular religion or a belief followed therein should be protected under Article 25(1) of the Constitution of India. Unlike the Article 25 of the Constitution of India, which is subject to the other provisions of Part III of the Constitution, Article 26 is subject only to public order, morality, and health, and not to the other provisions of the Constitution of India. And as a result, the Fundamental Rights of the religious denominations are not subject to either Articles 14 or 15 of the Constitution. And thus, the principles of equality and non-discrimination as enunciated by Articles 14 and 15 are grossly inadequate in limiting the freedom to manage religious affairs under Article 26. The characterization of age may form a reasonable basis for the object of specific legislation. On satisfying both the parts of the twin test aforementioned, the statute must be held to be valid legislation. As already proved that the decision of the temple board is deeply based in the beliefs of the worshippers of the temple therein, there exists a reasonable nexus between the object of the legislation and the classification itself; therefore, making the classification valid, and not arbitrary.

(Note: In my next article, I will be focussing more on the aspect of essential religious practices as defined under Article 25 and its scope with special reference to Article 13 and 17 of the Constitution of India, in the light of the principles established by the Supreme Court in the Sabrimala Judgement. Access the Article here.)

A Diaphanous upon Constituent Assembly-I: In Purview of Women in Politics and their Remembrance

[This is a post by Diksha DaduContributing Member]

This is a series of articles wherein I will be dealing with the heroism and contribution of women in the framing of the Indian Constitution and their honour in the Constituent Assembly. Parlance will be drawn regarding the initiatives and reforms brought about by women in the Constituent Assembly.

Introduction

“Boycott the future legislation of India if it doesn’t comprise of enough women in all levels, for, women are the centre stage of our freedom struggle and I do not wish to accept a legislation without enough Women leaders”

critiqued Mahatma Gandhi in early 1930s.

Our Indian Constitution is one of the lengthiest and well-written Constitutions of the world. It is considered to be an all-inclusive constitution which surfaces itself to the institution of the Constituent Assembly which in turn led to the making of our constitution. While addressing the framework or the committee of our drafting committee, we come across many notable members who were responsible for the ultimatum, however, no significant light has been centred towards the involvement of women and their wit grit which led to a revolutionary and reformatory change in our overall socio-economic and socio-political political system.  

Therefore, this article analyses the distinct importance of women in the framing of the constitution of India and their significant role in the Constituent Assembly. The vital essence and the main purpose of this article are to remember and pay respect to the reforms brought out by women in political and legislative roles in the Post-Independence Era via contemplating the historical background, famous speeches and work, difficulties due to Indian societal structure and an overall theoretical approach to the social issues which stunted the empowerment of women in politics as well as in other legislative roles.

Making of the Constitution: Women’s Contribution and Reforms in Constituent Assembly

Throughout the India’s Freedom Struggle for Independence, the role of women has been shadowed even though their sacrifices amidst the torture, hardships and exploitations carried out a huge impact on the overall movement. In the early 1817’s, that is, 30 years before the First War of Independence, women came forward to fight against the British atrocities when most of the Indian men were thrown in jail for their opposite interest from that of the Britishers. Heroism and acts of rebellion against the wrongful acts is said to be initiated by the infamous Bhima Bai Holkar who fought against Colonel Malcolm and defeated him in Guerilla warfare. Many other women including Rani Channama of Kittur, Rani Begam Hazrat Mahal of Avadh fought against British East India company in the 19th century and had laid an outstanding example of real patriotism. This historical appreciation gives us an insight into the role and position of women in our societal fabric which will help us entail the broad canvas with regard to the contribution of women in the making of the constitution within the sphere of complex social and political boundaries. 

In December 1946, the constituent assembly came together to debate and draft a constitution for an independent India. It took place over 2 years, 11 months and 17 days. Among the 299 members of the assembly, 15 were women who had either been voted or chosen to represent their provinces. The assembly was a platform from which they could assert their equality and craft a politically balanced republic. The under-currents beneath the drafting of constitution and rhetoric reformations brought out by women formulated a new hope for women with regard to the issue of gender roles and has strived women to be voluble in their speech and fight for their rights. The representation of women in the assembly was only 4%, however, it is a reflection of plurality in our historical juncture reinstating the interventions and backdrop of women participation led to a significant reformulation in future for women in politics.

Minority Rights and Abolition of Untouchability

“The working of the Constitution will depend upon how the people will conduct themselves in the future, not on the actual execution of the law. So I hope that in course of time there will not be such a community known as Untouchables and that our delegates abroad will not have to hang their heads in shame if somebody raises such a question in an organization of international nature,” said Smt. Dakshayani Velayudan who was the first Dalit woman to get elected and made the assembly go beyond framing a constitution and to give “people a new framework of life”. She used this opportunity to make untouchability illegal, unlawful and ensure a “moral safeguard that gives real protection to the underdogs” in India. Her discussion included taking down Churchill’s promise to safeguard the scheduled castes in an independent India and argued that the communist party was only exploiting the Harijans. She held strong to the conviction that only an Independent socialist republic can help uplift the Dalits and give them the liberties exercised by every other citizen.

She delivered her speech on the 28th of August 1947 against separate electorates in any form and her censure of the reservation system was in support of a nationalist narrative that sought economic and social upliftment rather than looking to politics as a means to eradicate the system of untouchability. She highlighted in her speech on “As long as the Scheduled Castes, or the Harijans or by whatever name they may be called, are economic slaves of other people, there is no meaning demanding either separate electorates or joint electorates or any other kind of electorates with this kind of percentage.”

Furthermore, Smt. Purnima Banerji and Smt. Renuka Ray played a significant role in putting forward minority issues and possible legal changes in the laws pertaining to women. Ray debated and discussed that “It is they who are the backward sections of the community and who are the majority at the same time. It is their problem that we have to take up. If we want to make the Objectives Resolution that this House has passed and the Fundamental Rights that have been laid down, a living reality, it is this problem that we have got to tackle.” They both fought for equal rights for minority groups and their development through all means and power imbibed in the constitution and their activism and arguments encircled India’s paramount interest and debated that Hindus as a religious community shall not override others interest with the main focus that no special group shall stand in the way of equality and harmonious development.

Socio, economic and Political Justice for Women

“There are thousands of women today who are denied ordinary human rights. They are put behind the purdah, secluded within the four walls of their homes, unable to move freely”, argued Smt. Hansa Mehta while emphasizing upon the vitality of social justice, economic justice, political justice and equality which can alone be the basis of mutual respect and without which real co-operation is not possible between men and women. She was the president of All India Women’s Conference, member of UN sub-committee on the status of women, and vice-chair with Eleanor Roosevelt on the committee which drafted the Universal Declaration of Human Rights. Mehta was an educationist, feminist and reformist and along with  Rajkumari Amrit Kaur framed the Indian Women’s Charter of Rights and Duties and fought for the uniform civil code (UCC). She joined hands with Vijayalakshmi Pandit and worked on women’s equality and human rights in the UN as well.

“People outside have been saying that India did not give equal rights to her women. Now we can say that when the Indian people themselves framed their Constitution they have given rights to women equal with every other citizen of the country”, pointed out Shrimati Ammu Swaminathan in her speeches and argued widely for the inclusion of women in various aspects of equal fittings in the Constitution and recognition of women in the framing of India’s Constitution. 

Concluding remarks

Thus, to conclude, we can draw parlance regarding the subordinate position of women since the pre-independence era in furtherance of the role and attributes of women in society. It is essential to ponder over the fact that the making of the constitution would be bereft if women were not included, even though the figure remained less than half of men. However, the voluble women leaders and participants in the Assembly has led to a drastic reformatory approach in terms of the minority rights, the abolition of the untouchability and the over-all attribute of women in the society. These reforms as mentioned above help us to honour and remember the position and vitality of women in leadership roles and in the overall equal diaspora.  

Stay tuned for more of this series.