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“Constitution Itself Is a Feminist Document”- Is It?

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“Constitution Itself Is a Feminist Document”- Is It? “CONSTITUTION ITSELF IS A FEMINIST DOCUMENT”- IS IT? (LOCATING THE ANSWERS IN THE CONSTITUENT ASSEMBLY OF INDIA) Dissertation submitted in part fulfillment for the requirement of the Degree of LL.M. Submitted by Supervised by SURBHI KARWA DR. APARNA CHANDRA National Law University Delhi (India) 2019 1 To Maa, who gave me my first lessons in Feminism 2 TABLE OF CONTENT TITLE Page No. DECLARATION BY CANDIDATE 6 CERTIFICATE OF THE SUPERVISOR 7 ACKNOWLEDGEMENTS 8 LIST OF ABBREVIATION 9 LIST OF STATUTES 10 LIST OF TABLES 11 LIST OF CASES 12 CHAPTER-1 13-28 INTRODUCTION 1.1. INTRODUCTION 13-15 1.2 CONCEPTUAL FRAMEWORK 15 1.3 REVIEW OF LITERATURE 15-23 1.4 RESEARCH METHOD 23-26 1.4.1 STATEMENT OF PROBLEM 23 1.4.2 OBJECTIVE 23-24 1.4.3 HYPOTHESIS 24 1.4.4 RESEARCH DESIGN 24-25 1.4.5 SCOPE OF STUDY 25-26 1.5 SIGNIFICANCE OF STUDY 26-27 1.6 CHAPTERIZATION 27-28 CHAPTER-2 WOMEN RULE BY HEART AND MEN RULE BY MIND?: 29-41 QUESTIONS OF PARTICIPATION OF WOMEN IN CONSTITUENT ASSEMBLY 2.1 GENDERED IMPACT OF ELECTIONS 29-30 2.2 WHERE THERE 15 WOMEN MEMBERS IN THE 30-32 ASSEMBLY? 2.3 MEMBERSHIP OF COMMITTEES 32-34 2.4 PARTICIPATION OF DALIT AND MUSLIM WOMEN 34-38 2.5 CONCERNS OF LACK OF PARTICIPATION OF WOMEN 38-40 IN ASSEMBLY: TWO INSTANCES 2.5.1 JAIPAL SINGH‘S QUESTIONING OF LACK OF TRIBAL 38-39 WOMEN IN ADVISORY COMMITTEE 3 2.5.2 PURNIMA BANERJI‘S PROPOSAL 39-40 CHAPTER-3 42-68 LIMITED FEMINIST VISION OF THE CONSTITUENT ASSEMBLY: A PRIMA FACIE ACCOUNT OF EMERGING THEMES 3.1 AGAINST SPECIAL PROVISION FOR POLITICAL 45-48 PARTICIPATION 3.2 WE ARE NOT LIKE THE WESTERN FEMINIST 48-50 3.3 BIOLOGICAL DETERMINISM AND THE CONSTITUENT 50-52 ASSEMBLY 3.3.1 CASE OF CULTURAL FEMINISM 51-52 3.4 PROTECTING OUR COWS AND OUR MOTHERS: 52-59 PROTECTIONISM AND THE ASSEMBLY 3.4.1 DEBATE ON PROSTITUTION 54-57 3.4.2 PROTECTING OUR WOMEN FROM THE WORK AGAINST 57-59 THEIR NATURE 3.5 ALL ISSUES ARE WOMEN‟S ISSUES: WHAT WOMEN 59-68 MEMBERS SPOKE ABOUT 3.5.1. SOME OBSERVATIONS ABOUT WHAT WOMEN SPOKE 67-68 CHATPER-4 69-86 CONSTITUENT ASSEMBLY: A GENDERED SPACE? 4.1 DOES „GOD‟ INCLUDE „GODDESSES‟? 70-74 4.1.1 H.J. KHANDEKAR‘S TWO ATTEMPTS 71 4.1.2 PROPOSALS TO OMIT ‗MEN AND WOMEN‘UNDER AR. 39 71-72 4.1.3 KAMATH‘S PROPOSAL ON ‗HER‘ CITIZENS 73-74 4.2. USE OF GENDERED LANGUAGE FOR CONSTITUTIONAL 74-79 PROVISIONS 4.2.1 CENTRE- THE DOMINANT MOTHER IN-LAW 75-76 4.2.2 PRESIDENT, UPSC MEMBERS AND CAESER‘S WIFE 76 4.2.3 THE EVIL STEP MOTHER 76-77 4.2.4 KAMATH- THE MARRIED MAIDEN 77 4.2.5 TRANSFERRIN PROPERTY, TRANSFERRING WIFE 78 4.2.6 NOTWITHSTANDING THAT YOU ARE A ‗MAN‘, YOU MAY 78-79 DESCRIBE YOURSELF AS ‗WOMAN‘ 4.3 TREATMENT OF WOMEN MEMBERS IN ASSEMBLY: 79-86 INSTANCE OF SEXISM AND SEXIST COMMENTS 4 4.3.1 ADDRESSING WOMEN MEMBERS- ‗FRIEND‘ OR ‗SISTER‘ 79-80 4.3.2 CONFINING MYSELF TO DOMESTIC MATTERS 80 4.3.3 WHERE IS A WOMAN WHO WOULD TELL HER AGE TO BE 80-81 56? 4.4.4 LIKE A COMMUNIST THE COMMITTEE HAS SENT A 81-82 WOMAN TO FIGHT IN FRONT 4.3.5 YOU ARE ALLOWED TO SPEAK ONLY BECAUSE YOU 82 ARE A LADY 4.3.6 CHIVALRY AND WOMEN‘S CONSTITUENCY 83-84 4.3.7 PROTECTION AGAINST COWS, PROTECTION AGAINST 84 - 85 WOMEN CHAPTER-5 87-91 CONCLUSION BIBLIOGRAPHY 92-98 Constituent Assembly Debates 92 Books 92-94 Cases 94-95 Statues 95 Journals 95 Newspaper Articles 95-96 Online Sources 96-98 ANNEXURE-1 99-150 5 DECLARATION BY THE CANDIDATE I hereby declare that the dissertation entitled “THE CONSTITUTION ITSELF IS A FEMINIST DOCUMENT, IS IT?- LOCATING ANSWERS IN THE CONSTITUENT ASSEMBLY OF INDIA” submitted at National Law University, Delhi is the outcome of my own work carried out under the supervision of Dr. Aparna Chandra, Assistant Professor, National Law University, Delhi. I further declare that to the best of my knowledge the dissertation does not contain any part of work, which has not been submitted for the award of any degree either in this University or any other institutions without proper citation. Place: (Surbhi Karwa, 75LLM18) Date National Law University, Delhi 6 CERTIFICATE OF SUPERVISOR This is to certify that the work reported in the LL.M. dissertation entitled “CONSTITUTION ITSELF IS A FEMINIST DOCUMENT- IS IT?: LOCATING ANSWERS IN THE CONSTITUENT ASSEMBLY OF INDIA”, submitted by Surbhi Karwa at National Law University, Delhi is bona fide record of her original work carried out under my supervision. To the best of my knowledge and belief, the dissertation: (i) embodied the work of the candidate herself; (ii) has duly been completed; and (iii) is up to the standard both in respect of contents and language for being referred to the examiner. Place: (Dr. Aparna Chandra) Date National Law University, Delhi 7 ACKNOWLEDGEMENT Having been deeply interested in partition studies, I initially wanted to undertake research to discover whether the officially unacknowledged violence against women during partition impacted our Constitution making process or not. But initial discussions with Dr. Aparna Chandra, and Dr. Neeraj Kumar, both of whom are my teachers at National Law University, Delhi widened the scope of my inquiry to undertaking a feminist critique of constituent assembly debates. And thus most initial gratitude goes to them. Dr. Aparna Chandra guided me during this entire procedure as my supervisor. I am deeply grateful to her for listening patiently to my unstructured ideas and in helping me to structure them. She read and re-read my chapters and provided me with valuable suggestions. This work could not have been completed without help of library and library staff at National Law University, Delhi. Many regards to them too. I would also like to thank my friends Anajnay Pandey, Nidhi Meena and Oorjasvi Goswami for reading the drafts and being my ‗personal‘ editors. Credits are also due to my friends Sukriti Bhatnagar and Abhilasha Singh, who despite of their professional and academic commitments remain a source of guidance and positivity to me. I would also like to thank Shubhi Khare, Shreyasi Bhattacharya and Supriya Rastogi, my batch mates and friends here at NLU-Delhi who shared a laugh (and a cup of tea) whenever I needed it. Above all else, this research owes its existence to my parents, Mr. Pushp Kumar Karwa and Mrs. Mamta Karwa, who appreciated the nature of my work and continuously encouraged me to do good. Thank you for being the emotional support. I am thankful to them for understanding my ideologies and beliefs despite disagreeing with them. Surbhi Karwa Delhi May, 2019 8 LIST OF ABBREVIATION 1. & And 2. AIR All India Reporter 3. Ar. Article 4. AIWC All India Women‘s Conference 5. CAD Constituent Assembly Debates 6. DC Draft Constitution 7. Eds. Editors 8. GOI Government of India 9. Govt. Government 10. HC High Court 11. Ibid Ibidem 12. i.e. that is 13. J Journal 14. Ker. Kerala 15. Mad. Madras 16. No. Number 17. SC Supreme Court 18. SCC Supreme Court Cases 19. Sec. Section 20. Supra See Above 21. V. Versus 9 LIST OF STATUTES Constitution of India, 1950. General Clauses Act, 1897. Indian Penal Code, 1860. 10 LIST OF TABLES Table No. Caption Page Number 2.1 Date of Joining and Constituencies 32 of Women Members 2.2 Women Membership in Various 33-34 Committees of Constituent Assembly 2.3 Caste, Religion and Family 35-38 Backgrounds of Women Members 3.1 Different Parts of Constitution and 60-65 Voices of Women 3.2 Different Schedule and Voices of 65 Women 3.3 Residuary Occasions Where 65-66 Women Members Spoke 11 LIST OF CASES 1. Anuj Garg v. Hotel Association of India & Ors. (2008) 3 S.C.C. 1. 2. B. K. Pavitra v. U.O.I. CIVIL APPEAL NO. 2368 OF 2011. 3. Leela v. State of Kerala (2004) III L.L.J. 106 Ker. 4. M.R. Balaji v. State of Mysore A.I.R. 1963 S.C. 649. 5. State of Madras v. Champakam Dorairajan, A.I.R. 1951 S.C. 226. 6. Vasantha R. v. U.O.I. 2001-II L.L.J. 843 Mad. 12 CHAPTER-1 INTRODUCTION 1.1 Introduction “Constitution itself is a feminist document” - Dr. Justice D.Y. Chandrachud, 20181 “I will however confess to you one thing….To be a feminist is to acknowledge that one's life has been repressed. The demand for granting preferential treatment to woman is an admission on her part of her inferiority” - Sarojini Naidu, All India Women‟s Conference, Presidential Speech , 1927 Constitutions are not mere sum- product of certain consensus arrived at a celebratory (or not so celebratory) moment in history of a nation. They are framed for ages to come, they remain in centrality of social and political life of a nation for generations to come. They in fact become part of everyday lives of citizens. 2 Thus the choices made at the founding moment govern not only the then citizenry of the nation, it governs the citizenry for decades and sometimes even centuries to come. In the range of the choices a Constitution makes, it also makes ‗feminist choices‘ impacting the feminist potential of the Constitution.
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