Equality for Women: The Constituent Assembly Debates and the Making of Equality Jurisprudence by and for Women

Introduction

According to American feminist jurist Catharine MacKinnon (2017, p. 116), ‘One cannot take equal part in the game until one has equal say in the rules’. The Constitution of India (CoI) was debated and drafted from December 1946 to November 1949 (Austin, 1966). The document was drafted in a gender-exclusive language without the occurrence of the feminine pronoun ‘she’ throughout the text of the Constitution, although more than 200 occurrences of the masculine pronoun ‘he’ can be counted. The Constituent Assembly (CA), which drafted the Constitution, had 299 members among whom were only 15 women. Hence, India’s CA was marked by a clear dominance of men with a token representation having been given to women.

The contemporary world is characterised by constitutional politics where women have been asserting their voice like never before to attain full membership of the constitutional community (Baxi, 2005). While engaging in constitutional politics, it may be argued that the core objective of women is to secure substantive equality.

This article mainly enquires how the women members in India’s nearly male exclusive CA, despite their severe under-inclusion, managed to contribute an element of gender equality enshrined in India’s Constitution. I shall read Constituent Assembly Debates (CAD) in pursuit of my enquiry which prioritises the feminist perspective to determine the issues involved one way or the other.

Constitutions and Constitutionalism

The second-class status of women in law has arisen from ‘constitutional structures and assumptions’ (Baines et al., 2012, p. 1). Indeed, Constitutions: (a) spell out the structure of the state, embody the country’s highest ideals and vision, lay out moral norms and distribution of political power with its exercise and limits, legitimate the processes and outcomes of government, (b) define the broad rules of the games, encompassing obligations as well as the rights of people and (c) hold fundamental significance in today’s polity (Allen, 2016; Baxi, 2005; Dobrowolsky & Hart, 2003; Roy & Becker, 2020). Occupying the apex of the power pyramid, constitutionalism ‘shapes fundamental assumptions regarding citizenship, rights, and responsibilities’ (Baines et al., 2012, p. 1; also see Roy & Becker, 2020). In classic formulation, the idea of constitutionalism is essentially rooted in ‘the desirability of the rule of law rather than the arbitrary rule of men’ (De, 2018).

However, the history of constitutionalism has been quite androcentric. For instance, the Constitution of the United States enacted in the 1780s was adopted and established by men alone. ‘As a rule, women did not participate in the conventions that framed and ratified the Constitution. Women did not vote for convention delegates. And women—as women—did not publicly participate in constitutional debates in the press, in pamphlets’ (Amar, 1995, p. 465). Put laconically, American women’s absence from the constitution-making process was sweeping.

Though all the constitutions enacted between 2000 and 2017, as compared to 58 per cent between 1960 and 1969, contain explicit guarantees of gender/sex equality (Houlihan, 2020), the ‘forms of constitutionalism are everywhere notoriously phallocentric’ (Baxi, 2005, pp. 550–551). Because of this, the contemporary political sphere is marked by constitutional politics which is essentially concerned with ‘the creation, implementation and maintenance of a framework of governance’ (Dobrowolsky & Hart, 2003, p. 2) which subsumes institutions and aspirations, citizenship, rights and politics that deal with ‘those fundamental principles and practices by which the polity is shaped’ (Dobrowolsky & Hart, 2003, p. 2). Constitutionalism indeed, says Baxi (2005, p. 540), offers ‘contested sites for ideas and practices concerning justice, rights, development, and individual’s associational autonomy’. Constitutionalism presently, in other words, serves as the locus of ‘rule and resistance’ (Baxi, 2005, p. 540).

This constitutional politics is mainly spearheaded by women who ‘question formations of power in state and society’ (Baxi, 2005, pp. 550–551) and make an unprecedented demand for inclusion in the ‘process of constitution-making and the text of the constitution’ (Dobrowolsky & Hart, 2003, p. 1) coupled with its interpretation (Irving, 2008).

Endowing women with finished constitutions, in a paternalistic fashion, with arraying gender rights is not sufficient. Their imprint in its making as well as the finished text constitutes a central aspect of gender equality. In Nicaragua in 1986, for instance, the Nicaraguan National Assembly put out the first draft of the country’s Constitution in the public domain to elicit people’s opinion regarding it. Women’s strong opposition to the language used in the draft left framers stunned. They were under the impression that the proposed Constitution arraying women’s rights was quite progressive (Dobrowolsky & Hart, 2003).

What this incident makes apparent is that the substantive inclusion of women with the effective voice at every step in constitution-making and the text of the Constitution coupled with its interpretation is crucial, rather than encumbering them with equality provisions enacted bereft their voice and participation. ‘Effective participatory constitution-making has to provide for women’s equal representation in the process and outcome’ (Robinson, 2016, quoted in Allen, 2016, p. 9).

Substantive equality constitutes the central goal of feminist constitutional politics where the demand is asserted that constitutions should be designed from the perspective of addressing structural discrimination, marginalisation and actual disadvantage of women as a group in society.

Formal equality anchored in the Aristotelian dictum—equals should be treated equally and unequals unequally (Simpson, 1997)—and found in post-war constitutionalism is insufficient to ensure the full membership of women in society, as it only seeks to address the problem of misclassification (Kapur, 2016; MacKinnon, 2005), and not the problem of gender inequality. Second, formal equality is rooted in individualism. It seeks to reward people ‘only based on individual merit’ (Fredman, 2011, p. 234) with disfavouring reverse discrimination.

According to MacKinnon (2017, p. 115), formal equality is a ‘precise device for maintaining the status quo’, as it does not seek to alter ‘the relationship between those who are equal and those who are unequal, reduce or close the gap between them’ (MacKinnon, 2017, p. 115). Hence, the model comes as a ‘tool for maintaining subordination in the guise of promoting equality’ (MacKinnon, 2017, p. 117).

Substantive equality, on the other hand, begins with the recognition that ‘Inequality is a question of hierarchy: who is on top and who is on the bottom’ (MacKinnon, 2017, pp. 118–119), the situation which is essentially linked to ‘power, its definition and distribution’ (MacKinnon, 2017, p. 118). According to MacKinnon (2017, p. 120), ‘Inequality means never being permitted to be an individual in the full social meaning of the word’. Five commonalities associated with inequalities may be identified: all inequalities share denigration, humiliation, disregard, degradation based on group membership; inequalities exclude people from resources, respect, credibility and power; inequalities are collective; inequality is systemic and systematic; and each inequality is unique (MacKinnon, 2017, pp. 1119–1120).

Put pithily, the notion of ‘substantive equality tries to identify patterns of oppression and subordination of women as a group by men as a group’ (Baines & Rubio-Marin, 2005, p. 14). The ultimate ‘goal of substantive equality is to transform social patterns of discrimination, partly by uncovering the inequalities embedded in gender-neutral laws and partly by challenging schemes that differentiate women by offering us only paternalistic benefits’ (Baines & Rubio-Marin, 2005, p. 14). For this end, the substantive inclusion of women with an effective voice at every step and in every aspect of constitution-building is essential.

Even though women’s participation in the constitution-making process has increased around the globe, the field is still disproportionately dominated by men. ‘More recently, women have had some voice in constitutive processes, but nowhere near half of the clout’ (MacKinnon, 2012, p. ix). Between 1990 and 2015, 75 countries across the world engaged in constitutional reforms, only 19 per cent of women made up the membership of the constitution-making bodies (Houlihan, 2020).

Motivated by the desire for inclusion, lately, what women seek to do is to play a ‘part in constitutional revisioning, in defining and redefining a nation’s foundational identities, ideas and institutions’ (Dobrowolsky & Hart, 2003, p. 2), as constitutions can serve as ‘transformative tools for change’ (Allen, 2014, p. 16; 2016, p. 10). The incorporation of women’s rights, the language of inclusion and entrenching of substantive equality in constitutions can result in transforming the fundamental structure of governance (Allen, 2014, p. 16).

However, to be able to make it a truly transformative experience, women must be ‘present and active in the process of constitution-making’ (Williams, 2009, p. 20), because ‘without their own efforts to frame the rules of membership, access and the exercise of power, their concerns may go unrepresented, under-represented and/or misrepresented’.

Because of this, it is important to constantly keep examining how ‘constitutions frame women’s membership of, or absence from, the constitutional community; and how constitutional provisions can promote, or present obstacles to gender equity and agency’ (Irving, 2008, p. 1).

How this examining is to be done has been suggested by Helen Irving (2008). She has pioneered the idea of a gender audit. According to her, gender equity and agency are first required to be accepted as being central to the Constitution’s design process as well as the finished text of the Constitution. It is then to be assumed that women’s full membership of the constitutional community is a necessary pre-condition for constitutional legitimacy. An audit done in this manner will ‘throw light on the gendered impact of constitutions already in operation’ (Irving, 2008, p. 2). However, during the audit, it may often prove difficult what promotes equity and agency. ‘One way to answer such questions is to look at existing constitutional provisions and trace the jurisprudence that has followed from their operation in practice’ (Irving, 2008, p. 4). Additionally, knowing women’s ‘position on their country’s constitution, both during its framing and afterward’ (Irving, 2008, p. 4) can also be of considerable help.

In view of this, tangible efforts to audit and assess constitutions can be noticed. Allen (2016) developed the ‘Constitution Assessment for Women’s Equality’. She prepared 55 questions that may be used to review already existing constitutions or to produce the gender-sensitive constitutional design. The assessment will help in the following: analyse the language and provisions of constitutions or draft constitutions systematically from the perspective of women’s substantive equality; understand the related equality issues that can be addressed by the inclusion of rights, recognition in the Constitution and institutional design; compare how other countries have addressed these issues in their Constitutions; identify and prioritise the critical equality issues for advocacy (Allen, 2016, p. 8). This assessment tool, according to Allen (2016, p. 8), ‘guides you through an examination of the most critical constitutional issues that affect women’s rights and gender equality’. Additionally, it helps ‘identify gaps in constitutional protections for gender equality’ (Leterme, 2016, p. 6).

Forgotten Women

Out of its 299 members, India’s CA had 15 women members. Though vast literature about India’s constitution-making process can easily be noticed with the CA debates having been compiled into 11 volumes (Guha, 2007), the role of women members in India’s constitution-making process has remained largely neglected and unexplored for more than 60 years. ‘Despite a fairly large corpus of literature on the Constituent Assembly (sic), nothing throws light on women members and their role in framing the Constitution’ (Agnihotri, 2012, p. v). The women stalwarts of the CA have faded from the public’s conscience (Arif, 2020; Srivastava, 2018). This shows the extent of national apathy and indifference towards our founding mothers, most of whom even actively participated in the nationalist movement and worked to champion women’s rights in the pre-Independence era (Forbes, 2008).

However, the Rajya Sabha Secretariat in 2012 decided to compile women members’ speeches in a volume. The volume contains speeches and interjections of 10 women members of the CA. As little attention has been paid to the role of women in the making of the Indian Constitution, this article seeks to understand how the women members of the CA in a nearly-male-exclusive constitution-making process contributed to shape sex equality found in the Indian Constitution and how we may imbibe women members’ interjections while reading the CA debates. Was the model of gender equality or equality for women, to be more specific, based on principles of formal equality or substantive equality?

It is indeed crucial to examine ‘the role of women as constitutional agents, analysing their engagement in constitutional litigation and adjudication, as well as in constitution-making and amending processes’ (Baines & Rubio-Marin, 2005, p. 6). My enquiry assumes significance especially in India’s context where the role of women members in the male-dominated CA has been under-explored. Women members have fallen into oblivion. The enquiry can be seen in terms of promoting constitutional politics aimed at redressing gender injustice rampant in society.

I shall read the CA debates as primary sources along with other scholarly literature in pursuit of my enquiry, which would privilege the feminist perspective to determine the issues involved one way or the other.

The Assembly and Women

India’s CA allowing for the representation of sex, religion, caste and tribals was quite diverse (Austin, 1966; De, 2018). My discussion here, however, will remain limited only to ‘sex identity’. A leading national daily on 26 June 1946 reported that there was a general agreement in the Congress Executive for ensuring ‘proper’ representation to women in the CA (The Times of India, 1946, June 26). The CA had 299 members (Shankar, 2013): 15 women and 284 men. The names of the women members who were part of the CA were: Ammu Swaminathan, Begum Aizaz Rasul, Dakshayani Velayudhan, Durgabai Deshmukh, Hansa Jivraj Mehta, Kamla Chaudhry, Leela Roy, Malati Choudhury, Purnima Banerjee, Rajkumari Amrit Kaur, Renuka Ray, Sarojini Naidu, Sucheta Kriplani, Vijaya Lakshmi Pandit and Annie Mascarene (Srivastava, 2018). Nearly all of these women members were associated with the national movement, and their commitment to the cause of women since pre-Independence days was remarkable.

However, with only 15 women finding place in the CA, their representation was less than 5 per cent, as compared to men who held more than 95 per cent membership of the body. Given women’s active participation in the nationalist movement (Sen, 2005) and women’s, as Mehta put it ‘one half of the population ‘(Agnihotri, 2012, p. 68; Lok Sabha, 1946, December 19), this representation was token rather than ‘proper’.

While assailing the CA’s androcentric character, Jaipal Singh, a male member of the body, said, ‘There are too many men in the Constituent Assembly. We want more women’ (Lok Sabha, 1946, December 19). In other words, the under-inclusion of women was explicitly raised. Even Banerjee on 11 October 1949 asserted her voice for ample representation (Agnihotri, 2012; Lok Sabha, 1949, October 11).

Among 15 women members, according to Karwa (2019), effective participation was made only by about 7. This token representation was further rendered problematic as barring a few all women members came from an elite background; their speeches had a meritocratic flavour. While asserting their claim to social justice, words such as merit, ability, capacity, worth and intelligence marked their speeches (Agnihotri, 2012). Hence, the voice of marginalised women as Karwa (2019) argues, contextualising the under-inclusion of women, remained unrepresented in the CA. In the end, it was a ‘men’s club’ (Karwa, 2019, p. 14).

The greatest manifestation of women members’ meritocratic outlook was found in women members’ opposition to the idea of reservation being contemplated or made for them (Agnihotri, 2012; Forbes, 2008; Jayal, 2013). Ray articulating women’s perspective about positive discrimination on 18 July 1947 said, ‘We are particularly opposed to the reservation of seats for women. Ever since the start of the Women’s Movement in this country, women have been fundamentally opposed to special privileges and reservations’ (Agnihotri, 2012, p. 93; Lok Sabha, 1947, July 18). Positive discrimination, according to her, impeded women’s growth and an insult to their very intelligence and capacity (Agnihotri, 2012). Hence, ‘Indian women will not tolerate any such reservations in the Constitution’ (Agnihotri, 2012, p. 99; Lok Sabha, 1948, November 9). Ray believed that ability alone could help women move forward in a free India. Purnima Banerjee also made it quite plain that she did not want reserved seats for women (Agnihotri, 2012; Lok Sabha, 1949, October 11). According to Begum Aziz Rasul, ‘reservation is a self-destructive weapon’ (Agnihotri, 2012, p. 20; Lok Sabha, 1949, May 25). Mehta categorically rejected reservation, privileges, quota and separate electorates for women (Agnihotri 2012; Awasthi, 2018; Lok Sabha, 1946, December 19). According to women members, it appears, a ‘just society is a meritocratic one, in which everyone has an equal chance to rise as far as their talent and hard work will take them’ (Sandel, 2020, see conclusion).

Repetitious rejection of reservation and privileges by women was quite heart-warming to the male-dominated Assembly. H. V. Kamath appeared quite relieved when Banerjee turned down the idea of reserved seats for women (Lok Sabha, 1949, October 11). B. Pattabhi Sitaramayya while opposing the Hindu Code Bill admitted admiring Kaur when she had rejected reservations for women (Ambedkar, 2014). Sardar Patel, the then union home minister, particularly impressed by Ray’s categorical rejection of reservation and privileges, remarked, ‘It is a matter for congratulation that women have come forward to say that they do not want any special treatment’ Lok Sabha, 1947, July 18). According to Patel, making a demand for special treatment was an expression of an ‘inferiority complex’ (Lok Sabha, 1947, July 18). It shows that women were under an overarching expectation for not asking special treatment to remedy their historical subordination.

Nearly 75 years after India’s independence, the country’s Parliament currently has only 103 women members (Krishnaswamy, 2020): 78 out of 545 in the Lok Sabha (The Hindu, 2019) and 25 out of 245 in the Rajya Sabha (Krishnaswamy, 2020). In terms of percentage, the Lok Sabha has 14.4 per cent women parliamentarians (The Hindu, 2019), whereas the Rajya Sabha has only just over 10 per cent (Krishnaswamy, 2020). The situation in the state legislatures is even worse. Only 9 per cent of women make up the membership of state legislative assemblies (Poojari, 2021). According to Omkar Poojari, women’s under-representation in the Parliament, as well as in state legislatures, can only be taken as a ‘national shame’ (Poojari, 2021).

This shows merit alone does not alter subordination and inequalities. A deep propensity towards a meritocratic view of life runs counter to the substantive equality which is a hallmark of feminist constitutional politics. MacKinnon (2017, p. 117) says in the American context, ‘the standards we live under—merit, excellence, qualifications, abilities—are coded versions of white, upper class, able-bodied, male, of a particular age and sexuality, qualities, or values’.

According to her, these standards of merit are biased, favouring those who are advantaged and dominant and who set these standards. In the specific context of sex discrimination, the ‘uncritical use of merit as a criterion’ (Fredman, 2011, p. 236) could perpetuate disadvantage. Hence, having faith in merit alone would not address the problem of hierarchical inequalities marked by dominance and subordination.

The male dominance in the CA coupled with meritocracy, at times, was quite toxic. For instance, the CA membership of three women members, Sarojini Naidu, Vijayalakshmi Pandit and Malati Choudhury, came to an end for various reasons. The vacancies that occurred were filled up by men members. Banerjee raised the issue on 11 October 1949. Committed to socialism, Banerjee was the Secretary of the Indian National Congress Committee in Allahabad (Srivastava, 2018). She said that the vacancies created by women should have been filled up by women who had equal merit.

Banerjee wanted that henceforth the seats vacated by women especially in the upcoming provisional Parliament should be filled up by women members only. According to her, the participation of women in the new republic was indispensable. About Naidu who had recently passed away, Banerjee remarked that she could ‘never be replaced both from among men and women’ (Lok Sabha, 1949, October 11). Raising her just demand, Banerjee went through a considerable experience of shame and diffidence. In fact, she feared being ridiculed for it (Lok Sabha, 1949, October 11). B. R. Ambedkar rejected her amendment on the ground that ‘the President in the exercise of his powers of rule-making will bear this fact in mind and see that a certain number of women members of the Constituent Assembly or the various parties will be brought in as members of the Provisional Parliament’ (Lok Sabha, 1949, October 11). Kamath’s reply was quite androcentric marked by paternalism. He raised three specific objections about Banerjee’s amendment speech. First, the suggestion by Banerjee about irreplaceability of Naidu even from amongst men did not go well with Kamath. He appeared quite taken aback.

Clearly, Kamath failed to stomach Naidu’s appreciation, where she was rated above men, even in her passing. Second, for Kamath the issue of women being replaced by women particularly in a provisional Parliament was a trifling issue as the body was temporary, fated to last only for a short period of time. In his categorical opinion, Banerjee should not have made it an issue (Lok Sabha, 1949, October 11). Though the cause of Banerjee was absolutely just, the seats vacated by women in the past were filled up by men. If Banerjee had not raised the issue, she would have failed in her duty as a representative of women. The justness of the cause ought to be decided on merit, rather than extraneous factors such as the temporary character of a provisional Parliament where the religious minorities were being assured representation. Kamath’s third objection is mired in even deeper androcentrism. Banerjee wanted a greater participation of women in the new republic. According to Kamath, with women’s greater participation, the ‘affairs of government might go somewhat awry, might not fare as well as we might want them to be’ (Lok Sabha, 1949, October 11), as women were ‘ruled more by the heart than by the head’ (Lok Sabha, 1949, October 11). He further said, ‘Where the affairs of Government are concerned, 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’ (Lok Sabha, 1949, October 11). According to Kamath, it is not an ideal situation wherein the ‘heart was to rule and the head to take a secondary place’ (Lok Sabha, 1949, October 11) and where ‘the head may not play the part that it must play in the affairs of government’ (Lok Sabha, 1949, October 11). Kamath appears to have been just the tip of the sexist iceberg. The androcentrism in the Constituent Assembly seems to have run deeper.

The debate on the Constitution’s Article 39 (draft, Article 31) took place on 22 November 1948. Clause (a) of the Article reads, ‘The citizens, men, and women equally, have the right to an adequate means of livelihood’ (Lok Sabha, 1948, November 22). The phrase ‘citizens, men and women equally’ was under consideration. The nature of the discussion that followed demonstrates gross phallocentrism.

According to Mahavir Tyagi, keeping or not keeping the phrase ‘men and women equally’ in the Clause was a matter of little importance. It could be settled in a committee. Wasting the House’s valuable time on it was unnecessary (Lok Sabha, 1948, November 22). K. T. S. Shah wanted the phrase ‘men and women equally’ to be removed from the Clause. According to him, the phrase embodied men’s patronising attitude towards women who were already better than men. He noted, ‘I feel that this exhibition of patronage by man over woman, as if we were conferring any special right, ought to be expunged from the Constitution’ (Lok Sabha, 1948, November 22). According to him, citizens were citizens irrespective of sex, age or creed (Lok Sabha, 1948, November 22).

According to Naziruddin Ahmad, the phrase ‘men and women equally’ in the Clause was ‘unnecessary and redundant’ (Lok Sabha, 1948, November 22), because he said, the ‘masculine, as it is well known, embraces the feminine’ (Lok Sabha, 1948, November 22). The term ‘citizens’ alone in the Clause, according to him, was sufficient, as it represented both male and female and which is what quite evident from the provisions related to citizenship agreed upon by the Assembly (Lok Sabha, 1948, November 22). These views smack of gross androcentrism, as they deny women’s autonomous and independent existence.

However, laws perpetuating such phallocentrism are still in force in India after more than 70 years of Independence. Section 13 of the General Clauses Act, 1897, for instance, mandates, ‘Words importing the masculine gender shall be taken to include females’ (Indiankanoon.org, n.d.).

As noted above, India’s Constitution has been drafted in a gender-exclusive language where the masculine pronoun ‘he’ is used to refer to the President, Vice President, Speaker, Deputy Speaker, Governor, Member of Parliament, minister, judge, and even to citizen, person and arrestee. There is not even a single instance of the feminine pronoun ‘she’ throughout the Constitution (Daughtrey, 2000; Dellinger, 1987; CoI, 2007).

The male bias is quite rampant in the language (Perez, 2019). Since English lacks gender-neutral singular pronouns, the two distinct pronouns ‘she’ and ‘he’ were supposed to be used to refer to females and males respectively (Crawford, 2018). However, despite this linguistic presupposition, ‘he’ traditionally was prioritised to refer to both women and men (Crawford, 2018) and is now even labelled as a ‘generic’ term for both sexes. ‘A great deal of research over the past 40 years has shown that when people read he, his, and man, they think of men, not people in general’ (Crawford, 2018, p. 76).

According to Irving (2008), the use of the masculine pronoun in constitutions conveys male privilege. It serves as a ‘cloak for the historical invisibility of women, as well as reinforced stereotypes in which political and constitutional actors are presumed to be male’ (Irving, 2008, p. 42). Hence the use of masculine pronouns has ‘coincided with, and reflected, the subordination of women’ (Irving, 2008, p. 43).

During the drafting process of the Universal Declaration of Human Rights, 1948, the draft Article 1 contained the phrase ‘all men are born free and equal’ (Kothari, 2018, pp. 83–84), Mehta, as an Indian delegate to the United Nations Human Rights Commission from 1947 to 1948 objecting to the phraseology said, ‘…she did not like the wording “all men” or “and should act towards one another like brothers,” she felt they might be interpreted to exclude women and were out of date’ (Kothari, 2018, pp. 83–84). She is now credited by the United Nations to sanitise the sexist language contained in draft Article 1 (Awasthi, 2018).

Thus, the efforts for a gender-inclusive language cannot be appreciated merely in terms of ‘legal precision and formal inclusion’ (Irving, 2008, p. 42). These efforts, as a matter of fact, assume ‘language as a form of representation’ (Irving, 2008, p. 42). Because of this, the promotion of a gender-inclusive language, where ‘she’ and ‘he’ should necessarily be used to refer to women and men in legal instruments, including constitutions, acquires great significance in feminist discourse.

Despite severe under-representation and meritocratic proclivities, women stalwarts articulated women’s social subordination in a noteworthy manner. Ray, a graduate from the London School of Economics and as a committed member of All India Women Conference (AIWC), had prepared a document titled Legal Disabilities of Women in India: A Plea for a Commission of Enquiry in 1934 (Forbes, 2008; Srivastava, 2018). She said before the CA that Indian women were faced with a situation where they had lost all their rights in society as well as the law. Currently, they were in general degradation, subjection and decadence that emanated from historical times (Agnihotri, 2012; Lok Sabha, 1949, July 18). Because of this, she further said, ‘Women in this country have striven for their rights, for equality of status, for justice and fair play’ (Agnihotri, 2012, p. 93; Lok Sabha, 1949, July 18). According to Ray, ‘The social backwardness of women has been sought to be exploited in the same manner as backwardness of so many sections in this country’ (Agnihotri, 2012, p. 93; Lok Sabha, 1949, July 18). She wanted an explicit provision in the Constitution guaranteeing that personal laws relating to marriage and inheritance of different communities will not be discriminatory on the ground of sex (Agnihotri, 2012, p. 98; Lok Sabha, 1948, November 9).

Hansa Mehta, another woman stalwart, educated in England, was the president of the AIWC from 1945 to 1946. During her presidency, the Charter of Women’s Rights was sent to the CA as well as the United Nations. According to Mehta, the source of women’s subordination was social customs, practices and laws. This process of subordination continued for centuries altogether relegating women to private sphere where they had to live behind a purdah meant to protect them from the public gaze. ‘What we have asked for is social justice, economic justice, and political justice. We have asked for that equality which can alone be the basis of mutual respect and understanding and without which real co-operation is not possible between man and woman’ (Agnihotri, 2012, p. 67; Lok Sabha, 1946, December 19), she said. According to her, ordinary women in the country were in an utter state of helplessness, lacking even basic human rights such as free mobility. In short, she said, an average woman in India was easy prey for those who had wanted to take advantage of their vulnerable position (Agnihotri, 2012; Lok Sabha, 1946, December 19).

Despite this clear enunciation of Indian women’s subordination in society by Ray and Mehta, gender inequalities were never part of India’s constitutional agenda (Agnes, 1999; Mahajan, 1998). Efforts were underway in the constitution-making process against women being considered as autonomous right-bearing individuals. There were demands to regard women as members of their religious community. Given this, there was no need to put gender discrimination to discussion in the Constituent Assembly (Banerjee, 2006).

On the other hand, great concern was shown in respect of religious and cultural groups, none of which could be placed at a disadvantage. The social practices and personal laws of different religious communities that subordinated women were given primacy in India’s constitution-making process. Marriage, divorce, inheritance and maintenance all were governed by personal laws of different religious communities wherein women were not treated as equals. These personal laws, in fact, ‘sanction and justify differential treatment of men and women’ (Mahajan, 1998, p. 151).

Because of this, women were against allowing the free practice of religion. Kaur, educated in England and having a ‘feminist zeal’ (Roychowdhury, 2020), opposed the idea of free practice of religion in the Fundamental Rights Sub-Committee. According to her, the carte blanche would provide patronage to evil practices such as purdah, devadasi and sati (Agnes, 1999; Austin, 1966).

Rather, women members wanted the most progressive personal laws which would not discriminate against women (Agnihotri, 2012). Kaur wanted the Uniform Civil Code to be placed in Part III of the Constitution in order to make it justiciable just like the Fundamental Rights (Rao, 1968). But women members’ efforts did not succeed because of opposition from religious minorities. Even when Article 44, the provision on the Uniform Civil Code, was being debated to be put in Part IV, the Directive Principles of the State Policy of the Constitution, it was opposed by Muslim members with considerable vehemence (Lok Sabha, 1948, November 23). According to them, their laws related to marriage, inheritance and succession were inextricably anchored in their religion. However, Ambedkar, replying to the debate, pointed out that almost every aspect of life in India was occupied by civil laws. It was only a little corner of succession and marriage laws, which was not covered so far by civil and uniform laws (Lok Sabha, 1948, November 23). According to K. M. Munshi, with such resistance, giving equality to women would never be possible (Lok Sabha, 1948, November 23).

Similarly, the Hindu Code Bill, a move to reform and codify Hindu personal law which was introduced by India’s Law Minister Ambedkar in the Constituent Assembly on 11 April 1947 was resisted with considerable antagonism by Hindus (Ambedkar, 2014). According to Guha (2007, p. 138), the Bill ‘aimed principally at enhancing the rights of women’ and ‘went very far in the direction of gender equity’ (Guha, 2007, p. 229). What the Bill provided included the right to inheritance, the right to maintenance and the right to divorce. It recognised the principle of monogamy and inter-caste marriages as well as the adoption of children of different castes (Ambedkar, 2014; Guha, 2007).

Women members appear to have come forth more vocal and assertive over the Hindu Code Bill (Ambedkar, 2014) than the provisions of the Constitution as personal law was the real source of their subordination. Sitaramayya while opposing the Bill remarked, ‘If half a dozen lady members of this House can drag us by [the] heels and make us take up this Bill, I wonder what our position will be when there are two hundred and fifty of them here’ (Ambedkar, 2014, p. 672). Women were quite anxious about the Bill being adopted by the House (Agnihotri, 2012). Mehta and Deshmukh made remarkable speeches in support of the Bill. Mehta, for instance, said,

Our new Constitution is going to be a Constitution which aims to secure for the people of this country justice, social, political and economic. We, therefore, feel that the daughter should get an equal share in the property of her father with the son. (Ambedkar, 2014, p. 28)

Deshmukh invoking the equality provision appealed to the male members of the assembly to enact the Hindu Code Bill into law. ‘I make this appeal to you. Let us not be wanting or halting in having a Code of Hindu Law for ourselves which will prove a great boon to our own society’ (Ambedkar, 2014, p. 404).

The stiff opposition to the Bill, however, came from the President of the Constituent Assembly Rajendra Prasad who wrongly maintained that the Assembly did not have the mandate to pass the Hindu Code Bill (Austin, 1966; Guha, 2007). The Bill was eventually ‘shelved due to conservative resistance’ (Austin, 1966, p. 142). The account shows why gender inequalities would have been made absent from the constitution-making process. Ruffling male interests was not easy. Ideas allowing autonomy and agency to women in an actual sense were not acceptable. For instance, the proposal putting the Indian state under directory and non-justiciable obligation to promote a marriage based on mutual consent of women and men were jettisoned (Rao, 1968). Women had to distance themselves from feminists in the West. Ray said, ‘With the first stirrings of consciousness amongst women, there never arose any narrow suffragist movement that has been so common in so many so-called enlightened nations’ (Agnihotri, 2012, p. 93).

Even the guarantee of sex equality found in India’s Constitution appears mired in questions. Clause (1) of Article 15 provides a general guarantee of non-discrimination to citizens on the ground of sex only. The relevant part of which reads: ‘(1) The State shall not discriminate against any citizen on grounds only of … sex …’ (CoI, 2007, p. 7). In other words, the Indian state cannot use ‘sex’ as a ground for classification while formulating any policy.

From a feminist perspective, the main issue connected with this Clause is that it has been drafted in an extremely limiting language. The key interpretational term that the Clause contains is ‘only’, which gives it a reductionist character. According to the jurisprudence evolved in relation to this Clause, the discrimination claim must be fully rooted in sex alone (Jaising, 2005). ‘If a woman is discriminated against not because she is a woman, but because she is a Hindu, this is not discrimination based on sex, but sex plus culture and religion’ (Jaising, 2005, p. 13). Hence, ‘when sex combines with property, social norms, different conditions of service and the like, the very fact that it is expressed in combination removes it from the purview of Article 15 (1)’ (Kannabiran, 2014, pp. 173–174).

This circumscribing of Article 15 was done by B. N. Rao, advisor to the Constituent Assembly, who unilaterally inserted the word ‘only’ in it. The effect of the insertion of the modifier is that the grounds given in the Article got severely narrowed. This guarantee was discussed by the Calcutta High Court in Sm. Anjali Roy vs. State of West Bengal (1952), where it was explicitly stated that the terms ‘discrimination’ and ‘only’ in Article 15(1) were of the greatest significance (Chakravartti, 1952). According to the judgment, as perArticle15(1), the discrimination which was outlawed was, ‘Only such discrimination as is based solely on the ground that a person…is of a particular sex and on no other ground’ (Chakravartti, 1952).

Moreover, what is worth noticing here is that the Chief Justice Chakravartti, following in Rao’s footsteps, introduced yet another modifier ‘solely’ to emphasise the extent and character of sex equality present under Article 15(1). In a similar vein, the third modifier ‘purely’ in relation to Article 15(1) was introduced by Justice Hussain of Karnataka High Court. ‘The use of the word “only” connotes that discrimination that is discountenanced by the Constitution is discrimination on account of purely and solely on … sex’ (Hussain, 1958).

However, according to MacKinnon (2017, p. 121), ‘All inequalities interconnect and overlap inexperience’. Hence, the reasoning embraced by the Indian judiciary overlooks the fact that

[N]ot only do identities overlap, so does discrimination. It displays, once again, the inability of courts to understand that gender is a social construct and cannot be conflated with sex. The guarantee of equality, if it must mean anything, has to be a guarantee of gender justice. (Jaising, 2005, pp. 13–14)

However, the term ‘only’ in Article 15 has created a division between sex and gender. It makes discrimination on ground of sex alone constitutionally outlawed while leaving gender discrimination out of its purview (Nussbaum, 2004; Sankaran, 2007).

Particularly because of this, Jaising (2005, p. 13) raises the most pertinent question of whether the right to equality enshrined in India’s Constitution is an ‘incomplete guarantee’. According to her, many scholars have ‘come to the conclusion that there is something flawed in the manner in which the right to equality is framed, namely that there shall be no discrimination based on sex alone’ (Jaising, 2005, p. 13).

However, the Indian state is empowered under Article 15(3) to make special provisions for women and children. The clause reads: ‘(3) Nothing in this article shall prevent the State from making any special provision for women and children’ (CoI, 2007, p. 7). The clause could indeed be used to ensure substantive equality to women (Jaising, 2013; Sankaran, 2007). But in the male-dominated Constituent Assembly, the intent behind this provision was not to ensure substantive equality to women or to make them autonomous citizens.

The provision appears to have been the outcome of masculine instincts of preserving and perpetuating gender division in society than trying to address it in a progressive way. The following account was provided by B. Shiva Rao (1968) about the insertion of Article 15(3).

Article 15(2), the guarantee of non-discrimination concerning access to public places, such as wells, tanks, roads, schools and places of public resort maintained wholly or partly out of public funds or dedicated to the use of the general public, was under consideration. The draft, which was submitted by Sub-Committee on Fundamental Rights in regard to this provision, the guarantee had, as it should have, covered the ground of sex within its scope along with race, religion, caste and language for non-discrimination (Rao, 1968, pp. 183–184).

However, the inclusion of ‘sex’ among prohibited grounds caused unease. The substance of the controversy was that the Indian state would lose the capacity to provide separate amenities to women. Rao’s view about the clause was that it would ‘prejudicially affect the institution of separate schools, hospitals, etc. for women’ (Rao, 1968, p. 184). It seems that his view was supported by Minorities Sub-Committee which actually maintained that separate provision for women and children was necessary (Rao, 1968, pp. 184–185).

The sub-committee which was set up to examine the issue had eventually dropped the term ‘sex’ from the provision altogether to move forward. This deletion was objected to by Kaur along with others, who demanded to revive the deleted term in the Clause with an additional provision that could enable the Indian state to provide separate amenities to women.

However, unlike Rao, Banerjee wanted the inclusion of schools and educational institutions in the list of places prescribed in the clause so that women did not have to face discrimination while negotiating or accessing educational facilities (Rao, 1968). The account makes it clear the intent behind the incorporation of Clause 3 in Article 15 was located in providing merely separate amenities to women, not in a larger narrative of gender justice.

According to MacKinnon (2005, p. 268), ‘Article 15(3) in particular could provide the basis for a substantive equality doctrine that stands against disadvantage, the hierarchy of men over women’. The Clause encapsulates the ‘substantive recognition of women’s unequal social status’ (MacKinnon, 2005, p. 267) that requires special measures to redress their subordination within the sex hierarchy. According to her, since special measures ‘promote equality, they are not exceptions to an anti-discrimination rule’ (MacKinnon, 2005, p. 267) under the Clause.

Indira Jaising (2013) also maintains that Article 15(3) may serve as a potential source of affirmative action for women to secure the goal of substantive equality. However, according to her, ‘not much has come of its potential use in decision making’ (Jaising, 2013, p. 233) so far. When this Clause is interpreted under the shadow of formal equality jurisprudence, it is taken to be an exception to the equality rule. However, when it is interpreted in light of substantive equality jurisprudence, the special measures are regarded as a necessary dimension of gender equality (Kapur, 2016). According to Kapur (2016, Chap. 41), ‘Article 15(3) has largely been interpreted as an exception to the principle of non-discrimination guaranteed by Article 15(1)’.

However, India’s Supreme Court on 25 March 2021, in a landmark judgment in Nitisha vs. Union of India upheld substantive equality (Chandrachud, 2021, March 25). According to the court, the case brought an opportunity to choose one of two competing visions of the anti-discrimination guarantee, that is, formal versus substantive. The top court chose substantive equality over a formal one.

Conclusion

During this enquiry, I probed the question how the women members of the CA despite their token representation in the male-dominated body contributed to shape sex equality found in India’s Constitution. Their contribution appears quite significant. In the Constituent Assembly, Mehta, Ray, Banerjee and Kaur were in the forefront championing the cause of women in the Assembly. The delineation of women’s subordination in the CA by Mehta and Ray can be understood in terms of reflecting a true feminist spirit. Kaur’s role in having ‘sex’ back in Article 15(2) and getting constitutional provisions exclusively for women and children was no less than a miracle.

Though opposed to reservation, women members were quite elated regarding the guarantee of sex equality being entrenched in the Constitution (Lok Sabha, 1946, December 19; 1948, November 8; 1949, November 24). In their imagination, the equality being formulated was to redress substantive gender inequalities rampant in society.

But Aristotelian equality rooted in individualism and merit began to cave in precisely when it was being entrenched in India’s Constitution. Women members’ efforts to secure the Hindu Code Bill and Uniform Civil Code did not succeed. Article 15 enshrining the guarantee of sex equality was given a reductionist orientation by inserting the word ‘only’ in its Clauses. Article 15(3) in its inception was not aimed at redressing gender inequalities. It was meant to provide separate amenities to women, which cannot veritably be equated with gender justice.