Almost thirty years to reach one-third: will India's constitutional amendment enhance women's political participation?

The Indian Parliament recently passed a groundbreaking constitutional amendment aimed at ensuring a minimum of 33 per cent representation for women in the lower house, state assemblies, and Delhi Legislative Assembly. This significant stride toward gender equality introduces a rotational reserved constituency system, akin to existing reservations for Scheduled Castes and Scheduled Tribes. While the amendment has been widely celebrated, its delayed implementation, the absence of subgroup quotas for underrepresented groups within the women's reservation, and its failure to address systemic barriers impeding women's political participation all underscore the need for ongoing scrutiny - writes Tanvi Tuhina

Introduction

On 21 September 2023, the Indian Parliament passed a groundbreaking constitutional amendment reserving 33 per cent of seats for women in the Lower House and state assemblies during a special session that inaugurated the newly constructed Parliament House building in New Delhi. The 128th Constitution Amendment Bill, named the Nari Shakti Vandan Adhi Niyam (Act saluting women’s empowerment) received unanimous approval in the Upper House (Rajya Sabha), and passed by a 454-2 vote in the Lower House (Lok Sabha), ending a 27 year-long deadlock on the issue.

Historical Context of the Amendment Act

Despite comprising almost half of the country’s 950 million registered voters, women’s representation in Parliament in India has been a mere 15 per cent, and even less in the state legislatures, where the figure has hovered around 10 per cent. In fact, since India gained independence in 1947, the proportion of women parliamentarians has never crossed the 15 per cent mark. Matters are worse at the state level, with some states electing their first women legislators as recently as the 2023 state election.

Since India gained independence in 1947, the proportion of women parliamentarians has never crossed the 15 per cent mark.

Given these numbers, it comes as no surprise that the 128th Constitution Amendment Bill was not the first political attempt to bring about such a constitutional change. The initial steps were taken in this direction with the introduction of the 73rd and 74th Constitutional Amendment Acts in 1992, which inserted Articles 243D and 243T in the Indian Constitution, and mandated a one-third reservation for women in local governance bodies. Today, due to these constitutional amendments, India has achieved over 40 per cent representation of women in local governance.

In 1996, there were attempts to pass a similar constitutional amendment for the Lower House of the federal parliament and state assemblies. At the time, opposition came from several constituent parties of the federal coalition government. The strongest voices of dissent contended that women belonging to Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs)[1] were not adequately provided for in the proposed amendment. A jingoistic narrative was built on the euphemism that “short-haired women” (referring to educated and modern women) should not dominate politics, ultimately leading to the resounding failure of the proposal. Successive attempts made by governments of different ruling parties faced dramatic opposition, including staged walk-outs, physical acts such as tearing the Bill, and inevitable failure. The opposition consistently called for dedicated reservations for women of ‘other backward groups’, and on certain occasions, for Muslim women as well, within the proposed 33 per cent quota.

The last attempt to introduce a rendition of this constitutional amendment occurred in 2010, under the United Progressive Alliance government. While it successfully passed in the Upper House, it ultimately failed to garner sufficient votes in the Lower House.

Key Provisions of the 2023 Amendment

The amendment inserts constitutional provisions that effectively do four things.

Firstly, the amendment mandates that ‘as nearly as may be’, one-third of the total seats filled by direct election in the Lok Sabha, State Legislative Assemblies and Assembly of the National Capital Territory of Delhi should be reserved for women. This extends to seats already reserved for SCs and STs in these legislative bodies, such that the overall reservation for women does not exceed one-third of the seats in the legislative body.

The amendment states that the quotas will not come into immediate effect. Rather, they will only come into force after a delimitation process . . .

Secondly, the amendment states that the quotas will not come into immediate effect. Rather, they will only come into force after a delimitation process (as determined by legislation) is undertaken for the country, each state, and the National Capital Territory of Delhi. The amendment also specifies that such delimitation exercise can only take place after the subsequent census. As things stand, the timeline of the next census has not been finalised, with the latest orders tentatively pushing the process to 2024-2025. If this schedule holds, it has been suggested that the delimitation process may begin in 2026, with ultimate rollout of the quotas happening in 2029.

Thirdly, the amendment mandates rotation of seats reserved for women in all three legislative bodies, after each delimitation exercise. That is, each time a delimitation process is carried out, different constituencies shall be reserved for women (though, the number of constituencies being reserved shall remain the same).

Lastly, the amendment incorporates a sunset clause, set to expire fifteen years after its commencement.

Process of Amendment

The proposed changes required constitutional amendments, with the process governed by Article 368 of the Constitution. According to this Article, a constitutional amendment bill, once introduced in either House of Parliament, must be passed by a majority of members of each House and by a majority of not less than two-thirds of the members of that House present and voting. Having received near unanimous support in the Parliament, the next step, as mandated by Article 368, was presidential assent. 

There were some doubts regarding whether the Bill needed ratification by fifty per cent of the state assemblies . . .

There were some doubts regarding whether the Bill needed ratification by fifty per cent of the state assemblies. This question stemmed from the proviso to Article 368(2), which dictates that amendments seeking to change the representation of states in Parliament require ratification from state legislatures before presidential assent. Ultimately, however, after receiving near unanimous approval from the Houses, the bill bypassed the state legislatures and was sent for presidential assent. This was a reflection of the government’s legal position that the Bill does not bring any effective change to the representation of the states in Parliament. Notably, though, previous extensions of reservations for SC and ST groups in various legislative bodies were sent for ratification by state assemblies as a matter of abundant caution.

Reaction to the Amendment Act

After seven-and-a-half hours of debate, and speeches by sixty Members of Parliament, the constitutional amendment received unanimous approval in the Lower House. The response was positive from almost all political parties. The opposition Indian National Congress party in particular sought credit for the amendment, given their coalition’s near success with passing a similar amendment in 2010.

The two dissenting legislators who voted against the Amendment Act opposed its lack of consideration for Muslim women and those belonging to the OBC category. Further voices of discontent were heard on two issues. Firstly, for the absence of a specific quota for SC, ST and OBCs within the 33 per cent seats reserved for women. Secondly, for the delayed implementation of the law. In fact, many political parties insinuated that the Bharatiya Janata ruling party had introduced the Amendment Act only for electoral gains ahead of the 2024 national elections, without intending to actually enforce the law.

Several political observers and other interested stakeholders, while acknowledging the Amendment Act’s merits, have raised other issues.

Firstly, in line with the general critique against the reservation system, commenters caution that the reservations may also perpetuate the unequal status of women, who will be seen as beneficiaries of electoral gains that have not been won on their own merit. Secondly, they highlight that reserving seats in legislative bodies could restrict voter choice, suggesting alternative measures like party-level reservations and creating dual member constituencies instead. This critique is exacerbated by the trend witnessed at the local governance level in India, where women candidates, who are actually proxies for their partners or other male relatives, are elected in their respective constituencies.

The rotation of reserved constituencies has been criticised as potentially disincentivising male elected representatives, given their potential ineligibility to seek re-election.

Further, the rotation of reserved constituencies has also been criticised by some, fearing that it might disincentivise male elected representatives from pursuing longer-term plans, given the constant flux in the status of constituencies and potential ineligibility to seek re-election. This, however, has been acknowledged as a general critique of the rotational policy prevalent in current constituency reservations in India.

Conclusion

While this constitutional amendment has been hailed as a positive step, the impact remains to be seen. At the very outset, its provisions may only come in to play after six years, exempting the upcoming national election. In this light, the amendment is open to the criticism of being a political act pioneered for electoral gains, with no concrete plan regarding its enforcement.

The other serious critique is against using reservations as a tool to bring parity in politics, for the reasons stated above. A deeper look into the barriers preventing women from entering politics, influence of black money on elections and lack of internal political party democracy has been considered to be more beneficial than reservations for women by many.

Tanvi Tuhina is a graduate from NALSAR University of Law, holding an LLM from Harvard Law School. She has previously worked as a judicial clerk in the Supreme Court of India and has also practiced in a litigation chamber in New Delhi. Presently she works as a Legal Fellow at the European Center for Constitutional and Human Rights in Berlin.

[1] These are constitutionally recognised communities of people, identified to have been historically “backward”, economically, socially and educationally. Articles 340-342 of the Constitution of India lay down the procedure for recognition of such groups that may qualify to be SC, ST or OBC.  

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Suggested citation: Tanvi Tuhina, ‘Almost thirty years to reach one-third: will India's constitutional amendment enhance women's political participation?’, ConstitutionNet, International IDEA, 1 November 2023, https://constitutionnet.org/news/almost-thirty-years-reach-one-third-will-indias-constitutional-amendment-enhance-womens

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