The Indian Constitution is among the world’s leading modern and postcolonial constitutions. In its making, women members of the Constituent Assembly, though minuscule, made a significant contribution. They had a substantial presence in the freedom movement and their numbers grew, with a significant voice, in Parliament and state legislatures. Yet, atrocities against women continue to recur, as the Hathras horror underlines, which entails an almost complete amnesia of the Act penalising atrocities against Scheduled Castes and Tribes. It is doubtful whether enhanced women’s legislative participation will ameliorate the situation. But one may bask in the emancipatory hope that greater sense and sensibility will prevail, lessening the dominant caste-based political practices.
India has nothing like the two-thirds rule in Kenya’s new constitution; its Article 27(8) requires the state to take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. Many political, and even some campaign, promises have been made in seven decades of the working of the Indian Constitution regarding 33 per cent reservation in Parliament. But the two bills, introduced in 1996 and 2010, have been allowed to lapse, even when hailed as a “historic step” that will ensure significant representation for the women of India.
Every political party endorses the idea but the battle within political classes has been over “quota within a quota”. Some have argued that ways should be found to ensure that this reservation should contain 33 per cent reservation within for SC and ST women. Some have championed a systemic practice of reservation at the stage of distributing party tickets. Some continue to fight for underprivileged and rural women; and some maintain that a constitutional convention mandating increased representation for women by parties will be more appropriate than a constitutional amendment.
Kenya does better than India. While both fall short in equitable representation, Kenya has secured 76 (or about 22 per cent) women in the present National Assembly comprising 349 members, whereas India peaked to its highest number in the 2019 elections with 62 women (around 14.58 per cent),out of a total of 542 Lok Sabha seats. In the Kenyan Senate women number only 21 (or 31 per cent) of the 67-member House are female; in the Indian Rajya Sabha women comprise 25 out of 243 elected members.
Moreover, in both societies, women’s representation has always been “pyramidical”, most women remain below the constitutional radar at the bottom, even when a few scale national heights. In both societies, as concerns women and other sexual minorities, sacrificial politics continues to prevail, as violence against women and sexual minorities continues to be a sad social spectacle.
Asymmetric representation in both societies has generated a long and complex debate concerning women’s representation. But the constitutional histories and judicial action vary. In Kenya, the 2010 constitutional norm of a “two-thirds gender rule”, buttressed by the requirement that the electoral system shall comply with this rule, have been more honoured in the breach rather than observance.
Indeed, the judicial orders (from 2012) giving various timeframes to enact legislation to implement gender parity have found Parliament unresponsive. It was unmoved by high judicial directions, women and human rights movements, and the voices of suffering. The stage was thus set for the exercise of constitutional power and function by the chief justice to advise the president to dissolve Parliament. The task was simple for Chief Justice David K Maraga. In one sense, he had just to follow this provision. But the decision to advise dissolution was confronted by COVID-19 times; the learned attorney general argued that following the constitution now will trigger a constitutional crisis.
It required considerable judicial courage and craft to order a dissolution of Parliament but this is what the learned chief justice accomplished by deprecating “Parliament’s lackadaisical attitude and conduct in this matter” (nine years elapsed without taking any step to fulfil the constitutional mandate). He ruled that the constitution must be obeyed even when “the dissolution of Parliament will cause inconvenience and even economic hardship” in “the midst of the coronavirus pandemic”. He said further: “We… must never forget that more often than not, there is no gain without pain.”
His Lordship said that people “clearly understood the possible cultural resistance to the transformational ideas on gender equality the Constitution would face”: Even so, they “carefully designed enforcement mechanism… irrespective of its consequences”. A “clearly radical remedy” was desired to “incentivise the political elites to adhere to and fully operationalise the transformational agenda of the Constitution…”
This was a great victory for the Kenyan women. For example, Marilyn Kamaru (on behalf of a collective of activists which had petitioned to have parliament dissolved three years ago) said “Whether the president dissolves parliament or illegally retains it in violation of the Constitution”, a constitutional moment was “made possible by the work of women activists, feminists and the queer community.”
The learned chief justice memorably delineates the idea of constitutionally justified elite pain and social suffering entailed in putting constitutions to work: “In the circumstances, let us endure pain, if we must, if only to remind ourselves, as a country, that choices, and particularly choices on constitutional obligations, have consequences. Let us endure pain if only to remind the electorate to hold their parliamentary representatives accountable. Let us endure pain if only to remind ourselves that, as a country, being a democracy that has chosen to be governed by the rule of law, we must say no to impunity and hold everyone accountable for their actions or omissions”.
These words should be music to all constitutionally sincere citizens, particularly those engaged in holding “everyone accountable”. And Indian sisterhood can yearn wistfully, but valiantly, for another Vishakha moment in the demosprudential leadership of the nation by the apex court.
This article first appeared in the print edition on October 7, 2020 under the title “The absence of women”. The writer is professor of law, University of Warwick, and former vice chancellor of Universities of South Gujarat and Delhi
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