Authored by Noopur Yadav (Intern), a 2nd-year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow
Introduction
Nari Shakti Vandan [Constitution (106th Amendment) Act,2023, (hereinafter The Act) enacted on 28th September 2023 is being acclaimed as one of the significant steps towards empowerment of women in the world’s largest democratic country. According to the Ministry of Parliamentary Affairs, total number of women in the present Lok Sabha is 78 and in Rajya Sabha 24 which is 102 in total out of 788 seats of the parliament. Hence, women represent 12.9 % (approx.) of seats in the parliament at present. As noted by Kavita Saini “In order to end the negligent behaviour towards women in the Indian society and strengthen their political status, under women-centric development, India has passed the Constitution Amendment Bill, pending for many years”. The amendment reserves one-third of the seats in the Lok Sabha and State Assemblies for women. Since, the 73rd and 74th Amendments, 1993, reserve one-third of seats for women in panchayats and municipalities in the Constitution, the 106th Amendment act is here to fill in the gaps of women's representation left in the Constitution.
There is no debate about the fact that women have fought for decades to ensure this representation. India adopted Universal suffrage along with the Constitution on 26th January 1950. This did not end the struggles of women for recognition in any area of society, democratic politics being one of them.
Source: The timeline represents the long journey of the 106th Amendment Act [128th Amendment Bill] throughout the years. These efforts were either crushed by the failure of parliamentary machinery [1996, 1998 and 2008] or due to clashing political agendas [1999]. Hence, the support lent to the Women’s Reservation Bill in the special session of Parliament from September 18-22, 2023 is commendable. It embarks on a new journey for Indian women in Indian politics.
The need for women's representation cannot be stressed enough. The percentage of participation is self-explanatory. After 75 years of Independence and the adoption of the Universal Adult Franchise, women's representation is limited to 12.9% in the Parliament. This indicates a need for change and the Legislature has come up with the Women’s Reservation Act as a medium for such change. Thereafter, today we will delve into the question of whether reservation can act as an agent of empowerment for women on the basis of its major criticisms. Since, the main objective of this legislation is to provide representation and empower women, understanding how effective it can be is crucial.
The Act can be understood at 3 levels:
Reservation: The act provides for inclusion of Articles 330A, 332A, 334A and 239AA.
The amendment in Article 330A mandates the reservation of 1/3rd seats for women on a rotation basis in the seats reserved for Schedule Caste/ Schedule Tribes in the Lok Sabha.
The amendment in Article 332A mandates the reservation of 1/3rd seats for women in every state legislature.
Article 334A has been introduced to specify that the seats reserved through amendment in the articles will be implemented after delimitation on the basis of the upcoming first census and by virtue of this provision will cease to have effect on the expiration of a period of 15 years from commencement. This commencement is yet to be determined by a notification in the Official Gazette by the Central Government.
Lastly, an amendment in Article 239AA(2)(b) reserves 1/3rd of seats in the Legislative Assembly of the National Capital Territory of Delhi.
Post-census and Delimitation: As per the amendment in article 334A the delimitation in Lok Sabha is to take place after the census is completed which was delayed in 2021 due to the COVID-19 pandemic. Now, the census is to be held in the year 2026 by The Constitution (84th Amendment) Act, 2001. The amendment substituted “2000” in articles 55, 81, 82, 170, 330, 332 with “2026”. According to this the delimitation of seats in Lok Sabha, Legislative Assembly of each State cannot be undertaken until the figures of the first census taken after the year 2026 are published. After the census, the next process is delimitation. Delimitation is defined by the Election Commission as – “Delimitation literally means the act or process of fixing limits or boundaries of territorial constituencies in a country or a province having a legislative body. The job of delimitation is assigned to a high-power body. Such a body is known as the Delimitation Commission or a Boundary Commission.”
Delimitation will ensure that the reservation aligns with the updated population and demographics. It will prevent discrepancies in representation which may result due to outdated census data. Since reservation is meant to ensure representation, redrawing the boundaries of constituencies on the basis of updated population and changes in demography will ensure proportional representation. Hence, after the new boundaries of territorial constituencies are drawn the Central Government by a notification will be able to commence the 106th Amendment Act by virtue of Article 334A of the Act.
Rotation: The final procedure to be followed will be a rotation of reserved seats for women in the House of the People, Legislative Assembly of the National Capital Territory of Delhi. The provision makes sure that women get involved at different levels of the decision-making process, be it state legislative assembly or Lok Sabha. However, its implementation is contingent on post-census delimitation. This may lead to delayed implementation of the Act. The mechanism of rotating seats is being criticized, as it may lead to instability in the constituencies and inefficient implementation of the policies of the government by a different elected member every 5 years. On the other hand, the rotation of reserved seats will ensure sure participation of a broader range of women from different constituencies, preventing monopolization by a few individuals or families. In totality, the amendment favours women but its success will depend on the timely implementation and political parties’ commitment to fielding strong women candidates and avoiding tokenistic representation which would mitigate the effects of delayed implementation due to post-census delimitation and rotation in the long run. The Act aims to bolster women's participation through gender-inclusive governance between challenges of social norms, and gender biases.
Opponents Say It is a Futile Method
On the global level, the most important step taken towards women's empowerment is the adoption of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1981. It has been acknowledged as the International Bill of Rights for Women across the globe. CEDAW talks about more than the traditional definition of political rights and demands equal involvement from women in all capacities and avenues of decision-making influence. It encompasses equitable chances to run for public office, involvement in the policy cycle, which extends from formulation to assessment, and above all equal access to public office. Priya Bhati, Ph.D., Scholar, Indian Law Institute, New Delhi, a proponent of the CEDAW on an international level, analysed the 106th Amendment act on the anvil of international standard and law. In her analysis, she raised the question, of whether the Women Reservation Act of 2023 will be able to guarantee women’s participation and domesticate the comprehensive approach of CEDAW. She has highlighted that apart from the lack of intersectionality (no provision for OBC women in The Act), creating constituencies for women will limit their perspective and they will be perceived as not being able to compete on the basis of merit. To support her argument, she has quoted some of the founding mothers of the Constitution such as Renuka Roy, Hansa Mehta and Purnima Banerji who in constitutional debates were against the provision for separate electorates for women and emphasised that true equality is not special treatment but equal opportunities in social, political, and economic sphere.
One of the most important concerns highlighted is non-implementation or correct implementation. Issues such as electoral reform, criminalisation of politics, internal democracy inside political parties and black money all remain as rampant as before. Steps to prevent them have been taken time and again but to no positive result.
The 73rd and 74th Amendment Act, 1992 reserves one-third of the seats in Panchayats and urban local bodies for women. A Study on the Participation of Women in Panchayati Raj Institution conducted by Shashi Kaul and Shraddha Saini is a mirror of how effective reservation policy can be for women. The study was conducted in several districts of Jammu and Kathua provinces on elected women representatives and the topics of the reason for contesting the election, meetings attended, freedom of speech and expression, and problems faced were discussed. The study concluded that provisions of equal rights for all citizens irrespective of their social and economic status exist only in pen and paper for disadvantaged people. Due to the patriarchal set-up male members are not ready to reconcile with either a superior or even an equal position for their women members and interference from family and community has been a big factor discouraging women from decision-making at Panchayats. In most cases, the husband made the decisions and the wives put their signatures on official documents. The most shocking observation was that most of the women entered the Panchayati Raj Institution due to persuasion by their family members pressure from the village community, pressure from political parties and their personal interests. Such diabolic behaviour towards women is against the democratic spirit of the nation and also slows down the process of parity constitutionalism aimed to be achieved through reservation.
Conclusion
After decades of struggle, the Women Reservation Act has been enacted, it has gained worldwide support. The step as said before is being seen as one of the major steps towards political parity between men and women in the decision-making process. One can scarcely contribute or affect policymaking without being part of the process. A group that needs its demands to be heard and addressed at the national level needs representation at that level. After facing all kinds of discrimination and fighting their way to the parliament, the statistics evidently show progress in women empowerment. Opponents to the reservation are critical of this top-down approach to achieving gender equality within a constitutional framework. One needs to also understand that providing a reservation should not be inferred as a demerit appointment. Reservation at its core is to bring parity between the disadvantaged and other groups of society. Indian society is fragmented into varied groups with different historical backgrounds.
The author agrees that a change from within the society is needed to achieve harmonious cooperation between men and women but no one generation needs to wait for such change. Acknowledging that there are other ways to empower women politically, we cannot forget each step counts. Less women representation is one major barrier to achieving gender equality within a constitutional framework. As the saying goes, something is always better than nothing. Provisions of reservation are meant to provide legal backing to the movement of women's empowerment. One cannot expect one provision to combat decade-long persisting problems being faced by women on the societal level. Such change needs to emerge from the minds of the people. If not reservation, decades will pass by and women will get no say in the decision-making. There have been meritorious women in each decade but how many got the chance to engage in policy-making in the real sense on the basis of their merit alone? On merit or not is a question to be considered in the latter stages of the decision-making process. The first step is to enter the process, learn from it and bring change. Hence, the focus needs to shift from scrutiny to correct implementation of the Act for the first 15 years as recommended in the provision. The law has made space for women in its chambers. What is needed is to claim it.