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.

Indian Federal Structure: An Umbilical Cord between Centre and State

In this post, I will be analysing the Indian Federal Structure. The structure of the Indian Constitution is so unique that it is impossible to describe it in simple terms. Here, I will try to go through various Constituent Assembly debates and scholarly views to conclude the real ‘character of the Indian Federal Structure’.

“Personally, I do not attach any importance to the label which may be attached to it-whether you call it a Federal Constitution or a Unitary Constitution or by any other name. It makes no difference so long as the Constitution serves our purpose” – Rajendra Prasad.

The Indian Constitution is sometimes called “federal”, “Quasi-Federal”, “Sui-Generis” or “Cooperative Federalism”. But interestingly the founding fathers themselves refused to adhere to any theory or dogma about federalism. As G. Ayyangar said in the assembly, ‘India had unique problems which were not confronted other federations in history’. (CAD Vol. V, page 38). As we all know, federalism does not have any ‘stable meaning’ or definite concept. Therefore, as L.K. Maitra said the founding fathers have pursued ‘the policy of pick and choose to what would suit them best, what would the genius of the nation best’. The outcome that we see today is sui generis (unique) Constitution.

As Granville Austin says the most singular aspect of the drafting of the federal provisions was the relative absence of conflict between the ‘centralizers’ and the ‘provincialists’. There no discussion on the effect of emergency provisions, distribution of powers between centre-state or over the distribution of revenue (which we see as a problem now due to the implementation of GST). The assembly members wanted more revenue for the states but they settled that the Union should collect the money and then distribute. The federal structure, as we see today, was acceptable to most of the members of the assembly. According to Dr Ambedkar,

“Ours is a Federal Constitution inasmuch as it establishes what may be called a Dual Polity which will consist of the Union at the Centre and the States at the periphery each endowed with sovereign powers to be exercised in the field assigned to them.”

Ambedkar said the Constitution avoided ‘tight mould of federalism’ and could be ‘both unitary as well as federal according to the requirements of time and circumstances’.

Reasons for the Centralizing tendencies: A Historical Account

I. Gandhi v. Nehru?

Gandhi wanted political decentralization where the focus is on the micro-level governance as opposed to centralized government. The idea is derived from the drawback of centralized decision making at the macro governmental levels. According to Gandhi decentralization of political power is the basic requirement for the success of true democracy. The concentration of power in his view distorts all democratic values. So he thought that “possession of power makes men blind and deaf; they cannot see things which are under their very nose, and cannot hear things which invade their ears.” Thus, his linking for decentralization originates from his urge for the shrinking of the state and the deepening of the roots of democracy. He, therefore, asserted that “If India is to evolve along non-violent lines; it will have to decentralize many things. Centralization cannot be sustained and defended without adequate force”.

But the assembly had other ideas and the way in which the Assembly framed these provisions, however, it may be helpful to look at the ‘forces bearing on its decisions’. The conditions precedent to the formation of the constituent assembly urged the members to create a powerful centre to prevent the country from disintegrating. Although the Government of India Act of 1935 gave powers to the provinces, the power was always in the hands of the British (centralised). Here the report of the Joint Parliamentary Committee stated that the central government under the 1935 Act would cease to authority over the matters listed under the provincial list, but ‘in virtue of his (Governor-General) powers supervising the Governors, he will have authority to secure compliance in certain respects with directions which he may find it necessary to give’. This centralizing tendency affected India’s future, as Austin says. The Indian never, in reality, got to participate in the ‘real’ federal process as seen in the USA or Australia.

Further, Nehru said, in contradiction to Gandhi, in 1936 that, ‘it is likely that free India may be a Federal India, though in any event there must be a great deal of unitary control’. Communalism also impacted the Indian federal structure and the effect of communal tensions on plans for a federal structure is evident in the reports of Nehru and Sapru Committee. Nehru in the report said, ‘We are called upon to determine the principles of the Constitution after considering these divergent views’ before us and they recommended for centralized federal structure based on 1919 Government of India Act. In the Sapru committee, the members wanted the provinces to have the ‘residuary power’ (as opposed to Indian Constitution currently which resides this power in Centre). But after the bloodshed of partition, the second report of Union Powers Committee dated 05.07.1947 in Paragraph 2 suggested that,

“It would be injurious to the interests of the country to provide for a weak central authority which would be incapable of ensuring peace, of coordinating vital matters of common concern, and of speaking effectively for the whole country in the international sphere… the Soundest framework for our Constitution is a federation with a strong Centre.” (Page 70-71)

In the meeting of the Negotiating Committee of the Chamber of Princes and the Assembly’s States Committee (08.02.1947), Nehru said we need to deal with the situation which might happen after the partition wherein there would be economic, refugee and food crisis. The new provinces might not be able to bear the strains of the new responsibility, hence, it was feasible to adopt a strong central government which could deal with the problems.

II. Communalism: Community rights over States’ rights

The issue of communal politics since the 1920s till the independence also influenced the demand for a strong centre. The need for communal representation was more important than the bifurcation of power between the provinces (states) and the Centre. The emotional Indian, as Austin calls them, wanted community rights over the states’ rights, which were secondary and never assumed the importance they had in Australia and the USA. Even in 1919 and 1935 Acts, more reliance was placed for community rights (Muslims and Hindus) rather than rights of the provinces. The demand for the partition unified the provinces with the centre. Responsible Indian leaders, already confronted with a fragmented society, believed no new, divisive forces should be introduced.

Cooperative Federalism in India

In my opinion, the Indian state is neither quasi-federal nor completely federal. But what we have adopted is Cooperative Federal structure in which all governments has to understand an essential point that they are not independent rather interdependent and they should act for maximization of the common good [as also put forth by Professor M.P. Jain].

Even the Constituent Assembly religiously embraced ‘cooperative federalism’ which is characterized by the interdependence of federal and regional governments. According to Austin, it “produces a strong central government, yet it does not necessarily result in weak provincial governments that are largely administrative agencies for central policies”. Indian federalism has demonstrated this. Also, Geoffrey Sawer proposes that cooperative federalism has the following characteristics: (a.) Centre and States have a reasonable degree of autonomy [as seen in the distribution of lists]; (b.) Each of the parties can bargain about the terms of cooperation, and; (c.) at least if driven too hard, decline to cooperate. Although these pointers are not directly applicable to the Indian scenario, the Union and the States have shown to work in harmony in avoiding constitutional discord.

One of the benefits of this type of federal structure is, in words of Hon’ble Justice Dipak Misra, that the “national vision as set out in the Preamble to our Constitution gets realized”. The approach of the governments might be different, but the ultimate goal and objective remain the same. This will lead to the strengthening of constitutional functionalism in a Welfare state, like India.

The units of in the Constitution should stress on negotiations for achieving common goals amongst different levels of governments. According to Martin Painter, Australian proponent for Collaborative federalism, says

“The practical exigencies in fulfilling constitutionally sanctioned functions should bring all governments from different levels together as equal partners based on negotiated cooperation for achieving the common aims and resolving the outstanding problems.”

Such an approach requires continuous and seamless interaction between the Union and the State Governments. Under the Indian Constitution, we have Article 263 which establishes the Inter-state council whose duty is to “discuss subjects in which some or all of the States, or the Union and one or more of the States, have a common interest” [like COVID-19, 2020] and to “make recommendations upon any such subject and, in particular, recommendations for the better coordination of policy and action with respect to that subject”. Even the existence for Article 239AA aims for cooperative federalism between NCT of Delhi and the Union, as held in the case of NCT of Delhi v. Union of India. Further, the constitutional vision of cooperative governance is enhanced by the provision made in Article 258 under which the President may, with the consent of a State, entrust to it or to its officers, functions concerning any matter to which the power of the Union extends.

Hence, in conclusion, the Indian Constitution provides a platform for cooperation and deliberation between the states and the Union. The process by which national goals set out in the Preamble and DPSPs are achieved, not by the Union government acting alone, but by some or all of the governments and the territories acting collectively in cooperation. This should be the guiding star to them to move on the path of harmonious co-existence and interdependence. 

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.