Other Dimensions of the Women’s Reservation Bill

The continuing debate on the proposed reservation for women in legislatures through a constitutional amendment has raised much froth and fury on both sides of the political fence but has left out many conceptual, constitutional and social aspects unattended.

In Article 15(1) of the Constitution any discrimination on the ground of sex alone is prohibited and the proposal is prima facie a blatant violation of this mandate. It may be argued that the raison d’etre of the proposed amendment is to nullify the constitutional objection just as Article 15(4) was adopted to nullify the bar on discrimination on grounds only of caste, religion etc. But no constitutional pundit has yet argued that a constitutional amendment can nullify a fundamental right by introducing another discrimination which does not benefit all women but only 33 per cent of them. Moreover, the Preamble, which promises Equality, does not promise gender equality.

There is another conceptual hurdle which must be credibly overcome first. Do women constitute a distinct class, a separate community and an identifiable social group defined by the normal markers like religion, caste, language and domicile or even occupation? No, they do not. Nature has differentiated them from men. Yes, but they form an inseparable part and parcel of, and are organically associated with, the social group or sub-groups in which they are born and live, to which their parents, husbands and children belong. They have their vocation, profession and occupation but their basic social interests they share with their own menfolk.

If women do not form a class by themselves, they cannot constitute a Backward Class for which the state is enjoined under Article 15(4) to make special provisions by way of positive affirmation. Since they do not, no reservation is possible on the ground of backwardness.

India is a democracy with the legislature as one of the three pillars of the state. It is a fact that women are not proportionally represented in the legislature but neither are they in spheres of national activity. Indeed, high or low, their representation, whatever they have, arises from and through their membership of the social group to which they belong.

India, by virtue of its population area, size of its economy and geo-political importance, is regarded today as one of the 10 world powers. But, as far as I know, none of the others have provided for reservation for their women in legislatures. It is illogical to compare India to states which do not fall in the same class in Asia, Africa and even in Europe and which have.

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Should the women of India, by virtue of their under-representation in Legislature, Executive, Judiciary, the armed forces etc., be considered a ‘weaker section’ under Article 46 of the Constitution which speaks in general terms through its social groups like SCs and STs? The Mishra Commission has extended its meaning to include religious minorities in all States under this term. But, no Commission of Inquiry has so far placed women among the weaker sections by themselves. There is, however, no doubt that in many ways women, far from being the advanced or stronger section, are not represented in many walks of life, and face discrimination in all stages of life: in the prenatal stage as a foetus, as a girl child in nutrition and education, at the stage of marriage and in old age when they become dependent on their offsprings. Can parliamentary representation change their situation, erode such persistent socio-economic discrimination, break through the chains of tradition and culture?

Higher representation in the legislatures has been justified on the ground that the parliamentary debate will become more civilised and perhaps more meaningful but we know that members always speak and behave as their parties like them to. With some exceptions few women have made their mark as politicians or legislators. Indira Gandhi and Mayawati are exceptions because they inherited the crown. One would like to have the statistics relating to women members who have participated in debates or proposed amendments or asked hard-hitting questions or placed governments in the dock. I scratch my head to recall a private bill piloted by a lady member. Even with one-third women membership Parliament will remain essentially what it is today: a conglomerate of demand-silent hand-raisers! One may say that they cannot make a mark under the present system when the control of governance and the political system lies with men. I do recall when I was a member of the Rajya Sabha in the early eighties at the beginning of my parliamentary career and sitting in the Opposition, a set of well-known women MPs in the Treasury Benches, sitting next to each other, disturbed the proceedings as a team. I had named them as the Amazon Brigade. The larger point is that the quota shall not change the pattern.

It has also been said that women shall be, particularly when they become Ministers, less prone to corruption; but they have the intelligence to soon pick up all the tricks of the trade. In any case, their husbands, following the glorious example at the panchayat level by the ‘Sarpanchpati’, shall control what they do. Shall women Ministers be sensitive towards the weaker sections, the deprived and towards the economic life of public funds? I would say no!

No doubt, in the Panchayati Raj women have made a mark but one should look at the nature of the work of the panchayat and of Parliament. At the panchayat level it is not a question of policy-making and law-making but of management of allotted resources. Perhaps, the women shall be more sensitive to the needs of the common man and see to it that the panchayat funds and the panchayat programmes work to the satisfaction of the people. But one should not ignore the basic difference with legislators who have the privilege of questioning the government when things apparently go wrong.

It is said that the proposed Bill has been on the book for 14 years and have seen many ups and downs and undergone many hearings. Now the time has come to fulfil the hope. It has taken so long a time because the governments have come and gone without dealing with the hurdles. There has been no doubt a general male antipathy towards the object behind the Bill. We have no system of referendum to check whether indeed the nation is thirsting for a new dispensation for women.

The drawback of the proposed rotational system has been considered at length and need not be dilated. In general the rotational system shall breed disinterestedness both among the men and women members and therefore those who give priority attention to the nationalisation of the MPLADI Funds.

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In order to avoid the pattern of rotational system I would like to propose 50 per cent reservation for women with the creation of double member constituencies. Anyone may contest but the winners shall be one man and one woman who secure the highest votes. This system will be more equitable and at the same time override the problems inherent in the rotational system.

But the more sensible logical and reasonable approach is to amend the electoral laws to mandate all contesting parties to field women in at least two-thirds of the constituencies they choose to contest. Karan Thapar has suggested that the mandate should be State-wise so that the parties which are male-dominated do not reserve their winnable seats in the States they dominate for their men candidates and field women in uncharted territories to fill up the quota.

I also feel that the political parties, which are never tired of speaking of democracy, equality and justice, should begin by giving women at least one-third seats in their national and State decision-making bodies and among their office-bearers, so that at the end of the day they would have trained and prepared their women members for their parliamentary and executive tasks by gaining knowledge and insight into public affairs in the light of their party’s policies.

We are all aware of the persistent demand that there should be appropriate reservation for OBC and Muslim women. The Muslims have been highly under-represented in the Central and state legislatures, right from 1952. There are many reasons but one basic reason is that in the present environment Muslims can win from only a few winnable seats. So if one-third of the constituencies are reserved for women, this reservation is likely to reduce the Muslim representation further. It is less than 50 per cent today of what it should be, tomorrow it shall be about 30 per cent! I doubt if this situation will promote the interest of democracy and inclusive governance. For the OBCs they are not under-represented as a community but they are, like Muslims, not in a position to offer women candidates who can match those fielded by the elite.

The best solution, on the whole, will be to universalise reservation for women and divide it among various identifiable social aggregates like SCs, STs, minorities, OBCs and high castes in proportion to their respective populations. This is one way of meeting the objection that since there is no reservation for OBCs and Muslims, how can there be for their women? But this reservation for women should not be seen under Article 15(4) or 16(4) as the women may be considered a ‘weaker section’.

In a long-term perspective what the nation needs is to remove the flaws in our present electoral system, that is, to replace the first-past-the-post system by the proportional representation system. The parties shall then freely nominate eminent women in their lists and we shall no longer have a democracy and a government which is based on the support of roughly 20 per cent of the electorate only.

The author, a retired IFS officer and an erstwhile Member of Parliament, is the Convenor of the Babri Masjid Movement Coordination Committee and
Editor of Muslim India. He can be contacted at: syedshahabuddinexmp@gmail.com