Womens Reservation (108th Constitutional Amendment) Bill

DR. RAKESH K SINGH

Reservation for women is needed to compensate for the social barriers that have prevented women from participating in politics and thus making their voices heard. It is of the opinion that this Bill is a crucial affirmative step in the right direction of enhancing the participation of women in the State legislatures and Parliament and increasing the role of women in democratization of the country. Parliamentary Standing Committee Report on the Constitutional (108th Amendment) Bill Achieving the goal of equal participation of women and men in decision making will provide a balance that more accurately reflects the composition of society and is needed in order to strengthen democracy and promote its proper functioning. Without the active participation of women and the incorporation of womens perspectives at all levels of decision-making, the goals of equality, development and peace cannot be achieved. Fourth World Conference on Women. Beijing, 1995: Article 181 Introduction The passage of the Women's Reservation Bill in the Rajya Sabha on March 9, 2010 is a momentous, heartwarming step not only for India, but is likely to be an inspirational trendsetter for womens empowerment in the entire region. Although it is only the first step, the ripples from the smashing of a glass barrier are bound to be felt in virtually all areas of traditional male dominance. Like its democracy, therefore, India will also be a beacon in the matter of womens emancipation. The bill faces other barriers, of course, of which the securing of the Lok Sabhas approval is the most crucial. But the expectation among its proponents is that the momentum it has acquired by clearing the roadblocks put up by its critics should make the subsequent passages much easier.

A Brief History of Women's Reservation Bill 1996: Womens reservation bill is introduced as 81st Constitutional Amendment Bill by Deve Gowda government. 1998: The bill is re-introduced as the 84 th Constitutional Amendment Bill by the Atal Bihari Vajpayee headed - National Democratic Alliance (NDA) government. 1999: The NDA government re-introduces the bill 2002: The bill fails to get clearance in the house. 2003: Bill is introduced twice in parliament. 2008: The UPA government tables the Bill in the Rajya Sabha to save from getting lapsed. 2010: The cabinet clears the bill and the Bill is passed by the Rajya Sabha also.

The struggle for political rights by womens groups has been the longest in the history of independent India as the proposed constitution amendment bill had been deferred several times by successive governments since 1996. While the Indian constitution is one of the most progressive in the world and guarantees equal rights for men and women, Indian women have always waited anxiously for their equal dreams to be translated into reality. A closer look at the facts and circumstances which prevail at present, reveal that women are impoverished in every sphere of activity not by choice but by systematic exclusions from policy options and protective measures. Neither social legislations nor landmark judgments on these have had major effect to render gender justice on this count. Status of Women in India The Standing Committee on Personnel, Public Grievances, Law and Justice to which the Bill was referred had submitted its report on December 17,

Coordinator, Womens Unit, Indian Social Institute, New Delhi

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2009. Various political parties, academics and activists have argued the pros and cons of the Bill threadbare. Whether reservation for women in Parliament is the right tool for empowerment may be debatable, but it is certainly true that women of this country have a long way to go before they can achieve their potential. They are hampered by low levels of education, lack of access to health care, lack of employment, and low social status which manifests in crimes such as female foeticide, dowry deaths and domestic violence. It is pertinent to highlight some socio-economic and political indicators related to women in our country in the following graphs. Percentage of women MPs from 1st to 15th Lok Sabha

Females married before age 18

Census 2001 reveals that 54.2% women are literate in our country. The NSSO data shows huge disparity between urban and rural population. About 64% of rural males and 45% rural females were literate. The literacy rates among their urban counterparts were much higher at 81% and 69% respectively.

Literacy rate of women

Women constitute 11% of the newly elected House. Of the larger states Madhya Pradesh has the highest percentage of women MPs (21%), followed by West Bengal (17%) and Uttar Pradesh (15%). Bias against women and girls is also reflected in the demographic ratio of 933 females for every 1,000 males. Also, 1 in 5 women dies during childbirth, and such deaths account for more than 20 percent of the global maternal deaths. In India the legal age for marriage is 18 years for females and 21 years for males. However about 44 percent of females, and 37 percent of males are married before the legal age. There are areas in Rajasthan, Uttar Pradesh, Madhya Pradesh, Chhattisgarh and Bihar where the average female age at marriage continues to be below 16 years.

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Incidents of crimes against women Crimes Rape (IPC) Dowry Death (IPC) Dowry Prohibition Act, 1961 Kidnapping & Abduction (Sec 363 to 373 IPC) Torture (IPC 498A) Molestation (Sec 354 IPC) Sexual harassment (Sec 509 IPC) Importation of Girls (Sec. 366-B IPC) Immoral Traffic (Prevention) Act, 1956 Indecent Representation of Women (Prohibition) Act, 1986 The Rationale The proponents of the policy of reservation state that although equality of the sexes is enshrined in the Constitution, it is not the reality. Therefore, vigorous affirmative action is required to improve the condition of women. Also, there is evidence that political reservation has increased redistribution of resources in favour of the groups which benefit from reservation. A study1 about the effect of reservation for women in panchayats shows that women elected under the reservation policy invest more in the public goods closely linked to womens concerns. A 2008 study2, commissioned by the Ministry of Panchayati Raj, reveals that a sizeable proportion of women representatives perceive an enhancement in their selfesteem, confidence and decision-making ability. Some opponents argue that separate constituencies for women would not only narrow their outlook but lead to perpetuation of unequal status because they would be 2003 15,847 6208 2684 13,296 50,703 32,939 12,325 46 5510 1043 2004 18,233 7026 3592 15,578 58,121 34,567 10,001 89 5748 1378 2005 18,359 6787 3204 15,750 58,319 34,175 9984 149 5908 2917 2006 19,348 7618 4504 17,414 63,128 36,617 9966 67 4541 1562 2007 20,737 8093 5623 20,416 75,930 38,734 10,950 61 3568 1200

seen as not competing on merit. For instance, in the Constituent Assembly, Mrs Renuka Ray argued against reserving seats for women: When there is reservation of seats for women, the question of their consideration for general seats, however competent they may be, does not usually arise. We feel that women will get more chances if the consideration is of ability alone.3 Opponents also contend that reservation would not lead to political empowerment of women because (a) larger issues of electoral reforms such as measures to check criminalisation of politics, internal democracy in political parties, influence of black money, etc. have not been addressed4, and (b) it could lead to election of proxies or relatives of male candidates.5 There is however no denying the fact that there is no adequate representation of women in the social, economic and political life of the country even after more than 60 years of independence. Though women have made their presence felt in many male dominated

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professions, their representation in the decision making bodies/processes is far less than that of men. There has been a historical social exclusion of women from polity due to various social and cultural reasons and patriarchal traditions. As the Parliamentary Standing Committee on Womens Reservation Bill observes, meaningful empowerment of women can be achieved only with adequate participation by women in legislative bodies or Parliamentary machinery, as inadequate representation of women in Parliament and State legislature is a primary factor behind the general backwardness of women at all levels. Reservation of seats for women is a valid and necessary strategy to enhance womens participation in the decision/policy making process. One of the landmark events in history during the womens movement particularly in the late 80s was the vision of former Prime Minister Rajiv Gandhi who incorporated the 73rd and 74th Amendments in the Constitution of India providing reservation of 1/3rd seats Experiences in Panchayati Raj Institutions (PRIs) The last fifteen years of Panchayati Raj in India have contributed significantly not only to the political but also the social empowerment of women as is evident from the findings of a study on elected women representatives (EWRs) in Panchayati Raj Institutions. The study provides several insights into the performance of EWRs over three round of elections. The study shows that elected representatives are deeply involved in development efforts as well as social issues in the village community. It further shows that women participate freely in Gram Sabha meetings and are able to raise issues relating to the development of the community. The level of acceptance of EWRs and their voice in the Gram Panchayats has also been assessed in the study. A sizeable proportion (94%) stated that they could freely raise issues during Gram Sabha meeting and only 20% felt that their views were not considered by Panchayat/ Gram Sabha. The data further shows that through 1/3rd reservation of seats for women in Panchayats and Nagarpalikas, they have been able to make meaningful contributions and that the actual representation of women in Panchayati Raj institutions has gone upto 42.3% i.e., beyond the reservation percentage.

in the Panchayats and Nagarpalikas for women. Such reservation ensured that women at the grassroot level, occupying prominent position in the Panchayats and Nagarpalikas, take decisions for their own life and for their rural/urban communities on many issues of concern. It also imparted a gender perspective to issues concerning social and economic life of women. Therefore, the concerns of some experts that women will be only proxy to men, after reservation was given to women in Panchayats and Nagarpalikas, often leading to misuse of their position, have in time turned out to be baseless and that the track record of most of the elected women representatives has been proved commendable. Earlier notions of women being mere proxies for male relatives have gradually ceded space to the recognition that given the opportunity to participate in the political system, women are as capable as their male counterparts. As a matter of fact, representation of women in policy making machineries is critical to the nation building process. In all walks of life, women who acquired the necessary skills and education have proved themselves capable of holding of their own. But unfortunately they have failed to gain the requisite ground in the field of politics. All these trends indicate that womens representation in politics requires special attention and positive action. This Bill is a crucial affirmative step in the right direction of enhancing the participation of women in the State legislatures and Parliament and increasing the role of women in democratization of the country. In the true democratic spirit, no class/community should be excluded from the decision making due to the social and economic barriers placed upon that gender as a whole, and merely hypothetical tokenism or symbolic participation should be avoided. Reservation is a sociological concept evolved to bring about social reengineering and that reservation for women is therefore needed to make the democratic process inclusive. Incidentally, India, the largest democracy, lags much behind other countries including its neighbours Pakistan and Afghanistan, when it comes to the participation of the fair sex in politics. With only 10.8 per cent of women representation in the Lok Sabha and 9 per cent in the Rajya Sabha currently, India ranks 99th among 187 countries, according to the comparative data by the Inter-Parliamentary Union.

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The IPU is an international organisation that works for promoting democracy, peace and co-operation among people in the world. At present, India has only 59 women representatives out of 545 members in the Lok Sabha, while there are 21 female MPs in the 233member Rajya Sabha. Main Features of the Bill The Bill seeks to reserve, as nearly as possible, one-third of all seats for women in the Lok Sabha and the state legislative assemblies (including Delhi). It means of the 543 seats of the current 15th Lok Sabha, 181 seats will be only for women. Currently of the 545 seats, only 59 seats are being chaired by women. The allocation of reserved seats shall be determined by such authority as prescribed by Parliament. As nearly as possible, one third of the total number of seats reserved for Scheduled Caste/ Scheduled Tribes (SC/ST) in the Lok Sabha and the legislative assemblies shall be reserved for SC/ST women. Reservation of seats for women shall cease to exist 15 years after the commencement of the Act. Reserved seats may be allotted by rotation to different constituencies in the state or union territory. If a state or union territory has only one seat in the Lok Sabha, that seat shall be reserved for women in the first general election of every

cycle of three elections. If there are two seats, each shall be reserved once in a cycle of three elections. Similar rules apply for seats reserved for SC/STs. Of the two seats in the Lok Sabha reserved for Anglo Indians, one will be reserved for women in each of the two elections in a cycle of three elections. Alternative methods Reservation of seats in Parliament restricts choice of voters to women candidates. Therefore, some experts had suggested alternate methods such as reservation in political parties and dual member constituencies. Three alternatives have been suggested by some experts: reservation for candidates within political parties; dual member constituencies where some constituencies shall have two candidates, one being a woman; and increasing the number of seats in Assemblies and Parliament to accommodate sufficient women candidates. The Gill Formula, which was a proposal of the Election Commission of India to make it mandatory for the recognised Political Parties to ensure putting of minimum agreed percentage for women in State Assembly and Parliamentary election so as to allow them to retain the recognition with the Election Commission as Political Parties, is unacceptable to the majority of parties and womens groups in the country. It is believed that it might lead to political parties giving seats to women, which they perceive are not winning seats, thereby negating actual representation of women

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Reservation for women in Legislative Assemblies States Total Andhra Pradesh Arunachal Pradesh Assam Bihar Chattisgarh Goa Gujarat Haryana HP J&K Jharkhand Karnataka Kerala MP Maharashtra Manipur Meghalaya Mizoram Nagaland Orissa Punjab Rajasthan Sikkim TN Tripura Uttarakhand UP WB Delhi Puducherry* Total Total excl. Puducherry 294 60 126 243 90 40 182 90 68 87 81 224 140 230 288 60 60 40 60 147 117 200 32 234 60 70 403 294 70 30 4120 4090 Seat Strength SC 48 8 38 10 1 13 17 17 9 36 14 35 29 1 ST 19 59 16 2 29 27 3 28 15 2 47 25 19 55 38 59 33 25 12 2 20 2 16 Gen 227 1 102 203 51 39 142 73 48 87 44 173 124 148 234 40 5 2 1 90 83 141 18 188 30 55 318 210 58 25 2960 2935 SC 16 0 3 13 3 1 4 6 6 0 3 12 5 12 10 1 0 0 0 8 11 11 1 15 3 4 28 23 4 2 205 203 Reserved for Women ST 6 20 5 1 10 0 9 0 1 0 9 5 1 16 8 6 18 13 20 11 0 8 4 1 7 1 0 5 0 0 185 185 Gen 76 1 34 67 17 12 48 24 16 29 15 58 41 49 78 13 2 1 1 30 28 48 6 62 10 18 106 70 19 8 987 979 Total 98 21 42 81 30 13 61 30 23 29 27 75 47 77 96 20 20 14 21 49 39 67 11 78 20 23 134 98 23 10 1377 1367

24 34 34 2 44 10 13 85 68 12 5 607 602

553 553

* Reservation for Puducherry Assembly does not require an Amendment to the Constitution of India, and was thus not part of the Bill. It requires an ordinary Act of Parliament. in elected bodies. There is kind of a consensus that reserving seats for women in Assemblies and Lok Sabha should not be left to the discretion of Political Parties, rather it should be guaranteed in the Constitution itself and enforced by all means6.

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Pros and cons of reservation in political parties and dual member constituencies Advantage Political parties Provide more democratic choice to voters Allow more flexibility to parties to choose candidates and constituencies depending on local political and social factors Can nominate women from minority communities in areas where this will be an electoral advantage Allow flexibility in the number of women in Parliament Does not decrease the democratic choice for voters Does not discriminate against male candidates Might make it easier for members to nurture constituencies whose average size is about 2 million people Disadvantage No guarantee that a significant number of women would get elected Political parties may assign women candidates to constituencies where they are weak Might lead to resentment if a woman is accommodated to the disadvantage of a stronger male candidate

Dual- member constituencies

Sitting members may have to share their political base Women may become secondary persons or add-ons To fulfil criteria of 33% women, half of the seats need to be dual constituencies. This would increase the total number of MPs by 50%, which could make deliberation in Parliament more difficult

Source: PRS Legislative Brief, September 23, 2008 There were problems in endorsing the concept of double-Member constituencies and increasing the number of seats in Assemblies and Parliament. Elected women representatives should be granted the same opportunities/status as their male counterparts. However, providing for double-Member constituencies might result in women being reduced to a subservient status, which will defeat the very purpose of the Bill. Therefore, this concept seems discriminatory to women. On the other hand, if it is proposed to increase the seats, there will be need of delimitation of constituencies. Delimitation has just been finished, and going in again for adding seats, new seats, is going to take you another 15 years and it is going to push the entire process backwards. It cannot be done in one day by redrawing map. It will take another 10 years. This delimitation process itself was going through so many roadblocks and so many problems. Therefore, now, again taking it back to new increased seats is quite unfair. The view that consequent upon reservation of 1/3rd of seats in State Assemblies and Lok Sabha, the sitting members in case they happen to be male members who have nurtured their constituencies will suffer injustice, as will other males who might wish to contest from the reserved constituency, did not find favour with the political class. The rationale behind reservation for women is to mitigate the deleterious effects of social and economic barriers that have prevented the political empowerment of women, and not to discriminate against men through the process of reservation, but to instill a new harmonious social order promoting genuine fraternity between both the sexes. Rotating Constituencies One argument raised against rotation of seats is that it will lead to lack of accountability and that rotation of seats will prevent the incumbent from nurturing her constituency. However, the fact of the matter is that rotation is in the interest of democracy and that it is the duty of the incumbent to work towards the welfare 31

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of the constituency, irrespective of whether she would be elected next time or not. We cannot base our democracy on a no-change approach which may lead to political monopolies and entrenched interests which are an anathema to democratic processes. Rotation of seats would also help in horizontal spread of womens involvement in the political affairs of the country. We cannot subscribe to the argument that this may cause a changeover of experienced MPs and MLAs and, therefore, may adversely affect the political discourse. The experienced members can seek acceptance from any other constituency. It is also a fact that women elected from these constituencies are as efficient, or, more efficient than the present incumbents. In a vibrant democratic system, it is the State and national interest which should be at the forefront. Since all seats will be rotated at some point or the other this will affect all in equal measure. The reservation of seats may be done in such a way so that the road map for reservation is known in advance for the next three terms so as to eliminate uncertainty and allow for planning and policies that should have precedence over constituency interest. Impossibility of Reservation in Rajya Sabha Article 80 of the Constitution specifies that members of state assemblies will elect Rajya Sabha MPs through single transferable vote. This implies that the votes are first allocated to the most preferred candidate, and then to the next preferred candidate, and so on. This system cannot accommodate the principle of reserving a certain number of seats for a particular group. Currently, Rajya Sabha does not have reservation for SCs and STs. Therefore, any system that provides reservation in Rajya Sabha implies that the Constitution must be amended to jettison the Single Transferable Vote system. Quota within quota issue To put it simple, quota within quota means, subreservation for STs, SCs, OBCs and Minority communities within the 33 percent quota. However, the Bill in its present form doesnt favour this view mainly because of lack of political consensus around this issue. This demand is also unconstitutional. There is nothing like an OBC quota in the constitution. And surely no quota based on religion. In its written views submitted before the Committee, the Nationalist Congress Party has opined that we dont find any need 32

for reasons for special quota for OBC within the womens quota as suggested from certain quarters. Now there are 429 seats excluding reserved seats for SC/ST category in the Parliament. There is no reservation for OBC in the abovementioned existing unreserved seats. But still there is good representation for OBC category in the Parliament at present. Same is the case of OBC category in the State Assemblies as well Of the 543 Parliament seats, 80 seats are currently reserved for Scheduled Castes and 44 for Scheduled Tribes. So the Bill in its present form simply means that the sub quota within this quota is that of these 124 seats, 41 will have to be reserved for SC/ST women. And these 41 seats will be a part of 181 seats reserved for women. So the maths in simple terms would mean 140 seats in general category and 41 seats in reserved category = 181 seats. In other words, 55% (33% for women and 22% for SC/ST) of the Parliament seats will be reserved. Conclusion The reservation bill has been undoubtedly one of the most controversial pieces of legislation to ever get passed in any house of the Indian parliament. This is notable as being one of the rarest occasions when a political consensus was reached among the three major national parties - the Bharatiya Janata Party, the Congress, and the Left parties. The passage of the Womens Reservation Bill in the Rajya Sabha is not only a heartwarming step for India but is likely to be an inspirational trendsetter for womens empowerment in the entire region. One of the challenges that the bill faces among other barriers is of course getting the Lok Sabhas approval. However, with the kind of momentum it has acquired in the last few days, the subsequent passage in the lower house should be relatively easy. For the women of India, the sight of a huge influx of women into the august body of parliament will be an exhilarating sight, at least initially, irrespective of how they perform as MPs or what signs of improvement they provide. Since not only parliament, but the assemblies, too, will see a large body of women as members, Indian politics will experience a seminal, unexpected change. Research suggests that having more women lawmakers makes a huge difference, not only to women, but to society in general, especially in poor countries. In the Indian context, research by

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Raghabendra Chattopadhyaya and Esther Duflo of the US-based National Bureau of Economic Research (NBER) shows that reserving seats for women in Panchayats made a substantial difference to governance and brought hitherto-neglected areas into focus. In Rwanda a much-needed law that defines rape and protects victims of sexual abuse was passed only after women legislators became a force to reckon with. Their male counterparts simply did not think it important enough to warrant a law. Debates will continue, stands will change and a complete consensus over an important issue such as this would always be elusive. But as the saying go, half a loaf is better than no bread. The matter is urgent because women will assuredly bring greater commitment and integrity to the unfinished and increasingly urgent task of implementing rights based legislation to food, education, health, sanitation and water supply, clean energy, demographic change, and employment. Those nominated are not all going to be wives, daughters and sisters of powerful political families. This could happen up to a point but not for long and women will increasingly come into their own. Parties that wish to see more OBC and Muslim representation are free to nominate more candidates from these categories. It is also likely that corruption and misbehaviour in the House may also come down with a proportionate increase in women members. References 1. 2. The Constitution (One Hundred and Eighth Amendment) Bill, 2008 Report of the Parliamentary Standing Committee on Personnel, Public Grievances, Law on the Constitution (One Hundred and Eighth Amendment) Bill, 2008 Study on Elected Women Representatives (EWRs) in Panchayati Raj Institutions, Ministry of Panchayati Raj, Government of India

4.

Legislative Brief, The Constitution (One Hundred and Eighth Amendment) Bill, 2008, PRS Legislative Research, September 11, 2008. Feminist Fundamentalism over Womens Reservation Bill: Lessons from the Quota Debate in India, Medha Nanivadekar, IWPRs Eighth International Womens Policy Research Conference, June 2005 Nanivadekar, Medha (2003) Dual-Member Constituencies: Resolving Deadlock on Womens Reservation Economic and Political Weekly Oct 25, 2003 pp. 4506-4510 http://www.ipu.org/wmn-e/arc/classif280210.htm (as on March 18, 2010)
END NOTES

5.

6. 7.

8.

1.

Women as Policy Makers: Evidence from a Randomised Policy Experiment in India, Raghabendra Chattopadhyay and Esther Duflo, Econometrica, Vol. 72, No. 5, Sept 2004 and Women Politicians, Gender Bias, and Policy-making in Rural India, Lori Beaman, Esther Duflo, Rohini Pande, Petia Topalova, Background Paper for UNICEF, Dec 2006. Study on Elected Women Representatives in Panchayati Raj Institutions, Ministry of Panchayati Raj, Govt of India, April 2008. 18th July, 1947, Constituent Assembly Debates (Proceedings) Volume IV Enhancing Womens Representation in Legislatures: An Alternative to the Government Bill for Womens Representation, Forum for Democratic Reforms Dr Jayaprakash Narayan, Dhirubhai Sheth, Yogendra Yadav, Madhu Kishwar, Manushi, Issue 116. The Logic of Quotas: Womens Movement Splits on the Reservation Bill, Madhu Kishwar, Manushi, Issue No. 107. Parliamentary Standing Committee Report on the Constitutional (108th Amendment) Bill

2.

3. 4.

5.

3.

6.

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