Legal Definition of Gender Discrimination

Today, despite decades of feminist movements and struggles for gender equality, gender discrimination remains a widespread phenomenon both internationally and within the Indian context. Within the framework of international law—commonly referred to as the United Nations system—gender discrimination encompasses all forms of open and systematic discrimination, as well as everyday microaggressions experienced, perpetrated or endured by members of society, ranging from gender stereotypes to harassment. From a legal perspective, the cornerstone in the fight against such discrimination is the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which entered into force in 1981. Today, it is one of the most widely ratified international human rights treaties. Nevertheless, it remains subject to numerous reservations, mainly arising from religious and cultural incompatibilities, which inevitably undermine its effectiveness. The United States, for example, signed the Convention but has never ratified it. Likewise, other countries—including Iran, Somalia and Sudan—have chosen not to recognise certain provisions of the Convention, particularly Article 16 concerning equality within marriage. This situation creates a significant legal challenge. By ratifying the Convention while simultaneously entering reservations, States substantially weaken its protective function, considerably reducing its effectiveness in safeguarding women's rights in practice and in the everyday lives of millions of women.

Article 1 of CEDAW provides the legal definition of discrimination against women: "For the purposes of the present Convention, the term 'discrimination against women' shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality between men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." This definition demonstrates that the international legislator deliberately adopted a broad legal formulation in order to avoid any gaps in legal protection.

Within this context, it is essential to acknowledge several women whose contribution fundamentally changed the international approach to gender equality. One of them was Minerva Bernardino of the Dominican Republic, a diplomat and inter-American feminist leader who is widely recognised as the principal advocate for the inclusion of the principle of equality between women and men in the Charter of the United Nations. Another key figure was Hansa Mehta of India. During the drafting of the Universal Declaration of Human Rights, she successfully insisted that Article 1 should read "All human beings are born free and equal" instead of "All men are born free and equal", thereby profoundly transforming the linguistic and conceptual approach to universal human rights.

India and Women: Between Society and Culture

In order to better understand the condition of women in contemporary India, it is essential to examine their position within pre-colonial Indian society and culture. Religion was not merely a matter of worship; rather, it represented the very foundation of both social and political organisation through the concept of dharma. During the ancient Vedic period (around 500 BC), women enjoyed exceptionally high spiritual status. The Vedas, the sacred Hindu scriptures, attest that a man could not perform sacred rituals in the absence of his wife. Women were also recognised through a variety of social and spiritual roles. They could be regarded as Ardhangini, literally "half of the husband's body", symbolising the inseparable unity between spouses. They could also be understood as Janani, representing the cosmic principle of fertility and life, or belong to the Brahmavadinis, women who remained unmarried in order to devote themselves to the study of philosophy, theology and the sacred sciences. However, with the gradual rigidification of the caste system and the profound social transformations that unfolded over the centuries—later reinforced during British colonial rule—the social status of women progressively deteriorated. Women were increasingly relegated to the lowest social positions, eventually becoming associated with the Shudra caste. As a consequence of this transformation, access to education was gradually denied to women, while the notion of their perpetual subordination became firmly established.

Colonial society increasingly promoted the belief that a woman should never be independent. Instead, she was expected to remain under the constant authority of a male guardian responsible for directing, protecting and making decisions on her behalf. Initially, this guardian would be her father; after marriage, her husband; and in old age, her sons. This model of female existence was codified in the Manusmriti, one of the foundational legal and moral texts of classical Hindu tradition. Ironically, pre-colonial India had recognised considerably greater autonomy for women in matters of marriage. Women could choose their own spouse, and both divorce and remarriage were permitted under certain circumstances, including widowhood. During the medieval period, however, partly in response to political instability and repeated invasions, increasingly misogynistic social norms began to emerge. Child marriage gradually became more widespread, largely as a means of preventing inter-community marriages. At the same time, purdah—a practice adopted from Islamic traditions involving the physical seclusion of women behind veils or curtains—became increasingly common. Finally, although originally restricted to members of the warrior class, the practice of Sati gained greater visibility in certain regions and social groups. Under this custom, widows were expected to throw themselves onto their deceased husband's funeral pyre, thereby sacrificing their own lives.

From an economic perspective, women in pre-colonial India were generally not permitted to own land. They could, however, possess certain forms of personal property, such as jewellery, precious stones, fine fabrics and other valuable goods. These assets, commonly known as stridhan, were given to the bride by her family at the time of marriage and constituted her personal wealth. As far as political life was concerned, women were generally excluded, since politics was regarded as an exclusively male sphere. Nevertheless, history records notable exceptions. One such example is Razia Sultan (thirteenth century), the only woman ever to rule the Delhi Sultanate. Other remarkable figures include warrior queens such as Rani Durgavati, who demonstrated that female political and military leadership, although exceptional, was not entirely absent from Indian history.

India and Women: Past and Present

During the colonial period—as, unfortunately, is often still the case today—the bodies of women ceased to belong solely to themselves and instead became sites of ideological, religious and political conflict. At that time, this struggle was particularly evident between British colonial authorities and conservative Hindu groups.

While, during the 1950s and 1960s, much of the world witnessed the emergence of feminist movements advocating sexual, political and economic emancipation, India followed a markedly different trajectory. In many respects, colonial authorities employed the rhetoric of women's emancipation as an instrument of political control. Following Independence, the newly adopted Constitution formally recognised women as equal citizens, granting them rights such as universal suffrage and the possibility of divorce. However, these constitutional guarantees proved extremely difficult to implement in practice. Consequently, a significant gap emerged between the formal recognition of women's rights and their effective enjoyment within society.

Several organisations already active in promoting women's rights, including the All Women's Conference (AIWC), frequently became influenced by the political dynamics of the period. Rather than openly challenging patriarchal structures, many concentrated primarily on issues such as female education or maternal hygiene, thereby avoiding more direct criticism of systemic gender inequality.

By 1974, a number of international studies clearly demonstrated that the condition of Indian women had, in many respects, deteriorated following Independence. This collective awareness gave rise to the first meaningful reforms. These included the effective prohibition of polygamy and the recognition of daughters' rights to inherit family property—a reform later strengthened by the Hindu Succession (Amendment) Act of 2005. Despite these advances, social obligations associated with caste, honour and traditional expectations continue to trap—and, in many cases, cost the lives of—countless individuals, both women and men, particularly within Hindu communities.

Another sphere in which this contradiction remains clearly visible is the labour market. Even today, discriminatory employment practices persist in certain sectors, with women receiving lower wages than men—or, in some cases, receiving no remuneration whatsoever for comparable work. Contrary to expectations that rapid economic growth would increase female participation in the workforce, the years following the early 2000s witnessed a sharp decline in women's labour force participation. Once again, notions of family honour and traditional social obligations play a decisive role. Within some upper-caste communities, daughters are encouraged to pursue higher education, but often primarily as a means of enhancing the family's social prestige rather than fostering genuine professional independence. Following marriage, many women are expected—or pressured—to abandon their careers, since it is considered unnecessary or socially inappropriate for both spouses to pursue equally demanding professional lives. This dynamic creates fertile ground for women's economic dependence, which remains one of the principal mechanisms through which patriarchal control continues to be exercised. In the political sphere, India presents an interesting paradox. The country elected its first female Prime Minister and later its first female President long before many Western democracies achieved comparable milestones. However, this phenomenon must also be understood within the broader context of family elites and caste dynamics. Women belonging to influential, wealthy or high-caste families have historically found it considerably easier to gain political legitimacy than women from less privileged backgrounds. Consequently, female political leadership has often been accepted not because gender equality had been achieved, but because elite social status mitigated resistance to women's participation in public life.

Finally, India represents a unique case regarding civil rights. Unlike many democratic systems, India does not have a single, uniform Civil Code applicable to all citizens. Instead, personal matters—including marriage, divorce, inheritance and family law—are governed by different religious legal systems applying respectively to Hindus, Muslims, Sikhs and other religious communities. This legal pluralism has produced significant disparities in the protection of fundamental rights. Two landmark judicial cases illustrate particularly well the complex relationship between individual rights and religious traditions. The first concerns the Sabarimala Temple case. In this historic judgment, the Supreme Court of India declared unconstitutional the long-standing prohibition preventing women of menstruating age (between approximately ten and fifty years old) from entering the Hindu temple of Sabarimala. The second landmark case occurred in 2017, when the Supreme Court invalidated the practice of instant triple talaq, representing a major victory for Indo-Muslim feminist movements. Under this practice, a Muslim husband could dissolve a marriage simply by pronouncing the word talaq ("divorce") three times, thereby terminating the marriage without judicial intervention or any legal safeguards for the wife. The Court declared this practice unconstitutional, recognising that it violated fundamental constitutional principles of equality and dignity. These cases demonstrate how, in India, the boundary between individual rights and religious beliefs is often blurred. The absence of a uniform Civil Code, combined with the existence of different personal laws based on religious affiliation, frequently results in inconsistent and unequal protection of fundamental rights. Moreover, where women's right to work—and, consequently, their right to self-determination—is not uniformly protected by national civil legislation, significant disparities inevitably arise in the practical enjoyment of those rights.

Arranged Marriage in 2026

Any discussion of women's rights in India must also address the issue of arranged and forced marriages. These two concepts are frequently confused, although the distinction between them is fundamental when determining whether a basic human right has been violated. An arranged marriage, in itself, does not necessarily constitute a violation of human rights, although from a Western perspective it may be regarded as limiting individual autonomy. In this model, the initiative primarily rests with the families, who meet and agree to introduce their respective children. Responsibility then passes to the prospective bride and groom, who, after a series of meetings, retain the right to decide whether to continue the relationship—potentially leading to marriage—or to end the process.

A forced marriage, by contrast, transfers not only the initiative but also the decision-making power entirely to the parents or other family members. In many cases, individuals are compelled to marry someone they have never met and know nothing about. For reasons ranging from economic and political considerations to social prestige or family alliances, they are forced to proceed with the marriage regardless of age differences, personal fears, or the absence of genuine consent.

The tendency to regulate marriage in India is deeply rooted in a highly collectivist conception of society. Marriage is not viewed simply as a contract between two individuals, but rather as a union between two families. In many respects, marrying a person is understood as marrying into an entire family. Within the Hindu tradition, marriage is regarded as one of the most important samskaras (sacraments). The continued prevalence of arranged—and, in some cases, forced—marriages is sustained by two principal social pillars. The first is caste endogamy, namely the preference for marriages between individuals belonging to the same caste in order to preserve status, social prestige and, historically, notions of ritual purity. The second is the encouragement of marriages with partners from the same or a higher caste, a practice traditionally associated with preserving or enhancing a family's social position and reinforcing patriarchal control over women.

Nevertheless, this phenomenon must be understood within its contemporary context. Arranged marriages continue to exist today, although they have evolved into forms considered more socially acceptable. The underlying motivations remain largely unchanged—economic security, financial interests, cultural traditions, political considerations and caste dynamics—but the process now often allows prospective spouses a limited degree of participation. In practice, families typically compile a restricted list of acceptable candidates before presenting it to their sons or daughters, who may exercise a limited—and sometimes merely symbolic—right of refusal. In many rural areas, however, genuinely forced marriages continue to occur rather than consensual arranged marriages. A particularly revealing contemporary development is the role played by digital technology and artificial intelligence in facilitating these practices. Marriage websites such as Shaadi.com allow parents not only to create profiles on behalf of their children but also to publish matrimonial advertisements specifying preferred characteristics in a prospective spouse. Advanced filtering systems enable users to select candidates according to criteria including caste, religion, educational background, family status and other preferences, making the selection process faster, more efficient and accessible. In some instances, preferences continue to prioritise skin tone, caste affiliation and expectations regarding women's future dependence within marriage, thereby perpetuating social hierarchies rooted in both colonial and patriarchal legacies.

From the perspective of global governance, forced and child marriage constitutes a particularly significant case study because it directly violates several fundamental human rights, including the rights to personal liberty, equality and health, as protected under the European Convention on Human Rights and numerous international human rights instruments. Although India has ratified a wide range of international treaties addressing these issues, a persistent gap remains between de jure commitments and de facto implementation.

Possible Solutions

Analysing these challenges and identifying practical solutions requires a genuinely multilevel approach capable of integrating sociological theory, international legal instruments and domestic legal frameworks. Above all, it is essential to recognise that laws and international treaties cannot simply be imposed from above. Their implementation must proceed gradually, taking into account the social, cultural and political realities within which they are expected to operate. At the international level, one of the principal obstacles remains the limited enforceability of many human rights treaties and, above all, the widespread use of reservations, which substantially weaken their effectiveness. Removing reservations—particularly those relating to Article 16 of CEDAW concerning equality within marriage—would make it possible to adopt a more coherent and effective approach, helping to reconcile the difficult balance between the universality of human rights and respect for cultural diversity. Greater emphasis should also be placed on practical initiatives such as those promoted by UNICEF and the United Nations Population Fund (UNFPA). These organisations seek to implement programmes directly within local communities, ensuring effective monitoring of international funding while promoting women's empowerment, gender awareness and educational opportunities for younger generations. Such initiatives also contribute to challenging patriarchal social structures and reducing gender inequalities through long-term community engagement.

Nevertheless, none of these interventions can achieve lasting success unless accompanied by substantial reforms within India's own legal and social framework. An important first step would be to address the complex relationship between national legislation and religious or customary laws, reducing the inconsistencies that continue to undermine equal protection before the law. In this regard, particular significance should be attached to a landmark 2024 judgment of the Supreme Court of India, which affirmed the principle that every adult has the fundamental right to choose their own life partner freely. The Court held that this right cannot be overridden by family preferences, community pressure or religious norms. This decision represents an important step towards strengthening individual autonomy and reinforcing the constitutional protection of personal liberty.

Conclusion

As demonstrated throughout this analysis, gender discrimination remains deeply embedded within Indian society, shaped by centuries of colonial history, social transformations and political developments. Ratifying and recognising the international legal instruments discussed above undoubtedly constitutes an essential component of protecting, promoting and enforcing the human rights of Indian women. However, these international legal frameworks—including the guarantees contained in the European Convention on Human Rights and CEDAW—should not be regarded as miraculous solutions capable of eliminating discrimination on their own. Rather, they should be understood as seeds. If carefully nurtured within a favourable legal, political and social environment, they possess the potential to produce lasting and meaningful change.

Although numerous initiatives already exist throughout India, their impact will inevitably remain limited unless accompanied by a gradual dismantling of caste-based discrimination, the persistence of arranged and forced marriage systems, and the patriarchal models that continue to assign women the role of caregivers while identifying men as the primary providers and decision-makers. Ultimately, this discussion invites us to reflect upon the very meaning of freedom. The freedoms and rights that many of us regard as self-evident, because they form part of our own cultural and legal traditions, may remain little more than distant aspirations for others. This inevitably raises an important question from the perspective of cultural relativism. Is it right to advocate the removal of the reservations attached to Article 16 of CEDAW, knowing that these reservations continue to restrict the human rights of countless women, while at the same time recognising that their removal may generate tensions with deeply rooted religious, cultural and legal traditions? It is precisely within this delicate balance—between the universal protection of human rights and respect for cultural diversity—that some of the most significant challenges facing contemporary international governance continue to emerge.

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