In January 2018, the Centre for Women’s Development Studies, (CWDS) New Delhi brought out a calendar titled ‘Women at the Midnight Hour’.[1] The very first image in the calendar is an arresting black and white photograph of eleven women—six seated and five others standing behind them. These distinguished and dignified women were members of the Constituent Assembly of India, the august body which framed the Constitution. This initiative by the CWDS—to have a calendar devoted to the women framers of the Constitution of India is significant on many counts.
When I began my research on the women members of the Constituent Assembly in 2007, more than a decade before the CWDS calendar, there was not even a cursory mention of these women in any scholarly or academic article. (Interestingly, even as late as in 2018, the editors of the CWDS calendar had failed to identify two of the eleven women in the photograph). This was curious since there was enough evidence of their presence in constitutional history in the archives, in the official documents and the journalistic accounts of the period. Their signatures are on the pages of the very first copy of the Constitution.
Signatures of some members of the Constituent Assembly. Those clearly identifiable are of Amrit Kaur, Vallabhbhai Patel, Jagjivan Ram, B. R. Ambedkar, and Syama Prasad Mookerjee; in the right column are Dakshayani Velayudhan and B. Shiva Rao.
It was their absence from discourse that my father, an advocate and bibliophile, had lamented about in the course of a conversation and had triggered my curiosity. Indeed, my preliminary reading of secondary literature confirmed what my father had said, i.e., there were paeans to the ‘founding fathers’ in almost all essays and monographs by historians, political thinkers, scholars of constitutional studies or jurisprudence but almost no mention of the role of the women members of the Constituent Assembly in framing the Constitution. Research in the archives was an eye-opener and led me to investigate the trajectory of the ‘missing mothers’ of the Indian Republic, whose contributions have been omitted or erased from history.
Who were these missing mothers? And why are they missing from the pages of history? Initially, 15 women were elected as members of the Constituent Assembly. They were: Sarojini Naidu, Hansa Mehta, Rajkumari Amrit Kaur, Begum Aizaz Rasul, Begum Jahanara Shahnawaz, Begum Shaista, Suhrawardy Ikramullah, Ammu Swaminathan, Dakshayani Velayudhan, G. Durgabai (later Durgabai Deshmukh), Sucheta Kripalani, Vijayalakshmi Pandit, Purnima Banerjee, Kamala Chaudhary, Leela Roy and Malati Chaudhary. Renuka Ray and Anne Mascarene became members after later elections and nominations. Unfortunately, during the four years that the Constituent Assembly functioned, the number of women members in the Assembly decreased—a trend which had its own gender-politics that was lamented by women even during the course of the framing. Each time a woman had to leave the Constituent Assembly, she was replaced by a male member which was read by the women members as a form of denial of the special positions that they represented during the founding moment. Not just asking for women to replace women members who had left the Assembly for various reasons, Purnima Banerjee had demanded that women should also replace men who created vacancies. ‘Women could have also filled up these places with equal merit’, she insisted and demanded that ‘they should have been invited Constituent Assembly’.[2] While this shows that women members saw themselves as representing a constituency within the Constituent Assembly, the fact that women were leaving the Constituent Assembly, too, is evidence that they belonged to a larger political and social network. After the formation of Pakistan, the women of the Muslim League— Shaista Ikramullah and Jahan Ara Shah Nawaz—did not participate in the deliberations of the Indian Constituent Assembly. The latter, in fact, was a leading figure in the Pakistan movement; having once been an important office-holder of the All-India Women’s Conference, she went on to become the Vice-President of the Constituent Assembly of Pakistan. Sarojini Naidu, the doyen of liberal feminism (and politics), left the Constituent Assembly to become the Governor of the United Province in 1947 and passed away before the final draft of the Constitution was prepared; Malati Chaudhury resigned to work for her Gandhian projects of social service in Orissa; and Vijayalakshmi Pandit left the Assembly to serve as the Indian Ambassador to the Soviet Union.
In what follows, I attempt to give a brief account of the role played by the women members of the Constituent Assembly who participated in its deliberations and contributed immensely to the shaping of its discourses.[3] I present these “missing mothers”, who have been erased from the history of the making of the Indian Constitution, as a collective that represented, albeit with internal differences, the feminist authorial voice in the Assembly. As feminists who were already leading an organized movement for women’s rights between the interstices of anti-colonial nationalism and several other ideological movements, they knew that they had an important role to play in the shaping of the Republic. They had actively campaigned for their membership to the Constituent Assembly and had lobbied for the selection of several women who they believed could make a difference to the framing of the Constitution. Brief examinations of the biographies of some of the women members will bring to the fore that they were exceptional individuals who were eminently suitable to bring in exceptional originality and sharpness of perspectives to the discourses of the Assembly. As individuals who participated in the women’s movement of the 1930s and 40s, they also shared a vision— I call it the ‘moral imaginary of the women’s movement’—that they aspired to be recognized by the founding document of the new republic.
Women members of the Constituent Assembly seated for a photo session during the framing process. Back row (standing), from left: Kamala Chaudhari, Sucheta Kripalani, G. Durgabai, Qudsiya Aizaz Rasul, Purnima Banerji, Dakshayani Velayudhan. Front row (sitting), from left: Renuka Ray, Hansa Mehta, Rajkumari Amrit Kaur, Annie Mascarene, Ammu Swaminathan.
Source: Meera Velayudhan, personal collection.
It may be tempting to assume that these women were too few in number to be able to make any significant difference to the process through which the Constitution was shaped. The truth, however, is that in spite of being a minority in terms of number, they were uniquely prepared for the job because many of them had been veterans of what is understood as constitutional politics during their long involvement in women’s organizations. The women members of the Constituent Assembly were familiar with constitutional procedures within their own organizations and were equally adept at drafting memoranda, notes of dissents, petitions and reports on the status of women. This had prepared them to steer their own ideas and demands through the maze of procedures and debates in the Constituent Assembly despite its heavily male-centric and masculine ethos. They worked as a team and had strategies in place which would allow them to get their voices heard even if they were not necessarily vocal during the debates. Their being in minority, thus, was not as much a handicap as it might seem from a superficial glance at the archives.
In lieu of a conclusion, I shall look at some of the probable causes of their lamentable omission from history. They have been subjected to an erasure that has helped to perpetuate patriarchal narratives of the making of the Indian Republic in which all shaping sensibilities have been abrogated to men. The implications of this erasure for Constitutional interpretation and jurisprudence in postcolonial India is vast and remains to be ascertained.
I
The Constituent Assembly was formed through indirect elections and nominations from the Provincial Assemblies under stipulations laid down by the Cabinet Mission Plan of May 1946. According to the Plan, the number of representatives was fixed for different communities from each province. This had, inevitably, made the task of selecting women candidates for the Assembly difficult, not only because it circumscribed the choices from all provinces but also because it meant privileging community-based identities above gendered identities of women. To be certain, from the very beginning there were anxieties about the suitability of women as participants in the framing process since the dominant discourse and its implicit gendering assumed that it was difficult to find women who were adept at the manoeuvres of politics and could participate in debates and discussions that shaped the constitution.[4] There were at least 25 women whose names were suggested and discussed among various Provincial Assemblies, and the various branches of the three major women’s organizations of the times. These were the Women’s Indian Association (WIA) founded by the Irish theosophist and feminist Margaret Cousins in 1917, the National Council of Women in India (NCWI) founded by Mehribai Tata and her associates in 1925, and the All-Indian Women’s Conference (AIWC) founded in 1927.[5] Among these organizations, it was the AIWC, the last to be formed, that emerged as the most visible and recognized platform of women’s collective movement in India by the time the Constituent Assembly was conceived. One possible reason for this was the AIWC’s refusal to tag itself to any single political party. The second reason could be its avowed aim to represent women as a unified interest group while being sensitive to the issues of diversities of women’s experience. This was not an easy task, and yet AIWC and other women’s organizations had staked their claim that they were unified in spite of the differences in terms of class, caste and religion or community. They claimed representation in the Constituent Assembly because they realized that their opinion and perspectives were of vital importance for the welfare of the nation and humanity.[6]
While it is undeniable that a very large number of women who made it to the Constituent Assembly were elite women of upper class and caste—this included the Muslim members who came from titled families—there was also an attempt to include women whose politics and ideology was not that of Congress. Thus, among the names that were widely circulated was Kamaladevi Chattopadhyay’s who was an important socialist leader of her time but could not be selected because the Socialist Party chose to stay away from the Constitution making process.[7] Later, sometime in 1948, Jayaprakash Narayan regretted it and requested Rajendra Prasad to induct Kamaladevi Chattopadhyay into the Constituent Assembly. But by that time, there were no vacancies and also the clamour for seats was such that once a woman would resign or die, that seat would be filled by a man—a practice which was consistently protested against by women in the Constituent Assembly. Kamaladevi Chattopadhyay, herself later regretted that the decision of the Socialist Party to be away from the Assembly led to the adoption of a Constitution, which, ‘for all its grandiose garb, to me seems ill suited to this country.’[8] The Indian State constituted by it, she complained, has acquired ‘the garb of a bogus socialism’.[9] Prabhavati Devi Narayan, wife of Jayaprakash Narayan, herself an important Gandhian woman was also being considered.[10] Besides ideological affiliations, attempts were also made to ensure that women representatives of minority religious communities, too, are elected to the Assembly. For example, the list of putative women candidates prepared by Hansa Mehta was supplemented with names of Christian and Parsi women by Lakshmi Menon who alerted Mehta that ‘recent tendencies have been to alienate the Parsis’.[11] It would not be entirely erroneous to suggest that there was a certain principle of including women belonging to different community, caste and ideology.
Ideologically, however, since the women’s movement of the time was decisively challenging the conservative legal and cultural traditions, especially in the sphere of personal laws, their candidates also faced hostility and opposition from certain quarters. Sometimes, these oppositions were simply inspired by the fact that they were women claiming the right to be authors of the Constitution of India. I shall briefly mention two such examples, the case of Dakshayani Velayudhan—the sole Dalit woman member of the Constituent Assembly, and that of Renuka Ray—the leading woman activist at the forefront of the movement for the reforms in Hindu Law.
At the moment, it is worth repeating that Indian feminists were aware that the socialist democratic Constitution and its values of equal rights and opportunities were matters of great importance for women long before the circular issued by the All India Congress Committee on 4 July 1946, asking that all provincial Congress legislatures elect some ‘specific’ women candidates to the Constituent Assembly.[12] They were elected to the Assembly not because of magnanimity on the part of the ‘high command’ of the Congress but as a result of their sustained engagement in constitutional politics and feminist activism. What they had brought into the Constituent Assembly was a well-conceived and robust jurisprudential vision of the future of the nation.
In the next section I focus on four women members of the Constituent Assembly, three of whom—Hansa Mehta, Amrit Kaur, and Renuka Ray—were members of the AIWC, and the fourth, Dakshayani Velayudhan was not. The choice is not random but guided by a desire to bring to the fore some idea of the range and diversity of the women members in terms of their class, caste and community affiliations.
II
Hansa Mehta (1897-1995) was the daughter of Sir Manubhai Mehta, a reputed educationist and a philosopher, and was herself a highly educated and accomplished woman. She had degrees in philosophy and journalism but had a great interest in several subjects including sociology which she nurtured through her love for travelling and field research. As Vice Chancellor of the MS University, Baroda, she was responsible for introducing the eminent sociologist MN Srinivas to Indian academia. Her academic and intellectual interests fed into engagement with the women’s movement from her very early days. In 1924, Hansa Mehta married Dr Jivraj Mehta and this inter-caste marriage created a major furore among the conservative society. By the 1930s, Hansa Mehta began to make depositions before various commissions concerned with the codification of the Hindu Law. She wrote tracts that envisioned a gender equal and gender just society. She was one of the pioneers of the post-war human rights movement, a fact that has only recently begun to be recognized.[13] Hansa Mehta was the author of the Indian Women’s Charter of Rights and Duties which constituted the foundational document for Indian women’s campaign for constitutional rights and human rights in India. She was a member of the commission on Human Rights which drafted the Universal Declaration of Human Rights.
Hansa Mehta with Eleanor Roosevelt at the UN Commission on Human Rights, 1 June 1949, New York.
Source: UN Photo Digital Management Asset System; Unique ID: UN7499124 (https://bit.ly/3Zz9ggx, accessed on 25 May 2021)
When she was in the United Nations, she also ensured that her colleagues Renuka Ray and Sucheta Kripalani become members of very important committees—Commission on Right to Information and Commission on the Right to Protection against Human Trafficking respectively. Vijayalakshmi Pandit was the Indian ambassador to the UN and the first President of the General Assembly. Amrit Kaur was a member of the Commission for the Drafting of the Constitution for UNESCO.
These instances are proof that Hansa Mehta played a crucial role in bringing in other capable women to these important international organizations. She was not looking for personal glory but a sisterhood of capable women. The ability to work in tandem with women and men was part of her capable leadership and this was one of the important qualities she brought to the table as a member of the Constituent Assembly. As we shall see later, Hansa Mehta along with Amrit Kaur was responsible for drafting some of the very crucial Articles of the Directive Principles and Fundamental Rights.
Unlike Hansa Mehta, who belonged to the upper echelons of society, Dakshayani Velayudhan was born in the ‘slave-caste’ of Pulaya in a rural area in Cochin. According to her daughter, Meera Velayudhan, Dakshayani was ‘the first girl to wear an upper cloth, the first Dalit woman graduate in India, a science graduate, a member of the Cochin Legislative Council and of the Constituent Assembly. She also resisted by not walking with shoulders bent or making way for upper castes while walking.’[14]
Dakshayani’s struggle is a truly heroic one; in terms of the current discourse she was doubly marginalized, as a Dalit and as a woman, and her distinctive engagement with the issue of annihilation of caste has to be understood in the light of this. In her youth she was inspired by the anti-caste cultural politics in Cochin in which the formation of the Pulaya Mahajan Sabha constituted a key moment. The first meeting was held literally at sea on boats or rafters which had been attached together. Though Dakshayani’s political initiation happened during the Poona Pact and though she had a great admiration for B.R. Ambedkar, she did not support separate electorates. It is possible that one of the reasons for this was her strong bond with Gandhi, who along with his wife Kasturba blessed her marriage with the Dalit leader R Velayudhan in Sevagram at Wardha.[15]
On the caste-question, Dakshayani never felt encumbered by group pressure of any kind. She never joined the All-India Women’s Conference despite her feminist politics and even though rooted firmly in the Congress in the 1940s, she participated in the activities of the All India Scheduled Castes Federation in Madras. She was not shy of criticizing Congress leaders for failing to attend to the task of social transformation and did not spare the Drafting Committee led by BR Ambedkar for preparing a Constitution that was ‘barren’ of the ‘ideas and principles’ that were regularly professed by the great leaders.[16]
In her election to the Constituent Assembly from Madras, she was faced with stupendous hostility. She had defeated a prominent leader of the Dalit movement, Rao Bahadur Sivaraj, a leading lawyer and the then Mayor of Madras. Her election was opposed on the grounds that she was a woman and not from Madras—thus a male Harijan activist from Madras sat on fast unto death demanding that she be replaced by a Harijan from Madras.[17] In her inaugural speech in the Assembly on 19 December 1946, Dakshayani had expressed her hope that that the Constitution would be able to push through for a society which was free from fetters created by a traditional conservative society especially one that was able to effectively resist caste discrimination. ‘To frame a constitution is an easy job,’ she had said, ‘because there are many models for us to imitate. But to renew a people on a new foundation requires the synthetic vision of a planner. The Independent Sovereign Republic of India plans a free society.’[18] It was a new Constitution for which there were no models from the past, one in which ‘the power comes from the people’ and there would be ‘no barriers based on caste or community’.[19]
Rajkumari Amrit Kaur (1889-1964) was Christian (one that made her a minority in terms of the Cabinet Mission Plan) but also had the advantage of being a member of the titled elite. Her parents, including her father Raja Sir Harnam Singh, of the Kapurthala estate, were Presbyterians who inculcated in her a love for austerity and a spirit of high-minded humanism. Amrit Kaur went to school in England and was partly educated at Oxford. She was a member of the AIWC since 1929 and as an erstwhile president and influential member had worked hard to ensure that Hansa Mehta was elected as the President of the All-India Women’s Conference during the crucial period of constitution-making.[20] As a leader of the women’s movement, she worked as a link between the old guard and the younger activists, and also facilitated organizational work thanks to her proximity with Mahatma Gandhi. An contemporary of Jawaharlal Nehru, Amrit Kaur was his close associate both when the Constituent Assembly was formed and later when she was the Health Minister in his cabinet. She was one of the founding spirits behind the All-India Institute of Medical Sciences in New Delhi. In the Constituent Assembly, besides her role in the Fundamental Rights Sub-Committee and the Minority Sub-Committee, she intervened frequently on questions related to the status of health in the federal structure of the State.
Renuka Ray (1904-1997) was daughter of Charulata Mukherjee, a former President of the AIWC and one of its founding members. She had studied at the London School of Economics, where she was taught by the socialist thinker Harold Laski, and had herself remained a dedicated socialist all her life. She had keen interest in the impact of legal systems on women’s life and was a member of numerous committees—including BR Ambedkar’s Parliamentary committee on the Hindu Code Bill—made for the reforms in Hindu Law. Her numerous articles and reports constitute an important plank of social thought in modern India. After independence, she had chaired the Government of India’s Committee for the welfare of Scheduled Castes and Tribes, was the Minister for Refugee Rehabilitation in the West Bengal Government and had campaigned for educational reforms.
Through her work as the convener of the Legal Disability Sub-Committee of the AIWC, Renuka Ray had earned the ire of organizations like Hindu Mahasabha and several ‘women sponsored by reactionary men’ against whom she had rallied the progressive elements of the society.[21] She had close ties with Kitty Shiva Rao, with whom she had prepared several drafts for reforms in Hindu family law, and in the course had already developed a collaborative relation with B N Rau—the Constitutional Adviser to the Constituent Assembly. There were attempts to scuttle her appointment to the Constituent Assembly who was considered ill-suited on the ground that ‘she was of the Brahmo Samaj and hence ill conversant with the Hindu Law’ which the Constituent Assembly was anticipated to reform [22] The women’s wing of the Hindu Mahasabha, Akhil Bharatiya Hindu Mahasabha protested against the inclusion of such women to the Assembly for fear that they may permanently de-stabilize the Indian society. Not surprisingly, Renuka Ray had lost the First Lok Sabha elections to NC Chatterjee, the leader of the Hindu Mahasabha.
Women’s participation in the Constituent Assembly is an exemplary site of collaboration among women who came from different backgrounds and yet converged in their politics to introduce a feminist moral imagination in the Constitution of India. This is neither to suggest that women always spoke in the Constituent Assembly in one voice nor to suggest that their voice was always distinctive and different from men’s. But as the archives reveal, women’s participation in the framing was informed by their conviction in a politics that allowed women to speak for each other irrespective of their community affiliations. In the course of the debates, they frequently presented community affiliations as impediments to the idea of constitutional justice.
III
Scepticism about the idea of a shared moral vision or moral imaginary is natural among feminists. Is it possible that women of India, feminists belonging to one organisation, had one particular view of what the state and the nation should be like? Did they have a consensus on answers to such questions as: what the duties of the citizens would look like, what should be the relationship between rights and duties, what should be the relationship between state and citizenship, and should we think of the state and the nation in coterminous manners? Did they, at all, have these things on their mind? The answer that the archives of Indian Constitutional history—both prior to the formation of the Constituent Assembly and from the period of the framing—give to these questions is in the affirmative. It is historically evident, and some illustrative points about it can be made by referring to the actual interventions by these women.
This entire idea that they had a moral imagination can be traced to several of the texts that they produced before they came to the Constituent Assembly. The mode in which women translated their moral imagination into an effective demand for change is what I call constitutional politics of the women’s movement: a mode of politics for social transformation centred around a faith in the agency of law. While nationalist politics in India had developed around a robust sense of what a constitution is much before the Constitution of 1950 came in, what is crucial for us to remember is that the women’s movement between 1927 and 1950 was heavily dependent on a form of constitutional politics that took the role of law in achieving social and political goals very seriously. Leaders of the movement had years of experience of constitutional politics and had negotiated with the colonial government and nationalist parties alike in thoroughly constitutional terms. They had debated on issues of social and legal reforms at several national and international platforms, lobbied in legislatures, and had run women’s organizations on constitutional and democratic principles for years before joining the Constituent Assembly. In the history of Indian modernity, this politics is mostly forgotten due to the excessive stress on sensational, revolutionary activism of the satyagrahi women or those involved in radical politics. Even a cursory examination of the records of an organization like the AIWC shows that women were actively engaged in this form of constitutional politics that was informed by the available constitutional jurisprudence of their time.
Women who participated in the framing process had already developed a conviction in constitutionalism and had been enabled for their historic role by their active engagement in movements for legal reform. The latter involved a collective act of translation of their moral imagination into the language of constitutional law. It was inevitable that their participation in the framing process repeated, albeit in a more condensed and intense manner, this act of translation of the moral imaginary.
There were two aspects of this constitutional politics that are crucial for a historiography of the Constitution of India. One, it was a politics of collaboration that—as far as possible—eschewed possibilities of direct confrontation with the state or the nationalist movement, and instead chose to mobilize their agencies through negotiations and collaboration. Women’s constitutional politics had trained them to collaborate with men and with other kinds of feminists wherever possible. They collaborated with male jurists, lawyers, and politicians on reform projects and in articulating principles of gender justice that would inform their later interventions in the Constituent Assembly. The most important example of such collaboration is the concerted effort of women’s organizations to achieve reforms in the personal laws. This endeavour required the creation of a discursive field for reforms in the public sphere and within the Hindu Law Committee while supplementing their reformist stance with constructive readings of the shastric texts and the judicial pronouncements of the colonial state. Beginning with the Hindu Law Committee of 1943 until the eventual piecemeal passing of the Hindu Code by the Parliament, women collaborated and negotiated with men like VV Joshi, BN Rau, Jawaharlal Nehru, and BR Ambedkar at all stages of this project. This also includes women’s interventions during the debates on the Hindu Code Bill as guided by BR Ambedkar in the Constituent Assembly (Legislative) that took place parallel to the framing of the Constitution.
The second notable aspect of women’s constitutional politics was its heavily textual character. The acts of negotiations required that it produced a corpus of texts to which the organizations could refer in moments of confusion and return to for a consolidation of their demands. Thanks to these texts that include numerous memoranda, petitions, charters, survey reports, questionaires and pamphlets, the constitutional politics of women’s movement is suffused with a terminology that is self-consistent and represents the crystallization of a long period of feminist politics. The written-ness of such a politics ensured that women became authors of quasi-legal texts and formed a pool of experts who were adept at representing women’s issues in its terms. Remarkably, the women authors of these documents were part of a wider international feminist movement which included membership in various bodies of the ILO and UN. Renuka Ray was a member of the legal committee of the AIWC that produced all kinds of documents including the legislative programmes of the AIWC—the organization would regularly send these programmes to contestants for legislative assembly elections and requested them to do advocacy for these programmes. Thus, women were already developing themselves as a constituency.
Among these texts were petitions and memoranda to the Hindu law committees, the many petitions that these women sent to UNESCO, international women’s organisations and international labour organisations. Among these documents are the remarkable Report on the Women’s Role in Planned Economy (1939) and the Indian Women’s Charter of Rights and Duties, which ought to be included as antecedents to the Constitutional framework of fundamental rights.[23] Prepared in 1946 by a team of women including Renuka Ray and Hansa Mehta, the purpose of the Charter, in the words of its authors was ‘to crystallise these resolutions with a view to give a clear picture of the ideals for which we stand; to form a basis for future remedial legislation; and for the creation of opportunities to women for service for their attainment.’[24] While the Report on Woman’s Role in Planned Economy foregrounded women’s contribution to the nation as an economy, the Indian Women’s Charter laid greater emphasis on women’s identity as rights-bearing citizens. Its basic premises constituted universal notions of an inherent moral dignity of men and women, and demanded equal rights for women in education, health, employment, property and politics.
Supplementing these documents produced by the women’s movement prior to the making of the Constitution were documents that investigated women’s actual status in the society. According to conventional wisdom, the landmark report of the Committee on the Status of Women, better known as the Towards Equality Report (1974), is credited as being the first document that alerted us to the material status of women in India.[25] However, history has a different tale to narrate. Even before 1947, women’s organizations had produced several texts that had described in great empirical detail the inferior status that women occupied in Indian society. An example of such documents would be the Report on the Status of Women in India prepared by Kamaladevi Chattopadhyay and presented at the Asian Relations Conference of 1947.[26] If the women’s charters of rights do not refer to any romantic idea of the Indian nation or to a glorious Indian past when women were worshipped as ‘goddesses’, it is because these documents generated by the demands of their constitutional politics, provided them with absolute, pure, hard data which they used as logical weapons against the deeply entrenched patriarchal ways of seeing. They had done several surveys on the status of women—their economic or their legal status, their status vis-a-vis employment, their legal rights, their health, their mortality rate, and not just in a very embryonic manner.[27] They were all social scientists of a certain order. They had this perception of what concrete kind of group women were, and they knew that they were a minority, in pure empirical terms. Women, for all purposes of constitutional logic constituted an enumerated community, eager and legitimately claiming to be both the author and the subjects of the Constitution.
The Seal of the Constituent Assembly
This brings me to the moot question—asked of me by at least two major historians with scepticism bordering on sarcasm—of how could women in the Constituent Assembly make any effective intervention with such meagre numerical presence? The answer to this lies in recognizing the efficacy of the modes through which women functioned in the Constituent Assembly, the strategies that they had evolved since a majority of them, as I have argued, were adept at constitutional politics. Constitution scholars know well that the Constitution serves to protect the minorities from the majority, and the minority may mean anything—sexual, religious, linguistic, economically deprived minority; it is not numbers that make a minority. It is in this background that we must appreciate Amrit Kaur’s remarks in the Constituent Assembly that women are the largest minority.[28] The Constitution was not just an historical event into which women framers had to fit in their feminist politics but it was a logical culmination of the theoretical framework of their politics.
IV
One of the strategies that women had evolved was not to antagonize the powerful men in the Constituent Assembly—this included Ambedkar too—but work as collaborators. The reason why women are not found speaking as much in the many volumes of the Constituent Assembly Debates that contain the record of its 169 sessions on the floor is because they had let the men do the speaking on their behalf. If they could win five men on their side and realise that one man has already spoken on their behalf, then they would keep quiet and save their energy for a more important point. When we see that women were less audible or saying less in the Constituent Assembly, that does not inevitably mean that they were not doing anything but that they were doing it very strategically. Having developed affective bonds and political solidarity over years of feminist politics, women members could speak on behalf of each other. This is particularly evident in the numerous notes of dissent that Hansa Mehta or Amrit Kaur wrote during the proceedings of the Sub-committee on Fundamental Rights. Not just with the written interventions but also otherwise, they would make sure that when one woman member spoke—that was read as the voice of other women as well. (Of course, this was not the case on all occasions: the ideological differences between Durgabai and Renuka Ray on socialist issues or the difference of perspectives among upper class women and Dakshayani Velayudhan—the Dalit woman member are illustrative examples.) Yet, the overwhelmingly masculine space of the parliament compelled women to strengthen their bonds as colleagues of the same sex and did help to sharpen and consolidate their feminist positions.
Women members knew that they would have to work amid these hostile conditions to get their demands codified in the Indian Constitution. As Renuka Ray remembered later, ‘I remember how I used to be overcome by shyness and embarrassment in the lobby because, though I had been a member of several committees where most members were men . . . the very atmosphere of the legislature and its lobby was overwhelmingly masculine.’[29]
In the Constituent Assembly, too, she was heckled by someone of the stature of Kanhaiyalal Maniklal Munshi, who asked her to sit down while she was making a point about the right to property during a rather acrimonious debate. There were frequent statements by the chair such as saying, ‘I allow you two extra minutes to speak because you are a woman’. Women were referred to as ‘lady members’, clubbed as one distinctive group, regularly and were often subjected to allusive sexist and misogynist remarks that sought to downplay the strength of their arguments. Alert to these hostilities, women members of the Constituent Assembly responded with two strategies: one, to place themselves in the important committees and sub-committees of the Assembly, and two, to resort to written modes of interventions whenever possible. Unlike the floor of the Assembly, these committees were smaller spaces and thus more oriented towards discussions than debates. Even before the formations of the Constituent Assembly, women had campaigned to ensure that they were represented in these committees. Amrit Kaur and Hansa Mehta were members of the pivotal Fundamental Rights Sub-Committee; Amrit Kaur was also a member of the Minorities Sub-Committee; Durgabai was a member of the crucial Steering Committee and Rules Committee; and Hansa Mehta was on the Labour Committee. The work of these committees laid the foundation of the discussions in the Assembly for it was their reports that gave the blueprint for drafts of articles prepared by the Drafting Committee. In a way, the committees were the site of the primary discourse whereas the debates on the floor constituted secondary discourse. Most importantly, these committees were also conducive for written interventions of the women members. These interventions were often in the form of notes of dissent and constitute a living testimony of women’s resolute determination not to be appropriated by the majority, masculine voice of the Constituent Assembly. They are also a great source of understanding women’s specific positions on important issues and their implications for the constitutional discourse.
I will cite just one illuminating instance (out of many) of these interventions to showcase the enormous contribution that women members made in shaping the constitutional discourse and democratic framework of the republic. The instance is the framing of what became Article 37 of the Indian Constitution, according to which though the directive principles may not be justiciable but they will be nevertheless fundamental. Those two words, as scholars know very well, are central to the evolution or ascendancy of the directive principles in the Indian constitutional discourse; the Supreme Court has used this article several times to invest the directive principles with a jurisprudential force than were accorded in the 1950s and 1960s. The source of this article can be traced to the faith in law that was a driving force for the women’s movement of those decades. A corollary of this faith was that a right that cannot be implemented is a piece of deception that can “frustrate the hopes” of the people, an argument that Hansa Mehta made as the Chairperson of the Working Group on Implementation of Human Rights of the Commission on Human Rights.[30] In the Sub-Committee on the Fundamental Rights of the Constituent Assembly, once Hansa Mehta and Amrit Kaur realized that the several of the socialist principles—embodied in Articles 39 and41 which ensure the right to equal wage and the right to employment—and, of course, Article 44 about the uniform civil code, issues for which the women’s movement had been fighting for decades now, were being thrown in the non-enforceable directive principles, they wrote a note of dissent that became the foundation of Article 37.
In their note of dissent, they argued strongly for a greater recognition of the of the directive principles and demanded that they should be considered as “fundamental” for any future governance. Interestingly, this note of dissent was written to the Constitutional Adviser by Amrit Kaur on behalf of the two women members of the Sub-Committee. She had written:
While the non-justiciable rights shall not be cognizable by any court, we would respectfully urge that they are nonetheless fundamental. We would therefore like this to be stressed either in the foreword or at the end of clause 35 so that it shall be the duty of the State to take, as soon as possible, the necessary action in fulfilment of the directives . . . Indeed all the non-justiciable rights are fundamental to the well-being and ordered progress of the society.[31]
This letter, subsequently, guided the amendment that emphasized on the phrases “nonetheless fundamental” and “duty of the state” and led to the adoption of Article 37 of the Indian Constitution. In its previous draft, the article had merely stated that the directives were ‘intended for the general guidance’ of the state. It had settled that they ‘shall not be cognizable’ by any court, and entrusted ‘the application of these principles’ to ‘the care of the State’.[32] The shift from “care” to duty”, and from “general guidance” to “nevertheless fundamental” was no mean achievement and has momentous implications for constitutional rights. In the words of Justice PN Bhagwati, writing a landmark judgement: ‘The changes made by the framers of the Constitution are vital and they have the effect of bringing about a total transformation or metamorphosis of this provision, fundamentally altering its significance and efficacy.’[33] As Bhagwati asserted further:
There could not have been more explicit language used by the Constitution makers to make the Directive Principles binding on the State and there can be no doubt that the State is under a constitutional obligation carry out this mandate contained in Article 37. In fact, non-compliance with the Directive Principles would be unconstitutional on the part of the State and it would not only constitute a breach of faith with the people who imposed this constitutional obligation but it would also render a vital part of the Constitution meaningless and futile.[34]
The list of women’s contributions to the Constitution is very long. There is not a single aspect of our constitutional discourse that has not been touched by them in profound ways. They contributed either by way of adding new layers to the proposed drafts of the articles, inflecting them with acute gender sensitivity or by adding clauses whose implications would unfold much later. Intellectual and political histories of Articles 15 and 16 must be retrieved to enable us to fully appreciate the authorial voice of women founders that resonate in our democratic discourses about equality. However, what remains puzzling and deeply disturbing is the amnesia towards their contributions of women in spite of clear evidence. We don’t need to go further than the remarks of Justice PN Bhagwati cited above to see the operation of this blindness. While acknowledging the great value of the change made to the draft of Article 37, and literally building the entire theoretical framework of his judgement on these changes, he is referring to the authorial intention of the founders in glorious terms. Yet, like all judges, he is blatantly unmindful that these authors were women who introduced these changes within a very specific historical trajectory of a social, political movement. What is it that does not allow us to remember these women and their place in history? What can we gain once we rectify this forgetfulness? I turn to these questions in my concluding remarks.
V
Why don’t we remember these women? One could think of three possible reasons with the caveat that none of these are totally justified. The first reason is the enormous moral authority of the “founding fathers”, exceptional men like BR Ambedkar, Jawaharlal Nehru and the constellation of political figures who occupied major constitutional positions for long years after the inauguration of the republic. These men were not shy of claiming that they were the founding fathers of the Constitution and continued to assert their moral authority in the public sphere. The early debates between the Legislature and the Court can substantiate my claim in a much better way where the Legislature consistently said that they have framed this Constitution. As Nehru himself told the Parliament during the debate on the first amendment: ‘We are not merely technically, the inheritors of the fathers of the Constitution. We really shaped it and hammered it after years of close debate.’[35] These men appear to be authors who are incapable of distancing themselves from the book that they have written. Then, there is of course the entrenchment of the wisdom of founding fathers referred to by the Supreme Court in many a landmark judgement. These patriarchal prejudices about the authorial agencies of men have made us blind to the connections between early twentieth century women’s movement in India and women’s participation in the founding process. Unfortunately, even feminist scholars do not recognize that the site of the Constituent Assembly was also marked by the presence of a feminist politics. Even when they do register the presence of women, they fail to recognize that these are not ordinary women who had been seamlessly interpellated in patriarchy. These are feminists who had a history of challenging, questioning, critiquing patriarchy for decades before they came into the Constituent Assembly. These were leaders who had a definite programme and vision for the future and a feminist commitment to changing the status quo of the society. In the words of Amrit Kaur, the were not willing to surrender to ‘male conscience’ of the community and wanted the Constitution to be a vehicle of social transformation.[36]
Restoring the women founders to their rightful place in history is not merely correcting an error in historiography. It is an acknowledgment of the creative potentials of feminist movement that laid the foundation of gender justice in postcolonial India; it is an invitation to continue their unfinished project, deriving, of course, from the resources they have left us with but also building upon it. More than anything, it is a recognition of the continuities between the past and the present and locate in the text of the Indian Constitution a moral imagination that we can forget only at our own peril. The thickness of the narrative of the founding mothers only adds layers to the Constitution and its resilience in times when it has become vulnerable. It is to rediscover a lost language of ethics for the future of the nation that the mothers of the republic inscribed in the ever-renewing text of the Constitution of India.
NOTES
[1] Women at the Midnight Hour, calendar issued by the Centre for Women’s Development Studies, New Delhi. Curated by Malavika Karlelkar. (available at: https://www.cwds.ac.in/wp-content/uploads/2018/06/Calendar2018.pdf; last accessed on 20 January 2020). [2]Constituent Assembly Debates, Vol XI: 23, 11 October 1949, speech by Purnima Banerji. [3] Achyut Chetan, Founding Mothers of the Indian Republic: Gender Politics of the Framing of the Constitution (New Delhi: Cambridge University Press, 2022). [4] Amrit Kaur to Hansa Mehta, 12 June 1946, Hansa Mehta Papers, Subject File No. 6, Nehru Memorial Museum and Library. [5] Geraldine Forbes, Women in Modern India (Cambridge University Press, 1996), pp. 72-83. [6]The Hindu, 23 September, 1941, From AIWC Papers, IV Instalment, File No. 45, Nehru Memorial Museum and Library. [7] Kamaladevi Chattopadhyay, Inner Recesses Outer Resources: Memoirs (New Delhi: India International Centre & Niyogi Books, 2014), p. 329. [8] Ibid. [9] Ibid. [10] Amrit Kaur to Hansa Mehta, 21 June 1946, Hansa Mehta Papers, Subject File No. 10, Nehru Memorial Museum and Library. [11] Lakshmi Menon to Hansa Mehta, 6 July 1946, Hansa Mehta Papers, Subject File no. 6, Nehru Memorial Museum and Library. [12] Granville Austin, The Indian Constitution: Cornerstone of a Nation (New Delhi: Oxford University Press, 1999), 12n42. [13] Manu Bhagavan, The Peacemakers: India and the Quest for One World (New Delhi: Harper Collins, 2012). [14]Meera Velayudhan, ‘Linking Radical Traditions and the Contemporary Dalit Women’s Movement: an Intergenerational Lens’, Feminist Review 119 (July 2018): 106–125. [15]Meera Velayudhan, ‘Linking radical traditions’, p 114, f.n. 15. [16]Constituent Assembly Debates, Vol VII: 308, 8 November 1948, speech by Dakshayani Velayudhan. [17] ‘Madras Harijan on Fast unto Death’, Times of India, 17 July 1946, 5. [18] Constituent Assembly Debates, Vol I: 151, 19 December 1949, speech by Dakshayani Velayudhan. [19] Constituent Assembly Debates, Vol I: 152, 19 December 1946, speech by Dakshayani Velayudhan. [20] Letter from Amrit Kaur to Hansa Mehta, 31 October 1944, Hansa Mehta Papers, Correspondence with Amrit Kaur. NMML [21] Renuka Ray to Kulsum Sayani, 5 June 1943, Renuka Ray Papers, Subject File 18, Nehru Memorial Museum and Library. [22] Reba Som, ‘Jawaharlal Nehru and the Hindu Code: A Victory of Symbol over Substance?’ in Women and Social Reform in India: A Reader, Vol. II Sumit Sarkar and Tanika Sarkar (eds) (Ranikhet: Permanent Black, 2007), 243-274, 257. [23] K. T. Shah (ed.), Report of the Sub-Committee on Woman’s Role in Planned Economy (Bombay: Vora & Co., 1947); ‘Draft of the Indian Woman’s Charter of Rights and Duties’, 1946, Hansa Mehta Papers, Subject File no. 7, NMML. For a published version of the Draft, see Maithreyi Krishnaraj (ed.), Remaking Society for Women: Visions–Past and Present (Background Volume for VIIth Annual IAWS Conference) (New Delhi: Indian Association for Women’s Studies, 1995), pp. 57–66. [24] Mehta, Amritkaur and Menon, ‘Draft of the Indian Woman’s Charter of Rights and Duties’. [25] Kumud Sharma and C. P. Sujaya (eds), Towards Equality: Report of the Committee on the Status of Women in India, 1974 (New Delhi: CWDS and Pearson, 2012; originally published in 1974 by the Department of Social Welfare, Ministry of Education and Social Welfare, Govt. of India). [26] Kamaladevi Chattopadhyay, Status of Women in India (New Delhi: Indian Council of World Affairs, 1947). [27] Ibid. See also, KT Shah, ed., Report of the Sub-Committee on Woman’s Role in the Planned Economy (Bombay: Vora & Co., 1947). (Report, originally submitted in 1939). [28] Amrit Kaur, ‘Memorandum on Minorities’, 20 March 1947. Reprinted in B. Shiva Rao (ed.), The Framing of India’s Constitution: Select Documents, Vol. 2 (Delhi: Universal Law Publishing, 2004; originally The Indian Institute of Public Administration, 1967) pp. 309–312. [29] Renuka Ray, My Reminiscences: Social Development during the Gandhian Era and After (Kolkata: Stree, 2005), pp. 59–60. [30] Hansa Mehta, speech delivered at the Commission on Human Rights while presenting the Report of the Working Group on Implementation, reproduced in Hansa Mehta, ‘The International Bill of Rights’, typescript of an unpublished article for World Affairs (20 January 1950), Hansa Mehta Papers, I instalment. Writings/Speeches by Her, File no. 7, Nehru Memorial Museum and Library. [31] Amrit Kaur to B. N. Rau, 31 March 1947. Reproduced in B. Shiva Rao (ed.), The Framing of India’s Constitution: Select Documents, Vol. 2 (Delhi: Universal Law Publishing, 2004; originally The Indian Institute of Public Administration, 1967). [32] Draft Report of the Sub-Committee on Fundamental Rights, 3 April 1947. Reproduced in Rao, The Framing of India’s Constitution, Vol 2, p. 142. [33] Minerva Mills Ltd. v. Union of India, (1981) 1 SCR, 325. [34] Ibid., 327-328. [35] Jawaharlal Nehru, Lok Sabha Debates, May 1951. From extracts cited in Samaraditya Pal and Deepan Kumar Sarkar (eds), India’s Constitution: Origins and Evolution, Vol. 3 (New Delhi: Lexis Nexis, 2015), p. 192. [36] Amrit Kaur, ‘Birth of the Indian Women’s Movement’, speech delivered in Jullundur, 1932, in Amrit Kaur, Challenge to Women (Allahabad: New Literature, 1946), p. 15.
Achyut Chetan is Associate Professor of English and Dean, Arts and Social Studies at St Xavier's University, Kolkata. He has been Fulbright Visiting Fellow at Columbia University, New York and South Asian Studies Fellow at Cornell University. His monograph on the women members of the Constituent Assembly, Founding Mothers of the Indian Republic: Gender Politics of the Making of the Constitution, is forthcoming from Cambridge University Press.