“Oh, women! What sin have you committed that you were born in India,” Ishwar Chandra Vidyasagar said. Have things changed in the last 200 years or so? There is a rape every 16 minutes in India, a woman is subjected to cruelty by her in-laws every four minutes and nearly 19 dowry deaths take place every day. Even the recently introduced Bhartiya Nyaya Sanhita Bill (2023) has not declared the deplorably anachronistic notion of “marital rape” as rape. Women represent just 15 per cent of the Lok Sabha (78 out of 543) and 14 per cent in Rajya Sabha. Their representation in state legislative assemblies is shockingly low at 10 per cent. Chhattisgarh has the best representation with 14.44 per cent.
India’s decision to adopt a universal franchise was bold and historic. Some members of the Constituent Assembly had reservations and considered the right to vote for women “a dangerous weapon” (M Thirumula Rao); a “monstrous experiment” (Mahavir Tyagi) and an “impractical endeavour” (Biswanath Das). India was one of the first Asian countries to give women the right to vote and be elected as Members of Parliament. The introduction of the women’s reservation Bill is another milestone in the history of the world’s largest democracy. Interestingly, almost all reservation policies/extensions of reservation benefits have invariably been announced on the eve of an election. Before the 2019 Lok Sabha elections, the Modi government introduced the EWS reservation. Demands for OBC, Jat, Gujjar, Pattidar and Maratha reservations too take electoral considerations into account. Ideally, constitutional and legal reforms should be de-linked from the electoral calculations.
Women’s reservation will likely become operational only sometime prior to the 2029 Lok Sabha elections after the Census and delimitation exercise are over. Thus, it is intended to be used for electoral gains not only in 2024 but most likely even in 2029. The idea of rotation is the worst feature of the Bill as elected members would have little incentive to build and improve their constituency.
But in the meantime, nothing prevents political parties from giving one-third of the tickets to women candidates. Will the Opposition that is criticising the Modi government’s Bill take this bold initiative? Congress did announce in 2021 that it would give 40 per cent tickets to women in the 2022 UP Assembly elections of 2022. To be honest, the first major initiative on women’s reservation was taken by Rajiv Gandhi and was subsequently passed by the P V Narasimha government. An identical women’s reservation Bill was passed by the Manmohan Singh government in 2010. Sonia Gandhi rightly termed the yesterday’s Bill as “apna hai”.
The reservation of the SCs and STs in Parliament and state assemblies was initially just for 10 years but no party including the BJP — supposedly an upper caste party — has shown the courage to even include this issue in its manifesto. Even a suggestion of debate and review of reservation in admissions and jobs by the RSS chief in 2015 was severely criticised. Recently, the RSS chief spoke about the need for continuing reservation for another 200 years. Thus, the sunset clause of 15 years in the 128th Constitutional Amendment Bill is not of much significance.
Women’s reservation is not only justified on the grounds of women being historically disadvantaged but also on the grounds of their claim to representation in proportion to their numbers. In fact, proportional representation of all the diverse sections of our population would be a much bigger reform than the “one nation, one election” initiative. Our legislatures, at least, must reflect the diversity of the nation.
The opposition to women’s reservation has been on the grounds of representation of weaker sections. Representation is a better word than the expression “quota within quota”. Has not an elite amongst Dalits monopolised all the benefits of reservation? There is a genuine fear that already empowered and liberated women elite would similarly hijack the benefits of women’s reservation if OBC women are not given due representation.
The experience of reservation in panchayats and local urban bodies tells us that a new designation was invented by the powerful men in the villages — Pradhan Pati (husband of a woman Pradhan). Many important decisions were taken in the initial years by the Pradhan Patis rather than the women leaders themselves. It is heartening to note that in the subsequent decades, women Pradhans started asserting their independence and their performance has been simply outstanding. States like Bihar, Jharkhand, Kerala, Odisha, Rajasthan, etc., have now made a provision of 50 per cent reservation for women among members and sarpanches. Countries led by women during Covid-19 did much better in comparison to those led by men. Let us accept that women indeed make better leaders.
The male domination of legislatures is reflected in how laws — including in a matter as serious as rape — are tilted to favour them. Women’s experiences have been largely excluded from our laws. For example, the Indian Foreign Service (Conduct & Discipline) Rules, 1961 provided that no married woman had the right to be appointed to the Indian Foreign Service. Another rule required a woman IFS officer to obtain the government’s permission to solemnise her marriage and she may be asked to resign due to her marriage. Similarly, Air India Service Regulations had provided that an employee would retire at the age of 58 years but an air hostess would retire at the age of 35 years or on marriage if contracted within four years of the service or on the first pregnancy, whichever occurred earlier.
Even our judiciary, until recently, has been reflecting the patriarchal mindset and believed in formal equality rather than substantive equality. Thus, the special provision for women in Article 15(3) was in Dattatrya v. State of Bombay (1952) understood by Justice Chagla just as a “proviso” that cannot nullify the parent provision of Article 15(1) rather than an extension of equality. Women were said to be “weak” and thus laws protecting them were upheld as part of so-called “protective discrimination”.
In B R Acharya v. State of Gujarat (1981), women were considered “more suitable” to work in shelter homes and in Charan Singh v. Union of India (1978) to work as Railway Enquiry Desk clerks because they were “more courteous and polite”. In Mrs R S Singh (1972) a rule prohibiting women from becoming jail superintendents was upheld. In Air India v. Nargesh Meerza (1981), the Supreme Court even upheld the restriction on marriage as it helped a good deal in the promotion of family planning and on the ground that if air hostesses conceived within four years, the corporation would incur huge expenditure and would have to hire additional staff. It only struck down the provision of termination on the first pregnancy. In Yeshasinee Merchant (2004), it upheld the early retirement age for air hostesses. The Civil Procedure Code provision that when defendants cannot be found, service of summons can be made on any adult male was also upheld.
Would reservation of women really empower women, change our patriarchal mindset and end violence against them? Neither Indira Gandhi’s long tenure as prime minister, nor women chief ministers nor women speakers of the Lok Sabha have resulted in any significant improvement in the condition of Indian women. These women representatives too would be bound by the party discipline and would speak and vote in accordance with their party’s whip rather than their own conscience. Seventy-plus Muslim MLAs similarly proved to be ineffective during the Muzaffarnagar riots. Most of the 78 women members of the current Lok Sabha could not speak for women athletes when they were protesting sexual harassment and assault.
The writer is vice-chancellor, Chanakya National Law University, Patna. Views are personal