Feminist ideology in India’s constitutional discourse Premium

The founding mothers of the Constitution worked hard to break the patriarchal ecosystem, but the nation has failed them

In the Indian scenario, even calling the framers of the Constitution of India as ‘founding fathers’ is very patriarchal and paternalistic. The fact that the ‘founding mothers’ of the Indian Republic, the eminent women in the Constituent Assembly, too painstakingly co-authored the Constitution, has been spitefully hidden from the popular imagination. Achyut Chetan writes in his Founding Mothers of the Indian Republic: Gender Politics of the Framing of the Constitution (2022): “It is through the dynamics of will, consent, and, frequently enough, dissent, that women members carried the feminist movement through and beyond the Constituent Assembly. Each article of the Constitution, therefore, is a point of diffraction in the history of Indian feminism. The Constitution is drafted not just by the consent of women but also by their will.”

However, Christine Keating in her Framing the Postcolonial Sexual Contract: Democracy, Fraternalism, and State Authority in India (2007) demonstrated how the ‘founding fathers’ constitutionally subjugated the woman: “The Constituent Assembly struggled to reconcile their commitment to an egalitarian polity with their efforts to build consent for the political authority of the new Indian state...the assembly settled on a compromise, what I call the postcolonial sexual contract, to resolve that dilemma: they established equality in the public sphere as a fundamental right for women yet sanctioned discriminatory personal laws that maintained women’s subordination in the family in order to secure fraternal acquiescence to the centralized rule.”

The founding mothers cobbled an intersectional alliance with B.R. Ambedkar for the realisation of social revolution. They shared his sceptical attitude towards the romantic celebration of Indian culture which is deeply anchored in the brahmanical patriarchy. Amrit Kaur, a prominent founding mother of the Constitution, asserted in 1932 that the women of India were no longer willing to submit to standards, whether local, political, or ethical, which had been set for them by the male conscience of the community. The founding mothers laboured in and out of the Constituent Assembly to break the patriarchal ecosystem. But the nation has failed them deplorably.

The founding mothers conceived the Fundamental Rights not just as injunctions against the state but also as a social charter that restores their inherent freedoms curtailed by the behemoths in the private sphere such as religion and family which enjoyed privileged insulation from political interventions. Hansa Mehta and Amrit Kaur demanded that a Uniform Civil Code capable of arresting the aggrandising social-patriarchal power must be included in the Fundamental Rights.

And when the Uniform Civil Code was relegated to the Directive Principles, they played a remarkable role in bringing a prelude to the Directive Principles, that they are ‘fundamental in the governance of the country and the state has a duty to apply them in making laws’. This prelude, incorporated at the behest of the founding mothers, played a vital role in the ascendancy of the Directive Principles in the constitutional jurisprudence of India in the 1980s.

Begum Aizaz Rasul articulated that secularism was the most outstanding feature of the Constitution. In the Sub Committee on Fundamental Rights, Hansa Mehta tried to limit the right to religion as she believed that it would curtail women’s right to equality and social reforms such as the abolition of child marriage. Hansa Mehta and Amrit Kaur demanded the term ‘free practice of religion’ be replaced by ‘freedom of religious worship’ as a constitutional carte blanche for religion would impede Indian women’s emancipation.

In Amrit Kaur’s note of dissent on the ‘Freedom of Religion’, she vigorously underscored the anti-woman tendency of religious practices: “[unbridled freedom of religion] would not only bar the future legislation but would even invalidate past legislations such as the Widow Remarriage Act, the Sarda Act or even law abolishing sati. Everyone is aware how many evil practices which one would like to abolish, are carried on in the name of religion, for example, purdah, polygamy...dedication of girls to temples, to mention a few.” A disheartening chapter in the life of the Indian Republic is that the man’s right to religion conquered the woman’s right to equality and dignity.