A CRITICAL ANALYSIS
ABSTRACT:
The issue of gender inequality has been ingraved in various aspects of human life in the society since time immemorial . The Indian society which has it’s roots set up in patriarchy has traditionally considered women as inferior to men and assumed women to be incapable of working and contributing in the same manner as as a man does. This belief gave birth to specific gender roles for men and women in the society where women were generally confined to the four walls of their households, leading to the creation of a societal structure where half of the population of a nation was left out the workforce by the mere reason of them being declared incompetent by a section of the society on the basis of no real criterias. since the ancient times these predefined gender roles for men and women resulted in denial of many rights and privileges to women. At the same time men used these gender roles as a tool for development and established a supremacy in socio-economic and other aspects of life. The developments in the society widened the gap between the two sexes in the society in a way that created deep disparities in the power dynamics between the existing genders and further this led to new forms of segregations that resulted in denial of the rights of wimen.
Post independence, India as a developing country took various measures to bring gender equality in the society. Most important step in this regard is the enactment of various laws to ensure gender justice in India. This research paper explores the status of gender equality in Indian labour laws, analyzing the challenges faced by women in the workforce.
KEYWORDS:
Gender inequality,Indian society, Patriarchy,
Genderroles,Discrimination,Legislative measures
Labour laws,Women workforce,Constitutional safeguards,gender parity, justice.
INTRODUCTION:
For an economy to thrive, we need social justice,Social justice is the view that everyone deserves equal economic, political and social rights and opportunities. It is the idea that both and men should have equal rights and efforts should be made to bring them on an equal footing and that’s where discussing gender equality in labour laws becomes important. These laws specifically look out for women, acknowledging the need to empower them through systemic legislative changes. The supreme law of the land “The Constitution of in india” disregards gender discrimination in all forms, and advocates for equal chances to everyone, no matter their gender. Even with these rules, women still face long-standing obstacles. Things like how people are raised, how much money they have, education, and job status create gaps, making it tougher for women to move ahead like men. There are obstacles that stop women from getting what they need to succeed, sticking to old ideas about men being better than women.
Even after the establishment of legislative frameworks and their implementation, women still face various obstacles.
The idea that women are incapable of working in the work orce as effeciently as men do and they can’t think as broadly as other men is deep rooted in patriarchal stereotypes which aim at suppressing women and creating situations od gender-pay disparities where women get paid less for the same amount of work done as their male coworkers. This research paper aims to delve deep into the present situations of women in the indian workforce and analyse those situations to draw possible conclusions which can help us understand the existing issues in a better way and discover alternate solutions to overcome those challenges.
Research methodology:
This paper is of descriptive nature and the research is based on secondary sources for the deep analysis of the status of gender equality in the realm of indian labour laws. Secondary sources of information like newspapers, journals, and websites are used for the research.
Literature Review:
The concept of gender justice within the realm of Indian labour laws has been an issue of discussion for numerous scholarly debates and policy analyses. This literature review utilizes key research findings and theoretical perspectives on the intersectionality of gender justice and labour laws in India, while exploring historical developments, legislative frameworks, and contemporary challenges.
The researcher went through some labour law legislations that were enacted to bring gender equality, important case laws in this field and the contemporary status of the implementation of the legislation and further delves into the question of why, despite constitutional safeguards and specific legislations aimed at bringing gender equality , women still encounter obstacles such as discrimination, stereotypes, and a declining participation rate in the workforce. The discussion delves into the factors contributing to this decline, including societal norms, societal sturcutural biases, workplace biases, and safety concerns.
This research paper relies on statutes such as the Factories Act, 1948, The constitution of India, The Maternity BenefitsAct, 1961, The Sexual Harassment of women at workplaces,2013 to analyse the legal evolution of women’s rights in the indan workforce.
This paper relies on data from various supreme court and landmark judgements to show the stance and support of judiciary in safeguarding the rights of women employees.
It aims to utilize data from different newspapers such as India Today, Deccand Herald, The Wire to understand the data of women participation in workforce and different challenges faced by them.
This paper depends on data published in reports by organisations like international labour organisations, global gender gap report and oxfam India reports.
The article concludes by acknowledging the slow progress in achieving gender equality in India in the context of indian labour laws and the pivotal role of various stakeholders involved.
Women workforce in India :
Women in india have been traditionally limited to working in the kitchens of their households with the belief that they aren’t well suited for the role of providers because of lack of education and multiple responsibilities of the household that linger on their shoulders while men continued to participate in the workforce with the belief that they are more productive and capable of being a part of the workforce and gained an independent identity through that process. An example of this belief is that even though women were supposed to be owners of the kitchens of their households and typically be iolved in cooking and taking care of the household, when it came to participating in these fields of cooking and attaining professional effeciency men harboured the roles of cooks in the society for the purpose of earning. Even after entering the workforce after a point in time they weren’t treated equally as men and this became a new challenge in the realm of workforce.
As a result of this flawed belief that women are inferior to men they have been subjected to different forms of discrimination throughout history.
Practices like sati ,child marriage, domestic violence, dowry death and sexual harrassment have long casted a dark shadow on the lives of indian women .while some of these practices have decreased due legislative enactments the idea of gender equality still seems like a distant dream to achieve.
Even after entering the workforce, women encounter challenges and may be unfairly seen as less productive. Although laws and policies aim to address these disparities, achieving gender equity remains a significant challenge.
India’s journey toward gender parity in the labour force is slow. The International Labour Organisation (ILO) reports a considerable gender gap of 50.9%, with only 19.2% of women participating, compared to 70.1% of men. In the World Economic Forum’s Gender Gap Report 2023, India ranked 127th out of 146 countries, falling behind smaller neighbours like Sri Lanka, Bangladesh, and Nepal. Gender inequalities exceeding five percent are observed in India, along with China, Pakistan, Azerbaijan, and Qatar.
At the current pace, the World Economic Forum estimates it will take a staggering 132 years to achieve global gender parity in the labour force. Slow progress is influenced by cultural norms, limited educational opportunities, and workplace biases. Despite these challenges, there’s hope for positive change. Increased participation of women in entrepreneurship could significantly boost India’s GDP, potentially adding $0.7 trillion by 2025. Women entrepreneurs can create job opportunities, inspiring more women to join the workforce, fostering overall economic growth, and creating a more inclusive society.
Surprisingly, despite 52% of women expressing a desire to work, India’s female labour participation rate has steadily declined over the past two decades. It dropped from 32% in 2005 to 19% in 2021, according to the International Labour Organisation (ILO). This trend affects women across social classes, religions, and age groups, including rural women who often rely on income.
In India, the decline in the workforce, especially for women, is influenced by several significant challenges that make it difficult for them to participate in the job market. Globally, about 51% of the workforce consists of women, but in India, this number drops drastically to only 31% , as shown by the latest PLFS Survey 2022 -23. One major issue is that women often end up in low-paying jobs and are not well-represented in higher-level managerial positions. Shockingly, according to the International Labour Organization (ILO), there’s a massive 34% gender pay gap in India, meaning that women earn much less than men for doing the same job.
Companies also play a big part in this problem. Women typically earn only 79% of what men earn. Additionally, only 5% of Fortune 500 CEOs are women, highlighting a significant gender gap in top leadership positions. Discrimination against women is still a problem, even in well-known companies like Google, where reports from McKinsey suggest biases related to women’s reproductive choices. Safety concerns and workplace harassment further make it difficult for women to actively participate in the workforce.
Sexual harassment is a widespread issue that often forces women to quit their jobs or avoid seeking promotions. Additionally, the societal norms regarding domestic work mean that the unpaid work women do at home often goes unnoticed. Women are often overrepresented in low-paying jobs. The Oxfam India Discrimination Report 2022 highlights biases in hiring and pay, deepening the gender wage gap across different types of work.
The cultural norms in the society largely restrict women to domestic work and fullfilling the duties of maintaining the household chores and in the households where they are allowed to work they are expected to manage the household chores and work parallely which creates an environment where their emotional and mental well being is compromised often leading to disrupted physical health and criticism at the workplace. As a result of these restrictions and responsibilities it has been observed that women after marriage and child birth stop returning back to the workforce.
Moreover the efforts of women in the household and umpaid work largely remain unrecognised. This prompted the need for Labour Laws in india in order to provide and protect the rights of workers employed in indian workforce and cater to the challenges fdealt by female workers.
In this paper we will discuss the legal frameworks that were enacted to address these challenges and further analyse various case laws in the sphere of protecting the rights of women workers.
Constitution of India:
The constitution is the supreme law of India. This is a written document which lays down the framework demarcating fundamental basic code, structure, procedures, powers, and duties of Government and its organizations and rights & duties of the citizens of the country.
It firmly prohibits discrimination based on sex.
ARTICLE 15: It protects women from discrimination.
ARTICLE 16: It ensures that everyone gets equal opportunities which makes it easier for the marginalised communities like women to take part in the public work.
Article 39 outlines policy principles, emphasizing equal access to livelihood, fair wages for both men and women, and safeguarding the well-being of workers. It also stresses the importance of humane working conditions and maternity leave, which is also highlighted in Article 42. These constitutional provisions are crucial in dealing with challenges caused by various forms of discrimination in the society.
FACTORIES ACT, 1948 :
This Act is a pivotal piece of legislation as it aims to enact specific provisions to cater the needs of women iin the workplace.
It aims to create a conducive working environment for women where the health, saftety and welafare of the employee is not compromised.
One of the main provisions of this Act is that it prohibits women from engaging in work that involves hazardous substances. It aims to protect women employees from the dangers of workong in environments which involve working with harsh chemicals that could further result in the loss of lives and disruption of physical health.
Moreover this Act also prohibits women from engaging in work during night shifts. While this recognises the additional risks associated with working late at night for women, this provision is also criticised for being restrictive against women employees who are willing to work at night.
Leading case laws further underscore the act’s importance while recognising this act’s committment to women’s safety. In the case of Pearson v Belgium Co LTD., the court ruled that women are prohibited from cleaning stationary parts of a machine if any part of the machine is still in motion.
Moreover, the case of Richard Thomas and Baldwins Ltd. V Cummings provides further clarity on safety regulations. The court concluded that injuries sustained from machinery that is unfenced but not in motion do not constitute a breach of statutory duty. This decision emphasizes the significance of ensuring machines are adequately fenced and highlights the specific conditions under which safety regulations must be enforced.
MATERNITY BENEFIT ACT, 1961
The Maternity Benefit Act of 1961 in India is a crucial legislation for women under the indian labour laws that grants eligible women employees up to 26 weeks of paid maternity leave, making it one of the most generous maternity benefit provisions globally. This provision also invludes and applies to surrogate mothers and women adopting a child below three months. The Act makes sure thaf the women are protected during their maternity leave period from being terminated and being made to face adverse consequences as a result them being grated the maternity leave . Employers are obliged to facilitate women’s return to work by providing benefits like creche facilities and nursing breaks. In case the nature of work allows, women may also have the option to work from home after the maternity period.
A landmark ruling in Municipal Corporation of Delhi v Female Workers affirmed that maternity benefits apply to casual and daily wage workers, ensuring broad protection beyond regular employees.The Act seeks to harmonize maternity benefits across different employment categories, standardizing the rates, conditions, and duration of these benefits. It explicitly prohibits the employment of pregnant women for six weeks post-delivery or medical termination and mandates maternity benefit payments at the average daily wage rate for specified periods before and after delivery.
After the amendment in 2017, The Maternity Benefit Act, 2017 enlarged the scope of these provisions, offering biological mothers to 26 weeks of leave and adoptive mothers upto 12 weeks of leave. The Act’s primary objective is to promote women’s well-being, equal opportunity, and inclusive growth in the workplace, ensuring that motherhood does not impede career progression.
THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE ACT, 2013
The 2013 Sexual Harassment of Women at Workplace Act stands as a cornerstone for women’s safety in working environments. This law makes it compulsory for employers to create a secure environment for all women, whether they are full-time employees, interns, or even visitors.
One crucial requirement mandated by this law is that every organization must establish an internal committee dedicated to handling complaints of sexual harassment. This committee’s role is to ensure that all complaints are addressed confidentially, fairly and in due time.
To illustrate, consider a scenario where a female intern faces inappropriate behavior from a senior colleague. This Act comes to rescue under which she can report this behavior without fear, knowing that the internal committee will take her complaint seriously and maintain her privacy.
Moreover, the Act requires employers to conduct regular training sessions to educate all employees about what constitutes sexual harassment and how to prevent it.
For example, a company might hold workshops and distribute informative materials, helping employees understand their rights and the importance of maintaining a respectful workplace.
Sexual harassment is not just a matter of personal safety; it is also a profound violation of fundamental and human rights. It erodes women’s confidence and undermines their right to equal treatment at work. Unfortunately, many women may remain silent about such abuses, fearing repercussions like job loss or stigmatization. This is why it is crucial for employers to actively raise awareness and foster a culture that combats harassment.
Effective communication and robust policies are essential tools in this battle. Companies might implement clear, accessible reporting procedures and ensure that all staff members are familiar with them. For instance, a manufacturing firm could place posters around the workplace detailing steps to report harassment, ensuring that everyone knows their rights and the support available to them.
The importance of such measures is underscored by the International Labour Organization’s 1985 resolution, which highlighted how sexual harassment adversely affects working conditions, employment, and promotion prospects. The 2013 Act, by focusing specifically on women, plays a pivotal role in promoting gender equality. It helps secure women’s rights to life, liberty, and improved working conditions, thereby empowering them economically and fostering inclusive growth.
In conclusion, the 2013 Sexual Harassment of Women at Workplace Act is more than just legislation; it is a commitment to creating a safer, fairer work environment. By preventing harassment and promoting awareness, this Act not only protects women’s rights but also contributes to their overall economic empowerment and well-being.
The Employees State Insurance Act, 1948
This legislation ensures welfare of insured women employees by providing vital benefits such as medical care, sickness leave, maternity support, and disability compensation, safeguarding their health and well-being.
The Equal Remuneration Act, 1976:
This law aims to institutionalize a long haulted demand in the real of gender equality, aiming to provide “Equal pay for Equal work”.
This law mandates that men and women are to be paid equally for the same kind of work. It also firmly prohibits any discrimination against women in hiring, promotions, and training opportunities, and calls for fair treatment for all.
The Companies Act, 2013
This act makes it mandatory for certain classes of companies to appoint at least one – woman director on their board, fostering gender diversity at the top levels of management involved in decision-making roles.
THE EVOLUTION OF CASES :
Some Landmark judgements that have played a crucial role in securing the rights of women in the indian workforce are discussed below :
Mrs. Neera Mathur v Life Insurance Corporation of India:
It is a groundbreaking case in which when Neera Mathur, a probationary employee, was terminated, post her maternity leave.
The court, recognizing the injustice, ruled against her dismissal, citing excessive demands in the application process. This case marked a turning point against discriminatory practices related to maternity leaves in the indian workforce.
Air India v Nargesh Meerza:
In this case, an important question was posed to the court regarding the mandatory retirement provision for air hostesses on pregnancy. The court, deeming it unreasonable and a violation of Article 14, protected women’s right to have children without compromising their employment. This decision reinforced the notion that forced retirement based on pregnancy is unjust.and should be eliminated from practice.
Dattatreya Motiram v State of Bombay:
In a landmark clarification, Chief Justice Chagla clarified that while women can be favored under Article 15, discrimination against women in favor of men is unacceptable, laying the groundwork for gender equality in legal matters.
State of Kerala v K. Kunihipacky:
In this case the court was dealing with the question ofpreferential treatment given to female lecturers in women’s colleges and upheld the reasonableness of such preferences. However, it clarified that seniority must not be overlooked, highlighting the need to balance gender preferences while taking merit into account.
Mohini Philip v Union of India:
In a case involving the termination of a nursing officer based on marriage, the court declared such considerations as irrelevant, arbitrary, and contrary to public policy. This decision strongly asserted that terminating employment based on marital status is discriminatory and goes against principles of fairness.
Despite a comprehensive legal framework, achieving gender parity in India remains a formidable challenge. The Global Gender Gap Report 2022 positions India at 135 out of 146 countries, reflecting slow progress in closing the gender gap. While systemic issues contribute to gender inequality, employers play a pivotal role in driving change and bridging the gap.
Conclusion:
In conclusion, the status of gender equity in Indian labour laws boasts of a complex landscape, with constitutional protections and specific legislations coexisting with persistent challenges faced by women in the workforce.. Despite legal frameworks such as the Maternity Benefit Act and the Sexual Harassment of Women at Workplace Act, women struggle with discrimination, stereotypes, and a declining workforce participation rate.
While legislative measures like the Equal Remuneration Act and the Companies Act aim to address these disparities, achieving gender parity in India remains a slow process. The need for employers to play a pivotal role in driving change is underscored, as evidenced by the slow progress reflected in global rankings. With the potential to add $0.7 trillion to the GDP by 2025 through increased women’s entrepreneurship, there is hope for positive change. Bridging the gender gap in India requires a collective effort, challenging societal norms, promoting inclusive workplaces, and recognizing the pivotal role of women in fostering economic growth and a more equitable society.
Navodita Pandey
National Forensic Sciences University,Delhi.