GENDER JUSTICE IN THE INDIAN CONSTITUTION

After Independence, the architects of the Indian Constitution wanted to introduce reforms and
were keen to establish an egalitarian society. To achieve this end they used law as an instrument
to check gender discrimination, and unfavorable social environment.
While drafting the Constitution, they were sensitive to the problems faced by society in general.
The Preamble, which highlights the essence of the entire Constitution, clarifies that Equality is
one of the objectives of the Indian Constitution:-

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity o

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949,

The Preamble reflects the ideals and aims of the people. The Preamble starts by saying that we,
the people of India, give to ourselves this Constitution. The source of the Constitution is thus
traced to the people of India, irrespective of gender, caste, community, religion or sex. The
Preamble contains the goal of equality of status and opportunity to all Indian citizens. This
particular goal has been incorporated to give equal rights to all genders in terms of status as well
as opportunity. The Constitution of India has done a magnificent job in laying down the
framework which ensures gender justice in the supreme law of the country. It contains various
provisions, which provide for equal rights and opportunities for all genders. The principle of
gender equality is enshrined in the Indian Constitution in its Fundamental Rights, Fundamental
Duties and Directive Principles.
1. FUNDAMENTAL RIGHTS (PART III)

Part III of the Constitution consisting of Articles 12-35 is the heart of the Constitution. The
architects of the Constitution were conscious of the unequal treatment and discrimination meted
out to the fairer sex from time immemorial and therefore included certain general as well as
specific provisions for the upliftment of the status of women.

Article 14 - Equality before Law.

The State shall not deny to any person equality before the law or the equal Protection of the laws
within the territory of India.

Article 15 - Prohibition of discrimination on grounds of religion, race, cast, sex, or place of

birth.
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women
and children
Article 15(1) prohibits gender discrimination and Article 15(3) lifts that rigour and permits the
State to positively discriminate in favor of women to make special provisions to ameliorate their
social condition and provide political, economic and social justice.
Article 16 - Equality of opportunity in matters of public employment.

(1) There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the state.
(2) No citizens shall, on grounds only of religion, race, cast, sex, descent, place of birth, residence
or any of them, be ineligible for, or discriminated against in respect of, any employment or office
under the state.
The Constitution, therefore, provides equal opportunities for women implicitly as they are
applicable to all persons irrespective of sex.

Article 21 - Protection of life and personal liberty.

No person shall be deprive of his life or personal liberty except according to procedure
established by law

Article 23 - Prohibition of traffic in human beings and forced labour.

(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and
any contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall prevent the State from imposing compulsory service for public
purposes, and in imposing such service the State shall not make any discrimination on grounds
only of religion, race, caste or class or any of them.

2. DIRECTIVE PRINCIPLES OF STATE POLICY (PART IV)

Article 38 requires the State to secure a social order in which justice- social, economic and
political for the promotion of welfare of the people. It requires the state to strive to eliminate
inequalities in status, facilities and opportunities. Clearly the intention of the architects of the
Constitution was to ensure that equality would not only be of opportunity but in reality.

Article 39 puts down the principles of policy to be followed by the state which include that the
state should direct its policy towards securing the right to an adequate, means of livelihood , that
there is equal pay for equal work, that the health and strength of workers- men and women , are
not abused and that citizens are not forced by economic necessity to enter avocations unsuited to
their age or strength.

Article 42 requires the state to make provisions for securing just and humane conditions of work
and for maternity relief

Article 46 requires the state to promote with special care the education and economic interest of
the weaker sections of the citizen. Clearly then the objective is to strive towards a gender just
society.

3. FUNDAMENTAL DUTIES (PART IV-A)

In part IV-A of the constitution incorporated through 42nd Amendment Act, 1976, our natural
obligation to renounce practices derogatory to the dignity of women has been elevated to the
status of fundamental duty by article 51-A.
The Equal emuneration Act, 1976, the Maternity Benefit Act, 1961, the Dowry prohibition Act,
1961 and the Immoral Traffic (Prevention) Act, 1956 are some of the enactments which owe their
existance to the above mentioned provisions of the Indian Constitution.

4. LEGAL PROVISIONS THROUGH LEGISLATION

To uphold the Constitutional mandate, the States have enacted various legislative measures
intended to ensure equal rights, to counter social discrimination and various forms of violence
and atrocities. Numerous amendments have also been carried out to keep pace with the emerging
requirements.
The acts are as follow:1. The Plantation Labour Act, 1951
2. The Family Courts Act, 1954
3. The Special Marriage Act, 1954
4. The Hindu Marriage Act, 1955
5. The Hindu Succession Act, 1956 with amendment in 2005
6. Immoral Traffic (Prevention) Act, 1956
7. The Maternity Benefit Act, 1961 (Amended in 1995)
8. Dowry Prohibition Act, 1961
9. The Medical Termination of Pregnancy Act, 1971
10. The Contract Labour (Regulation and Abolition) Act, 1976
11. The Equal Remuneration Act, 1976
12. The Criminal Law (Amendment) Act, 1983
13. The Factories (Amendment) Act, 1986
14. Indecent Representation of Women (Prohibition) Act, 1986
15. Commission of Sati (Prevention) Act, 1987
16. The Protection of Women from Domestic Violence Act, 2005
17. The Prohibition of Child Marriage Act, 2006, etc.
Protection of Property Rights and Equal Treatment in Employment

Economic empowerment is a necessary fulcrum of empowerment. They have laid

emphasis on said conception and interpreted the provisions to elevate the status of
women and to empower them.
In Yeshaswinee Merchant, the Court had held that the twin Articles 15 and 16 prohibit
a discriminatory treatment but not preferential or special treatment of women, which is
a positive measure in their favour. The Constitution does not prohibit the employer to
consider sex while making the employment decisions where this is done pursuant to a
properly or legally chartered affirmative action plan.
Reservation of seats for women in election to local bodies
The Parliament has succeeded in its efforts to provide for reservation of seats for
women in elections to the Panchayat and the Municipalities.Reservation of seats for
women in Panchayats and Municipalities have been provided in Article 243D and
243T of the Constitution of India. Parts IX and IXA have been added to the
Constitution by the 73rd and 74th Amendment Acts.

SPECIAL INITIATIVES FOR WOMEN

1. National Commission for Women: In January 1992, the Government set-up this statutory
body with a specific mandate to study and monitor all matters relating to the constitutional and
legal safeguards provided for women, review the existing legislation to suggest amendments
wherever necessary, etc.
2. Reservation for Women in Local Self -Government: The 73rd Constitutional Amendment
Acts passed in1992 by Parliament ensure one-third of the total seats for women in all elected
offices in local bodies whether in rural areas or urban areas.
3. The National Plan of Action for the Girl Child (1991-2000): The plan of Action is to ensure
survival, protection and development of the girl child with the ultimate objective of building up a
better future for the girl child.
4. National Policy for the Empowerment of Women, 2001: The Department of Women &
Child Development in the Ministry of Human Resource Development had prepared a National
Policy for the Empowerment of Women in the year 2001. The goal of this policy is to bring
about the advancement, development and empowerment of women.

THE THIRD GENDER

According to one estimate, India has about two million transgender people. These people live on
the fringes of society, often in poverty, ostracized because of their gender identity. They weren't
always sidelined. Members of the transgender community have played a prominent role in Indian
culture and were once treated with great respect. They find mention in the ancient Hindu
scriptures and were written about in the greatest epics Ramayana and Mahabharata. They played
an important role in medieval India as well, in the royal courts of the Mughal emperors.
Although no Central legislation in India has openly recognised the third gender, gendersensitivity within the Indian bureaucracy has taken a small step, with eunuchs being given the
option to enter their sex as 'E' instead of either 'M' or 'F' in passport application forms in 2005.
Later in 2009, India's Election Commission gave those recognising themselves as transsexuals
an independent identity by letting them choose their gender as "other" on ballot forms, and by
allowing them to contest the Lok Sabha Elections- in 2014. Four transgender candidates
contested

the

elections,

two

of

them

from

major

seats-

Varanasi

and

Amethi.

It was in April, 2014 that a landmark judgment by the Supreme Court of India created the "third
gender" status for hijras or transgender. Earlier, they were forced to write male or female against
their gender which denied them the right of equality before the law and equal protection of law
guaranteed under Article 14 and violated the rights guaranteed to them under Article 21 of the
India Constitution. The Supreme Court ordered the government to give them educational and
employment reservation as OBCs, but little has been done towards fulfilling that.