The State is divided into three branches- Legislature(law-making), Executive(law implementation) and Judiciary(adjudication)- which works together towards proper functioning of the State. All three branches play a very important role in the functioning of the State. As Merriam Webster’s Dictionary of Law describes, the legislator is a person who makes laws. In the modern democratic country where there is rule of law, where everyone from the State to the people, is subjected to the law, it is important that law represents everyone.
In the present article, we shall look into the representation of women and their reservation in the Legislative branch.
Quota in a layman language means a specific share that a group of people is entitled to. In a developing and a democratic country like India consisting of a large number of communities based upon region, religion, language, gender, etc, it is important that everyone’s interests are well represented and taken into consideration. For this, in different fields, certain quotas are given which are based on financial, social criteria.
In the present society, which has deep roots of patriarchy, and where child marriage, sexual offenses against women, female feticide, inequality in wages based upon gender is still prevalent, it is important that the voices of women are heard and acted upon. Prevailing gender disparity and under-representation of women in the legislative branch(law-making body) has to lead to the idea of giving reservation to women for a certain percentage of seats in the legislative assembly.
Now the reservation or quota system is of two types:
- Candidate quota: In candidate quota, a certain percentage of women candidates, from every political party participating, must contest in elections. Political parties participating have to adhere to the specific percentage given in law.
- Reserved quota: In contrary to the candidate quota, in the reserved quota, a certain number of seats are reserved for women in the legislative assembly. The question that which seats will be reserved is either determined by draw of lots or is done in a rotation of seats.
Countries having a reservation for women legislators
There are various countries who have reserved a certain percentage of seats for women in the legislative assembly. Rwanda has 30% whereas Tanzania has 20% of the seats reserved1. On similar lines, Jordan, Uganda, Costa Rica, South Africa has given reservation. Due to the reservation policy, Rwanda, Costa Rica, Argentina, Mozambique, and South Africa are highly regarded in the world league of the Inter-Parliamentary Union and the position of Denmark, Finland, Iceland, Norway and Sweden, which for a long time were at the top of the ranking table, is now being challenged.
Constitution of India: Reservation for women legislators
The need for reservation for women legislators can be found in the essence of the Constitution of India. The principles of the Constitution are embedded in the preamble of India. The undercurrent of the Constitution is equality of status, opportunity and promoting everyone.
To effect the same, Article 14 gives right to equality which says that the State shall not deny any person equality before the law and equal protection of the law.
Dicey’s idea of the rule of law provides detailed insight to Article 14. Dicey said that rule of law has three principles:
- The supremacy of law: This means that no one is above law, then may it be the government or the people. This is to ensure that power is not used arbitrarily by authority.
- Equality before law: everyone, regardless of their caste, color, creed, language, region, religion, gender, sex, is equal before the law. This is to show that the law does not discriminate.
- Predominance of legal spirit: there must be a legal system, working as per the laws, ensuring implementation and protection of the rights and liberties given in the Constitution. The idea behind this principle is, that the rights conferred by the Constitution do not remain a dead letter, but are also exercised and prevented.
It says that the State shall not discriminate any citizen on the grounds of religion, race, caste, sex, place of birth or any of them. To ensure equality of opportunity and status, article 15(3) allows the state to make any provision or law for women and children for their advancement, and such provision and aw shall not be restricted by Article 15. That means, to ensure equality, the Constitution allows positive discrimination.
To ensure that any law stands upright on the principles of Article 14 and 15, a test of arbitrariness and reasonable classification was propounded.
Doctrine of Arbitrariness
Roots of the doctrine of arbitrariness are found in the case E.P. Royappa v Union of India2 where Justice Bhagwati said that equality and arbitrariness are ‘sworn enemies’ and any law which is arbitrary, cannot withstand Article 14. In-State of A.P. v McDowell & Co3, Supreme court held that law being arbitrary is not enough to violate Article 14 and hence cannot be stuck down. However, the decision of this case was overruled in Shayara Bano v Union of India4, where it was held that test of arbitrariness is enough to determine whether a law stands upright on the principles of Article 14.
Doctrine of Reasonable Classification
The doctrine of reasonable classification is an extension of the former doctrine. Reasonable classification can be seen as a tool for the judiciary to interpret where a law is arbitrary or not. Supreme court in Ajay Hasia v Khalid Mujib5 said that, if:
- A classification made by law is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group
- There is a direct, rational nexus between the differentia and the objective of the legislation.
Supreme court in Lachmandas Kewalram6 case, explained the concept of reasonable classification using an example of Contract law. Section 11, Contract Act says that minors are not competent to contract. Section 11 makes a classification based on age, where all majors(above 18 years of age) are under the purview of Section 11, and rest are not. This classification based on the age has nexus with the object of the Act, which is to determine the capacity and competency of persons who may contract, and therefore such classification is reasonable and not arbitrary.
The Constitution makers wanted to have a society where everyone, regardless of different markers (gender, caste, region, etc) had equal social and political status and opportunity. To effect the same, Constitution allows the State to make laws which favour women and children (Article 15(3)) and such favour shall not be deemed to be discriminatory as stated in Article 15(1). However, any law negatively favouring and protecting women, or any law inherently arbitrary in nature cannot be prevented by Article 15(3)
108th Constitutional Amendment Bill, 2008
Women’s Reservation Bill, i.e., 108th Amendment Bill was introduced in May 2008 in the Parliament. In 2010, it was passed by the Rajya Sabha, but the Bill lapsed due to the dissolution of the Lok Sabha. The Bill has not been passed till date. The Bill seeks to amend Article 239AA, Article 331, and Article 333, and insert Article 330A, Article 332A, and Article 334A7. The bill with such changes in the Constitution aims at bringing the following features:
- Reservation for women of one-third of all the seats in the Lok Sabha and the state legislative assemblies
- One- third of the total number of seats reserved for Scheduled Castes and Scheduled Tribes shall be reserved for women belonging to Scheduled Castes and Scheduled Tribes in the Lok Sabha and the legislative assemblies
- Reserved seats shall be allotted to different constituencies by way of rotation
- The provisions and amendments made with respect to reservation for women in legislative assemblies shall cease to have effect after fifteen years from its commencement.
Panchayati Raj and Reservation
With 73rd and 74th amendment passed in 1992, uniform Panchayat and Municipal raj system were brought in India. Panchayat system is often referred as grass-root governance. The system directly approaches and tries to solve the issues of the public. Panchayat and Municipal system can be seen as a mini legislative system.
By virtue of Article 243D, at every panchayat level, one- third of all the seats are reserved for women and one- third of all the seats reserved for Scheduled Castes(SC) and Scheduled Tribes(ST) are reserved for women belonging to SC and ST. Similarly, by virtue of Article 243T, in every Municipality, one- third of all the seats are reserved for women and one- third of all the seats reserved for Scheduled Castes(SC) and Scheduled Tribes(ST) are reserved for women belonging to SC and ST.
There are a few states (entry 5, List II, schedule 7) like Madhya Pradesh, Bihar, Assam, Odisha, Rajasthan, Sikkim, etc, who by their State Acts, has reserved fifty percent of the seats at each panchayat level for women8.
In the book Reservation of Women in Indian Parliament, the author in her study observed that the reservation is given at village and municipal level, is like a ‘patchwork’, and women representative are, in fact, working as a proxy for their spouses or male relatives9. However, in an empirical study, it was observed that though there are proxy representatives, but with women reservation, there has been an investment in new issues, which were of primary importance to women like drinking water facilities. It was observed that reservation of women did not affect the attendance of the gram sabha, but it substantially increased women participation and inputs in the sabha, which would consequently affect the policy outcome10.
The Women Reservation Bill has lapsed with the dissolution of Lok sabha. It has yet not been passed in the lower house. Recently, Odisha state assembly unanimously passed a resolution seeking 33% of reservation for women in Parliament in State assemblies.11 Prior to Odisha, in 2016 Andhra Pradesh passed a similar resolution.
Question: How substantial is passing of such resolution by state assemblies?
- Constitutional amendment: to bring reservation for women in Legislature, the constitution needs to be amended. Constitutional amendments are brought under Article 368, where the amendment bill needs to be passed by both the houses of the Parliament. Only in certain cases given in the proviso clause, like amendment with respect to Article 368, representation of states, seventh schedule, etc, ratification by half of the states is required. However in the present case, the amendments are to be done in Part XVI of the Constitution, which does not fall under the proviso clause, hence no ratification is needed by the states.
- Can states pass a resolution giving 50% reservation in state assemblies?: State legislature derives its power to legislate from Article 246, read with Schedule seven, List-II (State List) and List III (Concurrent List). Unlike entry 512 of the state list, there are no entries either in-state or concurrent list which gives power to states to legislate regarding the constitution and reservation of the seats in assemblies.
However, by virtue of Article Article 246 read with Article 248 along with entry 97, List I, Schedule 7, Union as residuary power has the authority to legislate on the matter of constitution of Legislative assemblies since such entry is missing from all the three lists given in Schedule 7.
From the above two points discussed, it is clear that the resolutions passed by Odisha and Andhra Pradesh do not have any substantial value. However, it does create a political pressure on the Union legislature to look into the issue of women reservation and passing of the resolution in the Lok sabha.
Every Bill comes with pros and cons. It is true that women reservation will not guarantee women empowerment and vocalization of all issues surrounding women overnight, but it will surely change the dynamics of politics and society. As it was observed in the research study, that in spite of proxy representation, change in investment, women participation, the vocalization of issues important to women was witnessed13. Nothing is done overnight, there might be unexpected outcomes, but at the end, the efforts put in the Bill and its objective shall not be futile.
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