Negotiating Political Power at ‘Critical Junctures’: Women and Constitution Drafting in South Africa and India

Abstract

From a feminist institutionalist perspective, this article engages in a comparative analysis of South Africa, one of the only post-transition democracies where women organized as a distinct interest group representing gender interests were able to negotiate and gain access to political power, and India, where women’s participation was predominantly as ‘nationalist women’. It argues that constitution drafting is a decisive critical juncture when descriptive representation can be translated very effectively into the substantive representation of women as equal citizens, provided women qua women and as gender-conscious agents are able to intervene to promote the cause of their effective political participation.

Keywords

Feminist institutionalism critical junctures political representation constitution drafting South Africa India

Introduction

The gendered nature of politics is a dimension that has come to be widely acknowledged across social science disciplines, inspiring incisive analyses and original insights into how the access of women to political power has been extremely restricted. This comes even more sharply into focus when the all-male nature of political spaces begins to get altered with “the first woman walking in the door” (Connell, 2016: xiv). Feminist scholarship has engaged deeply with the questions of why and how the agenda of politics gets defined in gendered terms across political systems (Alexander et al., 2018; Elshtain, 1981; Kittilson and Schwindt-Bayer, 2012; Lovenduski and Norris, 1993; Phillips, 1991, 1995; Tremblay and Trimble, 2003). With the increasing political participation of women, the interest in unearthing the hidden gendered assumptions that inform political institutions has grown exponentially, especially with the huge gap between the descriptive and substantive representation of women in politics becoming increasingly more apparent (Celis and Childs, 2012; Childs and Krook, 2009; Pitkin, 1967; Schwindt-Bayer and Mishler, 2005). Feminist explorations into the organization of political life are now focusing on the role of political institutions, both formal and informal, in circumscribing or enabling the extent of women’s political participation (Franceschet, 2005; Franceschet et al., 2019; Inglehart and Norris, 2003; Krook, 2010; Krook and Mackay, 2011; Norris and Lovenduski, 1995). ¹

The arguments and analysis made in this article are based on an understanding of gender and women’s political empowerment from a feminist institutionalist perspective, which sees “institutions as gendered rules, norms and practices that shape actors’ strategies and preferences. . .as the products of gendered power struggles and contestation.” (Waylen, 2014: 496). Feminist scholars have pointed out how political institutions “embody a perpetually ingrained ethos of masculinity” that makes it even more difficult for women to access them (Fox and Lawless, 2010: 311). From a feminist perspective, every political institution has a “gender regime”, defined as “the historically produced state of play in gender relations within an institution”, which has three main attributes: a “gender division of labour”, a “structure of power” and a “structure of cathexis – the gender patterning of emotional attachments” (Connell, 1990: 523–526). A feminist institutionalist framework enables the mapping of such gender regimes in political institutions and the identification of the political opportunities and constraints inherent in them, which have to be negotiated by women who stake a claim in political power (Waylen, 2000: 769).

The constitutional/legal arena is one of the three distinct types of institutional settings identified by feminist scholars as the contexts in which women engage as political actors, the other two being the electoral and the bureaucratic/state arenas (Chappell, 2002; Dobrowolsky and Hart 2003; Waylen, 2007b). From a feminist institutionalist perspective, constitutions are over-archingly important institutional paradigms that are based on a gender regime² and in turn play a decisive role in defining the gender regimes for other institutions and the practices that inhabit various political systems (Krook and Mackay, 2011; Waylen, 2000). As Irving (2008: 1) puts it, “constitutions frame women’s membership of, or absence from, the constitutional community. . .constitutional provisions can promote, or alternatively, present obstacles to gender equity and agency.” Hence, one of the crucial questions that feminist institutionalists have been looking at globally is the extent to which women have played a role in the drafting of constitutions in newly independent and transitional democracies and thereby, in shaping their political histories (Grenfell, 2016; Htun, 2003; Montecinos, 2017; Schwindt-Bayer, 2010; Tripp, 2015; Waylen, 2000, 2007b). Feminist institutionalist scholars view the process of negotiating and drafting a constitution as a ‘critical juncture’ that offers a unique opportunity for women who are organized and mobilized around the cause of their increased political participation, to renegotiate the terms of political discourse and to regender national institutions that regulate the nature of women’s access to political power and agenda-setting (Hughes and Paxton, 2008; Jaquette and Wolchik, 1998; Waylen, 1994, 2007b). A critical juncture can be defined as “moments of relative structural indeterminism when willful actors shape outcomes in a more voluntaristic fashion than normal circumstances permit . . . these choices demonstrate the power of agency by revealing how long-term development patterns can hinge on distant actor decisions of the past” (Mahoney, 2002: 7). Feminist scholars have highlighted how women, rather than being merely constrained by gender regimes, can also access opportunities to assert their agency within political institutions, which in turn create the occasion for these institutions to be “re-gendered” (Beckwith, 2005: 133) and re-structured (Hawkesworth, 2005; Kenny and Mackay, 2009). Thus, the dynamics between feminists and political institutions need to be seen as being “co-constitutive” and “reciprocal” (Chappell, 2002: 4–6). Examining the role of women in drafting and negotiating constitutions enables both a detailed mapping of gender regimes and the identification of the political opportunities and constraints inherent in them, which have to be traversed by women who seek to gain access to political power.

The central argument of this article is that while constitution drafting is a decisive transitional moment from a feminist institutionalist perspective when the descriptive representation of women could be translated very effectively into the substantive representation of women as equal citizens, the mere presence of women in the formal arena of constitution drafting does not translate into the gender agenda being addressed adequately in the new constitution. The gap between the descriptive and substantive representation of women gets bridged only when women are present as gender-conscious agents of transformation, who can redefine the terms of the constitutional negotiations and make them unambiguously oriented towards gender justice. By engaging in a comparative analysis of South Africa and India, this article endeavors to draw out the factors that impinge on the nature and extent of women’s involvement in the constitution drafting process, which significantly sets the tone and tenor of women’s subsequent engagements with politics. It draws upon the Third World/local feminist perspectives and looks at the specific experiences of women negotiating power in two historically and geographically distinct cartographies of the global South, as opposed to a hegemonic Western/Euro-centric feminist paradigm (Alexander and Mohanty, 2010; Basu, 2010; Desai, 2015; Jayawardena, 1986; Mohanty, 1991, 2003; Waylen, 1996).

While there are more recent instances of women’s participation in constitution-making, particularly in post-conflict states, such as East Timor, Afghanistan, Tunisia, and Nepal (Brandt, 2005; Grenfell, 2016; International Institute for Democracy and Electoral Assistance et al., 2013; Katz 2012), South Africa and India have been chosen for a comparative study in this article on the basis of certain striking similarities between these two cases and some interesting divergences. Both the South African and the Indian contexts of constitution drafting shared the ethos of “transformative constitutionalism”, wherein the constitutions were intended to be “ambitious normative documents” that would make a decisive break with the past and herald a new democratic era based on equal political rights and universal adult franchise (Vilhena et al., 2013: 3). Further, the trajectory of the struggle for political assertion was determined largely in both cases by the presence of a dominant party, the Indian National Congress (INC) in India and the African National Congress (ANC) in South Africa, which in turn shaped the contours of women’s political engagement and involvement in the process of drafting the new constitution. However, while India represents the case of a post-World War II, post-colonial new republic, which nevertheless relied heavily upon the “old constitutionalism” that was the legacy of colonial legislations like the Government of India Act, 1935, South Africa stands for a post-conflict transitional democracy that adopted the path of “new constitutionalism” that is “characterized by a greater degree of deliberation and choice among a wide array of constitutional models”² (Irving, 2008: 26).

The methodological foreground of this article can be termed as a ‘comparative politics of gender’ (CPG), as distinct from a ‘gender in comparative politics’ approach (Chappell, 2010; Schwindt-Bayer, 2010; Tripp, 2010). The latter looks at gender as a research area within the larger field of comparative politics, thus making it “neither truly comparative nor fully integrated” and restricted to particular country- or region-specific case studies without integrating into comparative politics frameworks that strive to arrive at “generalizable explanations” (Schwindt-Bayer, 2010: 177–178). In contrast, a CPG approach considers gender as a fundamental aspect of the political system that is oriented towards unequal distributions of power; it studies both how such gendered inequalities come into being and are maintained as well as how they can be disrupted through the exercise of agency by those gender-conscious actors who negotiate political power with the aim of bringing about transformation (Tripp, 2010: 192). In the following two sections, this article employs the lens of historical narrative and gleans relevant aspects from the documents pertaining to the constitutional negotiations and debates to trace the trajectories through which women’s political engagements evolved in South Africa and India respectively.

Negotiating race and gender: The case of South Africa

South Africa’s post-apartheid Constitution, which came into force in 1997, was the product of a multiparty negotiating process that was initiated with the unbanning of the ANC and the release of Nelson Mandela in February 1990. This laid the terms for the election of the National Assembly and the Senate in 1994 that together formed the Constitutional Assembly responsible for finalizing the constitution. To quote Seidman (1999: 288),

What is surprising in light of South Africa’s own history, as well as in light of the tendency for general discussions of democracy to overlook issues of gender in the construction of new states is that the makers of South Africa’s new democracy discuss citizenship in explicitly gendered terms, paying close attention to the ways in which gendered identities and interests play out in the consolidation of democracy.

Through continuous deliberations amongst themselves, women activists with different political views and affiliations arrived at a consensus that gender issues should be taken up during the process of transition, rather than being postponed for after. This astute strategy was informed by the experience of other African nations where women were side-lined after liberation, even though they were active participants in the struggle against colonialism, such as Angola, Mozambique and Zimbabwe (Albertyn, 1994; Geisler, 2004; Meintjes, 1998; Waylen, 2004).

A highlight of this process of negotiation with the political mainstream was the fact that despite the constitution drafting process taking place in the immediate post-apartheid scenario, women were able to overcome the historical and racial divides that had hitherto separated them and join hands across parties to prioritize the agenda of political inclusion of women in the new democracy (Albertyn, 2003). The women’s interest groups that were closely observing the course of the constitution drafting process were able to recognize early on that the political rhetoric of gender equality that cut across parties was not being translated into the adequate representation of women in the various negotiating platforms. They formed the Women’s National Coalition (WNC) in 1992, a broad-based “triple alliance of women academics, politicians, and activists”, including members who were avowedly feminist, cutting across geographical, racial and class lines (Waylen, 2007a: 524). Described as a ‘conspiracy of women’, the WNC had the twin objectives of starting a nation-wide grassroots campaign to draft a charter for women’s equality and exerting pressure for the inclusion of women in the drafting of the post-apartheid constitution (Albertyn, 1994; Cock, 1997; Hassim, 2002). By 1994, the WNC had 90 national organizations and 14 regional coalitions as members, which goes to show how far it represented the diversity of women’s interests and issues in the South African society of its times (Waylen, 2004). Largely due to the sustained efforts of the WNC, 50% of the official delegations during the main negotiating process and at least one of the representatives on the technical committees that had a crucial role to play in the drafting process came to be women. It was for the very first time in history that a constitution making body came to include an equal number of male and female members (Klug, 1996). This body drafted the interim constitution of 1994 that set out 34 cardinal constitutional principles, including gender equality, that had to mandatorily be included in the final constitution of 1996 before it could be officially certified by the Constitutional Court. Even the Constituent Assembly that was elected through the first non-racial, democratic elections held in 1994 and had the role of drafting the final constitution, was comprised of almost 25% women members (Grenfell, 2016).

The WNC’s continuous efforts ensured that gender equality was enshrined as a fundamental principle in the constitution and that the attempt by traditional leaders to exempt customary law from the equality provisions of the Bill of Rights was defeated after prolonged discussions (Albertyn, 1994; Hassim, 2002; Kaganas and Murray, 1994). To quote Christina Murray, a woman member of the expert panel established to advise the South African Constitutional Assembly on drafting the new Constitution,

Issues of gender equality were prominent through the entire drafting process. This concern is particularly evident in the Bill of Rights provisions, which protect equality and spell out that the right to security of the person includes a right to be free from private forms of violence and to make decisions concerning reproduction. But we also attempted to reflect this concern for the equality of women and men in the language of the constitution. . . (Murray 2001: 827–828)

The WNC was also instrumental in the preparation and finalization of a ‘Women’s Charter for Effective Equality’, a document that was envisaged to serve as a touchstone for the drafters of the constitution when it came to protecting women’s rights (Cock and Bernstein, 2001). ³ While speaking at the launch of the WNC in April 1992, Frene Ginwala, a prominent African National Congress Women’s League (ANCWL) leader and the co-convenor of the WNC, had exhorted her fellow members:

to make sure we incorporate the views of all South African women we have to start by listening to them. Let us grow “big ears” that reach the farthest corners of our land. Let us encourage women to speak of their problems and how they understand and experience gender oppression in their daily lives. Let us work out a programme that will allow us to systematically listen to women. (Ginwala, 1992)

The charter campaign of the WNC, or “Operation Big Ears” as it came to be called, lived up to this objective through a sustained participative and consultative process of mobilizing and bringing forth the demands of around two million women across the country (Albertyn, 1994; Hassim, 2002; Meintjes, 1998). The document that emerged from this process was an emphatic assertion of women’s rights and a clarion call for gender equality, as is evident from the following extract:

At the heart of women’s marginalisation is the patriarchal order that confines women to the domestic arena and reserves for men the arena where political power and authority reside. . .If democracy and human rights are to be meaningful for women, they must address our historical subordination and oppression. Women must participate in, and shape, the nature and form of our democracy. (Women’s Charter for Effective Equality, 1994)

Women as a potent pressure group were uncompromising in their insistence that gender should be an important issue to be negotiated during the process of constitution drafting. They were not unwilling to resort to confrontation with the ‘male-stream’ negotiating process when the occasion demanded it, as in March 1993 when women ANC activists stormed the meeting of the negotiating committee and blocked discussions until women were included as members on it (Seidman, 1999: 293). The interventions of “a women’s movement explicitly committed to a feminist vision of democratization” in the constitutional dialogues and negotiations ensured that “a gendered understanding of citizenship in the construction of new democratic institutions” permeated the South African Constitution (Seidman, 1999: 302). Non-sexism came to be incorporated as a founding principle of the post-apartheid South African state and the rights to equality including “equal protection and benefit of the law” and non-discrimination on the grounds of sex, gender, sexual orientation, marital status, and pregnancy, also found a place in the constitutional provisions (Sections 9(1) and 9(2) of the South African constitution). A prime example of the gender equality orientation of the new constitution is the fact that after prolonged efforts by the feminist representatives, the Constitutional Assembly finally accepted the inclusion of a right to make decisions concerning reproduction (Section 12(2)(a)) and a right to reproductive health care services (Section 27 (1)(a)). Thus, South Africa became “the first and only country to explicitly recognize a positive right to both reproductive decision making and reproductive health care in its Constitution” (Rebouché, 2012: 305). The South African constitution also includes a provision for the setting up of an independent constitutional body to promote gender equality (Section 187), the Commission for Gender Equality.

Apart from the presence of an organized, political and active women’s movement that was deeply engaged in the anti-apartheid struggle and that represented the political demands and aspirations of women as equal citizens, there were other significant factors that ensured that gender remained a leitmotif in the constitutional negotiations and drafting process in South Africa (Britton, 2002; Waylen, 2007a, 2007b). Feminist scholars have highlighted that one such factor was the presence of a favorable political opportunity structure⁴ shaped by the negotiated, long-drawn process of transition and the prominence of the ANC that was already positive towards the women’s agenda (Hassim, 2006; Waylen, 2007a). The fact that the ANC was predisposed towards gender-based demands was in itself the outcome of sustained efforts by the vocal feminist activists of the ANCWL like Frene Ginwala, Pregs Govender, Thenjiwe Mtintso and others to get a distinct space for women’s issues in the party’s agenda, including a 30% quota for women in the candidate list from the 1994 elections onwards (Gouws, 2004; Hassim, 2014; Meintjes, 1996). The tension between the primacy of the anti-apartheid struggles and the call for gender justice repeatedly created a dilemma for the activist women, who had to choose between race and gender (Britton and Fish, 2008; Makhunga, 2014; Murphy 2003). However, articulations demanding gender equality and substantive rights remained a rallying cry for the women’s movements in South Africa, based on their perceptive analysis of the linkages between patriarchal domination and racial discrimination. Women’s experiences with colonialism, segregation and apartheid in South Africa were defined by the “intersectionality of identities”(Crenshaw, 1989) based on race, class and sex; this resulted in women encountering a complex “patchwork quilt of patriarchies” in apartheid South Africa (Bozzoli, 1983: 149), which the women’s movements over time sought to combat at multiple levels of gender consciousness and political agitations (Sachs, 1990). The success of this approach lay in the fact that women gained unprecedented representation in the post-apartheid South African parliament. The leap in the descriptive representation of women also translated into marked substantive representation of women, with several gender equality-oriented legislations being passed in the first five years of the new parliament, in areas like reproductive choice, status in customary marriage, protection against domestic violence, protection at the workplace and so on. Though feminist scholars have critiqued the subsequent track record of the South African state in gender equality, especially in view of the disturbingly high rates of gender based violence (Andrews, 2008; Gouws and Galgut, 2016; Mtintso, 2003), the constitutional legacy of gender equality enshrined in the post-apartheid constitution remains an abiding institutional touchstone.

Negotiating nationalism and gender: The case of India

In contrast to the South African experience, women’s participation in the Constituent Assembly of India was predominantly in their role as nationalist women who were guided by Gandhian ideals and who had been active in the struggle for independence from British colonial rule. The role played by Gandhi in women’s political mobilization during the pre-independence period has been, on the one hand, highlighted by those scholars who credit him for bringing women into the mainstream of the anti-colonial nationalist movement (Desai, 1957; Jain, 1986; Kishwar, 1985) and, on the other, criticized by those who hold that his perspective on the roles of women was conventional, uncritical of their ascribed roles as wives and mothers, and limited due to its non-recognition of female sexuality (Patel, 1988; Arya, 2000; Lal, 2000). While women were active in a range of other political movements of the time, such as the Ambedkarite Dalit movement (Guru, 1998; Jogdand, 1995; Rege, 2006), workers’ mobilizations (Chakravarty, 1980; Ray, 1999; Sen, 1999), peasants’ struggles (Kannabiran and Lalitha, 1990; Kumar, 1990) and tribal uprisings (Custers, 1987; Saldhana, 1986), the hegemony of the Indian National Congress-led struggle for independence was such that these alternate political voices of women were not acknowledged as much as that of nationalist women who prioritized the demand for independent India over the assertion of women’s rights. In fact, the protagonists of the first wave women’s movement that took concrete shape with the formation of the Women’s Indian Association (WIA) in 1917, National Council of Women in India (NCWI) in 1925, and the All India Women’s Conference (AIWC) in 1927, many of whom were also active participants in the nationalist movement, desisted from using the word ‘feminist’ to describe their activities and claims. The reason for this reluctance was that feminism was considered to be a Western idea based on opposition to males and essentially unpatriotic because it implied that women were placing their own interests above those of the nation (Anagol, 2008: 607; Forbes, 1982: 534; Thapar-Björkert, 2006: 45).

Despite the fact that by the 1920s, all the major players in India’s nationalist movement recognized the importance of women’s active participation in the anti-colonial struggle and accepted the need for women’s franchise and educational and employment opportunities for women by and large, there was friction between the notions of women’s rights and nationalism when it came to more contentious issues like child marriage, legislation on women’s access to property and their rights within the family, purdah and changes to customary law (Forbes, 1982: 530). The nationalists were especially not in favor of “any radical re-structuring of power relations within the family” (Roy, 2010: 410). The way the women’s question was predominantly framed by the nationalist leaders was that “women’s true liberation was intimately tied with the liberation of India” (Forbes, 1982: 532). The women activists who were also participants in the nationalist movement were thus confronted with the dilemma as to whether to put the question of women’s rights or nationalism first. This led to differences in approach and orientation within the women’s movement, with women leaders like Sarojini Naidu standing for the latter and more radical leaders like Saraladevi Chaudhurani advocating the former. For instance, Geraldine Forbes brings out the contrast in the approaches of these two women leaders to the demand for women’s suffrage (Forbes, 1996). While speaking in support of women’s suffrage at the special session of the INC held at Bombay in 1918, Sarojini Naidu had the following to say while responding to the objection that women’s entry into politics would make them less feminine:

Never, never, for we realize that men and women have their separate goals, separate destinies and that just as man can never fulfill the responsibility or the destiny of a woman, a woman cannot fulfill the responsibility of man. . .We ask for the vote, not that we might interfere with you in your official functions, your civic duties, your public place and power, but rather that we might lay the foundation of national character in the souls of children that we hold on our laps, and instill into them the ideals of national life. (as quoted in Forbes, 1996: 93–94)

On the other hand, while presenting the resolution in favor of extending the vote to women at the 33rd session of the INC held the same year, Saraladevi Chaudhurani contended that the “fanciful division of intellect and emotion being the respective spheres of men and women” was outdated and that the “sphere of women” included “comradeship with men in the rough and tumble of life and to being the fellow-workers of men in politics and other spheres” (as quoted in Forbes, 1996: 93–94). At the Bengal Women’s Congress, organized in August 1931, while critiquing the attitude of Congress leaders towards the question of women’s rights, she remarked that the Congress “assigned to women the role of law-breakers only, not law-makers” (as quoted in Forbes, 1996: 143). Another instance of conflicting positions within the women’s movement was over the demand for the reservation of seats for women in the provincial and central legislatures. This demand was raised by Begum Shah Nawaz and Kamala Subbaryon at the First Round Table Conference (November 1930 to January 1931), only to be heavily opposed by other nationalist women who held that “to seek any form of preferential treatment would be to violate the integrity of the universal decision of Indian women for absolute equality of political status” and hence presented a memorandum against the reservation at the Second Round Table Conference (September to December 1931) (Kumar, 1993: 81).

These differences in approach amongst the prominent women leaders of the time ultimately meant that there was no consensus within the women’s movement about the way in which women’s rights should be asserted and the form in which they were to be incorporated in the constitution for an independent India. Combined with this was the larger political backdrop of the struggle for independence mostly directed by the Gandhian ideal of “self-sacrifice” and “silent suffering”, of which women came to be seen as the exemplars (Liddle and Joshi, 1985: 527; Thapar, 1993: 86). The assertion of women’s rights was circumscribed by this nationalist symbol of the selfless woman for whom nothing was more sacrosanct than the freedom of the nation. As John (2000: 3824) observes: “At the height of political nationalism, the public glorification of femininity became the very ground for persuading women of the illegitimacy of their demands.” Thus, over time, the more radical female voices within the nationalist movement like those of Saraladevi Chaudhurani gave way to the moderate, accommodative approach of nationalist women like Sarojini Naidu that came to be the dominant voice of the women’s movement in the years leading up to the drafting of the constitution.

The factors outlined above all culminated in a situation where though women found representation in the Constituent Assembly that was to draft and finalize the constitution, they were hardly able to make their presence significant in terms of their gender identity. There have been many incisive studies on the limitations of the representativeness of the Constituent Assembly, the dynamics of the Constituent Assembly debates and the ways in which the deliberations in the Constituent Assembly were often dominated by the nationalist paradigm that, in favor of carving out a homogeneous national culture that would lay the foundations of the nation’s unity, underplayed the differences of opinion and emphasis that found expression in the articulations of some of the members (Bajpai, 2011; Bhargava, 2008; Bhatia, 2018; Jha, 2004; Nigam, 2004). However, curiously enough, gender as a category of analysis does not figure prominently in these explorations. This article would posit that this erasure of gender can be attributed to the fact that women did not participate and make their presence felt in the Constituent Assembly as representatives of their gender who stood up and spoke for substantive women’s rights and gender justice; rather, they continued to don the symbolic role bestowed upon them by the nationalist discourse.

This is not to say that the makers of the Indian constitution did not seek to promote gender equality; women are meant to be equal beneficiaries of the provisions on universal adult franchise (Article 326) and the fundamental rights of equality before law (Article 14), the prohibition of any form of discrimination (Article 15) and equality of opportunity (Article 16(1)). Specifically, Article 15(3) empowers the state to make any special provision for women and children and Article 16(2) forbids discrimination “in respect of any employment of office under the State” on “grounds only of religion, race, caste, sex, descent, place of birth, residence or any one of them”. Though non-justiciable, the directive principles of state policy includes the right to an adequate means of livelihood for men and women equally (Article 39(a)), equal pay for equal work for both men and women (Article 39 (d)), protection of the health and strength of workers – men, women and children – from abuse and entry into vocations unsuited to their age and strength (Article 39 (e)) and just and human conditions of work and maternity relief (Article 42).

However, many more meaningful inclusions for securing women’s substantive equality could have found a place in the Indian constitution had there been a larger and more effective presence and influence of women, particularly those with a distinctive feminist voice, in the drafting process, as is evident from the South African case. There were only 15 women members in the Constituent Assembly that came to have 299 members post-Partition and there was no woman member on the drafting committee that had the most direct and influential role in the finalization of the constitution of independent India. The women members opposed the idea of reservations or separate electorates for women and minority groups as introduced earlier through the Government of India Act, 1935, because they felt it would be contrary to the spirit of an India to be built upon the foundations of a unified national identity. An analysis of the speeches of the women members of the Constituent Assembly reveals that the topics dealt with by them predominantly included the fundamental rights and the directive principles of state policy, education, untouchability, protection of children, representation of religious minorities and so on; there appears to have been no advocacy of rights for women as a distinct group. Their expectation seems to have been that if women could find representation in the Constituent Assembly, they would definitely be given ample opportunities to enter political life through elections in an independent India. This sanguine hope found expression in the words of Ammu Swaminathan, one of the women members of the Constituent Assembly who spoke during the discussion on the motion by Dr B R Ambedkar to pass the draft constitution on 24 November 1949:

People outside have been saying that India did not give equal rights to her women. Now we can say that when the Indian people themselves framed their Constitution, they have given rights to women equal with every other citizen of the country. That in itself is a great achievement and it is going to help our women not only to realise their responsibilities but to come forward and fully shoulder their responsibilities to make India a great country that she had been. (Selected Speeches of Women Members of the Constituent Assembly, 2012: 3)

This hope was to be belied in the years to come, as women were, and continue to be, grossly under-represented in the national and state legislatures post-independence. It was precisely such false expectation that the women who were actively involved in the transitional politics of South Africa were consciously guarding against when they insisted on the idea of gender equality being taken beyond political rhetoric and intrinsically incorporated into the new South African constitution as well as in political representation. Thus, while the presence of the women members in the Constituent Assembly was important in terms of symbolic representation, its impact on the substantive representation of women as equal citizens in the new political order is questionable. Evidently, the social revolution (Austin, 1966; Chaube, 1973) that the Indian constitution was supposed to ring in remained quite limited in the extent to which it sought to redefine gender relations and herald women’s rights.

Conclusion

This article brings out the nuances of women’s engagements with the constitutional-legal institutional arena in newly-independent/transitional democracies that play a huge role in setting the agenda for women’s subsequent negotiations with political power. While the descriptive representation of women in the constitution drafting processes is important, it is far from adequate in transforming the mere presence of women into substantive representation through which women’s rights and gender equality become part and parcel of the edifice of the new constitutions. What is crucial and decisive is the presence of women qua women, as an interest group that actively pursues the agenda of gender equality and that is able to create an alliance of women cutting across party lines, political affiliations, ideological orientations and social divides. This is demonstrated by contrasting the roles played by women in the specific political and historical contexts of constitution drafting in South Africa and India. The South African constitution amply reflects the impact of the active presence of women as a distinct interest group in the drafting process in several provisions that deal clearly and directly with gender equality, whereas the women members who were part of the Constituent Assembly were unable to leave a similar mark on the Indian constitution due to the primacy of their identity as women representing the nationalist cause over the demand for gender equality.

Through an in-depth examination of the role played by women in the making of constitutions within the specific historical and political contexts of two nations of the global South, this article has closely examined the factors that are relevant in contouring women’s negotiations with political power. Such comparative and cross-cultural feminist analysis can significantly enrich the debates and dialogues that seek to understand the diverse modes of women’s political participation.

Footnotes

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Nila Mohanan

Notes

Author biography

Nila Mohanan is a Doctoral Research scholar in the School of International and Area Studies, Goa University, Goa, India. She holds a Master of Arts Degree in Politics (with specialization in International Relations) and a Master of Philosophy Degree in International Politics from the School of International Studies, Jawaharlal Nehru University, Delhi, India. Her research interests include Feminist Theory, Feminist International Relations, Feminist Institutionalism, Comparative Politics of Gender and Gender Studies. She is a career bureaucrat and has been serving as a member of the Indian Administrative Service for the past 14 years. Views expressed in this article are personal.

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