Gender justice: Constitution and law

The first principle

Formal equality says the law must treat men and women alike; gender justice says that treating unequals alike preserves the inequality. Women start from behind because of who owns property, who does unpaid care work, whose safety is at risk in public and at home, and whose choices the family controls. The Constitution therefore does two things together: it forbids discrimination against women, and it allows the State to discriminate in their favour. Every law and judgement in this note is an attempt to turn that promise of substantive equality into lived reality, against social norms that change more slowly than law.

The core

What the Constitution says

• Equality and non discrimination. Article 14 guarantees equality before the law, Article 15(1) bars the State from discriminating on grounds of sex, and Article 16(2) bars such discrimination in public employment.
• Protective discrimination. Article 15(3) allows special provisions for women and children, which supports reservation for women in local bodies, women only police stations and schemes for girls. Courts read it as a power to remedy disadvantage, not to entrench stereotypes about what women can do.
• Dignity and autonomy. Article 21 has been read to include dignity, privacy, bodily integrity and reproductive choice, which is the basis of most recent gender judgements.
• Directive Principles and duties. Article 39(a) asks for an equal right to livelihood, Article 39(d) for equal pay for equal work, and Article 42 for just and humane conditions of work and maternity relief. Article 51A(e) makes it a duty of every citizen to renounce practices derogatory to the dignity of women.
• Representation. Articles 243D and 243T reserve at least one third of seats in panchayats and municipalities for women, and Article 243D also reserves at least one third of chairperson posts in panchayats. The One Hundred and Sixth Amendment (2023) added Articles 330A and 332A, reserving one third of seats in the Lok Sabha and state Assemblies, to take effect after the delimitation that follows the next census.

How courts have built gender justice

• Air India v Nargesh Meerza (1981). A rule ending an air hostess's service on her first pregnancy was struck down as arbitrary and an affront to womanhood under Article 14.
• Vishaka v State of Rajasthan (1997). In the absence of a law, the Court framed binding guidelines against sexual harassment at the workplace, drawing on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
• Githa Hariharan v Reserve Bank of India (1999). The word "after" in the Hindu Minority and Guardianship Act was read as "in the absence of", so a mother can be a natural guardian while the father is alive.
• Independent Thought v Union of India (2017). The exception that allowed a husband to have intercourse with a wife aged 15 to 18 was read down, so such intercourse is rape.
• Shayara Bano v Union of India (2017). Instant triple talaq (talaq e biddat) was set aside by a three to two majority, with two of the three majority judges holding it manifestly arbitrary under Article 14.
• Joseph Shine v Union of India (2018). Adultery under Section 497 of the Indian Penal Code was struck down because it treated a wife as her husband's property.
• Indian Young Lawyers Association v State of Kerala (2018). The exclusion of women aged 10 to 50 from Sabarimala was held unconstitutional by four to one. In 2019, while hearing review petitions, a bench referred wider questions on religious freedom and equality to a larger bench.
• Secretary, Ministry of Defence v Babita Puniya (2020). Women short service officers in the Army were held entitled to permanent commission, and the Court rejected arguments based on stereotypes about physical capacity.
• Vineeta Sharma v Rakesh Sharma (2020). Daughters are coparceners by birth under the Hindu Succession (Amendment) Act, 2005, whether or not the father was alive in 2005.
• X v Principal Secretary, Health and Family Welfare, Delhi (2022). Unmarried women may seek abortion up to 24 weeks on the same footing as married women, and the Court said forced sex by a husband counts as rape for the purpose of the abortion law.

Dimensions

• Legal. The movement in law has been from protection (keeping women safe) to autonomy (letting women choose), as the abortion, adultery and permanent commission cases show.
• Economic. Property, wages and work decide bargaining power inside the household. Female labour force participation in the Periodic Labour Force Survey (PLFS) rose from 23.3 per cent in 2017 to 18 to 41.7 per cent in 2023 to 24, but most of the rise is in rural self employment, much of it as unpaid helpers in household enterprises.
• Social. Son preference, dowry, restrictions on mobility and the burden of care persist even among educated families. The sex ratio at birth in the National Family Health Survey 5 (NFHS 5, 2019 to 21) was 929 girls per 1,000 boys, an improvement on 919 in NFHS 4 but still below the natural level.
• Safety. The National Crime Records Bureau (NCRB) recorded about 4.45 lakh crimes against women in 2022, and cruelty by husband or relatives was the largest head, which shows that the home is the main site of violence.
• Political. Reservation in panchayats has brought more than a million women into elected office, but proxy rule by male relatives shows that a seat alone does not shift power.

Source: National Statistics Office, Periodic Labour Force Survey annual reports.

Women's social capital

• What it is. Social capital is the value of networks, trust and norms of cooperation. For women it takes three forms: bonding ties with women like themselves, as in a self help group (SHG); bridging ties across caste, village and religion, as in SHG federations; and linking ties with banks, panchayats and officials.
• Why it complements empowerment. Schemes give an individual woman an asset or a skill; networks give her the confidence, information and collective voice to use it. The Deendayal Antyodaya Yojana National Rural Livelihoods Mission (DAY NRLM) has organised about ten crore women into SHGs, Kudumbashree in Kerala runs local services through women's groups, and Jeevika women in Bihar pushed for prohibition of liquor in 2016.
• Its limits. Networks can also carry patriarchal norms, exclude the poorest or reproduce caste hierarchies, so social capital works best when paired with rights and resources.

In practice

Key laws

• Dowry Prohibition Act, 1961 bans giving and taking dowry; dowry death and cruelty, earlier Sections 304B and 498A of the Indian Penal Code, are now in the Bharatiya Nyaya Sanhita.
• Protection of Women from Domestic Violence Act, 2005 gives civil remedies (protection, residence and maintenance orders) through Protection Officers and covers live in relationships. In Satish Chander Ahuja (2020) the Court held that a woman's right to reside extends to a shared household owned by her in laws.
• Criminal Law (Amendment) Act, 2013, passed after the Justice J. S. Verma Committee, widened the definition of rape and added acid attack, stalking and voyeurism as offences. The committee's call to criminalise marital rape was not accepted.
• Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, known as the Prevention of Sexual Harassment (POSH) Act, turned the Vishaka guidelines into law, with an Internal Committee in every workplace of ten or more employees and a Local Committee in each district.
• Maternity Benefit (Amendment) Act, 2017 raised paid maternity leave from 12 to 26 weeks and required creches in establishments with 50 or more employees.
• Muslim Women (Protection of Rights on Marriage) Act, 2019 makes triple talaq void and punishable with up to three years in prison.
• Bharatiya Nyaya Sanhita, 2023 brings offences against women and children together in Chapter V and adds Section 69 on sexual intercourse by deceit or a false promise of marriage.

Schemes and their performance

• Beti Bachao Beti Padhao (2015). Run by the Ministry of Women and Child Development with the Health and Education ministries, it targets the sex ratio at birth and girls' schooling, but much of its early budget was spent on publicity rather than on districts' own actions.
• Mission Shakti (2022). It has two parts: Sambal for safety (One Stop Centres, the 181 Women Helpline, Beti Bachao Beti Padhao) and Samarthya for empowerment (Pradhan Mantri Matru Vandana Yojana, Shakti Sadan shelters, Sakhi Niwas hostels and Palna creches).
• One Stop Centres (2015). These give a woman facing violence medical help, police assistance, legal aid, counselling and shelter under one roof.
• Pradhan Mantri Matru Vandana Yojana (2017). It pays ₹5,000 for the first child and, since 2022, ₹6,000 for a second child who is a girl, to make up wage loss and promote nutrition.

Issues and way forward

• Patriarchal attitudes despite achievement. Women lead in science, sport and business, yet violence, dowry and control of mobility persist because law and schemes change incentives, not beliefs.
• Engage men and boys. Programmes that make fathers, husbands and young men partners, such as the Bell Bajao campaign against domestic violence, work on the source of the norm.
• Change what children learn and see. Gender sensitive school textbooks, and media that show women as earners and leaders rather than only as carers, shape attitudes before they harden.
• Enforce property rights. Daughters' coparcenary rights and joint or women's title in housing under the Pradhan Mantri Awas Yojana (PMAY) give bargaining power only if registration and inheritance actually happen.
• More women in police and judiciary. Women officers make reporting easier, and more women judges bring diversity and wider perspectives to the bench.
• Value care work and make public space safe. Creches, paid care services and recognition of unpaid work free women's time, while lighting, transport and Nirbhaya Fund projects make cities usable.
• Implementation gaps. Internal Committees are missing in many workplaces, Protection Officers are often part time, and many One Stop Centres are short of staff, so budgets should follow outcomes.

Common confusions

• Article 15(1) and Article 15(3). The first forbids discrimination against women; the second allows special provisions in their favour.
• Formal and substantive equality. Formal equality treats everyone alike; substantive equality looks at outcomes and allows unequal treatment to correct disadvantage.
• Domestic Violence Act and cruelty under criminal law. The 2005 Act gives civil relief such as residence and protection; cruelty under the Bharatiya Nyaya Sanhita is a crime leading to punishment.
• Empowerment and social capital. Empowerment is a woman's capacity to choose; social capital is the network that helps her act on that choice together with others.

For the exam

• Keyword bank: substantive equality, Article 15(3), Article 39(d), Article 51A(e), Vishaka guidelines, Shayara Bano, Joseph Shine, Babita Puniya, Vineeta Sharma, reproductive autonomy, Justice Verma Committee, POSH Act, Mission Shakti, social capital, care economy.
• Practise the previous year questions on this topic →
• Use in an answer:
  • Introduction with data: "Female labour force participation rose from 23.3 per cent in 2017 to 18 to 41.7 per cent in 2023 to 24 (PLFS), yet most of the new work is unpaid or low paid, which shows that access has improved faster than equality."
  • Introduction with a judgement: "In Joseph Shine (2018) the Supreme Court struck down the adultery law because it treated a wife as her husband's property, placing autonomy at the centre of gender justice."
  • Conclusion: "The Constitution and the courts have done most of what law can do; the next step lies in homes, schools and workplaces, where norms are made."
  • Conclusion: "Gender justice will be real when women's networks, property and voice let them claim the rights the Constitution already gives them."