3 instances of sexism in the Constituent Assembly

Let’s recognise that our Constituent Assembly was not devoid of sexism. Women were not particularly well represented in the Assembly – only 15 of the 299 members were women – and even the few women members who were there had to deal with some pretty sexist behaviour.

“It is only because you are a lady I am allowing you”

Dakshayani Velayudhan was one of the most inspiring personalities in the Constituent Assembly, and it is a bit of a tragedy that more people don’t know about her. She was the only Dalit woman to be elected to the Constituent Assembly and at 34, one of its youngest members. A lifelong fighter for the rights of Dalits, she was also the first Dalit woman to earn a degree. On November 29, 1948, she was making a speech in the Assembly on the need for a strong campaign to eradicate untouchability in India, when the Vice-President of the Constituent Assembly, Dr. H.C. Mookherjee, interrupted her before she could finish. “You have exceeded the time-limit,” he said. “It is only because you are a lady I am allowing you.”

This might seem like a minor thing to some, but it’s a good example of a very insidious form of sexism. An extremely intelligent, capable woman was shown her place by a man. It was not enough for Dr. Mookherjee to warn her that she had exceeded her time; he felt it necessary to remind her that she was a woman and, therefore, he had, in all his masculine magnanimity decided to allow her to continue. What seems like special treatment is actually an acknowledgment of the power structure: she is a woman in a male-dominated body so she must be reminded of that fact. She must also be reminded that it is the men who are allowing her to speak. One wonders if any of the venerable male leaders in the Constituent Assembly would have been subject to such brusque admonishment. There are several examples of men speaking out of turn in the Assembly, but they are never reminded of their gender, caste, class or station in life. As a thought experiment, suppose one of the male Dalit leaders in the Assembly, say Jagjivan Ram, had exceeded his time. Would the Vice President have said: “It is only because you are a Dalit I am allowing you”?

“Woman is ruled more by the heart than by the head”

Purnima Banerji was one of the foremost socialist leaders at the helm of the freedom movement in India. She had worked tirelessly to improve the condition of workers, farmers and oppressed minorities in India and had strived to secure for them the fundamental right to education and livelihood. On October 11, 1949, she was speaking in the Constituent Assembly about an Article on the membership of the proposed provisional Parliament in the Draft Constitution, which stated that casual vacancies of seats held by Sikhs and Muslims should be filled by people of the same communities. She suggested that the same should be done for seats vacated by women. “I wish to make it quite clear,” she said, “that women do not want any reserved seats for themselves, but nevertheless, I suggest to the House that in respect of the number of women who are now occupying seats in the Assembly, if any of them should vacate their seats they should be filled up by women themselves.”

Sarojini Naidu, Vijayalakshmi Pandit, and Malati Chaudhuri
Three seats of the Assembly held by women members had recently been vacated: Sarojini Naidu had died, Vijayalakshmi Pandit had had joined the United Nations, and Malati Chaudhuri had retired. Their seats had been taken by men. Purnima Banerji said, “I do not speak in disparagement of the honourable Members who may have been returned in their places and I am sure they are worthy and fit Members of this House. But I do hold that women could have also filled those places with equal merit and they should have been invited to do so. […] I feel, that not only is the association of women in the field of politics essential but it is indispensable, and therefore I feel that this indispensable section of the people should be amply represented in this House”. Although she had made it clear that she was not asking for reservations, and her suggested amendment was hardly an unreasonable one, her trepidation in proposing it to a house full of men becomes palpable when one reads the records of the Constituent Assembly Debates. “I am conscious of a spirit of diffidence in moving this amendment,” she says, “and sometimes feel that in doing so I may be opening myself to a certain amount of ridicule.” It turns out that her fears were not unfounded.

In reply to her suggestion, H.V. Kamath, a former civil servant, a member of the Forward Bloc, and a staunch believer in traditional values who once struggled in vain to get the word “God” inserted into the Preamble, launched into an astonishing lecture on women’s place in politics. “The most common and the strongest objection so far put forward by political philosophers in this connection,” he proclaimed, “that is to say as regards the capability of women for government and administration is that woman is ruled more by the heart than by the head, and where the affairs of Government are concerned, where we have to be cold and calculating in dealing with various kinds of men, women would find it rather awkward and difficult to deal with such persons and that the head may not play the part that it must play in the affairs of government. If the heart were to rule and the head to take a secondary place then it is felt by many thinking men, and thinking women too, that the affairs of government might go somewhat awry, might not fare as well as we might want them to be.”

Dr. Ambedkar, who otherwise fought tooth and nail to make provisions promoting equality and the upliftment of the oppressed, dismissed Purnima Banerji’s suggestion. She withdrew her amendment.

“Protection against women”

Hansa Mehta was one of the most dynamic, multi-faceted and accomplished members of the Constituent Assembly. She was an educationist, feminist, writer and reformer. As the president of the All India Women’s Conference she had spearheaded the founding of the Lady Irwin College in Delhi. She was also the first woman Vice Chancellor of a college in India when she assumed the role in the SNDT Women’s University. She was a member of the legislative council of Bombay and also served as a member of the United Nations sub-committee on the status of women, and vice chair, with Eleanor Roosevelt on the United Nations Universal Declaration of Human Rights committee. In the Constituent Assembly she was a member of the Fundamental Rights Sub-Committee, the Advisory Committee and the Provincial Constitutional Committee. In the Constituent Assembly she tried unsuccessfully to make the Uniform Civil Code a justiciable part of the Constitution rather than a Directive Principle of State Policy.

On November 22, 1949, amidst discussions on the recently completed final draft of the Constitution, Mr. Rohini Kumar Chaudhuri of Assam made the incredibly strange assertion that while the Constitution had provisions for the protection of cows and women, it should have also included provisions for protection against cows and women. “I should say protection against women is very essential,” he stated. “You have made some provision in the Directive Principles for protection of women and children, but you have entirely failed to take into consideration one very important fact, protection which is needed against women.”

When challenged on this, he said, “We really need protection against women because in every sphere of life they are now trying to elbow us out. In the offices, in the legislatures, in the embassies, in everything they try to elbow us out. They succeed for two reasons: one, our exaggerated sense of courtesy, and then because of their having some influence in the ear of those persons who have authority.”

His baffling tirade, turned even more misogynistic as he spoke about women’s representation in Parliament: “One good thing there is about this Constitution for which I would like to congratulate Dr. Ambedkar and that is that he was not insistent on giving special seats for women. That is at least something saved, some achievement made. Now, even after seats for women have been abolished, if the feelings of man are such that he should push them forward, I would very much regret it. It is not Dr. Ambedkar who is responsible for it. It is the foolish man who wishes to give them votes and send them to the legislatures and thus create troubles like the trouble, which they have created in the matter of the Hindu Code.” That last jab was perhaps aimed at Hansa Mehta who, as a member of the Select Committee for the drafting of the Hindu Code Bill, had pointed out that while several revolutionary changes had been made to the law to improve the position of women with regard to marriage, inheritance, divorce, property rights and adoption, it was still nowhere near giving women equal status as men.

Choosing not to dignify Mr Chaudhuri’s offensive diatribe with a long and angry response of her own, Hansa Mehta, ever the consummate stateswoman, dismissed him with a short and pithy response: “The world would have thought very little of the men if they had asked for protection against women in this Constitution; I am very happy to see that the Constitution does not include that provision. Otherwise men would have had to hide their faces before the world.”

So these are just some instances of sexism that occurred during the creation of our Constitution. The intention of this post is not to malign anyone, but to show that sexism exists almost everywhere and we need to recognise this fact before we can do anything about it. It is important for us to know that even in the Constituent Assembly, which included some of our most admired leaders and greatest minds that produced our nation-building document, women still struggled to be treated at par with men.

Types of creditors under the insolvency law – Are all of them protected?

Under the Insolvency and Bankruptcy Code, 2016 (“IBC”), different classes of creditors have different rights, privileges, and roles in the corporate insolvency resolution process (“CIRP”) and in the liquidation process. This classification of creditors is a key element in the process of resolution or liquidation of a corporate debtor.

Categories of debt and creditors

In the previous regime under the Companies Act, which only provided for winding up or liquidation, the main distinction among creditors, barring a couple of exceptional creditors like unpaid workmen and the government, was between secured and unsecured creditors. Secured creditors were at a higher priority to the extent of proceeds from the sale of their security. The reason for this was that where any creditor has provided debt on the condition that some asset of the company is secured, that condition should be respected when the debtor is being wound up. This remains the case in the liquidation process under the IBC.

The IBC introduces a new distinction between “financial debt” and “operational debt”. This distinction is important. Only financial creditors, as I’ve discussed previously, are members of the COC, the body with the power to approve or reject a resolution plan, and to make decisions regarding the corporate debtor during the CIRP. Operational creditors do have some statutory protection. Any resolution plan must, under Section 30 of the IBC, provide for payment to operational creditors of an amount they would have received had the corporate debtor been liquidated.

Further, only financial creditors, operational creditors, and the corporate debtor itself have the ability to initiate a CIRP, although, as I’ve discussed previously, there are different evidentiary thresholds for financial and operational creditors when seeking to initiate a CIRP. Let’s take a closer look at these distinctions, the reasons they have been put in place, and their implications.

Who is a creditor?

The Money Lender, a painting by Auguste Charpentier (1842)
A “creditor” is any person to whom a debt is owed. A “debt” is a liability or obligation in respect of a claim, due from any person. An essential part of the term “claim” is a right to payment, or a right to remedy for breach of contract, which gives rise to a right to payment. To be considered a creditor of the corporate debtor, therefore, a right to payment is essential. Someone seeking a remedy of specific performance, injunction, or any other remedy, which does not give rise to a payment, would not be considered a creditor.

Who is a financial creditor?

Financial debt has been defined in the IBC to mean a debt, which is disbursed against the consideration for the “time value of money”. The expression “time value of money” is an established concept in finance and is based on the idea that money available at the present time is worth more than the same amount in the future due to its potential earning capacity. Thus, for example, if Rs. 100 is deposited today into a fixed deposit or savings account, it would earn interest, and three years later, may increase to, say, Rs. 110. Similarly, when a lender lends to a borrower, it does so only because later in time, it will get back that amount together with interest or some other return. The lender’s earning by way of interest is the consideration for making the loan in the first place. The essential idea that the expression “time value of money” captures is that of a “borrower-lender relationship”, where a loan that has been provided, has to be returned with interest or return of some kind.

In ascertaining whether a transaction is financial debt, it is the underlying nature of the transaction, which needs to be looked at. In Nikhil Mehta v. AMR Infrastructure, the applicant creditor had paid the defendant real estate developer the full price of under-construction commercial premises, with the understanding that until possession of the completed premises were handed over to him, the defendant would pay him a fixed sum every month. Overturning the decision of the Delhi NCLT, the NCLAT looked at the underlying nature of the transaction and held that this was not simply a contract to buy and sell commercial premises, but was in effect a transaction whereby one party had advanced monies against the consideration of an assured return, thereby giving it the character of financial debt.

What is operational debt?

The Money Lender and His Wife, a painting by Quentin Metsy (1465)
“Operational debt” on the other hand, has been defined as “a debt in respect of the provision of goods and services”. The primary intent is to cover trade creditors of various descriptions, whom the corporate debtor contracts with as part of its business. A vendor who supplied tires to an automobile manufacturer, and has not yet been paid, would be a typical example. However, the expressions “goods” and “services” are not defined in the IBC, and the jurisprudence on this is yet to evolve. One of the significant early decisions in this regard is by the NCLAT in Pawan Dubey v. JBK Private Developers Limited, in which allottees of residential and commercial premises were held not to be operational creditors as the transaction did not involve “goods” or “services”.

Are there other categories of debt and creditors?

The case of Nikhil Mehta mentioned above involved a specific transaction and not a typical transaction between homeowners and developers. The overall effect of NCLAT judgments has been to classify homebuyers as neither operational nor financial creditors. It is not clear whether the framers of the IBC intended to exclude such transactions. One potential policy reason for this exclusion might be that the Real Estate (Regulation and Development) Act, 2016 (“RERA”), was enacted around the same time as the IBC as a specialised legislation to protect the interests of purchasers of real estate properties. This reason fails to take into account other specialised legislation (such as labour and consumer protection statutes), which are available to various creditors who are not excluded from the purview of “operational creditors”. Moreover, due to the operation of the moratorium during the CIRP process, action under RERA may not even be possible during the pendency of the CIRP.

The case of the homebuyers brings to light one of the key early issues under the IBC. The IBC has an additional definition of “debt”, which would imply that the framers did not consider financial and operational debt as comprising the entire universe of debt. This Insolvency and Bankruptcy Board of India (IBBI) has also released, as part of the regulations framed under the IBC, a new form for non-financial and non-operational creditors to make claims under a CIRP, thus lending weight to this interpretation.

However, it is unclear why there should be any categories of debt that should not get the protections and privileges afforded to financial creditors or operational creditors. A creditor who is classified as neither financial nor operational has no statutory protection under the CIRP, nor does it have the ability to initiate a CIRP. Given that the erstwhile provisions of the Companies Act on winding up have been repealed, such a creditor now also does not have the ability to initiate a liquidation which it had under the previous regime. This outcome therefore appears contrary to the intents and purposes of the IBC.

As things stand, the uncertain status of allottees of residential and commercial premises has resulted in confusion and concern. A petition by the allottees of Jaypee Infratech Limited, another real estate company admitted into CIRP, is pending before the Supreme Court. Hopefully the Supreme Court can bring some clarity to the situation.

Primacy of financial creditors

As highlighted previously, financial creditors have far greater power than operational creditors, including ultimately, the power to decide whether the corporate debtor is to be liquidated. The report of the Bankruptcy Law Reforms Committee, on whose recommendations the IBC is based, felt that financial creditors were better able to assess the overall viability of the company and be more willing to modify the terms of existing liabilities, due to which the process would be more efficient if only financial creditors were on the committee of creditors.

This is a bold but risky position. It is true that banks and financial institutions, who would typically be the financial creditors, are better equipped to assess the corporate debtor’s business viability – after all, they are in the business of making such assessments for the purposes of providing loans. The IBC however, does not impose on them a responsibility to take the interests of other stakeholders into account. Although, as mentioned above, the liquidation value due to operational creditors is statutorily protected under the IBC, it may not be sufficient in all cases. For example, the unpaid dues to workmen (who are operational creditors) will get primacy in both a resolution plan as well as a liquidation scenario, but as they are not members of the COC, the decision to liquidate the corporate debtor, over which they have no control, would have a significant impact on the future livelihood of those workmen.