The missing story in the making of the Constitution: How the founding women made it a just document

Reflecting the hierarchical ordering of gender relations that mark society, women delegates formed only 5 per cent of the Constituent Assembly. It is important to note that though women members were part of various committees — Hansa Mehta and Amrit Kaur were on the Advisory Committee, the Fundamental Rights Sub Committee, G Durgabai occupied positions on both the Steering Committee and the Rules Committee — women were omitted from the Drafting Committee of the Constitution. But within the contours of the gendered power relations, these women worked to shape a Constitution that contained progressive gender provisions. Theirs is a contribution that is often missed in the conventional telling of the story of the making of the Indian Constitution.

A living document, the Indian Constitution, through the lifespan of the republic, has been the guiding force of deep and splendid transformative processes in our society. Central to the project of gender equity is the idea of power and change. The transformative potential of our founding document has been central to shaping the public-political identity of women in India. These founding women members understood this and therefore despite the unevenness in numbers, they stood unyielding, intervening with their ideas. Amrit Kaur in the Fundamental Rights Subcommittee meetings argued against the free “practice” of religion, as religious practices could allow for various regressive practices such purdah, sati and continued oppression of Dalits. She supported the establishment of a Uniform Civil Code and campaigned that it should be included in the list of Fundamental Duties, eventually leading to the provision being included in the Directive Principles of State Policy. Hansa Mehta’s appeals for provisions to establish equal rights for women found resonance in Article 15(3), which empowers the state to make special provisions for women and children.

Our Constitution, as Granville Austin argues, is a social document. And through the years, it hasn’t merely existed as a legal structure but has operated as an organic instrument of governance and social change. These women recognised that the societal change they envisaged could be brought about by influencing constitutional values. For though legal change has its limits, a state and its people cannot be free of legal decrees. Therefore, meaningful engagement with the Constitution is essential, if the political agency of women has to be broadened.

Serving as the guide for legislation, through the years, several acts such as the Maternity Benefit Act, the Dowry Prohibition Act, and the amendments to the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, have addressed women’s aspirations and empowered them to challenge discriminatory laws and practices, bringing forth societal change. Article 243(D) of the Indian Constitution has allowed for a significant increase in women’s participation in grassroots politics, the provision that ensured women’s voices are represented in the everyday running of their communities and has paved a broader way for women seeking to assert their political ambitions and identity. The newly introduced Women’s Reservation Bill, officially, the 128th Amendment to the Constitution, has been attacked by opposition parties as being sub-optimal, and uncertain, but in so far as the history of such reforms stands, this far-reaching democratic reform once enacted will be impossible to roll back.

As the country continues to evolve, the question of the empowerment of all women holds sway over its polity. With women emerging as a decisive voting bloc, shaping the political fortunes of parties in India, we have seen a gradual growth of election promises that factor in women’s aspirations and pander to their needs. This decisive shift in Indian politics has allowed the woman voter to use her right to franchise, in a manner akin to building a pressure group that pushes for her interests. This has ranged from offering women scholarships, gas subsidies, and reservations for women in government jobs to promising prohibition and even subsidised water and free bus rides. Women are now viewed as political creatures, whom parties must approach not out of favour but with a deep sense of a constitutional responsibility to expand the scope of freedom and rights. Despite these changes, the truth of the matter remains that women continue to be underrepresented in Parliament and state assemblies, and without the Women’s Reservation Bill, it is unlikely that women legislators would reach 33 per cent of the House even by 2039 — the year that critics of the government have been calculating as the one in which the implementation of the Bill can take place.

Beyond the legal provisions that the women have been able to mark out for themselves, women legislators past and present have significantly influenced constitutional values by challenging regressive social norms and cultural practices, by simply taking up political space and loosening the male vice grip on political power. They have marked the constitutional landscape that future generations of women citizens will inherit and negotiate with to demand half the sky and half the earth.

Paswan is Assistant professor, Lakshmibai College and founder of DAPSA.

Anuja is an independent researcher and writer