There is still a huge room for improvement with regard to eradicating socio-economic inequalities
“I measure the progress of a community by the degree of progress which women have achieved” said Dr. B.R Ambedkar to a gathering of over 3,000 women in 1927. About 20 years later, he served as the chairman of the Constituent Assembly and is considered to be the chief architect of the Constitution of India.
The text prepared by Ambedkar provided constitutional guarantees and protections for a wide range of civil liberties for individual citizens. He envisaged a constitution that provided extensive economic and social rights for women and members of the backward classes.
But, to what extent does the Constitution of India protect women’s rights? It is that question this article will try to answer.
Recently, I came across an academic resource published by the International Institute for Democracy and Electoral Assistance, Stockholm titled ‘The Constitution Assessment for Women’s Equality’. It serves as a tool to help users analyse a constitution or draft constitution from the perspective of the substantive equality of women. Using a series of questions, short explanations and example provisions from constitutions around the world, the assessment guides you through an examination of the most critical constitutional issues that affect women’s rights and gender equality.
The entire assessment consists of a total of 55 questions. As answering all of them is beyond the scope of this article, I have chosen a select few that will help us look at the Constitution through the lens of women’s rights and gender equality.
Q. Does the constitution use gender-neutral or gender-inclusive language? Are the terms used to name or describe citizens, public officers, and officials neutral and/or gender inclusive?
No. The language used in the Constitution of India is male-centric for the most part. The Constitution uses male pronouns (he/his/him) and gendered generics such as ‘chairman’ instead of gender-neutral terms like ‘chairperson’. But, we have to keep in mind that the constitution was drafted at a time when the world was not sensitive to the use of gender-specific language. It was only in the 1980s, after efforts from UNESCO, that gender-neutral language was identified as one of the tools to achieve gender equality. Subsequently, there has been an improvement in this regard as can be seen from the constitutional amendments post 1990, e.g., Articles 243C, 243D, 243R, 243S, 243T, 243ZD, 243ZE, 338 and 338A have employed gender-neutral designations like ‘Chairperson’ and ‘Vice-Chairperson’. There is still a long way to go in order to ensure that the language of the laws is non-discriminatory and inclusive, keeping in mind the non-binary genders as well.
Q. Is there a specific section, article, or several articles that specifically recognise and protect women’s rights?
Yes. Apart from Article 14 which provides for equality before law irrespective of gender, there are several Articles that specifically recognise and protect women’s rights such as Article 15(3) which empowers the state to make any special provision in favour of women and children, Article 39(a) which directs the state to make policies for securing the right to an adequate livelihood equally for men and women, Article 39(d) which secures equal pay for equal work for both men and women, Article 42 which makes provision for securing just and humane conditions for work and for maternity relief and also Article 243 which makes special reservations for women in Panchayats and Municipalities.
Q. If religious law is recognis ed in the constitution, does the constitution state that it must respect gender and sex equality and non-discrimination?
Not clear. This question has been a subject of great debate since the time the Constitution came into force and even before that. In India, personal laws deal with marriage and divorce, maintenance, guardianship and succession, joint family and partition etc. While India is a secular country otherwise; in the context of its personal laws, it is essentially pluralistic. Thus, while the Indian Constitution guarantees equality before the law and equal protection of the law under the Fundamental Rights mentioned in Part III, India’s personal laws apply to individuals differently because they are effectuated based on the religion of such individual. Article 13 of the Constitution provides that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions Part III are void. However, in the landmark judgment of State of Bombay v. Narasu Appa Mali, the Court held that personal laws are immune from the application of Article 13 as they are neither “laws” as defined under Article 13(3)(a) nor are they “laws in force” as defined under Article 13(3)(b).
By following this approach, the courts have refused to test the Personal laws against Fundamental Rights guaranteed in the Constitution. But, in recent years, there has been a trend where courts have given diverging and contradictory judgments, most notably in the recent cases of Shayara Bano vs. Union of India (commonly known as the Triple Talaq verdict) and Indian Young Lawyers Association v. State of Kerala (the Sabarimala judgement). Although the Court held that triple talaq was unconstitutional by examining it in accordance with Part III of the Constitution and that the Narasu Appa Mali judgement needed reconsideration, the primary question whether personal laws are immune from the application of Article 13 or not was left unresolved. Similarly, in the Sabarimala temple case, the court held that the definition of “laws” in Article 13 is not exhaustive and could include personal laws. Therefore, there are many inconsistencies and confusion regarding this subject matter and the Narasu Appa Mali judgment needs to be revisited and clarified.
Q. Is trafficking prohibited? Is sex work or sexual exploitation mentioned?
Yes. The Rights against exploitation enshrined in Article 23 and 24 of the Indian Constitution guarantee human dignity and protect people from any such exploitation. These articles prohibit trafficking of human beings for immoral purposes such as trafficking of women for forced prostitution. To punish actions which result in the trafficking of women, the Immoral Trafficking of Women and Girls Act of 1956 was enacted by the Parliament according to Article 35 of the Constitution.
Q. Can women and men acquire, change and retain citizenship on equal terms?
Yes. Article 5-11 of the Constitution provide for citizenship. The articles are gender neutral and talk about ‘persons’ i.e., they are equally applicable to men and women.
Q. Can a woman independently pass citizenship to her children?
Yes. Article 5 of the Constitution provides that every person who has his domicile in the territory of India and either of whose parents was born in the territory of India is considered to be a citizen of India. Article 8 uses similar language by stating that any person residing outside of India either of whose parents or grandparents were born in India could be registered as a citizen of India. Thus, both men and women can equally pass citizenship to their children.
Q. Are there provisions that guarantee or facilitate women’s participation and representation in the legislature?
Not yet. The Women’s Reservation Bill or The Constitution (108th Amendment) Bill, 9th March, 2010, is a forgotten necessity, which proposed to amend the Constitution of India to reserve 1/3rd of all seats in the Lower house of Parliament of India, the Lok Sabha, and in all state legislative assemblies for women. The Rajya Sabha passed the bill on 9 March 2010. However, the Lok Sabha never voted on the bill. The bill Lapsed since it was still pending in Lok Sabha and the Lok Sabha expired in 2014.
Q. Do the judicial appointment mechanisms to all levels of courts, but especially to the supreme or constitutional courts, facilitate the appointment of women?
No. The judges are appointed in the Supreme Court and High Courts as per Articles 125 and 217 of the Constitution, which do not provide for reservation for any caste, class or gender. Women constitute only about 30% of the lower judiciary. In high courts, women judges constitute 11.5%. In the Supreme Court, we currently have 4 women justices out of the sitting 33. That makes it just 12%. Of the 1.7 million advocates, only 15% are women. Only 2% of the elected representatives in the state bar councils are women. There is no woman member in the Bar Council of India. Recently, there has been a drive to increase representation of woman in the judiciary. The Chief Justice of India, NV Ramana called for representation of 50 percent women in the judiciary “as a matter of right and not charity”. However, no amendment to Articles 125 and 217 has been proposed by the government as of yet.
Q. Does the constitution establish a national women’s or gender commission, or establish other bodies and institutions that comprise a ‘gender machinery’?
No. The Constitution provides for National Commissions for Scheduled Castes and Scheduled Tribes but a National Commission for Women does not find any mention in the Constitution. That being said, the parliament constituted a National Commission for Women under the National Commission for Women Act, 1990. However, it is a statutory body and derives its powers from the Act passed by the parliament and not from the Indian Constitution.
Conclusion:
The Constitution is the greatest leveller and the inclusion of provisions that contain clear and enforceable protection of women’s rights, obligating the state to protect and fulfil these rights, act as a powerful indication of the state’s commitment to gender equality. The Constitution is the supreme law and more difficult to amend than regular law making it a more immune from the whims and fancies of changing political parties and is more effective than statutory law in promoting gender equality. Although the Constitution of India is seen as a social document that aimed to bring social parity in a nation plagued with patriarchy and an evil caste system, however, there is still huge room for improvement with regard to eradicating socio-economic inequalities. The heart of the Constitution is at the right place but the language could be more direct and unambiguous. In the modern society, the subordination of one sex to the other is unacceptable, and the constitution should promote the principle of substantive equality to the greatest extent possible. In doing so, it is crucial to keep in mind that he rights of persons with a non-binary gender identity are critical to the achievement of gender equality. Therefore, the reference to women and men in this assessment does not exclude these individuals.