Gender Discourses and the Making of the Indian Constitution

Abstract

Indian democracy was constituted after a long struggle for self- determination, which ultimately culminated in the making of a constitution for independent India. This article seeks to revisit gender discourses during the constituent assembly debates when women members were seeking for complete gender equality to be written into the constitution. The nationalist discourses on ‘Indian womanhood’ prevalent during the years of the freedom struggle were articulated and reflected in the debates and impacted the writing of the text of the constitution. The final text contains gender progressive provisions on which consensus had been achieved during the nationalist struggle but excludes explicit provisions that would have challenged the roots of patriarchal structures. Thus, while the nationalist movement provided a platform for women to organise for their rights, it also constrained the agenda of transformation.

Keywords

Indian Constitution discourses on women’s rights Indian women’s movement constituent assembly debates Indian ‘womanhood’

Introduction

The mainstream literature on liberal Constitutionalism has ignored the implications and potential of a constitution in shaping gender relations. This neglect has been sought to be offset in the 21st century by some pioneering works on comparative Constitutionalism and gender (Baines et al., 2012; Baines & Rubio-Marin, 2005; Irving, 2008, 2017; Williams, 2009). As Vickers (2012) points out, ‘power’ and ‘change’ are the central concerns of scholarship on gender. The focus on power would enrich the field of Constitutionalism by exploring the ‘play of power’ during the drafting of the constitution. This should not be limited to highlighting the power of men by their sheer numerical strength in constitution-making bodies but also the power of the discourses on womanhood that severely restrict the raising of a progressive agenda during the constitution-framing process. The focus on ‘change’ would be useful to highlight societal change envisaged by the constitution, more specifically in terms of gender relations.

The concern for societal change is not entirely new and is reflected in the literature on Indian and South African Constitutionalism, which examines constitutions in terms of their potential to transform societal relations. But the literature on transformative Constitutionalism in India has overlooked the issue of whether the societal transformation ushered in by the Indian constitution incorporates a transformation of gender relations. Menon defines feminism as recognition of the fact that ‘hierarchical organising of the world around gender is key to maintaining social order’ (Menon, 2012, p. viii). We can analyse the transformative potential of the constitution in terms of changing the social order by examining whether Constitutional provisions and constitutional values disrupt the ‘hierarchical organising of the world around gender’ (Menon, 2012, p.vii).

Some feminists consider law as a patriarchal construct but those who look for change in gender relations cannot afford to overlook the questions surrounding the design, interpretation, or amendment of their country’s constitution (Irving, 2008, p. 36). Law and legal change have limits but we do not have the choice to be free of Constitutional and legal regulation. Therefore, a constant engagement with Constitutional and legal structures is required. Though feminists need to work in realms other than law, they cannot afford to ignore the realm of law.

The article explores Indian Constitutionalism from the perspective of gender. It is divided into three sections. The first section analyses the discourse on womanhood during the anti-colonial nationalist struggle. The second section revisits the constituent assembly debates and attempts to make audible the voices of women members in the constituent assembly. The third section discusses the extent to which the nationalist discourses on womanhood had an influence on the Indian Constitution. The provisions of the constitution reflect the constrained transformation of gender relations and the several compromises women leaders operating within the contours of the nationalist vocabulary had to make.

‘Womanhood’ in Indian Nationalist Discourse

The process of framing the constitution cannot be understood by only looking at the proceedings of the constituent assembly. To measure or assess the changes in gender relations wrought by the constitution it is necessary to take into account the legacy of the social reform movements and the discourses on womanhood during the nationalist period.

Indian nationalists employed the discourse of social reform in order to construct a new identity as progressive Indians who deserved freedom from British rule (Chakravarti, 1990; Mani, 1998; Sarkar, 1973). A key moment in the struggle for freedom occurred when they silenced the debate on ‘the woman question’ (Chatterjee, 1993, p. 120). In this discourse women became objects rather than subject reflecting the refusal of the nationalists to make ‘woman’ the subject of debate with the British (Chatterjee, 1993). The liberals supported social reforms including education for women that would lead to the restructuring of the domestic sphere and enable women to become ‘more rational companions to their husband’ (Minault, 1981, p. 8). Cultural nationalists eschewed any interference in the domestic sphere and argued for the consolidation of Indian traditions. Both schools of thought made a distinction between the home and the world and did not challenge social hierarchies and distinctions based on caste and gender (Minault, 1981).

The debate did not remain confined to men; by the turn of the century there was an awakening among women themselves that led them to question the prevailing condition and status of women. They organised themselves into associations with specific as well as general purposes to improve the social condition of women through education, establishing schools and training centres, organising courses for work opportunities for women who needed incomes, building shelters for widows and so on (Basu & Ray, 1990; Forbes, 1996; Kumar, 1993), This group of women nationalists and gender campaigners did not consider their philosophy and activities as feminism in the western sense of the term, nevertheless, they assiduously practiced what Forbes describes as ‘social feminism’, a philosophy which recognised that although women were physically and psychologically different from men, it was owing to the worth and importance of their distinct qualities that they were capable of contributing equally to society. The contours of the sphere of the ‘social’ (as the domain of women’s activity) were drawn within the ‘public-political’ sphere and associated with ‘moral responsibility and respectability’. The ‘social realm’ was distinct from ‘the private space of household as well as from spaces in the public-political, defined as areas of male participation’ (Roy, 2005, pp. 172–173).

By the 1920s, alongside real achievements in terms of social work towards the eradication and amelioration of ‘social evils’, and lobbying for legislative protection for women in certain respects as well as for some rights, two different rationales for women’s rights were simultaneously being presented by the women’s organisations. One was that women and men complemented each other, with the emphasis being placed on women’s socially useful role as mothers and pivotal domestic role, while the other concomitant view which began to gain ground was that women have the same needs, capacities and desires as men and thus ought to have the same/equal rights (Kumar, 1993, p. 65). Chattopadhyaya (1982, pp. 5–7) argued that Indian women wanted political rights to execute their civil duties, and not to compete with men.

As happened in other colonised countries (Jayawardene, 1986), the Indian women’s movement moved close to the nationalist movement and promoted the role of women as political comrades of men (Chattopadhyaya, 1982, p. 99). Liddle and Joshi point out that women leaders were mindful of the reality that an overemphasis on male domination as the root cause of their subordination might contribute to the continuation of British rule (Liddle & Joshi, 1985, p. 526). The first few goals of the women’s organisations were thus restricted to viable issues such as the rights to vote, education, property and legal equality, leaving unaddressed fundamental and wider questions of women’s subordination in the family and society.

Women activists thus made intelligent use of the language of nationalism to defend and promote women’s equality with men (Kumar, 1993, p. 66) and obtained the support of male national leaders on equal rights. This was made clear in the Resolution on Fundamental Rights proclaimed at the Karachi session of the Congress in March 1931. Many women leaders of the women’s movement were equally prominent in the national movement and had direct access to the national (male) leadership and could press their claims. Sensitive to the woman question, The National Planning Committee set up by the Indian National Congress appointed a Women’s Subcommittee in 1940. The Subcommittee’s report enshrines the basic principles of gender equality including the rights to vote and to work, equal wages and opportunities and equal rights to health, leisure and recreation (Chaudhuri, 1996; Roy, 2005). It also introduced the radical idea that housewives were also working women (Chaudhuri, 1996, p. 232). However, the Subcommittee based their claims to gender equality on the ‘special’ contribution women made to the nation and community as ‘reproducers’ and ‘sustainers’ and as the ‘guardians and trustees of future generations’ (Chaudhuri, 1996, p. 215).

Discourses of Domesticity and Public Participation

In order for the nationalist movement to claim to be representative of all the people of India it was necessary first and foremost to mobilised and involve women in the freedom struggle. In a differentiated society, women constituted a source of cohesiveness to the mass movement containing many disparate elements (Thapar-Bjorkert, 2006, p. 46). Minault emphasises that the concept of the ‘extended family’ and the ‘nation as family’ were employed to represent public activities as a ‘natural extension of household roles’, enabling women to come out into the public arena (Minault, 1981, p. 8). Above all, Gandhi’s language and the symbols he used reconciled the notions of ‘domestic’ and ‘public’. The participation of women in the public sphere was attached to ‘familial symbols, household dynamics and nationalist symbolism’ (Minault, 1981, p. 22). Ordinary household items such as salt and cloth were accorded nationalist connotations and women participated initially in women—only groups and activities. Thus, through the ‘domestication of the public sphere’, ‘ordinary’ middle class women were able to enter the public domain as personifications of ‘sacrifice, quiet suffering and modesty’. Freedom for men was defined in terms of political freedom (swadheenata) while freedom for women was defined in terms of their continual ‘embedment within the domestic—the family and community (parivar, kula, kutumba)’ (Roy, 2005, p,10). Thus, although women came out into the public sphere, they were hemmed in by the discourse on ‘true womanhood’ and ‘women’s proper place’, which, on one hand legitimised and facilitated women’s involvement in the nationalist movement, but on the other hand, imprisoned them within an ‘essentialist construction of femininity’ (Roy, 2010, p. 410). The ideology of ‘domesticity’ denoting the particularity of the ‘realm of the domestic as the sphere of female activities, distinct from the public (male) sphere, relatively inferior and yet complementary to it’ (Roy, 2010) was ingrained during the nationalist period.

Despite the steady work of the women’s organisations in the direction of women’s rights the discourse of domesticity continued to be reflected in the speeches of women activists. Sarojini Naidu portrayed ‘woman as the high priestess of [the] home’ (Roy, 2005, p. 169). Begum Shah Nawaz stated that women have the capability to exercise the right to vote and participate in political activities of the country since they cultivated organisational skills in the home: ‘Let me point out that a woman is a born administrator, for although the man is the breadwinner, the virtual ruler of the home is the woman’ (Roy, 2005), p. 169. Thus, even while claiming the right to participate in public affairs, women activists did not contest the ‘public-private distinction’ on which patriarchy is based.

The notion of motherhood was equally a central element in the nationalist discourse. The motif of ‘mother’ was ever present in nationalist activities and was a rallying device. Young nationalists engaged in the worship of Kali/ Durga/Chandi; the nation was regarded by young nationalists as a ‘mother goddess’. (Kumar, 1993, p. 45). The conflation of Durga with Mother India’ and the escalating use of Kali to approve violence in the freedom struggle attracted large numbers of women, at least in Bengal (Kumar, 1993, pp. 48–49). Gandhi dwelt on the ennobling traits of motherhood, on the caring, nurturing mother, the embodiment of sacrifice. Motherhood was fundamental to the ‘structural configuration of the family and was characterised by a glaring dichotomy one associates with patriarchal dominance, namely, glorification without empowerment’ (Sinha, 2012, p. 111).

Despite Gandhi’s circumscribed vision for women he provided them the opportunity to take up leadership roles in the national struggle (in fact they could not be held back) and it was due to the compulsions engendered by the ‘masculinist/nationalist’ framework, that women had to emphasise the spiritual character of their public-political role and concur in projecting it as akin to household work, At the same time nationalist women leaders who were also members of the women’s movement pressed for equal participation and equal rights. This is clear from the autobiographies of women leaders like Renuka Ray and Kamaladevi Chattopadhyaya.¹

The Nationalist Vocabulary² in Constituent Assembly Debates on Women

In the constituent assembly debates and arguments presented from varied political and ideological positions within nationalist opinion ‘shared normative vocabulary, comprising, secularism, democracy, equality, justice, national unity and development’ was deployed (Bajpai, 2008, p. 379). Further,

…the nationalist vocabulary can be seen as a grid of interlocking concepts: all arguments in nationalist opinion invoked one or other of these concepts, and each of these concepts was defined in relation to the other elements of the vocabulary (Bajpai, 2008, p. 379).

The discourses on ‘womanhood’ that were formulated during the national struggle found their articulation in the constituent assembly debates. The Constituent Assembly was a male-dominated body consisting of only 15 women out of a total of 296 members (Arya, 2000, p, 57),³that is, only about five per cent. Yet, as Basu and Ray point out, the inclusion of women in the constituent assembly ‘was a unique event in the history of the women’s movement in the world’ (Basu & Ray, 1990, p. 28). No doubt most of these women were educated and from upper class families. The only inspiring element was that women like Rajkumari Amrit Kaur and Hansa Mehta were positioned in important committees including the Subcommittee on Fundamental Rights. Yet, there were no women members in the final Drafting Committee of the constitution. This omission confirms Kumari Jayawardene’s observation that ‘Men were the movers of history and set the parameters’ (cited in Menon, 2003, p. 134).

The Marginalisation of Women’s Rights in the Debates

The importance of fashioning a constitution that personified an egalitarian relationship between the sexes through equal rights and opportunities was at that historical time somewhat overlaid in the constituent assembly discussions by a variety of other national anxieties of the moment,⁴ in specific terms, by the overarching need to forge an interrelated unity between minority and majority communities (Devenish, 2019, p. 98). Identity and the right to citizenship that was perceived to arise from it were approached mainly in a fragmented way in the writing of the Indian constitution. This subdued the expansion of the concept of citizenship to be able to house a layered and multifaceted identity. This was a theoretical blindness that Kaur, Mehta and their AIWC associates too were susceptible to in their contribution to these discussions. They cooperated and worked hard to make certain that they voiced the requirements, struggles and desires of Indian women.

Devenish (2019) argues that though women’s issues remained principally absent in the Constituent assembly debates, this did not imply that women as symbolic markers of national identity were invisible. Women were seen as the markers of community and symbols of family honour. The description and narrative of partition-related violence, the rape and abduction of Hindu and Sikh women, and the earnestness of their retrieval by means of the Abducted Persons (Recovery and Restoration) Bill were the contexts within which women became visible in Constituent assembly discussions and were spoken of as victims. Although women as a category grew conspicuous this did not translate or develop into an acknowledgement of the primacy of the women’s question. The inconspicuousness of women’s issues in the constituent assembly discussions both revealed the marginal importance given to women’s rights and the shift away from the concerns of women towards caste as a site of state paternalism for the building of an enlightened and democratic Indian nation-state (Devenish, 2019, pp. 94–95).

Going through their speeches, it becomes clear that many of the women members of the constituent assembly employed the discourse of ‘true womanhood’ and ‘domesticity’, which got entrenched during the nationalist period. This might have been a strategic measure adopted to advance women’s rights by winning the support of patriarchal male members of the constituent assembly. This support was crucial for women members as they constituted a very small fraction of the assembly. Further, they also presented their arguments in sync with the nationalists’ construction of ‘Indian tradition’ which emphasised the moral respectability of women and ‘gave equal status to men and women’. The concern with the morality of women, which was a central plank of the nationalist construction of Indian womanhood was particularly reflected in the constituent assembly debates on the regulation of prostitution. There was a consensus among all the members of the constituent assembly that prostitution was a ‘social evil’, and ‘a heinous practice’, and morally degrading to women (De, 2018, p. 175). Renuka Ray and G. Durgabai Deshmukh vehemently spoke against the practice of trafficking in women and the devadasi system, which they believed to be a form of prostitution conducted in the name of religious practice. The demand for rights for women was linked to the eradication of immoral practices to enable women to fulfil their duties towards the nation. The emphasis on ‘nation’ and women’s duties towards the nation placed emphasis on women’s duties rather than on their rights. The ideology of ‘domesticity’ that placed high value on women’s role in the home and the spiritual qualities of women was too well entrenched.

The women members of the constituent assembly said that they entrusted their interests with confidence to the State and the law, which were in the process of formation to usher in ‘freedom’ and ‘empowerment’ for all sections of the society (Selected Speeches of Women Members of the Constituent Assembly, 2012, p. v). Begum Aizaz Rasul, a member from the United Provinces reflected on the satisfaction and hopes of the ‘women of India’ in the Draft constitution as follows:

The women of India are very happy to step into their rightful heritage of complete equality with men in all spheres of life and activity. I say so because I am convinced that this is no new concept which has been postulated for the purposes of the constitution, but this is an ideal that has long been cherished in India, though social conditions for some time had tragically debased it in practice. This constitution affirms that ideal and gives the solemn assurance that the rights of women in law will be wholly honoured in the Indian Republic (Constituent Assembly Debates, 22 November 1949).

This clearly reflects her belief in the nationalist consensus that Indian tradition valued gender equality and that the constitution is just making ‘legal’, what had always been there as an ‘ideal’. Further emphasis was placed on the equality of men and women by the refusal to countenance special treatment for women.

Equality, Not Reservation

It is revealing that the women members never sought positive discrimination or separate electorates on the basis of either gender or community (Selected Speeches of Women Members of the Constituent Assembly, 2012, p. v). Whenever the issue of reservation cropped up in the constituent assembly, women members vehemently opposed reservation for women and instead placed complete faith in the transformative potential of the formal-legal equality to be guaranteed by the constitution. Renuka Ray argued that representation should be based on the principle of territoriality and spoke against group representation and reservation for any group, including women. Reservation of seats for women would not honour the principle of gender equality. She stated the following:

Women in this country have striven for their rights, for equality of status, for justice and fair play and most of all to be able to take their part in responsible work in the service of their country (Constituent Assembly Debates, 18 July 1947).

Interestingly, it was a man (Rohini Kumar Chaudhuri) who spoke up for special constituencies for women but it was clear that this was a ploy to confine women to reserved seats only and to prevent them from contesting general seats, a suggestion that was rejected by women members (Constituent Assembly Debates, 9 November 1948).

Women and Fundamental Rights

Women members of the constituent assembly deployed the concept of the ‘sexless’ citizen developed in the Karachi Resolution, as the model for political identity (Devenish, 2019). The appeal of the ‘sexless’ citizen lay not in denying social (or gender) identity, but in making India a place where ‘caste, creed or sex would not be recognised as barriers to…“progress”’ (Vijay Lakshmi Pandit at the United Nations, 1946) and where ‘there should no longer be any sex consciousness or sex separation in the service of the country’ (Jawaharlal Nehru in CA Debates [Procedural], Vol. IV, Tuesday 22nd July 1947 as cited in Devenish, 2019, p. 79).

The Fundamental Rights Subcommittee unanimously voted for universal suffrage, but on the recommendation of the Advisory Committee, adult suffrage was shifted from the section on Fundamental Rights to Part XV on elections (Austin, 1972, p. 67). In November 1948, when the discussion on the Draft constitution began, Lokanath Mishra made an attempt to include an article relating to the franchise in the section on Fundamental Rights. He proposed an amendment in the form of Article 8A—‘Right of Suffrage and Election’. This amendment was rejected on the grounds that a consensus had already been reached on this issue and that it was unnecessary to include franchise as part of Fundamental Rights (Jha, 2004, p. 4358).

Initially, members of this Subcommittee made no distinction between positive obligations and negative liberties. But in the course of time, it became evident that some rights were more susceptible to court enforcement than others and members began talking of a section on non- justiciable rights (Austin, 1972, p. 79). At a meeting on 30 March1947, the constituent assembly adopted in rapid succession provisions laying down that the state should promote social, political and economic justice (Article 38(1)) and that equal pay should be given for equal work (Article 39(d)) and a variety of similar provisions in Part IV of the constitution comprising Directive Principles of State Policy.

Interestingly, some members of the Fundamental Rights Subcommittee drafted a clause stipulating that marriage should be based on mutual consent, a clause taken from the Japanese Constitution of 1946 (Austin, 1972, p. 80). In the interim report on 4/16/1947, the following clause appeared under non-justiciable rights: ‘The state shall endeavour to secure that marriage shall be based on the mutual consent of both sexes and shall be maintained through mutual cooperation with equal rights of husbands and wives as basis’ (Arya, 2000, p. 59). However, the clause vanished in the Advisory Committee report and did not emerge again. The assembly also refused to sanction a clause declaring that there would be no impediments to marriage between individuals of different religions. In the Fundamental Rights Subcommittee, Minoo Masani moved a resolution which stated, ‘No impediments to marriages between citizens shall be based upon differences of religion’ (Chaube, 2000, p. 175). This measure was defeated by 5-4. Several times, members of both sexes introduced clauses to this effect in the debates in the Fundamental Rights Subcommittee and in the constituent assembly, but each time, such clauses were voted down by the majority (Arya, 2000, p. 59). Thus, the challenge to the patriarchal structure of marriage under all personal laws was averted.

It is also interesting to note that a resolution was moved by Ambedkar, to remove the difference between ‘legitimate’ and ‘illegitimate’ children. This resolution was defeated by 6-3. (Chaube, 2000, p. 175).⁵ Hansa Mehta moved a resolution to ban child marriage but this too was finally dropped (Chaube, 2000). Thus, many progressive proposals that could have struck at the root of patriarchy were not incorporated because of lack of consensus and women members had to be content with the formal recognition of equality (Article 14) between men and women, non- discrimination in the public sphere (Article 15) and the enabling provision for special provisions (Article 15[3]). Ultimately, only those rights were incorporated into the constitution on which there had been consensus during the nationalist era.

Women’s Rights and Religious Freedom

Another major issue in the constituent assembly concerning women’s rights was the conflict between freedom of religion and women’s rights (Arya, 2000, p. 57). In the Fundamental Rights Subcommittee meetings, Amrit Kaur vehemently opposed allowing the free ‘practice’ of religion since this could include antisocial practices like the devadasi system (temple prostitution), purdah and sati. She argued that the infringement of the rights of women and of Dalits was part of the practice of several religions of India (Austin, 1972, p. 64) and that religious freedom should be limited to religious worship, that the establishment of a uniform civil code should be declared a Fundamental Right, that religious instruction be forbidden in schools and, that there should be no recognition by the state of religious, linguistic or sexual groups as minorities (Jha, 2008, p. 340). This led the Advisory Committee to alter the Subcommittee’s previous draft. Instead, it laid down that the right to freely practice religion should not prevent the state from making laws providing for social welfare and reform (Austin, 1972, p. 64). Amrit Kaur represented in the constituent assembly the type of nationalist position described as ‘statist’ (Jha, 2008, p. 340). This position implied that ‘Indians were constituting themselves into a nation by all becoming members of the same state’ (Jha, 2008). The new Indian citizen was to be a citizen for whom all the markers of extra-political identity, like sex, religion, language and culture were to be attenuated by conscious state policy. Therefore, reserving seats for women or religious minorities was inconsistent with this goal.

Agnes (1999) points out that during the constituent assembly debates on a Uniform Civil Code, the rationale moved from ‘gender equality’ to ‘national integration’. The argument was that the various communities could be assimilated into the modern state by bringing about uniformity in personal laws. Advocating the enactment of a Uniform Civil Code in a time-bound manner, M.R. Masani, Hansa Mehta and Amrit Kaur argued that the endurance of personal laws would prevent India’s advancement to nationhood (Agnes, 1999, pp. 192–193). When Ambedkar initiated the motion to pass the Draft constitution, Hansa Mehta (a member from Bombay Constituency) raised the issue of the Uniform Civil Code:

The other item to which I draw the attention of the House is the Common Civil Code. To my mind this is much more important than the national language. We have too many personal laws in this country and these personal laws are dividing the nation today (Constituent Assembly Debates, 22 November 1949).

Clearly reflected in her speech is the belief that a Uniform Civil Code was necessary for the sake of national unity rather than gender equality. On the other hand, Renuka Ray appealed to the constitution’s equality clause to confront inequities within the different religious legal systems (Keating, 2011, p. 69). She tried to convince her fellow assembly members that an explicit provision should be added making it clear that the Constitutional provisions ensuring gender equality would be applicable to the personal laws of all the communities, implying that gender equality need not be incompatible with rights to observe religious personal laws.

The debates within the subcommittee on Fundamental Rights in the constituent assembly reveal that while there was consensus over granting political equality to both men and women, there was strong resistance to gender equality in marriage and family over issues of inheritance and divorce, which were governed by religious personal laws (Arya, 2000, p. 5).

Equality Is Implied and Not Always Explicitly Stated

In this section, attention is drawn to important specific clauses of the constitution that imply gender equality.

There is no explicit mention of the word ‘gender’ in the Indian Constitution, though it may be argued that the words ‘sex’ and ‘gender’ connoted the same meaning in the conception of the framers of the constitution. Though the Preamble to the constitution of India enshrines the values of liberty, equality and justice and Article 14 guarantees equality before the law and equal protection of the law, explicit mention of sex equality is framed in negative language in terms of prohibiting the state from discrimination in general and in terms of employment and inclusion in the electoral roll in particular. Unlike special provisions for Scheduled Castes, Scheduled Tribes and the Anglo-Indian Community, there is no special provision for women in Part XVI of the constitution.

The articles on citizenship use the word ‘He’. This has symbolic implications for women as full members of the political community. This does not have legal implications because Article 367 of the constitution states that the constitution needs to be interpreted according to the General Clauses Act of 1897. Article 13 of the General Clauses Act states that ‘Words importing the masculine gender shall be taken to include females’ (The constitution of India, 1950). The articles on citizenship refer to ‘either of whose parents’ and ‘any of his grandparents’ (The constitution of India, 1950). Thus, an equal right is conferred on both men and women to transmit their citizenship to their children and grandchildren. Article 366 defines Anglo-Indians as those whose father or other male progenitors is or was of European descent (The constitution of India, 1950). This definition is clearly patriarchal (based on patrilineality) as it appears to deny children whose female progenitors are of European descent the protections provided to Anglo-Indians.

There has been a debate among scholars on whether the Indian Constitution enshrines formal equality or substantive equality. Kapur and Cossman (1999, p. 197) are of the view that the constitution enshrines formal equality. On the other hand, Nussbaum points out that the Indian Constitution can be seen as enshrining substantive rather than formal equality by making clear that special protective legislation promoting the interests of disadvantaged groups should not be considered as ‘impermissible discrimination’ (Nussbaum, 2002, p. 253).

The constitution enshrines political equality by forbidding exclusion in the electoral arena on grounds of sex, but the right to vote is not enshrined as a fundamental right. There is no explicit mention of the right to contest elections, though the provisions pertaining to qualifications for president, vice-president and members of parliament and state legislatures specify that all citizens attaining the prescribed age can contest elections. Despite the fact that women leaders campaigned for the right to vote and the right to contest elections as Fundamental Rights, these rights are not explicitly stated in the text of the Indian Constitution. The text refers to office-bearers as ‘he’; amendments moved to turn the language of the constitution gender-neutral were not accepted.

The right to equality is thus not explicitly stated in many Articles and clauses of the constitution. In many places in the text equal rights are implied rather than stated directly. One of the central motifs of transformative Constitutionalism is social justice. According to Nancy Fraser (1998), social justice has two components/aspects—redistribution and recognition. In terms of recognition of special needs, the Indian Constitution only provides for maternity leave. Though Article 15(3) grants the power to the state to make special provisions for women and children, it is only an enabling provision dependent on the goodwill of the legislature. Rather than a positive mandate, the constitution empowers the state to formulate special provisions for women and children to remove discrimination. Chaube points out that it is odd that there is no provision in the constitution for reservation of posts for women nor is there any provision prohibiting such reservation and thus it is a matter left to administrative discretion (Chaube, 2009, p. 47). Reservation is thus not an issue of rights, rather it is a structural issue which becomes crucial for the participation of women in the governance of the country. There is no provision in the constitution regarding redistribution. It only provides through Article 39 in Part IV (Directive Principles of State Policy) for the prevention of future inequality by directing the state to provide for equal wages for equal work and to ensure adequate means of livelihood to both men and women. The constitution thus assigns the responsibility of ensuring economic equality to the state. Though this is not an enforceable right the judiciary has come a long way in enforcing the Directive Principles.

Article 15(1) prohibits discrimination by the ‘state’ (and not the ‘society’). It stipulates that ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them’ (The constitution of India, 1950). Baxi (2005, p. 545) however argues that the constitution has indeed extended the conception of rights beyond the state to civil society. He exemplifies this by pointing to provisions outlawing the practice of untouchability. If we analyse the basis of this claim from the perspective of gender, it becomes clear that gender discrimination in society was left unaddressed. Thus, while untouchability was formally abolished, patriarchy was left intact. Moreover, the use of the word ‘only’ in Article 15(1) of the Indian Constitution has led the judiciary to adopt the argument that a ‘particular claim is not on grounds of sex alone’ (Kannabiran, 2012, p. 337). Therefore, by this logic, ‘when sex combines with property, social norms, different conditions of service and other such factors, the very fact that it is expressed in combination removes it from the purview of Article 15(1)’ (Kannabiran, 2012). It is worth noting that after the Draft constitution was finalised by the Drafting Committee, copies were sent to all members of the constituent assembly. The following members: Durgabai, B. PattabhiSitaramayya, Thakurdas Bhargava, B. V. Keskar, T. T. Krishanamurthy, M. AnanthasayanamAyangar and K. Santhanam in their comments argued that the word ‘only’ should be deleted (Rao, 1967, p. 27). The word ‘only’ was justified on the ground that it occurred in Section 298(1) of the Government of India Act, 1935, and was not deleted.

Article 15(2) can be seen as enshrining social equality—to some extent only—by providing equal access to the public sphere for women but it does not take into account discrimination within the family. Nor does the right against exploitation take into account the exploitation of women at home. Although trafficking is prohibited by the constitution there is no specific mention of female sexual exploitation in the form of the devadasi system and similar practices, issues which remain unaddressed in the constitution, despite being brought to light during the constituent assembly debates.

The rationale for ‘special provisions’ in Article 15(3) is not to remove past disadvantages as much as to enable the establishment of protective affirmative action because women are considered to be ‘weak’. This reasoning is apparent in case law where women are often referred to as the ‘weaker sex’. Also, interesting to observe is the clubbing together of ‘women’ and ‘children’, which reiterates the belief that women like children are ‘weak’ and ‘dependent’; such clubbing is visible in the existence of the Ministry of Women and Child Development. Moreover, while clause 4 of Article 15, mentions ‘advancement’ (referring to the advancement of socially and educationally backward classes of citizens and scheduled castes and scheduled tribes), clause 3 of the same Article does not employ the word ‘advancement’ in relation to women, and therefore it may be argued that the justification of special provisions is not for the ‘advancement’ of women but because women (and children) are ‘weak’. Another thing to note is that the constitution does not mention any specific special provisions for women. For example, Part XVI of the constitution contains special provisions relating to SCs, STs and the Anglo-Indian Community only. Article 15(3) is only an enabling mechanism by which special provisions for women and children could be made but this would be dependent on the goodwill of legislatures.

Article 13 of the constitution of India invalidates existing laws that violate the Fundamental Rights and prohibits the state from making any law violating such rights. The word law is broadly defined to include ordinance, order, bye-law, notification, custom or usage. Since non- discrimination on grounds of gender is a Fundamental Right, the provisions of personal laws or customary laws repugnant to the ideal of gender equality would stand violated by this clause.

Article 21 ensures the right to life and personal liberty to all, and its gender implications cannot be ignored in a country rampant with female foeticide and female infanticide. In Suchitra Srivatava v. Chandigarh Adminstration (2010), the Court declared that the ‘right to make reproductive choices’ is a facet of ‘personal liberty’. It defined reproduction as connoting not only procreation but also abstention from procreation.

Formal legal equality has been guaranteed to Indian women and accretions of substantive equality have followed as reflected in legislative enactments, special provisions and judicial interpretations made from time to time in the years following independence.

Conclusion

The speeches of women members of the constituent assembly clearly reflect the nationalist discourses on womanhood, the premise of equality being based on women’s responsibilities towards the nation. They were unanimously against receiving any favours and were staunch critics of special representation, thereby making explicit that their ideal was complete equality. Moreover, special representation was antithetical to national unity. Since women constituted only five per cent of the membership of the constituent assembly and lacked critical mass, they had to frame their demands within the nationalist discourse. The ideology of domesticity and motherhood continued to be employed to win the approval and support of the male members of the Constituent assembly.

It is interesting to observe the dialectics of the contending notions of the ‘sexless citizen’ (emphasising formal equality and rejecting sex separation or the distinctive needs of women) and ‘Indian womanhood’ (emphasising the distinctive attributes of womanhood, particularly motherhood and women’s distinctive contribution to the nation) becoming part and parcel of Indian nationalism and shaping the debates on women’s rights in the constituent assembly. The interplay of the dialectic between the ‘sexless citizen’⁶ and ‘Indian womanhood’ within nationalist discourses successfully restricted the agenda of transformation of gender relations. Further, the emphasis on national unity and integrity precluded substantive discussion on women’s issues and concerns in terms of women’s distinctive needs, as any assertion of separate identity was viewed as hostile to national integrity, this being reflected in the disapproval of reservation for women by most members of the constituent assembly, including women. The final consequence was that the ‘woman’s question’ was subsumed by national concerns and priorities.

As it turned out, only a few members, men as well as women, introduced revolutionary proposals which, significantly, did not succeed in being incorporated into the constitution. These included the following: explicit mention of the abolition of the devadasi system, removal of discrimination between legitimate and illegitimate children, removal of impediments to marriage, reform of personal laws, the extension of equality to the private sphere through the explicit mention of equality in the sphere of marriage. These provisions would have struck a blow to patriarchal structures in Indian society and would have gone a long way in helping transform gender relations. In the constituent assembly, a marked consensus was observed only on those issues which were agreed upon during the freedom struggle, such as granting women the right to vote and formal equality. The nationalist discourse prevented the raising of other issues concerning women’s rights and their distinctive needs, and when some of these were raised in the constituent assembly consensus could not be achieved as they seemed either insignificant in the context of pressing nationalist anxieties or a threat to national unity and integration.

It is notable that although there were few departures from the consensus obtained before independence women members of the constituent assembly did not hold back from expressing themselves fearlessly and in strong terms on several women’s issues and concerns and attempted to challenge patriarchal structures, occasionally even succeeding in altering the text of the constitution as evidenced in Kaur’s efforts to modify the clause on freedom of religion. While they represented different ideologies and communities they all held progressive views and unanimously rejected discrimination and reservation. It has to be acknowledged that many of them, profoundly influenced by Gandhian thought, actively intervened on a variety of other social and economic issues as well, such as untouchability, the right to property, economic inequality, health, education, freedom from exploitation and forced labour and made unique suggestions. Renuka Ray spoke against compensation for acquisition of property as it would perpetuate economic inequalities. She also expressed her disappointment at the fact that only the right to property (which can perpetrate inequalities) has been recognised as a fundamental right while other economic rights were relegated to the section on Directive Principles. Begum Aizaz Rasul expressed her dismay over the inclusion of the right to property as it would discriminate against zamindari abolition⁷ in provinces other than UP, Bihar and Madras and discriminate between agricultural property and industrial property. Dakshayani Velayudan brought a resolution before the constituent assembly to declare that untouchability should be made unlawful, and also advocated for the eradication of human trafficking and forced labour, which would bring about economic revolution in the ‘fascist social structure’ of the country, referring to the rigid caste system. Durgabai spoke up for the eradication of all forms of exploitation of women and children. She wanted the inclusion of a provision in the constitution for the abolition of the devadasi system and appealed to the constituent assembly members to realise the significance of the need for the protection of children from exploitation or abandonment, and emphasised that the State should directly be responsible for ensuring this by including it as a subject in one of the lists in the Seventh Schedule (Selected Speeches of Women Members of the Constituent Assembly, 2012, p. 54).

Thus, the women members of the Constituent assembly justified their presence and participation in the assembly not only as representatives of women but as voices for all citizens and sections of the new nation. Although their voices did not always prevail, their goals and ideals were the foundations for the post-independence women’s movements in India.

Footnotes

Acknowledgements

I would like to express my gratitude to the anonymous reviewer and the editors for their comments and suggestions, which helped me to sharpen the arguments of the article.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Funding

The author received no financial support for the research, authorship and/or publication of this article.

Notes

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