A FEMINIST INQUIRY OF "WE, THE PEOPLE" – WHETHER TRUE TO ITS ESSENCE OR NOT?

Ms. Shambhvi Agarwal

“We, the people of India” is not only the first line of our Constitution, but it amplifies the promise of the constitutional premise of democracy. It signifies that constitutionalism in India derives its legitimacy from “We, the people.” It also posits pressing reflections concerning whether “We” in its essence is inclusive and entails every spectrum in a deeply divided society. This blog deliberates upon the feminist inquiry into the historicity of colonial legal framework, constitution-making, and women’s engagement with the Constitution in the context of contemporary politico-legal discourses.

Glance at the History

History provides plentiful evidence of women fighting critical battles of thought, expression, belief, and ideology. One of the manifest expressions is our Constitution, which has been described as a gift from our founding fathers and mothers by our former Chief Justice of India, Dr. D. Y. Chandrachud. Let us turn back the pages of yore. We will have to appreciate that the 15 founding mothers (occupying only 4% of the total seats in the 392-member assembly) in our constituent assembly have imparted meaningful contributions to the making of our Constitution. Still, their contributions did not receive the deserved hagiographical descriptions compared to their male counterparts. For instance, Dakshayani Velayudhan was the only Dalit woman in the constituent assembly. She made some key observations about untouchability, forced labor, reservations, and discrete electorates for Dalits. Instead of fighting for ‘moral safeguards,’ she raised a card for immediate removal of their social disabilities.

On a similar note, Dr. Rukhmabai Raut challenged the colonial legal framework, which worked with Brahminical patriarchy. She vehemently opposed the unpalatable tradition of child marriage, and her landmark case led to the evolutionary enactment of the Age of Consent Act, of 1891, in British India. This act elevated the age of consent for sexual intercourse for all girls, married, or unmarried females, from ten to twelve years of age in all legislations, and the violation was subject to criminal trial under the head of rape. However, legal history is conspicuously silent on her challenge to hegemony.

Another outspoken member of the Constituent Assembly was Hansa Jivraj Mehta. She was the spokesperson for women’s justice in India. One of the most interesting things that she threw light on was that there exist diverse levels of internal struggle amongst women as well. She explicitly acknowledged that while some are given credit in society, as a whole, the number is a handful. These few privileged women do not give us a real picture of the position of Indian women in this country. She pointed out that there can be ways to empower and uplift females and make their voices heard. But according to her, the way to deal with this issue was not through reservation, but “by giving women the freedom from the shackles of the purdah, the confines of home.”

Other females in the constituent assembly, like Begum Aizaz Rasul, Durgabai Deshmukh, Kamla Chaudhry, Leela Roy, Sarojini Naidu, Poornima Banerjee, Ranuka Ray, Ammu Swaminathan, Sucheta Kripalani, etc., raised crucial subjects like social reforms ranging from female education and employment to female participation in political matters.

Standing of Women in Contemporary India

Women once again reminded us of the times of national movement when they played a vital role. In the 2019-20 epochal event, they reclaimed their agency in engagement with the Constitution - the Shaheen Bagh Protest against the CAA (Citizenship Amendment Act - National Register of Citizens). The movement was spearheaded by more than 2,000 Muslim women. The striking images of women disseminating the copy of the Constitution are a powerful re-imagination of “We, the people.” Indian Political scientist Sanjay Kumar highlights that even though the protest was not a successful one, the fact that women, children, and families joined hands under a feminist spirit was exceptional.

Recently, 65.7% of the total women in the country participated in the 18th Lok Sabha Elections, and they outnumbered men in terms of turnouts in 19 of the 36 states and union territories.

The aforesaid are a few examples of how women have, time and again, asserted their spaces in Constitutional and legal/political discourses and confronted to get equal participation. On the contrary, Constitutional bodies' engagement with feminism is restricted and, to an extent, exclusionary.

The recent Prohibition of Child Marriage (Amendment) Bill, 2021, was proposed in Parliament. The Bill was introduced to increase the marriageable age to 21 years even though each year at least 1.5 million girls under the age of 18 years get into wedlock in India, as per the survey conducted by the United Nations International Children's Emergency Fund. When the disputes on the Bill arose, it was referred to the Standing Committee, the biggest irony was that the committee had only one female member.

Under the garb of women empowerment, another step taken was the introduction of the Women’s Reservation Bill, 2023, which grants a 33% women reservation in the Lok Sabha and State Assemblies to counter underrepresentation. The question that it raises is whether the introduction of the Women’s Reservation Bill will reduce the Gender Gap and is the best route for increasing women’s political representation.

The Women’s Reservation Bill passed by the Parliament last year stands far from the contours of reality, but it tried to grant an answer to the abovementioned question. The real image of India is painted with the shades of patriarchy, wherein equal participation is encouraged but not truly relished. The talks around women's empowerment have taken a boost, and as a result of the same, women are stepping into multiple sectors, such as science, technology, mathematics, etc. But we still have a long mile to go in terms of full-fledged equal participation of women in Indian politics. As stated by Aditya Nigam and Uday Mehta, the interaction between the State and the individual and the structure of such interaction is largely dependent upon the historical, social, cultural, and political factors – on which the foundational moment depends.  In the case of India, our history is tinted with male dominance and based on the same job-divisions are socially constructed. Because of the same, the voices of the 15 founding mothers were often ignored and not given due reverence. The replica of what can be seen in the contemporary scenario. In an opinion column of The Hindu on 12th February 2024, the writers Vipul Anekant and Sanjay Kumar, titled How women can be represented in politics highlighted a case study of Rajasthan after the coming of the Bill. They quoted that the Bill has shown no true colours; yes, it has encouraged political parties to hike ticket distributions to females, yet the mindset remains stagnant. Females face a low strike rate when made to stand in opposition to a male candidate. 

A similar reservation of seats to women, i.e., 33 to 50%, is vouched to be granted in the Panchayati Raj Institutions (PRIs). Up to 20 states out of 29 in India, including Haryana, Chhattisgarh, Assam, and Kerala, have a 50% reservation for women in panchayats. Grassroot empowerment, as it seems, but the reality behind the curtains is grim. As highlighted by India’s first MBA sarpanch, Chhavi Rajawat in her op-ed titled Ending ‘sarpanch-patis’: Giving agency to women leaders, the independent functioning of female sarpanches is often eclipsed by male family members not just because of patriarchy but because of voids like lack of education and inadequate institutional backing.

“The share of women parliamentarians has never crossed the 15% mark in India’s 70-year-old electoral history.” The reservation might change this headline, but will the same erase that entrenched gender gap? In light of the aforementioned, to achieve noteworthy progress in women's empowerment, deep-seated patriarchal norms that assign women low status in society need to be addressed.  Mere granting charity in the form of the reservation is not enough; rather, an equity-based system has to be fostered, and deep-rooted biases in the society have to be uprooted. Stereotypes shall be replaced by novel ideologies of equal participation, as this needs to be understood that females are not to be given voices, they already have a rather strong voice, it is the society that has to build tolerance to be able to hear and gulp those unfiltered arguments and harsh realities without being judgmental.

Concluding Remarks

Indians take great pride in flaunting India’s feminist side by referring to it as ‘Bharat Maa.’ However, the true representation of women is lacking in the social realm. India is treading towards fear of Andrea Dworkin, who argued that the patriarchal society defenestrates women by overpowering and coercing them. A feminist voice is often silenced using the rhetoric of radical feminism or feminazi.

A committee constituted by the Ministry of Panchayati Raj in 2023 submitted its report titled Transforming Women’s Representation and Roles in Panchayati Raj Systems and Institutions: Eliminating Efforts for Proxy Participation. The report focused on eliminating the issue of ‘Pradhan Pati’ in PRIs by suggesting “exemplary penalties” on husbands acting as proxy sarpanches and highlighted the importance of policy reforms, training & capacity-building programs, digital literacy, etc. Jharkhand’s PRIs are a great example of empowered structural change for female sarpanches. Inspiration from the report shall be drawn in terms of pan-India policy making.  

Alongside the above, educational and digital/tech. awareness is much needed. There is also a need for a dignified remuneration for the working females to break the glass ceiling. Expert assistance shall also be provided. For example, a female sarpanch shall be assisted by a civil engineer or supervisor appointed to foster smooth interactions with officials and in managing construction and development projects to lessen the dependency on male family members.

On a departing note, to adhere to the essence of Article 15(3) of the Constitution, a feminist constitutional interpretation shall be made to challenge the patriarchal legal structures. The inclusion of females in all the professional fields needs to be promoted, be it at the bar and the bench to foster more inclusive judgments; in political parties and governance machineries to increase concrete empowerment policies; in the field of defence, to portray the mental and physical strength of females; in academia and research fields to encourage more female oriented research, etc. In the same line, the Apex Court in the landmark judgment of The Secretary, Ministry of Defence v. Babita Puniya rejected the notion that woman is the “weaker” or “inferior” sex, and in doing so, it held that “arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers in the army.” Hence, establishing an equal entitlement of Female Army Officers as that of Male Army Officers, in terms of a Permanent Commission in the Army.

Similarly, in the case of Anuj Garg v. Hotel Association of India, the Supreme Court read down Section 30 of the Punjab Excise Act, 1914, which excluded women from working in premises where liquor was served. The right to self-determination in terms of gender equality was established by the court.  

It becomes pertinent that we turn our faces to reality and hold ourselves to a mirror rather than blasting missiles at feminist interventions, even if those interventions challenge the normative legal frameworks. Considering that India is a farrago of identities and identity politics is dipped in the ink of violence, it becomes essential that our understanding of “We, the people” requires reimagination. A small reimagination would be to disrupt the lexicons of constitutional text (For instance, disrupting the normalization that fraternity = brotherhood) and uproot age-long weeds present in the society through educational and institutional tools. Mere dressing of topsoil will not bring grassroot transformation. In a pluralistic society, an equal addition of women in the various leadership roles will ensure true shades of gender diversity as empowered females would shape an empowered society.

(Ms. Shambhvi Agarwal is a 5th Year BA.LLB (Hons.) student at School of Law, UPES, Dehradun.)