Author: Priya Jaiswal, I year of B.A.,L.L.B (Hons) from Shambhunath Institute of Law.
ABSTRACT
The present paper humbly attempts to analyse the evolution of females, the post-independence period as well as the current economic and social status of females in the following postulation. Further, the author has humbly attempted to vividly discuss and introduce the major Statutes framed by the Legislature in the area of the protection of female workers. Three such Acts are enlisted below:
The Factories Act, 1948
The Posh Act, 2013
The Maternity Benefit Act, 1961
The author also strives to elucidate the important cases related to the protection of female workers. For the discussion, two crucial Case Laws have been meticulously chosen which are as follows:
Vishakha v. State of Rajasthan
Vasantha R. v. Union of India
The article further discusses the information collected through the reports provided by the office of the Registrar General and Census Commissioner of India. These two reports serve as crucial entry points required for a useful analysis of the data. The Honourable Prime Minister, Mr. Narendra Modi once remarkably exclaimed, "Women constitute 50% of our population and if they do not come out and work, then our country will never grow at the pace we all envision it to grow, and for that very reason, governments over time have taken special care to enact and amend laws to ensure greater participation of women in the growth story of India”.[1]
With this article, the author has tried to furnish several laws and rights related to the safety and security of females, especially the female workers who are currently employed in factories, industries, or mills of our country. The author further highlights the various schemes and provisions of the government for the well-being and welfare of female workers.
KEYWORDS: Constitution, Inequality, Legislation, Maternity, Sexual Harassment, Female Workers.
INTRODUCTION
The aftermath of the Industrial Revolution and Independence in India led to an increase in the number of females in fieldwork. Women who faced several backlashes due to societal pressure, never forget her vision of success which served as a crucial factor that led to the entry of females in several sectors which were earlier reserved and restricted to males. In today's jet-paced world, females occupy several positions of prominence which further leads our way to growth and development on a grand scale. Tian Wei famously remarked, "Any society that fails to harness the energy and creativity of its women is at a huge disadvantage in the modern world."[2]
According to the research provided by the office of Registrar General & Census Commissioner of India, the Census 2011 states that the total number of female workers in India is 149.8 million while female workers in rural areas are 121.8 million and 28.0 million females of urban areas respectively. Of the total female workers, 35.9 million females are working as cultivators, 61.5 million females are as agricultural laborers, 8.5 million females are in the household industry, and 43.7 million females are employed in other arenas. In this fashion, India has the largest female labour force in the world.[3]
Although females are gaining tremendous support and guidance to showcase their skills in the workspaces thereby gaining a larger representation, they are facing some serious issues within the same. Females, who have acquired employment with their intellect and skills, are often deprived of their work by way of exploitation, unhealthy working environments, and discrimination. There are several reasons behind these problems such as the orthodox mindset of various sections of society, unhealthy family support, child care, and immobility; to mention a few. Since times immemorial, females have struggled to gather equal social status and a respectable position in society. Post-independence period, Dr. B.R. Ambedkar took several constructive and productive actions to bring changes in their social status which could positively be seen in the form of his contribution to the Constitution of India. The Constitution promotes ‘Equality before Law’ under Article 14, ‘Prohibition of Discrimination’ under Article 15, ‘Freedom to practice any profession or occupation’ under Article 19 (1)(g), ‘Protection of Life and Personal Liberty’ under Article 21, etc. The Government of our country took all possible steps by way of its policies, laws, and provisions to overcome the problems faced by females in their working place.
The wide interpretation of the term ‘female workers’, also includes the house helps because they are probably exploited and harassed by the people. It is highlighted that the recognition and protection of rights for domestic workers is an essential step in breaking domestic work away from the informal economy with its prolongation of exploitation and inappropriate working conditions. [4] The human rights of females also in nature is an inalienable, integral and indivisible part of universal human rights.[5]
The present generation has witnessed discrimination on the basis of ‘gender’ in various sectors including the right to grant land by the state, allocation of food and resources, and payment of wages and remuneration. The disparity between the wages of males and females doing similar jobs has been prevalent not only in Uttar Pradesh but also in other parts of the country. Several scholars like Surendra Mediratta, Anu Saksena, and Bharti Ray have accepted that female workers receive fewer wages than males. The paper examines the variation in male and female agricultural wages of agricultural laborers were available. [6]
LAWS RELATED TO WOMEN
The Government of India has formulated various laws regarding the protection of females during their period of employment. The Labour Laws refer to those laws that are inclusive of all the activities of the workers under the contract of employment. As females constitute the most proportion of workers, they require special protection and security during their working hours. Likewise, they should be provided with the benefits of the legislative provisions and statutes framed by the Legislature of the country. These legislations encompass provisions regarding night working hours, maternity relief, social security, and equal remuneration, to mention a few.
The following are some important statutes framed by the Indian Government for the safety and security of females in the work fields:
THE FACTORIES ACT, 1948
This Act is particularly designed for factory workers to prevent any form of exploitation, discrimination, ill behaviour, and unhealthy working conditions by the employer or any authorized organization. The Act tries to promote the welfare of its workers by ensuring proper working conditions, adequate leaves, equal wages as per their male counterparts, proper health facilities, and other benefits.
In State v. Ardeshir Hormusji Bhiwandiwala, it has been expressed that "The question of the lawmaking body in instituting Factories Act, 1948 was to control work and to require the business to give careful consideration to the wellbeing, security, and insurance of his specialists". [7]
The following provisions of the Act specify the safety and security of females:
Section 22 (2) of the Act, provides that no female is allowed to touch the machines while it is in motion.
Section 34 of the Act, specifies that no female is allowed to lift any material or commodity with a weight above 30 kilograms. They are allowed to lift only those articles which weigh within the 30 kilograms boundary.
Section 87 of the Act, provides powers to the State Governments to prohibit any female in case of dangerous operations in the factory.
Section 66 (1)(b) of the Act, specifies that no female should be allowed to work except between 6 am to 7 pm.
Section 19 of the Act, specifies that there should be separate latrines and urinals for males and females. The workers must maintain their proper accessibility to it whenever necessary. These latrines and urinals must be regularly and adequately cleaned by sweepers to promote hygiene and cleanliness.
Section 42 (1)(b) of the Act, specifies that there should be separate and adequate screen washing systems for males and females which should be regularly cleaned.
It was often analysed that the health, safety, and welfare measures mentioned in the aforementioned Act are not up to the mark of adequacy and hereby do not take adequate steps for ensuring the same. Hence, it can be deduced that there needs to be proper implementation for ensuring health, safety, and welfare measures for the factory workers. It was held that measures must be taken for providing adequate training to its workers and essential safety equipment must be installed in the factory. [8]
By mentioning certain provisions of the aforementioned Act, the author tries to clarify that although certain measures have been taken by the government for the welfare of female workers yet there are certain areas where the government lacks in making adequate provisions. It has been seen in certain places that women are yet not provided the same status in society and they are often discouraged to work. This Act restricts females to work post 7 pm or to work before 6 am that is a clear example of discrimination prevalent in the factories. Orthodox people are often of the view that females must not work after 7 pm as it is unsafe for them to work at night but they do not try to take steps to eliminate such kind of discrimination in the society. This Act often mentions the regular cleaning of the toilets in the factories but the workers and the inspection team are the crucial evidence for determining the cleanliness of the toilets regularly. Thus, certain provisions must be altered as per the current factory condition.
THE MATERNITY BENEFIT ACT, 1961
This Act is particularly designed to reduce disparities in the early maternity benefits and bring into implementation the required conditions, facilities, and other benefits during the span of pregnancy. This Act often repeals several previous statutes related to the same such as the Mines Maternity Benefit Act 1941, the Bombay Maternity Benefit Act 1929, provisions related to the maternity benefits under Plantation Labour Act 1951, and several other provisions relating to the same. The following are some important provisions of the concerned Act:
Section 2 (1)(a) of the Act, specifies that it includes both the public sector undertakings and private sector organizations which lawfully have 10 or more employees. This section provides the area of study about the act which is extended to all the factories, plantations, mines, or shops.
Section 5 (2) of the Act, provides the eligibility criteria for females for being within the purview of the act. The act provides that females must be employed for around 80 days, which is often extended to 160 to 80 days with the effect of the 2017 amendment, before the due delivery of the female.
Section 5 (1) of the Act, specifies that every female should be allowed maternity benefits following a daily wage basis during her absence.
Section 11 of the Act, every female should be allowed at least 2 nursing breaks until her child turns to be 15 months old, apart from the rest period allowed due to the daily work.
Section 5 (5) of the Act, specifies that with the mutual consent of the employer and the employee, the female could be provided with the facility to work from home after the completion of her maternity break.
Section 12 of the Act, provides that no employer is allowed to dismiss his/her employee who is claiming maternity benefits under the concerned act. The employee can dismiss only and only in the case of grievous misconduct by the woman employee.
It was held that this Act often benefits a minuscule portion of females and it ignores the workers who are employed as contractual laborers, farmers, self-employed females, and housewives. [9]
This Act provides that females should be given maternity leave but it is not often seen to be applied in every organisation. Many organizations witness that either female is bound to work even during the days of her pregnancy or is asked to resign from her job for asking for long maternity leave. Sometimes, it is seen that if the female asks for maternity leave, she would be provided with unpaid leave. The prevalence of maternity leave is vigilant in the legal provisions rather than being implemented in society.
The Act is also criticized as it encourages large business organizations to hire females to fulfil diversity goals but in performing their practice, it discourages small-scale organizations to hire females as it increases the cost of employing them. It has also been seen that there has been no change in the applicability of the Act which makes it unclear if the same has been implemented especially in the unorganised sectors. It further stays silent on the nursing breaks, their duration, frequency, and availability. [10]
THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE ACT, 2013 (Posh Act 2013)
This Act intrinsically stands for Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. In this Act, gender-based violence is used as a weapon against females that deprives them of their dignity, self-respect, and self-esteem. This Act brings forth the issues faced by females at their workplace and further provides various provisions to overcome the same. Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually-coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non-verbal conduct of sexual.” [11]
The sexual harassment of females contributes to the hostile working environment and unhealthy atmosphere in the office that discourages female employees in the place. The following are some crucial provisions of the concerned Act:
Under Section 4 of the Act, it is specified that any organization or firm engaging ten or more employees is required to form a Redressal Committee which looks after the process of hearing and resolving sexual harassment complaints.
Section 5 of the Act, provides that the District Government is required to set up an Investigating Committee that looks into the various complaints from the private sector organizations and further takes adequate actions to resolve the particular issue.
Section 9 of the Act, provides the particular procedure required to be followed to file a complaint of sexual harassment.
Section 10 of the Act, provides the Internal Committee with the right to settle any complaint of sexual harassment through conciliation between the two parties before the beginning of any formal proceedings regarding the complaint.
Section 13 of the Act, specifies the reduction in wages of the guilty to compensate the aggrieved female.
Section 14 of the Act, specifies that strict action should be taken against the person who “falsely or maliciously” uses the provisions of the act to save himself from danger.
This Act specifically mentions the provisions made for females in case of sexual harassment but it ignores the other portion of the society i.e. the males. Under this Act, only females are made an aggrieved party while the practical survey conducted by the human resource manager came across the fact that the complaints for sexual harassment were filed for both males and females.[12]
In the present scenario, police complaints have become the hand tool for females to sharpen their vengeance. India is witnessing certain cases of false complaints by females with the intent to retribute their enemies and no provisions have been made describing the punishment for registering false complaints. The problem is that the implementation of the Act is a time taking and resource-using process which ruins the work ethics as well as the working environment of the company. The Act further ignores the problem that comes in the way of executing the same.
JUDICIAL APPROACH
The approach of the judiciary backed by judicial activism plays a proactive role in protecting the rights of the citizens and promoting the welfare of society. A judicial method is also known as judicial activism. The term ‘judicial activism’ refers to the process through which the judges of the superior courts interpret the laws broadly and further bring changes in the deviant legislations and develop new norms, values, and principles with time. The foundation of judicial activism in India was laid down by Judge V.R. Krishna Iyer, Justice P.N. Bhagwati, and Justice Desai. The chief instrument of judicial activism is Public Interest Litigation (PIL) which was introduced by Justice P.N. Bhagwati. PIL refers to those litigations filed for the purpose of ‘public interest’ in society which comes under the power given by courts to the public through judicial activism. Occurrence of various occasions that were marked by gender inequality and the prohibition of females from their workplace in order to discourage them from working outside the house. According to popular prejudices, females have been authorized the task to look after the house, and males are assigned the task to earn bread for their families. Several cases were filed under its purview which is as follows:
VISHAKHA v. STATE OF RAJASTHAN
This case is the most important case within the purview of the POSH ACT. The case serves as a remarkable and memorable judgment in the area of protection of females from Sexual Harassment in the Workplace. Bhanwari Devi, a woman in Bhateri, Rajasthan worked under the Women's Development Project (WDP) as 'Saathin' which is referred to as a 'Friend' in English. Bhanwari Devi worked to protect and promote the fundamental rights of females specifically. With one such help, she came across a family of Ram Karan Gurjar who were marrying their teenage daughter. Being the case of Child Marriage, Bhanwari Devi tried to stop their family from performing the marriage but all her attempts turned to vain. Finally, she called upon the Sub - Divisional Officer (SDO) along with the Deputy Superintendent of Police (DSP) on May 5, 1992, to prevent the culmination of the marriage but still the marriage was performed with no adequate police action.
After the same, it resulted in the boycott of Bhanwari Devi and her family from the village as the police came to the village. Out of great vengeance, five men from the Ram Karan Gurjar family attacked Bhanwari Devi's husband and then viciously gang-raped her. She was further deprived of any action against the rapists as she was prevented from complaining and from getting a medical test for around 52 hours. All this contributed to the insufficient evidence regarding the gang rape. Thus, with the help of the local MLA Dhanraj Meena, the rapists were declared not guilty. This resulted in a huge backlash from various organizations which together filed a Public Interest Litigation (PIL). The PIL was originally filed by a women's rights group called 'Vishakha' which emphasized the violation of Articles 14, 15, 19, and 21 under the Indian Constitution.
In the absence of any specific provisions for the protection of females from sexual harassment in the workplace, the Hon’ble Supreme Court took references from the international conventions to frame the required judgment for complete justice. The Hon'ble Court took references from the provisions Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). After that, the Court framed guidelines regarding the protection of females from sexual harassment which came to be known as the 'Vishakha Guidelines'. These guidelines are often included as a statute under Article 141 of the Indian Constitution and it further lays down the foundation for the Sexual Harassment of Women at Workplace Act, 2013.
Along with fundamental rights, the directive principles while securing just and humane conditions of work and maternity relief. They imposed the fundamental duty that all Indian citizens must renounce practices that are derogatory to the dignity of females which were also referred to by the Court. The Vishakha Guidelines ignore the unorganized sector and hereby fail to administer the cases of sexual harassment in the unorganized sectors. These guidelines placed emphasis on the establishment of an internal committee but it has become an exhausting task to implement the statute in the enterprises whose activities are not maintained under any legal provision or they do not maintain regular accounts. [13]
VASANTHA R. v. UNION OF INDIA AND ORS.
The main aim of this case is to discourage and prevent discrimination on the basis of sex and gender. There have been several instances that witnessed the said discrimination, even after several steps were taken by the government towards it. This case revolves fundamentally around the inequality extended out to females despite her possessing all the qualities required to excel in the given task. The case intrinsically challenges Section 66 (2) of The Factories Act 1948 which is said to be against Articles 14, 15, 16, and 19 (1)(g) of the Indian Constitution.
A female, R. Vasantha, was employed in the mill owned by the fifth respondent of the case. She had the choice between the day or night shift in the mill depending upon the workload because she was provided with the facilities of dormitories, proper food within the factory, transport if necessary, and many other facilities as such. Though she was provided all the aforementioned facilities, she was unable to work during the night as it was against the provisions laid under Section 66 (1) of the factories act which has laid restrictions on females to work beyond the time frame i.e. 6 am to 7 pm. It is specified that Section 66(1) of the act is arbitrary in nature and is violative of the mentioned articles of the Indian Constitution. It is further said that these provisions were introduced earlier when there was a lack of education and transport facilities available to females. These provisions are the tools used by males to restrict females within their houses and further maintain their economic superiority.
It was then contended by The Hon’ble Supreme Court that these provisions were applied in earlier times but cannot be applied in today's time because now females are getting equal opportunities as males in the fields of employment and both sexes are growing and developing at the same pace. Thus, the Supreme Court struck down Section 66 (1) and Section 66 (2) of the Factories Act which was declared unconstitutional being violative of Articles 14, 15, and 16 of the Indian Constitution. With this, the Hon'ble Court promoted Equality of opportunity to both males and females in the area of employment.
It was observed that the Legislature has not taken appropriate measures though there had been a number of representations made by various trade unions and female workers.
CONCLUSION
Through this, we conclusively derive information on many statutes and provisions introduced by the government to promote the protection and security of females in the employment areas. Although the government has made certain laws for the protection of female workers, we are witnessing several cases of discrimination and the safety of female workers in our country. This is because the government has not promoted the provisions thus made. The responsibility of the government does not end with the making of laws but it is also required to promote the same at several occasions and public platforms. The Government must take into consideration several awareness programs in the industrial areas by leading public rallies to inform about the aforementioned laws, it must promote the same through the help of newspaper articles and by sending a group of several social activists, especially female activists in the factory premise to spread awareness among the female workers regarding the rights available to them for their welfare, security, and safety in the employment fields.
It was remarkably exclaimed by Theresa J. Whitmarsh, "If you exclude 50% of the talent pool, it's no wonder you find yourself in a war for talent."[14].
The important attributes for the personal freedom of a female are honesty, pride, and self-esteem. It was rightly stated by her because, in today's era, females are said to have more intellect and skills which are required and essential for one to be successful in life. Thus, if any country wants to grow and develop at a great speed, it has to provide opportunities to both males and females in every field to ensure equality and prohibition of all forms of discrimination in the country.
As rightly mentioned by the Honourable Prime Minister, Mr. Narendra Modi in one of his speeches, “Women constitute 50% of our population and if they do not come out and work, then our country will never grow at the pace we all envision it to grow, and for that very reason, governments over time have taken special care to enact and amend laws to ensure greater participation of women in the growth story of India”.[15]
The recent United Nations Development Programme (UNDP) report states that even under Law, the equality of females is not assured in many societies. It further adds that although violence stalks female's lives yet law can do little unless present cultural and social value changes. In this context, the issue of crime and violence against females is a serious social concern.[16]
Although there has been a change in the status of females in post-independence India, this has been limited to only those females who got the opportunity of education and employment in the urban areas. The rural areas practice the older viewpoint that comes from the fact that the poor and better-off families follow the traditional norms of a females place in society. It is necessary to increase the productive employment rate, especially in economic nature because that is the only way through which females can become free from their traditional bindings. [17]
The government has also made certain women commissions on a national level for protecting and promoting the rights of females in the country. These National Commissions have also failed in their attempt to protect women from societal evils as it actually possesses no legislative powers but they can only suggest amendments or improvements, which are often not binding on the State or the Central governments. These Commissions often lack independence as they are financially dependent on the Union government.
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Ministry of Labour and Employment, Rate of women labour in India, About Women Labour | Ministry of Labour & Employment| Government of India
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Human Rights Principle, Human Rights Principles | United Nations Population Fund
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Meghna Mishra, The Reality of Vishakha Guidelines, https://www.lawyersclubindia.com/articles/details.asp?mod_id=11716
Peter Vanham, The woman on a mission to close the gender finance, 7 top quotes on gender parity from Davos 2016 | World Economic Forum
Kabir Jaiswal, Women’s Rights and Labour Law Statutes in India, https://womens-rights-labour-law-statutes-india/
Dogra, Narinder Kumar & Sukhchain Singh, Women Trafficking: A Challenge to Women Rights in India, The Indian Journal of Political Science, vol. 74, no. 3, 2013, pp. 395–406, WOMEN TRAFFICKING: A CHALLENGE TO WOMEN RIGHTS IN INDIA.
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