For a feminist Constitution

Scholars like Helen Irving and Vicki C Jackson show that neutral provisions like federalism, amendment procedure, and constitutional language have a gendered impact

As we celebrate 73 years of the adoption of our Constitution, it is imperative to inquire if it is everyone’s constitution and not one of a privileged few. In terms of women, while there have been a few gender audits of the constitution and its creation process in South Africa and Nepal, India has not seen any such audit.

Looking at constitutions through a feminist lens is imperative because they have a gendered impact. Scholars like Helen Irving and Vicki C Jackson show that neutral provisions like federalism, the amendment procedure, and the language of the constitution have a gendered impact. For instance, if a constitution only makes a provision for formal equality, it is bound to have an impact on women because they require affirmative action to make up for the disadvantage they face as a result of their gender.

Further, constitutions are long-living documents, and they will continue to have an impact on generations to come. For instance, women in the constituent assembly of India rejected the idea of reservations for women in the legislature. As a result of the same, women constitute a total of 14 per cent in the Lok Sabha and 9 per cent in state legislatures even today.

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They are the source of all laws and are supreme over all the laws as well as the state. They serve as a guidepost for the State’s governance and lawmaking. They are hard to amend. Thus, entrenching gender justice in the constitution also has an instrumental value insofar as it ensures that the laws and policies of the state are women-friendly.

Another reason for feminist inquiry into constitutions is that they are public documents that create culture. For instance, during the CAA protests, the protestors read out the preamble to the Indian Constitution to assert their identity and put their claim to equal citizenship in the name of equality, fraternity, and liberty. This shows that constitutions are popular documents that give hope and a sense of ownership to the stakeholders. If constitutions are feminist, they can go a long way toward entrenching a culture of gender justice.

On the question of whether constitutions were made in a feminist fashion, the answer is a clear no. The members of the constituent assembly were chosen on the basis of indirect election by the members of the provincial legislative assemblies. Only those who held property and were educated could participate in the elections. Given that the literacy rate of women was 7.4 per cent in 1941, whereas it was 25 per cent for men, it is natural that a lower number of women were eventually elected to the constituent assembly.

Ultimately, there were a total of 15 women in the constituent assembly. Five out of the 15 women never spoke during any of the meetings. Even when they spoke, their interventions were tokenistic. For instance, Sarojini Naidu spoke twice in the assembly: once to congratulate Dr Rajendra Prasad on becoming chairman of the Constituent Assembly and again on the resolution on the national flag.

Women also faced a lot of sexism and discrimination while they were at the constituent assembly. When Purnima Banerji, a member from the United Provinces, suggested that seats in provincial legislatures vacated by women be filled up by women only, HV Kamath replied, “…. (in affairs of governance)… where we have to be cold and calculating in dealing with various kinds of men, women would find it rather awkward and difficult to deal with such persons... ...the head may not play the part that it must in the affairs of government. If the heart were to rule and the head to take a secondary place, then it is felt by many thinking men, and thinking women too, that the affairs of government might go somewhat awry and might not fare as well as we might want them to.”

Chief Justice of India Dr D Y Chandrachud recently remarked at the LM Singhvi memorial lecture that the Indian constitution was a feminist document because it extended the right to vote to women at its inception. Further, he also said that the Constitution sought to disrupt social hierarchies, which is also the aim of feminists.
It is true as well. On paper, the constitution does disrupt social hierarchies. It obligates the state to promote and protect the fundamental rights of its citizens. It provides for equal distribution of wealth, access to health and education, and access to justice, among many other rights. But the entrenchment of rights in the constitution cannot yield feminist outcomes.

For example, it was only after the courts interpreted Article 14 of the Constitution, which enshrines the right to equality before the law, and Article 15 of the Constitution, which provides the right to equal opportunity in a gender progressive manner, that adultery, in which the husband could file a case against the man who had intercourse with his wife, was abolished.

It was only when the courts gave a progressive interpretation to Article 14 and Article 25, which guarantee the right to freedom and practice of the religion of one’s choice, that women got the right to enter the Sabarimala temple, whose access had been denied to women as they were considered impure since time immemorial.

On the other hand, marital rape, though judicially recognised, is still not an offence in the Indian statute books because the courts have given a retrogressive interpretation to Section 375 of the IPC, which makes rape a punishable offence. Further, women have been disallowed from wearing hijab in Karnataka’s schools and universities, hindering their access to education, because the courts gave a retrogressive interpretation to articles 14 and 15 of the Constitution.

This shows that superficially progressive provisions cannot yield feminist outcomes until their interpretations are not feminist. Only when judges ask the women’s question and engage in feminist reasoning while deciding cases involving women’s issues can interpretations become feminist.

To that extent, the Indian Constitution is not a feminist document per se, but it has the potential to yield feminist outcomes when it is bolstered by feminist judicial interpretations and political practices of the day.

This serves as a gentle reminder to strive for developing judicial and political practices that have a feminist undertone to them as we celebrate the birth of our constitution. It is only then that our constitution will become a tool of empowerment for everyone, including women.

(The writer is a student at NLSUI, Bengaluru.)