INTRODUCTION
“I ask no favor for my sex. All I ask our brethren is that they take their feet off our necks.”
• Ruth Bader Ginsburg U.S. Supreme court justice.1
The idea of gender justice provides for a comprehensive goal and scheme for protecting subordinated gender from the exploitations and denials inflicted by the dominant gender. It has emerged as an important concept in modern democracies by connecting formal equality with substantive norms thereby examining how constitutional ideals operationalize gender equality in practice. The concept of gender justice lies on the notion that women are in no way inferior to men. Women are entitled to enjoy economic, social, cultural and political rights without discrimination. Gender justice is guaranteed in both India and Sweden but the extent to which it is available is dealt in detail throughout the paper. Constitutional Empowerment makes gender justice no longer an aspiration, but one that is enforceable. This paper portrays a comparative analysis of how India and Sweden, two democracies with vastly different socio political histories approach gender justice through constitutional means. This critical comparison how constitutional provisions, case laws, amendments and institutional mechanisms together work.
POSITION IN INDIA
Gender Justice in India is embedded in Constitution which not only provides formal equality but also substantive empowerment of women through rights, remedies and affirmative actions. The Constitution of India ensures dignity of individuals irrespective of sex, community or place of birth. This can be understood from Preamble of Constitution and provisions provided in ‘Fundamental Rights and Directive Principle of State policy’. With regard to the women, the Constitution has many positive provisions which go a long way in ensuring ‘Gender Justice’ as well as challenges. The policy of protection to women can be seen in different parts of the Constitution.
Justice Dr.A.S. Anand has observed, “The process of gender justice, broadly speaking, covers the rights of women against exploitation and victimization. Unless we recognise her rights as her basic human rights gender justice would only be ‘lip service’ with no tangible result.” 2
Justice V.R.Krishna Iyer has put it emphatically, “the fight is not for woman’s status but for human worth. The claim is not for woman’s status but for human worth. The claim is not to end inequality of women but to restore universal justice. The bid is not for loaves and fishes forsaken gender but for cosmic harmony which never comes till woman comes.”3
CONSTITUTIONAL PROVISIONS ON GENDER JUSTICE
Gender Justice is envisaged in the Constitution through the following:
a. Preamble
The Preamble has in it the heart and soul of the Constitution and reflects the goals and ideals of people. The preamble contains the idea of equality of status and opportunity to all its citizens. The framers of the Constitution were not satisfied with mere territorial unity and integrity. If the unity is to be letting, it should be based on social, economic and political justice as envisaged in the Preamble.
b. Right to Equality
Article 14 of the Constitution provides that: The State shall not deny to any person equality before law and equal protection of laws within the territory of India4. The concept of equality under Article 14 states that the likes should be treated alike. It states everyone regardless of gender be subject to same laws and treated equally under them and it also states that though law can make reasonable classification, such classification must be rational and not arbitrary.
Article 15 of the Constitution states that:
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.5
Article 15 (1) prohibits the State to enact any discriminatory law on the ground of gender alone. Article 15 (3) gives special provisions to women and children. This provision states substantive equality principle. The objective of this provision is upliftment of the disadvantaged group in the society by a positive discrimination.
Article 16(1) states that:
(1)There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.6
Article 16 guarantees the equality of opportunity in public employment and it prohibits any discrimination on the basis of gender in the matters of employment and the appointment of a person to any office under the state. This provision has become a milestone in different cases with respect to gender based discrimination in workplace.
c. Directive Principle of State Policy
Article 39(a) states that: The State shall, in particular, direct its policy towards securing—(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;7 It places the right to adequate means of livelihood on an obligation that is on the State to secure such right for men and women equally. Article 39(d) states: (d) that there is equal pay for equal work for both men and women;8 It is for Equal pay for Equal work. Article 42 states: The State shall make provision for securing just and humane conditions of work and for maternity relief.9 It requires the State to take the provisions for the security of the just and human conditions of work, and for maternity relief. Article 51(A) (e) states: It shall be the duty of every citizen of India— (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;10 It requires State to promote harmony and the spirit of common brotherhood amongst all the people of India as well to renounce such practices as derogatory to the dignity of women.
d. Panchayats and Municipalities
Article 243 D (3) states: 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 and such seats may be allotted by rotation to different constituencies in a Panchayat.11 Article 243 T(3) states that 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 to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality.12 Article 273 D (3) deals with reservation of women in Panchayats and 273 T (3) deals with reservation for women in Municipalities. This article promotes grassroots political empowerment of women. This strengthens participatory democracy and inclusive governance.
CONSTITUTIONAL AMENDMENTS ENVISAGING GENDER JUSTICE
The 73rd Amendment particularly addressed the Panchayats (local village councils) in villages and the 74th Amendment dealt with the Urban Local Bodies (municipalities). Both the amendments introduced significant reforms such as reservation of seats for women in local governance which ensured a certain percentage of political participation by women.
Before these Amendments, women were poorly represented in the local political arena. However these laws provided for reserving one-third of the seats in Panchayats and municipalities for women and one-third of the positions of the chairpersons in the local bodies to be reserved for women.
Constitutional Amendment Act 1992 added Part IX The Panchayats and Eleventh Schedule to the Indian Constitution. This gave birth to Articles 243 to 243(O) which gave constitutional status and framework for the Panchayati Raj Institutions at village, block and district levels. The Act was passed as to give a constitutional basis to Panchayats with the substance of Article 40.
The 106th Constitutional Amendment was passed in September 2023, which depicts women’s political empowerment in India. This is a legislation which has been given the name of Nari Shakti Vandan Adhiniyam, which provides for a one-third reservation of women in the Lok Sabha, state legislative assemblies and the Legislative Assembly of the National Capital Territory of Delhi. This provision is made for the seats reserved for Scheduled Castes (SCs) and Scheduled Tribes (STs) which ensures that women belonging to these communities also get the benefit of increased political representation and led to Women Reservation Bill 2023. Despite all the national and international recognition of gender equality in politics, it raises critical questions of the implementation of the same, especially in the context of achieving parity constitutionalism in India.
OTHER LEGAL AND INSTITUTIONAL MECHANISMS PERTAINING TO GENDER JUSTICE
Institutional Mechanisms enforces the supportive provisions provided in the Constitution. Despite various drawbacks India’s institutional mechanism still acts as a driving force for promoting gender justice. The following are the key legal and institutional mechanisms uplifting gender empowerment:
a. National Commission For Women’s Act 1990
The National Commission for Women was set up as statutory body in January 1992 under the National Commission for Women’s Act 1990 to:
1) Review the Constitutional and Legal safeguards for women ;
2) Recommend remedial legislative measures ;
3) Facilitate redressal of grievances and advise the Government on all policy matters affecting women.13
Section 10 of the Act provides for certain functions to be done by the Commission. It took up the issue of child marriage, sponsored legal awareness programmes, Parivarik Mahila Lok Adalats and reviewed laws relating to women like Dowry Prohibition Act, 1961, PNDT Act 1994, Bharatiya Nyaya Sanhita (BNS) and National Commission for Women Act, 1990 to make them more stringent and effective. It organized consultations, constituted expert committees on economic empowerment of women, conducted workshops/seminars for gender awareness and took up publicity campaign against workplace harrassment, Violence against women etc. in order to generate awareness in the society against these social evils.
In spite of all the efforts of the Commission, it still possesses a lot of drawbacks:
1) There are political unrests and violation of human rights in the region of Jammu and Kashmir. But its jurisdiction is not operative there which is one of the major drawbacks of the Commission.
2) The independence of the Commission is missing since it is dependent on the grants provided by the Union Government.
3) The members of the Commission are appointed by the Union Government and this makes the Commission prone to politicization.
4) The powers to suggest amendments and to submit reports are not binding on the Union Government and the State.
5) The NCW has no power to enforce the recommendations and directly penalize offenders. Its powers are limited to investigation, mediation and making recommendations, which sometimes makes it difficult to ensure that action is taken on reported cases.
1) The Protection of Women from Domestic Violence Act (DV Act), 2005
The Protection of Women from Domestic Violence Act (DV Act), 2005, has the purpose of providing a legal environment for the protection of married women from violence within the family and is a step forward towards gender justice, India. The Act gives the courts the power to grant protection orders which prevent the abuser from contacting or approaching the victim for the safety and security of the victim. It solves the problem of women’s right to live in a shared house, even if they do not own the property, giving them a place to live and seek refuge from violence. It also provides for the monetary relief including maintenance for the women who are the victims of the domestic violence to ensure financial security and financial independence.
The primary drawback which is witnessed in this Act is a huge amount of misuse of the Act. The reason behind the possible misuse can be financial gain, revenge, custody and property disputes etc. The Act’s broad definition of “domestic violence” is one of its largest problems. Emotional and financial abuses are some of the many abuses law allows to be considered domestic violence. These classifications often are arbitrary, leading to misunderstanding. Women have also at times been known to use the legal system as a weapon in unimportant issues in order to gain an advantage in divorce or child custody battles.
2) The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH)
The Act came into force as Vishaka guidelines of the landmark case Vishaka v. State of Rajasthan. The main goal of the PoSH Act is to ensure protection from sexual harassment against women occurring at workplaces and establishes mechanisms for receiving complaints. It is supposed to provide a safe working environment for women to work without fear of prejudice, gender bias or sexual harassment. The Act defines Sexual Harassment in Section 2(9) as any unwelcome acts or behaviour (both directly as well as by implication) including physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography or other unwelcome physical, verbal or non-verbal behaviour of a sexual nature14. Every employer having 10 or more employees has to constitute an Internal Complaints Committee (ICC) at every office or branch. The ICC is in charge of handling complaints of sexual harassment. For workplaces having less than 10 workmen or in case of complaint against the employer, there has to be a Local Complaints Committee (LCC) formed by the District Officer. The LCC is similar to the ICC but is at the district level. SHe-Box (Sexual Harassment electronic Box) is an initiative of the Ministry of Women & Child Development, Government of India, which gives a single-window platform to women for reporting harassment in workplace. It caters to women across all sectors both organised and unorganised, both public and private.
One of the drawbacks of this Act is vague definition of the term ‘workplace’. It is nowhere mentioned in the definition that workplace must be that of employers or employee giving it a broadened scope. Another drawback is that it provides only a redressal mechanism but does not take any measures for prevention of sexual harassment. Other drawbacks are weaker implementation due to the absence of ICC in many sectors and the inquiry procedure is quasi-judicial in nature so there are possible chances of biasness and lack of confidentiality.
3) The Maternity Benefit Act, 1961
It is intended as a means for safeguarding the employment and well-being of women during and after pregnancy. It provides for paid leave, job security, and other benefits to ensure that women can balance motherhood and their work without being discriminated against. The Act requires paid leave for eligible women for a period of initially 12 weeks (increased to 26 weeks by the 2017 amendment). Employers have the responsibility to restore women to their positions prior to going on leave.
One of the drawbacks of this Act is that it excludes women from unorganized sector like Agriculture, small shops etc. with a strength of less than 10 employees. In case of small enterprises there is not government contribution or shared fund, so entire burden will be upon employer.
4) Equal Remuneration Act, 1976
It aims to promote the goal of gender justice by ensuring equal pay for equal work and preventing discrimination against women in employment. It requires equal remuneration for men and women for the same work or work of a similar nature and bans discrimination in recruitment, training and promotion on the grounds of gender.
The main drawback of this statute is that if a problem arises like not getting equal wages between men and women, the burden of that lies upon the employee. There is not provision for publishing pay scales and report on gender pay gaps so there is lack of transparency. The Act excludes gig workers, digital labour and contract workers.
5) The Transgender Persons (Protection of Rights) Act, 2019
It aims to give legal recognition and protection to transgender persons, achieving the objective of gender justice by banning discrimination and ensuring their rights in different spheres. It is prohibiting discrimination against transgender persons in various spheres including but not limited to education, employment, healthcare, access to public services and the right to own property. It provides for the establishment of an Advisory board called National Council but has weak implementation as it is dominated by government officials having limited powers.
JUDICIAL ACTIVISM HAS EMPOWERED GENDER JUSTICE THROUGH LANDMARK CASES
Judiciary has played an important role in fulfilling the goal of Gender Justice. The Constitution have read dignity, privacy, and autonomy as facets of Article 21 to uphold reproductive choice, bodily integrity etc. Through progressive rulings, the Indian judiciary has pointed out workplace harassment, discriminatory personal laws, inheritance rights and barriers to gender discrimination in public services. Some of the landmark cases and the gist of the case which empowered the concept of Gender Justice are provided below:
1. Shyama Devi v. State of Bihar (1991)15
Supreme Court held that denying maternity benefits to a women employee is violative of right to equality and is discriminatory.
2. Vishaka v. State of Rajasthan (1997)16
This landmark decision recognised sexual harassment occurring in workplaces and provided guidelines for it through which POSH Act came into existence.
3. Gita Hariharan v. Reserve Bank of India and Anr. (1999)17
Women filed case to be the natural guardian of her son. Petitioner contended that the provisions in the contested Act to be violative of Article 14. Apex Court held that women can be a natural guardian.
4. National Legal Services Authority (NALSA) vs. Union of India (2014)18
Supreme Court of India judgement recognizing transgender people as ‘third gender’. This decision established that transgender persons have the right to fundamental rights under the Indian Constitution and have the right to self-identify as male, female, or third gender.
5. Joseph Shine v. Union of India (2018)19
Section 497 was rooted in gender stereotypes and in so far, violated the non-discrimination provision of Article 15. Further, it was held to be violative of Article 21 as it denied women of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy.
6. Navtej Singh Johar v. Union of India (2018)20
Supreme Court has expanded the scope of Gender justice by promoting LGBTQ+ by decriminalising consensual same sex relation. Here court stated that sexual orientation is an integral part of an individual’s identity thereby bringing it under Article 21.
7. X v. Principal Secretary, Health & Family Welfare Department, Delhi (2022)21
Supreme Court held that marital status of women should not be a barrier for claiming abortion rights thereby taking away the distinction between married and unmarried women in abortion rights.
8. Arshnoor Kaur and Anr. v. Union of India and Ors. (2025)22
Petitioner contested against Gender Specific Vacancies in JAG Branch in Indian Army. Supreme Court declared the violative notification unconstitutional and made the process of selection gender neutral.
POSITION IN SWEDEN
Sweden’s Government supports gender equality in all spheres of society. In practice, this entails a commitment to the creation of a society where women and men, girls and boys can live out their lives to their full potential. Human right, democracy, justice, this is everything. Gender equality is also part of the solution to society’s challenges and a given part of a modern welfare state – for justice and economic development. Gender equality is since the beginning of the 1970s recognised as a separate policy area in Sweden and the progress towards gender equality began even before that. Since then, in Sweden, there is a clear outcome in terms of high level of employment and growth. These developments did not occur on their own. They have come about because of political will and dialogue, together with hard work by a strong civil society and the women’s movement. Despite several important achievements made towards gender equality, challenges remain and there is still work to do for the Government.
The following are the provisions in Swedish Constitution providing Gender Justice:
1. Swedish Constitution – Sweden 1974 (rev. 2012) – Chapter 1 Article 2 23
Public power shall be exercised with respect for the equal worth of all and the liberty and dignity of the individual.
This creates both negative and positive duty i.e. State cannot discriminate on the ground of sex and State must actively strive towards attaining equality between men and women.
2. Chapter 2 Part 4 Protection against Discrimination
Article 12
No act of law or other provision may imply the unfavourable treatment of anyone because they belong to a minority group by reason of ethnic origin, colour, or other similar circumstances or on account of their sexual orientation.24
Article 13
No act of law or other provision may imply the unfavourable treatment of anyone on grounds of gender, unless the provision forms part of efforts to promote equality between men and women or relates to compulsory military service or other equivalent official duties.25
The idea of Article 12 and 13 is that the State cannot provide any unfavourable treatment to people because of their gender or on the basis of their sexual orientation unless it is justified to attain equality or as part of compulsory military service or other equivalent official duties.
3. The Swedish Discrimination Act (2008)
It prohibits discrimination in a range of areas of Swedish society, including in the fields of employment, education and public services. It protects individuals against discrimination based on gender, transgender identity or expression, ethnicity, religion or other beliefs, disability, sexual orientation and age. The Act also requires organizations to take positive steps to promote equality and prevent discrimination.
4. The Swedish Gender Equality Agency 26
It was created on 1st January 2018 to contribute to effective implementation of Swedish gender equality policy. The main task of the gender equality agency is to coordinate, follow up and grant different forms of support and knowledge in order to reach the gender equality policy goals. The work of the agency requires close co-operation with other government agencies and also with municipalities, regions, with civil society and business and industry. The government has put 6 sub goals of Swedish gender equality policy:
a. Equal sharing of power and influence.
b. Economic gender equality.
c. Gender equality in education.
d. An equal distribution of unpaid housework and providing care work.
e. Gender equality in health care and social services.
f. Stopping men’s violence against women.
Instead of one national action plan, each ministry has to develop a plan for 2021 – 2025 for implementing this strategy in their governmental office. In addition, as part of their letter of regulation in 2023, 31 out of 54 governmental agencies were to develop strategic gender mainstreaming action plans for the period 2022-2025. These plans outline the way each agency will contribute to gender equality goals in their areas and society. The action plans have goals but no targets and the agencies are all required to report progress of their work to the government in their annual reports.
5. Governmental bodies27
Gender mainstreaming is the key to meeting the gender equality policy goals in Sweden. Sweden’s gender equality policy was started with a national action plan for five years beginning in 1988. Since the introduction of the ‘Shared power – shared responsibility’ proposition in 1994, Sweden has concentrated on gender mainstreaming strategies. Sweden is one of the few EU Member States that enjoys the existence of two governmental bodies with a mandate for gender equality. The governmental post with the greatest responsibility for gender equality in Sweden is the Minister for Gender Equality and Working Life, for which the Division for Gender Equality is responsible.
Functions of the Division for Gender Equality:
a. Drafting gender equality policy for the government.
b. Gender sensitive analysis of policies and legislation.
c. Coordinating and/or implementing governmental decisions on gender equality and mainstreaming processes and methodologies, including gender budgeting.
d. Mainstreaming gender equality in EU and international affairs.
e. Consulting civil-society organizations to learn from the expertise and accelerate the implementation of measures to achieve gender equality goals.
f. Publishing and disseminating information and training that relates to gender equality.
g. Monitoring progress in realizing gender equality.
6. The Equality Ombudsman(DO)
It is an independent government agency, which works on behalf of the Swedish parliament and government to promote equal rights and opportunities and to combat discrimination. The mandate of the DO includes sex, transgender identity or expression, ethnicity, religion or other beliefs, disability, sexual orientation and age. The DO’s tasks are to influence, guide and encourage employers, agencies, municipalities and others to fight against discrimination.
Functions of DO are:
a. Publishing and disseminating information in relation to gender equality, and training.
b. Providing legal assistance for those victims of discrimination based on sex or gender.
7. International Documents
India and Sweden are signatories to the following conventions:
a. Convention on the Elimination of all forms of Discrimination against Women (CEDAW) – Specifically Article 1-16 promotes Gender Justice.
b. Beijing Declaration and Platform for action (1995) – It provides for objectives and affirmative actions to promote gender equality globally.
c. Sustainable Development Goals 5 – Achieve gender equality and empower all women and girls.
Sweden has given these conventions a more comprehensive effect in domestic law compared to India. Sweden also have parental policies that encourages shared responsibility between parents thereby challenging traditional gender roles.28
CONCLUSION
This paper has discussed precisely how gender justice is promoted using constitutions and institutional processes in both India and Sweden and has shown that constitutional empowerment of equality between genders in both jurisdictions is realized in a significant way, under different models and path. Gender justice in India is rooted to a system of fundamental rights, directive principles and protective discrimination and is upheld by judicial interpretation and welfare-based laws aimed at redressing historical and structural inequalities against women and gender minorities. This strategy has yielded a lot of success in the form of constitutional litigation, affirmative action and specific statutory protections, yet it is frequently reactive and compliance-based.
Sweden, on contrast, pursues an entrenched model of substantive equality whereby gender justice is mainstreamed throughout governance systems, public policy, budgetary process, integration of migration, labour market, and education, whereby they are supported by special agencies and constant accountability by the state. However, instead of gender equality being a sectoral issue, Sweden makes it a governing principle.
The comparative analysis hence indicates that a protective model is necessary in the case of India and although country has strong written statute, it needs to be enhanced by a proactive feminist model of governance that incorporates gender concerns in every state action. Going beyond the formal assurances to systemic gender mainstreaming, intersectional policy formulation and more institutional enforcement would help India to turn the constitutional assurances into a lived equality.
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Footnotes
1. Frontiero v. Richardson, 411 U.S. 677 (1973).
2. Firoz Ansari, The Concept of Gender Justice in India: A Constitutional Perspective, 14 Aryavart Shodh Vikas Patrika 382 (2021).
3. V.R. Krishna Iyer, Law & Life (Law & Justice Publishing Co., reprint ed. 2025).
4. INDIA CONST. art. 14.
5. INDIA CONST. art. 15.
6. INDIA CONST. art. 16.
7. INDIA CONST. art. 39(a).
8. INDIA CONST. art. 39(d).
9. INDIA CONST. art. 42.
10. INDIA CONST. art. 51 A(e).
11. INDIA CONST. art. 243 D(3).
12. INDIA CONST. art. 243 T(3).
13. National Commission for Women, About the Commission, NAT’L COMM’N FOR WOMEN, https://ncw.gov.in (last visited Feb. 9, 2026).
14. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, No. 14 of 2013, s 2(9) (India).
15. Shyama Devi vs. State of Bihar, 1991, Supreme Court of India.
16. Vishaka v. State of Rajasthan, (1997) 6 S.C.C. 241 (India).
17. Githa Hariharan v. Reserve Bank of India, (1999) 2 S.C.C. 228 (India).
18. Nat’l Legal Servs. Auth. v. Union of India, (2014) 5 S.C.C. 438 (India).
19. Joseph Shine v. Union of India, (2019) 3 S.C.C. 39 (India).
20. Navtej Singh Johar v. Union of India, A.I.R. 2018 S.C. 4321 (India).
21. X v. Principal Sec’y, Health & Family Welfare Dep’t, Delhi, (2022) 11 S.C.C. 357 (India).
22. Arshnoor Kaur & Anr. v. Union of India & Ors., 2025 I.N.S.C. 954 (India).
23. SWEDEN CONST. ch. 1, art. 2 (1974) (rev. 2012).
24. SWEDEN CONST. ch. 2, art. 12 (1974) (rev. 2012).
25. SWEDEN CONST. ch. 2, art. 13 (1974) (rev. 2012).
26. Swedish Gender Equality Agency, Gender Equality in Sweden, SWEDISH GENDER EQUALITY AGENCY, https://swedishgenderequalityagency.se/gender-equality-in-sweden/ (last visited Feb. 10, 2026).
27. Sweden in the UN: Gender Equality, GOV’T OFFICES OF SWEDEN (May 30, 2025), https://www.government.se/government-policy/sweden-in-the-un/sweden-in-the-un-gender-equality/ (last visited Feb. 10, 2026).
28. Simon Bauer et al., Gender Equality in the Name of the State: State Feminism or Femonationalism in Civic Orientation for Newly Arrived Migrants in Sweden?, 21(5) Critical Discourse Studies 591 (2024), https://doi.org/10.1080/17405904.2023.2228933.