The Constitution Amendment Bill to provide for reservation for women in the legislatures, as sought to be introduced, has proved to be controversial from many angles. Palpably inequitable and unjust to the OBC's (The Shudras) and the Muslims, it does not provide sub-quotas for the OBC and the Muslim women in utter disregard of their genuine apprehension that without a sub-quota, few OBC women, and perhaps no Muslim women, are likely to be elected to the legislatures.
As a group, the OBC's have already managed to secure a high level of representation and, therefore, for them it is a matter of substituting men by women. The Muslim's apprehension is deeper that due to the further contraction of the free space in the electoral arena and the non-election of Muslim women, their overall representation may go down from the present level of 5.0 to 2.5 per cent, against their population of 12.5 per cent.
Not surprisingly while the BJP-led Government had shown an inclination to accommodate the OBC women, it has ruled out any sub-quota for the Muslim women on the specious ground that the Constitution bars reservation on the ground of religion. So it does on the basis of gender or caste. And if the Constitution can be amended to provide for reservation only on the basis of gender or caste, so it can be, in the case of religion.
What is important for the health of the democratic order is equitable representation in the legislatures of all segments of a multi-segmented society like ours. Every segment aspires to its due participation in the legislature which is the generating station for political power. No segment is prepared to accept vicarious representation through another segment. Such an aspiration is absolutely legitimate in accordance with the concept of Equality and Justice enshrined in the Preamble of the Constitution and the Fundamental Rights of Equality before the Law and of Equal Treatment in Articles 14 and 15(1) of the Constitution. The proposed Bill violates these basic parameters by indirectly but effectively concentrating representation of women in a particular social segment because of their relative political forwardness and proximity to the power structure. In short, the proposed Bill brings in reservation with a capital R, for the high caste women through the back-door. The Bill is, therefore, essentially anti-democratic.
Another argument put forward against provision of sub-quotas for the OBC and the Muslim women is that with the existing reservation of 22.5 per cent for SC and ST the total reservation in the legislature would exceed 50 per cent, the limit set by the Supreme Court. Firstly, the 50 per cent limit applies to reservation in public employment for Backward Classes on ground of balance between the claim of social justice and administrative efficiency. The so called merit or the efficiency principle does not apply to representation in legislatures. Secondly, since the 4 per cent quota claimed by Muslim women will come out of 33.3, it will not add to the total reservation, even adding the undisturbed quota of 15 per cent for SC/ST.
It has also been argued that if reservation is provided for the Muslim women, other minorities will also demand a similar concession. For one thing no other religious minority community the Sikhs or the Christians have raised this demand, perhaps because they are relatively advanced or geographically so concentrated that they have never been under-represented. One does not administer medicine forcibly to those who are healthy! Secondly, the Muslims do constitute about 2/3 of all religious minorities and the second largest community in the country.
Thirdly, even if the women of all minorities are provided a sub-quota, severally or jointly, the reservation for the women will not exceed 33.3 per cent or the total 48.8 per cent. If any religious minority, or for that matter any identifiable social group, is either under-represented and apprehends further under-representation, there is no reason to deny it.
Indeed, the Bill is inherently illogical. If it is the supporter's case that any woman can represent all women of all segments, then why does it provide separate quotas for the SC and the ST women? Their quota of 40 seats (7.5 per cent) should also be taken out of the separate mini-pools and drained into the general pool of 141! And if this argument applies universally, the logical conclusion should be that the reservation in favour of the SC and the ST should be abolished. Why can't they be represented by the Legislators of other castes and groups. Indeed, there should be no reservation at all!
If the case for the Bill lies in the consistent and obvious under-representation of women in the legislatures, then the OBC and the Muslim women (apart from the SC and the ST women) deserve their quotas even more than the women of high castes. In the present Lok Sabha out of 39 women, there are only 3 or 4 OBC's and no Muslim. In the 11th Lok Sabha, out of 43 women, only 4 belonged to OBC's and only one was a Muslim. In all the Lok Sabhas put together (1952-1998), to the best of my knowledge, there have not been more than 4 Muslim women (Maimoona Sultan, Mohsina Kidwai, Abida Ahmad and Noor Bano). In the Rajya Sabha today there is only one – Najma Heptulla. In all the State Assemblies put together today there are only 5 Muslim women. Some parties and leaders make out the case for reservation for women in legislatures in terms of the oppression of women and the crimes against them which are indeed shockingly rampant. But isn't it foolhardy to imagine that the crime rate will go down and the oppression will cease if sizeable number of women are present in the legislatures'. Indeed there have been reported cases of women legislators themselves being oppressed and targeted. Gender inequality has its own reasons and must be combatted through appropriate social, educational and economic measures. This is not an argument against participation of women in public life but a warning that the lot of the women in India is not going to show any improvement through the proposed reservation. The Indian society has to make a beginning by promoting participation by women in public life and giving it broad social acceptance and legitimacy. Today neither the OBC nor Muslim women are visible in the structure of national parties, with a few important exceptions and the women in general are not to be seen at the decision-making levels.
It is unfortunate that women legislators are being projected unfairly as the representatives of women only. In a democracy, every legislator represents all the people of his/her Constituency, to an extent, all the people of the state and of the country, as a whole. And every legislator, in our segmented society, also represents the social segment to which he or she belongs. No reservation for women should on one hand, try to detach the woman from her social group nor reduce the representation of any segment. Such reduction will attenuate the normal channel of communication of segment with the power structure.
state of birth, domicile and sex but not Religion. Is our country religiously homogeneous? Don't we have religious minorities? Don't the Muslims constitute the largest religious minority and the second largest community. Is the existence of religious diversity a blessing or a curse? Is the presence of Muslims in India something we are forced to tolerate or a challenge for civilised co-existence? The fact is that as a nation we have not yet got over the trauma of the Partition nor stopped holding the Muslims solely responsible for it. It is not surprising that the just and equitable demand of Muslim women for a quota within the reservation in the legislature is being thrown out of court by raising the ghosts of separatism and partition. It is time to recall that since 1917 the Indian National Congress had been committed to the principle of reservation for Muslims in the legislatures. This commitment was written into the Lucknow Pact (1916), the National Pact (1927) and the Nehru Report. This commitment was written into the Draft Constitution in 1947. What the Freedom Movement had always rejected, and rightly so, was the system of separate electorate. No one in the country today is asking for a separate electorate based on religion or caste or tribe or language. The Muslim Indians are recognised as a religious minority in the Constitution and are enumerated in the Census and as a religious minority, both under national and international law, are entitled to due representation in the legislatures. But no such demand is yet on the national agenda. The Muslim women are demanding their due because there is a move to provide reservation for women in a manner that they shall never be elected.
The Muslim Indians today are in a state of frustration. The Muslim youth feel increasingly alienated. Leaving aside the social and economic aspects, they are grossly under- represented in the legislatures due to convergence of a number of negative factors: under-enumeration in the Census, non- registration as electors, deletion from the electoral roll, arbitrary division of Muslim concentration areas in delimitation so as to reduce their electoral weight, virtually permanent reservation of Muslim concentration Constituencies for the SC and the ST, the inability of secular parties to transfer their base votes to Muslim candidate and their consequent disinclination to field Muslim candidates even from Muslim concentration Constituencies the the Saffron colours and finally the silence of the secular legislators on the problems faced by the Muslims. Muslim representation in Lok Sabha has averaged about 27 during 1950-1998 i.e. about 5.5 per cent. Their level of deprivation is of the order of 60 per cent. With the free arena contracting to 282 seats out of 545, the average may go down to 18 or even less. Ultimately a Muslim Indian may win only from 11 Muslim majority Constituencies, unless they are also reserved for the SC, the ST or the Women! All political observers agree that the present electoral system - first past the pole – is iniquitous and anti-democratic. Yet everyone shuns the very thought of proportional representation or of reservation. The most equitable system would be to provide reservation in the legislature for every identifiable and self-conscious group whose population in the country or the state is higher than the population or proportional requirement for one seat in the legislature. Other mini- and micro- groups can either aggregate to form an eligible group or associate themselves with a larger group of their choice. Constituencies may be earmarked for every social group on the basis of its population or proportion therein. But the election shall be based on joint electorate, plus a run-off, so that the legislator does represent not only the social group to which he belongs but commands the confidence of at least half the electorate. There should then be, across the board, sub-quota for women in every quota, which should increase, with every successive general election to 50 per cent. But prior to this there should be legislation to convince all parties to place a minimum % of women in their structure and list of candidates.
With the feeling of deprivation wiped out, with equal representation of all social groups, India shall be a happier country - a true federation of races, caste, religions, languages and cultures as Rabindra Nath Tagore had enunciated. India shall no longer be dominated either by the high castes or by the westernised elite. Political parties will have to reform their social bases and enlarge their pool if they aspire to emerge as national factors.
Once all social groups play in a level field, national politics shall be lifted from the pursuit of sectoral or regional commitments to truly national interests.
New Delhi,
1 August, 1998,
