'Nationalism Wasn't Sole Preserve of Men' : Justice Nagarathna Highlights Women's Role In Constituent Assembly

Justice BV Nagarathna of the Supreme Court recently highlighted the pivotal role played by women in the framing of the Constitution of India, focusing on the contributions of the fifteen women members of the Constituent Assembly in shaping an inclusive and transformative Constitution.

Justice Nagarathna emphasized that the Indian women's constitutional imagination was not limited to political liberty but also sought the radical transformation of the private sphere, which was essential to assure the dignity of women.

“the Indian women's constitutional imagination sought the radical transformation of the private sphere through the political force of nationalism. In other words, revitalising the private sphere and assuring the dignity of women, was the cornerstone of the national agenda for social renaissance. Nationalism in India was neither the sole preserve of the men nor merely preoccupied with political liberty”, Justice Nagarathna said.

Justice Nagarathna delivered the keynote address titled “Home in the Nation: Indian Women's Constitutional Imagination” at the Pluralist Agreement and Constitutional Transformation Conference organized by NLSIU, Bengaluru on August 3, 2024.

Justice Nagarathna began by acknowledging the fifteen women members of the Constituent Assembly. These women were Ammu Swaminathan, Dakshayani Velayudhan, G. Durgabai (also known as Durgabai Deshmukh), Hansa Mehta, Leela Roy, Purnima Banerjee, Rajkumari Amrit Kaur, Renuka Ray, Sarojini Naidu, Vijaya Lakshmi Pandit, Begum Aizaz Rasul, Kamla Chaudhary, Sucheta Kriplani, Malati Choudhary, and Annie Mascarene.

The Indian women's movement, Justice Nagarathna said, cultivated a transformative yet pragmatic constitutional imagination. These women ensured that the struggle to transform the private sphere was intertwined with the quest for national enfranchisement and emancipation, she said.

The 1940 Report of the Sub-Committee on Woman's Role in Planned Economy advocated for unrestricted voting rights, equal inheritance, and equal social and economic opportunities for women. Rajkumari Amrit Kaur described this inclusive approach as 'constructive citizenship'. Justice Nagarathna highlighted.

Justice Nagarathna also noted that these women were involved in various sub-committees of the Constituent Assembly, where they used written notes of dissent and submissions to convey the perspective of the women's movement. Despite their numerical inferiority, their effective rationalization and active pursuit within the Committees ensured that their perspectives were not lost in a predominantly male assembly, she said.

Justice Nagarathna highlighted the contribution of Renuka Ray, who served as the only woman member of the Hindu Law Committee. She supplemented the reformist stance with constructive readings of shastric texts and judicial pronouncements of the colonial state, advocating for securing absolute estate rights for women.

Justice Nagarathna highlighted that women leaders in the Constituent Assembly aimed to challenge traditional notions of female inferiority and integrate gender equality into the constitutional framework.

Smt. Hansa Mehta drafted the Indian Women's Charter of Rights and Duties in 1946 adopted by the All-India Women's Conference, which embodied the principles of gender equality. Justice Nagarathna said that the Charter's spirit is reflected in Articles 14, 15, and 23 of the Constitution. She highlighted Rajkumari Amrit Kaur's assertion that women constituted 'technically the largest minority' underlined the pervasive discrimination against them.

Despite their numerical minority, Justice Nagarathna said, women members of the Constituent Assembly, including Rajkumari Amrit Kaur and Smt. Hansa Mehta, effectively advocated for gender equality through written dissent and committee submissions. Other members, such as Dakshayani Velayudhan, Aizaz Rasul, and Annie Mascarene, actively pursued practical measures for women's safety and empowerment, reflecting the constitutional principles even as they were being formulated, she said. Citing Prof. Achyut Chetan's book “Founding Mothers of the Indian Republic”, she highlighted that Renuka Ray focused on mental health for refugee women, while Durgabai Deshmukh pushed for vocational training and education for women affected by Partition violence.

Aizaz Rasul called for the recruitment of women in defence services, opposed the Armed Forces (Special Powers) Bill, and emphasized the need for women in diplomatic roles and Employment Exchanges. Ammu Swaminathan sought employment assistance for female medical personnel, while Annie Mascarene pushed for better salaries and equipment for nurses and female medical workers.

Dakshayani Velayudhan took special interest in advocating for the rights of Dalit girls and female factory workers and highlighted the state's responsibility to actively ensure equality and address untouchability. The Constitution's Preamble and Articles 38, 39, and 46 emphasize social justice and the inclusion of marginalized groups through political reservations for Scheduled Castes and Scheduled Tribes.

She reminded the Constituent Assembly of the state's responsibility to actively manifest the Constitution's transformative intent to ensure equality before the law and equal protection for all, Justice Nagarathna said.

Justice Nagarathna said that Durgabai Deshmukh made significant contributions by demanding vocational training for refugee women victims of Partition violence, a special budget for women's education, and raised questions about women's recruitment into the Indian Administrative Service (IAS) and Indian Police Service (IPS). Durgabai Deshmukh, in her Constituent Assembly speech, envisioned the Supreme Court as a protector of the Constitution and fundamental rights.

She played a key role in expanding Article 25(2)(b) of the Constitution and moved an amendment substituting the words “all classes and sections” instead of “any class or section” to ensure that Hindu religious institutions are accessible to all classes and sections, not just selected groups, Justice Nagarathna noted.

Justice Nagarathna noted that G. Durgabai's approach to the amendment exemplified the strategic decision-making of the Founding Mothers aimed at reform and transformation.

Justice Nagarathna further noted that women members of the Constituent Assembly played a crucial role in shaping the Constitution by ensuring that the Directive Principles of State Policy (DPSPs) were not merely advisory but fundamental to governance. She said that their efforts led to a significant transformation of Article 37, as noted by Justice Bhagwati, making DPSPs a core component of constitutional law. Rajkumari Amrit Kaur and Hansa Mehta influenced this change, which emphasized that DPSPs should guide state actions and legislation, Justice Nagarathna said.

Justice Nagarathna further pointed out that Ammu Swaminathan felt that the Constitution's dual focus on Fundamental Rights and DPSPs is essential for social transformation. This framework has enabled the Supreme Court to drive socio-economic reforms and ensure a harmonious interpretation of these constitutional provisions, Justice Nagarathna added.

Justine Nagarathna stated that Indian women's constitutional efforts have significantly focused on social transformation and justice and the key to this transformation is addressing social hierarchies and ensuring financial independence for women, which helps mitigate economic exploitation and supports their participation in the workforce. She highlighted recent Supreme Court rulings that underscore the importance of this financial independence: the Court upheld a woman's right to maternity leave even after using childcare leave and confirmed that divorced Muslim women are entitled to maintenance under Section 125 of the CrPC, reinforcing that financial security is crucial for societal stability.

Political empowerment is also essential for inclusive governance, she added, noting Karnataka's mandate that at least 50% of local body representatives be women reflects this principle. A 2011 Karnataka High Court authored by Justice Nagarathna in T. Venkatesh v. State of Karnataka addressed discriminatory rules that limited women's leadership roles, ruling that such restrictions violated principles of equality under Article 15(3) and ensuring equal opportunities for women in local governance.

Justice Nagarathna emphasised that the role of women in shaping India's Constitution extends beyond their contributions to the women's movement; they played a crucial role as constitutionalists with a forward-thinking approach. G. Durgabai envisioned the Governor as a neutral figure above party politics, aiming to foster harmony, she pointed out, noting that current practices often fall short of this ideal.

Purnima Mukherjee advocated for explicitly stating the sovereignty of the people in the Preamble, arguing that it should reflect the people's ultimate authority beyond periodic elections. This foresight has strengthened India's constitutional democracy, Justive Nagarathna opined.

Indian women's contributions have reinforced the Constitution's endurance by emphasizing federalism, fraternity, fundamental rights, and principled governance, Justice Nagarathna emphasised. She added that the Supreme Court's rulings on maternity leave and maintenance for divorced Muslim women highlight the ongoing need for financial empowerment and gender equality.

Principled governance and adherence to the Directive Principles are essential for achieving social justice and economic democracy, Justice Nagarathna underscored. She emphasised that the judiciary's role in protecting fundamental rights and ensuring equitable justice is critical.

Justice Nagarathna concluded by adverting to Hansa Mehta's thoughts during the closing discussions of the Constituent Assembly on November 22, 1949 that the Constitution's effectiveness relies on its application in the interests of the people.

“The valuable endeavours and efforts of our Founding Mothers must be carried forward by every succeeding generation of not only women but by all concerned. They did not limit themselves to only gender rights or women's position in Indian society. The responsibility lies with us”, Justice Nagarathna said.

Also read - 'Women in Constituent Assembly' series. 

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