Election Law 

Author- Sharlin Puppal
5th year, 9th Semester
MNLU Mumbai

Introduction

Democracy does not mean elections, it also means equal and effective participation in shaping the destiny of the country. If the majority of the population is denied a share in actual power, there exists no real democracy.[1] Decision-making is one of the most important functions of Leadership in a democratic system. The concept of democracy will only assume dynamic significance when political parties and national legislature are decided jointly by men and women in equitable regard for their interest and aptitude of both halves of the population. To get the democratic process started in any country, women should not be left behind in the process of decision making.[2]

Women in India have largely failed to represent in the political decision-making processes, in voicing their opinion on critical issues of governance in our country. The major reason for this being the exclusion in electoral politics and under-representations in electoral politics. A major factor which keeps the women out of politics is the very nature of Indian political situation. [3]However, there has been continuous underrepresentation of female in elections in legislative bodies and parliament elections.[4] The highest participation so far has been only in elections which were during the 2014 general elections.

The failure to pass the women’s reservation bill is the testimony about lack of seriousness amongst the political groups in taking into account women’s increased participation in electoral politics. The representation of women candidates in parliament is low up to 11.8 % and compared with the other countries that of Pakistan, Saudi Arabia and Afghanistan. There have been various statical studies that show a lack of women’s participation and representations in electoral politics. India’s worldwide rank is 148 countries in the representation of women in the government.[5]   

The question of reservation for women is to be considered from Article 15 (3) of the Constitution which states nothing can prevent the state to make special provisions made for women and children.[6] The Women Reservation Bill was introduced in the year 1996 and was passed in Rajya Sabha in 2010. The Women’s Reservation Bill is unique legislation that deals with the intersectionality of gender and caste. It has been the longest pending legislation in the parliament which has taken more than 20 years to pass. Therefore, the Central government and State governments will have to consider women’s reservation policy through Constitutional provisions to ensure women’s participation in electoral politics. For, a long time there has been a demand amongst various women political groups and parties, that women reservations should be granted, so they also get the opportunity to represent and to have their opinion in decision making, governance and law-making.[7]

Women Reservation in Panchayati Raj Institution

The 73rd and 74th Constitutional Amendment Act were passed in 1992[8], directing the Indian state government to pass at local levels, and in this, it was mandated to give reservations to women (one-third seats) in these local bodies for these local bodies by the Ashok Mehta Committee[9]. Article 243D clause (3) and clause (4) of the Constitution makes provision for reservation not less than one-third of seats for women candidates and for the seat of Chairpersons in Panchayats. The occupation of women of marginalized section on the post of Chairperson post is a huge social and political revolution. This was a landmark event that granted one-third reservation for women at the grass-root level, occupying a prominent position in the panchayats and municipal corporations and taking decisions for the rural and urban communities on many issues of concern. It was an important step for women’s empowerment.[10]

The outcome was that Panchayati Raj Institution was effective than expected in energizing women and has underscored the need for reservation in the higher bodies. The Ministry of Panchayati Raj conducted the study on the elected women representation and stated that women’s contribution to the developmental and changing social life of villages. Many of female representatives were given opportunities to raise their voices in gram panchayat was also assessed in the study. Women’s representation in the Panchayati raj has gone up to 42% beyond the reservation percentage.[11]

Contribution and Challenges

There are a total of 44% of elected women representatives in the Panchayati Raj Institution.[12] A survey was carried out under the Ministry of Panchayat on elected women representatives.[13] It was found out that reservations have played a major role in significant improvement in women entering into electoral politics. [14] It has been found out that women’s reservation has proved to be critical in promoting the disadvantaged sections of society. Now a majority of women representatives are no more proxy of their male relative, about 60% of women representatives are taking decisions on their own. Many of the young female candidate’s performance has better than people of older age. Their acceptability in panchayat meetings to raise issues freely has been 94 percent.[15]  

Even the participation of common women citizen in various activities have significantly improved.  In most of the villages, it has been found out that there has been caste and gender discrimination in the rural parts of India, the biggest allegation on this issue is that the real power has been usurped by the husband of women sarpanch. It has been found out through research and surveys that women’s reservations has led to increasing in political participation of women in successive elections in the Panchayati Raj institution. [16]

A survey was conducted on this issue, it was found that the reserved seats have increased chances of a woman winning the office by approximately five times. Reservation mainly works by introducing into politics a cohort of women that are unable to secure party tickets and win office after reservation lapse. Reservation will increase the probability of improving opportunities for participation in public life. Various Capacity building training has been conducted by UNDP amongst Indian women representatives at the village level. [17] Recently, the government has announced the willingness to increase to seats from one-third to one-fifth, however, till now no decision on this issue has been taken up.[18]

Other State Laws

The 11th Schedule of the Constitution of India was brought in which states can create special legislation for women’s reservation.[19] Maharashtra has 50 % reservation for women in local bodies. The government had approved reservation for women in elections of panchayat Samitis, Zilla Parishad, municipal councils and municipal corporations in the state. The Bombay Village Panchayats Act 1958, Maharashtra Zilla Parishads and Panchayats Samitis Act 1961, Mumbai Municipal Corporation Act, Bombay Provincial Municipal Corporation Act, 1949, The City of Nagpur Corporation Act, Nagpur Panchayats and Industrial Townships Act, 1965 which has increased from one-third to one-half.[20] Many states such as Bihar, Odisha, Punjab, Madhya Pradesh, Gujarat, etc. have granted  Reservation Rules have been created by respective states.

Case of Ashok Kumar Malpani v. State of M.P

In the State of Madhya Pradesh, an amendment was brought into force in the M.P Municipal Corporation Act, 1956 and the M.P Municipalities Act, 1962 by enhancing reservation in favor of women from 30% to 50% in municipal corporations and municipalities. The Constitutional validity was challenged in the backdrop of Articles 14 and 15 of the Constitution in the High Court, which adverts on the concept of reservation for women candidates in elections.

In this contest, the women are required to participate more in a democratic set-up especially in the ground democratic polity. The court admitted that the women representatives at various layers of democratic set-up is really quite low. The court was of the view that mere participation in the election and losing the same can never be equated with the decision-making process. The minimum reservation does not create any kind of impediment on the part of the state legislature to enhance the percentage of reservation for women candidates and also the argument that women up to 50 percent reservation would take up entire policy-making decision which will usher bad governance is totally baseless and premature.[21]

Women Reservation Bill (108th Constitutional Amendment Bill)

Chronology of the Origin of Bill 

The bill was introduced in the year 1996 as the private member bill, which was drafted by women parliamentarians across various parties such Pramila Dandavate, Geeta Mukherjee and Margaret Alva. The women’s representation was first debated in the constitutional assembly debate, but there was no response on inculcating it in the Constitution[22]. There has been series of policy recommendations by various committees of different ministries in the past which proposed the reservation of seats. There was report on the ‘Committee on Status of Women’ highlighted the low number of women members in political bodies and recommended seats to be served for panchayats and municipal bodies.[23]  Later on the National Perspective Plan for Women (1998) proposed a quota of 30% in panchayats, municipal bodies in 1988. [24] The National policy for empowerment of women (2001) stated that reservation shall be considered in higher legislative bodies. [25] In 1996, 1998 and 1999, Constitutional Amendment Bills were introduced to reserve seats for women in parliament. The bill was further examined by the Joint Parliamentary Committee of parliament. All three bills lapsed due to the dissolution of Lok Sabha. Later on, after 10 – 12 years, it was re-considered again in the Rajya Sabha and was passed in 2010, but was lapsed in the Lok Sabha. Later it came upon the discussion in 2018, but no initiative was taken to re-introduce that bill.

Committee Observations

Joint Parliamentary Committee Recommendations (1996)

A Joint Parliamentary Committee chaired by Geeta Mukherjee examined the 1996 Bill and made seven recommendations.  Five of these have been included in the latest 2008 Bill.  These are:

  • Including reservation in cases where the state has less than three seats in Lok Sabha (or less than three seats for SCs/STs and Anglo Indian’s.  
  • Including reservation for the Delhi assembly;
  • Changing ‘not less than one-third’ to ‘as nearly as may be, one-third’.  Two of the recommendations are not incorporated in the 2008 Bill.  The first is for reserving seats in Rajya Sabha and Legislative Councils. Sub-reservation for OBC women after the Constitution extends reservation to OBCs.[26]

The Standing Committee Recommendations

There have been two standing committees which have made observations on this bill. The Committee feels that already more than twelve years have elapsed after the Geeta Mukherjee Committee Report and still the much-required reservation has not reached 50 percent of the population of the nation, namely women. It strongly feels that further time should not be wasted; rather the Women’s Reservation Bill should be passed in Parliament and put in action without further delay.[27] The Standing committee considered two other methods of increasing representation.  One suggestion was to requite political parties to nominate women for a minimum percentage of seats.  The committee felt that parties could bypass the spirit of the law by nominating women to lose seats.  The second recommendation was to create dual member constituencies, with women filling one of the two seats from those constituencies.[28] 

Features of the Bill

Amendment under Article 330-A of the Constitution of India:

  • The Bill seeks to reserve one-third all seats for women in the Lok Sabha and the state of legislative assembly of Delhi. The allocation of reserved seats shall be determined by such authority as prescribed by parliament.
  • As nearly of as possible, one third of the total number of seats reserved for scheduled / scheduled tribe (SC/ST) in the Lok Sabha and the legislative assemblies shall be reserved for SC/ST women
  • Reservation of seats will cease to exist after 15 years of the Act.

The reserved seats shall be allotted in rotation to different constituencies in the state and union territory has only one seat in the Lok Sabha, the seat be reserved for women in the first general elections of every cycle of three elections. Similar rotations would apply to states.[29]

Political Challenges and Issues

The Bill was introduced in the parliament for many numbers of times but was not allowed to pass in the lower house of Parliament. Lack of collective political will amongst political parties has been the major reason for the delay in the passing of this legislation. There is a certain discrepancy for inculcating the OBC’s under this reservation in standing committees, however, it is not a genuine concern. The lottery system management is unjust for the candidate who is nursing his constituency and there need to be empirical surveys on constituencies. There was also a demand to have reservations within the party, however, there is no legitimacy in such claims and no assessment done whether women have been included in core committees of parties. Many of the political parties are apprehensive as far as women candidates are a concern, as a result, many candidates have to fight independently, vis-à-vis, many traditional male candidates possess economic power over the constituency[30]. There are issues pertaining to the rotation of reserved seats, since, many women candidates will not be able to contest from the same seat again and similarly many of male candidates cannot re-contest if the seats are reserved. Many of the lapsed bill has been re-introduced in the parliament, however, this legislation was never discussed again after lapsing. There have been recommendations to have dual constituencies, however, this is problematic since nobody would have an independent charge of the constituencies. There is no step taken by the government to build consensus on this issue or to even introduce the bill again in the parliament.

Conclusions

There exists imbalance of representation of women exists only at legislative bodies but also in various positions of government and executive. Reservations might alter the influence of voters and society at large scale. Any form of positive discrimination has been permissible within the Constitution. Panchayati Raj institutions have played significant role in bringing women representatives at grass-root level. Many States have granted 50% reservation for women candidates in elections. Decision making process need to be better defined, to diminish the possibility of capture and proxy participation and to have women decision-makers. The various surveys do indicate that women representative from Panchayati Raj has worked commendably in the development and overall well-being of society in villages and many of them would definitely want to work on the larger scale, however, they face various challenges in the political structure prevalent in India. Using this analogy, we can infer that women representatives require opportunities in political representation across all the parties. However, there has been a delay in passing legislation due to a lack of political will and lack of consensus on various issues. Women’s reservation can ensure women’s participation in electoral politics and they contribute in the decision-making and law-making processes in India.

Bibliography

  • Former J. Deepak Mishra, ‘Women Empowerment and Gender Justice’, SCC Online Articles, 2014.
  • Praveen Rai, ‘Women’s Participation in Electoral Politics in India: Silent Feminisation’, South Asia Research, Centre for the Study of developing Societies, Delhi.
  • Indra Swahney v Union of India AIR 1993 SC 477.
  • Usanatha Thapa, ‘Analysis of Women Representatives in Panchayati Raj Institution’, International Journal of Social Science and Economic Intervention 2019.
  • 73rd and 74th Constitutional Amendment Act, 19992, Article 243 of the Constitution. 
  •   Ashok Mehta Committee 1978.
  •   Study on EWR in Panchayati Raj Institutions: Based on Nationwide Survey of AC Neilsen ORG-MARG., National Government Publication, 2009.
  • Reservation vital in Election of Women Panchayat’s’, accessed on 26th Oct, 2020, http://archive.indianexpress.com/news/reservation-vital-in-election-of-women-to-panchayats-study/331632/
  •  Study on EWR in Panchayati Raj institutions: Based on Nationwide Survey of AC Neilsen ORG-MARG., National Government Publication, 2009.
  •  ‘Capacity Building of Elected Women Representatives and Panchayat Functionaries’ project of the Ministry of Panchayati Raj, Government of India, and the United Nations Development Programme (UNDP), India.
  • Sammena Dalwai, Aabhinav Tyagi, ‘Impact of Uttarakhand’s Reservation Judgement on Women’, Review of Women’s Studies, Economic and Politicaly Weekly, May 2020.
  • Rikhil R. Bhavnani ‘Do Electoral Quotas Work after They Are Withdrawn? Evidence from a Natural Experiment in India’, American Political Science Review. Vol. 103, No. 1 February 2009.   
  • ‘50% Reservation for Women in Local bodies’, accessed on 25th Oct, 2020, https://www.thehindu.com/news/national/50-quota-for-women-in-panchayats-planned/article8194551.ece
  • 11th Schedule of the Constitution of India.
  • Maharashtra Assembly Approves 50% Reservation for Women in Local Bodies, accessed on 25th Oct, 2020 , https://www.thehindu.com/news/national/other-states/Maharashtra-Assembly-approves-50-quota-for-women-in-local-bodies/article14683126.ece
  •  Ashok Kumar Malpani v. State of M.P AIR 2010 MP 64.
  •  Memorandum on Minorities by Rajkumari Amrit Kaur, March 20, 1947 and Report of the Provincial Constitution Committee, JuneJuly 1947, The Framing of India’s Constitution: Select Documents, (ed) B. Shiva Rao, 1967; and 18th July, 1947, Constituent Assembly Debates (Proceedings) Volume IV.
  • Towards Equality: Report of the Commission on the status of the Women in India’ (Chairperson: Smt Phulrenu Guha), Ministry of Education and Social Welfare, Department of Social Welfare, Government of India, 1998.
  • National Perspective Plan for Women – 1988-2000, Report of the Core Group set up by the Department of Women and Child Development, Ministry of Human Resource Development, Government of India, 1988.
  • National Policy for Empowerment of Women, 2001, Department of Women and Child Development, Ministry of Human Resource Development, Government of India.
  • Report of the Joint Committee on the Constitution (Eighty First Constitutional Amendment), December, 1996.
  • Standing Committee Recommendations, 36th Report on the Constitutional Amendment Bill, December 2009.
  •  Women’s Reservation Bill, accessed on 22nd Oct, 2020, https://www.prsindia.org/

[1] Indra Swahney v Union of India AIR 1993 SC 477.

[2] Usanatha Thapa, ‘Analysis of Women Representatives in Panchayati Raj Institution’, International Journal of Social Science and Economic Intervention 2019.

[3] Rajeev Dhawan, ‘Reservation for Women: The Way Forward’, 20 (1) NLSIU Rev. (1) 2009.

[4] Praveen Rai, ‘Women’s Participation in Electoral Politics in India: Silent Feminisation’, South Asia Research, Centre for the Study of developing Societies, Delhi.

[5] ‘Economic Survey Report on Women Representation in India’, accessed on 26th Oct, 2020, https://economictimes.indiatimes.com/news/politics-and-nation/womens-political-participation-in-india-low-need-more-economic-survey/articleshow/62696726.cms

[6] Article 15(3) of the Constitution of India.

[7] Women’s Reservation Bill, accessed on 22nd Oct, 2020, https://www.prsindia.org/

[8] 73rd and 74th Constitutional Amendment Act, 19992, Article 243 of the Constitution. 

[9] Ashok Mehta Committee 1978.

[10] Study on EWR in Panchayati Raj Institutions: Based on Nationwide Survey of AC Neilsen ORG-MARG., National Government Publication, 2009.

[11] Ibid.

[12]‘Inter-Parliamentary UN Report Women in Politics 2017’, https://economictimes.indiatimes.com/news/politics-and-nation/womens-political-participation-in-india-low-need-more-economic-survey/articleshow/62696726.cms

[13] Ibid.  

[14] ‘Reservation vital in Election of Women Panchayat’s’, accessed on 26th Oct, 2020, http://archive.indianexpress.com/news/reservation-vital-in-election-of-women-to-panchayats-study/331632/

[15] Study on EWR in Panchayati Raj institutions: Based on Nationwide Survey of AC Neilsen ORG-MARG., National Government Publication, 2009.

[16] Ibid.

[17] ‘Capacity Building of Elected Women

Representatives and Panchayat Functionaries’ project of the Ministry of Panchayati Raj, Government

of India, and the United Nations Development Programme (UNDP), India.

[18] ‘50% Reservation for Women in Local bodies’, accessed on 25th Oct, 2020, https://www.thehindu.com/news/national/50-quota-for-women-in-panchayats-planned/article8194551.ece

[19] 11th Schedule of the Constitution of India.

[20] Maharashtra Assembly Approves 50% Reservation for Women in Local Bodies, accessed on 25th Oct, 2020 , https://www.thehindu.com/news/national/other-states/Maharashtra-Assembly-approves-50-quota-for-women-in-local-bodies/article14683126.ece

[21] Ashok Kumar Malpani v. State of M.P AIR 2010 MP 64.

[22] Memorandum on Minorities by Rajkumari Amrit Kaur, March 20, 1947 and Report of the Provincial Constitution Committee, JuneJuly 1947, The Framing of India’s Constitution: Select Documents, (ed) B. Shiva Rao, 1967; and 18th July, 1947, Constituent Assembly Debates (Proceedings) Volume IV.

[23] Towards Equality: Report of the Commission on the status of the Women in India’ (Chairperson: Smt Phulrenu Guha), Ministry of Education and Social Welfare, Department of Social Welfare, Government of India, 1998.

[24] National Perspective Plan for Women – 1988-2000, Report of the Core Group set up by the Department of Women and Child Development, Ministry of Human Resource Development, Government of India, 1988.

[25] National Policy for Empowerment of Women, 2001, Department of Women and Child Development, Ministry of Human Resource Development, Government of India.

[26] Report of the Joint Committee on the Constitution (Eighty First Constitutional Amendment), December, 1996.

[27] Standing Committee Recommendations, 36th Report on the Constitutional Amendment Bill, December 2009.

[28] Ibid.

[29] Women’s Reservation Bill, accessed on 22nd Oct, 2020, https://www.prsindia.org/

[30] Rajeev Dhawan, ‘Reservation for Women: The Way Forward’, 20 (1) NLSIU Rev. (1) 2009.

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