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

Home , Annie Mascarene, Begum Aizaz Rasul, Hansa Jivraj Mehta, Jivraj Narayan Mehta

“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

To Maa, who gave me my first lessons in Feminism

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

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

4.3.1 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

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

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

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

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

LIST OF STATUTES

 Constitution of India, 1950.  General Clauses Act, 1897.  Indian Penal Code, 1860.

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

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.

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. These choices impact women, queer citizens and men for generations to come. The starkly diverse possibilities and visions of feminism, say, one which thinks hierarchy dismantling Constitution of India to be a feminist document, of a sitting Supreme Court Judge in 2018, and another which considers any special provisions to be accepting of inferiority of women, of a founding mother of the Constituent Assembly in 1927 have direct impact on how far the Constitution of a nation changes the lives of ordinary women.

1 Mehal Jain, 'Constitution Itself Is Feminist', Justice Chandrachud On Transformative Constitution & Feminism, LIVELAW (Oct. 7, 2018, 02:25 PM), https://www.livelaw.in/constitution-itself-is-feminist- justice-chandrachud-on-transformative-constitution-feminism/. 2 See-ROHIT DE, A PEOPLE‘S CONSTITUTION: THE EVERYDAY LIFE OF LAW IN THE REPUBLIC (Princeton University Press 2018).

In India, questioning the feminist choices of the founding moment becomes further pertinent since the post Colonial Indian Constitution made a clear choice of breaking up from the past, of transforming an unequal society to equality and justice based society. The Constitution was to be a document of ‗social revolution‘3 , and it was to work for emancipation of the Dailts, the Women, and each and every citizen of India who have been hitherto ignored, violated and oppressed.

The question thus become relevant to ask whether those it sought to emancipate were seen as ‗Constituent part‘ in the process of making the choices or did the Constitution only claimed to speak on behalf of them? 4 Here I ask the ‗women‘s question‘ and thus question whether the women were to walk with the men, hand in hand, in the founding moment or whether she were to just exist on margins waiting to be emancipated by the document. Was she taken as an equal agent in the process of making of choices of the Constitution or was she ‗othered‘? Was she told that she has to walk with him, was she told that uth meri jaan! Mere sath hi chalna hai tujhe? 5

In the current work, I argue that the feminist vision of the Constituent Assembly was limited. Firstly, the assembly was a ‗man‘s club‘ with little participation of women. In the 300 plus big Constituent Assembly, only 15 members were women (around 5%). Even within these 15 women members, effective participation was not more than of 7 women members. A few women members were merely ceremonial members speaking only once or twice on celebratory occasions while a few women members never spoke in the assembly. Further, most women members were elite women with propertied, Hindu, upper caste backgrounds, there was little participation of women discriminated on various margins. 6 Perhaps such limited participation is the reason that the range of demands raised by AIWC prior to independence were never debated in the assembly. Even when the questions of participation of women were raised to a limited extent in the assembly

3 GRANVILLE AUSTIN, THE INDIAN CONSTITUTION CORNERSTONE OF A NATION xiii (India Paper Back Edition OUP 1999). 4 PARTHA CHATTERJJEE, THE NATION AND ITS FRAGMENTS 154 (Princeton University Press 1993). 5 Aurat By Kaifi Azmi in RAKSHANDA JALIL, KAIFIYAT 42 (Penguin Random House 2019). 6 Although story of lives of some women members are yet to be become part of public domain. See Table 2.3.

14 they were either not taken seriously or they could only be taken to making ad-hoc arrangements instead of a principled approach for ensuring equal participation of women.

Secondly, the elite women members of the assembly failed to recognize potential impact of Constitution in lives of subaltern women and thus questions of special provision for political participation failed to be imagined as question of participation for last women standing in the row. Rather the sameness of women with men was asserted and reservations were unanimously rejected. Whenever it did recognize the difference between men and women, it was based on biological determinism rather than difference of social hierarchy and subsequently they looked at women with protectionist gaze hoping to save and protect them, and not necessarily hoping to hear their own voices.

And thirdly, women both present in the assembly and the future women citizens of the nation were stereotyped and othered, they were made to struggle to belong in the Constitutional community in the founding moment. The women members faced various instances of sexism in the assembly with drawing little reaction from other members. While the women citizens in general were stereotyped by gendered use of language to explain various Constitutional provisions, thus a strong centre was to be compared with a dominant jealous mother-in law and joining of common wealth was to be painted as your mother marrying second time. The assembly in fact rejected proposals to make the language of the Constitution gender inclusive, chose to believe that ‗he‘ includes ‗she‘.

1.2 Conceptual Framework

The current dissertation is an interdisciplinary engagement aimed at locating feminist potential of the Constitution in the Constituent assembly. The work is primarily rooted in Constitutional theory with a feminist eye. Scholarship on feminist jurisprudence, feminism and linguistics has been relied on. Further intersectionality has been a major framework in questioning the homogenization of the grand ‗women‘ category in the Constitution making process.

1.3 Review of Literature

Constitution Making Process-

It has been 70 years since framing of Indian Constitution and with each year the treasury of Indian Constitutional law has grown vastly. And yet the story of drafting of Indian Constitution has largely remained under-explored and under-told. American scholar Granville Austin‘s work still remains one of the most remarkable work with no other work as detailed and as comprehensive as his work available. Some scholars like Niraja Jayal Gopal,7 Shefali Jha8 Rochana Bajpai,9 Gautam Bhatia,10 Zoya Hasan11 have also contributed few plots to telling of story of the Indian Constitution making but they have primarily focused on certain specific issues- citizenship, minority rights, secularism, and free speech in the Constituent assembly. Austin‘s work has remained the primary holistic account of the making process.

Off late however there has been renewed interest in story of formation years with writings of Udit Bhatia,12 Vikram Raghavan13 Shefali Jha,14 Arvind Elangovan15 Aditya Nigam16 and various others. The Constituent Assembly has also been engaged with rather diverse lenses in recent past. Kanika Gauba‘s scholarship on partition vis-à-vis Constitution making process17 and Rohit De‘s account of Constitution as day to day part

7 NIRAJA GOPAL JAYAL, CITIZENSHIP AND ITS DISCONTENT: AN INDIAN HISTORY (Harvard University Press 2013). 8 Shefali Jha, Secularism in the Constituent Assembly Debates, 1946-1950, 37 EPW 30 (2002). 9 ROCHANA BAJPAI, DEBATING DIFFERENCE: GROUP RIGHTS AND LIBERAL DEMOCRACY IN INDIA (OUP 2012). 10 GAUTAM BHATIA, OFFENCE, SHOCK OR DISTURB (OUP 2016). 11 ZOYA HASAN, POLITICAL OF INCLUSION: CASTE, MINORITIES AND AFFIRMATIVE ACTION (OUP 2009). 12 UDIT BHATIA, THE INDIAN CONSTITUENT ASSEMBLY: DELIBERATIONS ON DEMOCRACY (Taylor Francis Group 2018). 13 Vikram Raghvan, Why do our constitutional debates matter?, LIVEMINT (Oct. 5, 2016, 01:14 AM), https://www.livemint.com/Opinion/mLactWgKWt6iKosuEyBNMI/Why-do-our-constitutional-debates- matter.html 14 Shefali Jha, Democratic Constitutionalism in India, INDIAN SEMINAR, https://india- seminar.com/2013/642/642_shefali_jha.htm. 15 Arvind Elangovan, The Making of the Indian Constitution: A Care for Non-Nationalist Approach, 12 History Compass 1 (2014). 16 Aditya Nigam, A Text Without Author, 39 EPW 21 (2004). 17 Kanika Gauba, Forgetting Partition, Constitutional Amnesia and Nationalism, 51 EPW 39 (2016).

16 of life, in initial years of post Constitutional order,18 can be seen as such diverse engagement with the Constitution making process.

The growing interest of academic scholarship has led to growing number of online platforms engaging with Constitution making process and has made information on constitution making process easily accessible and democratized. 19 Government efforts since early 2000s in digitalizing the debates have also made assembly debates more accessible.

Challenging Austinian Model of Reading Debates -

Post colonial Indian Constitution making process undertaken in consequence of nationalist movement has been largely mytholigised both in academic memory and in memories of public, law students and law teachers. Major architect of this narrative is Austin who presented a consensus prism of constitution making process whereby he has argued that the member of the assembly inspired from ideals of social justice and equality rose beyond their diverse socio-economical background and worked on higher ideals of Habermasian deliberation, respect and consensus. 20

However this consensus model has been challenged and there has been shift in the scholarship with need of questioning the assembly strongly being felt. 21 Previously too the skepticism towards Austinian Consensus model has been raised.22 The recent scholarship however went a step further and has argued for new methodological process of engagement with the making process. This shifting prism of engagement argues that the assembly members were political agents with interests, agenda and faults like any other political agents and they should be seen as such.23 I place my work in this shifting

18 De, supra note 2. 19 See Gatuam Bhatia, How to read the Constituent Assembly Debates, INDIAN CONSTITUTIONAL LAW AND PHILOSOPHY (Wed. 27, 2018), https://indconlawphil.wordpress.com/2018/06/27/how-to- read-the-constituent-assembly-debates-i/. See also Constituent Assembly Debates, CENTRE FOR LAW AND POLICY RESEARCH, https://cadindia.clpr.org.in/. 20 AUSTIN, supra note 3, at xiii. 21 Pratap Bhanu Mehta as cited in Elangovan, supra note 15, at 12 22 Upendra Baxi Upendra Baxi, “The Little Done, The Vast Undone”- Some Reflections on Reading Granville Austin‟s THE INDIAN CONSTITUTION, 9 Journal of Indian Law Institute 3 (1967) 23 See- ―Introduction‖ in BHATIA, supra note 12, at 3.

17 trajectory and argue that members of the assembly, which was overwhelmingly all male, worked with gendered lenses and gendered prejudices.

At the heart of this shift is asking the question, that when the constitutions are claimed to be documents speaking in the name of the ‗people‘, then it becomes pertinent to ask who these ‗people‘ are. 24 It is in this trajectory that I ask the ‗women‘s question‘ and explore whether in the ‗invisibility‘ of the ‗We The People‘, women were othered or not? Whether there was a deficit of participation of women or not?

Clearly, my work is based on recognition of difference between men and women and consequently differential impact of constitutions on women. It is a work based on acknowledgement of difference, not based on biology but based on historic and socio- cultural construction of experience called ‗woman‘. This is a distinction of what feminists called the distinction between ‗sex‘ and ‗gender‘. Although the sex/gender distinction has been complicated in several ways and challenged in several ways within feminist discourse,25 but when at the founding moment the aim is arguably to uproot historic and societal inequalities so as to move towards transformation of society, then the inquiry of ‗women‘s question‘ would be better conducted if we categorize the difference between men and women through prism of historic injustices i.e. gender and not biological determinism i.e. sex.

One may argue that men members too can make a feminist document, why then the need of recognition of difference? While much ink has been spent on whether men can be feminist and take interest of women into account or not, but the different lived experience of women, facing exclusion, discrimination, makes them more lively to ensure a better gender equal constitution than man. Presence of women members increases probability of better gender just results in descriptive, substantial and symbolic manner. 26

Constitution Making Process and Women-

24 See Kalyani Ramnath, We the People: Seamless Web and Social Revolution in India‘s Constituent Assembly in BHATIA, supra note 12, at 181. 25 NIVEDITA MENON, SEEING LIKE A FEMINIST 60-71 (Penguin Books 2012) 26 See DEMOCRACY AND DIFFERENCE: CONTESTING THE BOUNDARIES OF THE POLITICAL (Seyla Benhabib ed. Princeton University Press 1996).

The current inquiry become further relevant since even when the constitution making process has been engaged with, the plots and chapters concerning women, and the story concerning Founding Mothers has remained invisible and absent. Even the most widely cited work by Austin seems to be lacking in this regard. To be fair, Austin does mention G. Durgabai as one of the most important members of the assembly under the Appendix III, but only to describe her as ‗Wife of C.D. Deshmukh‘ in her ‗After Assembly‘ Introduction.27 Austin further even failed to list names of D. Velyudhan and Renuka Ray as members of the assembly in his list of assembly members.28

One exception however has been recent scholarship by Sanjay Jain and Shirish Deshpande‘s work in ―Feminism and the Subcontinent and Beyond: Challenging Laws, Changing Laws‘‘. Jain and Deshpande have focused on debates on gender in the Constituent Assembly as part of larger narrative of discrimination against women ranging from violence against women to militarization of women.29 Their work as first chapter amongst various other chapters, seeks to address issue of gender discrimination in India by arguing that lack of focus on Constitutional drafting process has results in limited provisions in Constitution for promotion of gender equality and non-discrimination. Clearly, an exclusive vision engaging with the constitution making process with a feminist eye is not the aim of this work.

Thus in the academic imagination role of women members in framing of Indian Constitution has remained marginalized. The academic lack of vision has also engulfed political and public imagination with little information being available about the 15 women members of the assembly to wider public. Few online platforms have attempted to bridge the gaps of public memory and public imagination,30 but there is overwhelming if not omnipresent silence on women‘s participation in the assembly.

27 AUSTIN, supra note 3, at 425. 28 AUSTIN, supra note 3, at 433-443. 29 Sanjay Jain & Shirish Deshpande, ―Fair Sex‖ and Unfair Treatment: Some Reflections on Constitutional Design and Institutional Response with Special Reference to India, as published in FEMINISM AND THE SUBCONTINENT AND BEYOND : CHALLENGING LAWS, CHANGING LAWS (Jaya Sagade et al eds., 1st ed. EBC 2014). 30 See Yoshita Shrivastava, These Are The 15 Women Who Helped Draft The Indian Constitution, FEMINISM IN INDIA (Jan. 26, 2018), https://feminisminindia.com/2018/01/26/15-women-draft-indian- constitution/. See also Women Architects of the Indian Republic, 15 FOR THE REPUBLIC,

Some information on women members has been undertaken and digitalized by the government by publication of selected speeches of women members of the assembly.31 Yet the information on women in the assembly has not been an easily accessible material for general public.

Comparative Account-

Globally too Comparative scholarship is inviting attention to Constitution drafting processes.32 Globally, there exist substantial body of work amongst various countries on women and constitution making process. Helen Irving‘s work on gender and constitution has identified various such examples where women‘s question has been actively engaged with both during framing of the Constitution and post constitutional order scholarship- Canada (the Canadian Charter of Rights and Freedom, post apartheid South African Constitution, Nigerian Constitution, 2004, Kenyan Constitution, 2002 amongst other.33 In South Asia, Nepal after its new formed Constitution in 2015, has published a 905 page long study on Contribution of Women members of the Constituent Assembly of Nepal.34

Feminist Scholarship-

First, In feminist legal jurisprudence phenomenon of ‗law‘ has been continuously engaged with. While the first wave of feminism saw ‗law‘ as an ‗objective‘ ‗social engineering tool‘ which can be used to remove the inequalities between men and women, the second wave questioned the objectivity of ‗law‘ and argued that ‗law‘ itself is not objective, rather it furthers and cemeticizes patriarchy and gender discrimination.35 On

https://15fortherepublic.wordpress.com/. 31 Rajya Sabha Secretariat, Selected Speeches of Women Members of the Constituent Assembly, RAJYA SABHA, https://rajyasabha.nic.in/rsnew/publication_electronic/Selected%20Women%20Speech_Final.pdf. 32 CONSTITUENT ASSEMBLIES, (John Ester et al eds., Cambridge University Press 2018). 33 HELEN IRVING, GENDER AND THE CONSTITUTION: EQUITY AND AGENCY IN COMPARATIVE CONSTITUTIONAL DESIGN 16-18 (Cambridge University Press). 34 WOMEN MEMBERS OF THE CONSTITUENT ASSEMBLY: A STUDY ON CONTRIBUTION OF WOMEN IN CONSTITUTION MAKING OF NEPAL (Women‘s Caucus Constituent Assembly Secretariat, Nepal Law Society 2012). 35 See SUSHILA RAMASWAMY, WOMEN IN POLITICAL THOUGHT: THE QUEST FOR GENDER EQUALITY AND BEYOND (Orient BlackSwan 2018), HILAIRE BARNETT, INTRODUCTION TO FEMINIST JURISPRUDENCE (Cavendish Publishing Limited 1998) and THE ASHGATE RESEARCH COMPANION TO FEMINIST LEGAL THEORY (Margaret Davies & Vanessa E. Munro eds., Ashgate 2013).

20 the other hand, Brenda Cossman and Kapur have seen ‗law‘ as ‗subversive site‘ i.e. law as site of discursive struggle where competing visions of the world, and role of women‘s place therein, is fought out.36

In this background inherent patriarchy and creation of hierarchies by various branches of law like family law,37 criminal law,38 labour laws and procedural laws have been engaged with. Madhu Kishwar, 39 Kalpana Kannabiran40 have also followed similar patterns of engagement with diverse branches of law.

However these questions have not been asked in reference to ‗constitution‘ as a binding legal norm. Although feminist scholarship on gender and citizenship has engaged with Constitutions,41 Constitution has mostly been taken as a given framework on the basis of which rights of women have been argued for as far as Indian feminist movement is concerned. It has not been sufficiently questioned by feminists. Whether Constitutions are patriarchal too, whether they can be means of objective social engineering, these questions have not been asked per se. Thus there has been limited scholarship on feminist potential of Constitutions and limitation of constitutions in bringing desired change. Globally Vicki C. Jackson has engaged with feminisms and Constitutions,42 but these ideas are yet to be engaged with, in Indian context.

36 RATNA KAPUR & BRENDA COSSMAN, SUBVERSIVE SITES: FEMINIST ENGAGEMENT WITH LAW IN INDIA 12 (Sage Publication 1996). 37 1 FLAVIA AGNES, FAMILY LAW AND CONSTITUTIONAL CLAIMS (OUP 2011) and 2 FLAVIA AGNES, FAMILY LAW: MARRIAGE, DIVORCE, AND MATRIMONIAL LITIGATION (OUP 2011) 38 Usha Ramanathan, Ratna Kapur, Pratiksha Baxi have done remarkable work on patriarchal leanings of criminal law. See PRATIKSHA BAXI, PUBLIC SECRETS OF THE LAW: RAPE TRIALS IN INDIA (2014). 39 MADHU KISHWAR, OFF THE BEATEN TRACK: RETHINKING GENDER JUSTICE FOR INDIAN WOMEN (OUP 1999). NEGOTIATING SPACES: LEGAL DOMAINS, GENDER CONCERNS AND COMMUNITY CONCERNS (Flavia Agnes & Shoba Benkatesh Ghosh eds., OUP 2012) 40 KALPANA KANNABIRAN, WOMEN AND LAW: CRITICAL FEMINIST PERSPECTIVE (Sage Publications 2014). 41 ANUPAMA ROY, GENDERED CITIZENSHIP: HISTORICAL AND CONCEPTUAL EXPLORATIONS (Orient BlackSwan 2013); GENDER JUSTICE, CITIZENSHIP AND DEVELOPMENT (Maitrayee Mukhopadhyay & Navsharan Singh eds., Zubaan and International Development Research Centre 2007). 42 Vicki C. Jackson, Feminisms and Constitutions in HE PUBLIC LAW OF GENDER: FROM THE LOCAL TO THE GLOBAL 41 (Kim Rubenstein & Katherine G. Young eds., Cambridge University Press 2016)

Second, even when frame works of constitutions have been questioned, locating the choices in constitution making process and engaging with the making process itself has been given a miss. In the feminist scholarship, the relation of state, law and women have been seen as largely divided between pre-independence and post-independence period, with little scholarship on the transit moment in between the two.43 Process of Constitution making has been engaged with only in limited manner with reference to certain specific matters and articles, mostly Uniform Civil Code,44 and prostitution. A holistic account of why the voices which were made, were made has remained underexplored.

Similarly, the debate about political participation of women has also mainly focused on 33% reservation in Panchayati Raj institution and Women‘s Reservation Bill for parliamentary participation. Political participation in the Constituent Assembly has not been a beginning point for engagement with participation of women and law making.45

Third, survey of major historical accounts of feminist movement in India in modern times shows that even here history of women and constitution making process has been limited. History too has been traced as pre and post independence era of feminist movements. Geraldine Forbes work on ‗Women in Modern India‘ remains most widely cited work on historic accounts of social reforms in modern India.46 However Forbes too has not dedicated any chapter to give a historic account of Constituent assembly debates. While her primarily focus remained the point of attainment of freedom but then she directly ends her work with the chapter ‗Women in Independent India‘ giving complete miss to ‗Women in Constituent Assembly‘. There remains a gap in narrating historic account of transit moment of constitution making process.

43 Indira Jaising, From ―Colonial‖ to ―Constitutional‖, Gender Justice and Governance in MEN‘S LAWS, WOMEN‘S LIVES: A CONSTITUTIONAL PERSPECTIVE ON RELIGION, COMMON LAW AND CULTURE IN SOUTH ASIA (Indira Jaising ed., Women Unlimited 2005) 44 FLAVIA AGNES, LAW & GENDER INEQUALITY (OUP 1999). 45 See- SHIRIN M. RAI, CAROLE SPARY, PERFORMING REPRESENTATION (OUP 2019); POSTER WOMEN – A VISUAL HISTORY OF WOMEN‘S MOVEMENT IN INDIA 66-77 (Zubaan 2006). 46 GERALDINE FORBES, WOMEN IN MODERN INDIA (CAMBRIDGE UNIVERSITY PRESS 1998)

Clearly thus there is a need for engaging with feminist potential of constitutions and asking the women‘s question in reference to process of drafting the constitution. The current work attempts to fill this crucial gap in the literature.

1.4 Research Method 1.4.1 Statement of Research Problem

Constitutions are the documents which govern various generations of citizens of a nation, including the 50% population categorized as ‗women‘. Thus the choices made (and choices rejected)47 at the founding moment while creation of the constitution directly impact the feminist potential of the basic document and consequently the lives of women for generations to come.

It thus becomes pertinent to question how did the Constituent assembly engage with the ‗women‘s question‘. Did it given enough and effective space for hearing the women? What was the gaze through which assembly looked at women? Whether it sort to ‗protect‘ them or to recognize them as equal agent in the Constituent moment? Did the women members felt belonged or were they othered? Questions also need to be asked to the founding mothers whether the they could have claimed to speak for all women?

Scholarship on Indian Constitutional history has began to question the assembly recently coming out of Austinian Habermasian model of engaging with the assembly. However these ‗women‘s question‘ are yet to be asked. Thus, the current work is an attempt to ask these questions and locate the answers in the Constituent assembly so as to unravel the assertion that Indian Constitution is a feminist document.

1.4.2 Objective

The current research was undertaken to achieve following objectives-

 To contribute to the story of making of Indian Constitution through narrating the hitherto under-appreciated story of Founding Mothers.

47 Even the proposals and choices which were not taken up, the roads which were not chosen, does tell us about what were the nature of road which was ultimately taken.

 To critically evaluate the questions of effective and adequate participation of women members in the Indian Constitution making process.  To understand the feminist vision of the assembly members and especially the founding mothers so as to contribute towards understanding of the feminist potential of the Indian Constitution. Attached with this aim is the aim of underlining the emerging theme of equality in the assembly debates.  To undertake gender audit of the Constituent Assembly Debates to evaluate whether the assembly worked as a gendered space and othered the women members.  To evaluate nature of engagement and reaction of assembly members to various concerns of women‘s participation and women‘s interest especially when such concerns were expressly raised by the members.

The choices made at the time of the foundational moment, govern my life as a woman citizen of this country. Clearly, unraveling the women‘s question of the Constitution making process has direct impact on my various rights. Thus this project remains a deeply personal project for me.

1.4.3 Hypothesis

Following hypotheses would be put to test under the current study-

1. The Indian Constituent assembly lacked in adequate and effective participation of women in the assembly. 2. The feminist vision of the assembly members was limited which failed to account for experiences and agency of women discriminated on various axis. 3. Indian Constituent Assembly was a gendered space whereby through sexist comments and gendered language women were othered. 1.4.4 Research Design

In accordance with the objectives of the current study, doctrinal qualitative research approach has been undertaken. The research is primarily based on discourse analysis of the Constituent Assembly debates. For this purpose word search for the following 12

24 words- ‗woman‘, ‗women‘, ‗sex‘, ‗girl‘, ‗gender‘, ‗sister‘, ‗mother‘ ‗daughter‘, ‗lady‘, ‗ladies‘, ‗wife‘, ‗wives‘ was made in the online record of each day of Constituent assembly debates and the same was tabulated under following heads-

Discourse by Discourse Treatment of Other Remarks Date Women about women Women

Note- The detailed table containing account of these words of each and every day of assembly debates has been attached as Annexure-1.

1.4.5 Scope of the Study

In order to undertake this endeavor first step is to work with the Constituent assembly debates. Upendra Baxi has suggested that Constitutions may be looked in three plains- C1(the constitutional text, historical inaugural inscriptions of original intention), C2 (the interpretative practices) and C3 (constitutionalism). 48

Baxi‘s C1 is of wider import then mere Constituent Assembly debates, in his articulation of C1, working of various committees, various political events of the time that influenced the process all are seen as important of the process of framing of Constitutional text. However the current work has limited itself to debates within the Constituent assembly divided into 12 sessions between 9th December 1946 and 24th January 1950. The current work has not undertaken critique of works of various committees of the assembly vis-à- vis a feminist vision. Various committees of the assembly are important bricks in building of Constitution. Without engagement with the committees, the picture of women‘s story in the constitution making process still remains incomplete. Women members like Rajkumari Amrit Kaur contributed majorly in working of the committees

48 UPENDRA BAXI, OUTLINE OF A THEORY OF PRACTICE OF INDIAN CONSTITUTIONALISM IN POLITICS AND ETHICS OF THE INDIAN CONSTITUTION 99 (Rajeev Bhargava ed. 2008).

(especially in Committee on Fundamental Rights). This is a major limitation of the current work.

The assembly debates as Vikram Raghvan points can be either silent or even misleading about certain issues with many issues frequently being settled outside assembly.49 Thus the current work primarily based on the debates shall be read subject to these limitations. However ultimately the authority of the document does not come from whether a committee decided certain question one way or the other, the authority of ultimate decision remained with the assembly itself. Thus Constituent Assembly debates absent the committee working is an important location of discovering the feminist potential of the constitution.

Another point to clarify here is that ultimately exclusive focus on assembly debates leads us to individual statements and individuals proposals presented in the assembly. The current work also has focused primarily on individual statements and individual proposals (a lot of which did not become part of the Constitutional text). One may question such an approach since how individual statements, actions and proposals can be taken to manifest anything about the assembly itself. This is a reasonable question. But individuals statement are not mere statements made by one member, they have more value than that. They are manifestations of vision of the assembly members on role and position of women in the post colonial world order. They tell us whether in the new world women were to exist in the mainstream claiming their spaces or just at margins as achievements of the new constitution which supposedly promises equality.

Besides, they have a huge symbolic value. The value of the statements also lies in the reaction they received from the members. The reaction of the assembly to these statements/proposals about women (both present in the assembly and for women as a category) tell us the adequacy of attention, the seriousness with which the women‘s question was dealt with, and what was the nature of such responses- protectionist or equality based.

1.5 Significance of the study

49 Raghvan, supra note 13.

Constitutions are document which are framed for ages to come and govern not one but many generations. The choices made about feminist potential of a Constitution at the founding moment have impact on variety of women for generations to come. Thus understanding the women who led those choices and to understand the nature of those choices have direct impact on status of women in the post constitutional new world for decades to come. It tells us where we were in the past, where we are in the present and where we want to be in the future. The current work would bring attention to this potential impact of constitutional design on women‘s rights in India.

Further it will lay ground for exercises in Gender and Comparative Constitutional law. Such comparison can provide foundation for exploring most effective institutional strategies for gender justice and inspire the feminist movements towards finding strategic intervention by women in sphere of law in general and Constitutional law in particular.

For various reasons foundational moments are considered crucial in the battle ground of constitutional interpretation.50 Indian Courts have regularly engaged with Constituent assembly debates and individual statements and proposals of the members to understand overall reflections of the assembly on a given concern.51 Thus, asking the women‘s question of the Constitution making process becomes relevant in field of constitutional interpretation.

1.6 Chapterization

On the basis of above Introduction and stated objective, I have divided my work in five chapters. The chapter two, deals with inadequate participation of women in the constituent assembly. In the 299 member Constituent assembly only 15 members were women, this led to limited participation of women in the assembly and in its various committees. Even within this 15 women member participation, effective participation of women was further reduced, with some women members remaining only ceremonial participants and some women members remaining silent. The chapter further attempts to

50 See ―Introduction‖ in BHATIA, supra note 12, at 1. 51 The latest example where individual statements have been cited is the Supreme Court judgment in B. K. Pavitra v. U.O.I. CIVIL APPEAL NO. 2368 OF 2011, 107-111.

27 outline that most women members of the assembly were elite women coming from upper caste, propertied, Hindu families, thus running the risk of failure to account for women marginalized on various counts.

This risk of failure is primarily manifested in the limited feminism of the founding mothers and the assembly. The feminism of the founding mothers in particular (and assembly in general) could not take into account the lives of subaltern women. In the name of claiming sameness of all women, it reduced the scope for participation of subaltern women in future political spaces. Secondly whenever the assembly recognized the difference of various women, it took a protectionist stand hoping to protect the ‗fallen‘ women. These risks and potential of feminism of founding moment have been enlisted in the chapter-3.

In the chapter four, I have attempted to demonstrate that the assembly was a gendered space whereby women were ‗othered‘ through use of sexist language and sexist comments in the assembly. The sexist use of language and sexist comments drew little protest from members. Further, the women members both present in the assembly and the future women citizens were invisibilized by express rejection of ‗she‘ and ‗her‘ pronouns.

Finally, chapter-5 summaries the entire discussion.

CHAPTER-2

WOMEN RULE BY HEART AND MEN RULE BY MIND?: QUESTIONS OF PARTICIPATION OF WOMEN IN THE CONSTITUENT ASSEMBLY

Swaraj would not be the gift of the British Parliament, but must spring from „the wishes of the people of India as expressed through their freely chosen representatives‟

-Gandhi, 1922

The success of Indian Constitution is believed to be attributable to it being an ‗Indian- Made‘ Constitution

1 It is argued that the home-made Indian Constitution has been more likely to be viewed with pride and less likely to be faulted by Indians, because Indians themselves have created it and have written it making it more suited to their needs.2

But the indigenous Indian Constitution, created and written by Indians themselves is marked by historic absence of voices of women in the Constitution making process. Making of the Indian Constitution is story of founding fathers absent founding mothers. The ‗Indians‘ who created and wrote the Constitution are overwhelmingly men.

2.1 Gendered Impact of Elections

The members to the assembly (other than those nominated by the Princely States) were chosen by indirect election by members of the Provincial Legislative Assemblies. The electoral process had restricted franchise based on exclusions of tax, property, and educational qualification. Only 28.5% of the adult population of the provinces could vote in the 1946 assembly elections.3 It is not an unreasonable presumption to draw that the exclusions of tax, property and educational had a gendered impact, making more women

1 GRANVILLE AUSTIN, THE INDIAN CONSTITUTION CORNERSTONE OF A NATION 2 (OUP). 2 Ibid at 2. 3 Ibid at 12.

29 disenfranchised. As per Census 1941, the female literacy rate for entire undivided India was 7.30% as opposed to literacy rate of 24.9% amongst men.4 Thus, very few women voted and even fewer reached the assembly.5

The Constituent assembly being assembled through an indirect election marked by various constraints, regularly seemed anxious to defend its democratic deficit by asserting that they speak for whole of the nation, that they are representative of whole of nation. However this anxiety towards lack of democratic credentials of the assembly does not even once reaches to realization of gendered impact of the elections and large scale disenfranchisement of women. The ‗women‘s question‘ in this regard was somehow never raised.

2.2 Were There 15 Women Members in the Assembly?

It is a known fact that out of 299 members of the assembly 15 were women. This brings the participation of women to around 5%. However even within this 5% participation, effective participation of women was further limited.

Firstly, out of the 15 women members, only 10 ever spoke in the assembly. Further, out of these 10 ‗speaking‘ women‘ only 5 spoke more than five times with the fifth women D. Velayudan speaking just 6 times.6 Few women members like Ammu Swaminathan and Vijyalakshmi Pandit spoke only once. Sarojini Naidu and Hansa Mehta spoke only twice and thrice respectively.

4 State of Literacy, CENSUS INDIA, http://censusindia.gov.in/2011-prov- results/data_files/india/Final_PPT_2011_chapter6.pdf. 5 Interestingly on 23rd November 1949, while Constitution was being adopted, Alladi Krishna Swami highlighted adult franchise as achievement of the new Constitutions arguing that assembly realized that in a country where large number of masses are illiterate and property owners are so few, tax, education and property qualification would leave large number of masses and women fold disenfranchised. However similar question was not raised in reference to elections to the Constituent assembly itself. See Constitutional Assembly Debates (Proceedings) Volume I, LOK SABHA (Nov. 23, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C23111949.html. 6 Kamala Chaudhari, Leela Ray, Malati Chowdhary, Sucheta Kripalani and Rajkumari Amrit Kaur never spoke in the assembly. However Rajkumari Amrit Kaur was member of various committees and has remained important voice in various issues. But Kamala Chaudhari, Leela Ray, Malati Chowdhary and Sucheta Kriplani were not part of any committee. Thus voices of these four women were effectively absent in the Constitution making process.

If one were to count on how many days women members spoke then also picture is rather dismal. Out of 167 days of debates, 56.28% of the days i.e. on total 94 days no woman spoke.7 Only on 2 days more than 2 women spoke.8

Secondly, presence of celebrated women‘s leaders Sarojini Naidu, Sucheta Kriplani and Vijyalakshmi Pandit were rather ceremonial. Sarojini Naidu spoke twice in the assembly- once congratulating Dr. Rajendra Prasad as President of the assembly,9 and once on Resolution on National Flag.10 Similarly, Vijaylakshmi Pandit only spoke once in the assembly, on 20th January 1947, arguing for centrality of Asia and India in post Raj world order.11 Sucheta Kriplani never spoke in the assembly, her voice was only heard on 14th August 1947 when she sang Vande Mataram and National song.12

Thirdly, there are some concerns as to whether all the 15 women members were present at any given point or not. Although most women members were part of assembly since December 1946, yet one cannot certainly say that there were 15 women members at all times in the assembly. Sarojini Naidu had unfortunately died during drafting of the Constitution, Malati Chowdhury had resigned, vacancy had also arisen on seat of Vijay Lakshmi Pandit.13 Hence the participation ratio of women would have been even below 5% on various occasions.

So effectively the assembly did not actually have 15 women. In the Central Hall of Parliament, when the assembly sat the voices of women debating were not heard too often.

7 Here speaking includes even a smallest matter like a one liner about timing of the meeting of the assembly. 8 Those two days were- 10 September 1949 and 24 November 1949. Only on 19 days that two women has spoken. 9 Constitutional Assembly Debates (Proceedings) Volume I, LOK SABHA (Dec. 11, 1946), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C11121946.html. 10 Constitutional Assembly Debates (Proceedings) Volume IV, LOK SABHA (Jul. 22, 1947), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C22071947.html. 11 Constitutional Assembly Debates (Proceedings) Volume II, LOK SABHA (Jan. 20, 1947), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C20011947.html. 12 Constitutional Assembly Debates (Proceedings) Volume V, LOK SABHA (Aug. 14, 1947), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C14081947.html. 13 Shrimati Purnima Banerji has discussed the issue of on 11 October 1949. See section-2.5.2.

Table –2.1 Date of Joining and Constituencies of Women Members14

Name of the Member Date of Signing the Constituency Register 1. Dakshayani Velayudan 9 December 1946 Madras/General 2. Ammu Swaminathan 9 December 1946 Madras/General 3. G. Durgabai 9 December 1946 Madras/General 4. Purnima Banerji 9 December 1946 United Provinces/General 5. Malati Chowdhury 9 December 1946 Orissa/General 6. Leela Ray 9 December 1946 West Bengal/General 7. Hansa Mehta 9 December 1946 Bombay/General 8. Kamla Chaudhri 9 December 1946 United Provinces/General 9. Sucheta Kriplani 9 December 1946 United Provinces/General 10 Sarojini Naidu 9 December 1946 Bihar/General 11 Vijayalakshmi Pandit 17 December 1946 United Provinces/General 12 Rajkumari Amrit Kaur 21 December 1946 Central Provinces and Berar/General 13. Renuka Ray 14 July 1947 West Bengal/General 14. Begum Aizaz Rasul 14 July 1947 United Provinces/ Muslim 15 Annie Mascarene 29 December 1948 Travancore and Cochin Union

2.3 Membership of Committees

The Constituent Assembly carried out a large portion of Constitution making through various permanent and ad-hoc committees created at different times. These committees carried out work beyond the Constituent Assembly debates and met regularly. In various committees also the representation of women was heavily inadequate.

14 The table has been taken from - Selected Speeches of Women Members of the Constituent Assembly, RAJYA SABHA SECRETARIAT 2012, https://rajyasabha.nic.in/rsnew/publication_electronic/Selected%20Women%20Speech_Final.pdf.

There were around 197 members in around 13 committees. Out of these 197 members only around 9 were women participants i.e. around 4.5%. No committee saw participation of more than 15% women with highest participation in Fundamental Rights Sub Committee of the Advisory Committee with 2 out of 12 members being women.

One of the most important committees of the assembly, the Drafting Committee had no woman member whereas another important committee, the Advisory Committee had only 3 out of 64 members who were women i.e. around 5%. The sub-committees of the Advisory Committee i.e. Sub Committee on Fundamental Rights and Sub Committee on Minorities had 16% and 3% women participation respectively.

While there was some (if not adequate) participation of women in Committees related to Part-3 of the Constitution, there were generally no women in committee relates to other matters. There were no women in States Committee, Union Constitution Committee, Ad Hoc Committee on Supreme Court, Business Committee, and Negotiating Committee.

Table 2.2- Women Membership in Various Committees of the Constituent Assembly 15

Name of The Committee Number of Name of The % of Woman Woman Member women‘s participation 1 Rules Committee 1/16 G. Durgabai 6.25% 2 Steering Committee* 1/12 G. Durgabai 3 States Committee 0/6 - 0% (Committee Appointed to negotiate with the States Negotiating Committee) 4 Advisory Committee 3/64 Hansa Mehta 4.68% Rajkumari Amrit Kaur Begum Aizaz Rasul 5 Drafting Committee 0/9 - 0% 4.1 Fundamental Rights Sub 2/12 Hansa Mehta 16.66% Committee of the Advisory Rajkumari Amrit Committee Kaur

15 A major portion of list of members have been taken from Austin‘s Appendix II and few have been directly taken from the debates. See- AUSTIN, supra note 1, at 415-419.

4.2 Minorities Sub Committee 1/29 Rajkumari Amrit 3.44% of the Advisory Committee Kaur 6 Union Constitution 0/15 - 0% Committee 7 Provincial Constitution 2/24 Hansa Mehta 8.33% Committee Rajkumari Amrit Kaur 8 Staff and Finance 1 Rajkumari Amrit Committee* Kaur 9 House Committee* 1/11 Ammu Swaminathan 10 Ad Hoc Committee on 0/5 - 0% Supreme Court 11 Business Committee 0/3 - 0% 12 Negotiating Committee 0/6 - 0% 13 Credential Committee* 0//5 - 14 Expert Committee on 0/3 - 0% Financial Provisions 15 North East Frontier 0/5 - 0% (Assam) Tribals and Excluded Areas Sub Committee16 16 Excluded and Partially N/A N/A Excluded Areas (Other than those in Assam) Sub- Committee:

Note- Credential Committee, Housing Committee, Steering Committee, Staff and Finance Committee continuously had fluctuating membership. Hence they have not been included in calculations

2.4 Participation of Dalit and Muslim Women

“We are all the sisters under the sari”17

During the freedom struggle mainstream feminist organizations like AIWC continuously asserted ‗to be speaking for all women‘ of the nation. But it was evident that they did not speak for all women. Although remaining ‗virtually unchallenged‘ till 1930‘s, the claims

16 Framing of The Sixth Schedule, KHASI HILL AUTONOMOUS DISTRICT COUNCIL WEBSITE, http://khadc.nic.in/acts_rules_regulations_bills/misc/Framing%20of%20the%206th%20SChedule.pdf. 17 GERALDINE FORBES cited in MAITRAYEE CHAUDHURI, THE INDIAN WOMEN‘S MOVEMENT REFORM AND REVIVAL 162 (Palm Leaf Publications 2011).

34 of universal sisterhood came under scathing attack post-1937 elections. The hegemonic discourse of ‗universal womanhood‘ untouched by caste, class and religion, was challenged by various other identity markers.18

Clearly, ‗women‘ is not one monolithic or homogeneous category. There are various axes of identity and consequently various axes of discrimination.19 In the assembly, a little scratching of the surface shows us the limit of the claim of 15 women members to be speaking for all women of India.

The participation of Dalit and women from minorities was very limited in the assembly. There was only one Dalit woman (D. Velayudan) and one Muslim woman (Begum Aizaz Rasul) in the assembly. And further most of the women members came from propertied families with strong social capital of family members being in education field, civil services and politics.

Table-2.3 Caste, Religion and Family Backgrounds of Women Members20

S. Name of the Caste Religion Family Background/Education No. Member

1 Purnima Banerji General Hindu Grand Daughter of Triloknath (Brahmin) Sanyal, Brahmo Leader who worked in close association with Rabindranath Tagore. Married in a lawyer‘s family of Allahabad

18 GERALDINE FORBES, THE NEW CAMBRIDGE HISTORY OF INDIA: WOMEN IN MODERN INDIA 189 (Cambridge University Press 1998). 19 See NIVEDITA MENON, SEEING LIKE A FEMINIST 149-171 (Zubaan Penguin Random House 2012). The debate on Women‘s Reservation Bill for 33% seats in parliament has also brought forth the limit of this ‗universal sisterhood‘ arguing that without adequate provision for lower caste women, the bill would only replace lower caste men with upper caste women and would mean squarely limited to lower caste women. 20 The caste of the members have been mostly taken from Austin‘s Appendix III. See- AUSTIN, supra note 1, at 433-443. Further note that information on few names is not directly available in public platforms. A deeper research about their family is required. The lack of wide scale availability of such data represents marginalized role of women members of the assembly in public imagination.

2 G. Durgabai General Hindu Studied M.A. and LL.B. from (Brahmin) Andra and Madras University W/O C.D. Deshmukh, Advocate Supreme Court of India 21 3 Rajkumari Amrit General Christian Born in Royal Family of Kaur Kapurthala. Studied at Sherborne School, United Kingdom and Oxford 4 Hansa Mehta General Hindu D/O Manubhai Mehta, Dewan (Brahmin) of Baroda Studied at Baroda University and London. W/O Jivraj Narayan Mehta, First CM of Gujrat22

5 Sarojini Naidu General( Hindu D/O Agorneth Chattopadhyay, Brahmin) Principal Nizam College, Studied at Kings‘ College, London and Cambridge23 6 V. Pandit General Hindu D/O Moti Lal Nehru (Brahmin) Honorary Fellow at Somerville College, Oxford Successful Diplomat 7 Begum Aizaz Muslim D/O Sir Zulfiqar Ali Khan, Rasul Royal Family of Malerkota and Married to Nawab Syed Aizaz Rasul, Taluqdar of Awadh24 8 D. Velayudhan Dalit Hindu B.Sc. (Chemistry) Mahararaja

21 AUSTIN, supra note 1, at 425. 22 Hansa Jivraj Mehta, CENTRE FOR LAW & POLICY RESEARCH, https://cadindia.clpr.org.in/constituent_assembly_members/hansa_jivraj_mehta. 23 Sarojini Naidu, CENTRE FOR LAW & POLICY RESEARCH, https://cadindia.clpr.org.in/constituent_assembly_members/sarojini_naidu. 24 FORBES, supra note 18, at 198-199.

(As she College, Ernakulam25 asserted in the assembly) 9 Ammu Swaminathan 26 10 Annie Mascarene Latin D/O Gabriel Mascarene a Catholic government official of the Travancore state. M.A.,LL.B. from H.H. Maharaja College of Arts and Law27 11 Sucheta Kriplani General Hindu D/O S.N. Mazumdar, Officer in Punjab Medical Services, a Brahmo Family W/O Acharya Kriplani28 12 Renuka Ray General Hindu D/O Shre Satish Chandra Mukherjee, an ICS officer Studied at Calcutta and London School of Economics 29 13 Malati Chowdhury General Hindu Studied at Shanti Niketan Married to Nabakrushna Chowdhari, Chief Minister of Odisha 30 14 Leela Ray 31 General Hindu 15 Kamla Chaudhri Daughter of late Rai

25 Ishita Sengupta, Dakshayani Velayudan The first and the only women in the constituent assembly, THE INDIAN EXPRESS (Jan. 19, 2018), https://indianexpress.com/article/gender/dakshayani-velayudhan-the- first-and-only-dalit-woman-in-the-constituent-assembly-5030932/, Meera Velayudan, Remembering Dakshayani – A Remarkable Dalit Life Indian Express, THE INDIAN EXPRESS (Apr. 28, 2019), https://indianexpress.com/article/opinion/columns/history-headline- remembering-dakshayani-a-remarkable-dalit-life-5698513. We still know very little of Dakshayani and her life. 26 There is no easily accessible information available about Ammu Swaminathan. 27 First Lok Sabha Member‟s Profile, LOK SABHA, http://164.100.47.194/loksabha/writereaddata/biodata_1_12/837.htm. 28 FORBES, supra note 18, at 207-208. 29 Third Lok Sabha Member‟s Profile, LOK SABHA, http://loksabhaph.nic.in/writereaddata/biodata_1_12/1335.htm. 30 Smt. Malati Devi Choudhuri, JAMNALAL BAJAJ FOUNDATION, http://www.jamnalalbajajfoundation.org/Media/pdf/JBA_1988_Bio_Malati_Choudhuri.pdf. 31 No public information available about her.

Manmohan Dayal, Deputy Collector; at Lucknow Studied at Punjab University 32 Married to Dr. J. M. Chaudhuri,

Constitutions are generally called nationalistic projects of elite men, a better way would be to argue that Constitutions are nationalistic projects of elite men and elite women. Just like mainstream women‘s organizations during freedom movement, the representation of women members in the assembly was ‗too Hindu, too upper class, and too urban elitist‘ to adequately represent all Indian women.33 The cracks of universal womanhood are also visible in protectionist manner with which the elite woman dealt with the questions of prostitution whereby prostitution was an evil and the prostitutes were required to be ‗rescued‘ from it.34

2.5 Concerns of Lack of Participation of Women in the Constituent Assembly- Two Instances

The Constituent Assembly was not completely aloof to questions of participation and representation. On two occasions, concerns were raised as to participation of women members in the assembly.

2.5.1 Jaipal Singh‟s Questioning on Membership of Advisory Committee

Right in the initial phase of the working of constituent assembly concern on lack of inclusiveness of women was pointed out. On 24th January 1947, during elections to the Advisory Committee, one member Jaipal Singh questioned the lack of Tribal women in the Advisory Committee. There was not a single tribal woman in the committee.

He aimed at exposing (in his own words) limited presence of tribal people. Citing 1941 Census Data, he argued that 254 lakh tribal people of the country have been provided

32 Third Lok Sabha Member‟s Profile, LOK SABHA, http://164.100.60.131/loksabha1/writereaddata/biodata_1_12/1452.htm. 33 FORBES, supra note 18, at 189. 34 See Section 3.4.1.

38 very few seats in the Advisory committee. There are no Bhils, no Orans in the committee. Questioning that it has not even occurred to those responsible for selection in the committee, that tribal people have not been adequately represented, he points out that there are no tribal women in the committee.

While neither does he move an amendment nor does he press for his demand, but Jaipal Singh‘s intervention does point out awareness about questions of participation in the assembly. Further, Advisory Committee was one of the most important committees of the assembly having a huge impact on Constitutional choices. The questioning of inclusivity credentials of the as important committee as Advisory committee raises serious questions about professed ‗Indianess‘ of the Constitution. 35

2.5.2 Purnima Banerji‟s Proposal

While the women members of the assembly rejected any kind of reservation for women in the electoral process, but the concern of participation of women was raised in a limited sense in the assembly by Purnima Banerji at one occasion.

On 11th October 1949, she proposed that the casual vacancies arising due to vacating of seats by women members in provincial parliament shall be filled by women members only under Article 312F of the DC (repealed provision Ar. 388 of the current Constitution).

She furthered two arguments in support of her proposal- Firstly, that since seats vacated by Sikh and Muslim members are filled by representative of the communities themselves, the same principle can be extended to women. Secondly, that since the state is no more merely a police state and it has responsibility of furthering social functions of education and health, role of women in politics has become indispensible.

35 Constitutional Assembly Debates (Proceedings) Volume II, LOK SABHA (Jan. 24, 1947), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C24011947.html.

However, H. V. Kamath almost echoing Aristotle36 questions whether women are actually capable of handling matters of governance and administration since women is ruled more by heart than head whereas men rules by head. He says-

“…. (in affairs of governance)… where we have to be cold and calculating in dealing with various kinds of men, women would find it rather awkward and difficult to deal with such persons …….the head may not play the part that it must play in the affairs of government. If the heart were to rule and the head to take a secondary place then it is felt by many thinking men, and thinking women too, that the affairs of government might go somewhat awry, might not fare as well as we might want them to be.”37

Although Dr. Ambedkar, did agree with her argument, he left the question of retaining seats for women to ad hoc arrangement that President in his rule making power should keep in mind that certain number of women are brought in. Ultimately she withdrew the amendment with leave of the house.

Banerji‘s spoke shyly about her proposal, acknowledging that she would be opening herself to ridicule for her proposal. The manner of introduction of the proposal and the reaction it received from the members speaks volumes about the little seriousness given to question of women‘s participation in the assembly. 38 While Ambedkar accepted the idea of women‘s participation in the assembly, Kamath indulged in sexist rhetoric in his response.

Different strands of feminism have emphasized upon different arguments in favor of increased participation of women in political institutions. Anne Phillips has identified four different kinds of such arguments which include- first, women bring different skills in politics and provide role models for future generations; second, it helps in the representation of particular interests of women in state policy; third, women appeal to

36 Aristotle famously wrote in his The Politics, “For the male is more fitted to rule than the female unless the conditions are quite contrary to nature” as cited in HILAIRE BARNETT, INTRODUCTION TO FEMINIST JURISPRUDENCE 57 (Cavendish Publishing Limited). 37 While Kamath dismissively accepted that house should accept the proposition for more participation of women but he objected to Banerji‘s assertion that Sarojini Naidu‘s seat cannot be filled even by men. 38Constitutional Assembly Debates (Proceedings) - Volume X, LOK SABHA (Oct. 11, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C11101949.html .

40 justice between sexes; and fourth, it revitalizes democracy by bridging the gap between representation and participation‘.39 But this remains certain that there is a consensus amongst different feminist approaches on need for greater participation for women in political decision making since overwhelmingly it has been demonstrated that participation of women leads to better guaranteeing of interests of women.

Unfortunately, Indian Constituent Assembly seems to be heavily lacking in ensuring adequate participation of women. The election that led to assembling of the constituent assembly must have had heavily disfranchised women, but this was never really questioned in the assembly. Even those who did reach the assembly, not all participated effectively. Thus the assembly was essentially a ‗man‘s club‘ with voices of woman only emerging irregularly and infrequently. One may question whether this lack of participation resulted in a long range of demands by AIWC which included right to leisure and complete re-imagination of marriage, never being discussed in the assembly.40

Further, one wonders about assertion of constitution being a feminist document when a women member of the assembly feels shy in introducing a proposal for ensuring filling of seats vacated by women with women. Her confession that she would be opening herself to ridicule with her proposal for increased participation for women raises doubts as to seriousness of the constituent assembly on equal participation of women in the constitution making process. In fact the sexist reply of H. V. Kamath, goes well beyond the immediate concerns of participation of women in the assembly, it rather constructs women in general as emotional beings thinking from heart, as someone who are fundamentally unfit for political positions. When a leading member of the assembly like H. V. Kamath gives such a response to concerns of women‘s participation a heavy doubt is placed on feminist vision of the assembly.

39 SHIRIN M. RAI, CAROLE SPARY, PERFORMING REPRESENTATION 17 (OUP 2019). 40 See- 16th ALL INDIA WOMEN‘S CONFERENCE, 1942.

CHAPTER-3

LIMITED FEMINIST VISION OF THE CONSTITUENT ASSEMBLY: A PRIMA FACIE ACCOUNT OF EMERGING THEMES

While there can be certain agreement on what would not be a feminist constitution, there cannot be a single answer to the question of what would be a feminist constitution

1 The way feminism is not one monolithic understanding, the same way there is not ‗one‘ answer among feminists of what gender equality looks like, what is its relationship to justice, and how to get there, from whatever here is.‖2 Clearly thus when Constitutions are built, the founders make choices on feminist potential of the Constitution, whether knowingly or unknowingly.

Thus, whether the founders envisaged a more formal or a substantive equality,3 whether they called for formal ban on discrimination based on sex or whether they called for constitutional prohibition on patriarchy,4 what were the issues the women members of the

1 Vicki C. Jackson, Feminisms and Constitutions in HE PUBLIC LAW OF GENDER: FROM THE LOCAL TO THE GLOBAL 41,44 (Kim Rubenstein & Katherine G. Young eds., Cambridge University Press 2016). 2 Ibid. 3 In the formal equality one, it is argued that, since women are same as men, thus the rule of ‗gender neutrality‘ and ‗the single standard‘ shall be applicable. The alternate is called the double standard, the special benefit rule which is applicable if equality is understood in substantial sense. Formal equality (or Aristotelian equality) is marked by assertion of sameness i.e. the same must be treated as the same, and that difference justifies the differential treatment. On the other hand substantive understanding argues that inequality is not predicated on sameness or vitiated by difference but it is a practice of social subordination, of second class status, of ranking as inferior or historical hierarchy. Substantive inequality takes into account structural inequalities against women and seeks to eliminate inequalities by positive measures. See- CATHARINE A. MACKINNON, ARE WOMEN HUMAN AND OTHER INTERNATIONAL DIALOGUES 71-76 (Harvard University Press 2007); Parmanand Sinha in BRENDA COSSMAN & RATNA KAPUR, SUBVERSIVE SITES: FEMINIST ENGAGEMENT WITH LAW IN INDIA 176 (Sage Publication 1996). 4 Banning patriarchy is much broader than anti discrimination provisions. Although there is no Constitution in the world that bans patriarchy. It would have huge impact on personal laws which have been source of much Constitutional litigation in India. See- Jackson, supra note 1, at 53. For example- One of the members of Constituent Assembly Rev. Jerome D‘Souza wanted state to specifically recognize sanctity and unity of family institution, and encourage institution of marriage. If such a proposal would have been specifically recognized in the Constitution, it would have had direct implications on rights of women See- Rev. Jerome D‘Souza Constitutional Assembly Proceedings –

42 assembly envisaged to be feminist issues requiring their intervention, all these questions are required to be asked to assert the feminism and feminist potential of the constitution. 5

In the current chapter I attempt to argue that feminist vision of the Constituent assembly was limited in nature. Firstly, the assembly members (led by women members, encouraged by men members) specifically rejected provision for ‗special provision‘ relating to equal political participation of the women. Women members failed to take into account implication of lack of political participation of women on various rights of women, rather they asserted that in the post Constitutional world there would be no sex consciousness and women would be able to be elected even without such specific provisions. The elite women of assembly to failed to envisage impact of their position on representation of women discriminated on various axis.

Secondly, I argue that in the world view of the assembly discrimination against women is not seen as result of historical socio-cultural hierarchies rather it is seen as result of essential biological feature of woman, essential ‗nature of woman‘‘. Protectionist measures like protecting women from working in hazardous workplaces or protecting women from working late in night are furthered as evidence of the same. The cultural feminism of a few members also hints towards essentializing women‘s biological differences.

Both the above mentioned arguments also seem to be in tune with the feminist movement during the pre-independence era which failed to produce a radical movement towards women‘s rights rather the gender discourse during the freedom movement maintained the essentially different sex roles of men and women.

Thirdly, attempt also has been made to enlist the issues and provisions where voices of women members were pre dominantly heard. The list might not be completely suggestive

Volume III LOK SABHA (May 1, 1947) and Constitutional Assembly Proceedings – Volume VII LOK SABHA (Nov. 22, 1948) http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C22111948.html 5 International Institute for Democracy and Electoral Assistance has indentified 4 ways in which the Constitutional choices impact rights and lives of women. See- Constitution Assessment For Women‟s Equality, INTERNATIONAL INSTITUTE FOR DEMOCRACY AND ELECTORAL ASSISTANCE, https://www.idea.int/sites/default/files/publications/constitution-assessment-for-womens-equality.pdf.

43 of what issues were considered women issues by women members, but it does suggest limited understanding of issues from a feminist lance in the assembly.

One may argue that Indian Constitution has recognized a huge potential for substantive equality for women in form of Ar. 15(3) which provides that state may make special provision for women and children. The article has been often described as ‗substantive recognition of women‘s unequal status in the society‘6.

But when Ar. 14 and Ar. 15 were debated in the assembly on 29th November 1948, no women member had spoken in the assembly. Conducting detailed survey of framing of Ar. 15(3) is beyond scope of the this study, however it is not clear from the debates whether the provision was envisaged in framework of substantive equality.

In fact, Prof. K.T. Shah while introducing his amendment on Ar. 15 sees the provisions as provision in ‗exception‘ to equality and further he seeks to clarify that such a special provision is not intended in any manner to diminish status of women as equal citizens. His comments present a formalistic understanding of equality. Further he argues that the provision has been brought in long-term interest of country or the race so that women can be excluded from certain dangerous occupations and certain types of work. He believes that the provision is necessary to protect them.7 Prof. K.T. Shah‘s understanding does not recognize need for special provision for woman in light of historical injustice and social hierarchy of genders, rather he represents a very essentialist understanding of difference between man and woman. He seems to argue on the basis of biological determinism that woman need to be protected from certain occupations for interest of nation. Clearly, thus in his view Ar. 15(3) was not envisaged as substantial equality provision but was rather provision for special interest of women based on their biology.

Subhash Kashyap has argued that Ar. 15(3) was treated as an ‗exception‘ to general anti- discrimination clause. 8 In fact post Constitutional history has shown a tradition of

6 MACKINNON, supra note 3, at 127. 7 Prof. K T Shah, Constitutional Assembly Proceedings – Volume VII LOK SABHA (Nov. 29,1948) http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C29111948.html 8 As cited in Sanjay Jain & Shirish Deshpande, ―Fair Sex‖ and Unfair Treatment: Some Reflections on Constitutional Design and Institutional Response with Special Reference to India, in FEMINISM IN THE

44 constitutional cases where so called special provisions are considered exception to equality rather than provisions in furtherance of equality. 9

Thus the question whether Ar. 15(3) was envisaged as a provision to dismantle hierarchy and subordination of women in the substantive sense or was it a provision for social welfare10 and exception based on biological differences remains debatable and cannot be taken on face value. This stands further true in light of the fact that with ‗women‘, ‗children‘ have also been added in Ar. 15(3).

3.1 Against Special Provision for Political Participation

One of the major sights of understanding feminism of founding mothers in particular and assembly in general, is the position of women members of the assembly against any kind of ‗special treatment‘ for political participation of women. The women members of the Constituent Assembly spoke in unanimous voice against any kind of special treatment for political participation of women.11

During the freedom struggle too women activists had steadfastly denied the idea of community of women with special needs and interests distinct from men‘s and thus requiring, special provisions.12 Hence, the stated position of women leadership during the freedom struggle remained against separate electorates and reservations at various platforms. While initially during 1930‘s, some voices did express their support for special

SUBCONTINENT AND BEYOND: CHALLENGING LAW, CHANGING LAW 199-200 (Jaya Sagade et al eds., Eastern Book Company 2014). 9 State of Madras v. Champakam Dorairajan, A.I.R. 1951 S.C. 226, M.R. Balaji v. State of Mysore A.I.R. 1963 S.C. 649. 10 See- Alladi Krishna Ayyar Constitutional Assembly Proceedings – Volume VII LOK SABHA (Dec. 6, 1948) http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C06121948.html 11 See- Hansa Mehta- Constitutional Assembly Debates (Proceedings) - Volume I, LOK SABHA (Dec. 19, 1946), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C19121946.html . See also Constitutional Assembly Debates (Proceedings) - Volume IV, LOK SABHA (Jul. 18, 1947), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C18071947.html. 12ANUPAMA ROY, GENDERED CITIZENSHIP: HISTORICAL AND CONCEPTUAL EXPLORATIONS 163 (Orient BlackSwan 2013). Renuka Ray gives account of the same in her speech on 18 July 1947, See Constitutional Assembly Debates (Proceedings) - Volume IV, LOK SABHA (Jul. 18, 1947), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C18071947.html.

45 reservation as temporary measure,13 but by 1932, under influence of Gandhi and nationalist movement, such voices were pushed into margins. The communal award of 1932 which introduced separate electorates and included provisions for reserved seats for women was resisted by Gandhi. The AIWC in December 1932 attested that no separate electorates and no award is going to separate us.14 The opposition came from Muslim women members and was ignored.15

The political culture during freedom struggle saw special treatments of any kind as a taboo, and as an attempt towards separation and against unity, thus the question of special provisions for women‘s political sphere was also seen as ‗extension of a wrong principle into women‘s sphere‘.16 It is no surprise that women members were congratulated in the assembly for not demanding any special treatment while men had failed to come up to that standard.17 Dr. B. Pattabhi Sitaramayya in fact argued that women have shown immense courage and imagination by refusing reservation and separate provisions and have shown the way to Muslims.18 Women members themselves continuously defended themselves that the women of the country do not stand for separation, and that they believe in unity of the nation.

So ‗separate treatment as against unity‘ remained the major reason for rejecting special treatment. But despite this anti-special provision environment, the need for special provisions for participation of Muslims and Dalits was still asserted by leaders of the respective communities, however women leaders did not assert for such special provision. Perhaps the reason for same is the second leg of argument advanced by women members against special provisions.

The second leg of the argument is that women members saw provision for positive measures in favor of women‘s political participation as somehow a deviation from the

13 Begum Shah Nawaz and Radhabai Subbanarayan were the members who were such voices. See- ROY, supra note 12, at 163. 14 ROY, supra note 12, at 166. 15ROY, supra note 12, at 167. 16ibid. 17 Constitutional Assembly Debates (Proceedings) - Volume IV, LOK SABHA (Jul. 18, 1947), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C18071947.html. 18 Constitutional Assembly Debates (Proceedings) - Volume XI, LOK SABHA (Nov. 25, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C25111949.html.

46 standard of equality, that somehow the provision is ‗special‘, it is ‗privilege‘ and not actually a provision in furtherance of equality.

The women members specified their opposition to any kind of reservation for women right at the beginning of Constitution making process. Hansa Mehta speaking on the Objective Resolution on 19th December 1946 shared her pride in belonging to a women‘s organization which has never asked for reserved seats, quotas or separate electorates, which has never asked for any ‗privilege‘. Rather she asserts that they had asked for social justice, economic justice and political justice.19

Similarly Renuka Ray had such abhorrence for any special provision for women‘s participation that she saw them as an „insult to our very intelligence and capacity‟. She gives example of Vijayalakshmi Pandit (who by then was a successful diplomat) and says-

“…..Vijayalakshmi Pandit has not been selected because she is a woman nor was sex made a bar to the appointment. It is her proven worth that has been responsible for her appointment to the high office of ambassador to a land…..”20

Renuka Ray‘s assertion seems to give little recognition to the fact that one‘s ability to achieve success are heavily impaired or furthered by one‘s social-economic positioning. She seems to suggest that capacities of individuals are capabilities on themselves with little relation to one‘s structural location. On another occasion also while Motion on General Principles on Constitution were being debated, Renuka Ray again asserted that women would not tolerate any kind of reservation.21

Her assertion thus directly seems to hint towards formal nature of equality. Formal equality results in prioritization of claims of those women whose social condition is already like that of a man‘s, i.e. the most privileged women. 22 This is not a mere

19See- Hansa Mehta, Constitutional Assembly Debates (Proceedings) - Volume I, LOK SABHA (Dec. 19, 1946), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C19121946.html. 20 Constitutional Assembly Debates (Proceedings) - Volume IV, LOK SABHA (Jul. 18, 1947), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C18071947.html. 21 Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Nov. 9, 1948), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C09111948.html. 22 MACKINNON, supra note 3, at 72.

47 coincidence that example of a privileged woman like Vijayalakshmi Pandit was taken to counter need for special provisions for women‘s participation. One may wonder whether Renuka Ray envisaged implication of her position on various other women discriminated along various axis.

In fact, the limit of a complete rejection of separate electorate was felt in the assembly itself on 24th January 1950, 2 days before the coming into force of the constitution. A member Shri B. Das raised the point about vacated seats and furthered his concern that United Province had sent three women instead of two, Orissa had not sent any women members and no other province had made any effort for sending women members. He further points out that women were 50% of the population, and even Prime Ministers and others had given statement in press for increasing the number of the women. He thus asks President about the situation since he had been given power to direct provincial governments and Government of India about the way in which vacated seats had to be filled. He gives the reason for intervention and says- ―Women are about 50 per cent of the population. I do not want that they should give battle at the time of the next elections on this ground. I do not want a pitched battle between Man and Woman.” 23

President replies that since the members had decided against any reserved seat for women, it was left to electorate to elect women and electorates cannot be forced to send in women only. It seems thus the potential consequences of no seat reservation policy for women were felt within the assembly itself, but despite this a radical demand for separate provisions could not be raised.24

3.2 We are not like Western Feminist

Another theme emerging from the reading of debates on separate electorate is the continuous gratefulness shown by women members towards the men members.25 Renuka

23 Constitutional Assembly Debates (Proceedings) - Volume XII, LOK SABHA (Jan. 24, 1950), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C24011950.html 24 Concern for vacated seats were already raised by Purnima Banerji. See Section 2.5.2. 25 Even other than separate electorate too women members on various occasions thanked men for their support to women‘s rights.

Ray while speaking on Model principles for Provincial Constitutions argues against separate electorates and amidst ‗hear, hear‘ asserts-

“It would be wrong to say that all the credit for our attitude goes to women. From the very start of our national awakening in this country, enlightened men have encouraged women to come forward as equal partners in the struggle for freedom and to do service for national regeneration in the different walks of life………… Sir, it is not only the inherent qualities of women but more particularly I should say the qualities of our men that is responsible for the fact that in our country, there has never been any strife between men and women.”26

This continuous gratefulness and pride in assertion that we have not created war between the sexes emerges from distinguishing Indian women from the Western Feminist who are seen as someone who ran a narrow suffragist movement (in Ray‘s own words). Thus in distinguishing themselves from western feminist, assertion seems to be that separate electorates are somehow an anti-men demand, that it somehow creates a war between the sexes. This may be because of political sensitivity of Indian nationalist movement towards issue of separate electorates and such other measures for any group. But the assertion that we are not like western feminists needs a careful evaluation as to what is considered to be ‗western feminist‘ and what then is ‗Indian feminism‘.

Prior to the assembly, the dominant discourse during the freedom movement was also marked by desire to distinguish the more strident nature of women‘s demands in the west from Indian women‘s movement. This was based on emphasis upon the spiritual superiority of Indian woman, the non-antagonistic relationship between men and women and the positive contribution of women in public life by lending it higher tone and raising women and children‘s issue. 27

26 Constitutional Assembly Debates (Proceedings) - Volume IV, LOK SABHA (Jul. 18, 1947), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C18071947.html. 27 MAITRAYEE CHAUDHURI, THE INDIAN WOMEN‘S MOVEMENT REFORM AND REVIVAL 159 (Palm Leaf Publications 2011).

Further the nationalist discourse regularly asserted the great ancient civilization from which the nation has fallen off from in the British rule. Women members too asserted the golden past when the equality of women were guaranteed.28

3.3 Biological Determinism and the Constituent Assembly

Historically, biological determinism has been one of the most important legitimizing mechanisms for women‘s oppression over the years. Biological determinism legitimizes various forms of subordination as natural and inescapable because it is based on supposedly natural and therefore unchangeable factors.29 Challenging this, feminists have marked a distinction between sex and gender. Sex is called a biological category referring to visible difference in the genitalia and related differences in procreative function whereas gender is a called a social-cultural category referring to masculine and feminine qualities society attaches to the basic biological difference.30 Thus, the famous line, that one is not born, but rather becomes a woman, is widely cited to narrate the category of ‗woman‘.31

The word gender appears only twice in the entire Constituent Assembly debates, mostly the term ‗sex‘ was used. The non-discrimination provisions were also discussed on grounds of ‗sex‘, and not ‗gender‘.32 Although the historic subjugation of women was acknowledged, it seems however that women were primarily constructed as a biological category. Perhaps this is also a reason why proposals were introduced to protect women from various occupation and late night shifts based on their biological differences.33

28 Hansa Mehta, Constitutional Assembly Debates (Proceedings) - Volume I, LOK SABHA (Dec. 19, 1946), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C19121946.html. 29 NIVEDITA MENON, SEEING LIKE A FEMINIST 60-61 (Zubaan Penguin Books 2012). 30 KAMLA BHASIN, UNDERSTANDING GENDER: GENDER BASICS 3 (Kali Publishers 2000). 31 De Beauvoir as cited in HILAIRE BARNETT, INTRODUCTION TO FEMINIST JURISPRUDENCE 15 (Cavendish Publishing Limited). 32 See- Interim Report on Fundamental Rights as discussed in assembly on 29 April 1947, Constitutional Assembly Debates (Proceedings) - Volume III, LOK SABHA (Apr. 29, 1947), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C29041947.html. 33 See Section 3.4.2.

One may wonder that even though gender term was not used but did they construct women as a socio cultural category? But traces of cultural feminism and protectionism seem to suggest otherwise.

This argument also seems to fit in the pre-constitutional history of feminist movement in India which did not create a radical brand of feminism34 and was based on gender equality without disturbing gendered social relations.35 Partha Chatterjee has argued that essential distinction between social roles of men and women in terms of material and spiritual virtues were maintained all the times during the nationalist movement.36 Sarojini Naidu also while seconding the women‘s franchise argued that Indian womand- hood would not transgress existing sex roles, that Indian womanhood would not wrench the power belonging to men and further that the men and women have separate goals and separate destinies. 37

3.3.1 Case of Cultural Feminism

Constituent Assembly members regularly asserted the equality of men and women by continuously using the term ‗men and women‘. It regularly asserted equal rights for ‗men and women‘, or equal participation and sacrifice of ‗men and women‘ in the independence of the nation, but the assembly members did envisage separate role for men and women in the society especially since instances of cultural feminism are observed in the assembly.

Cultural feminism is an essentialist understanding of difference between men and women which on the basis of biological difference male and female body attempts to reclaim the essential female values. 38 While the value of cultural feminism in feminist movement has been a debatable issue but this remains certain that cultural feminism attempts to locate difference on biological determinism. Thus, if the threads of cultural feminism can be

34 ‗Radical‘ has been used in the dictionary meaning sense of the term which implies ‗staunch‘ and does not refer to ‗Radical Feminism‘ as asserted by likes of Catherine A. Mackinnon. 35 SHIRIN M. RAI, CAROLE SPARY, PERFORMING REPRESENTATION 52 (OUP 2019). 36 See- PARTHA CHATERJJEE, THE NATION AND ITS FRAGMENTS (Princeton University Press 1993). 37 Chaudhuri, supra note 27, at 158. 38 Linda Alcoff, Cultural Feminism v. Post Structuralism: The Identity Crisis in Feminist Theory, 13 The University of Chicago Press Journal 3, 408 (1988).

51 located in the assembly debates the assertion that the members of the assembly understand the difference in terms of biological difference gets strengthened.

Here we may look at Purnima Banerji‘s proposal for filling the vacancies in the provincial parliament.39 While arguing for need of fulfilling the seat vacated by women with women only she argued that since the state is no more merely a police state and it has responsibility of furthering social functions of education and health, role of women in politics has become indispensible. 40 The attempt to assert that education and health the area where role of women would become essential seems to hint towards appreciation of ‗essential female value‘ of care giving. H.V. Kamath‘s argument against Purnima Banerji that men rule by head and women by heart, may also be seen into this light.

3.4 Protecting Our Cows and Our Mothers: Protectionism and the assembly

“You say that you want to protect the cow and want it to be included in the Fundamental Rights. Is the protection of the cow a fundamental right of a human being? Or is it the fundamental right of the cow?" I replied to them and tell them to suppose it is a question of saving your mother or protecting your mother. Whose fundamental right is it? Is it the fundamental right of the mother? No. It is my fundamental right to protect my mother, to protect my wife, my children and my country.(emphasis added)” 41

While R.V. Dhulekar‘s idea of protection of cows might not have had universal support in the assembly but the Constituent Assembly did overwhelmingly speak for protecting the ‗womenfolk‘, ‗rescuing‘ her and ‗saving her‘.

Protectionist approach to gender justice is dominant construction to gender equality in the Constituent Assembly. In the assembly, while the men spoke of protecting ‗our womenfolk‘, the women of the assembly spoke of protecting their ‗fallen sisters‘. Thus while men members brought forth proposal to protect women from the ‗work against

39 See Section 2.5.2. 40 Constitutional Assembly Debates (Proceedings) - Volume X, LOK SABHA (Oct. 11, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C11101949.html . 41Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Nov. 24, 1948), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C24111948.html.

52 their nature‘, women members spoke of saving the prostitutes ‗at the mercy of their exploiters‘.

The assertion of ‗protection‘ of women was a dominant discourse even during the freedom movement since unlike, the ‗fatherland‘ Germany, in the Indian freedom movement the nation was conceived as a woman, as the mother India.42 The image of Goddess motherland was immortalized by Abanindranath Tagore in his painting titled ‗Bharatmata‘. With the image of mother India, came the assertion that the nation is the ‗mother‘ who needs to be protected from the evil hands of the foreign rule. The British rule was an era, when our mother our country was lying despoiled, trampled and outraged before our very eyes.43

Connected with the ideal of protecting the mother nation, is the idea of protecting her daughters.44 British empire had justified its moral foundation by claiming its colonial project as project to civilize the native population and to save the brown women of the native country from the brown men. 45 In contest to this narrative of the empire the nationalists attempted and argued that the natives themselves are capable of protecting their women and thus a range of social reforms majors were introduced. 46 Thus idea of protecting our women was not new to the assembly members.

Ratna Kapur has argued that protectionism is a problematic understanding of equality. It is an essentialist understanding of gender difference which constructs women to be naturally weaker than men. 47 It accepts the traditional patriarchal construct that women are a weak biological category, they are inferior, modest and incapable of decision

42 Rai & Spary, supra note 35, at 37. 43 See Kamlapati Tiwari, Constitutional Assembly Debates (Proceedings) - Volume XI, LOK SABHA (Nov. 23, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C23111949.html. 44 In this reference it is pertinent to note Pandit Thakur Das Bhargava‘s speech on 11 August 1949. While arguing on certain citizenship provisions he questions what kind of nation we are if we cannot protect ‗our ladies‘, who are still in Pakistan and have not been recovered. Constitutional Assembly Debates (Proceedings) - Volume IX, LOK SABHA (Aug. 11, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C11081949.html. 45 Gayatri Chakravarty Spivak as cited in ROY, supra note12, at 55. The nationalist and imperialist discourse of protecting the native women gets highlighted in the controversy surrounding the book ‗Mother India‘ written by American Writer Katherine Mayo in 1927. See- Mrinalini Sinha, Gender in the Critique of Colonialism and Nationalism: Locating the Indian Women in SUMIT SARKAR & TANIKA SARKAR, WOMEN AND SOCIAL REFORM IN MODERN INDIA: A READER 211-242 (Permanent Black 2007) 46 ROY, supra note12, at 64. 47 COSSMAN & KAPUR, supra note 3,at 12.

53 making. Such so-called feminine characteristics are perceived as natural and immutable and thus, an appropriate starting place for legal regulation.48 In the name of using the law to benefit women, this understanding argues that since women are weak and subordinate; they must be protected; they must be treated differently in law.49 There is hardly any inquiry or questioning of the basis of this differentiation. There is a lack of examination of the impact of the differential treatment of women. This approach often serves to reinforce their subordinate status and stereotype their image as victims. 50

3.4.1 The Debate on Prostitution

The issue of prostitution (or rather sex work) is highly debated within the feminist discourse marked by the victim- agent dilemma i.e. when are women to be considered victims needing protection and when do women stand as active agents negotiating with power and carving out their own spaces.51 However, in the Constituent Assembly, the only discourse was of the prostitutes as ‗victims‘ who needed to be saved, rescued and protected and there was general consensus that prostitution is a social evil.

In the view of the men and the elite women of the Constituent Assembly, prostitutes were ‗women at the mercy of their exploiters‘52And thus the question of prostitution was only debated in reference to the prohibition of trafficking in human beings and begar under Ar. 23 of the Constitution.53 There were two specific proposals to amend Article 17 (Article 23 in the current Constitution) to insert provisions prohibiting prostitution specifically, although same were not moved. 54

48Ratna Kapur, Challenging The Liberal Subject Law And Gender Justice In South Asia in GENDER JUSTICE, CITIZENSHIP AND DEVELOPMENT 118-119 (Maitrayee Mukhopadhyay & Navsharan Singh eds., Zubaan and International Development Research Centre 2007). 49 Ibid. 50Kapur and Cossman as cited in SAGADE, supra note 8, at 165. 51 MENON, supra note 29,at 175. 52 Renuka Ray, Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Dec. 3, 1948), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C03121948.html. 53 Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Dec. 3, 1948), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C03121948.html. 54 B. Das and Giani Gurmukh Singh Musafir, Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Dec. 3, 1948), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C03121948.html.

Intertwined with the agenda of protection of the prostitutes, was the project of abolition of the Devadasi system. The assembly members asserted that in the name of religion, young women are devoted to immoral trafficking.55 Prof. K.T. Shah moved an amendment to Ar. 23 of the Constitution suggesting that dedication of young women to Devdasis in temples shall be specifically prohibited through Ar. 23. G. Durgabai while expressing gratitude to Prof. KT Shah on his proposal to ban the Devdasi system, argued that since specific legislation had already been passed in Madras, there was no need for a categorical provision to abolish the Devdasi system in the Constitution. However, another woman member Renuka Ray asserted that it would be better if the provision is categorically inserted in the Constitution. Ray‘s assertion had a strong message that in the new Constitutional order any kind of tolerance would not be shown towards prostitution and other such practices and thus, a categorical provision in the Constitution itself is warranted even if legislation to the same effect had already been passed in the State Assembly. 56 This proposal of K.T. Shah was adopted in the assembly, although it does not appear in the Constitution.

The question of prostitution came again before the assembly during a debate on various entries in the three lists under Schedule -7of the Constitution of India. An amendment was moved to List-III by member Dr. P.S. Deshmukh, stating that a new entry shall be made in the List reading as- ‗regulation, control and maintenance of public houses‘ or alternatively, ‗regulation and control of prostitution and regulation, control and maintenance of public houses‘. The amendment by Dr. Deshmukh drew strong criticism from the members of the house, who remained bewildered that a permit control system is being advocated for prostitution which is ‗a disgrace and shame to us‘57. Brajeshwar Prasad, supporting Dr. Deshmukh‘s amendment argued for regulation, instead of prohibition of prostitution. He argued that prostitution is as old as hills, it cannot be prohibited, it can only be regulated since the roots of this institution lie deep in human

55 KT Shah, Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Dec. 3, 1948), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C03121948.html. 56 In fact one member-T.T. Krishnamachari argued that it would be blot on fair name of India if provisions are made for such abuses in the Constitution instead of a legislation. See- Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Dec. 3, 1948), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C03121948.html 57R.K. Sidhwa, Constitutional Assembly Debates (Proceedings) - Volume IX, LOK SABHA (Sept. 3, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C03091949.html.

55 nature. He argued that the license system is a perfectly scientific system to deal with prostitution. This was the first and the only time that in the assembly ‗regulation, not prohibition‘ was argued for, and it was noted resentfully by the members. His arguments were called ‗regrettable‘58 and ‗one of the most surprising events in (my) life‘59.And thus the amendment was negated.

But even in Dr. Deshmukh‘s proposal, the concern was the prevention of the spread of the ‗evil‘ to each and every house. Even Brajeshwar Prasad, who argued for regulation, not prohibition in his strongest voice was stung by one of the concerns regarding protection of the youth of the country vis-à-vis prostitution. The assembly, thus, expressly rejected the idea of regulation of prohibition, it had to be abolished.

This abolitionist agenda is in continuation of the mainstream feminism during the freedom struggle where mainstream feminists ‗rescued‘ these prostitutes and provided them with alternative shelters.60 During the freedom struggle, the mainstream engagement with prostitution was challenged by largely two voices- on one hand, women attracted to the Marxist and Communist party took a different approach to women‘s work including prostitution,61 and on the other hand, Devdasis62/ prostitutes63 themselves resisted the reformer‘s overtures. Post-1950, even before one decade of the new Constitutional order, a prostitute named Husna Bai challenged the claim of elite women that prostitution was an unproductive work, she channelled her claim through Article 19(1)(g) presenting herself as an economic actor.64 She argued that Suppression of Immoral Traffic in Women and Girls‘ Act of 1956 (or commonly known as SITA) in its Constitutional promise of imposing a ban on the trafficking of human beings, violates her Right to Profession as a Prostitute.

58 R.K. Sidhwa, Constitutional Assembly Debates (Proceedings) - Volume IX, LOK SABHA (Sept. 3, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C03091949.html. 59 Seth Govind Das, Constitutional Assembly Debates (Proceedings) - Volume IX, LOK SABHA (Sept. 3, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C03091949.html. 60 GERALDINE FORBES, THE NEW CAMBRIDGE HISTORY OF INDIA WOMEN IN MODERN INDIA 186 (Cambridge University Press 1998). 61 Ibid. 62Amrit Srinivasan, Reform and Revival: The Devdasi and Her Dance, 20 EPW 44 (1985). 63 FORBES, supra note 60, at 186-188. 64ROHIT DE, A PEOPLE‘S CONSTITUTION: THE EVERYDAY LIFE OF LAW IN THE REPUBLIC 209 (Princeton University Press 2018).

But in the elite project of Constitution making with elite women representatives, these voices could not be heard in the Central Hall of the Constituent Assembly. The founding fathers and mothers could not approach prostitution as sex work and determine the best course of action. There was one voice that these practices were evil, that the women caged in these practices need to be saved and that the Constitution shall make no bones about prohibiting them (to borrow the phrase of Prof. K.T. Shah). Even when the idea of regulation was debated, the debate was framed in terms of moral anxiety for protecting the social fabric and controlling the ‗evil‘.

3.4.2 Protecting Our Women From Work Against Their Nature

One of the most important instances where ‗biological differentiation‘ and consequential protectionist approach towards women is visible, is the proposals related to the protection of women from work against their nature, especially in mines and factories.

On 22nd November 1948, an amendment was moved to Article 31(v) (Article 39(e) in current Constitution) by H.V. Kamath suggesting that after the word ‗age‘ or ‗strength‘ the word ‗sex‘ shall be added so that women are not forced to take up an occupation which might not be ‗suitable to the condition imposed upon them by nature‘. He argued that this provision would ensure that necessity does not force women to join certain occupations.

While Kamath did not press for the amendment keeping in mind the wishes of the women members of the house, Lakshminarayan Sahu still pressed for the amendment despite acknowledging the discomfort of some women members of the house with his proposal. He argued that the amendment must be retained so that women may be saved from exploitation. He further adds that he does not like that they should work day and night and adopt a profession that may spoil their home life‘.65

65Although the utility of the provision may be debatable but Recently the Government of India has allowed women to work in underground mines. See Ministry of Labour & Employment, Ministry of Labour Notifies Rules To Allow Employment of Women in Mines, PRESS INFORMATION BUREAU (Feb. 4, 2019, 11:43 AM), http://pib.nic.in/newsite/PrintRelease.aspx?relid=187977.

Another point to note here is that in contrast to the recommendation of a gender-neutral terminology in relation to Fundamental Rights and Freedoms with regards to the victims in need of protection, the same members supported a gender-specific terminology.66 Thus, the term ‗sex‘ in the proposal of Kamath and Sahu is not gender-neutral, it is constructed to mean women and thus stereotyping women as victims, in an almost echo of Kapur and Cossman‘s observation on protectionism and stereotyping women as victims.67

While the proposal of H.V. Kamath and Lakshminarayan Sahu were seeking a guideline in the Directive Principles of State Policy, the issue of protecting women from mines and factories, a proposal on similar lines, on Ar. 24 of the Constitution was introduced by Damodar Swarup Seth. He proposed that at the end of Article 18 it shall be added that ―nor shall woman be employed at night, in mines or industries detrimental to their health‖. He argued that –

“no protection has been provided for the fairer and softer sex, ……..it is just and desirable that the addition suggested should be made in this article so that women may also be provided with due protection and may not be employed in mines at night and in industries which are not suited to their delicate health and position in society.”68

Prof. Shibban Lal Saksena while supporting the amendment argued for the prohibition on the state to employee women after dusk and before dawn in the factories.

While it can be argued that the working women who are uneducated, unorganized and helpless in the face of social customs, do need effective measures to be taken to ensure their welfare, as Ammu Swaminathan argued in 193669 and even today the issue of employment of women in factories in hazardous mines and during late hours has seen diverse responses from feminist associations, clearly, there is feminist value in arguing

66 SAGADE, supra note 8, at 162. 67 Ibid at 164 68Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Dec. 3, 1948), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C03121948.html. 69 FORBES, supra note 60, at 175.

58 that women should not be employed in potentially hazardous jobs, and jobs involving late shifts.70

But the understanding of male members of the Constituent Assembly is far detached from these concerns. The male members of the assembly proposed these amendments with an aim to protect the ‗softer sex‘, their ‗delicate health‘ and their home life. This nature of understanding does not envisage women as equal economic actors, rather certain occupations like in the mines and factories, is considered to be against the very nature of women. And thus instead of engaging with complex questions of wages, the agency of women, and economic structures, the Law simply is used to prohibit women from working in a predominantly masculine profession so that she can be protected from difficult working conditions. Instead, she is asked to stick to a profession ‗suitable to her nature‘ through a sweeping proposal asking to prohibit employment of women in professions which are supposedly unnatural for women.

Interestingly, there were no voices of women on these provisions despite the involvement of Ammu Swaminathan and Renuka Ray with women in the mining industry during the freedom struggle.

3.5 All Issues are Women‟s Issues: What Women Members Spoke About?

The next question to understand the feminist potential of the constitution is to ask what were the issues where women members spoke during the debates.

Constitution of India ensured women voting rights without any major debate and without there being any major suffrage movement in India.71 Further a long list of rights was also provided which were to apply to ‗every men and women‘, as asserted regularly by the assembly members. In fact, Constitution was considered an emancipator document which

70Vasantha R. v. U.O.I. 2001-II L.L.J. 843 Mad.; Leela v. State of Kerala (2004) III L.L.J. 106 Ker.; Anuj Garg v. Hotel Association of India & Ors. - (2008) 3 S.C.C. 1. 71CHATTERJEE, supra note 36,at 131

was to ensure equal rights to women of this nation in such a manner that there will be no consciousness of sex left in the society after passing of the constitution. 72

However rights are neither the only way of ‗belonging‘ in the Constitutional community.73 nor are they the only provision having gendered impact on lives of women. Allocation of power between centre and state,74 Constitutional courts,75 amendment provisions, 76 writ of habeas corpus77 all have been shown to have significant gendered effect on lives of women.

Thus it is pertinent to list out the issues where voices of the women were heard the loudest and where they chose to be silent. It also takes us towards the question –what were the provisions imagined to be women‘s issues in world of view of the founding mothers.

Table 3.1- Different Parts of Constitution and Voices of Women

Part No. Name of the Part Date, Article and Name of the Speaker Women member Preamble Sarojini Naidu-11 December 1946 Hansa Mehta and D. Velayudan - 19 December 1946 Vijayalakshmi Panduit – 20 Janaury 1947 Purnima Banerji- 17 October 1949

Part I The Union and its - Territories Part II Citizenship - Part III Fundamental EQUALITY- Rights D. Velayudan Harijans to be 24 January included as Hindus for 1947 election to Advisory

72 I call this the ‗Sooraj Ka Satva Ghoda phenomenon‖. Based on a famous Hindi novel by Dr. Dharmveer Bharti the ‗Seventh Horse of the Sun‘ represents that piece of hope which would ensure a bright future. See DHARMVEER BHARTI, SOORAJ KA SATVA GHODA (47th ed. Bhartiya Gyanpeeth 2013) . See Sarojini Naidu, Constitutional Assembly Debates (Proceedings) - Volume I, LOK SABHA (Dec. 11, 1946), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C11121946.html. 73 HELEN IRVING, GENDER AND THE CONSTITUTION: EQUITY AND AGENCY IN COMPARATIVE CONSTITUTIONAL DESIGN 3 (Cambridge University Press). 74 Ibid at 65-89. 75 Ibid at 134-161. 76 JACKSON, supra note 1, at 69. 77 Dr. P. Ishwara Bhat, Constitutional Feminism, 2 SCCJ 1, 3 (2001).

committee D. Velayudan Clause-11 of Interim 1 May Report of 1947 Fundamental Rights by Advisory Committee on Right to Freedom from Begar

D. Velayudan Ar. 17 29 November 1948

LIBERTY-

G. Durgabai Ar. 22 16 September 1949 Purnima Ar. 22 15 Banerji- September 1949 15 November 1949 16 November 1949 G. Durgabai Ar. 23 3 Renuka Ray December 1948

RIGHT TO PROPERTY-

Purnima Ar. 31 10 Banerji September Renuka Ray 1949 G. Durgabbai Begum Aizaz Rasul Begum Aizaz Ar. 31 12 Rasul September Renuka Ray 1949

RIGHT TO RELIGION-

G. Durgabai Ar. 25 6 December 1948 Renuka Ray Ar. 28 7 December 1948 Purnima Religious 30 August 1947 Barerji education in Renuka Ray school

MINORITY RIGHTS

Begum Aizaz Ar. 29 8 December 1948 Rasul D. Velayudan Report of 28 August 1947 Renuka Ray Committee on Minority Rights Begum Aizaz Report of 25 May 1949 Rasul Advisory Committee on Minorities

CONSTITUTIONAL REMEDIES Ar. 32- 9th December 1948 -G. Durgabai

Part IV Directive - Principles of State of Policy, Part V The Union (Ar. 52- 151) EXECUTIVE Begum Aizaz Ar. 13 December 1948 Rasul 55

LEGISLATURE Begum Aizaz Rasul Ar. 79 3 January 1949 Renuka Ray Ar. 107 1 August 1949 G. Durgabai Ar. 84 18 May 1949 Begum Aizaz Rasul Ar. 111 20 May 1949 Begum Aizaz Rasul Report of 31 July 1947 Union Constitutio n Committee

JUDICIARY G. Durgabai Ar. 133 6 June 1949

G. Durgabai Abolition of 17 Privy September Council 1949 jurisdiction G. Durgabai On 29 July appointment 1947 of judges

PART VI The States (Ar. 152- 237) EXECUTIVE

G. Durgabai Ar. 155 31 May 1949 G. Durgabai Ar. 166 2 June 1949

LEGISLATURE Begum Aizaz Report of 17 July Rasul Principles for 1947 model provincial constitution Renuka Ray Ar. 168 6 January 1949 Begum Aizaz Ar. 170 6 January Rasul 1949 Purnima Banerji Ar. 173 2 June 1949 Purnima Banerji Ar. 189 16 June 1949 Purnima Banerji Ar. 171 30 July 1949 Purnima Banerji Ar. 171 19 August 1949

JUDICIARY

G. Durgabai Appointment of 21 July Provincial 1947 Judiciary G. Durgabai For 28 July establishment of 1947 HCs

Part VII The States in Part- -- B of the First Schedule (Ar. 238) Repealed by the

Constitution 7th Amendment Act, 1956 Part VIII The Union - Territories (Ar. 239-242) Part IX Earlier part-IX - dealing with territories in Part- D of the First Schedule repealed by the Constitution (7th Amendment) Act, 1956 Ar. 243) Part X The Scheduled and - Tribal Areas (Ar. 244) Part XI Relation between - the Union and the State (Ar. 245- 263) Part XII Finance, Property, Purnima Banerji on Ar. 276 on 9th August 1949 on Contracts and power to levy taxes by local bodies Suits (Ar. 264- 300) Part XIII Trade, Commerce - and Intercourse within the Territory of India (Ar. 301-307) Part XIV Services Under - The Union and the States Part XV Elections Annie Mascarene on Ar. 324 on 16th June 1949 against central control of provincial election Part XVI Special Provisions - Relating to Certain Classes Part XVII Official Language G. Durgabai on Hindusthani language 14 September 1949 Part Emergency Shrimati Renuka Ray on Article 354-19th on August XVIII Provisions 1949 G.Durgabai on Article 354- 20th August 1949 Part XIX Miscellaneous (Ar. - 361-367) Part XX Amendment of the -

Constitution Part XXI Temporary, Purnima Banerji on 11 October 1949 casual vacancy in Transitional and provincial legislatures Special Provisions Part XXII Short Title, - Commencement, Authoritative Text in Hindi and Repeals

Table-3.2 Different Schedules of Constitution and Voices of Women

Schedule -1 -- Schedule-2 Annie Mascarene on 12 October 1949 on second Schedule78 Schedule-3 -- Schedule-4 - Schedule-5 - Schedule-6 - Schedule-7 List-1, Entry 57A of DC- Renuka Ray-31 August 1949 List-1, Entry 70A of DC- G. Durgabai- 31 August 1949

List-2, Entry-4 of DC- Purnima Banerji- 1 September 1949

List-3, Entry-6 – 3rd September- G. Durgabai and Entry 34 of DC Purnima banerji Schedule-8

Table 3.3 Residuary Occasions Where Women Members Spoke

24 November Speech on adoption of the G. Durgabai 1949 Constitution Ammu Swaminathan Purnima Banerji 22 November Speech on adoption of the Begum Aizaz Rasul 1949 constitution Hansa Mehta 19 November Speech on adoption of Renuka Ray 1949 constitution 18 November Speech on adoption of the Annie Mascarene 1949 constitution

78 There is some lack of clarity in the records on this point as to whether she was speaking on First or second schedule.

15 October Amendment to rules of the G. Durgabai 1949 house 18 May 1949 Amendment to rules of the G. Durgabai house 17 May 1949 Motion to join common Begum Aizaz Rasul wealth 26 November Amendment to Rules of the G. Durgabai 1948 house 8 November Statement on presentation of Begum Aizaz Rasul 1948 draft constitution 8 November Statement on presentation of D. Velayudan 1948 draft constitution 9 November State on presentation of Renuka Ray 1948 draft constitution 4 November Amendment to rules of the G. Duragabai 1948 house 27 January Amendment to Rules of the G. Durgabai 1948 house 27 Jan 1948 Representation to East Begum Aizaz Rasul Punjab 14 August Representation of flag on Hansa Mehta 1947 behalf of women 22 July 1947 Flag Revolution Sarojini Naidu 18 May 1947 Separate electorates in Renuka Ray Provinces. 28 April On steering committee G. Durgabai 1947

Note-

A. Based on Shiva Rao‘s table containing article numbers in the draft constitution and corresponding date when the provision was discussed, this table has been prepared. However Rao‘s work accounts for only the debates starting from November 1948 when the assembly had began debating the draft of the Constitution.79 However based on Annex. 1, I have added the voices of women prior to debate on draft constitution too. The speeches which could effectively be incorporated in any of the themes have been added. The voices which could not be effectively put into Table-1, have been incorporated in Table-2 for the purposes of ensuring that no voice of women members go unaccounted.

79 Out of 167 days of total sittings of the assembly, major time i.e. around 114 days were spent on debating the draft Constitution. (As provided by Dr. Ambedkar in his speech on 25th Nov. 1949 in the assembly).

B. The article numbers in the table represent the Articles number in the current Constitution, and not draft constitution except in the table on schedules.

3.5.1 Some Observations about What Women Spoke

First, the tables reconfirm that not many voices were heard in the Central Hall when the assembly sat for debating the constitution. Out of 22 chapters in debates on 14 chapters no women members spoke (Around 64% of the chapters) In the remaining 8 chapters, only in 3 three chapters (Part-III, Part-V and Part-VI) participation of women members can be seen regularly. In rest of 5 chapters (out of the 8 chapters), women only spoke once or twice.

The table also confirms that assembly saw effective participation of only a few women out of the total 15 women members. Renuka Ray, Purnima Banerji, G. Durgabai, D. Velayudan and Begum Aizaz Rasul were the most regular participants in the assembly.

Second, the previous argument that the understanding of equality was limited in the assembly gets further force from that fact that no women member spoke even once during the debate on Directive Principles of the State Policy. Maternity benefit, equal pay for equal work – none saw any voices from women.

Third, citizenship provisions did not see any participation of women despite the fact that partition and violence against women in partition led to large scale migration of women in the sub-continents.

Fourth, amendment and various other provisions with potential gendered impact on lives of women did not see much participation from woman. Provisions on finances, trade and commerce, services under union did not see any participation of women.

Sixth, in debates on Part-3 most number of voices were heard on right to property, right to religion and minority rights. In fact, 10 September 1949, the day right to property was debated, was a rare day in the working of constituent assembly since 4 women members spoke that day.80 Otherwise hardly more than one woman spoke on any given day in the

80 Speaking here involves even seeking clarifications on what the previous speaker said.

67 assembly. 81 As far as equality provisions in Part-3 of the Constitution are concerned, other than D. Velayudan who made interventions on Ar. 17, no women spoke.

Seventh, some women members spoke regularly on certain provisions for example- G. Durgabai regularly spoke on provisions related to judiciary at both centre and state level.

Thus, the lists demonstrate that there was not regular participation or intervention by women in various provisions of the Constitution. It might not tell us precisely what assembly considered tobe women‘s issue, but it does however shows the limits of visions of feminism in the assembly.

81 See Section 2.2.

CHAPTER-4

CONSTITUENT ASSEMBLY: A GENDERED SPACE?

Amongst the six lobbies attached with the Central Hall of the Parliament stands one lobby, called the ‗Ladies‘ Room‘. When the women first entered the Parliament this was a busy room. While the men occupied the Central Hall for talking, and networking, this room was the ‗other space‘, filled with all the accoutrements of genteel existence for exclusive use of ladies. Today the Ladies‘ Room stands abandoned with more women, assertive women joining the parliament. Now, both women and men congregate and network in the Central Hall.

This interesting anecdote powerfully exemplifies the gendered nature of political spaces. It tells us that symbols, spaces and environment surrounding a political assembly may be gendered. The gendered nature of the environment of political assemblies also mirrors how political participation of women is actually seen at a given time. How women are addressed, how they are treated and how a sexist behavior is reacted to, speaks volumes as to whether woman were in fact considered equal colleagues or were they still the ‗others‘ struggling to belong.

This stands true of Constituent Assemblies also which are predominantly ‗men‘. In the current chapter I argue that Constituent Assembly of India was also a gendered space on the basis of linguistic analysis of the language of the Constitution and various stances of sexism in the assembly.

I demonstrate that in the assembly attempts to specifically include women in the Constitutional language were specifically rejected. Secondly, I present that gendered language was frequently used for describing constitutional provision in the assembly. And at last I enlist various instances of sexism can be found. But they drew little reaction

1SHIRIN M. RAI CAROLE SPARY, PERFORMING REPRESENTATION: WOMEN MEMBERS IN THE INDIAN PARLIAMENT 53 (OUP 2019).

69 from male members of the assembly with generally one or two woman requesting the members to exercise restraint. On the basis of these three arguments I suggest that in the construction of new Constitutional community, the women were not seen as completely belonging.

4.1 Does „God‟ Includes „Goddesses‟?

“He is the Subject, he is the absolute- she is the other.”2

Language is not merely a tool for communication, but rather it is reflective of the social hierarchies of a society in a given time. The legal language thus, is also a form of representation. It conveys privilege, priority, it tells us who is the primary subject of law, and who is the ‗other‘.3

While the rules of statutory construction and interpretation in common law countries provide for ‗he‘ and its derivatives to include ‗she‘ and it's derivative4, yet, the question of language is not limited to legal precision and formal inclusion. Feminist understanding of legal language shows that the purported neutrality of the masculine pronoun or the universality of the masculine collective has served as a cloak for the historical inconspicuousness of women.5 In fact, historically, the masculine language was not intended to be neutral at all.6 The practice of using the term ‗he‘ and claiming the interpretative inclusion of the term ‗she‘ is actually just a subtle way of visualizing only men to be the political and constitutional actors, not women.

Thus it is important to question the neutrality of the language and the consequential invisibility and the ―othering‖ of women. In the Constituent Assembly, the question of whether ‗he‘ includes ‗she‘ was discussed at various occasions and specific demands for

2SIMON DE BEAUVOIR, THE SECOND SEX 16 (Picador 1949). 3 HILAIRE BARNETT, INTRODUCTION TO FEMINIST JURISPRUDENCE 70 (Cavendish Publishing Limited). 4 Indian Penal Code, 1860 sec. 8 , General Clauses Act, 1897 sec. 13. 5 HELEN IRVING, GENDER AND CONSTITUTION: EQUITY AND AGENCY IN COMPARATIVE CONSTITUTIONAL DESIGN 42 (Cambridge University Press 2008). 6 Sandra Petersson, Locating Inequality : The Evolving Discourse on Sexist Language 32 University of British Columbia L. R. 55 (1998) as cited in ibid at 41. See also Richa Roy, Language Require an Urgent Update to Reflect Growing Female Presence in Male Sphere, Indian Express, January 27, 2016.

70 the inclusion of women in the language were raised on two occasions but in a very limited sense. The assembly believed that rules of legal construction include ‗she‘ to be a part of ‗he‘ and thus there was no need felt for specifically dealing with the question of a gender inclusive language.

4.1.1 H.J. Khandekar‟s Two Attempts

On the very second day of the Assembly meeting, a proposal was moved by Mr H.J. Khandekar for inserting the term ‗she‘ after ‗he‘ in the Clause 7 of the resolution for the appointment of a Committee on Rules of Procedure. His concerns were not specially related to adopting a gender-inclusive language rather, he moved the proposal because otherwise it would be conveyed that there are no lady members in the assembly despite their presence.7 However, the President of the assembly ruled that ‗he‘ includes ‗she‘ and thus, there isn‘t any need to insert the term ‗she‘ after ‗he‘.

A similar concern was again raised by H.J. Khandekar before the Assembly in 1948, after he deliberated over the position of the Up-Rajpramukh under Article 299 of the draft Constitution and wondered what would the term be if the post is occupied by a lady. The President of the assembly replied that the use of the word Up-Rajpramukh does not create any difficulty as far as lady members are concerned, similarly to a situation when women become chairpersons of committees and are referred to as ‗chairmen‘ of committees. 8

4.1.2 Proposals to Omit „Men and Women‟ under Ar. 39

Apart from H.J. Khandekar‘s attempts, there weren‘t any more attempts regarding the gender inclusive language during the assembly debates. Rather there was a proposal to replace the phrase ‗men and women equally‘ in clause (i) of Article 31 (Article 39 of the current Constitution) with the word ‗citizen‘.9 Naziruddin Ahmad while introducing this amendment, argued that the use of the phrase ‗men and women equally‘ is ‗unnecessary

7 Constitutional Assembly Debates (Proceedings) - Volume I, LOK SABHA (Dec. 10, 1946), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C10121946.html. 8 Constitutional Assembly Debates (Proceedings) - Volume X, LOK SABHA (Oct. 14, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C14101949.html. 9 See Naziruddin Ahmad, Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Nov. 22, 1948), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C22111948.html.

71 and redundant‘. He argued for the use of a more ‗general term‘ like ‗citizen‘ since masculine embraces feminine as per the rules of interpretation.

A similar proposal was made by Prof. K.T. Shah, right after the proposal of Naziruddin Ahmad. Prof. K.T. Shah proposed that under clause 1 of Article 39, the phrase “the citizens, men and women equally, have the right to an adequate….” shall be substituted with the phrase ―every citizen has right to an adequate…..”.

Prof. Shah‘s proposal included two amendments, first to replace the phrase ‗the citizens‘ with ‗every citizen‘ and second, to omit the words ‗men and women equally‘. He argued that ‗the citizens‘ is so collective that the distributive sense of ‗each and every citizen‘ having access to adequate means of livelihood has lost sight of. He argued that the collective sense of the term ‗the citizens‘ is misleading and reduces the provision to ‗laws of average‘.10

And his second suggestion was omission of the phrase ‗men and women equally. He argued that since the Constitution has recognized citizens as citizens irrespective of sex, caste or creed, then there cannot be any reason to specifically write that the access to livelihood shall be ensured to both ‗men and women equally‘. In his opinion, the phrase ‗men and women, equally‘ is a demonstration of patronage by men over women as if “we were conferring any special right to women”. (emphasis added)

Thus in Prof. Shah‘s amendment, the words ‗the citizen‘ had to be replaced by ‗each and every citizen‘ because ‗the citizen‘ is too collective to suggest the distributive sense of the provision but in that distributive sense there isn‘t recognition of women, she does not need to be stated separately. She can be covered in the collective. His concerns regarding the patronizing have an underlying presumption that it is the men who are writing the Constitution, it is the men who are giving the provision for women and thus there is a risk of patronizing.

10 While explaining how laws of average are misleading, he gives illustration of a women‘s hostel where on finding that out of 10 girls, a girl had ‗misconducted herself‘, an inquiry was concluded which found that every inmate of the hostel was 90% virgins and 10% pregnant.

4.1.3 Kamath‟s Proposal On „Her‟ Citizens

On 17th October 1949, an amendment was moved by H.V. Kamath to insert ‗in the name of the God‘ at the beginning of the Constitution.11 In this proposal, one more sub- proposal was included, which argued that since our country is referred as ‗motherland‘, and it has been referred as in the Objective Resolution it would be apt to write ‗her‘ instead of ‗its‘ citizens in the Preamble of the Constitution. Thus the Preamble was supposed to read as-

“In the name of the God, We, the people of India, ….. and to secure all her citizens….”

The assembly heavily criticized the proposal to begin the Constitution with ‗In the name of the God‘ and rejected the proposal. While demand was made to divide the amendment into two parts for voting, both the proposals were voted out together. The assembly did not at all debate the second leg of the amendment regarding using the pronoun ‗her‘ and rejected the proposal. If perhaps the amendment would have been divided, we would have seen the stand of assembly vis-à-vis use of language in a more detailed manner. And even perhaps, the Constitution of India would have referred to its citizens as ‗her‘ right in its Preamble.

Although the amendment was not passed, one of the members Rohini Kumar Chaudhari, who otherwise has made various sexist statements in the assembly,12argued that ―he is believer of Goddess, if an amendment has to be brought in the name of the God then it shall also be brought in the name of Goddess. God alone cannot be invoked completely ignoring the Goddess.‖ 13 His argument was met with amusement and was laughed at in the assembly with one member even suggesting that the term ‗God‘ was inclusive of ‗Goddesses‘, but Shri Chaudhari was persistent on his view. He reminded the house that

11Constitutional Assembly Debates (Proceedings) - Volume X, LOK SABHA (Oct. 17, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C17101949.html. 12 See Section 4.3. 13 Constitutional Assembly Debates (Proceedings) - Volume X, LOK SABHA (Oct. 17, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C17101949.html. See Soli J. Sorabjee, A Labour of Law, The Indian Express, February 7, 2019.

73 freedom fighters had began their struggle with singing ‗Bande Matram‘, which means innovation of Goddess.14 Thus, while ‗he‘ includes ‗she‘ and ‗men‘ include ‗women‘,15 and ‗sons‘ include ‗daughters‘16, at least one member believed that ‗God‘ does not include ‗Goddess‘ and that ‗she‘ should be invoked separately.

While none of the three proposals could see the light of day, but clearly the Constituent Assembly explicitly rejected the proposal of a gender- inclusive language, presuming language to be neutral. Rather it explicitly debated upon a scheme to render invisible the experiences of women even where the drafting committee suggested that women be specifically included.

Khandekar‘s proposal was introduced during the earliest days of the assembly. Had the proposal been accepted, the language of the Indian Constitution might have been completely different. As things stand today, Indian Constitution speaks in the language of ‗he‘, ‗his‘ and ‗him‘ with the word ‗women‘ appearing only twice in the entire original text of the Constitution.

And similarly, if Kamath‘s proposal was accepted, the constitution of India would have been addressed its citizens as ‗her‘, the psychological and symbolic value of such a language would have been very different than the current position.

4.2 Use of Gendered Language for Constitutional Provisions

“It is said that it was bad of such and such a person's mother to have got a husband. But if after that she left him it was all the worse.”17

In the previous section, we have discussed that language is both a product and producer of history and social change and of power and regression.18 Language shapes our

14 Kamath is right to argue that. The freedom struggle did refer to India as motherland, and regularly involved Goddess . See Section 3.4. 15 See Dr. P.S. Deshmukh, Constitutional Assembly Debates (Proceedings) - Volume IX, LOK SABHA (Sept. 1, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C01091949.html. 16 See Pandit Lakshmi Kanta Maitra, Constitutional Assembly Debates (Proceedings) - Volume XI, LOK SABHA (Nov. 18, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C18111949.html. 17 Pandit Thakur Das, on India‘s decision to join Common-Wealth and its impact on India‘s relation with Russia. Constitutional Assembly Debates (Proceedings) - Volume VIII, LOK SABHA (May. 17, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C17051949.html.

74 thinking. Linguistic choices of a speaker affect cognitive processes of a listener, who on the basis of the label immediately activates prejudicial information related to the label.19 Thus, when words/ phrases that stereotype the role of women are frequently used, they become a part of our mindset. Thus, the linguistic choices of a society represented through the kind of metaphors, ironies and similes it uses, speak volumes about its thinking, its mindset regarding women and warrant closer scrutiny as a window to their view of women.

In case of the Indian Constituent Assembly, members regularly used gender stereotypes to articulate their positions on various Constitutional provisions, thus a powerful centre is given in the metaphor ‗dominant mother in law‘, or that President is asked to be like ‗Caesar‘s wife‘, above suspicion or that ‗step-motherly‘ treatment should not be given to union territories, languages or even to Zamindari property.

Such use of analogies and words reinforced gender stereotypes like- that a mother is the one who is gentle, but a stepmother is the one who is evil, that a wife shall be utmost honest to her husband otherwise she needs to be condemned, she has loose character, and that a mother-in-law is the one who is mean and jealous.

Such comments also hint towards gendered nature of environment during debates especially since these prejudicial comments rarely drew any criticism from either women members or otherwise.

Following are the direct extracts of such comparisons-

4.2.1 Centre-the Dominant Mother-in-Law

On 21st November 1949 when the members were presenting final statements about various features and draw backs of the drafted Constitution, P.T. Chacko complaints about pre-dominant role given to Centre in the scheme of the Constitution and comments-

18MAITRAYEE CHAUDHARI, THE INDIAN WOMEN‘S MOVEMENT REFORM AND REVIVAL, 145 (Palm Leaf Publication 2011). 19 Micheala Menegatti & Monica Rubini, Gender Bias and Sexism in Language, OXFORD RESEARCH ENCYCLOPEDIA OF COMMUNICATION (Sept. 26, 2017), http://oxfordre.com/communication/view/10.1093/acrefore/9780190228613.001.0001/acrefore- 9780190228613-e-470.

….From that point of view (of representative of Indian State) I must say that in this Constitution the Centre is remaining supremely predominant just like a mother-in-law, who is jealous, young, widowed, mischievous and also autocratic placing all sorts of restrictions and obstructions in the way of the movements of a young married couple.20

Thus his comment reeks of a very prejudicial world view of mother in-laws who are widowed, who are jealous, and are autocratic putting restrictions on young couples.

4.2.2 President, UPSC members and Caesar‟s Wife

The phrase ‗Caesar‘s wife shall be above suspicion‘ was a common phrase used regularly to argue for integrity from various position holders like President, UPSC members etc. Following are the two examples-

………..We are all agreed that the President should be a man, who like Caesar's wife, should be above suspicion…….21

……..What is the character and what is the conduct of the existing members? Ceaser's wife must be above suspicion, but I am sorry to say that the present Commissions are not above suspicion.22

4.2.3 The Evil Step Mother

The members used the analogy of step-motherly treatment to express their displeasure over Constitutional provisions quite often. Thus step-motherly treatment to provinces,23

20 P.T. Chako, Constitutional Assembly Debates (Proceedings) - Volume XI, LOK SABHA (Nov. 21, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C21111949.html. 21 See Pandit Lakshmi Kanta Mitra, Constitutional Assembly Debates (Proceedings) - Volume IV, LOK SABHA (Jul. 24, 1947), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C24071947.html. K T shah repeats the same analogy on 27 December 1948 as evidenced in Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Dec. 27, 1948), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C27121948.html. 22See Shri S. Nagappa, Constitutional Assembly Debates (Proceedings) - Volume IX, LOK SABHA (Aug. 23, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C23081949.html. Shri Algu Rai Shastri draws a similar comparison that why King should always be suspicious of even his wife and son regarding powers of centre as seem in Constitutional Assembly Debates (Proceedings) - Volume IX, LOK SABHA (Aug. 4, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C04081949.html. 23See Naziruddin Ahmad, Constitutional Assembly Debates (Proceedings) - Volume IV, LOK SABHA (Jul. 29, 1947), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C29071947.html, Hirday Nath Kunzru, Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Nov. 17, 1948),

76 step-motherly treatment to religious education,24step-motherly treatment to Delhi,25 step- motherly treatment to provinces,26and in fact step-motherly treatment to zamindari property27 were regularly invoked to explain the perceived lack of fair treatment given to the various subjects.

These provisions construct step mothers who lack care and affection as opposed to mothers who are kind, affectionate and caring.

4.2.4 Kamath-The Married Maiden

On 15th June 1949 while debating Ar. 270 of the draft constitution, H. V. Kamath was against use of the pharse ‗Dominion of India‘ in the said provisions and argued that there is some lack of clarity of position on this regard. Mahavir Tyagi objected to arguments of Kamath since he was of the opinion that since we have joined the Commonwealth there should be any reason for avoiding the term dominion, then goes on to comment -

“….Sir, we have agreed to remain in the Commonwealth and I do not see there should be any reason to object to the word "Dominion". My honourable Friend, Mr. Kamath, wants to behave like a woman who has married a man and still insists on calling herself a maiden. Once you are in the Commonwealth, what is good of your getting away from the name "Dominion" I think, I would under these circumstances prefer to be a Dominion in right earnest…”28

Mahavir Tyagi‘s comment presents his world view of marriage and that too a rather prejudicial one.

http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C17111948.html. See also Shri Brajeshwar Prasad & Shri Sarangadhar Das, Constitutional Assembly Debates (Proceedings) - Volume X, LOK SABHA (Oct. 13, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C13101949.html. 24See Mohamed Ismail Sahib, Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Dec. 7, 1948), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C07121948.html. 25 See Deshbandhu Gupta, Constitutional Assembly Debates (Proceedings) - Volume IX, LOK SABHA (Aug. 1, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C01081949.html. 26 See Hirday Nath Kunzru, Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Nov. 17, 1948), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C17111948.html. 27 See Naziruddin Ahmad, Constitutional Assembly Debates (Proceedings) - Volume IX, LOK SABHA (Sept. 10, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C10091949.html. 28 Mahavir Tyagi, Constitutional Assembly Debates (Proceedings) - Volume VIII, LOK SABHA (Jun. 15, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C15061949.html.

4.2.5 Transferring Property, Transferring Wife

Perhaps one of the most problematic use of gendered language to explain constitutional provision came on 5th January 1949. On this day Sardar Vallabhbhai Patel introduced certain amendments to the Government of India Act, 1935, arguing his point Naziruddin Ahmad attempts to draw a distinction between transfer of ‗right to administration‘ and ‗transfer of sovereignty‘ and explains the same through example of transferring your wife to your friend for a while who maker her own wife. He says-

“….There is no mention of 'integration' in the body of the document (instrument of accession). Only the right of administration has been transferred. I submit that in administering any property which is left to your care, you cannot alter its character.……….Suppose a man in difficulty left his wife to the care of a friend; the friend transfers the wife to some other friend, converting her as the latter's own wife. This is what is going to be done.” 29

The member thus literally compared women with property. His comments drew no comments except for Vice President who calls it ‗not a very happy illustration‘.

4.2.6 Notwithstanding That You are a man, You May Describe Yourself As Woman30

On 8th September 1949, while arguing against the use of ‗Notwithstanding clause‘ in the Ar. 274 of the Draft Constitution, a member complaints that the Constitution has used the word ‗notwithstanding‘ even more than the word ‗Constitution‘ and ‗Parliament‘.31 Asserting his argument little more graphically (in his own words) the member says-

“If you will permit me, Sir, I will describe the situation a little graphically. We first of all provide, and say or declare that a certain person is a man. Then, we say, notwithstanding this declaration, you shall wear a sari and nothing but a sari.”

29 Naziruddin Ahmad, Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Jan. 5, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C05011949.html. 30 Constitutional Assembly Debates( Proceedings)- Volume IX LOK SABHA (September 8, 1949) http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C08091949.html 31 It seems that statement has been given by a member of the assembly however the account records the name of the President as the speaker and hence there is lack of clarity as to who is speaking.

To this T.T. Krishnamachari replies that there was no bar to that. However Dr. P.S. Deshmukh takes the previous argument further amidst laughs and says-

“Notwithstanding that you are a man, notwithstanding that you shall wear nothing but a sari, notwithstanding that you shall also wear a Gandhi cap, you will be at liberty to describe yourself as a woman.”

These comments hint towards a certain perception of how a women dresses, and how she dresses differently from a man. Thus perhaps a woman who does not wear a saree is not woman enough or a man who wears a saree is subject matter of laugh and ridicule.

What is important to note here is that these comments did not receive any negative reaction from the assembly members and were uttered frequently.

4.3 Treatment of Women Members : Instances of Sexism and Sexist Comments in the Assembly

In the previous section we discussed particular instances of use of gendered language to explain constitutional provisions. The section explains perceptions of assembly members in general. In this section we would discuss various instances of sexism which the women members of the assembly has to face. Prior to that we would also see how women members were addressed in the assembly. I also present certain cases where sexist arguments were given by members in furthering their view points.

4.3.1 Addressing the Women Members – „Friend‟ or „Sister‟

The assembly members regularly referred to women members as ‗sisters‘, with exception of a few members who generally referred to women member as ‗Hon‘ble friend‘. Sarojini Naidu on both her appearance was referred as ‗elder sister‘ or ‗old mother‘.

The women members were generally referred as ‗lady member‘ or in one case as ‗charming lady‘32 too. The use of addresses like sister, mother essentialises gender

32 On 26th November 1948, G. Durgabai moved an amendment for addition of few rules to the Constituent Assembly Rules, Naziruddin Ahmad referred to her as ‗charming lady‘. Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Nov. 26, 1948), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C26111948.html.

79 identities, whereby a woman is primarily identified in reference to a man. She is not seen as a person in her own right.33 They further the essentialist assumption of women not being capable of decision making and engaging in political life.

4.3.2 Confining Myself to Purely Domestic Matters!34

On 11th December 1946, i.e. the third day of meeting of the constituent assembly Sarojini Naidu spoke on historic moment which was about to begin. She spoke amidst huge acclamations and laughter. On lighter mood, she jokes that she, as a woman would confine herself to purely domestic matters. This was the first time a woman spoke in the assembly and it was marked by sexism, although amidst jokes on a lighter note. It is not very clear whether the Sarojini Naidu was being sarcastic and pulling the leg of sexism or was she ignorant to sexist nature of her joke.

4.3.3 Where is a woman who would tell her age to be 56?35

On 24th May 1949, the Constituent Assembly was debating Article 124 (Ar. 103 of DC) regarding appointment, retirement and removal of judges. Arguing that the maximum age of Supreme Court judges should be fixed in the Constitution, Mr. Rohini Kumar Chaudhary comments-

“…Further, so far as age is concerned, there seems no bar to the appointment of a female as Supreme Court Judge. I would ask you, Sir, where is the sensible woman who would declare her age as fifty-five even if she is fifty-five in order to get appointed to the Supreme Court Bench? Now even for the Kingdom of England would a women say she is fifty or sixty years old-- much less in order to continue as a High Court Judge. Not even for a Kingdom would a woman say so. Therefore it is a wrong principle to have the age prescribed…”

33Indira Jai Singh, Eliminate sexist language in courts: Indira Jaising pens open letter to CJI, BAR AND BENCH (Mar. 8, 2019), https://barandbench.com/eliminate-sexist-language-in-courts-indira-jaising-pens- open-letter-to-cji/. 34 Constitutional Assembly Debates (Proceedings) - Volume I, LOK SABHA (Dec. 11, 1946), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C11121946.html . 35 Constitutional Assembly Debates (Proceedings) - Volume VIII, LOK SABHA (Nov. 24, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C24051949.html .

Thus, Rohini Kumar Chaudhari furthered the stereotype that women prefer to hide their age, and that there is need to be secretive about older age. The debates record no reaction to his statement.

4.3.4 Like the Communists the Committee Has Sent A Woman to Fight in Front36

On 15th October 1949, G. Durgabai, the lone woman member of the Rule Making committee moved certain proposals for addition of new rules 38R and 38RR to the Constituent Assembly rules. Naziruddin Ahmad, upset with the rules argued against them and added that, “a further difficulty has been placed by the Drafting Committee on the Members in that they have selected a lady Member to propose all these difficult rules.” On being questioned by H.V. Kamath as to how was that relevant, he replies that, “the method followed by the Drafting Committee is like that of the Communists who fight with ladies at the front, so as to make it impossible for the other party to strike… The difficulty is that we cannot be hard upon her. After all some kind of gracefulness is necessary in dealing with a lady member. The fact is that the Drafting Committee have put a lady member to fight their cause.”

His comment is marked by two fold prejudices. First, that putting of lady member is shown as somehow deviation from a standard practice, somehow it is shown as something unfair. This shows that argument is essentially between the men, the war is between men, woman is not necessarily a party to it. The argument does not concern her, thus she should not be sent to fight it out. It is somehow not her war, not her concern and not her matter. Second, this is based on presumption that women have to be treated softly, they cannot be someone who can handle tough dealing.

His language did not draw much flak from the members other than Kamath and the President of the assembly who opposed him saying that the committee has not moved the amendment, but Durgabai herself has moved it in her personal capacity. Later in her response, Durgabai herself questions the comments of Ahmad and expresses her regret that male members of the house were still conscious of ‗sex business‘ though the women

36 Constitutional Assembly Debates (Proceedings) - Volume X, LOK SABHA (Oct. 15, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C15101949.html .

Members had completely forgotten it. She adds that she very much wished that there should be no longer any talk of ‗this question of men and women‘ in the assembly.

4.3.5 You are allowed to speak only because you are a lady

Naziruddin Ahmad‘s comment was clear manifestation of essentialism whereby sending a woman to fight is considered a sign of weakness i.e. ‗you could not be man enough to fight it yourself‘, you had to send a woman‘. 37 But he had also added that some kind of necessary gracefulness has to be shown in dealing with a lady member. Thus his comments also reek of what is described as ‗benevolent sexism‘.

This benevolent sexism or chivalry gets highlighted in another incident in the assembly involving the Vice-President of the assembly himself. On 29th November 1948, D. Velayudhan, the lone Dalit women member of the house speaking on Ar. 17 of the current Constitution exceeded the time allotted to her. Vice-President while allowing her to speak makes it clear that she is being allowed to speak further only because she is a lady.38

Benevolent sexism as distinguished from hostile sexism, is harder to recognize because of it essentialises supposedly positive qualities of women. In benevolent sexism women are stereotyped as weak, sensitive and delicate and hence requiring chivalry towards them.39 Thus, Naziruddin Ahmad complains about limits of arguing with G. Durgabai. Since she is a woman, certain chivalry, certain gracefulness has to be shown to her and that would limit his complete freedom in debating. The condescension below the surface of ‗being considerate, being graceful‘ cannot be missed here.

37 Rahul Gandhi says PM got a woman to defend him on Rafale, Modi calls it insult to all women, ECONOMIC TIMES (Jan.9, 2019), https://economictimes.indiatimes.com/news/politics-and-nation/rahul- gandhi-says-pm-got-a-woman-to-defend-him-on-rafale-modi-calls-it-insult-to-all- women/articleshow/67457210.cms. 38Constitutional Assembly Debates (Proceedings) - Volume VII, LOK SABHA (Nov. 29, 1948) http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C29111948.html . 39 Jacqueline Yi, The Role of Benevolent Sexism in Gender Inequality, NYU APPLIED PSYCHOLOGY OPUS https://wp.nyu.edu/steinhardt-appsych_opus/the-role-of-benevolent-sexism-in-gender-inequality/ .

4.3.6 Chivalry and Women‟s Constituency40

On 9th November 1948 when general provisions and principles governing the Constitution were discussed, the question of women‘s constituency was raised. And thus arose another incident of benevolent sexism and extremely problematic comments on women. Rohini Kumar Chaudhari, argued that there should be provision for women‘s constituency. Commenting upon the members of the Drafting Committee which according to him has a peculiar composition that none of them have any domestic relation with women and thus according to him, they have not touched upon the issue of women‘s constituency. Speaking of the members of the committee who believed that they can get seats even without any such special provision, he says that these members might believe in chivalry of men, but outside assembly such feeling is no more there. Thus he goes on to suggest-

“Sir, from my experience as a parliamentarian and a man of the world I think it would be wise to provide for a women's constituency. When a woman asks for something, as we know, it is easy to get it and give it to her; but when she does not ask for anything in particular it becomes very difficult to find out what she wants. If you give them a special constituency they can have their scramble and fight there among themselves without coming into the general constituency. Otherwise we may at times feel weak and yield in their favour and give them seats which they are not entitled to.”

Her again assembly saw prejudicial comments about women where by women were presented as someone who are indecisive, who are difficult to understand since it is difficult to understand what she wants. He argued for a women‘s constituency so that women fight amongst themselves. His concerns are not ensuring equal participation of women, rather he seems to suggest that women can give fixed constituencies where they

40 Constitutional Assembly Debates (Proceedings) - Volume VII, CONSTITUTIONAL ASSEMBLY DEBATES (Nov. 9, 1948), https://cadindia.clpr.org.in/constitution_assembly_debates/volume/7/1948-11- 09.

83 would fight amongst themselves and would not disturb the so-called general constituency. 41

Renuka Ray replies to him and reiterates that in spite of his chivalry the women of this country has rejected any demand for separate electorate. She does not however comment upon his various other assertions.

4.3.7 Protection Against Cows, Protection Against Women!

We really need protection against women because in every sphere of life they are now trying to elbow us out. In the offices, in the legislatures, in the embassies, in everything they try to elbow us out.42

Rohini Kumar Chaudhari in his final address on the Constitution, just 4 days prior to final adaption of Constitution, criticizes Constitution for having no provision for protection against cows and in the same breath adds need for protection against women. He argues that it is some progress, some achievement that the Dr. Ambedkar has not insisted upon special seats for women, but he finds the Constitution lacking for having failed to provide protection against women. He calls upon the house to unanimously accept his decision. On being questioned whether he is oppressed by women as to ask for protection from them, he explains through example of cows that if cows are allowed to live as they like, then cow would be really a source of danger and it will be necessary to protect ourselves against them. He argues that he would regret if any feeling of pushing women forward is left amongst men since “it is foolish man who give them votes, send them to legislatures and thus create troubles like troubles created in matter of the Hindu Code.”

Rohini Kumar Chaudhari‘s comments are full of various stereotypes about women. Echoing R.V. Dhulekar,43 Chaudhari very conveniently compared women to cows, characterizing them as properties. While one wanted protection for cows/women, other

41 Rohini Kumar Chaudhari made similar comments regarding special provisions for women on 19 May 1949 also. See Constitutional Assembly Debates (Proceedings) - Volume VIII, LOK SABHA (May 19, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C19051949.html 42 See Rohini Kumar Chaudhari, Constitutional Assembly Debates (Proceedings) - Volume XI, LOK SABHA (Nov. 21, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C22111949.html . 43 See Section 3.4

84 wanted protection from cows/women, but both did not hesitate in comparing women to cows.

These comments drew little response from the house with sometimes woman members requesting members to exercise restraint. Even the extremely sexist remarks by Rohini Kumar Chaudhari saw little flak with only reply coming from Hansa Mehta44 and Purnima Banerji. 45 Both of whom had to remind the assembly that women are equal partners of the new national life and its national building project. It is ironical that right before two days of the adoption of the Constitution a woman member had to remind the house that the question of women‘s concern shall not be taken with levity and lightness.

This chapter shows us the ‗boy‘s club‘ image of the assembly where most participants are men, some of whom are making sexist comments, while some others are laughing at them. In between sometimes comments do draw a negative reaction from other men but mostly the men remain silent on sexism. Women did protest such use of language once in a while, but by and large the environment of the debates seems to be gendered.

One may wonder that few members might have shown displeasure such comments and usages of language through gestures or similar other non-verbal methods which might not have been included in the records of the debates. Although the records do record general reaction of house like laughter, booing etc., but individual displeasures are not recorded. Even if one were to accept that few members would have shown their displeasure through other means, the fact that they chose not to take up a stand or did not think such comments to be important enough to deserve a protest, goes on to show that ensuring an equal, healthy and inclusive space for debate for women was perhaps not priority of the assembly.

Previously too, we have seen acceptance of shyness by a woman member who confessed that her proposal would make her open to ridicule. 46 Reading all these comments, one is

44Hansa Mehta said that if a provision on protection against women was included men would have to hide their faces before the world. 45 See Purnima Banerji, Constitutional Assembly Debates (Proceedings) - Volume XI, LOK SABHA (Nov. 24, 1949), http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C24111949.html. 46 See- Section 2.5.2.

85 left wondering how would have been experience of women members in the assembly. Was the assembly an equal and inclusive space for participation for women or was it a gendered space? The evidences seem to suggest that assembly was a gendered space indulging in ‗othering‘ whereby women were treated as the other, not the mainstream part but the other part which raises voice in between but otherwise is made subject of sexism and sexist comments. She was further othered and invisibilized by men centric use of language.

CONCLUSION

As we come to end of this discussion, I go back to where we began. We began with citing two starkly opposite understandings of feminism vis-à-vis Indian Constitution, one asserted by a Supreme Court judge in 2018 and one asserted by a woman member of Constituent Assembly in 1927. The two statements go to the heart of diversity of feminist choices which the founding fathers and mothers make at the time of formation of a Constitution.

Indian constitution too made these choices. These choices of feminist potential of the Indian Constitution continue to govern the lives of ordinary Indian women till today. Thus when the Indian parliament, 70 years after the independence, still has around only 11% women parliamentarians,

1 then one does have to the unravel the rejection of special provisions for women‘s political participation in the constituent assembly, or when sex workers still struggle to be heard as economic actors, one may have to look back and unravel the protectionist stand of the constituent assembly. It becomes thus relevant to ask, ‗Is the Indian Constitution a feminist document?‘, ‗Was it envisaged as such by the founding fathers and mothers?‘ In our case, when the aim of the Constitution itself is transformative so as to break the old hierarchies and create an equal society, questioning its feminist potential in breaking the old hierarchies of patriarchy becomes further pertinent.

This brings me to my three hypotheses which I made at the beginning of this work.

My first assertion was that the Indian Constituent assembly lacked in adequate and effective participation of women in the assembly. To unravel the feminist potential of the constituent assembly the first question to ask is whether women were adequately present in the assembly. Different visions of feminism have given different reasons for demanding better participation of women in the law making bodies. But all of them have agreed that presence of women law makers increases the probability of better protection

1Profile of the 16th Lok Sabha, PRS INDIA https://www.prsindia.org/media/media-updates/profile-of-the- 16th-lok-sabha

87 of interest of women. Thus whether women were present or not in the assembly has a close connection with whether the resultant document, the constitution is feminist or not.

Unfortunately, the Indian Constituent assembly created on the basis of disenfranchisement based on tax, property and education, had skewed gender participation. Often it is stated that there were 15 women members in the assembly. While factually that may be correct but as far as effective participation is concerned, there were in effect not even 15 women members in the assembly. Some never spoke, some left the assembly and some only spoke ceremonially. There were effectively not more than 7 women members in the assembly. This lack of participation of women perhaps is the reason that a range of demands of AIWC were never even brought and discussed in the assembly.

When one further asks who these women members were, then one realizes that even these 15 women could not have claimed to present all women of India. The women members of the assembly were mostly women from propertied upper caste Hindu families. The participation of Dalit women, Muslim was further very less. This is perhaps the reason that prostitution could never be imagined as issue of economic participation, and only ‗social evil‘ was the construction of prostitution. This might also be the reason why the question of political participation for women was not imagined as question of political participation of last women standing in the row.

Further, it is not as if that the concerns of lack of participation were not raised in the assembly. Jaipal Singh pointed out the lack of tribal woman in Advisory committee. Purnima Banerji specifically proposed that seats vacated by women members in the provinces should be filled by women members. In reply, she received sexism and rejection of her proposal. She in fact confesses that she introduced the proposal shyly with fear of opening herself to ridicule. This entire episode speaks volumes about the lack of seriousness with which question of women‘s participation was seen in the assembly.

Thus, my first hypothesis stands valid.

Now, before going to the second assertion, I would come to my third hypothesis which was- Indian Constituent Assembly was a gendered space whereby through sexist comments and gendered language women were othered.

Language is sum-product of power structures, culture and social hierarchies in a society at any given time. It is thus a strong tool for inclusion and exclusion, it can make the women members feel belonged in the constitutional community or can other them.

In my analysis, the use of language in the debates had huge potential for othering women members. Firstly, the interventions for gender inclusive language were specifically rejected by the assembly on the basis of its assertion that ‗he‘ includes ‗she‘. Rather attempt was made in the opposite direction to remove the words ‗every men and women‘ and replace it with ‗citizens‘ under Ar. 39 of the Constitution. Assertion that use of the phrase ‗every man and woman‘ would seem as if men are being patronizing towards women, has an implicit presumption that ‗men‘ are the ones who are drafting the constitution and hence use of the phrase ‗every man and woman‘ by them would seem patronizing.

If H.V. Kamath‘s proposal for reading citizens as ‗her‘ and not ‗it‘ in the Preamble of the constitution, the possible symbolic impact would be very different from the current usages of language in the Preamble.

Secondly, the assembly regularly used various gendered stereotypes to explain their arguments on various constitutional provisions. Thus stereotypes relating to step mothers, mother in-law, wives were regularly furthered in the assembly. These comments not only show us the gendered nature of Constituent Assembly, it also tells us the world view of members about women in general since listeners and speakers both jointly associate some prejudicial information to the label given and further gender role.

Thirdly, the women members present in the assembly had to face sexism on several occasions. However neither the gendered use of language nor sexism against women members drew reactions from members. Rather mostly women themselves had to point sexism out.

This paints the picture of assembly as a ‗man‘s club‘ whereby at a predominantly male membership group, sexist comments are being made, sometimes amidst laughter, and rarely drawing any negative reaction from male members. Purnima Banerji felt shy and felt that she would be opening herself to ridicule while arguing for filling of seats vacated by women with women, Hansa Mehta and Purnima Banerji had to remind the house that women‘s question shall be taken seriously just prior to two days of adoption of Constitution. In such a situation the environment of the assembly was gendered, whereby women were constantly othered and made to struggle for belongingness.

Thus I assert validness of my third hypothesis.

Finally coming to my second hypothesis that the feminist vision of the assembly members was limited which failed to account for experiences and agency of women discriminated on various axis.

Although on the basis of assembly debates only a prima facie account can be given of feminist vision of the assembly but even the limited inquiry makes my third assertion to be true.

The mainstream Indian feminist movement during the independence movement had failed to create a radical approach to gender justice. The mainstream women‘s movement did not aim at drastically disturbing the gender roles, rather it was a cultural feminist approach whereby essential qualities of female sex were asserted.

The British empire had attempted to build moral legitimacy of its rule through the narrative that the Empire is on civilizing project whereby it would protect the Brown women from oppressive Brown men. The mainstream women‘s movement was closely working with freedom movement and many women leaders were part of freedom movement, thus women‘s organizations had to continuously defend that they stand for unity of the nation, that they cannot be the ones creating source for moral legitimacy of the empire. Two simultaneous assertions were furthered by women‘s organizations for countering the colonial narrative one, was of the so-called unique ‗Indian womanhood‘, spiritually superior and distinct from the western feminists and second, was the assertion that golden ancient era of India where women were respected and were free, would be

90 guiding light for ensuring equality of women. These themes are also visible in the Constituent assembly, potentially limiting the feminist visions of the Constitution.

The assembly constructed woman mostly as biologically distinct category than men, thus attempts were made to restrict employment of woman post dusk and in hazardous occupations. This biological determinism allowed for looking at women in post colonial world with ‗protectionist gaze‘ without recognizing agency of women themselves. Purnima Banerji‘s understanding of need of more women in the post colonial state also emerges from this essentialization whereby works of health and education, generally associated with care giving nature of females, are considered works for women.

However the limits of feminist vision at the founding moment are most visible in rejection of special provisions for political participation. The women members took a very formalistic understanding of equality in the post constitutional world and failed to address structural inequalities working against women. This severely limited the feminist potential of the constitution in creating equal political space for women marginalized on various axis in post colonial world.

Protectionism was also the approach taken against prostitution. The elite members of the assembly failed to construct prostitution as economical work. Despite resistance to the protectionist measures by prostitutes and Devdasis during the colonial rule, the assembly completely failed to engage with questions of sex work in more nuanced manner. It only had one approach rescue, save and rehabilitate. This also limts the feminist vision of the founding moment.

So is the Constitution a feminist document? This cannot be answered in a straight jacket manner. The question is multi-facet but themes emerging from the discourse on women in the Constituent Assembly as discussed in the current work suggest that at the founding moment the feminism of Indian constitution was very limited.

BIBLIOGRAPHY

Constituent Assembly Debates

 Constitutional Assembly Debates (Proceedings) Volume I-XII, LOK SABHA http://164.100.47.194/loksabha/cadebatefiles/cadebates.html

Books

 ANUPAMA ROY, GENDERED CITIZENSHIP: HISTORICAL AND CONCEPTUAL EXPLORATIONS (Orient BlackSwan 2013).  BRENDA COSSMAN & RATNA KAPUR, SUBVERSIVE SITES: FEMINIST ENGAGEMENT WITH LAW IN INDIA (Sage Publication 1996).  CATHARINE A. MACKINNON, ARE WOMEN HUMAN AND OTHER INTERNATIONAL DIALOGUES (Harvard University Press 2007).  CATHRINE MACKINNON, GENDER IN CONSTITUTIONAL LAW (Edward Elgar Publishing 2018).  CONSTITUENT ASSEMBLIES (John Ester et al ed., Cambridge University Press 2018).  DEMOCRACY AND DIFFERENCE: CONTESTING THE BOUNDARIES OF THE POLITICAL (Seyla Benhabib ed. Princeton University Press 1996).  DHARMVEER BHARTI, SOORAJ KA SATVA GHODA (47th edn. Bhartiya Gyanpeeth 2013).  FEMINISM AND THE SUBCONTINENT AND BEYOND: CHALLENGING LAWS, CHANGING LAWS (Jaya Sagade et al eds., 1st ed. EBC 2014).  FLAVIA AGNES, FAMILY LAW AND CONSTITUTIONAL CLAIMS (OUP 2011).  FLAVIA AGNES, LAW & GENDER INEQUALITY( OUP 1999).  GAUTAM BHATIA, OFFENCE, SHOCK OR DISTURB (OUP 2016).  GENDER JUSTICE, CITIZENSHIP AND DEVELOPMENT (Maitrayee Mukhopadhyay & Navsharan Singh eds., Zubaan and International Development Research Centre 2007).

 GERALDINE FORBES, THE NEW CAMBRIDGE HISTORY OF INDIA: WOMEN IN MODERN INDIA (Cambridge University Press 1998)  GRANVILLE AUSTIN, THE INDIAN CONSTITUTION CORNERSTONE OF A NATION (OUP).  HELEN IRVING, GENDER AND THE CONSTITUTION EQUITY AND AGENCY IN COMPARATIVE CONSTITUTIONAL DESIGN (Cambridge University Press).  HILAIRE BARNETT, INTRODUCTION TO FEMINIST JURISPRUDENCE (Cavendish Publishing Limited).  KALPANA KANNABIRAN, WOMEN AND LAW: CRITICAL FEMINIST PERSPECTIVE (Sage Publications 2014).  KAMLA BHASIN, UNDERSTANDING GENDER: GENDER BASICS 3 (Kali Publishers 2000).  MADHU KISHWAR, OFF THE BEATEN TRACK: RETHINKING GENDER JUSTICE FOR INDIAN WOMEN (OUP 1999).  MAITRAYEE CHAUDHURI, THE INDIAN WOMEN‘S MOVEMENT REFORM AND REVIVAL (Palm Leaf Publications 2011).  MEN‘S LAWS, WOMEN‘S LIVES: A CONSTITUTIONAL PERSPECTIVE ON RELIGION, COMMON LAW AND CULTURE IN SOUTH ASIA (Indira Jaising ed., Women Unlimited 2005).  NEGOTIATING SPACES: LEGAL DOMAINS, GENDER CONCERNS AND COMMUNITY CONCERNS (Flavia Agnes & Shoba Benkatesh Ghosh eds., OUP 2012).  NIRAJA GOPAL JAYAL, CITIZENSHIP AND ITS DISCONTENT: AN INDIAN HISTORY (Harvard University Press 2013).  NIRAJA GOPAL. JAYAL CITIZENSHIP AND ITS DISCONTENT: AN INDIAN HISTORY (Harvard University Press 2013).  NIVEDITA MENON, SEEING LIKE A FEMINIST, (Zubaan Penguin Random House 2012).  PARTHA CHATERJJEE, THE NATION AND ITS FRAGMENTS (Princeton University Press 1993).

 PERFORMING REPRESENTATION: WOMEN MEMBERS IN THE INDIAN PARLIAMENT (Shirin M. Rai & Carole Spray eds., OUP 2019).  POSTER WOMEN – A VISUAL HISTORY OF WOMEN‘S MOVEMENT IN INDIA (Zubaan 2006).  PRATIKSHA BAXI, PUBLIC SECRETS OF THE LAW: RAPE TRIALS IN INDIA (2014).  RAKSHANDA JALIL , KAIFIYAT (Penguin Random House 2019).  RATNA KAPUR, SUBVERSIVE SITES: FEMINIST ENGAGEMENT WITH LAW IN INDIA (Sage Publication 1996).  ROCHANA BAJPAI, DEBATING DIFFERENCE: GROUP RIGHTS AND LIBERAL DEMOCRACY IN INDIA (OUP 2012).  ROHIT DE, A PEOPLE‘S CONSTITUTION: EVERYDAY LIFE OF LAW IN THE INDIAN REPUBLIC (Princeton University Press 2018).  SIMON DE BEAUVOIR, THE SECOND SEX (Picador 1949).  SUMIT SARKER & TANIKA SARKER, WOMEN AND SOCIAL REFORM IN MODERN INDIA: A READER (Permanent Black 2007).  SUSHILA RAMASWAMY, WOMEN IN POLITICAL THOUGHT: THE QUEST FOR GENDER EQUALITY AND BEYOND (Orient BlackSwan 2018).  THE ASHGATE RESEARCH COMPANION TO FEMINIST LEGAL THEORY (Margaret Davies & Vanessa E. Munro eds., Ashgate 2013).  UDIT BHATIA, THE INDIAN CONSTITUENT ASSEMBLY: DELIBERATIONS ON DEMOCRACY (Taylor Francis Group 2018).  POLITICS AND ETHICS OF THE INDIAN CONSTITUTION (Rajeev Bhargava ed. 2008).  THE PUBLIC LAW OF GENDER: FROM THE LOCAL TO THE GLOBAL (Kim Rubenstein & Katherine G. Young eds., Cambridge University Press 2016)  ZOYA HASAN, POLITICAL OF INCLUSION: CASTE, MINORITIES AND AFFIRMATIVE ACTION (OUP 2009).

Cases

 Anuj Garg v. Hotel Association of India & Ors. (2008) 3 S.C.C. 1.

 B. K. Pavitra v. U.O.I. CIVIL APPEAL NO. 2368 OF 2011.  Leela v. State of Kerala (2004) III L.L.J. 106 Ker.  M.R. Balaji v. State of Mysore A.I.R. 1963 S.C. 649.  State of Madras v. Champakam Dorairajan, A.I.R. 1951 S.C. 226.  Vasantha R. v. U.O.I. 2001-II L.L.J. 843 Mad.

Statutes

 General Clauses Act, 1897.  Indian Penal Code, 1860.

Journals

 Aditya Nigam, A Text Without Author, 39 EPW 21 (2004).  Amrit Srinivasan, Reform and Revival: The Devdasi and Her Dance, 20 EPW 44 (1985).  Arvind Elangovan, The Making of the Indian Constitution: A Care for Non- Nationalist Approach, 12 History Compass 1 (2014).  Dr. P. Ishwara Bhat, Constitutional Feminism, 2 SCCJ 1 (2001).  Kanika Gauba, Forgetting Partition, Constitutional Amnesia and Nationalism, 51 EPW 39 (2016).  Linda Alcoff, Cultural Feminism v. Post Structuralism: The Identity Crisis in Feminist Theory, 13 The University of Chicago Press Journal 3 408 (1988).  Sandra Petersson, Locating Inequality: The Evolving Discourse on Sexist Language 32 University of British Columbia L. R. 55 (1998).  Shefali Jha, Secularism in the Constituent Assembly Debates, 1946-1950, 37 EPW 30 (2002).  Upendra Baxi, “The Little Done, The Vast Undone”- Some Reflections on Reading Granville Austin‟s THE INDIAN CONSTITUTION, 9 Journal of Indian Law Institute 3 (1967)

Newspaper Articles

 Richa Roy, Language Require an Urgent Update to Reflect Growing Female Presence in Male Sphere, Indian Express, January 27, 2016.  Soli J. Sorabjee, A Labour of Law, The Indian Express, February 7, 2019. Online Resources

 CENTRE FOR LAW AND POLICY RESEARCH, https://cadindia.clpr.org.in/.  Constitution Assessment For Women‟s Equality, INTERNATIONAL INSTITUTE FOR DEMOCRACY AND ELECTORAL ASSISTANCE, https://www.idea.int/sites/default/files/publications/constitution-assessment-for- womens-equality.pdf  WOMEN MEMBERS OF THE CONSTITUENT ASSEMBLY: A STUDY ON CONTRIBUTION OF WOMEN IN CONSTITUTION MAKING OF NEPAL (Women‘s Caucus Constituent Assembly Secretariat, Nepal Law Society 2012).  First Lok Sabha Member‟s Profile, LOK SABHA, http://164.100.47.194/loksabha/writereaddata/biodata_1_12/837.htm.  Framing of The Sixth Schedule, KHASI HILL AUTONOMOUS DISTRICT COUNCIL WEBSITE, http://khadc.nic.in/acts_rules_regulations_bills/misc/Framing%20of%20the%206th %20SChedule.pdf.  Gatuam Bhatia, How to read the Constituent Assembly Debates, INDIAN CONSTITUTIONAL LAW AND PHILOSOPHY (Wed. 27, 2018), https://indconlawphil.wordpress.com/2018/06/27/how-to-read-the-constituent- assembly-debates-i/.  Indira Jai Singh, Eliminate sexist language in courts: Indira Jaising pens open letter to CJI, BAR AND BENCH (Mar. 8, 2019), https://barandbench.com/eliminate-sexist-language-in-courts-indira-jaising-pens- open-letter-to-cji/.  Ishita Sengupta, Dakshayani Velayudan The first and the only women in the constituent assembly, THE INDIAN EXPRESS (Jan. 19, 2018), https://indianexpress.com/article/gender/dakshayani-velayudhan-the-first-and-only- dalit-woman-in-the-constituent-assembly-5030932/.

 Jacqueline Yi, The Role of Benevolent Sexism in Gender Inequality, NYU APPLIED PSYCHOLOGY OPUS https://wp.nyu.edu/steinhardt-appsych_opus/the- role-of-benevolent-sexism-in-gender-inequality/.  Meera Velayudan, Remembering Dakshayani – A Remarkable Dalit Life Indian Express, THE INDIAN EXPRESS (Apr. 28, 2019), https://indianexpress.com/article/opinion/columns/history-headline-remembering- dakshayani-a-remarkable-dalit-life-5698513.  Mehal Jain, 'Constitution Itself Is Feminist', Justice Chandrachud On Transformative Constitution & Feminism, LIVELAW (Oct. 7, 2018, 02:25 PM), https://www.livelaw.in/constitution-itself-is-feminist-justice-chandrachud-on- transformative-constitution-feminism/.  Micheala Menegatti & Monica Rubini, Gender Bias and Sexism in Language, OXFORD RESEARCH ENCYCLOPEDIA OF COMMUNICATION (Sept. 26, 2017), http://oxfordre.com/communication/view/10.1093/acrefore/9780190228613.001.00 01/acrefore-9780190228613-e-470.  Ministry of Labour & Employment, Ministry of Labour Notifies Rules To Allow Employment of Women in Mines, PRESS INFORMATION BUREAU (Feb. 4, 2019, 11:43 AM), http://pib.nic.in/newsite/PrintRelease.aspx?relid=187977.  Profile of the 16th Lok Sabha, PRS INDIA https://www.prsindia.org/media/media- updates/profile-of-the-16th-lok-sabha  Rahul Gandhi says PM got a woman to defend him on Rafale, Modi calls it insult to all women, ECONOMIC TIMES (Jan.9, 2019), https://economictimes.indiatimes.com/news/politics-and-nation/rahul-gandhi-says- pm-got-a-woman-to-defend-him-on-rafale-modi-calls-it-insult-to-all- women/articleshow/67457210.cms.  Selected Speeches Of Women Members Of The Constituent Assembly, RAJYA SABHA SECRETARIAT 2012, https://rajyasabha.nic.in/rsnew/publication_electronic/Selected%20Women%20Spe ech_Final.pdf.

 Shefali Jha, Democratic Constitutionalism in India, INDIAN SEMINAR, https://india-seminar.com/2013/642/642_shefali_jha.htm.  Smt. Malati Devi Choudhuri, JAMNALAL BAJAJ FOUNDATION, http://www.jamnalalbajajfoundation.org/Media/pdf/JBA_1988_Bio_Malati_Choud huri.pdf  State of Literacy, CENSUS INDIA, http://censusindia.gov.in/2011-prov- results/data_files/india/Final_PPT_2011_chapter6.pdf.  Third Lok Sabha Member‟s Profile, LOK SABHA, http://loksabhaph.nic.in/writereaddata/biodata_1_12/1335.htm.  Tryst with Destiny - Speech Text, NEHRU MEMORIAL, http://nehrumemorial.nic.in/en/gift-gallery.html?id=214&tmpl=component.  Vikram Raghvan, Why do our constitutional debates matter?, LIVEMINT (Oct. 5, 2016, 01:14 AM), https://www.livemint.com/Opinion/mLactWgKWt6iKosuEyBNMI/Why-do-our- constitutional-debates-matter.html  Women Architects of the Indian Republic, 15 FOR THE REPUBLIC https://15fortherepublic.wordpress.com/.  Yoshita Shrivastava, These Are The 15 Women Who Helped Draft The Indian Constitution, FEMINISM IN INDIA (Jan. 26, 2018), https://feminisminindia.com/2018/01/26/15-women-draft-indian-constitution/.

ANNEXURE-1

DATE WISE COLLECTION

VOLUME -1 (From 9th December 1946- 23rd December 1946)

Date /No. of Discourse by Discourse about Treatment to Agenda and Other times terms women women women Remarks mentioned members 9th December - - - Election of temporary 1946 chairman and his None of the 12 welcome address. terms mentioned. Nomination of deputy Chairman.

10th December - Mr. H.J. - Procedure for 1946 Khandekar election of permanent Lady-3 times. suggests that after President ‗he‘ in clause 7, ‗she‘ should be Provisional adoption mentioned to of Committee on show inclusivity rules of procedure of women. President rules that ‗he‘ includes ‗she‘. 11th December Sarojini Naidu President talks of Referred to Election of 1946 welcoming Dr. sacrifice of ‗every Sarojini Naidu permanent Chairman Woman -4 Rajendra Prasad man and woman‘ as ‗elder sister‘ Women -2 as chairman. by Dr. Prasad. Election of Mother -4 Jokes about Khan Abdul committee on rules of Sister -4 confining Gaffar Khan procedure. herself to addresses the domestic issues members as as a woman and ‗brothers and G. Durga Bai elected how as a sisters‘ to Committee for woman she Rules of Procedure. must have the Mr. Chairman last word. refers to the Sachidanand assembly as Sinha agrees ‗ladies and jokingly to her gentleman‘ about woman having last word. 12th December - - - -

1946 None of the 12 terms mentioned 13th December - - - Resolution on Aims 1946 and Objects Mother-1 Sister- 1 16th December - Dr. M.R. Jayakar - Resolution on Aims 1946 refers to and Objects Lady-1 ‗distinguished lady‘ Vijyalakshmi Pundit 17th December - - - Resolution on Aims 1946 and Objects Woman-1 Mother-4 Girl-1 18th December - - - Resolution Re Aims 1946 and Objects None of the 12 terms mentioned. 19th December Hansa Mehta - - Resolution Re Aims 1946 speaks about and Objects Woman -4 hope of Women -16 Objective Mother-1 resolution and average woman of India who has been suppressed for years.

D. Velayudan speaks about Objective Resolution and Harijans. 21st December G. Durgabai - Muniswami Resolution Re 1946 seconds Pillai refers to Election of Sister-1 motions on one of the Constituent Women-1 rules of women Assembly Mother-1 Constituent members as Negotiating Lady -1 assembly. ‗sister‘ Committee

100

‗Lady‘ Consideration of the member Raj Report of the Kumari Amrit Committee on Rules Kaur joins the of Procedure house. No woman in the negotiating committee 23rd December - - - Adoption of rules of 1946 procedure, election of None of the 12 various committtees- terms Credential mentioned. Committee, House Committee, Finance and Staff Committee.

Shrimati Ammu Swaminathan elected to House committee.

Raj Kumari Amrit Kuar is in Finance and Staff Committee.

VOLUME -2( From 20th January 1947-25th January 1947)

Date Discourse by Discourse about Treatment to Other women women women Remarks members

101

20th January Vijayalaxmi Algurai Shastri - Statement by 1947 Pandit makes says that king President Re (women word the assembly should care for Allegation in appears- 3 realize that his subjects just Parliament times, mother-1, world is looking the way mother about the Girl-1) at the assembly. cares for sons. representative World peace character of and prosperity the is the aim and Constituent India can take assembly, lead while speaking on the Resolution Re Aims and Steering Objective Committee, resolution. Resolution Re Aims and Objects 21st January - R.V. Dhulekar Election of 1947 while debating Steering Woman/women question of Committee, /sex appears 5 minority rights Resolution Re times. accuses British Aims and Motherland-2 for intensifying Objects Sister-1 the problem between Hindus- Shrimati G. Muslims, Durgabai Brahmins and elected Non-Brahmins member of and even ‗man Steering and woman‘. Committee. Calls Hindus and Muslims as sister communities.

Mr. H.J. Khandekar mentions women while mentioning violence in Naukhali. Mentions their molestation , but not a specific discussion about women. Similarly further mentions

102

women in tribes which have been declared criminal by British rulers.

H.V. Pataskar mentions challenge of rights of women in front of CA. Not a specific discussion

22nd January - - - Resolution Re 1947 Aims and Not mentioned Objects, Resolution to include Bhutan and Sikkim within the scope of Negotiating Committee 24th January Shrimati D. Jaipal Singh - Election of 1947 Velayudan while questioning Vice Woman argues that lack of tribals in President, mentioned Harijan are part the Advisory election of twice. of Hindu fold. committee points Advisory out lack of any Committee, tribal woman in Budget the advisory Estimate of committee but Constituent does not press for Assembly the demand. Rajkumari Amrit Kuar, Shrimati Hansa Mehta are member of the Advisory committee. Both the women members are part as ‗General

103

Members‘ 25th January - Mr. H.C. - Election of 1947 Mukherjee Business Ladies addresses the committee, S. mentioned house as ‗Ladies Lahiri‘s letter once. and Gentlemen‘ to the President Committee on Subject Assigned to the union and centre

No woman in the Business Committee and in Committee on subjects assigned to union and centre.

VOLUME -3 (From 28th April 1947- 2nd May 1947)

Date Discourse by Discourse about Treatment to Other women women women Remarks members 28th April 1947 G. Durgabai - - Report of Mother-2 argues for States Sister-1 adding two committee, Daughter-1 members to Report of steering committee on committee union Subjects Report of the committee appointed to negotiate with the states negotiating committee. 29th April 1947 - Discussion on - Interim report Sex mentioned non of Advisory 16 times. discrimination on Committee on

104

Mother -1 grounds of sex Fundamental Daughter-1 mentioned Right was amongst other presented. discriminations. But no specific No woman discussion to spoke. woman.

Impact of citizenship of father and mother on child. 30th April 1947 - Discussion on - Election of Sex mentioned non Steering 5 times. discrimination on Committee, grounds of sex Report of mentioned order of amongst other Business discriminations. Committee, But no specific Interim discussion to Report on woman. Fundamental Rights by Advisory committee continued.

No comments by women on the interim report. 1st May 1947 D. Velayudan Mr. B. Das - Discussion on women argues that the proposes specific clause 11 on mentioned 13 clause 11 of the mention of forced labour times. Further report would trafficking of on Interim Mother- 8 and protect the lower women. Mentions Report on daughter-2 sections from trafficking of Fundamental times exploitation and women during Rights by mentioned make them equal Bengal famine. Advisory to upper caste committee. and class. Rev. Jerome D‘souza argues for specific declaration state‘s responsibility on encouraging

105

institution of family.

Shri Alaguri Shastri children to be allowed to change religion only after attaining majority, change of religion by child and rights of parents.

2nd May 1947 - - - Interim report None of the on terms Fundamental mentioned. Rights, President‘s remarks regarding resolution relating to linguistic and cultural provinces and language of the Constitution to be framed.

VOLUME -4 (From 14 July 1947-31st July 1947)

Date Discouse by Discourse about Treatment of Other remarks women women women members 14th July 1947 Begum Aizaz - - Report of None of the 12 Rasul mentions order of terms regarding Business mentioned. timings of the Committee, house that they Amendment would clash with to Rules o the fast timing of assembly, Ramzan which Election of was about to members to

106

approach. Committee, Election of Vice President. 15th July 1947 - Patel says on - Amendment Mentions presenting the to rules, women twice. principles for Principles for provincial model constitution that provincial some provinces constitution may have two by Provincial houses of Constitution legislature for committee special interests of women, labour, commerce, industry. 16th July 1947 - H.V. Kamath - Election of Woman while members to mentioned commenting upon various once. qualification for committees- post of Governor Staff says-‗for that Comittee, matter‘ a woman Credential also is eligible for Committee, governor‘s House position. Committee, Steering Committee. Principles for Model Provincial Constitution by Provincial Constitution Committee 17th July 1947 Begum Aizaz - Begum Report of Mother-1 Rasul argues that referred as Committee on Sister-1 ministers of the ‗sister‘ by Seth Principles for Wife-1 government shall Govind Das. Model Lady-1 be kept separate And as Provincial from party ‗extremely Constitution. affiliation and be learned lady‘ given certain by Pattabhi fixed tenure. Sitaramayya.

107

18th July 1947 Renuka Ray Patel Report on woman twice, vehemently congratulates Principles for women 33 argued against women for saying Model times reservation for that they do not Provincial Sex twice woman. want any special Constitution. Mother-2 treatment.

21st July 1947 G. Durgabai on Citizenship, Report on Woman-3 appointment to marriage of Principles for Wife-1 provincial Indian citizen Model Mother -1 judiciary. with an alien or Provincial vice versa. Constitution, Report of Principle on Union Constitution,

22nd July 1947 Mrs. Sarojini Lakshminarayan Sarojini Naidu Adoption of Women/woma Naidu speaking Sahu sees the referred as Flag n/sex word on Flag three stripes as ‗Old Mother‘ Resolution appears 14 resolution says representing times (amongst other Jagannath temple Mother-5 things) that with Subhdra, the Daughter-1 there will be no women fold in consciousness of between protected sex. by two men.

23rd July 1947 - - - Report on Woman thrice Principles of appears. Model Provincial Constitution , Report on Union Constitution. 24th July 1947 - President like - Report on Mother -2 Caesar‘s wife Constitution Wife-1 should be above of Union. suspicion say Election to Pandit Lakshmi Steering Kanta Mitra Committee 25th July 1947 - - - Amendment None of 12 to rules of the terms assembly, mentioned Report of Union

108

Constitution Committee 28th July 1947 G. Durgabai H.V. Kamath of Election to Women moves an humiliation of Steering mentioned amendment on women in Bihar Committee, once establishment of during violence Report of new High amongst other Union Courts. things Not Constitution specific Committee discussion to violence against woman as such. 29th July 1947 G. Durgabai Mr. Naziruddin Referred as Report of Mother-1 moves two Ahmad mentions ‗lady member‘ Union Lady-2 amendments on step motherly by P.S. Constitution Clause 18 stating treatment to Deshmukh and Committee that judges shall provinces. M. be Indian. Ananathswamy Ayyangar 30th July 1947 - - - Report of None of the 12 Union terms Constitution mentioned. Committee 31st July 1947 2 amendments Jai Narayan Vyas Amendment Wife 1 moved by mentions to assembly Begum Aizaz nepotism through rules, Report Rasul on selection of son of Union proportional and wife in Constitution representation by elected members Committee, single despite adult Appointment transferable vote franchise system of committee and tenure of to prepare upper house Draft Constitution for Chief Commissioner ‘s Province.

No women in the above appointed committee.

VOLUME-5 (14th August 1947-31st August 1947)

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Date Discourse by Discourse about Treatment of Other remarks woman woman woman members 14th August Hansa Mehta - - Intimation to 1947 leads the the Viceroy presentation of about national flag on assumption of behalf of Indian power by woman. Constituent assembly and assembly‘s endorsement of Lord Mountbaitan‘s appointment as Governor General of India. 15th August - - - Messages by 1947 various Women-2 nations. Sister-1 Address by Lady-1 Governor General, hoisting of national flag. 20th August - - - Report of 1947 Union Powers None of the 12 committee terms mentioned 21st August - - - Report of 1947 Union Powers None of the 12 committee terms mentioned. 22nd August - - - Report of 1947 Union Powers None of the 12 committee terms mentioned. 25th August - Shri Alaguri - Violent 1947 Shastri‘s Incidents in Women statement about West Bengal. mentioned violence in Report of twice. Punjab. Mentions union power

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Mother-3 women too, but committee not a specific discussion about violence against women.

26th August Renuka Ray - - Report of 1947 does not desire Union Powers Woman to bring an committee mentioned amendment . once. 27th August - Ayyangar says - Report on 1947 that even a child Minority Mother-1 knows that sex of Rights Sister-2 mother is Women 1 different from Sex 1 father while explaining his points on his point on unity of nation. Pocker Sahib Bahadur mentions Muslims and Hindus as brothers and sister community. 28th August D. Velayudan - Mr. Nziruddin Report on 1947 Renuka Ray both Ahmad refers Minority Lady-1 speak against to Mrs. Renuka Rights. separate Ray as ‗lady‘. No minority electorate. women spoke. Presentation and unveiling of portrait of Gandhi. 29th August Begum Aizaz - Begum Sahiba Election of 1947 Rasul suggests referred as members to Lady-2 the president ‗lady‘ by house should have Ananthswamy committee, power to fill Ayyangar and Moves vacancy in the M.S. Aney. amendment Constitution for committee Scrutinizing to scrutinize Committee. draft constitution.

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No women. Report of Constituent assembly functions committee 30th August Purnima Banerji R.V. Dhulekar Purnima Supplementar 1947 moves an while discussing Banerji y report on Woman -2 amendment conversion and referred as FR. Women 5 saying that separatist ‗lady‘ by Lady-1 educational tendencies of Mahboob Ali institutions some Baig should given communities comparaative mentions religious abduction of teaching with women and state control. children. Not a specific Renuka Ray discussion. moves amendments saying no religious instruction in any school aided or run by government.

VOLUME -6 (27th January 1948)

Date Discourse by Discourse about Treatment of Other women women women Remarks members 27 January Begum Aizaz Giyani Gurumukh - Additional 1948 Rasul Singh in his representation Daughter and On matter of amendment for to West sister additional more seats for Bengal, East mentioned representation to Sikhs in East Punjab, once each. East Punjab says Punjab mentions Amendment that matters are butchering of and addition vey fluid right sisters and to rules. now, we need to daughters postpone this amongst other discussion. things. But not a specific

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Shrimati G. discussion for Durgabai moves violence against amendments to women. constituent assembly rules.

VOLUME-7 (From 4th November 1948- 8th January 1949)

Date Discourse by Discourse about Treatment of Other women women women remarks 4th November Shrimati G. Special feature of - Motion re 1948 Durgabai moves Garos where draft Daughter-1 three property goes to constitution, Lady-1 amendments to youngest Annex- Lt. Mother-1 rules of daughter- Governor‘s assembly. mentioned in proviances, Report of Sub- report of Begum Aizaz Committee on expert Rasul talks of North East committee on adjournment of Frontier. financial house. provisions 5th November - B. Das calls - Motion Re 1948 women‘s equality draft 3 times women a great Constitution appears achievement of (general Mother-1 the Fundamental principles for Rights. Says Constitutions women of India were being have won a discussed). position that no other Independent nation allows them to enjoy.

Krishna Chandra Sharma points towards risk of wealthy men amassing huge wealth and ‗buys a dozen of educated women‘ and impact of the same on democracy.

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6th November - - - Motion Re 1948 draft Woman and Constitution women word appears 8 times Mother-1 8th November Begum Riaz - - Motion Re 1948 Rasul argues draft 8 times – against Constitution women, reservation of woman and sex seats for Mother-3 minorities. Says Sister-1 as a woman she feels happy that constitution does not make distinction on the basis of sex.

D. Velayudan argues against centralization of power. 9th November Shrimati Renuka Rohini Kumar Renuka Ray Motion Re 1948 Ray specifically Chaudhari argues categorically draft Mentioned 16 argues against for women‘s rejects Rohini Constitution times women‘s constituency Kumar Mother-7 reservation saying that Chaduhari‘s women may fight proposal. amongst themselves and not come to general constituency.

Shri Mahavir Tyagi says those who have left have gone to step mother leaving their own mother.

Ghanshyam Singh Gupta uses the words ‗ladies and gentlemen‘

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15th November - Women - Article 1 of 1948 mentioned in text Draft Women word of DPSPs, no Constitution appear twice specific (hereinafter discussion. referred as DC) 17th November - Hirday Nath - Ar. 1/DC 1948 Kuzru talks of Ar. 2/DC Mother-1 step motherly Ar. 3/DC treatment to provinces. 18th November - - - Ar. 3/DC 1948 Ar. 4/DC None of the 12 terms appear 19th November Renuka Ray - - Ar. 28/DC 1948 calls decision to Ar. 29/DC None of the 12 end discussion Ar. 30/DC terms appear unfair (not a Ar. 30-A/DC specific point). 22nd November - Rai Bahadur - Ar. 31/DC 1948 Mr. Naziruddin Ar. 31A/DC Women, Ahman argue that Article 39-40 woman, sex ‗men and women‘ of current appear 45 should be constitution times replaced by Mother-3 citizens under Ar. Wife- 1 39 since Lady-1 masculine Girl-1 involves feminine.

Kamath moves amendment to add word sex in article 39(e) so as to protect women from work which are not suited to women due to conditions imposed on them by nature. He does not press the amendment due to lack of

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keenness on part of women members.

Shri Lakshminarayan Sahu moves the similar amendment and insist on it specifically recognizing that women members are not insistent on it. Says women need to be protected so that their home lives are not destroyed.

Syed Abdur Rouf suggests instead of age or strength, words sex, age or health be substituted in Ar. 31.

Rev. Jerome D‘souzaa asks for recognition of family as a unit by state and mentions that he is not arguing against rights of women to leave an unhappy marriage. Talks of conventional roles of men and women. 23rd November - On discussion on - Ar. 41-47 of 1948 UCC no woman current Women word speaks, but K M constitution appears thrice. Munshi discusses were

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Mother-6 impact of UCC discussed. Wives-1 on Hindu women.

Mahavir Tyagi talks of benefit of intoxication ban for wives.

. 24th November Begum Aizaz Dr. Raghu Vira - Ar- 47-50 of 1948 Rasul wanted to refers to cow as current Mother-9 move an mother of constitution Wife-2 amendment. individual and discussed. President said it nation. is too late. R.V. Dhulekar calls for protection of cows, calls fundamental right to protect mother, wife and cow which is more than mother, her protection is his fundamental right. 25th November - Prof. B.H. Ar. 50-51 of 1948 Khardekar cites current Women appetising women constitution mentioned as one of the discussed. once. reasons for failure of League of Nations. 26th November G. Durgabai Naziruddin Addition of 1948 moves Ahmad calls her sub rules was Mother -2 amendment for ‗charming the agenda Lady-2 rules for lady‘. assembly to add rule 39P

29th November D. Velayudan on Prof. K.T. Shah President says Ar. 17 and 1948 Article 17 of says that Ar. 15 to her that she is Article 15 of Women, sex current creates exception being allowed current 20 times constitution. for special to speak further constitution treatment to only because discussed

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women in interest she is a lady of country and race.

Sex mentioned amongst various ground of discriminations, not a specific discussion. 30th November - - - New Ar. 11- 1948 B, Ar.10, 12 Sex mentioned of current six times constitution. Daughter-1 1st December - Naziruddin - Ar. 19 of 1948 Ahmad gives current Lady-1 example of ban constitution on entrance of discussed man in lady‘s dressing room to explain that there will be limitation on fundamental rights in Ar. 19. 2nd December - Shri Algu Rai - Ar 19 and 20 1948 Shastri says that of current Woman and British rulers constitution women appear gave step discussed. 6 times motherly Mother-3 treatment and self rule would be that of a mother who cannot let her children go stray.

Shri Ananthswamy Ayenger mentions rights of Muslim women while discussing UCC.

Shri Jaipal singh argues against

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need for non use of weapons and peaceful assembly saying even woman carry weapons in Chhota Nagpur and Orrisa. 3rd December G. Durgabai KT Shah‘s T. Ar. 14-19 of 1948 speaks on KT amendment on Krishnamachari draft Women 33 Shah‘s devadasis and refers to constitution Sex 2 amendment to other such Durgabai as discussed. declare devdasi enslavements. His ‗Hon‘ble friend‘ and such other amendment was enslavements in adopted. name of religion as , says the Shri B. Das- calls same although Prostitution ‗great good in its spirit, social evil‘, but is not stresses on need necessary since to specifically add Madras faces traffic in women this problem and to the clause. it has already passed a law Prof. Shibban Lal banning devdasi Saksena‘s system. amendment calling that Shrimati Renuka women must not Ray argues be employed post against the dusk. He argues amendment that numerous moved by Mr. women workers Das saying of country would article already hail them for this covers his point. move. The Says that women amendment was organizations are negated. aware of the problem. Calls it Kazi Syed lowering of Karimuddin dignity of discusses illegal womanhood. search against Supports KT Muslims and Shah‘s mentions why amendment. women and

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children were not taken into custody if purpose was protective custody. 6th December Shrimati G. Alladi Lakshmikant 1948 Durgabai moves krishnaswami Moitra and Woman 1 amendment to Ayyar says if the Rohini Kumar Women 1 draft Ar. 19. term ‗due Chaudhary Wife-2 process‘ is used agrees with her. then it can act as great handicap against social welfare. Cites protection of women as one of the social protection legislation

Krishna Chandra Sharma while explaining that all the three branches have limited area of work says that a court can declare a statue void, but cannot ask for enactment of new law, it can say A is not husband of B, but cannot say that now on A is husband of C. 7th December Shrimati Renuka Mohamed Ismail - Ar. 20-23 of 1948 Ray on religious Sahib while Draft Sex-1 education in arguing against Constitution Mother-3 schools. complete ban on discussed. Girl-3 religious education in schools calls on not giving religious education ‗step

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motherly‘ treatment.

8th December Begum Aizaz - - Ar. 29 and 1948 Rasul calls for 30 of current Mother -34 education for constitution minority children discussed in their own language. 9th December G. Durgabai on Shri Rohini - Ar. 23A-27 1948 Ar. 32 of current Kumar Chaudhari of draft Women-3 Constitution. argues against constitution Mother-1 (Ar. 25 of Draft clause 4 of discussed. Constitution) Article 25 whereby the article can be suspended in case of emergency. He says that clause 4 would lead to suspension of even right against trafficking during say war. Calls Women‘s Volunteer as ‗nothing but urgent for dancing etc. to keep morale of troops high.

10th December - - - Ar. 27-A, Ar. 1948 40A-42 of Mother-2 draft constitution discussed. 13th December Begum Aizaz - - Ar. 43-46, 1948 Rasul argues and Ar. 15 None of the 12 regarding discussed. terms election of mentioned President under Ar. 44 of draft Constitution. 27th December - KT Shah says that - Ar. 47-49 of 1948 head of state like draft

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Mother -1 Caesar‘s wife constitution Wife-4 should be above discussed. suspicion.

On amendment as to transfer of assets of President on being elected to the post shall be transferred to GOI-Mr. Tajamul Hussain suggests that if not to GOI then the assets etc. shall be transferred to wife and his children.

KT Shah while making argues for oath by President to not upheld his own personal interests says he does not need to mention specific instances of abuse of power because as the saying goes ‗everyone knows name of his wife but no one would utter it‘. 28th December - Shri B. Das - Ar. 50-55 of 1948 argues for draft Mother-1 provision for no constitution Daughter-2 gifts to wife/ discussed. Wife-2 daughter in law/daughter of the president. 29th December - - - Ar. 55-60 of 1948 draft None of the 12 constitution terms discussed.

122 mentioned. 30th December - - - Ar. 60-62 of 1948 draft None of the 12 constitution terms discussed. mentioned 31st December - - - Ar. 75 of 1948 current Noen of the 12 constitution terms discussed. mentioned 3 January 1949 Begum Aizaz - Annanthsaynam Article 79 of None of the 12 Rasul regarding Ayyangar calls current terms naming her as ‗hon‘ble constitution mentioned parliament INC friend‘ discussed under Ar. 79 of current constitution. 4th Janaury - - - Ar. 80 of 1949 current None of the 12 constitution terms discussed mentioned 5th January - Naziruddin - Govt. of 1949 Ahmad talks of India Act Wife-3 wife in terms of (Amendment property in Bill) explaining his discussed point on sovereignty and state administration. Vice President calls his example not a very happy illustration. 6th Janaury Shrimati Renuka Pandit Lakshmi - Ar 168-170 1949 Ray on second Kanta Miatra‘s of current Women chamber in women and constitution mentioned legislatures. children suffered discussed once the most in Begum Aizaz Bengal famine. Rasul argues that (not a very minimum no of specific point) 300 for legislative

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assembly is too less for UP. 7th January - - - Ar. 76,77,78 1949 of current None of the 12 constitution terms discussed mentioned 8th January - - - Preparation 1949 of electoral None of the 12 rolls terms discussed mentioned

VOLUME -8 (16th May 1949-16th June 1949)

Date Discourse by Discourse about Treatment of Other Remarks women women women 16 May 1949 - - - Resolution Re- Mother-1 Ratification of Decision on Commonwealth 17 May 1949 Begum Aizaz Pundit Thakur - Resolution Re- Mother-3 Rasul in her Das also gives Ratification of Daughter-1 speech supports example of Decision on the motion to mother getting a Commonwealth join common husband and wealth. leaving him to explain the irk India would cause to Russia on joining common wealth.

Hriday Nath Kunzru refers to ‗England and her daughter countries‘. 18 May 1949 G. Durgabai for Kamath agreeing H.V. Kamath, Ar. 82, 83, Girls-2 amendment to to Durgabai‘s Mr. Tajamul 84,85,86,87,88 Women-2 Asssembly proposal on Ar 84 Husain refers to of current Sex-3 Rules. cites Gargi , Durgabai as constitution Maitreyi to argue honorable discussed. G. Durgabai that wisdom does friend. moves not depend on sex

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amendment to either Ar.84 of current constitution for lowering the age of member of council of state. 19 May 1949 - Shri Rohini - Ar. 70-85 of Woman -1 Kumar Chaudhari draft Women-4 while discussing constitution Mother-1 Ar. 105 of current discussed. Girl-1 Constitution, he argues for reservation to women and gives various sexist reasons saying that by the strategy of non- reservation they would actually get more seats.

20 May 1949 Begum Aizaz - - Ar. 86-91 of None of the 12 rules moves draft terms amendment to constitution mentioned draft Ar. 91. discussed. 23 May 1949 - - - Ar. 92-102 of None of the 12 draft terms constitution. mentioned 24 May 1949 - Shri Rohini - Ar. 103 of draft Woman-3 Kumar Chaudhari constitution Women-2 makes another was discussed. sexist comment about age for HC judges in reference to appointment of female judges on Ar. 103 of draft constitution. He says that who would be the women to declare her age as 56 to get the post of HC

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judge. H.V. Kamath in moving his amedment makes a comment- ‗even woman are‘ 25 May 1949 Begum Aizaz H.C. Mukherjee Syed Mohd. Report of Woman-1 Rasul arguing mentions his Saadullah refers Advisory Mother-8 against separate uneducated to Begum Rasul Committee on electorate and mother who made as ‗my hon‘ble Minorities reservation of him promise to friend‘ seats for fight against minority and communal even electorate. proportional representation. Says that she is not betraying her electorates by her position. 26 May 1949 - Sardar Sochet - Continued Mother-1 Singh talks of discussion on Sister-1 class Report of Wife-1 consciousness in Advisory Girl-1 ‗sister committee on communities‘ Minorities.

Mahavir Tyagi mentions Ambedkar‘s Brahmin wife to argue against reservation even for 10 years. Further says SCs‘ have no social diabilities, a SC can marry a Brahmin girl, he argues. 27 May 1949 - - - Amendment to Sister-1 constituent assembly rules Ar. 104-123 of draft constitution

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discussed. 30 May 1949 - - - India Act, 1946 None of the 12 Amendment terms Bill mentioned Ar. 124, 124-A, 125,126, 126- A, 127, 127-A, 128, 129, 130, 131 of draft constitution discussed. 31 May 1949 G. Durgabai - - Ar. 131-135, None of the 12 argues in support 135A, 136 of terms of amendment draft mentioned moved to Article constitution 131 of draft discussed. constitution by Brajeshwar Prasad 1 June 1949 - Expenses by - Ar. 137- Daughter-1 ministers should 144,144A, 145 be avoided in of draft celebrating constitution birthdays and marriages of sons and daughters by Dr. P.S. Deshmukh. (Nothing specific point) 2 June 1949 Purnima Banerji - - Ar. 146, 147, None of the 12 moves 147A, 150-153, terms amendment to 153A, 154-159, mentioned proposed Article 159A, 160-162, 152 regarding 162A, 163- age limit. Same 163A, 165-167 was accepted. of Draft Constitution G. Durgabhai on Article 146 of draft constitution. 3 June 1949 G. Durgabai is to - - Ar. 168- Mother-1 move an 170,170A, 171, amendment but 109-111 of the same is Draft

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covered by Constitution Ambedkar. 6 June 1949 G. Durgabai‘ Shri B. Das we - Ar. 111,112, Women amendment may have women 112A, 113,114, appears once. regarding appeal in HC too. (Not a 119, 121, to higher courts very relevant 122A, 131, under Ar. 111 of point) 191-193 of draft Draft constitution. Constitution 7 June 1949 - - - Ar. 193, 193-A, None of the 12 194-196, 196A, terms 197-203, 203A, mentioned 204 of Draft Constitution 8 June 1949 - - - Ar. 204-206, None of the 12 90, 92 of Draft terms Constitution mentioned 10 June 1949 - - - Ar. 92-98, 98A, None of the 12 173-183, 183A, terms 184-186 of mentioned Draft Constitution 13 June 1949 - - - Ar. 216-224, None of the 12 226-235, 238- terms 246, New mentioned article 111A- 111B of the draft constitution. 14 June 1949 Purnima Shri Krishna Ar. 111A, Women-2 Banerji‘s Chandra Sharma 103—A, 164, Mother-3 suggestion argues against 167-A, 171, regarding joint giving too many 175, 187, 196- sitting under Ar. right to appeal A, 208, 209, 164 of draft saying it does not 209A of draft constitution. look nice to talk constitution of finer things when woman are raped on roads and children are killed 2 aana. He further says that accused alone is not an aggrieved party in a case,

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even the victim , i.e. Mother of a child is a victim, she should also have a right to appeal. 15 June 1949 - Mahavir Tyagi - Ar. 203, 270- Women word calls Kamath a 271, 271A, appear once married woman 272-274, 274A, pretending to be a 289 of Draft maiden to explain Constitution his point discussed. regarding remaining in common wealth. 16 June 1949 Annie - - Ar. 289, 289A, None of the Mascarene 290, 291, 291- terms argues against A, 297, 298, mentioned centralization 300, 301 of and power of the Draft centre to control Constitution elections are discussed. proviances.

VOLUME-9 (From 30th July 1949- 18th September 1949)

Date Discourse by Discourse about Treatment of Other Remarks women women women 30 July 1949 Smt. Purnima - Shri Brajeshwar New Ar. 79-A, Only Sister Banerji on article Prasad calls her and 104,148-A, mentioned 171 of current ‗sister‘. 150, 163-A,175 once. constitution. Purnima Banerji of draft constitution discussed 1 August 1949 Renuka Ray Shri Deshbandhu - Ar. 175, 172, Mother-1 argues for Gupta discusses 176, 83-A, 127- Daughter-1 limiting power step motherly A, 210,211, of second house treatment given to 197, 212, 213, to revising centrally 214 of draft nature and not controlled areas constitution giving it too like Delhi. discussed. much power.

2 August 1949 - While arguing on - 213, 213-A, Only Wife controversy 214, 275 Ar.

129 appears twice. surrounding draft whether Delhi constitution should be discussed. amalgamated with East Punjab or East Punjab with Delhi is Naziruddin Ahmad comments that it is as if asking, ‗whether Husband marrying wife, wife marrying husband‘ 3 August 1949 - - - Ar. 276, 188, Only Mother 277-A, 278, appear once 278-A. Of Draft Constitution discussed. 4 August 1949 - Shri Algu Rai - Ar. 188, 277-A, Only Wife Shastri draws a 278 of Draft mentioned comparison why Constitution once. King should discussed. always be suspicious of his wife and son regarding powers of centre. 5 August 1949 - - - Ar. 249 to 253 Only Sister of Draft mentioned Constitution once. discussed. 8 August 1949 - Syed Muhammad - Ar. 253, 254, Mother once Sa'adulla 254A, 255 of Sister once mentions ‗mother DC Earth‘. 9 August 1949 Smt. Purnima - - Ar. 255, 256, None of the 12 Banerji on taxes 257, 258A, 259, terms by local bodies. 260 of Draft mentioned Constitution discussed. 10 August G. Durgabai - - Ar. 260, 261, 1949 asked to put for 262, 263, 263- None of the 12 question.(not so A, 267, 268, terms relevant) 269, Ar. 5 and 6

130 mentioned of draft constitution discussed. 11 August - President says - Ar. 5 and 6 of 1949 regarding status current Women 2 of women on constitution Mother-12 marriage i.e. discussed. Wife-1 whether they Wives-1 become citizen or Lady-3 not, should be left Ladies-2 to parliament. Similar discussion by KT Shah.

P.S. Deshmukh makes case for reference to parentagem in citizenship provisions. He says a lady who happens to travel be at Indian soil while being pregnant, could her child be an Indian?

Naziruddin Ahmad talks about father and mother‘s domicile and citizenship of a child.

Pandit Thakur Das Bhargava says-what kind of country we are if we cannot protect ‗our ladies‘. Refers to ‗our ladies‘ in Pakistan. 12 August - Nehru on permit - Ar. 5,6 of Draft

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1949 system, partition Constitution Woman-1 and migration. Women-4 Mother-3 Shri Rohini Wife-2 Kumar Chaudhari Lady-1 while speaking on Ladies -3 migration and Girl-1 concerns of minority property, discusses Assam and says that Ladies Assn. from Assam have passed no confidence motion against and makes a sexist comment that I should not worry since women will be women.

Alladi Krishnaswamy Iyer mentions issue of citizenship of married woman.

Hridya Nath Kunru mentions issue of citizenship of a child of a mother who gave birth in transit.

18 August - - - Govt. of India 1949 Act, 1935 None of the 12 (Amendment terms Bill) discussed. mentioned. 19 August Purnima Banerji - - Ar. 150, PART 1949 membership of VIII-A, Article Women-5 upper house. 215-A, 250, 277

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While discussing of Draft nominated Constitution members by governor, she calls for avoiding narrow interpretation of term ‗social service‘ since a lot of governments do not provide for opening of special camps for women‘s organization and women‘s organization might not be counted in narrow category of ‗social services‘.

Renuka Ray discusses financial implications of Emergency on provinces. 20 August G. Durgbai on Article on non Shri B.Das Ar. 277, 279-A, 1949 article 277 of the discrimination on refers to ‗lady‘ 280 of Draft Woman-1 draft constitution ground of sex member Renuka Constitution Women-4 (financial mentioned by Ray. Sex-4 implication of Naziruddin Lady-1 declaration of Ahmed no Emergency on particular states). discussion. 22 August - Shri Raj Bahadur - Ar. 284, 285, 1949 mentions non 285-A, 285-B, Sex-1 discrimination on 285-C, of Draft Sister-1 grounds of sex, Constitution Wife-1 race etc. in appointment to public service commissions. No

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specific discussion.

Shri B. Das mentions opportunities to ‗wife‘ and ‗sister‘ to point out nepotism in government employment. 23 August - Shri Raj Bahadur - Ar. 286-288, 1949 says that real Ar. 292 of draft Women-1 remedy is that a constitution. Sex-1 person and his Daughter-1 ‗sons and Wife-1 daughters‘ should not marry in their own caste.

Sir S. Nagappa- Caesar‘s wife must be above suspicion in reference members of public service commission. 24 August - Shri Mahavir - Ar. 292, 1949 Tyagi says he is 293,294, 295, Daughter-1 also in minority 295-A of draft in his area with constitution. total 3 members from his community, he, his daughter and a policeman. No per se discussion on woman. 25 August - Monomohan Das - New Article 1949 says educated 295A debated. Mother-3 people have more separating tendencies and gives example of normal families

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where father would be a congressman, mother would be a Hindu Mahasabha supporter etc.

26 August - - - Ar. 296, 299, 1949 Third Schedule None of the 12 of Draft terms Constitution mentioned. discussed. 29 August - - - 7th schedule, 1949 None of Union List, the 12 terms Enrty-1, 2,3,4, mentioned 5,6,7 of Draft Constitution discussed. 30 August - - - Schedule 7th 1949 discussed. Mother-1 31 August Renuka Ray - H.V. Kamath Schedule 7th 1949 Calls for uniform refers to discussed. Women-1 minimum Durgabai as Mother-1 national ‗my friend‘ Daughter-2 education. Talks of ‗step motherly‘ treatment given to nation building services during the raj.

G. Durgabai on film censorship. 1 September Purnia Banerji Dr. P.S. - Schedule 7th 1949 asks question on Deshmukh‘s discussed. Woman-1 entry 4. amendment for Women-2 entry 70B for Girl-1 G. Durgabai protection of does not move young men and her amendment. children. And he says ‗men‘ includes ‗women‘.

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Alladi Krishnaswamy Ayyar- tax on newspapers, cinema girl advertised in the newspaper. 2 September - Maulana Hasrat - Schedule 7, List 1949 Mohani mentions II, Entry 15 to Mother-12 difficulty faced 67, Daughter-1 by his daughters List III, Entry – in studying ka, 1, 2, 2A of DC kha, kha Thus arguing for protection of minority he says that education should be in list 3 and not list 2 of the schedule. 3 September G. Durgabai - Brajeshwar Schedule 7th 1949 seeks Prasad refers to discussed. Sister-1 clarification on Purnima Banerji Brajeshwar as ‗sister‘. Prasad‘s Rohini Kumar proposal for refers to her as regulation, not my hon‘ble prohibition of friend. prostitution. She also speaks on entry regarding protection of children from exploitation and abandonment.

Purnima Banerji moves an amendment on Entry 34 on economic educational and social planning. 5 September - - - Schedule 5, 6 1949 discussed.

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None of the 12 terms mentioned. 6 September - Rev. J.J. M. - 1949 Nicholas Roy Woman-4 calls for breaking Women-1 myths about tribals of Assam. Says that they are much advanced than rest of nation in women‘s rights.

Brajeshwar Prasad opposes principle of self determination for tribals, mentions harms of it, violence being one. In this line of argument mentions worst crime against women and children amongst various other violence. 7 September G. Durgabai says - - Schedule 6, Ar. 1949 let us sit after 5- 281-282 of draft Mother-7 5.30 constitution discussed. 8 September Shrimati G. Dr. P.S. - Ar. 282B,283, 1949 Durgabai the Deshmukh while 282C, 302 of Women-1 question may not criticizing draft be put.(Not frequent use of constitution relevant). the term discussed. ‗notwithstanding‘ in the constitution, cracks a joke amidst laughter that notwithstanding clause works as if

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one may say ‗You are a man, notwithstanding that you are at liberty to describe yourself as a woman. 9 September - - - Ar. 264-266, 1949 296, 299, 250 of None of the 12 draft terms constitution. mentioned. Seventh schedule Ar. 250, 202, 234-A, 242-A, 248A, 263, 263- A of draft constitution reopened. 10 September Purnima Banerji HV Kamath - Ar. 24 of the 1949 moves an argues that the draft Women-2 amendment that Ar. 9 of draft constitution Mother-1 under Ar. 24 of constitution has draft only provided for constitution, special treatment after ‗property‘, of woman and 'or for ensuring children and non full employment discrimination to all and between man and securing a just man. He argues and equitable that such non- economic and discrimination social order' shall be extended shall be added. to landed property and industrial Renuka Ray property. moves an amendment to Naziruddin clause 4 of Ar. Ahmad- step 24 of draft motherly constitution on treatment to questions of Zamindari compensation. property.

G. Durgabai raises point of

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inquiry.

Begum Aizaz Rasul asks for adjournment saying that assembly has been sitting for 7 hours. (important points)

12 September Begum Aizaz Krishna Chandra Balkrishna Ar. 24 of Draft 1949 Rasul Sharma- property Shamra calls Constitution Women-1 vehemently today means Renuka Ray and New Part Mother-7 argues for fair credit and loans, ‗sister‘ XIV-A Sister-1 compensation on not gold or silver, Daughter-1 taking away of not woman or Girls property of children. individual.

Renuka Ray says that the provision regarding compensation shall not be misunderstood. It is not the provision that fraudulent grounds shall be allowed. The provision only says that parliament will decide in this matter of right to property. 13 September - All the words - New Para XIV- 1949 used in reference A of Draft Woman -1 to language, sister Constitution Gender-2 language, use of (Language Mother-40 different verbs for Provisions) Sister-2 two genders in Daughter-5 Hindi. No direct

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Lady-1 discussion on Ladies-1 woman. Girl-1

14 September G. Durgabai says Shankarrao Deo - Abolition of 1949 that national says language is Privy Council Women 8 language can be next to mother Jurisdiction Mother 20 no other but since mother Bill, Ladies-2 Hindusthani. But gives birth but Draft Consti she warns of language makes Part—XIV-A certain one what he is conditions. today. Mentions hundreds of south India women learning Hindi.

Shrimati Purnima Banerji withdraws amendment standing against her name. 15 Septermber Shrimati - H.V. Kamath New Article 1949 Purnima Banerji refers to her as 112B, 15—A of None of the 12 moves 4 ‗my friend‘ Draft terms amendments to Constitution mentioned Ar. 22 of Constitution. Comments over the vast power of the article to harm liberties. 16 Septermber Shrimati G. Shri Kuldhar - New Article 1949 Durgabai argues Chilana while 15A, Mother-1 against calling arguing for need And Ar. 209A, Daughter-1 Ar. 22 ‗crown of of 7 year resident 215, 303 of Wife-2 failures‘ She requirement for Draft argues that go to appointment to Constitution any part of the post of District country and you Judge gives will see that certain examples wives and of customs which mothers are were seen as worried whether kidnapping of

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their husbands girls. would return back or not. 17 September G. Durgabai - Abolition of 1949 talks regarding Privy Council Mother-4 breaking tie Jurisdiction judicially with Bill, Britaina and Motion Re future role of Translation of Privy Council. Constitution, Ar. 303, 300A, 300B, 8th schedule, 303, 304, 99, 305,1 of Draft Constitution 18 September - - - Re October 1949 meeting of None of the 12 assembly, term Draft mentioned. Constitution- Ar.1.

VOLUME-10 (From 6th October 1949-17th October 1949)

Date Discourse by Discourse about Treatment of Other Remarks women women women 6 October 1949 - - - House None of the 12 adjourned. terms mentioned 7 October 1949 - - - Ar. 369, 375, None of the 12 377, 378, 380, terms 381, 382, 383- mentioned 390, 392 of current constitution discussed. 10 October - Shri Rohini - Ar. 314, 379, 1949 Kumar 376, 374, 372 of Mother, wife Chaudhary talks current mentioned 3 of need of constitution times. showing discussed. patriotism towards ‗mother‘

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land. He also talks of ‗fashionable wives‘ of ministers in terms of their expenses.

Patel mentions about provident fund for wife and children of civil servant on his death. Not much of a particular discussion, just mentioned as one of the facilities. 11 October Purnima Banerji Kamath replies - Ar. 311, 312F, 1949 argues for filling saying women Schedule IIIA Woman, casual vacancy rule by heart etc. and IV, Second women, sex in provisional Ambedkar says schedule of draft appear 24 parliament to be that specific constitution times. filled by women provision is not discussed. on the seats needed in this which were regard. The previously President in his occupied by exercise of rule women. making power would keep this in mind. 12 October Shrimati Annie Draft 1949 Mascarene on Constitution part Woman word decentralization VI-A discussed. appears ones. of power in Indian Constitution. 13 October - Shri Brajeshwar - Part VIA , Ar.3, 1949 Prasad, Shri 47,55,67,83,100, Mother, Sarangadhar Das 248B, 263, 7th daughter, compares schedule, Ar. sister, lady, treatment given to 270 of Draft wife, ladies provinces as ‗step Constitution. terms appear motherly New article 67A 17 times. treatment‘. discussed.

Shri B. Das

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mentions mothers of ex rulers. Shri Himmat Singh K. Maheshwari also talks of the wives of ex rulers.Neither are any specific point on woman. 14 October - H.J. Khandekar Ar. 296, 299, 1949 asks how a Ar. 48, 112 of Woman, woman Draft mother and Rajpramukh has constitution women to be referred to. Statement Re mentioned four report of times. minority advisory committee 15 October Shrimati G. Jai Narayan Vyas Naziruddin Constituent 1949 Durgabai speaks mentions about Ahmad in very assembly rules Women 2, sex for amendment mother of ruler of sexist manner amendment. 1, to assembly Sirohi in complains that First schedule of Mother 1, rules. reference to drafting Draft sister 1, lady 7, Sirohi joining the committee has Constitution ladies 1. On Sunday Indian union. No put lady member holiday for specific point. to fight for their Christians- rules making Shrimati Annie task of fighting Mascarene . back difficult. Shrimati G. Durgabai gives a reply and expresses regret that some members of assembly still are on men/women business.

Shibban Lal Sakshena refers to G. Durgawati as sister. Referred as ‗good lady‘ by Dr. Pattabhi

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Sitaramayya.

16 October - - - Ar. 264A, 1949 274DD, 302AA, None of the 12 Schedule III, Ar. terms 13, 16,27, 42, mentioned. 280A, 85,111,112, 203, 122, 130, 169, 213—A, 215A of Draft Constitution 17 October Purnima Baneji H.V. Kamath - Motion Re 1949 on moves an allowance of Women 1 embarrassment amendment to members, Mother 2 of voting on Preamble Ar. 59, Daughter 1 name of God by suggesting use of 62,147,175, 13, Kamath‘s pronouns ‗her‘ for 302AAA, proposal to begin the country like Schedule IIIA, in the name of ‗her governance‘ Part XVIII, 315, the God. in the Preamble. 306A of Draft Also moves an Constitution, amendment for Pandit Govind Preamble wording Malviya has ‗sovereign‘ in words ‗sons and Preamble. daughters‘ in his amendment for Preamble.

VOLUME-11 (From 11th November 1949-26th November 1949)

Date Discourse by Discourse about Treatment of Other Remarks women women women 14 November - - - Presentation of 1949 Draft None of the 12 Constitution terms mentioned 15 November Purnima Banerji No specific - -do- 1949 for amendment discourse on Only Sex to Ar. 22. women. Kamath appeared once mentions sex amongst various equality in ensuring equal

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electoral roll. 16 November Purnima Banerji - - -do- 1949 withdraws her None of the 12 previous day‘s terms appear amendment on preventive detention as Ambedkar clarifies her concerns. 17 November - No specific - -do- 1949 discussion. Only woman Women and women mentioned in mentioned terms of twice. inequality that some sections are so poor that ‗their womenfolk‘ do not get clothes to wear. (Seth Govind Das)

18 November Shrimati Annie Sons include - -do- 1949 Mascarene gives daughters- Pandit Mother, sister, her speech about Lakshmi Kanta daughter, the great historic Maitra. woman, girl task the and women assembly has Shri N.V. Gadgil appear 11 done and need quotes the famous times. for strong centre. quote that law Mentions women parliament can do in passing. everything except change a man into woman. No specific discourse on women.

Shri Khandubhai Desai says if adult franchise not given how would we ensure representation to different groups, mentions women

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as one of the groups. 19 November Shrimati Renuka Rev. J. J. M. - -do- 1949 Ray outlines her Nichols Roy The terms sex, general opinion argues that a woman, on the woman who women and Constitution. marries an alien mother appear Talks of shall not be asked 12 times bloodless to leave her revolution in citizenship. She bringing country should be allowed together by Patel to her pre through marriage unification. citizenship .

Prof. Shibban Lal Saksena mentions Kaam Dhenu as ‗mother‘ of plenty. 21 November - P.T. Chako Shri Algu Raj -do- 1949 compares power Shastri refers to Mother, sister, of centre to that Durgabai as ladies of dominant ‗sister‘ mentioned 5 mother in law. times. Uses various sexist to define the mother in law.

Shri Algu Raj Shastri argues against being ‗pebbles of gold in the hands of handsome ladies and conquettes‘ through his own poem. 22 November Begum Aizaz Rohini Kumar - -do- 1949 Rasul says Chaudhary asks 29 times amongst other for protection ladies, mother, things how against women sex, woman constitution has and mentions the and women provided for same in next line appears equal rights of to protection of women which cows.

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have been long cherished in our Ajit Prasad Jain country but got congratulates debased for assembly on some time. formally recognizing Hansa Mehta equality of says Hindus do women which has not have purdah. been long part of Muslims do. our history. They should get rid of the same. In reference to Rohini Kumar‘s demand for protection from women, Mehta congratulates that house for not accepting the same saying that otherwise men would have to hide their faces in front of the world. 23 November - Alladi Krishna -do- 1949 Swami Ayyar - Women, talks how woman, providing mother, sister educational and sex qualification appears in toto would have de- 11 times franchised various sections of society including large number of women folk.

Shri Kamlapati Tiwari talks of outraging of our mother, our country which

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was lying trampled and outraged. 24 November Shrimati Constitution has - -do- 1949 Purnima Banerji given women Women, requests Rohini equal rights, mother, sister, Kumar although Britain lady, appears Chaudhari to not could do it at only 27 times take matters of later stage-Shri women‘s rights Ram Chandra lightly. She Upodhyaya believes that with freedom Shri A Thanu women are also Pillai mentions entering new about Hindu code arena. bill as progression, Shrimati G. freedom of Durgabai does women not speak of mentioned women. Points amongst other out various things. features of constitution.

Shrimati Ammu Swaminathan says amongst other things that it is great that rights of women have been ensured, the same will not only help in having equal right but also make them share equal responsibilities. 25 November - Ambedkar quotes - Govt. of India 1949 Irish Patriot (Amendment) Woman, Daniel O'Connel Bill ladies, wife who says….no Draft and women man can be constitution appeared 8 grateful at the

148 times. cost of his honour, no woman can be grateful at the cost of her chastity….

Pattabhi Sitaramayya says women showed way to Muslims by giving up separate electorate. Wife word mentioned twice by him in context of one person‘s right is another person‘s duty, wife‘s right to equality is husband‘s duty towards wife in matters of equality.

Constitutions should be so small to be put in ladies handbag- Shri T.T. Krishnamachari 26 November - - - Amendment Re 1949 states, draft None of the 12 constitution terms mentioned

VOLUME – 12 ( 24th January 1949) Date Discourse by Discourse about Treatment of Other Remarks women women women members

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24th January - Shri B. Das raises - Re National 1950 concern about anthem Woman, less number of Election of new women, lady, women from members ladies appeared provinces. Election of 11 times. President of India Singing of Hindi translation of Constitution

( Purnima Banerj i with other Members sang "Jana Gana Man a" all standing.)

Note-

1. The assembly regularly referred to India as ‗mother land‘ and first language of a citizen as ‗mother tongue‘. Those references to ‗mother land‘ and ‗mother tongue‘ have been removed. 2. The assembly regularly used the term ‗men and women‘ ‗every man and woman‘ for example- sacrifice of ‗every man and woman‘ for the impendence of nation, right of ‗every girl and boy‘ to study. Such reference have been removed since they do not involve any direct discussion on woman or women‘s rights. If any specific discussion has happened then the same has been included. In these omitted references ‗men and women‘ were mentioned in one breathe without any specific discussion on woman. 3. Reference involving ‗Britain as mother of all parliaments‘ or ‗dominion sisters‘ of empire have been removed.

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