Constitutional provisions
The Constitution of India is the highest law safeguarding gender equality and women rights. It contains many of the basic rights, directive principles, and duties that together provide the legal basis for the realization of substantive equality. Although these provisions ensure formal legal recognition of gender rights, the degree of adherence varies widely, resulting in persistent gender inequality across numerous sectors. The legal recognition of women’s rights, therefore, needs to be seen against the background of both constitutional intention and systemic structural factors that come in the way of enforcement.
The foundation of women’s rights in India has been built upon the Fundamental Rights guaranteed by Part III of the Constitution. Article 14 both guarantee equality before law and equal protection of laws, describes the duty of the State to guarantee legal protection to all persons without discrimination. But legal equality is not enough to compensate for historical disadvantages and entrenched patriarchy. In recognition of this fact, Article 15(1) does not allow discrimination based on sex and if allows the exclusion of women from legislations or policies. In addition, Article 15(3) enables the state to make special provisions for women and children, thereby providing a constitutional basis for affirmative action policies.
It is notable that an affirmative action clause led to the court validating laws relating to the reservation of posts for women in government jobs, special protections for women at the workplace and welfare schemes for women’s empowerment, among others.[1] The Maternity Benefit Act, 1961, for instance, which guarantees working women paid maternity leave, has been legally justified on the basis of Article 15(3) as a provision that permits state intervention on the behalf of gender justice. Articles 14 and 15 also provide the constitutional basis for laws of prevention and prohibition, such as the Dowry Prohibition Act, 1961, and the Protection of Women from Domestic Violence Act, 2005, which focus on the prevention of discrimination and gender-based crimes.
The right to life and personal liberty under Article 21 has been widely interpreted by the Supreme Court to include access to all fundamental rights necessary for women’s autonomy and dignity. In Vishakha v. State of Rajasthan, 1997,[2] recognition was given to sexual harassment at workplace as a violation of Articles 14, 15 and 21 which made the Supreme Court necessitate formation of Vishakha Guidelines which in turn were the basis of enactment of POSH Act, 2013. In the same vein, in Suchita Srivastava v. Chandigarh Administration,[3] the Court found that a woman’s right to make reproductive choices is part of her personal liberty, and that bodily autonomy and consent are fundamental rights. Judicial interpretations notwithstanding, marital rape still remains non-criminalized, which represents a major governing paradox where women’s bodily autonomy is only conditionally recognised.
Although formal legal protection is assured through Articles 14-16, Part IV of the Constitution lays down the Directive Principles of State Policy (DPSPs) that serve as guiding principles for substantive equality. Article 39, directs the state for equal pay for equal work and prohibits economic exploitation of women. Women still face gender-based pay inequities, particularly in the informal sector, where they are frequently underpaid or exploited in precarious working conditions. Article 42 requires the state to make provisions for securing just and humane conditions of work and maternity relief, in turn this has influenced legislation like The Equal Remuneration Act, 1976, and The Factories Act, 1948. These legal protections would imply that India has one of the highest female workforce participation rates, which should suggest that India has a high rate of effective policy implementation in terms of translating constitutional mandates into real labour protections. This lack of workforce participation would, however, implicate high policy inefficiency in the process.
Article 51A(e) under Fundamental Duties also places a moral responsibility on the citizens to renounce practices derogatory to the dignity of women. While not enforceable, this provision reflects the state’s understanding of the role of society as a whole in ending discrimination against women. But society continues to hold deeply patriarchal attitudes toward gender roles, domestic violence, and workplace harassment, which frustrate constitutional intent.
However, constitutional protections alone do not guarantee gender justice, and operationalizing these ideals has often proved to be elusive. A key problem stems from the disparity between constitutional guarantees and their enforcement.[4] Judicial interpretations have often been inconsistent while Article 15(3) enables special provisions for women, for example. In Madhu Kishwar v. State of Bihar,[5] the Supreme Court held that customary laws which discriminate against women in the matter of inheritance, could not be invalidated solely on the ground of constitutional guarantees. This reluctance of the judiciary to override patriarchal customs render constitutional safeguards in personal laws impotent.
Another big issue is that constitutional guarantee of gender equality notwithstanding, legal remedies available to women are rarely enforced. Article 14 guarantees equality before the law but survivors of sexual violence have often found it to be elusive because of long legal battles, insensitivity of the law enforcing agencies as well as the stigma in society. In cases like Tukaram v. State of Maharashtra[6] (Mathura Rape Case), courts have held biases in favour of the accused in the guise of correcting “flawed reasoning” about a woman’s “implied consent”—a symptom of judicial bias that flies in the face of constitutional tenets.
Another issue is the state’s failure to address intersectional discrimination. Dalit, Adivasi and other marginalized women experience dual oppression due to gender and caste-based discrimination. Despite constitutional protection, this is undermined by weak law enforcement on the ground, including the slow judicial process in caste-based sexual violence cases like the ‘Hathras’ rape case.
Unlike many Western democracies, which have strengthened constitutional protections through institutional frameworks that supply accountability. In countries such as Sweden and Norway, constitutional equality provisions come with strong anti-discrimination watchdogs that monitor violations of gender rights and ensure compliance. India, by contrast, does not have independent oversight agencies that have punitive powers and instead uses judicial activism as a substitute for state intervention.[7]
The constitutional architecture for women’s rights in India is, thus, legally robust but institutionally weak. There would always have to be the reminder that the state fell short in such areas as law enforcement, the judiciary’s efficient functioning and public awareness campaigns, which all conspired against the constitutional guarantees gaining ground in the community. Public Interest Litigations (PILs) and judicial activism have undeniably broadened legal protections for women, but sustainable gender justice will demand stronger legislative accountability, systemic reforms within the judiciary, and policy-driven interventions at the grassroots level.
[1] S. S. Singh, “Public Interest Litigations and Gender Justice in India,” Turkish Online Journal of Qualitative Inquiry, 2021. Available at: https://www.tojqi.net/index.php/journal/article/download/1123/487/1257. Accessed: 18 March 2025.
[2]Vishakha&Ors. v. State of Rajasthan, AIR 1997 SC 3011.
[3]Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.
[4] K. Geethanjali et al., “Women’s Rights and Gender Justice in India: A Review of Legal Protections and Gaps,” Frontiers in Health Informatics, vol. 13, no. 3, pp. 7915-7924, 2024. Available at: https://healthinformaticsjournal.com/index.php/IJMI/article/download/753/711/1212. Accessed: 18 March 2025.
[5] Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125.
[6] Tukaram v. State of Maharashtra, AIR 1979 SC 185.
[7] S. Sharma, “Judicial Activism and Gender Justice in India,” International Journal of Law and Policy Review, vol. 10, no. 2, pp. 123-145, 2024. Available at: https://www.ijlpr.com/journal-article/judicial-activism-and-gender-justice-in-india. Accessed: 18 March 2025.