Women Reservation in Parliament & State Legislature

By way of the Constitution (106th Amendment) Act 2023, passed on 28th September 2023, women reservation has been introduced in the Parliament and State Legislative Assemblies. Salient features of the Amendment Act are as follows:

1)    1/3rd Quota

The Amendment Act provides that, (i) 1/3 of the total number of seats to be filled by direct election in the Legislative Assembly of NCT of Delhi shall be reserved for women [Article 239AA(2)(bc)], (ii) 1/3 of the total number of seats to be filled by direct election to the House of People (Lok Sabha) shall be reserved for women [Article 330A(3)], and (iii) 1/3 of the total number of seats to be filled by direct election in the Legislative Assembly of every State (Vidhan Sabha), shall be reserved for women [Article 332A(3)].

The amendment thus provides for vertical reservation of women in both the Parliament & Legislative Assemblies in India. This means, out of the total seats in the legislative bodies, 1/3 can only be filled by women. This was already provided by the Constitution for Panchayats and Municipalities in Articles 243T(2) and 243O(2), way back in 1992.

This is distinct from the horizontal reservation for women given in educational institutions by the State under Article 16(3). While the latter is an enabling provision that may be exercised by the State, the former is a mandate that must be exercised by the State in all direct elections.

2)    Intersection with other Classes

The Amendment Act also provides that 1/3 of the seats reserved for Scheduled Castes (SCs) & Scheduled Tribes (STs) in all legislative bodies shall be reserved for women. Besides, total women reservation shall be inclusive of the seats reserved for SC women and ST women.

It therefore recognizes the intersection of gender with other reserved classes such as SCs/ STs, on the basis that though SCs/ STs have suffered historic discrimination as a ‘backward class’, women have suffered double discrimination as the ‘weaker’ gender in addition to their caste. This is called ‘caste+’ discrimination, which has been acknowledged by the Indian Supreme Court in Patan Jamal Vali v. State of A.P., (2021) 16 SCC 225 & now forms a part of India’s equality law.

The amendment has however been criticized for not providing a similar reservation within Other Backward Classes (OBCs). This may have been the reason for 2 votes opposing the amendment.

3)    Enforcement of the Amendment Act & Rotation

The Amendment Act shall come into force only after an exercise of delimitation is undertaken, and after the census conducted post 2023. [Article 334A(1)] Once it comes into effect, the reserved seats shall be rotated after each subsequent exercise of delimitation, as determined by Parliament. [Article 334A(3)]

It is significant that women reservation shall not come into force immediately. Census and delimitation are 2 prerequisites for its enforcement. Also, once enforced, the reserved seats shall be rotated after every exercise of delimitation. This would ensure the same constituency is not reserved each time.

4)    End-point of 15 years

The amendment also provides that reservation shall come to an end after expiry of 15 years from the commencement of the Act. Reservation may, however, continue till such time as determined by Parliament. [Article 334A(1) & (2)]

This means that the Parliament contemplates an end-point to women reservation on the basis that after 15 years women ought to have achieved equality amongst other candidates and will be able to compete from a level plain field. In case this is not achieved, the Parliament has the liberty to extend the reservation.

This is similar to reservation of SCs & STs in legislative bodies which ought to have expired after 10 years from the commencement of the Constitution. However, repeated constitutional amendments were made to extend this outer-limit on the basis that the purpose for which it was introduced has not been achieved. The Constitution (104th Amendment) Act 2019 that extends it to 80 years is pending challenge before the Constitution Bench in Ashok Kumar Jain v. Union of India WP(C) 546/ 2000.

Lastly, the Amendment Act does not affect the existing representation in the House of People, Legislative Assembly of a State and NCT of Delhi. The amendment is thus prospective in its implementation. [Article 334A(4) & Section 6 of the Amendment Act]