Constitutionalizing Equality: Revisiting the Women’s Charter to Combat Marital Status Discrimination in Indian Employment

-Vanshika Sharma*

Introduction

Gender discrimination in the workplace is a recurring issue in India, with married women experiencing systemic barriers that restrict their career prospects and economic autonomy even today. Even with constitutional assurances of equality and multiple labour protections, discriminatory attitudes like the “marriage penalty”, where employers consider married women to be less dedicated or more likely to exit the labour force, still prevent women from advancing in their careers. This prejudice is expressed in employment practices, company policies, and social expectations.

Against this backdrop, this article revisits a progressive yet neglected solution: making a provision of the Draft Indian Woman’s Charter of Rights and Duties (1946) part of the Indian Constitution as a fundamental right. The Draft Charter, drafted by the All India Women’s Conference (“AIWC”) in the pre-independence period, expressed a visionary principle: “there should be no bar to the employment of married or unmarried women provided they are prepared to abide by the conditions of service.”  Written almost eight decades ago, this provision is of contemporary relevance as India struggles with the deeply ingrained gender prejudices in employment. Although constitutional provisions such as Articles 14, 15, and 16 reaffirm the values of equality and ban discrimination, they do not have express provision against marital status-based discrimination within the workplace. Judicial interpretations as well as legislation on labour also have not ensured complete protection towards this aspect so far, rendering a lacuna in legal defence for married women.

This article argues that elevating the Draft Charter’s provision to a fundamental right would provide a stronger constitutional foundation to combat employment discrimination. Unlike statutory protections, which can be diluted or ignored, a fundamental right would impose a direct obligation on the state and private employers to ensure equal opportunities regardless of marital status. Such a provision would not only challenge discriminatory hiring practices but also reshape workplace cultures that disproportionately burden married women with assumptions about their roles and responsibilities. Furthermore, it would align India with global best practices, where several countries have enacted explicit legal protections against marital status discrimination. 

The author first examines the shortcomings of India’s current legal framework in addressing gender discrimination in employment presenting case studies and real-world examples of how married women face systemic barriers in the workforce. The discussion then builds the case for constitutionalizing the Draft Charter’s provision, analyzing its potential impact on legal remedies, workplace equity, and societal attitudes. Finally, the article envisions how this reform could transform existing discriminatory practices.   

Shortcoming of the Current Legal Framework

The Indian Constitution guarantees equality to all its citizens through Articles 14, 15, and 16, forming a trifecta of fundamental rights designed to eliminate discrimination and ensure equal opportunity. Article 14 enshrines the principle of equality before the law and equal protection of the laws within India’s territory. Article 15 explicitly prohibits discrimination based on religion, race, caste, sex, or place of birth, while Article 16 guarantees equality of opportunity in matters of public employment. These constitutional provisions, alongside labor laws such as the Maternity Benefit Act and the Equal Remuneration Act, 1976, were envisioned as safeguards against gender-based discrimination in the workforce. The Maternity Benefit Act, for instance, seeks to protect women’s employment during and after pregnancy, ensuring they are not penalized for motherhood. Similarly, the Equal Remuneration Act mandates equal pay for equal work, irrespective of gender. Yet, despite these legal protections, the lived reality for married women in India’s workforce reveals a stark disconnect between constitutional ideals of equality and ground realities of discrimination, particularly on the basis of marital status. 

The current legal framework’s shortcoming is its failure to explicitly address and prevent discrimination against married women. While Article 15 prohibits discrimination on the basis of sex, it does not expressly recognize marital status as a prohibited ground, creating a legal grey area that employers often exploit. This gap becomes evident in cases where discrimination is not solely based on gender but intersects with marital status, leaving women vulnerable to biased hiring practices, workplace policies, and career stagnation.

The Foxconn assembly plant in Sriperumbudur, Tamil Nadu, is a prime example of this systemic problem. News reports showed that the company supposedly denied married women jobs on the basis of unsubstantiated assumptions regarding their productivity and familial responsibilities. Investigative reports indicated an informal preference in hiring unmarried women based on assumptions that married women would be less reliable due to domestic responsibilities. This case highlights an inherent bias in India’s labour market, where married women are usually perceived as less committed employees, while married men are considered as more responsible and stable in life reinforcing the assumption that men have to be bread earners of the family. Such double standards still persist in India because the legal system is unable to actively counteract these deep-rooted cultural prejudices.  

The analysis of the Foxconn incident highlights how policies in the private sector tend to institutionalize discrimination against married women, perpetuating cultural biases that restrict female labor participation. Married women, especially those with caregiving responsibilities, face marginalization, which not only restricts their financial independence but also perpetuates gendered income disparities. This exclusion has broader economic repercussions, weakening household financial resilience and discouraging younger women from pursuing long-term careers post-marriage. 

Empirical evidence from the study of Discriminatory Practices in Indian Companies further corroborates this trend. Using the Critical Incident Technique, the study identified marital status as a key factor influencing organizational decisions, from recruitment to promotions. Recent research using the Critical Incident Technique reveals 68% of Indian corporations consider marital status in promotion decisions. Married women were routinely passed over for promotions during performance reviews because managers questioned their capacity to manage work and family responsibilities. Interestingly, men’s family duties were hardly ever examined in comparable settings.

The judiciary has occasionally intervened to challenge overt discrimination, as seen in the landmark case of Air India v. Nergesh Meerza (“Nergesh Meerza”). Here, the Supreme Court examined Air India’s service regulations, which mandated the retirement of air hostesses upon marriage, first pregnancy, or reaching the age of 35. Although the Court invalidated the age and pregnancy-related provisions, it controversially maintained the marital status clause, arguing that the discrimination involved ancillary factors such as family planning and the cost of training, rather than being based “only and only” on sex. The Court’s ruling reflected a narrow interpretation of Article 15(1), which does not enumerate marital status as a prohibited ground. Despite being a step forward in banning pregnancy-based abortion, the Nergesh Meerza decision did not address marriage-related discrimination. As Atrey notes, this omission in the Constitution likely influenced the Court’s rationale, allowing marital status-based discrimination to evade judicial scrutiny.

This jurisprudence’s limitations are further illustrated in Savita Samvedi v. Union of India, where a married daughter was denied the regularization of a railway quarter despite being the primary caregiver for her retired parents. The policy’s prejudice against married women taking on all of their responsibilities with their married family revealed the ways in which state actions uphold discriminatory norms. 

While the Supreme Court has, in some instances, recognized “analogous grounds” of discrimination under Articles 15 and 16,  the absence of explicit protections for marital status leaves room for ambiguity, weakening legal challenges against such biases. 

The current framework’s inability to ensure substantive equality is evident in the persistence of covert discriminatory practices. Job advertisements specifying “unmarried women only”, though less overt today, reflect entrenched hiring biases. Workplace policies often disadvantage married women, as seen in cases where maternity leave, which is a statutory right, negatively impacts seniority and promotion prospects. Societal expectations further compound these challenges, with employers internalizing stereotypes that married women are less mobile or dedicated. These assumptions manifest in fewer opportunities for career advancement, relegating women to stagnant roles.  The discussion in Family Studies on “marital supremacy” underscores how India’s legal landscape fails to protect married women facing discriminatory assumptions. 

Attempts to enact wide-ranging anti-discrimination law, encompassing marital status as a protected characteristic, have been unsuccessful, and the legal framework remains reactive instead of preventive. Without explicit safeguards, married women remain vulnerable to biases that the Constitution’s equality clauses inadequately address. The Nergesh Meerza case, underscores the need for legislative reform to close the gap between constitutional promise of equality and workplace realities.

Revisiting the Women’s Constitution: A Solution

To tackle the ongoing bias against unmarried women at work, we need to look back at the past struggles and core ideals that fought for women’s equal rights. The AIWC, established in 1927, emerged as a leading national women’s organization dedicated to advancing female education and subsequently broader issues of women’s rights in India. Seeing how women in India were unfairly held back and how this kept the nation from progressing, the AIWC worked to uplift their status and ensure they had the same opportunities as men. Their goal was simple: empower women to contribute fully to rebuilding the country, just as they deserved.

In May 1946, the AIWC prepared “The Draft of Indian Woman’s Charter of Rights and Duties”, outlining the political, social, and economic future of Indian women. This Charter, framed in a quasi-legal style, was a progressive document that articulated demands for women’s equality across various spheres. The AIWC envisioned a democratic state where the right to work was a fundamental right for every individual, regardless of sex, and demanded equal pay for equal work. Furthermore, the Charter advocated for the removal of sex-based disqualifications in public employment and the exercise of any trade or calling.

Crucially, the spirit of non-discrimination extended beyond just gender. The Charter demanded that “there should be no bar to the employment of married or unmarried women provided they are prepared to abide by the conditions of service” laid the groundwork for challenging discrimination based on marital status. The emphasis on equal civic rights for all citizens, irrespective of sex, and the demand that “no disability should attach to women on the ground of her sex” in employment inherently challenged any form of discrimination that differentiated between women based on marital status. This forward-thinking approach of the AIWC recognized that women’s contributions to the nation should not be limited or dictated by their marital choices.

An analysis of the Constituent Assembly Debates (“CAD”) offers little clarity on this exclusion, as the drafters did not deliberate on expanding the grounds of prohibited discrimination beyond the explicitly listed categories in the article 15 of the constitution. Surprisingly, women who framed the Women’s Charter were also part of the Assembly, yet this issue remained undiscussed. One reason could be the underrepresentation of women, leading to their voices being overshadowed by male members. Another possibility is that key constitutional decisions were made outside formal debates, in informal settings like Congress meetings, clubs, or private discussions where this issue may have been raised but dismissed without reaching the CAD.

One justification for the omission could be that the primary focus was on gender discrimination broadly, without considering intra-group disparities among women. However, this reasoning is weak, given that the Women’s Charter had explicitly included such provisions, suggesting awareness among drafters. Their deliberate neglect in the CAD implies either a lack of serious discussion or a conscious decision to exclude it.

The relevance of the AIWC’s vision and the principles enshrined in the Draft Charter remains profound in the present context. The continued prevalence of discriminatory practices against unmarried women underscores the unfinished agenda of achieving substantive equality. Despite constitutional guarantees and specific labour laws, discrimination against unmarried women persists in various forms, as highlighted in the initial analysis.

Constitutional Inclusion: How the Provision could transform scenarios

The inclusion of a fundamental right which explicitly prohibits discrimination against married and unmarried women in the workplace is not just a matter of optics but will have a significant bearing      on how cases of marital discrimination are decided by the courts. Such a provision is essential to rectify existing disparities, address systemic biases, and ensure that all women have equal opportunities to participate in the workforce, regardless of their marital status. The need for such a provision arises from the pervasive societal norms and practices that often disadvantage unmarried women in the employment sector, stemming from antiquated notions about their roles and responsibilities.

Comparative constitutional studies reveal that jurisdictions like South Africa, where Section 9(3) of the Constitution explicitly prohibits discrimination based on marital status, have demonstrated greater success in combating systemic biases. The South African Constitutional Court’s jurisprudence, particularly in cases like Harksen v. Lane established a rigorous test for identifying unfair discrimination, providing a model for how explicit constitutional protections can translate into tangible workplace equality.

The need for such explicit constitutional recognition in India becomes evident when examining the limitations of current judicial interpretations. While the Supreme Court has progressively expanded the scope of Article 15 to include analogous grounds of discrimination - as seen in the Navtej Singh Johar v. Union of India judgment which extended protections to sexual orientation. Its reluctance in Air India v Nergesh Meerza to strike down marital status-based discrimination reveals the constraints of relying on judicial discretion alone.

Constitutional scholars argue that the absence of marital status from Article 15’s enumerated grounds creates an artificial distinction between different forms of discrimination, allowing prejudicial practices to persist. The argument for including marital status protections within Fundamental Rights rather than Directive Principles of State Policy (“DPSPs”) stems from crucial differences in enforceability and judicial remedy. Fundamental Rights, being justiciable, create immediate obligations for the state, while DPSPs remain non-enforceable aspirations. The historical stagnation of Article 44’s Uniform Civil Code directive demonstrates how relegating gender equality measures to DPSPs can result in indefinite delays in implementation. Comparative constitutional law scholar Sandra Liebenberg notes that South Africa’s decision to include marital status protections in its Bill of Rights rather than its Directive Principles was crucial in ensuring these protections had “real teeth” through judicial enforcement mechanisms. The Indian experience with the Right to Education Act further illustrates that only when education was elevated from a DPSP to a Fundamental Right under Article 21A did it gain the necessary legal force to effect systemic change.

Addressing potential counterarguments requires engaging with concerns about judicial overreach and legislative competence. Some constitutional theorists argue that expanding Fundamental Rights excessively might upset the balance between judicial and legislative functions. However, this perspective overlooks how constitutional amendments can provide clear guidance to both judiciary and legislature, as seen in the 73rd and 74th Amendments which specifically empowered local governments to address gender inequality. Another common objection suggests that social attitudes cannot be changed through legal reform alone. While cultural transformation is indeed gradual, Martha Nussbaum’s work demonstrates how constitutional protections create “capabilities” that enable marginalized groups to challenge discriminatory norms. The Indian experience with caste-based discrimination shows that while social prejudices persist, constitutional prohibitions have provided crucial tools for challenging systemic exclusion.

The broader societal impact of such constitutional reform would likely extend far beyond the workplace. Economic studies consistently show that removing barriers to married women’s employment significantly boosts household incomes and national productivity. NITI Aayog’s 2018 report on female labor force participation specifically identified marital status discrimination as a key factor behind India’s declining workforce gender parity. Moreover, constitutional recognition would have a normative effect, gradually shifting societal perceptions about married women’s roles. Comparative research from South Africa indicates that explicit constitutional protections tend to accelerate cultural change by establishing clear legal standards for equality. In the Indian context, this could help dismantle persistent stereotypes that view marriage as terminating a woman’s professional aspirations.

Legal history offers important lessons about the relationship between constitutional specificity and social change. The inclusion of “untouchability” as a specifically prohibited practice in Article 17, rather than relying solely on general equality provisions, proved crucial in the fight against caste discrimination. Similarly, explicit constitutional recognition of marital status discrimination would provide clearer grounds for challenging biased employment practices, maternity-related discrimination, and unequal family laws. As Baxi notes, the Indian Constitution operates not just as a legal document but as a “transformative” framework for social change - a characteristic that demands precise articulation of the forms of discrimination it seeks to eliminate.

Conclusion

The long-standing discrimination against married women in India’s labor force highlights a fundamental lacuna in the constitutional guarantee of equality. In spite of progressive labor legislation and judicial activism, institutionalized biases based on marital status continue to impede women’s economic engagement and career progression. The Draft Indian Woman’s Charter of Rights and Duties (1946), with its visionary call for “no bar to the employment of married or unmarried women,” presents a solution that is as relevant now as it was then. Elevating this principle to a fundamental right would not only fill a legal void but also challenge the deep-seated stereotypes that equate marriage with diminished professional commitment for women. Constitutionalizing this provision would provide a stronger, justiciable safeguard against discriminatory practices, ensuring that equality is not merely theoretical but enforceable.

In contrast to Directive Principles, which are non-binding, a constitutional right would directly bind state and private employers, putting India in line with progressive jurisdictions such as South Africa that categorically prohibit discrimination on the basis of marital status. While opponents can claim that social attitudes cannot be legislated out of existence, history demonstrates that constitutional specificity, such as in the abolition of untouchability can bring about wider societal change. The social and economic advantages of doing so are clear.  Lifting the barriers to married women’s employment would increase workforce engagement, increase household incomes, and put an end to regressive norms that restrict women to the home.

*Vanshika Sharma is a 4th-year undergraduate student of NALSAR University of Law, Hyderabad.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog