On September 28, 2023, the President of India granted her assent to the Constitution (128th Amendment) Bill, 2023 (better known as the Women’s Reservation Bill), now enacted as the Constitution (106th Amendment) Act.

The Act seeks to reserve 33 per cent of the seats for women in the Lok Sabha, the State legislative assemblies and the Delhi legislative assembly, through the amendment of Article 239AA of the Constitution and the insertion of two new articles — Article 330A and Article 332A. The reservation would also apply to seats for SC/ST in Lok Sabha, the state legislative assemblies and the Delhi legislative assembly, and would cease to have effect on the expiration of 15 years from the date on which the amendment comes into force. The process of implementation of the reservation is detailed in a new Article 334A. However, according to Article 334A, these changes will be contingent on the completion and publication of the results of a nationwide census and the constitution of a delimitation commission and the undertaking of a delimitation exercise after the census.

Procedural Challenges

While the Act paints a bright prospect for women’s participation in law-making, in reality, there are several hurdles that need to be overcome before the law can be effectively implemented. For example, all sections of society must feel like they have a representative to voice their concerns. However, one glaring issue is the exclusion of the Other Backward Classes (OBCs) from the women’s reservation quota. Such selective reservation may negate the purpose of reservation. And just like the earlier versions of the bill, the Act does not provide for reservation in the Rajya Sabha, State legislative councils or legislative bodies of other Union Territories.

On the procedural side, the real challenge lies in the actual implementation of reservation as it is contingent on the next census and the following delimitation exercise. (Delimitation is a process of redrawing the boundaries of current constituencies to reflect the changing demographics in the country.) Since representation in Lok Sabha and State legislatures are pegged to the population of their constituencies, delimitation can be undertaken only after the census.

According to the 84th Constitutional Amendment, the constituency boundaries are frozen until the first census after 2026. So, the earliest the next census may be undertaken is in 2026.

Once the census data is published, a delimitation commission will be constituted to draw up the new boundaries, if required. If the commission recommends a higher number of seats in the Lok Sabha, further amendments to the Constitution will be required to implement this. Assuming the census and delimitation are completed during the term of the elected representatives, the reservation can only be implemented after their dissolution of these legislative bodies. And future implementations of the reservations will depend on periodic rotations of the reserved seats and these rotations can only be conducted after delimitation exercises. Given how mammoth these delimitation exercises are, there is a real possibility that the women’s reservation may not even be implemented in time for the 2029 general elections.

Also, what is this about the reservation being for 15-years only? A) is this not good enough as a long-term proposal? and B) with the cost and the mechanics involved in bringing this to fruition, the timeline does not make much sense.

The Road Ahead

The Act is certainly a long way from becoming a reality. Nevertheless, it is a historic step toward gender equality. Coming from the largest democracy in the world, this proves India’s commitment towards women-inclusive political discourse and development. Increased participation of women in law making will not only positively impact domestic laws and policies aimed towards women’s empowerment but also help shape the future legislative direction of our country.

(Mary Julie John, Partner, JSA, and Riya Saraf and Sherin Jose, Associates, JSA; Views expressed are personal)

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