Looking back at the feminist fabric of India’s Constitution
The gendered assumption that ignores the contribution of women to the new charter constricts what it offers to people, particularly women
The Constitution was a charter for change. It called for the disruption of a deeply entrenched social order defined by inequalities of caste and gender, community and colour. The social revolution that the Constitution heralded is attributed almost entirely to the “founding fathers”. The gendered assumption that ignores the contribution of women to the new charter colours our reading of the Constitution and constricts the full enjoyment of what it offers to the people of India, particularly to women. That there were 15 founding mothers in the Constituent Assembly, and their very presence shaped a feminist vision, far ahead of its times, is often overlooked. The Constitution was not an act of paternal benevolence, as Achyut Chetan compellingly argues in his book Founding Mothers of the Indian Republic. The voices of these founding mothers transcend the text of the Constitution. Their aspirations resonate in the moral content of the directive principles where one finds the clearest statement of the constitutional vision for women.
Three-quarters of a century ago, at a time when there were very few women in the formal workforce, the framers of the Constitution laid the ground for creating conditions conducive to women entering the workforce in a very significant way. That itself was a radical break from the past. While the fundamental rights contained in Part III were made enforceable rights, unlike the Directive Principles of State Policy in Part IV, it is the latter that gives us an insight into the role the Constitution framers foresaw for women as equal partners in the workforce and in the task of nation building.
The fundamental rights gave women equality before the law under Article 14, the right against discrimination on grounds of sex under Article 15, equal opportunity in matters of employment under Article 16, and the right to a livelihood under Article 19(1)(g). The right to life and liberty under Article 21 was interpreted as capacious enough to enable the courts to secure for women, a range of freedoms – the right to bodily integrity, reproductive choices, sexual self-determination and access to nutrition, health, hygiene and other amenities, including those as basic as the access to toilets.
The potent and powerful vision contained in the Directive Principles of State Policy has not been adequately appreciated. The framers of our Constitution realised the importance of women in the workforce and sought to make it possible for them to realise their full potential. The object was not merely to secure financial independence for women. It went far beyond that. The endeavour was to bring to the table the enormous talent and value that women are capable of bringing to society. They realised very early in the day that a nation that does not actively and positively enable the participation of women will be the poorer - socially, economically and civilisationally. Simply granting rights was not enough. Creating a level playing field and equipping women to achieve the true content of those rights was far more imperative.
Article 39(a) of the Constitution provides that the State shall direct its policy towards ensuring that “citizens, men women equally, have the right to an adequate means of livelihood”. This could have myriad different meanings. It can be interpreted as a pitch for the financial empowerment of women. It underlines the need for equality of opportunity in matters of employment and education. It is also about the freedom of women to choose the occupation of their choice.
In court rulings such as in Anuj Garg’s case, the Supreme Court questioned patriarchal norms that prevent women from making unconventional professional choices. The court held that women were free to work as bartenders and their choices could not be stifled by citing safety concerns or perceived moral impropriety. Likewise, in Babita Puniya’s case, it was held that women have the right to be granted permanent commission in the armed forces. Women are not to be held back because the job is considered unbecoming or unsafe for them. The burden is on society to act positively and constructively to create suitable conditions and enable women to work in areas hitherto considered out of bounds for them.
Article 39(d) lays emphasis on equal pay for equal work for both men and women. Article 39(e) emphasises the need to protect the health and strength of workers, men and women. A working environment unconducive to raising a family is violative of the spirit of both fundamental rights and the directive principles.
Article 42 provides for “just and humane conditions of work and maternity relief”. “Just conditions” entail safe working conditions where women will be free from sexual harassment. Several decades before the Supreme Court delivered the ruling in Vishaka ( which eventually culminated in a law offering protection against sexual harassment in the workplace), our Constitution underlined the importance of fair and sensitive working conditions. When women take time off to nurture a family, they are compelled to suffer setbacks in their careers. Maternity relief, of which specific provision is made in Article 42, is doled out in the spirit of an accommodation to women. Society forgets that the time off is no favour to women but an invaluable investment in nurturing the next generation of citizens. It is society’s gain, myopically viewed as a burden that only the employer must bear.
The right to life entails a work-life balance. A woman has every right to enjoy both a fulfilling career and a family without being made to choose between the two. While even today, society makes it hard for women to achieve both, the directive principles aspired 75 years ago, to make these a reality for every Indian woman. Article 44 aspires for a uniform civil code of which the greatest beneficiaries will be women, whether in matters of inheritance or marriage and divorce. This too is an enabler of equal status. The directive principles, once dismissed as “pious platitudes”, contain a depth of vision that needs reflection on this 75th Constitution Day.
Madhavi Goradia Divan is senior advocate, Supreme Court of India. The views expressed are personal