New Delhi: We know by now that the Constitution (One Hundred and Twenty-Eighth Amendment) Bill, 2023 is a promise to give Indian women their rightful space—someday in a yet undetermined future.
What we may not be aware of is that it is also a promise to secure the seats of about 179 men, who potentially risk losing their positions if the law were implemented without any caveat and with immediate effect.
The Bill which seeks to reserve “as nearly as may be”, to quote articles 330A and 332A, a third of the seats for women in the Lok Sabha, state legislative assemblies and the Delhi legislative assembly, has been passed by both the upper and lower houses of Parliament with near unanimity and only two members opposing.
First introduced over 27 years ago, bills seeking to reserve electoral seats for women failed largely due to lack of consensus amongst leaders in terms of horizontal reservations for other backward classes. The other reason was plain misogyny, the fear that 179 men would have to give up their seats for the quota to be implemented.
Former member of Parliament (MP), Brinda Karat, once said, “The Women’s Reservation Bill is a victim of patriarchal power to ensure the status quo of male entitlement”. Other women’s rights activists and leaders have echoed the same sentiment (here and here).
Even as similar concerns continue to persist, the latest version of the Bill managed to pass muster, so the question arises: what changed? Either our elected representatives have all woken up to the cause of women empowerment or there is more than what meets the eye.
Parliament’s nod to the long-standing demand of women for greater representation in politics comes with a significant caveat.
It provides for the addition of Article 334A to the Constitution, which stipulates that “reservation of seats for women shall come into effect after an exercise of delimitation is undertaken for this purpose after the relevant figures for the first census taken after the commencement of the Constitution (One Hundred and Twenty-Eighth Amendment) Act, 2023 have been published…”.
In other words, the law can be implemented only after the delimitation exercise is conducted and once the number of seats increases.
As the Bill was being debated in Parliament, several opposition leaders demanded that the law be implemented in the 2024 elections. The demand was rejected for being constitutionally untenable. Our analysis finds otherwise. There is neither any legal nor constitutional mandate that requires linking the Bill to the delimitation exercise, as some members of the ruling Bharatiya Janata Party (BJP) have argued.
Let’s Empower Women—Just Not Right Away
On 20 September 2023, two BJP MPs, Smriti Irani and Nishikant Dubey, cited Article 82 of the Constitution to suggest that the provision prevented the union government from implementing the Women’s Reservation Bill in the 2024 Lok Sabha polls.
Article 82 provides for readjustment of seats after each census. It also stipulates a proviso which states that “until the relevant figures for the first census taken after the year 2026 have been published, it shall not be necessary to readjust (i) the allocation of seats in the House of the People to the States as readjusted on the basis of the 1971 census; and (ii) the division of each State into territorial constituencies as may be readjusted on the basis of the 2001 census..”
Effectively, Article 82 mandates that delimitation or demarcation of seats can be done only after every decennial census, and, therefore, it bars any delimitation of constituencies before the 2026 census.
There is no disagreement over the stipulation imposed by Article 82, however, to suggest that women’s reservation is directly contingent upon the completion of the delimitation exercise is misleading. Unlike the previous bills, it is the text of this new Bill alone which imposes such a pre-condition.
Arguing that the delimitation exercise is necessary, Home Minister Amit Shah said, “If one-third of seats have to be reserved, who will decide on these seats? Those who are saying why aren’t you doing it? My question is who will do it?”
“If we do it you will call it political reservation, if Wayanad becomes a reserved constituency or if Owaisi’s Hyderabad becomes reserved,” said Shah. “This is why the delimitation commission which conducts quasi-judicial proceedings by visiting every constituency (does this exercise) in an open and transparent manner. The only reason behind the delimitation clause is efficiency, so no sides are taken.”
The Home Minister’s Flawed Argument
Shah’s statement, even if it appears compelling, has little merit in view of a third of seats in local bodies and panchayats nationwide were reserved for women in 1992.
According to S K Mendiratta, former Legal Advisor to the Election Commission of India and a member of the 2002 Delimitation Commission, conducting a delimitation exercise is “not necessary” as reserved seats for women in local bodies and panchayats have so far been decided by lottery.
“They can decide via lottery also. For SC and ST reservations, we have to go by the population in each constituency, but the women's population is not going to be different," Mendiratta told India Today. “In the local body elections we decided (reserved) constituencies by lottery. In the recent Delhi Municipal Corporation elections (December, 2022), they randomized it by using 1, 4, 7 numbers.”
It is apparent a similar system could have been adopted ahead of the 2024 elections.
The previous version of the Bill, passed in the Rajya Sabha in 2010 and supported by the BJP, had not stipulated a delimitation requirement. No such conditions apply to the 73rd and 74th amendments to the Constitution that paved the way for women’s reservation in panchayats.
The 102nd Constitutional Amendment Act, 2018, granting reservations to Marathas, the 103rd Constitutional Amendment Act, 2019, providing for reservations to economically weaker sections, the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Bill, 2016 for Jats in Haryana were passed without a fresh recount of beneficiaries.
Senior Congress leader, former finance minister and MP, P Chidambaram, has also suggested that the reservation could be implemented immediately on using updated voter lists.
There is neither any law nor any logical explanation to support the argument that the Bill could not have been brought without including the contingency of delimitation. It does, however, reveal the unconvincing intent with which the Bill was brought.
How Long Should Women Wait?
Now that the Bill has been passed by both houses of the Parliament, India is legally bound to cross the hurdle of delimitation, a deeply contentious issue, before women’s reservation becomes a reality.
Mahua Moitra, Trinamool Congress MP, while speaking about the Bill in the Lok Sabha on 20 September 2023 referred to it as the “Women’s Rescheduling Reservation Bill”.
Arguing that the agenda of the Bill was to “indefinitely delay”, Moitra remarked, “The question of women’s reservation requires action, not the placebo of legislatively mandated procrastination.”
While some have argued that the law will not see the light of day until 2029, others have argued that women’s reservation may have to wait until 2039. The answer lies in several contingencies, such as if and when the census, which forms the foundation of delimitation exercise, is conducted.
The government has claimed that the census will be conducted immediately after the 2024 elections. However, if the census (pending since 2021) is conducted before 2026, it would not be able to serve as the basis for the reallocation of parliamentary and state assembly seats due to the embargo put in place by Articles 82 and 170(3) of the Constitution.
Essentially, a census conducted prior to 2026 would be a meaningless exercise, so far as women’s reservation is concerned, pushing delimitation further to post-2036 census (considering the current practice of decennial censuses is continued).
Buck Passed To The Next Government
For the law to be implemented in the 2029 elections—the earliest and potential best case scenario, the government would not only have to have a census report ready after 2026 but also ensure that the delimitation commission is set up and completes its task well before 2029.
Considering the time previous delimitation commissions have taken to demarcate constituencies and reallocate seats, critics have argued that it may well take three to four years, and, therefore, implementation of the law in the 2029 general elections is an unlikely prospect.
The last Delimitation Commission took over five years to present its final report.
Besides, the process itself may face serious challenges, as the southern states have expressed their fear of declining political representation in comparison to the northern states.
Home minister Shah, during his speech in Parliament, conceded that the Bill will not be implemented before 2029. “It will still come after 2029,” he said. “Give your support, then there will be a guarantee and then whichever government comes will bring in any changes that may be needed.”
Women’s reservation is now in limbo. Brought as a “historic” first in the new Parliament building and packaged as the “Nari Shakti Vandan Adhiniyam”, which literally means women empowerment worship law, may appear revolutionary, but, given its current status, has no significant consequence for women’s empowerment.
Despite having the opportunity to execute this law, the buck has yet again, been passed to a future government.
(Mani Chander is a lawyer based in New Delhi.)
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