Constitutional provisions for women

The Indian Constitution, while not explicitly mentioning women in its preamble, aims to
secure justice, liberty, equality, and fraternity for all citizens, which includes women.
Preamble
The preamble's commitment to social, economic, and political justice ensures that women
are not denied these rights. The Indian Constitution, including its Preamble, lays the
foundation for women's rights by guaranteeing equality and prohibiting discrimination. While
the Preamble itself doesn't explicitly mention gender, it establishes the principles of justice,
liberty, equality, and fraternity, which are foundational for ensuring women's rights.
Preamble: The preamble's emphasis on justice, liberty, equality, and fraternity is interpreted to
include women, ensuring they are not excluded from the benefits of these principles.
Furthermore, various articles within the Constitution guarantee equality, prohibit
discrimination based on sex, and provide for positive discrimination in favour of
women. These articles in the Constitution, like Articles 14, 15, and 16, 21 directly address
equality before the law, prohibition of discrimination, and equality of opportunity,
specifically mentioning sex as a prohibited ground for discrimination.
ARTICLE 14 : Equality before law
 Article 14 – Men and women to have equal rights and opportunities in the political,
economic and social spheres.
o Article 14 of the Indian Constitution guarantees the “right to equality” to every
citizen, asserting that the State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.

o This provision is instrumental in ensuring that women have equal rights and
opportunities as men, laying the groundwork for gender equality in the political,
economic and social spheres.

ARTICLE 15: Prohibition of discrimination on grounds of religion, race, caste, sex or

place of birth
 Article 15(1) – Prohibits discrimination against any citizen on the grounds of religion,
race, caste, sex etc. Article 15(1) of the Indian Constitution prohibits the state from
discriminating against any citizen on the grounds of religion, race, caste, sex, or place of
birth. It ensures that all citizens are treated equally and prevents the state from creating
distinctions based on these specific characteristics.
 Article 15(3)- Special provision enabling the State to make affirmative discriminations in
favour of women. Article 15(3) empowers the state to make special provisions for women
and children.
Article 16: Equality of opportunity in matters of public employment for all citizens

o Article 16 extends the right to equality to the realm of employment, guaranteeing equal
employment opportunities for all citizens in matters relating to employment or
appointment to any office under the State.
o Article 16(1) of the Indian Constitution guarantees equality of opportunity for all citizens
in matters of public employment and appointments to any office under the State. This
means that when there are job opportunities in the government sector, every citizen is
entitled to equal treatment and a fair chance, regardless of their background.

o Article 16(2) of the Indian Constitution guarantees equality of opportunity in public

employment and prohibits discrimination based on religion, race, caste, sex, descent,
place of birth, or residence. This provision is crucial for ensuring women have access to
public sector jobs on an equal footing with men.

Article 21: Protection of life and personal liberty

Article 21 of the Indian Constitution, guaranteeing the right to life and personal liberty,
plays a crucial role in protecting women by encompassing various aspects of their well-being.
It ensures women are not deprived of their lives or personal liberty except according to
procedure established by law. This right, interpreted expansively by the judiciary, includes
the right to live with dignity, bodily integrity, and the right to make reproductive
choices. Article 21 protects women by :

1. Right to Dignity and Decency:

 Article 21 ensures women have the right to a life of respect, equality, and decency,
free from fear, force, violence, or discrimination.
 This includes protection from sexual harassment at the workplace, as established in
the landmark Vishaka judgment, which recognized the right to a safe working
environment as part of Article 21.

2. Reproductive Rights:

 Article 21 protects a woman's right to make reproductive choices, including the right
to carry a pregnancy to term, give birth, and raise children, as well as the right to
abstain from procreation.
 The courts have recognized that these choices are part of a woman's personal liberty
and privacy, as per Article 21.
 According to case law, women have the right to make decisions about their own
bodies, including the right to safe and legal abortion.

3. Right to Health and Medical Care:

 Article 21 is interpreted to include the right to health and medical care, which is
essential for women's well-being and dignity.
 This includes access to timely and adequate medical treatment, including in cases of
unwanted pregnancies, as highlighted in the case of a teenage girl who was granted
permission to terminate her pregnancy after being subjected to sexual assault,
according to a case study.
4. Right to Privacy:

 The right to privacy, a crucial aspect of Article 21, protects women from unauthorized
surveillance and intrusion into their personal lives.
 For example, a husband tapping his wife's conversations without her knowledge was
deemed illegal and a violation of her right to privacy under Article 21, according to a
legal article.
 Puttaswamy Case and Right to Privacy: The Puttaswamy case was a landmark
decision that recognized the right to privacy as a fundamental right under Article 21.
The court ruled that privacy is intrinsic to life and liberty, thus expanding the horizon
of personal freedoms. This verdict has had far-reaching implications, especially in the
digital age, where data privacy is a growing concern.

5. Protection from Discrimination:

 Article 21, in conjunction with other constitutional provisions like Article 14 (equality
before the law) and Article 15 (prohibition of discrimination on grounds of sex),
ensures women are not subjected to discrimination and enjoy equal rights and
opportunities.

In essence, Article 21 provides a broad framework for protecting women's fundamental

rights, ensuring their dignity, bodily autonomy, and access to essential services, while
also safeguarding them from various forms of violence and discrimination.

Article 23– Prohibition of traffic in human beings and forced labour

 Prohibition of Trafficking: Article 23 explicitly bans trafficking in human beings, which
disproportionately affects women and girls, who are often trafficked for sexual
exploitation or forced labor.
 Elimination of Forced Labor: The article also prohibits forced labor, ensuring women
are not compelled to work against their will, whether for the state or private entities.
 Protection Against Exploitation: By outlawing forced labor and trafficking, Article 23
protects women from various forms of exploitation, including those that might arise from
economic or social vulnerability.
 Safeguarding Dignity: The prohibition of forced labor and trafficking directly upholds
the dignity and fundamental rights of women, ensuring they are not treated as
commodities or subjected to inhumane treatment.
 Equal Treatment: While the state can impose compulsory service for public purposes,
Article 23 mandates that it cannot discriminate based on religion, race, caste, or class,
thus promoting equal treatment for women in such instances.
Directive Principles of State Policy and Women’s Rights

 Article 39(a)- The State shall direct its policy towards securing all citizens men and
women, equally, the right to means of livelihood.
 Article 39(a) of the Indian Constitution, a part of the Directive Principles of State Policy,
mandates that the State should direct its policy towards securing that all citizens, men and
women equally, have the right to an adequate means of livelihood. This means the
government should strive to ensure that everyone has the opportunity to earn a living and
support themselves and their families.
 "Right to an adequate means of livelihood": This implies that the state has a
responsibility to create an environment where citizens can find suitable work and earn
a living wage.
 "Men and women equally": This emphasizes gender equality in access to livelihood
opportunities.
 Article 39(d)- Equal pay for equal work for both men and women, aiming to eliminate
wage disparities based on gender. This clause specifically aims to eliminate gender
discrimination in terms of wages and ensure fair compensation and Equal Pay, Wages and
Remunerations for men and women performing the same work.
 Article 42– The State to make provisions for ensuring just and humane conditions of
work and maternity relief. This provision is a testament to the Constitution’s concern for
the health and well-being of women in the workforce. This provision focuses on
providing support and benefits to women during pregnancy and after childbirth. It aims to
ensure that women are not disadvantaged in the workplace due to their reproductive role
and that they receive adequate care and support during this crucial period.
 This provision focuses on providing support and benefits to women during pregnancy and
after childbirth. It aims to ensure that women are not disadvantaged in the workplace due
to their reproductive role and that they receive adequate care and support during this
crucial period.

 Article 46 guarantees the welfare of the Scheduled Castes, Scheduled Tribes and other
weaker sections of society. It highlights the role of the State in promoting the
educational and economic welfare of these communities.
 While it doesn't directly address women's rights in a gender-specific manner, the
article's emphasis on protecting weaker sections indirectly benefits women belonging
to these communities.
 Here's how Article 46 contributes to women's protection within the broader context of
the Indian Constitution:
 Focus on Weaker Sections:
  Article 46 specifically mentions SCs and STs, and these groups often include a
significant number of women who face intersectional disadvantages due to their caste
and gender.
 Protection from Exploitation:
 By directing the state to protect these groups from social injustice and exploitation,
Article 46 aims to safeguard women from various forms of abuse, violence, and
discrimination.
 Promoting Education and Economic Interests:
 The article's emphasis on promoting educational and economic interests indirectly
empowers women by enabling them to access better opportunities and resources.
 Article 51 (A)(e)- To renounce the practices derogatory to the dignity of women.
Renouncing Practices Derogatory to Women: This aspect specifically addresses the
need to eliminate practices that undermine the respect and dignity of women.

73rd and 74th Ammenedment

 73rd and 74th Amendment Act 1992- Reservation 1/3rd of seats in local bodies of
panchayats and municipalities for women.
73rd Amendment : Article 243D of the Indian Constitution focuses on the reservation of
seats in Panchayats, the local self-government bodies in rural areas. It mandates that a
minimum of one-third of the total seats in Panchayats, including those for Scheduled Castes
and Scheduled Tribes, must be reserved for women. Additionally, the article specifies that a
similar proportion of Chairperson positions should be reserved for women.
 Reservation for Scheduled Castes and Tribes: Article 243D ensures representation for
Scheduled Castes and Scheduled Tribes in Panchayats, with specific seats reserved for
them.
 Reservation for Women: Not less than one-third of the total number of seats reserved
under clause (1) shall be reserved for women belonging, to the Scheduled Castes or, as
the case may be, the Scheduled Tribes. A key aspect of this article is the reservation of at
least one-third of the total seats for women, and this reservation also extends to the
offices of Chairpersons. Not less than one-third (including the number of seats reserved
for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total
number of seats to be filled by direct election in every Panchayat shall be reserved for
women
 Rotation of Constituencies: The article allows for the reservation of seats to be rotated
among different constituencies within a Panchayat, ensuring fair representation over
time.
 State Legislature's Role: The State Legislatures can make further provisions for
reservations of seats or Chairperson positions for backward classes of citizens.
74th Amendment: The 74th Amendment to the Indian Constitution, enacted in 1992,
mandates the reservation of at least one-third of the total seats for women, including those
from Scheduled Castes (SCs) and Scheduled Tribes (STs), in urban local bodies
(municipalities). This amendment, which came into effect on June 1, 1993, aims to increase
women's representation and participation in local governance.
Not less than one-third of the total number of seats reserved under clause (1) shall be reserved
for women belonging to the Scheduled Castes or, as the case may be, the Scheduled
Tribes(3)Not less than one-third (including the number of seats reserved for women
belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to
be filled by direct election in every Municipality shall be reserved for women and such seats
may be allotted by rotation to different constituencies in a Municipality.(4)The offices of
Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled
Tribes and women in such manner as the Legislature of a State may, by law, provide.
Article 243T of the Indian Constitution deals with reservation of seats in Municipalities. It
mandates reservation of seats for Scheduled Castes (SC) and Scheduled Tribes (ST) in
proportion to their population in the Municipality. Additionally, it requires that at least one-
third of the total seats, including those reserved for SC/ST, be reserved for women. The
article also specifies that the offices of Chairpersons in Municipalities can be reserved for
SCs, STs, and women as determined by the State Legislature.

Landmark caselaws
1. C B Muthamma V. Union Of India
This case revolves around gender discrimination within the Indian Foreign Service. CB
Muthamma was the first woman to be appointed as an Indian Foreign Service officer. She had
alleged discriminatory practices prevalent in the service, because of which she was denied the
benefit of promotion.
Before the Supreme Court, she had contended that the provisions of the Indian Foreign
Service (Conduct and Discipline) Rules, 1961, violated her constitutional rights under
Articles 14 and 16. The rules, as they stood at that time, restricted women officers from
serving in certain foreign posts and imposed conditions on their eligibility. It also disentitled
them to promotion if they were to get married.
The Court acknowledged the blatant gender-based discrimination and held that the rules were
indeed violative of the constitutional principles of equality. It emphasized that the
Constitution guarantees equal opportunities to both men and women in matters of public
employment, and that gender cannot be a valid criterion for differential treatment.
2. Air India V. Nargesh Meerza 1981
This case dealt with the discriminatory termination of air hostess Nergesh Meerza by Air
India on the ground that she was married. The airline had a policy at that time that required
air hostesses to resign within four years of their service or upon getting married, whichever
occurred earlier. As per the rules of the airline, air hostesses were required to retire at 35, or
on marriage, or on their first pregnancy, whichever occurred earlier. The Supreme Court held
that the policy of forcing air hostesses to resign upon marriage was arbitrary and
unreasonable, violating Article 14, 15, and 16.
Stereotypes: She contended that the rule were based on outdated gender stereotypes that
confined women to the domestic sphere and limited their career opportunities.
Fundamental Rights: Meerza argued that the rule infringed upon her fundamental rights to
equality, personal liberty, and the right to practices any profession.
It emphasized the importance of gender equality and rejected the notion that marriage could
be a ground for termination of employment.
Regulation 47, in the context of Air India's service regulations, specifically addressed the
retirement age for air hostesses. The Supreme Court deemed a portion of this regulation,
which granted the Managing Director discretionary power to extend an air hostess's service,
as unconstitutional and discriminatory. The court ruled that this discretionary power violated
Article 14 of the Indian Constitution, which guarantees equality before the law.
 Original Regulation 47: This regulation, allowed the Managing Director to extend an air
hostess's service beyond the mandatory retirement age (which was initially 35, later
increased to 45).
 Air India v. Nargesh Meerza: The case challenged the validity of this provision, arguing
that it was arbitrary and discriminatory against women.
 Supreme Court's Ruling:
 The Supreme Court struck down the portion of Regulation 47 that granted the Managing
Director discretionary power to extend service. This ensured that the Managing Director
couldn't discriminate between different air hostesses based on personal preference or
other arbitrary factors.
 The court mandated automatic yearly extensions for air hostesses found medically fit,
ensuring they could serve until the age of 45.

3. MARY ROY AND OTHERS S. STATE OF KERALA AND OTHERS

Activist and educationist Mary Roy challenged the discriminatory provisions of the
Travancore Christian Succession Act, 1916, which governed the inheritance rights of Syrian
Christian women in Kerala. The Act, based on customary law, granted women only a one-
fourth share of the property that their brothers inherited.
She argued that Christian women in Kerala should be entitled to an equal share of inheritance
as their male counterparts, aligning with the principles of gender equality enshrined in the
Constitution. She challenged the Travancore Christian Succession Act, arguing that its
provisions violated Article 14 of the Indian Constitution.
The Supreme Court in its judgment acknowledged the discriminatory nature of the Act and
ruled that the one-fourth share for women was unjust and unconstitutional, emphasizing the
need for gender-neutral laws in matters of inheritance.
4. NEERA MATHUR VS. LIC OF. INDIA AND ANOTHER ( 1991)
Mrs. Neera Mathur had applied to work at Life Insurance Corporation of India (LIC). Upon
clearing the written test and the interview, she was asked to fill a declaration form disclosing
personal facts as to pregnancy (if any) and her menstrual cycle. Further, she was required to
undergo a medical examination as prescribed by LIC. She submitted her declaration and also
underwent a medical examination and was certified as being fit for the job. Thereafter, her
training program commenced and on its completion, she received an appointment letter with
the stipulation that she would be on probation for the first six months and her appointment
would be confirmed subject to her performance being satisfactory. During her probation she
applied for maternity leave which was granted. On her return to service she was discharged
from employment on the grounds that her service was not satisfactory and that she had failed
to disclose personal facts as to her pregnancy and menstruation in her declaration form. Mrs.
Mathur appealed to the Supreme Court on the grounds that her right to equality guaranteed
under Article 14 of the Indian Constitution had been violated by the arbitrary order of
discharge. The Supreme Court ordered LIC to re-instate Mrs. Mathur and set aside the order
of discharge on the grounds that there was no evidence to prove that her performance was
unsatisfactory and the only reason for termination was her failure to disclose personal facts in
her declaration that are not required to be disclosed to an employer. The Court stated that
while India is moving forward to achieve the constitutional guarantee of equal rights for
women, LIC seemed not to be moving with time. It further recommended that LIC delete
such requirements from its declaration form and made a note of the fact that if one indirectly
seeks to evade providing maternity leave and benefits to a female candidate by not hiring her
if she is pregnant at the time of entering the service, the same may be open to a constitutional
challenge.

5. Vishakha and others v. State of Rajasthan

Facts:
During the 1990s, Rajasthan state government employee Bhanwari Devi who tried to
prevent child marriage as part of her duties as a worker of the Women Development
Programme was raped by the landlords of the Gujjar community. The feudal patriarchs who
were enraged by her (in their words: "a lowly woman from a poor and potter community")
'guts' decided to teach her a lesson and raped her repeatedly.[6][clarification needed] The rape survivor
did not get justice from Rajasthan High Court and the rapists were allowed to go free. This
inspired several women’s groups and non-governmental organizations to file a petition in the
Supreme Court under the collective platform of Vishaka.

Judgement:
The 3-Judge Bench of the Supreme Court comprising Justice J.S Verma, Justice Sujata V.
Manohar and Justice B.N Kripal on 13th August 1997 in Vishaka vs State of Rajasthan
case held that sexual harassment of women at the workplace infringes fundamental
rights guaranteed under Article 14, Article 15, Article 19(1)(g) and Article 21 of
the Constitution of India.
The Court in Vishaka vs State of Rajasthan issued the ‘Vishaka Guidelines’ which provided
definition of sexual harassment and also laid down necessary procedures for employers to
follow in both the public and private sectors.
The Vishaka guidelines required the foundation of committees to address complaints of
sexual harassment of women and ensure a safe working environment for women. The
Vishaka Guidelines served as the de facto law on sexual harassment until the enactment of
the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act in 2013.
Vishaka Case Guidelines
The following guidelines were laid down by the Supreme Court in Vishaka vs State of
Rajasthan case -
o Duty of the Employer: Employers or individuals in equivalent positions must
prevent incidents of sexual harassment from occurring. If such incidents do happen,
organizations are required to have proper mechanisms in place to provide both legal
and conciliatory remedies.
o Definition of Sexual Harassment: Sexual harassment includes any unwelcome
sexual behavior, whether direct or indirect, such as:
1. Physical contact and advances.
2. Requests or demands for sexual favors.
3. Sexually colored remarks.
4. Displaying pornography.
5. Any other unwelcome conduct, be it physical, verbal, or non-verbal, of a sexual
nature.

The court recognised that where any of these acts is committed in circumstances where under
the victim of such conduct has a reasonable apprehension that in relation to the victim’s
employment or work whether she is drawing salary, or honorarium or voluntary, whether in
government, public or private enterprise such conduct can be humiliating and may constitute
a health and safety problem. The court noted that it was discriminatory when the woman has
reasonable grounds to believe that objecting to sexual harassment would disadvantage her in
connection with her employment or work including recruiting or promotion or when it creates
a hostile work environment. Thus, sexual harassment need not involve physical contact. Any
act that creates a hostile work environment — be it by virtue of cracking lewd jokes, verbal
abuse, circulating lewd rumours etc. — counts as sexual harassment.[8] The creation of a
hostile work environment through unwelcome physical verbal or non-verbal conduct of
sexual nature may consist not of a single act but of pattern of behaviour comprising many
such acts.
o Preventive Measures: Preventive Measures: Employers must take preventive
actions to deal with sexual harassment.
1. Issuance of clear prohibitions against sexual harassment through notifications or
circulars
2. Enforcement of fines for perpetrators
3. Ensure an appropriate workplace conditions regarding hygiene, health and leisure
o Handling Misconduct: The employer is bound to take legal action by reporting the
incident to the appropriate authorities if the misconduct constitutes an offence under
the Indian Penal Code 1860.
o Disciplinary Action: The employers must take suitable disciplinary
action against the perpetrators in case of violation of service rules.
o Redressal Mechanism: Organizations must lay foundation of a redressal
mechanism to handle complaints of sexual harassment, irrespective of whether
the act constitutes an offence under the Indian Penal Code (Now Bharatiya
Nyaya Sanhita 2023) or other laws.
o Redressal Committee: The redressal mechanism should form a complaint committee
with a majority of women members and a female head. The committee should also
offer counseling services.
o Awareness and Training: The employers should conduct meetings with employees
and take appropriate actions to inform them about the issue and the mechanisms for
addressing it in order to raise awareness about sexual harassment.

This case brought to the attention of the Supreme Court of India "the absence of domestic law
occupying the field, to formulate effective measures to check the evil of sexual harassment of
working women at all work places."
6. The Secretary, Ministry of Defence
Babita Puniya & Ors
 2003- In February, Babita Puniya who is a practicing advocate in Delhi High Court
filed a PIL before the High Court seeking permanent commission for women officers
recruited through Short Service Commission (SSC) in the armed forces on par with
their male colleagues.
 Several groups of women officers from both the army and air force also approached
the High Court for relief separately. Their petition was tagged with that of Babita
Puniya.

 2006- A policy revision allowed them to serve for a maximum of 14 years as an SSC
officer.
 Another writ petition was filed by Major Leena Gaurav on October 16, 2006
challenging the terms and conditions of service imposed by circulars earlier that year
and to seek permanent commission for women officers.

Judgement

 Introduction- In a resounding rebuff to the Army, the Bench of Supreme Court

comprising of Justices DY Chandrachud and Ajay Rastogi not just trashed the Army’s
weaker sex argument for denying them permanent commission as it had just no merit
but also blasted the Army’s dogged resistance to provide permanent commission to
women officers! The Bench also said that these were based on sex stereotypes
premised on assumptions about socially ascribed roles of gender which discriminates
against women.
 They [Bench] junked the argument of domestic duties, motherhood, biological
requirements of women and [the verdict] will ensure greater gender justice and gender
dignity in all walks of life. Women are already performing combat roles in the IAF.
This verdict will ensure greater roles commensurate with their individual merit and
aptitude. She also rightly pointed out that, Women have been in the Army since 1992,
so to deny PC to existing officers and command positions to all of them betrays the
constitutional guarantee and is also contrary to their impeccable service record for the
past 27 or 28 years.
 It cannot be overlooked that apart from Israel where women soldiers were allowed
entry in intensive combat roles since 1995, Germany too allowed women in combat
 since 2001 and Australia too opened all jobs in its defence forces to women in 2013.
Pakistan also inducted its first women fighter pilot in 2013.
 Norway allowed women in all combat roles in 1985. In USA all ground combat jobs
were opened to women in 2016. In July 2016, British PM lifted ban on women
serving in close combat units. In Canada all military occupations open to women
since 1989. North Korea, France and Netherlands are among the other countries that
allow women to be in front-line combat positions. Why then should Indian Army lag
behind? Of course, all these countries have also been instrumental to a great extent in
shaping the decision of the Apex Court in this case!