While it’s a well-known fact that the Constitution was drafted by 299 delegates who hailed from diverse communities, a mere 15 women, quite literally, helped write history by working on the document that would come to be known as the Constitution of India. Compared to the present-day situation, in terms of the gender gap, we are ranked 122 out of 153 countries when it comes to women’s representation in Parliament, according to the World Economic Forum’s Global Gender Gap Report 2021. The presence of women in decision-making signals equal opportunities for women, and this goes a long way in changing the existing discourse on gender equality.
It is a fact that law is a reflection of society, which chooses to evolve as its norms undergo a process of dynamic change. A study by PRS India shows that while 15 women were part of the Assembly, only 10 participated in debates.
Their contribution stands at just 2% of all discussions in the Assembly, whereas women currently constitute 48.20% of the population of India.
To provide some context, yes, it is only appropriate to celebrate the day we adopted our Constitution on by revisiting the contribution of the forgotten 15 women members of the Constituent Assembly.
Begum Qudsia Aizaz Rasul's Stand on 'Separate Electorate' for Muslims
One may ask why. How do we instead resist the urge to point out the obvious ways in which our laws fall short? Is an essay elucidating our multi-faceted rights any more celebratory than one tracing the indentation carved by women who helped draft those very rights we count on? We are often told that to learn from the past is to rectify the future. But what if we disagree with the past? Here, I present a comparative contrast on where we, the women of modern India, stand on some issues raised by women who framed our Constitution and to whom we owe a tribute.
At a time when communal tensions are as high as ever, we must pause and cheer the endeavours of Begum Qudsia Aizaz Rasul, who was a pathbreaker in her own right. She was the only Muslim woman politician to have contested from a non-reserved seat and was elected to the Uttar Pradesh Legislative Assembly. We would do well to remember that at a time when no one listened to women in general, much less to a woman in a position of power, Begum Qudsia leveraged the power of persuasion amongst the Muslim leadership to voluntarily give up the demand for reserved seats for religious minorities.
She vocalised her understanding of the Indian political diaspora by vociferously opposing the concept of ‘separate electorates’ for Muslims, and condemned it as a “self-destructive weapon that might have iron-clad separated the minorities from the majority”.
The democratic principle of our Constitution compels those elected to “uphold the sovereignty and integrity of India” and represent an entire electorate as opposed to bifurcating it into sections of people they wish to help and “others” they can afford to ignore. Cut to reality: why and for how much longer are Indian Muslims expected to be treated as second-class citizens regardless of separate electorates?
Purnima Banerji & Reserved Seats
Then there was Purnima Banerji (Secretary of the Indian National Congress committee in Uttar Pradesh who was arrested for her participation in the Quit India Movement), who enunciated that the association of women in the field of politics is not only essential but also indispensable. In the Constituent Assembly debates, she argued that the underlying logic for casual vacancies for the provisional Parliament to be filled by those belonging to the Sikh or Muslim community should be stretched to include women.
She insisted that while women may not want any reserved seats for themselves, nevertheless, any seats vacated by them should be filled up by women only. Standing her ground on returning women to the seats vacated by women in the Constituent Assembly, Banerji argued that women could have filled those places with equal merit and they should have been invited to do so. We, the women of modern India, acknowledge the 73rd Amendment to the Indian Constitution that percolated power to women at the panchayat level with a 33% reservation. What the 73rd Amendment did was create a federal space for women to participate and occupy a place in the local decision-making process.
On an ancillary note, the 73rd amendment is a classic example of a state working within the international margin of state discretion to meet its international obligations. Here, I refer to India’s obligations flowing from Article 7 of the CEDAW, which mandates signatories to eliminate inequalities that impede women from occupying positions of public office.
When reading Banerji’s speeches on why women should be amply represented in public offices, I was left wondering if perhaps we need affirmative action in the form of reservation for women in the judiciary, too.
Some states like Jharkhand and Bihar have a reservation policy for women in the lower judiciary, but what is missing is central legislation for all High Courts and the Supreme Court.
A few weeks ago, Chief Justice of India, N.V. Ramana, said that 50% reservation for women in the judiciary was a matter of right and less so of any other consideration. At present, there are four women out of 34 judges and only 17 women senior advocates as opposed to 403 men in the Supreme Court.
What Do Today's Women Think?
The debate on reservation, when broken down to its bone, is merit vs. equality — two sides of the same coin often at war with one another. To elucidate this contrast, I spoke with Neha Kapoor, Promoter-Director at Ojas Group of Companies, who views reservation as an imposition. Kapoor believes it is time we naturally start gravitating towards choice and discretion. She goes on to say “I don’t want to be looked through the lens of gender, to be labelled purely as an entrepreneur is fine by me.”
Diametrically opposed to this, Dr. Shibal Bhartiya, Senior Consultant at the Department of Ophthalmology at Fortis Memorial Research Institute, Gurgaon, feels that when talking about a traditionally oppressed class, we need props that enable us to fight privilege, and that is what social capital is. Standing her ground, she implores us to look at parity not only as an amalgamation of equality or equity but as justice in its most unadulterated form. But what if we developed a reservation system that met halfway and collated both viewpoints? Can we envisage a merit-based, transparent system that incentivises recruitment and representation of women in an egalitarian manner?
'Mere Rights Don't Serve Any Purpose': Durgabai Deshmukh
Durgabai Deshmukh wore many hats: she was a freedom fighter, lawyer, social worker and politician. She advocated that a large number of seats in various services should be reserved for girls, and that their education should be prioritised above all. She emphasised a simple truth: how a right without an expeditious and effective remedy reduces the former to mere redundancy. Having in place a mechanism that grants us a right, without the means to access it, in her words, “serves no purpose at all, nor is it worth the paper on which it is written”.
Our natural and constitutional rights do not exist in isolation, suspended on a mote of dust. Our relationship with the state is an ongoing bilateral talk, a two-way street that allows us to access the bridge of rights in case of its violation or infringement.
Nandita Rao, a lawyer at the High Court of Delhi, believes that every right is only as good as its enforcement. It is at this juncture we must understand ‘access to justice’ as necessarily including the availing of good lawyers and actual functioning of courts.
Rao states, “We have activated only 25 per cent of the true import of Article 32, especially so in the light of COVID-19.” She goes on to stress that despite commendable work by courts, justice is an ivory tower and is still mediated through lawyers.
In the seven decades post the adoption of our Constitution, the periphery of access to justice as a crucial fundamental right has expanded for the beams of time and friction to pass through. Nevertheless, the contribution and commitment of this pioneering generation of women politicians remains vital and needs to be celebrated.
(Aaliya Waziri is a lawyer and presently working as a Consultant with UN Women India. She has studied B.A. Philosophy (Hons) at Hindu College, University of Delhi and LL.B. at O.P. Jindal Global University. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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