Table of content

Introduction……………………………………………………………………….(1)

The Purpose It Serves…………………………………………………………….(1)

Principles Enshrined In The Preamble……………………………………………(2)

 Sovereign………………………………………………………………………………...(2)
 Socialist………………………………………………………………………………….(2)
 Secular…………………………………………………………………………………...(2)
 Democratic………………………………………………………………………………(3)
 Republic…………………………………………………………………………………(3)

Objectives Enshrined In The Preamble…………………………………………...(4)

 Justice……………………………………………………………………………………(4)
 Equality………………………………………………………………………………….(4)
 Liberty…………………………………………………………………………………...(4)
 Fraternity………………………………………………………………………………...(5)
 Unity and integrity of the nation………………………………………………………...(5)

The Preamble of the Indian Constitution and Gender Justice…………………….(5)

The Constitution of India and Gender Justice…………………………………….(6)

Article 14: Right to Equality……………………………………………………...(7)

Article 15 Prohibition of Discrimination and Special Provisions………………..(8)

Right to Dignified life…………………………………………………………….(9)

Directive Principle of State Policy and Gender Justice………………………....(10)

Fundamental Duties and Gender Justice………………………………………...(10)

Conclusion………………………………………………………………………(11)
Introduction

26th February 1948 and 26th January 1950 embarks the two remarkable events in the legal
chronicles of India. These dates mark the public release of the Constitution and its enforcement,
respectively. This resulted in the birth of a new republic in the world. Before delving further into
the article, the question that arises is, what does the term ‘Constitution’ mean In common
parlance, it connotes a document having special legal sanctity. It sets out the legal framework
and the predominant functions of all the governing bodies of a State. It further lays down the
principles that will govern the operation of these organs.

The fundamental law of the land, i.e., the Constitution deals with the institution of the State and
its organs. By setting up a legal framework, the Constitution regulates the relationship between
the State and its population. Also, it constrains and restricts the powers bestowed upon the State
and its instrumentalities.

The introductory part of the Constitution, which reflects the core constitutional values embodied
in the Constitution, is termed the ‘Preamble’. It is drafted to explain certain crucial facts and
substance before diving into the provisions of the Act or statute. It sets out the aims and
objectives of the statute, which it intends to achieve. The concept of gender equality and that
women are no less than men has been stressed in the Indian Constitution in its Preamble,
fundamental duties, fundamental rights, and directive principles of the State.

The Purpose It Serves

The Preamble serves the following purposes:

 The source from which the Constitution comes is indicated viz., the people of India.
 The enacting clause which brings the Constitution into force is contained.
 The rights and freedoms which the people of India intended to secure to all citizens are
declared and the basic type of government and polity which was to be established.

Therefore, it declares that the source of authority under the Constitution is the People of India
and there is no subordination to any external authority.

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Whether Preamble is a part of the constitution: The Constituent Assembly proceedings make it
clear that the Preamble to our constitution was enacted and adopted by the same procedure as the
rest of the Constitution. The Preamble was put in motion by a vote in the Constituent Assembly.
Referring to the history of the drafting and the ultimate adoption of the Preamble, the Supreme
Court in Kesavananda Bharati v. State of Kerala case laid down that the Preamble was an
integral part of the Constitution.

Principles Enshrined In The Preamble

Sovereign

Cooley has defined Sovereign as, "A State is sovereign when there resides within itself a
supreme absolute power, acknowledging no superior."

India is still a member of the Commonwealth of Nations but its membership of the
Commonwealth of Nations is not inconsistent with its independent sovereign status and it has no
Constitutional significance as it is merely a voluntary association of India and it is open to India
to cut off this association at will.

The word Sovereign was inserted into the Preamble to highlight that India is not dependent on
any outside authority and that both externally and internally India is a sovereign. India
recognizes no foreign power as its master.

Socialist

The 42nd Amendment Act, 1976 added the word Socialist into the Preamble. The term Socialist
literally means state ownership and control of means of ownership and control of means of
production, distribution, and exchange. The Constitution, however, has a different meaning for
the term. Democratic socialism thus aims to end poverty, ignorance, disease, and inequality of
opportunity.

Secular

The term Secularism means that the State treats all religions equally with equal individual rights
for faith, religion or worship and does not recognize any religion as a State.

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Articles 25 to 30 of the Constitution by way of Right to Freedom of Religion contains the
concept of Secularism. The Supreme Court in St. Xavier's College v. the State of Gujarat,
explained that India "is neither anti-God nor pro-God; it treats alike the devout, the antagonistic
and the atheist. It eliminates God from the matters of the State and ensures that no one shall be
discriminated against on the ground of religion. Secularism is beyond the amending power of the
Parliament which makes it the basic feature of the Constitution. It means honoring all religions.
The Constitution of India recognizes no religion and treats all religions equally and encourages
one to practice the religion of his choice.

Democratic

The term democracy has been derived from the Greek root 'demos' which means 'the people':
'Kratos' stands for 'rule' or 'government'. Thus literally, democracy signifies 'the rule of the
people.' The definition given by Abraham Lincoln reads "Democracy is the government of the
people, by the people, and for the people."

The Supreme Court in Mohan Lal v. Dist. Magistrate Rai Bareilly, observed: "Democracy is a
concept, a political philosophy, an ideal practiced by many nations culturally advanced and
politically mature by resorting to governance by representatives of the people elected directly or,
indirectly." It was also concluded that direct democracy is one where the people directly exercise
their power of the government and carry on the government and change the government by their
direct vote, however, in an indirect democracy, the people elect their representatives who carry
on the administration of the government directly.

Republic

The term Republic is used in distinction to 'Monarchy’. The head of the State is not a hereditary
monarch, thus India is a Republic. The head of the state in India is elected by the citizens of
India. The Constitution of India sets up in India a 'republican form of Government', in which, the
ultimate power resides in the body of the people. The President of India is the Executive Head of
the State, is elected by the people and holds office for a term of five years.

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Objectives Enshrined In The Preamble

The Preamble to the Constitution of India secured to all its citizens:

 Justice-Social, economic and political

 Liberty- Of thought, expression, belief, faith and worship
 Equality - Of status and of opportunity
 Fraternity- Assuring the dignity of the individual and the unity and integrity.

These ideals of the Constitution are detailed in the headings to follow.

Justice

The term ‘Justice’ comprises three elements that complete the definition, which is social,
economic, and political. Justice among the citizens is necessary to maintain order in society.
Justice is promised through various provisions of Fundamental Rights and Directive Principles of
State Policy provided by the Constitution of India.

Equality

The term ‘Equality’ means no section of society has any special privileges and all the people
have been given equal opportunities for everything without any discrimination. It means
removing all types of discrimination from society to build a healthy environment for people to
live in. Everyone is equal before the law.

Liberty

The term ‘Liberty’ means freedom for the people to choose their way of life, and have political
views and behavior in society. It means no unreasonable restrictions can be imposed on the
citizens in terms of their thoughts, feelings, and views. But liberty does not mean freedom to do
anything, a person can do anything but within the limit set by the law. Anything that creates
public disorder can not come under liberty. It is important to understand that liberty in no way
means ‘absolute liberty’. These limits or reasonable restrictions are set by the Constitution to
avoid injuries in the name of liberty.

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Fraternity

The term ‘Fraternity’ means a feeling of brotherhood and an emotional attachment to the country
and all the people. It refers to a feeling which helps to believe everyone is the child of the same
soil and is connected with each other. Brotherhood is above social norms or regulations, it is the
relationship above caste, age, or gender. Fraternity helps to promote dignity and unity in the
nation. The preamble of the Indian Constitution does not grant any power or superiority to
anyone while it gives direction and purpose to the Constitution. It only gives the fundamentals of
the Constitution.

Unity and integrity of the nation

The Preamble and the Constitution by emphasising on the word fraternity, make it clear that the
country seeks to foster unity amongst its people. In order to retain the independence of our
country, which was the gift of our freedom fighters, keeping the unity and integrity of the nation
intact is of significant importance.

The Preamble of the Indian Constitution and Gender Justice

The Constitution is the main and basic document of a country. Every law and rules made in a
country is based on the Constitution of a country. A preamble of a constitution gives an
introduction to the Constitution. It is a key to open the mind of the framers of the Constitution.
The Preamble sets out the guidelines for the people and presents the principles of the
Constitution.

The principle of gender equality is enshrined in the Preamble of the Indian Constitution. The
Preamble of the Indian Constitution has in it the terms such as “Justice,” “Liberty,” and
“Equality.” The Preamble states that every person should get JUSTICE (social, economic, and
political); LIBERTY (of thought, expression, belief, faith, and worship); EQUALITY (of status
and opportunity) to everyone men and women.

By using the Preamble as a key to open the minds of the framers of the Constitution, we can say
that they aimed at ensuring equality of status and opportunity through the Preamble. The
Preamble also talks about social justice, which can be achieved only by abolishing all the

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inequalities. It also talks about political justice which can be achieved through non-
discrimination of men and women in political matters, and economic justice which can be
achieved by paying equally for equal work. Every single word contained in the Constitution was
chosen carefully and is of great importance. Thus, as a basic rule, everyone should be treated
equally irrespective of their race, color, sex, status, wealth, title, etc.

The Preamble of the Indian Constitution also talks about the “dignity of the individual.” For a
person to live with dignity, he should get equal access to fundamental rights (guaranteed under
the Indian Constitution).

Though women have the capacity to work as efficiently as men, they are not treated equally in
many circumstances. The practice of discrimination and suppression of women has been and is
still in practice irrespective of the Constitution focuses on abolishing it .The Preamble clearly
states that the State should treat everyone equally. To make it into reality, the Constitution has
given certain rights and duties to all the citizens of India. It has also given the government the
power to pass necessary laws and take necessary actions to uphold equality.

The Constitution has also given the State the power of positive discrimination for uplifting the
status of the suppressed, like the women. The State can pass special laws and acts in favor of the
women and make special reservations to neutralize their disadvantages.

The Constitution of India and Gender Justice

The Constitution of India assures the dignity of individuals irrespective of sex, community or
place of birth. This is clear from the Preamble of the Constitution and the provisions contained in
‘Fundamental Rights and Directive Principle of State Policy’. With regard to women, the
Constitution contains many negative and positive provisions which go a long way in securing
‘Gender Justice’. This history of suppression of women in India is a very long one and possibly
the same has been responsible for including certain general as well as specific provision for the
up liftmen of the status of the women. The Constitution aims at creating legal norms, social
philosophy and economic values, which are to be effected by striking synthesis, harmony and
fundamental adjustment between individual rights and social interest to achieve the desired
community goals.

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Article 14: Right to Equality

The United States developed affirmative action to fight discrimination against minority groups
and women. India created affirmative action to remedy its history of discrimination against
groups, such an untouchables (who occupy the lowest rung in the Hindu caste system), covers
other backward classes, minorities and women. The safeguard contained in ‘the fundamental
rights section of the Indian Constitution closely resembles affirmative action programs in the
United States. Article 14 of the Indian Constitution establishes the general right of equality.
Article 14 of the Constitution further provides that the State shall not deny to any person equality
before law and equal protection of laws within the territory of India.13 The concept of equality
under Article 14 espouses the principle that similarly situated person will be treated alike. The
law, therefore, need not apply identically to each and every person. The legislature is required to
deal with diverse problems arising out of an infinite variety of human relations. It must,
therefore, necessarily have the power of making laws to attain particular objects and, for that
purpose, of distinguishing, selecting and classifing persons and things upon which its laws are to
operate.

In the case of Air India v. Nargesh Meerza, the regulation of the Indian Airlines provided that an
Air Hostess had to retire from their services on attaining the age of 35 or if they married within 4
years of their service or on their first pregnancy whichever occurred earlier. The court held that
terminating the services of an air hostess on the grounds of pregnancy amounted to
discrimination as it was an unreasonable ground for termination. The regulations provided that
after 4 years of service the air hostess could marry therefore the grounds of pregnancy was not
reasonable. Thus, it was held that this regulation flagrantly violated Article 14 and such
termination would not be valid.

In the Maneka Gandhi v. Union of India, 1978, Justice Bhagwati said that Equality is against the
arbitrariness of State action. So this doctrine ensures equality of treatment. “The seven-Judge
Bench held that a trinity exists between Article 14, Article 19 and Article 21. All these articles
have to be read together. Any law interfering with personal liberty of a person must satisfy a
triple test: (i) it must prescribe a procedure; (ii) the procedure must withstand the test of one or
more of the fundamental rights conferred under Article 19 which may be applicable in a given
situation; and (iii) it must also be liable to be tested with reference to Article 14.”
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Further expansion of Article 14 was done in the case of Visakha v State of Rajasthan, 1997

“The judgment sought to enforce the fundamental rights of working women under Articles 14,
19 and 21 of the Constitution of India. Sexual Harassment violates the fundamental right of the
women of gender equality which is codified under Article 14 of Indian Constitution and also the
fundamental right to life and to live a dignified life. The Court held that even though there is no
express provision for sexual harassment at workplace under Indian Constitution, it is implicit
through these fundamental rights.”

Further in Shayara Bano v UOI, 2016 “the 5 Judge Bench of the Supreme Court pronounced its
decision in the Triple Talaq Case, declaring that the practice of instantaneous triple talaq [Talaq-
ul-biddat] was unconstitutional. The Bench observed that the fundamental right to equality
guaranteed under Article 14 of the Constitution, manifested within its fold, equality of status.
Gender equality, gender equity and gender justice are values intrinsically entwined in the
guarantee of equality, under Article 14.”

Article 15 Prohibition of Discrimination and Special Provisions

Article 15(1) and (2) prevent the State from making any discriminatory law on the ground of
gender alone. The Constitution is thus characterised by gender equality. The Constitution insists
on equality of Status and it negates gender bias. Article 15(3) constitutes exception to Article
15(1) and (2). Article 15(3) recognize the fact that the women in India have been socially and
economically handicapped for centuries and as a result thereof, they cannot fully participate in
the socio-economic activities of the nation on a footing of equality. The purpose of article 15(3)
is to eliminate this socio-economic backwardness of women and to empower them in such a
manner as to bring about effective equality between men and women. Article 15(3) allows State
to make special provisions for women and children. This calls for operation of the substantive
equality mechanism for their well- being .The explicit objective of this provision is elimination
of substantive inequality of the disadvantaged group in the society by positive measures. In
interpreting Art15(3) it is regarded that the special provisions can be only facilitative, protective
and corrective for women but not discriminatory against them.

In Yusuf Abdul Aziz v. State of Bombay (1954), an adultery charge was filed against the appellant
under Section 497 of the Indian Penal Code, 1860. In this case, the main issue was to determine
8
whether Section 497 of the Indian Penal Code, 1860, is in contradiction with Articles 14 and 15
or not. This case presented the argument that Section 497 of the Indian Penal Code, 1860,
dictates that adultery can only be committed by men and that women cannot even be punished as
abettors. As a result of this argument, there was a contradiction with regard to whether this was
in violation of Article 15, which prohibits discrimination based on gender. However, it was
further stated that Clause (3) of Article 15 clearly states that nothing contained in Article 15
limits the state’s ability to make special provisions for women and children.

Additionally, it was argued that Article 15(3) should not shield women from the threat or
commission of crimes. Additionally, in this case, the appellant was not even a citizen of India.
Thus, the appellant, in this case, could not invoke Articles 14 and 15 because the fundamental
rights can only be granted to Indian citizens. Therefore, the appeal was dismissed.

In Vijay Lakshmi v. Punjab University (2003), the reservation of posts for women in women’s
colleges and hostels was held valid.

Dattatreya Motiram More v. State of Bombay, AIR 1953 In Dattatreya the Bombay High Court
looked to the social, historic and economic inequality of women

and upheld the reservation of seats for women in municipalities as a special provision “to raise
the position of women to that of men”. The corrective approach to gender for overcoming the
subordinations and past denials is explicit here.

Right to Dignified life

In Zahida Begum v. Mushtaque Ahamed, a suit was field by the wife for dissolution of marriage
on the ground of impotency of the husband, who was unable to perform marital obligations. On
the contrary the respondent husband requested the court that his wife be directed to undergo
medical checkup so as to as cretain her virginity. The High Court of Karanatak held that the
direction of the of the trial court to the wife to undergo medical virginity test was improper and
invaded privacy of the plaintiff wife, which was violation of Article 21 of the Constitution.

Directive Principle of State Policy and Gender Justice

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The elevation of the position of the Directive Principles in Constitutional jurisprudence from
relative insignificance to that of important set of inevitable values in recent decades could wield
its own influence up on the protection of interests of women. Some of the provisions touching
the interest of women can be looked to for appreciating the Constitutional concern. The Directive
Principles of State Policy go to strengthen the objectives of the preamble. As if the promotion of
welfare provided in article 38(1) is inadequate, the Constitution (Fourty Fourth Amendment)
Act, 1978 reiterated the importance of minimizing the inequalities in income and endeavor to
eliminate inequalities of status, facilities and opportunities. More specifically, article 39(imposes
an obligation on the State to secure the right to adequate means of livelihood for both men and
women equally. Equal pay for equal work for both men and women under article 39(d) has the
judicial stamp of approval. Article 39(e) obligates the State to ensure 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 mandates the State to
make provisions for securing just and human conditions of work and for maternity relief.

Fundamental Duties and Gender Justice

The technique of building a harmonious and happy society through imposition of fundamental
duties in a citizens’ conduct, is employed under Article 51.A with a belief that universal
performance of duties towards all, protects rights better. Art 51A(e) imposes duty to renounces
derogatory to the dignity of women. The duty to cherish and follow the noble ideals, which
inspired our national struggle for freedom in Art.51.A(b), also hints about treating women as
equal as equal partners in all spheres of life. It is clear beyond all doubts that women’s
emancipation was regarded by freedom fighters as one of the paramount objectives. There is also
duty to strive towards excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavor and achievement (Art.51A (f)). Since women
constitute almost half of the population of the country, excellence in individual and collective
activity would require determined effort to uphold the status of women. Without that, the nation
cannot rise to higher levels of attainment.

Conclusion
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The Constitution of India has clearly spelt out the policy in respect of women and children
against the backdrop of the then existing socio, economic and political considerations. Gender
justice is a revolutionary concept of multidimensional strategy and impact. As a part of the
scheme of justice its roots in human rights and welfare policies are well- established. The
framers of the Indian Constitution harmoniously mixed the fundamental rights with the Directive
Principles of State Policy with a view to protect the rights and dignity of women, from all walks
of life. Diverse provisions of the Constitution seek to accomplish these objectives. In the pathetic
social realities about gender injustices, the Constitution set a visible trend for women’s
development. The guidance to and monitoring of the legal system are well tuned. Legislation
also supports the gender justice goal either through special statutes or general ones. The overall
judicial contribution also supplements the constitutional objectives

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