The last few decades have seen a growing recognition of women’s rights as human rights and as an integral and indivisible part of universal human rights. In international law, the issue of women’s rights is emerging as one of the main slogans and rapidly developing subfield of international human rights protection. The Constitution of India recognizes the rights of working women and ensures equal rights and opportunities. There are numerous provisions which not only ensure equality before law and prohibit any discrimination on the basis of gender, but also empower the state to make special provisions for working women. Many laws have also been enacted in accordance with these Constitutional provisions and international obligations for the protection and promotion of gender justice for women. The Indian judiciary also has been playing a significant role in upholding the equal status of women. During the last decade, the Indian judiciary has recognized gender-based discrimination in favor of women, i. e., protective discrimination, and upheld its constitutionality on the basis of their peculiar conditions—physical, mental and psychological—if it protects the interests of women. This paper seeks to examine the role played by the Indian judiciary in ensuring gender justice through protective discrimination.

Equality in law precludes discrimination of any kind whereas equality in fact may involve the necessity of preferential treatment in order to attain a result which establishes an equilibrium between different situations. – Permanent Court of International Justice1

The history of inequalities and discrimination against women can be traced to the gender roles assigned to men and women on the basis of their biological differences. Such inequalities existed even in the early societies in which women bore and raised children, cared for the home and to some extent helped to maintain the family’s economic production. Men hunted, waged war, and in settled agrarian societies assumed primarily responsibility for field production. Male dominance, however, was prominent from the time of the earliest written historical records, probably as a result of the development of hunting and warfare as prestige activities. The belief that women were naturally weaker and inferior to men also was sanctioned by God-centered religions. Therefore, in most traditional societies, women generally were at a disadvantage. The situation of women, however, changed with the advent of industrialization. The industrial revolution which caused economic and social changes provided a favorable climate for the increased participation of women in various employment sectors in the late 18th and 19th centuries.

Law Review Journal, Indian Judiciary, Upholding Gender, Justice, Protective Discrimination, Permanent Court, Right to Equality, Equal Status, Women Under Indian Constitution, International Justice, Appraisal.