Proposed Women's Reservation In Parliament Is Unconstitutional!

The Background: The Indian constitution was enacted on 26th of November, 1949. It is the supreme law of the land. It lays down the framework defining fundamental political principles, establishing the structure, procedures, powers and duties, of the government and spells out the fundamental rights, directive principles and duties of citizens. The constitution came into effect on January 26, 1950 and it guarantees among other things, equality before law and equality of opportunities through article 14 and 15, respectively.

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The Constitution provides for a Parliamentary form of government which is federal in structure with certain unitary features. The constitutional head of the Executive of the Union is the President. As per Article 79 of the Constitution of India, the council of the Parliament of the Union consists of the President and two Houses to be known as the Council of States (Rajya Sabha) and the House of the People (Lok Sabha). Article 74(1) of the Constitution provides that there shall be a Council of Ministers with a Prime Minister as its head to aid and advise the President, who shall exercise his functions in accordance to the advice. The real executive power is thus vested in the Council of Ministers with the Prime Minister as its head.

The Council of Ministers is collectively responsible to the House of the People (Lok Sabha). Every State has a Legislative Assembly. Certain States have an upper House called State Legislative Council. Governor is the Head of a State. There shall be a Governor for each State and the executive power of the State shall be vested in him. The council of Ministers with the Chief Minister as its head advises the Governor in the discharge of the executive functions. The Council of the Ministers of a state is collectively responsible to the Legislative Assembly of the State.

Reservation for women: A demand was made by women's groups for 33.3% reservation for women on the ground that their representation was low in parliament and state assemblies. The bill to reserve 33.3% of seats for women in legislative bodies was first drafted by the H D Deve Gowda-led United Front government. The Bill was introduced in the Lok Sabha [Lower house of Indian parliament]on September 12, 1996. Though it has been introduced in Parliament several times since then, the Bill could not be passed because of lack of political consensus.

What does the Bill provide?

Reservation for women at each level of legislative decision-making, starting with the Lok Sabha, down to state and local legislatures. If the Bill is passed, one-third of the total available seats would be reserved for women in national, state, or local governments. In continuation of the existing provisions already mandating reservations for scheduled caste and scheduled tribes, one-third of such SC and ST candidates must be women.

Failure of the 4th estate:

It is very sad and unfortunate that the Indian media has been taking the side and promoting the concept of reservation for women without ever, for once, showing the negative side of such a concept. By presenting news in such a way as though there were no negatives and that people have already accepted it, it has not been doing justice to the noble profession of journalism. In effect, the media has becoming a platform for one-sided, biased propaganda of certain vested interests and women's lobbies without taking into consideration the rights and views of men and women who don't support reservation and this discriminatory concept of "Robbing Peter To Pay Paul". This bill is short-sighted, unconstitutional, undemocratic, and discriminatory. The following points are worth considering:

1. This Bill takes away the democratic right of 33% of the electorate (22 crore people) to elect their representatives. It restricts the choice of both men and women in those constituencies. The state has no right to limit the pool of representatives available to the public to choose from. This is against all democratic principles of free choice.

2. This takes away the democratic right of about 11 crore men to contest in elections, thus imparting a severe blow to the health of democracy in India . This is against the fundamental rights of 11 Crore men. It violates the right to equality guaranteed in the constitution.

3. It will lead to significant upheavals and instability in Indian polity, with MPs being forced to shuffle constituencies in almost every election. This would lead to an inability to nurture their constituency and further reduce accountability.

4. There are no measures to make sure that the benefits are received by the socially backward and underprivileged women, who really need them. There are no objective criteria to prevent the elite class or “creamy layer” of women from taking undue and unfair advantage of this legislation.

5. This Bill sacrifices merit and experience of seasoned law makers and will further divide the country on gender lines.

6. This bill suggests a rotation system which would be determined by draw of lots, in such a manner that a seat would be reserved only once in a block of three general elections. This is a serious flaw, insofar as it mechanically provides for entry of women members to fill one-third of vacancies in Lok Sabha and Vidhan Sabhas. This subverts the democratic process which is all about free choice vis-à-vis a mechanical action/ process.

7. The representation system in parliament and state legislatures is for entire constituencies which include every single person, be they man, woman or child and not just one section of the population within a constituency. In other words, an MP or an MLA is a public servant who represents a constituency and not any group/ section/ portion of his/ her constituency. He/ she is supposed to protect the interests of all in his/ her constituency and not just a particular group/ section/ portion in his or her constituency. This bill is against this concept of representation. The bill implies representation of women.

8. India is a vast country and is multi-cultural, multi-ethic, multi-lingual and with several groups, castes, sub-castes etc. The implementation of this bill would lead to more demands from various groups and sections of society for similar representation and it would be an open invitation for politicization of the representative form of Indian democracy. It will be a death blow to representation through constituencies.

9. The concept of reservation is an insult to women and their capability. This law perpetuates gender discrimination.

Rather than taking a judicious and considered approach towards the issue, which normally expected during the legislative process, the current Bill builds on gender stereotypes and makes several deeply flawed assumptions such as:

1. Women only vote for other women – More than 50% of the women exercised their franchise in the General Election of 2004 and elected their representatives, both men and women.

2. Forcing more women on the electorate is women empowerment – Forcing more women in the parliament through undemocratic means will only serve to undermine the legitimacy and efficacy of the elected women representatives.

3. All women are under-privileged - A gross generalization is made that all women are under-privileged, deprived and discriminated. That women are a homogenous group and there are no differences in terms of social status, education, etc. and hence, an across the board reservation system is needed.

4. All men are privileged - Similarly, a gross generalization is made that men are a homogenous group and are all privileged and have a natural advantage over women.

5. Women are advantaged - Assumption is made that women have no natural advantages over men. That society discriminates only women and not men. It does not recognize the natural and societal advantages that women have got in terms of moral superiority, greater faith and sympathy.

6. Reservation is indispensable - The bill does not recognize the fact that there have been many women who made it to high public offices and there have been many women Chief Ministers and a Prime Minister. Right now, we have a woman President. They all assumed office through their own efforts and without any reservation. The bill is based on the false assumption that women need reservation to enter high public offices.

The Conclusion:

It is very essential that facts are published in an unbiased manner and alternative views are considered by the media and the society. As the saying goes, "Robbing Peter to pay Paul", is no solution - short term or long term for any perceived problem. Affirmative action creates a new set of problems than solving the existing problem.