Introduction
Gender equality is not merely a social ideal but a fundamental human right enshrined in constitutions, international conventions, and legal systems around the world. For law students, understanding gender equality is not just an academic exercise—it is a professional and ethical imperative. As future advocates, judges, legislators, and policy influencers, law students carry the responsibility of interpreting, enforcing, and evolving the legal standards that promote equity and justice.
Despite significant legal strides in the pursuit of gender parity, the gap between law and practice remains stark. Discriminatory practices, unconscious bias, and structural barriers continue to undermine the legal promises of equality. This article explores gender equality from a legal lens, outlining the progress made, the roadblocks that persist, and the transformative role legal professionals can play in shaping a more equal society.
The Constitutional Mandate for Gender Equality
The Constitution of India is the supreme law of the land, and it guarantees gender equality as a core constitutional value. It recognizes that all citizens—regardless of gender—should be treated equally and have equal access to opportunities, rights, and freedoms.
Here’s a breakdown of the key provisions and how they function in the legal and social framework:
Article 14 – Equality Before the 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.”
- Explanation: Article 14 ensures that every person—regardless of gender, caste, religion, or background—is treated equally in the eyes of the law.
- Relevance to Gender Equality: It prohibits gender-based favouritism or prejudice in legal proceedings and government actions. For example, if a woman is denied a job solely based on her gender, she can challenge that action under Article 14.
Article 15(1) – Prohibition of Discrimination
“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
- Explanation: This article specifically prohibits discrimination by the State based on sex, among other grounds.
- Relevance: It forms the bedrock for fighting gender-based discrimination in laws, policies, and state actions. For instance, if a government scheme excludes women or LGBTQ+ persons, it can be challenged as unconstitutional under Article 15(1).
Article 15(3) – Special Provisions for Women and Children
“Nothing in this article shall prevent the State from making any special provision for women and children.”
- Explanation: This is a form of affirmative action. It allows the government to make positive discrimination or protective provisions to uplift and safeguard women and children.
- Examples: Reservations for women in panchayats, maternity benefits, women-only public transportation services, etc., are all examples justified under Article 15(3).
- Note: This shows that treating women differently to address inequality is not unconstitutional—rather, it is encouraged to promote real equality.
Article 16 – Equality in Public Employment
“There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.”
- Explanation: This article guarantees that all citizens, regardless of gender, should have an equal chance to apply for and be selected for government jobs.
- Relevance: It has been used to challenge gender bias in recruitment or promotion policies in government departments and public services
Judicial Reinforcement through Landmark Cases
The Indian judiciary, especially the Supreme Court, has played a critical role in interpreting these constitutional provisions and expanding the scope of gender justice.
1. Vishaka v. State of Rajasthan (1997)
- Context: A social worker was gang-raped while performing her duties. At that time, India lacked any formal law to deal with sexual harassment in the workplace.
- Judgment: The Supreme Court laid down the Vishaka Guidelines, which acted as law until Parliament passed the Sexual Harassment Act in 2013.
- Link to the Constitution: The Court relied on Articles 14, 15, and 21 (right to life and dignity) to ensure that women can work with dignity and without fear of harassment.
2. Navtej Singh Johar v. Union of India (2018)
- Context: This case challenged Section 377 of the Indian Penal Code, which criminalized consensual same-sex relationships.
- Judgment: The Court decriminalized consensual homosexuality and recognized the rights and dignity of the LGBTQ+ community.
- Link to Gender Equality: The judgment emphasized gender identity and sexual orientation as inherent to a person’s dignity and autonomy, which are protected by Articles 14, 15, and 21. It also acknowledged the fluidity of gender and dismantled binary notions of male and female
Gender Equality in Statutory Laws – Explained
While constitutional provisions lay the foundation for gender equality, statutory laws (i.e., laws passed by Parliament or state legislatures) give practical shape to those rights by addressing specific areas of life such as employment, safety, health, and identity. Over the years, several key legislations have been introduced to tackle gender-based inequality and discrimination.
Here’s an explanation of some important laws and how they function:
1. The Equal Remuneration Act, 1976
Purpose: To ensure equal pay for equal work for men and women.
- Key Provisions:
- Employers must pay men and women the same wages for doing the same or similar work.
- It prohibits gender-based discrimination in recruitment and promotions.
- Why it matters: Women have historically been paid less than men for doing the same work. This Act addresses wage disparity and promotes economic equality in the workplace.
- Note: This law has now been repealed and replaced under the Code on Wages, 2019, which consolidates wage-related laws while retaining the principle of equal remuneration.
2. The Protection of Women from Domestic Violence Act, 2005 (PWDVA)
Purpose: To protect women from all forms of domestic abuse—not just physical, but also emotional, verbal, sexual, and economic.
- Key Features:
- Recognizes a woman’s right to reside in the shared household.
- Provides for protection orders, residence orders, and monetary relief.
- Covers not only wives but also women in live-in relationships, sisters, mothers, and other female relatives.
- Why it matters: This was the first comprehensive law in India that recognized domestic violence as a human rights violation and a form of gender-based discrimination, going beyond the scope of criminal laws like Section 498A IPC.
3. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
Purpose: To prevent and address sexual harassment of women at the workplace.
- Origin: Based on the Vishaka Guidelines laid down by the Supreme Court in Vishaka v. State of Rajasthan (1997).
- Key Provisions:
- Mandatory creation of Internal Complaints Committees (ICC) in workplaces.
- Protection extended to all working women, including contractual workers, interns, and domestic workers.
- Defines sexual harassment broadly to include unwelcome physical contact, sexually coloured remarks, showing pornography, and any behaviour that makes a woman feel unsafe.
- Why it matters: Before this Act, there was no specific legal mechanism to address workplace harassment. This statute ensures accountability and helps create safer, gender-sensitive work environments.
4. The Maternity Benefit Act, 1961 (Amended in 2017)
Purpose: To safeguard the employment and health rights of pregnant women and new mothers.
- Key Provisions:
- Provides paid maternity leave of up to 26 weeks for the first two children.
- Mandates establishment of crèche facilities in companies with 50 or more employees.
- Prohibits dismissal or discrimination against women during maternity.
- Why it matters: It helps prevent women from being forced out of the workforce due to pregnancy or motherhood and encourages greater workforce participation by women.
Recognition of Gender Minorities in Law
Traditionally, most laws on gender equality focused on women—primarily cisgender women. However, the law is now evolving to recognize the rights of gender minorities, including transgender, non-binary, and intersex individuals.
The Transgender Persons (Protection of Rights) Act, 2019
Purpose: To provide legal recognition and protection to transgender persons in India.
- Key Features:
- Prohibits discrimination against transgender persons in education, employment, healthcare, access to public spaces, etc.
- Mandates the issuance of a Certificate of Identity by a District Magistrate, recognizing a person as transgender.
- Calls for the establishment of welfare schemes, rehabilitation centres, and anti-discrimination measures.
- Why it’s a landmark:
- For the first time, a central law acknowledged non-binary gender identities.
- It builds upon the Supreme Court’s ruling in National Legal Services Authority (NALSA) v. Union of India (2014), which recognized transgender persons as a third gender and affirmed their fundamental rights under the Constitution.
- Criticism:
- The requirement for transgender persons to apply to a magistrate for gender identity certification was seen as invasive and contrary to the principle of self-identification upheld in the NALSA judgment.
- Lack of clarity on implementation mechanisms and weak penalties for violations.
Conclusion
Gender equality is not merely a moral or social ideal but a constitutional mandate and a legal necessity. From the foundational provisions of the Indian Constitution to a range of progressive statutes, the Indian legal framework aspires to dismantle centuries of structural and systemic discrimination based on gender. However, the journey toward true equality is ongoing.
While laws like the Domestic Violence Act, Equal Remuneration Act, and the Transgender Persons Act have made significant strides in protecting rights and ensuring inclusion, the gap between law and practice remains a critical concern. Social stigma, lack of awareness, institutional apathy, and uneven enforcement continue to hinder the realization of gender justice on the ground.
Contributed By : Arzoo Kala ( Intern )