(Dovetailing with the previous discussion of sex discrimination on this blog, the following three-part guest post series by Professor Sanjay Jain focusses on the discussions surrounding women and the Constitution, during the Constituent Assembly Debates)
Representation of Women in the Constituent Assembly
Representation of women was low in the Constituent Assembly. One of the women members, Purnima Banerjee, tried to raise the issue of vacancies created by the exit of three prominent women members in the Constituent Assembly. She was of the opinion that the vacancies should be filled by women to ensure a more egalitarian perspective in the constitution-making process. However, the Assembly did not support her. In this connection, the observations made by H.V. Kamath are of particular importance because they show the extra ordinary political indifference to gender representation in the constitution making process and also reinforce stereotypes about women. He observed,
“…, if I heard her right, she said that women should be given a greater chance more scope, in affairs of administration and government than they are being given today. The most common and the strongest objection so far put forward by political philosophers in this….regards the capability of women for government and administration is that woman is ruled more by the heart than by the head, and where the affairs of Government are concerned, where we have to be cold and calculating in dealing with various kinds of men, women would find it rather awkward and difficult to deal with such persons and ….If the heart were to rule and the head to take a secondary place then it is felt by many thinking men, and thinking women too, that the affairs of government might go somewhat awry, might not fare…..”
He further observed however,
“….I think the House will not quarrel with Shrimati Purnima Banerji on this point that where a seat held by a woman Member is vacated that seat should normally go to another woman.”
B.R. Ambedkar responded to Purnima Banerjee’s request by claiming,
“…….I do not think it is necessary to make a specific provision for the retention of women in this Constituent Assembly. …..the President in the exercise of his powers of rule-making will bear this fact in mind and see that certain number of women members of the Constituent Assembly or of the various parties will be brought in as members of the Provisional Parliament.” (dated 11th Oct. 1949)
Being inclined towards a perfectionist State, the focus of the framers of the Indian constitution was more on the ‘rights discourse’ rather than on the ‘principle of equality.’ They proposed to incorporate the ‘right to life and personal liberty, the right to equality, the right to property, and the right to nondiscrimination’ in a single provision (B Shiv Rao “The framing of India’s Constitution’, Vol II, P 173 ). The Article was extensively deliberated from 16th April 1947 to 30th April 1947 and underwent several changes. Particularly, the difference of opinion between K.M. Munshi and Allidi Krishnaswami Ayyar is worth noting. The latter insisted for the deletion of the principle of ‘equality before the law’ by observing “so long as it is merely a maxim or principle of the common law there is a certain flexibility attaching to it and it can be adopted by the courts and legislatures to changing circumstances but when the same is made a constitutional guarantee it is beset with difficulties. Every law which violates this principle becomes invalid and will become subject to the crucible of judicial review. The statute law of the country may have necessarily made (sic) a difference between infants and adults (vide Juvenile offenders Act), between men and women (vide factory and labour legislations)”.( B Shiva Rao “ Framing of India’s Constitution” Vol II P 212.) The Subcommittee on fundamental rights accepted this view and transferred the principle to the section of non-justiciable rights (B Shiv Rao “ The framing of India’s Constitution’ , Vol II, P 175) from the draft clause 12. However, when the article came for consideration before the Constituent Assembly on 30th April 1947, without any discussion on this issue, the principle was reintroduced as a part of justiciable rights. Even at this stage, Article 14 was not in its final form and was later separated from present Article 21. It is also interesting to note that there was little discussion on the adoption of the principle of ‘equality before the law’ and the ‘equal protection of the law’ in Constituent Assembly debates at the time of finalization of Article 14.( dated 2nd December 1948, accessed 16th august 2012).
Such attitudes – i.e., based upon portraying women as victims and in need of protection, can be seen to be carried over in the gender specific terminology that was advocated at certain places. For example Lakshminarayan Sahu, [supported by H.V. Kamath] suggested amendments in draft Article 31(v) (Presently Article 39(e). Article 39(e) now reads:
“… that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.”
Sahu recommended that:
“…., for the words ‘their age’ the words ‘their age, sex’ be substituted………Mr. Kamath admitted here that even he considers that the word ‘Sex’ should be put in but that he did not do so because the term ‘Sex’ was not liked by some lady members of this House. But I insist that this word should be retained here. I would like to know the reasons which led them to say that they did not like this word. We see that the word ‘Sex’ has already been used in article 9 of the Fundamental Rights….. Secondly, if we do not use the word ‘Sex’ here, many unpleasant complications are likely to ensure…. There are many such factories and mines which are not fit for women to work in. But many women are compelled by circumstances to work there. To stop this practice the word “Sex” should be specifically used here. ….third…The condition of the women of our country is rather deplorable and I do not like that they should work day and night in the mines and be obliged to adopt some such profession which may spoil their home life…” (CAD Volume VII PP 512, 22nd Nov.1948.)
Kapoor and Cossman note that in this approach, women are construed as weak and subordinate and are pursued to be in need of protection. Such differential treatment in some circumstances is said to be preferential treatment. This approach unduly essentialises the sexual difference.
The Uniform Civil Code
During the protracted debate on draft Article 35 (Presently Article 44) dealing with the Uniform Civil Code, there was only one intervention by K. M. Munshi pertaining to inequality faced by women in different religious personal laws. He observed,
“…..Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India….”
There was a lack of interest and even opposition by women members themselves for constitutionalization of prohibitions on specifically gendered harms such as the Devdasi system and dowry violence, and prostitution. In this regard, the discussion pertaining to the amendment moved by K.T. Shah to draft Article 17 (Presently Article 23) on trafficking in human beings is worth noting. He observed,
“That in clause (1) of article 17, for the words `Traffic in human beings and begar’, the words `Traffic in human beings or their dedication in the name of religion to be Devadasis or be subject to other forms of enslavement and degradation and begar’ be substituted.”
However, one of the women members expressed her reluctance for having such amendment on the ground that the practice of Devdasi system had been made illegal in the State of Madras. Similarly, T. T. Krishnamachari launched a scathing attack on Shah’s suggestion by observing,
“Sir, I am here primarily to oppose the amendment moved by my honorable Friend, Prof. K. T. Shah, in that it imports into the consideration of this article facts which ought not to be taken into account in a consideration of the fundamental rights that are to be incorporated in the Constitution…. If those abuses are such where vested interests are likely to seek perpetuation of those abuses, well, I think we have to provide against them, but if public opinion is sufficiently mobilized against those abuses, I do not think we ought to put a blot on the fair name of India, possibly, by enacting in our constitution a ban on such abuses. …Looking as I do at such matters in that light, I wish most of my honorable Friends in this House will not try to import into these fundamental rights age-old peculiarities of ours that still persist, bad as they are in particular parts of society which can be made to disappear by suitable legislation in due course, perhaps in two, three or four years….”
B.R. Ambedkar also adopted the views of Durgabai and Krishmanchari.
On the other hand, Das was more candid and realistic arguing,
“…However, I think we will not be justifying our constitution on fundamental rights if we do not accept and admit our great sins by including the words “traffic in women” and try to save the situation now and hereafter”.
Another female member, Renuka Ray however supported K.T. Shah by observing,
“Sir, if we do not accept the amendment of Mr. B. Das, it is not because we do not appreciate his purpose. …but I do think that the article as it stands does cover it…… As for the amendment that my honourable Friend, Mr. K.T. Shah, moved, I agree with Shrimati Durgabai that legislation has covered this problem in regard to Madras, but I think that if Mr. Shah’s amendment could be accepted by this House so that the Devadasi system–the dedication of women in temples–is abolished by a categorical provision in the Constitution, it would be better procedure as the custom still lingers in some areas….(dated 3rd December 1948).”