The Constitution (108th Amendment) Bill, 2010 as approved by Rajya Sabha recently, seeks to reserve as nearly as possible one third of all seats for women in the Lok Sabha, the lower house of Parliament, and the state legislative assemblies including Delhi. Rajya Sabha and Legislative councils in States are excluded from the purview of this reservation, justification for which was not explained anywhere. The allocation of reserved seats shall be determined by such authority as prescribed by the Parliament. This bill also seeks to reserve one-third seats among those reserved to Scheduled Castes and Scheduled Tribes in favour of SC/ST women.
These reservations will cease to exist 15 years after commencement of the Act. This Bill has a provision giving power to the Center to review and extend the reservations. Reserved seats will be allocated by rotation to different constituencies in the state and union territory. If a state or union territory as only one seat in the Lok Sabha that seat shall be reserved for women in the first general election of every cycle of three elections.
If there are two seats, each shall be reserved once in a cycle of three elections. Similar rules apply for seats reserved for SC/STs. Of the two seats in the Lok Sabha reserved for Anglo Indians, one will be reserved for women in each of the two elections in a cycle of three elections. Similar provisions are made for all the seats in state legislative assemblies also.
If reservations policy is accepted as an instrument of development and empowerment, this Bill translates that policy in to law. For those opposing the reservation as a policy, this may not be acceptable. But taking into account the acceptability the policy secured in number of Supreme Court judgments and enactments by Central and State Legislatures, the reservation policy, which started as a temporary phenomenon has come to stay as part of our equality achievement process. Achieving complete empowerment of all women may not be possible with this measure, but we need to look at a stark reality of absence of equality or empowerment to more than majority of women. Another important point is that there is a lot of evidence to show that the reservation for women has increased redistribution of resources in their favour.
Equality, a myth
Discrimination against any one based on sex is against the constitutional right to equality. That is what the letter of supreme law says. Does it mean that the state should allow the downtrodden or backward to remain so, so that they can never compete with other forward sections of society? No. Hence the Constitution itself provided for the affirmative action within Articles which proclaimed equality. To make some of the people equal with others, they need to be provided a lift up. Reality is that the equality among in-equals will amount to inequality. Who will remove the anomaly of treating in-equals as equals quoting the most important fundamental right of equality?
Reserving some seats for women to contest exclusively to the membership of Parliament and State Assembly is constitutionally compatible though politically controversial. None can say that it is unconstitutional. As three yadav leaders of the country Mulayamsingh of Samajvadi Party, Laloo Prasad Yadav of Rastriya Janata Dal and Sharad Yadav of Janata Dal party were demanding sub-quota to women within the reserved quotas. But not providing sub-quota will not invalidate the quota for women. It is desirable and hoped that the political executive would proceed further to provide for internal distribution of the seats among the women also.
In principle providing reservations for women in legislative houses is not against the spirit of equality, though some vehemently pleading that men in those reserved seats are prohibited from contesting which amounts denial of their right to contest. It is not their case that they were denied right to contest because they happened to be male persons. It is because the women who were historically backward and not sufficiently represented in the legislative houses were provided a chance to secure representation it becomes a constitutional step for achieving equality. It is rightly interpreted that after sixty years of Constitutional governance, around fifty per cent of the people were remained in-equal and insufficiently represented in decision making bodies of the political government. This issue was not addressed at all till now. Thus looking at the constitutionality of the issue, reserving seats for women on the basis of their sex is proper and legal.
Right to contest:
Right to contest and prior to that to get enrolled as a voter are available for all who fulfill basic requirement of age. None can lose the right on grounds of sex. Article 325 of the Constitution of India says: There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them. Women Reservation Bill excludes others from contesting the seats reserved for women. It does not make the male in those constituencies ineligible to vote, and to contest from any constituency in general.
They are particularly precluded from contesting or being fielded as candidates by their political parties only in those constituencies temporarily for a short period, as per this Bill for 15 years in declared constituencies constituting 33 per cent of total number of seats in the concerned House of Legislature. If a Lok sabha seat is reserved, men can contest local assembly seat if not reserved for women or SC or ST candidate. Vice versa is also true. Thus there is no denial of right to contest and hence the reservation cannot be considered as unconstitutional. This principle is also in tune with the plethora of judgments and legislations which upheld special treatment or affirmative or protective discrimination in favour of weaker sections as an endeavour of achieving egalitarian society or realizing the equality right. It is undisputed that women are generally weaker gender and the figures of their representation in decision making bodies show grossly insufficient representation.
Whether this step will make all women politically empowered is another question. Immediately, it may not achieve the political empowerment of all women. But certainly it is a forward step towards achieving this goal. By just giving around 184 seats constituting one third of 544 member House will it empower all women, was another question raised by an intellectual. If one calculates all the assemblies, the one third means much more than just 184. If 544 members elected representing the whole 100 plus crore population of India could be empowerment of people in general, why not 184 women members of parliament empower fifty per cent of Indian population.
When P V Narasimharao reserved one third of Panchayat Raj bodies, he paved the way for empowerment of women at gross root level, which Sonia Gandhi took forward up to the highest level of law making, state legislature and national legislative body, Lok Sabha. It is amazing to note that around 10 lakh women took seats in local bodies and decisions to administer their territories however small they might be. The study conducted by the Union Ministry of Panchayat Raj in April 2008 showed that sizeable portion of women representatives perceived an enhancement in their self esteem, confidence and decision-making ability.
Should Assemblies Accept?
Now the question is whether this amendment law needs to be ratified by half of the legislative houses of states? Article 368 provided different procedures for different kinds of amendments.
Our Constitution was rigidified by the judicial theory of basic structure, propounded in Keshavanda Bharathi case, according which the Parliament cannot annul the basic features enshrined in the Indian Constitution through process of amendment. To that extent it is now rigid. It is complex, when law proposes to change key aspects of the Constitution and it is flexible to amend certain regulatory provisions which do not affect the characteristics given in the scheme. Any bill that amends the ‘representation of states in Parliament’ [Article 368(d)], is required to be ratified by at least fifty per cent of state assemblies. Whether this bill alters the composition of state representation in Parliament? Answer is no, because the number and proportion of representation remains the same even after the amendment.
Only change that was to be brought is with reference to gender of representation, which was never stated in any provision of the Constitution. Anybody could contest and anybody could be elected from any seat generally. When there is no effective change in the size of representation of states in Parliament or in the composition of Assemblies, it will not attract the provision (d) of article 368 and thus need not be taken to all assemblies. However some others opine that as the character of the representation is being changed, it should require the approval of state assemblies also. In general, seeking the opinion of wider number of legislative bodies does not go against the spirit of constitutional democracy.
Any reservations creating a reasonable class for which the benefit is evenly distributed, does not violate the principle of equality, which is described in legal terms as ‘class discrimination is bad while reasonable classification is good’. Classifying women as a group for conferring a positive favour is not against equality rule. The backwardness or insufficient representation of women in legislative houses is obvious and also could be proved by statistics. Based on such measurable backwardness, Constitution provided for an affirmative action by state. Hence one cannot doubt the constitutionality of women reservation in legislative houses.
Politically speaking, this law would break the monopoly of few over the constituencies and by law it get diversified and democratized. The rotation method proposed by this law would prevent monopoly in women seats also. It provides for a new leadership and distributes the power even if it is within the family. Laloo yadav could have never left the seat of Chief Ministership had there no disqualification for being an accused in a corruption case, and his wife could have never become Chief Minister.
When ten lakh women could get elected to Panchayat Raj, it was criticized that though women filed nominations their husbands continued domination and wielded more power. It might be true in some cases for some time. Still, the women proved to be effective in making decisions and allocations for the issues relating to people in general and women in particular. Hence it is wrong for arm-chaired critics to dismiss the change as useless and empowerment as impossible without raising even a little finger for development of women.
Sonia Gandhi exhibited leadership quality by taking a calculated political risk, hoping the women folk to stand behind her and marched ahead ignoring the possible realignment of forces and change in the political equations.