Women Representation in Decision-Making Portfolios vis-à-vis the Women Reservation Act, 2023: In Comport with Substantive Equality

Introduction

The long-overdue proposal around reserving one-third of the total seats for women candidates in the House of People and State Legislative Assemblies translated into a legal dictum on 28-9-2023. Following President Droupadi Murmu’s assent to the 128th Constitutional Amendment Bill, 2023¹, the ideal of securing women’s representation in decision-making portfolios received legal protection. The Women’s Reservation Act, 2023² apparently marks a welcome transition towards strengthening women’s visibility, voice, and participation in political offices.³

A trawl through the Women’s Reservation Act, 2023: Promotion of substantive equality or indirect discrimination

While a cursory glance over the letter and spirit of the Act of 2023 reveals progressive strides towards attainment of gender-equality, application of ideals of substantive equality allude to shrewd adoption of the tool of indirect discrimination. At this juncture, we may take recourse to the verdict, Ravina v. Union of India⁴­, wherein the Court discerned the import of the tool of “indirect discrimination”. It was delineated that indirect discrimination, being as real a form of discrimination as its direct underpinnings, circumvents the essence of equal treatment by adoption of seemingly (or facially) neutral criteria while disregarding the underlying effects of a provision, practice, or criterion. The tactics exemplified in Griggs v. Duke Power Co.⁵, unravels deceit and manipulation that are adopted in indirect discrimination to perpetuate inequality through reliance upon apparently lawful procedures. It is at this juncture that the legal necessity to depart from rigid notions of formal equality is affirmed. Moreover, it now becomes crucial to review practices that appear “neutral on their face, and even neutral in terms of intent,” but are substantially “discriminatory in operation, and in terms of the outcomes they orchestrated”. This leads us to two distinct queries,

1. Has women representation in political decision-making turned into an enforceable legal reality following the enactment of the Women’s Reservation Act, 2023?

2. Would the real intent of the Women’s Reservation Act, 2023 be classified as a fitting example of substantive equality or as a mere tool to perpetuate indirect discrimination?

The Women’s Reservation Act merely features as a penultimate step towards achieving the women representation in political decision-making portfolios. The phraseology of the Women’s Reservation Act, 2023 evinces that its enforceability is mired in preconditions. The Act of 2023 spells out that provisions relating to reservation of seats for women in the House of People, State Legislative Assemblies and the Legislative Assembly of NCT Delhi are contingent upon,

(a) conduct of the first census after the commencement of the 106th Constitutional Amendment Act, 2023⁶, and;

(b) delimitation for the purpose of reservation of seats after collation of data⁷.

Contingent operation of the Women’s Reservation Act evinces that real-world realisation of women representation in political decision-making is a far cry from mere statutory promises. Prior to turning into a socio-legal reality, the legal aspiration of securing women representation in political decision-making seems fraught with the long-drawn process(es) of conduct of a census, collation of data and delimitation of seats. There is no gainsaying that the Women’s Reservation Act of 2023 merely features as a stepping-stone (and not as a substantial outcome) towards attaining equal female representation in political decision-making.

Why should substantive equality be incorporated in Indian law?

The concept of substantive equality transcends regular notions of equal treatment that are hinged on the idea of statutory parity alone. Substantive equality rather prefers a multi-dimensional mechanism that focuses on the underlying impact of a statutory mandate in addition to its semantic undertones. Pithily, substantive equality celebrates equal treatment as a living reality. The Women’s Reservation Act, 2023 merely provides a skeletal outline for attainment of equal representation for women in the public decision-making domain. Ergo, we may infer that the Act of 2023 is illustrates the unwelcome manoeuvre of indirect discrimination wherein the façade of equality is created through a seemingly neutral and equality-promoting law. The contingent application of the Women’s Reservation Act betrays all notions of substantive equality that aims at operationalising equality not as a dry-letter ethic but as a living reality. The precepts espoused in the Act of 2023 barely even endeavour to achieve equality as a living consequence, thereby, dismissing the substantive underpinnings of equality.

The Nitisha v. Union of India⁸ judgment is landmark in terms of its resolve in intertwining the menace wrought by indirect discrimination and the need to cement “a substantive conception of equality in the Indian context”.⁹ It was a trend-setting judgment where the Supreme Court cited a coterie of American and Canadian cases including Griggs case¹⁰ and Fraser v. Attorney General of Canada¹¹ before raising the clarion call to identify, evaluate and annihilate the tool of indirect discrimination from all realms of professional employment. The Nitisha verdict¹² serves as a pioneer in Indian jurisprudence as it incorporated the principle of substantive equality within the corpus of Article 14¹³. Substantive equality ensures that the ideal of equality is not merely protected by the letter of law, rather, equality is resoundingly achieved as an outcome by application of corresponding constitutional provisions. In the instant case which brewed up as a reaction against the Supreme Court’s decision in Ministry of Defence v. Babita Puniya¹⁴, the bone of contention underscored by the petitioner was unequal age-scales and time yardsticks in connection with physical tests/examinations when compared with prevailing age-scales for male candidates. While lady officers were made to undergo gruelling physical examinations during their late thirties, the age bracket assigned for male officers was mid-/late twenties. In the present verdict the Court identified the disparate age bracket(s) as a means to perpetuate indirect discrimination and scrapped the practice, thereby giving leverage to the concept of substantive equality. The Court as well identified the almost latent systematic practice of resorting to indirect forms of discrimination that are seemingly neutral, but discriminatory in essence and as an outcome. The Court remarked that “actions taken on seemingly innocent grounds can have discriminatory effects owing to structural inequalities that persist between classes and sections of the society”. The need to recognise and avert indirect discrimination was underscored in Ravina case¹⁵—

“We must clarify here that the use of the term ‘indirect discrimination’ is not to refer to discrimination which is remote, but is, instead, as real as any other form of discrimination. Indirect discrimination is caused by facially neutral criteria by not taking into consideration the underlying effects of a provision, practice or a criterion.”

The Court coloured the concept of equality in all-encompassing facets by adopting Sandra Fredman’s “multidimensional framework of substantive equality”¹⁶ by fusing the freedom from indirect discrimination to the shared socio-legal aspirations of—

(a) breaking the cycle of disadvantage (“redistribution”);

(b) redressing prejudice, stigma, etc.

(c) facilitating political participation and social inclusion (“participation”); and

(d) accommodating differences and achieving structural transformation.¹⁷

Besides Nitisha verdict¹⁸, Fredman’s fourfold framework of substantive equality has been embraced by the Indian Supreme Court in Air India v. Nergesh Meerza¹⁹, Anuj Garg v. Hotel Assn. of India²⁰, Indian Hotel and Restaurant Assn. (AHAR) v. State of Maharashtra²¹, Charu Khurana v. Union of India²² and Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa²³, among other substantial rulings. The adhesive running across these pronouncements is found in the Supreme Court’s resolve to—

1. Firstly, “break the cycle of disadvantage” by challenging the unjust status quo (exemplified through identification of socially entrenched yet unequal practice(s) involving prohibition of female employment in hotels²⁴ serving liquor or termination of their service as air hostess following marriage.

2. The status quo ought to be challenged in wake of discriminatory social practices and unfair statutes that create a spiral of prejudice and stigma (striking down of unjust legislations such as the Air India Employees’ Service Regulations²⁵).

3. An overhaul in social practices and statutes in comport with the essence of substantive equality fosters women representation and in inclusion in diverse professional roles.

4. Achieving equality for women “as a consequence” in public office.

Conclusion: Immediate enforceability over contingent application of the Women’s Reservation Act, 2023

When we evaluate the Women’s Reservation Act, 2023 on the anvil of the four-pronged test of substantive equality proposed by Sandra Fredman, it becomes apparent that it serves merely as a piecemeal measure towards the larger quest of achieving equal representation. Succinctly, at a time when the Women’s Reservation Act, 2023 should have been the ultimate formula that operationalises equal representation for women in public office, its true intent seems rather lost in a quagmire of contingent application and hefty prerequisites. At this juncture, it is imperative to note that a full-blown criticism of the “one-third reservation of seats clause for women” in the Act of 2023 is inconceivable. If we were to look at the flipside of the coin, the magnitude of the proposed exercise, involving reservation of seats for women at the elected national and State-level bodies, requires large-scale mobilisation of resources and authorities. Ergo, it is not wholly impracticable to propose a three-phased procedure comprising a census and a delimitation exercise for operationalising reservation for women in politics at such a massive electoral scale. Yet, what concerns the author deeply is the contingent enforceability of the Act of 2023. In a vein similar to that adopted in the 73rd²⁶ and 74th²⁷ Constitutional Amendment Act that reserves one-third of the total seats for women at the level of Panchayat and municipalities, the mandate of reservation should be passed with immediate effect. As a temporary arrangement, the delimitation and reservation exercise can be even carried out with the existing census data. The existing census data, even though outdated, has not been rendered obsolete in the present socio-political milieu. Speaking in legal terms, there is no gainsaying that the Women’s Reservation Act, 2023 necessitates a census, however, it is farce that the implementation of the Act be pre-empted by a census.