19 Sep 2023 6:54 AM GMT
On the inaugural day (September 18) of the special session of the Parliament, the union cabinet reportedly approved the tabling of the women’s reservation bill. But lesser known is that one month ago, the Supreme Court had questioned the Central Government for not making its stand clear on the issue of women reservation.
The Court asked the Central Government why it had not filed its response to a PIL filed in 2021 seeking reservation for women in legislature.
"You have not filed a reply. Why are you shying away?Why have you not filed a reply? Say you want to implement it, or not. It’s too important an issue to be thrown on the backburner. It’s too important. It concerns all of us", a bench comprising Justices Sanjiv Khanna and SVN Bhatti had asked the Centre's law officer in the hearing held on August 11.
This plea was filed in 2021 by the National Federation of Indian Women (NFIW) seeking the reintroduction of the women’s reservation bill in the Lok Sabha. The bill, also known as the Constitution (One Hundred and Eighth Amendment) Bill, 2008, aimed to introduce 33 percent reservation for women in the Lok Sabha and state assemblies. Although it was passed by the Rajya Sabha in 2010, it lapsed after the dissolution of the 15th Lok Sabha. The women’s reservation has not been placed before the Lower House of the Parliament yet, despite the passage of over a decade.
During the August hearing, the court expressed surprise at the reluctance of political parties to take a stand on the issue and adjourned the case until October. Reiterating that the Centre has to file a reply, Justice Sanjiv Khanna even indicated that on the next day, the court would issue an order while staying within the bounds of permissible judicial intervention.
But this was not the first time that the court underscored the significance of the issue. The ‘constitutional importance’ of the women reservation issue was stressed by the court in November of last year while issuing notice and seeking the central government’s response.
Other cases where the Supreme Court dealt with the issue of women reservation
The Supreme Court dealt with the issue of women reservation in local bodies in a case concerning the State of Nagaland. In February this year, the Court had directed the State Election Commission of Nagaland to notify local body elections in Nagaland with the women quota. However, the State Government took the stand that women reservation is not applicable to Nagaland in view of the special provisions under Article 371A of the Constitution.
In a hearing held on July 25, a bench comprising Justices SK Kaul and Sudhanshu Dhulia did not appreciate the stand of the State Government. The bench also criticised the Union Government for not taking a clear stand on the issue. Pointing out that the Nagaland Government and the Union Government are in the same page politically, Justice Kaul even went to the extent of orally telling the Centre's law officer : "You take extreme stands against other State Governments who are not amenable to you, but your own State Government is violating Constitutional provision and you do not want to say something.”
In the order, the bench stated as follows :
"..the Central Government cannot wash its hands off this issue where a constitutional scheme is provided and its task is simplified by the fact that political dispensation in the State is in line with political dispensation at the Centre".
The bench also stressed the importance of women reservation during the hearing.
“Reservation ensures that a minimal level of representation is there. Reservation is a concept of affirmative action. Women reservation is based on that. How do you get out of the constitutional provision? I do not understand this... Why resistance to participation of women when in all walks of life women are equally involved?. Why do you hesitate in giving even one-third representation?”, Justice Kaul orally told the Advocate General of Nagaland. In the order, the bench stressed that the women reservation will not touch upon the personal laws of Nagaland and its special status under Article 371A. The matter was adjourned till September 26 after the AG sought for more time for compliance.
In July, the same bench dealt with another petition, which raised the concern that women reservation in local bodies were being misused by male politicians who ask their wives to contest elections as their proxies. But the bench wondered who can the judiciary intervene to stop such a practice.
“It is for the respondent Ministry of Panchayats Raj to look into it to see if there is a better mechanism to implement the object of reservation. Thus the petitioner may make representation to the concerned Ministry", the bench observed in the order disposing of the petition.
What did the bill passed by the Rajya Sabha say?
The Constitution (One Hundred and Eighth Amendment) Bill, 2008, which lapsed after the dissolution of the 15th Lok Sabha (2009-14), had a clear mission: to introduce a 33 percent reservation for women in both the Lower House of Parliament and state legislative assemblies.
To achieve this goal, the bill proposed amendments to three constitutional provisions – Article 239AA (Special provisions with respect to Delhi), Article 331 (Representation of the Anglo-Indian community in the House of the People), and Article 333 (Representation of the Anglo-Indian community in the Legislative Assemblies of the States). Additionally, it introduced three new articles, namely Articles 330A, 332A, and 334A.
The first two newly proposed articles sought to introduce reservation for women in Lok Sabha and the state legislative assemblies, while the last article contained a sunset clause for this affirmative policy to be phased out after a period of 15 years. Notably, the bill also featured provisions for horizontal reservation, cutting across various quota categories. Specifically, one-third of the seats allocated for Scheduled Castes and Scheduled Tribes in the Lok Sabha and legislative assemblies were designated for women from these communities. This measure sought to enhance women's representation, even among historically disadvantaged groups, in the legislative process.
This move to reserve seats for women is not strange to the framework of the Indian Constitution and is a crucial element in local self-governance in India. Under the 73rd Constitutional Amendment Act of 1992, a pivotal step was taken to establish a 33.3 percent reservation for women in Panchayati Raj Institutions (PRI) throughout India, although the share of reserved seats has been enhanced by many state governments. This amendment aimed to empower women by ensuring their substantial representation in grassroots governance, with the gram sabha serving as the cornerstone of the Panchayat Raj System, responsible for executing functions and powers delegated to it by state legislatures. Similarly, the 74th Constitutional Amendment Act of 1992 introduced 33% reservation for women in Municipalities.
What does the PIL petition say?
In its petition, the NFIW has pointed out that even though the first women’s reservation bill was introduced more than 25 years ago, the policy of a 33 percent quota for women is still far from being implemented. The petitioner pointed out that although the proposed amendment once passed by the Rajya Sabha in 2010, it lapsed after the dissolution of the Lok Sabha and
“The non-introduction of the bill is arbitrary, illegal, and is leading to discrimination. The bill was passed by the Rajya Sabha in 2010 and has been crystallised so as to its aims and objectives to a large extent. In view thereof, it is submitted that non-introduction of such an important and beneficial Bill, on which there is a virtual consensus of all major political parties, is arbitrary.”
Although women constitute almost half of the population of India, their representation in the legislature remains dismal, making it necessary to have ‘vigorous’ affirmative action policies in place, the petitioner has said. Citing the example of reservation for women in panchayats, the petition has stated:
“The empowerment of women through the bill, will lead to the overall development of the country, particularly the women, and will also aid in dealing with the socio-economic as well as political inequality that are both intertwined…Given the systematic de-recognition of women’s work in the socio-economic realm, their deliberate exclusion from political participation is unacceptable and a violation of their democratic and constitutional rights.”
The bill and its objectives, the petitioner has stated, enjoys support from all political parties and the manifestoes of these parties include the promise of passing the Women’s Reservation Bill. The government cannot be allowed to keep a bill, that has been passed by the Rajya Sabha and enjoys the support of a majority of mainstream political parties, hanging indefinitely on the pretext of further consideration and the need for consensus between political parties, the petitioner has stated.