women in workforce- challenges, problems and measures
TRANSCRIPT
EMPOWERMENT OF WOMEN
Women in Workforce- Challenges, Problems and Measures
SYNOPSIS
1. Introduction
2. History of Women’s Right to work
3. Constitution of India and Right to work.
4. Participation of Women in Workforce
5. Problems faced by women in workplace and Redressal
Machineries.
6. Facilitative Measures exclusively for women in workforce.
7. Decisions of the Apex court.
8. Conclusion.
INTRODUCTION
The status of women in India has been subject to many great changes
over the past few millennia. From equal status with men in ancient
times[ through the low points of the medieval period, to the promotion
of equal rights by many reformers, the history of women in India has been
eventful. In modern India, women have held high offices in India including
that of the President, Prime Minister, Speaker of the Lok Sabha and Leader of
the Opposition. As of 2011, the Speaker of the Lok Sabha and the Leader of
the Opposition in the Lok Sabha (Lower House of the parliament) were
women. However, women in India continue to face atrocities such as rape,
acid throwing, dowry killings, and forced prostitution of young girls.
According to a global poll conducted by Thomson Reuters, India is the "fourth
most dangerous country" in the world for women and the worst country for
women among the G20 countries.
The status of women in India has been many ups and downs. The 20th
century has been many changes in the global arena, economic, scientific and
social. We have made noteworthy strides in all aspects of living of which the
most exemplary one would be in the social sphere. Women have been given
equal opportunities to compete with men and one another. In the last
century and the early 20th century women were mostly relegated to the
home and their place was the kitchen. The 20th century has witnessed a
great deal of independence and autonomy for many countries. Women have
been equal fighters for freedom. They have demanded for and received
equality in education and there lies the secret of their success. Education
and the awareness that comes with it have enabled this gender to fight their
cause.
HISTORY OF WOMEN’S RIGHT TO WORK .
Women in the Pre-Independence Period
The history of India reveals distinct stages of rise and fall in the status
of Indian women. When we turn back to the prehistoric times, we see men
and women in hordes leading a nomadic life. Women were then treated on
par with men. Women’s role at home and outside was as important as that of
men. Later, when the custom of marriage arose, there developed in turn, the
home and the family. It was the women who reared the children, took care of
the household and performed the general domestic labour, leaving men to
do most of the outside work and so women mostly confined themselves
within four walls of the house, as a result of which, slowly, they were made
to withdraw their roles from the outside world. In the cycle of times, their
valves were forgotten; status degraded and position relegated; and they
were looked down upon as an inferior creature. Even when, the nomadic life
of the tent was abandoned for that of a fixed home, women remained
subordinate to their husbands.
It is therefore no wondered that men came to be viewed as ‘producers’ -who
produced material needs of their women and children. Women, on the
contrary were treated as ‘consumers’ whose rightful place was the
household and their roles were limited mostly to house-keeping, cooking
food, and caring of children. While men attended the difficult, heavy and
hazardous tasks that required physical strength, women were expected to
perform household dominated activities which were relatively less arduous
but supplementary and supportive to men folk. But this outlook changed with
the advent of the Vedic period. We can say that women in India reached one
of their glorious stages during this time. Though the father held supreme
sway in the affairs of the family, the mother also enjoyed a high position, and
she exercised considerable authority in the household affairs. The Aryans
sought co-operation of their women in almost every walk of life and they
were given full freedom for their development. They enjoyed the property
rights and had access to the property of their fathers and husbands. They
discussed political and social problems freely with men. They composed and
chanted Vedic hymns at the holy sacrifices. Widow re-marriage was in
existence. They also had the privilege of adoption. There was no
discrimination between men and women before law. The position of the
Indian women during the later Vedic period was not very encouraging. Once
again their position deteriorated considerably. Women became entirely
dependent on men, and were subjected to the authority of their fathers,
husbands and sons in the different periods of their life as daughters, wives
and mothers. Their education, religious rights and privileges were curbed.
Due to social, economical and political changes, women lost their position in
the society. Subsequently, unnecessary and unwarranted customs such as
purdah, sati, child-marriage, polygamy and enforced widowhood crept in.
The women’s status at home and outside declined. Women subjugation was
predominant in the patriarchal society. All the decisions were taken by men
and they did not bother to inform their decisions to their wives, rather they
did everything according to their own will and pleasure.
Reform Movements
The awakening gave birth to many reforms, social movements and
religious organizations which worked hard to spread education among
women, to widow remarriage; to improve the overall living conditions of
widows; to prevent child marriage; to cast away the ‘Purdha’; and to enforce
monogamy and the like. Rajaram Mohan Roy, a great social reformer of
modern India fought bravely against the social evils prevailing in the Indian
society. He organized the historic agitation against the in human custom of
Sati. In 1829, the Sati Abolition Act was passed by the Government. To raise
the status of women, Rajaram Mohan Roy demanded that they were given
the right of inheritance and property .In 1891, ‘The Age of Consent Act’ was
passed which forbade the marriage of a girl before the age of 12. In 1937,
the Indian legislature passed to the Hindu women, the ‘Property Act’ which
conceded to the Hindu widow, a share in the husband’s property. The
movement for the liberation of women received a great stimulus for the rise
of the Militant National Movement in the20th century. Gandhi, Rajaram
Mohan Roy, Ishwar Chandra Vidya Sagar and other enlightened men and
women worked for the up liftment of women. Gradually, women also began
to play an active role in India’s Freedom Struggle. They participated in large
numbers in the agitation against ‘Partition of Bengal’ and the ‘Home Rule
Movement’. More than any other factors, participation of women in the
national movement contributed to their awakening and emancipation.
Women’s struggle for equality took a big step forward with the coming of
independence.
Women in Post - Independence Period
When independence was won by India, there was an earnest attempt
to improve the position of women in the country. Article 15 of the Indian
constitution guaranteed complete equality of men and women. Legislation
was resorted to help women. The Hindu Code Bill gave the women the right
to share the property of their parents. Many other social evils were removed.
Widow
Re marriage was encouraged and child marriages were prohibited. The right
of divorce was also given to women. However; many of these rights were
more on papers than in actual practice. The traditional customs were so
strongly rooted in the minds of people, that they did not easily take these
new reforms. When we start making a comparison between their role and
status of women in Modern India and in the other countries of the world,
particularly in the matter of emancipation of women, we cannot but be stuck
with certain unexpected contrasts. Though the status of Indian women have
changed, it does not prove satisfactory. Indian society has all along been a
male dominated society, where the women’s roles are being confined to the
home. Their role limited to procreation and upbringing of children and
catering to the needs of men folk. In fact, in all the ages, women did not
have an independent existence of their own. They existed for men and
always played a second fiddle to them.
CONSTITUTION OF INDIA AND RIGHT TO WORK
Our Constitution is the basic document of a country having a special
legal holiness which sets the framework and the principal functions of the
organs of the Government of a State. It also declares the principles
governing the operation of these organs. The Constitution aims at creating
legal norms, social philosophy and economic values which are to be affected
by striking synthesis, harmony and fundamental adjustment between
individual rights and social interest to achieve the desired community goals.
In India, the Constitution makers while drafting the Constitution were
sensitive to the problems faced by women and made specific provisions
relating to them. In various articles, not only mandates equality of the sexes
but also authorizes benign discrimination in favour of women and children to
make up for the backwardness which has been their age-old destiny. But
categorical imperatives constitutionals by the Founding Fathers are not self
acting and can acquire socio-legal locomotion only by appropriate State
action.
Preamble
The Preamble contains the essence of the Constitution and reflects the
ideals and aims of the people. The Preamble starts by saying that we, the
people of India, give to ourselves the Constitution. The source of the
Constitution is thus traced to the people, i.e. men and women of India,
irrespective of caste, community, religion or sex. The makers of the
Constitution were not satisfied with mere territorial unity and integrity. If the
unity is to be lasting, it should be based on social, economic and political
justice. Such justice should be equal for all. The Preamble contains the goal
of equality of status and opportunity to all citizens. This particular goal has
been incorporated to give equal rights to women and men in terms of status
as well as opportunity.
Political Rights
Even though the fact that women participated equally in the freedom
struggle and, under the Constitution and law, have equal political rights as
men, enabling them to take part effectively in the administration of the
country has had little effect as they are negligibly represented in politics.
There were only seven women members in the
Constituent Assembly and the number later decreased further. Their
representation in the Lok Sabha is far below the expected numbers. This has
led to the demand for reservation of 33% seats for women in the Lok Sabha
and Vidhan Sabhas. Political empowerment of women has been brought by
the 73rd and 74th Amendments4.2 which reserve seats for women in Gram
Panchayats and Municipal bodies. Illiteracy, lack of political awareness,
physical violence and economic dependence are a few reasons which
restrain women from taking part in the political processes of the country.
Economic Rights
At hand there has been series of legislation conferring equal rights for
women and men. These legislations have been guided by the provisions of
the fundamental rights and Directive Principles of State Policy. Here again
there is a total lack of awareness regarding economic rights amongst
women. Laws to improve their condition in matters relating to wages,
maternity benefits, equal remuneration and property/succession have been
enacted to provide the necessary protection in these areas.
Social justice
For providing social justice to women, the most important step has
been codification of some of the personal laws in our country which pose the
biggest challenge in this context. In the area of criminal justice, the gender
neutrality of law worked to the disadvantage of a woman accused because in
some of the cases it imposed a heavy burden on the prosecutor, for e.g. in
cases of rape and dowry. Certain areas like domestic violence and sexual
harassment of women at the workplace were untouched, untaught. These
examples of gender insensitivity were tackled by the judiciary and
incorporated into binding decisional laws to provide social43justice in void
spheres. Although a Uniform Civil Code is still a dream in spite of various
directions of the Court, the enactment of certain legislations like the Pre-
Natal Diagnostic Techniques (Prevention of Misuse) Act and the Medical
Termination of Pregnancy Act prevent the violation of justice and humanity
right from the womb.
Fundamental rights
Part III of the Constitution consisting of Articles 12-35 is the heart of
the Constitution. Human Rights which are the entitlement of every man,
woman and child because they are human beings have been made
enforceable as constitutional or fundamental rights in India. The framers of
the Constitution were conscious of the unequal treatment and discrimination
meted out to the fairer sex from time immemorial and therefore included
certain general as well as specific provisions for the up liftment of the status
of women.
Justice Bhagwati in Maneka Gandhi v. Union of India (AIR 1978 SC 597)4.3
said:
"These fundamental rights represent the basic values cherished by the
people of this country since the Vedic times and they are calculated to
protect the dignity of the individual and create conditions in which every
human being can develop his personality to the fullest extent."
Article 14 guarantees that the State shall not deny equality before the law
and equal protection of the laws.
Article 15 prohibits discrimination against any citizen on the ground of sex
and Article 15 (3) empowers the state to make positive discrimination in
favour of women and child.
Article 16 provides for equality of opportunity in matter of public
employment, The Constitution, therefore, provides equal opportunities for
women implicitly as they are applicable to all persons irrespective of sex.
However, the Courts realize that these Articles reflect only de jure equality to
women. They have not been able to accelerate de facto equality to the
extent the Constitution intended.
Gender equality becomes elusive in the absence of right to live with dignity
as enshrined in Article 21 of the Constitution.
Article 23 prohibits trafficking in human beings and forced labour; Article 23
of the Constitution specifically prohibits traffic in human beings. Trafficking in
human beings has been prevalent in India for a long time in the form of
prostitution and selling and purchasing of human beings.
Directive Principles of State Policy
However Directive Principles of State Policy are not enforceable in any
court of law they are essential in the governance of the country and provide
for the welfare of the people, including women. These provisions are
contained in Part IV of the Constitution. Fundamental Rights furnish to
individual rights while the Directive Principles of State Policy supply to social
needs.
Article 39(a) directs the State to direct its policy towards securing that
citizens, men and women, equally have the right to an adequate means of
livelihood.
Article 39(d) directs the State to secure equal pay for equal work for both
men and women. The State in furtherance of this directive passed the Equal
Remuneration Act, 1976 to give effect to the provision.
Article 39(e) specifically directs the State not to abuse the health and
strength of workers, men and women.
Article 42 of the Constitution incorporates a very important provision for the
benefit of women. It directs the State to make provisions for securing just
and humane conditions of work and for maternity relief.
Fundamental Duties
Parts IV-A which consist of only one Article 51-A was added to the
constitution by the42nd Amendment, 1976. This Article for the first time
specifies a code of eleven fundamental duties for citizens.
Article 51-A (e) is related to women. It states that;
“It shall be the duty of every citizen of India to promote harmony and
the spirit of common brotherhood amongst all the people of India
transcending religion, linguistic, regional or sectional diversities; to renounce
practices derogatory to the dignity of women”.
Thus the above said provisions are enshrined in Our Constitutions
either expressly or implicitly providing the Right to work to women in India.
In addition to the above said provisions our founding fathers have also
enacted laws in ratifying the International conventions such as CEDAW and
Constitutional Provisions to facilitate and provide right to work to women
kind in India.
PARTICIPATION OF WOMEN IN WORKFORCE
Contrary to common perception, a large percentage of women in India
work. National data collection agencies accept that statistics seriously
understate women's contribution as workers. However, there are far fewer
women than men in the paid workforce. In urban India, women participate in
the workforce in impressive numbers. For example, in the software industry
30% of the workforce is female. In the workplace women enjoy parity with
their male counterparts in terms of wages and roles.
Women form an integral part of the Indian workforce. According to the
information provided by the Registrar General of India, the work participation
rate for women was 25.63 per cent in 2001. This is an improvement from
22.27 per cent in 1991 and 19.67 per cent in 1981. While there has been an
improvement in the work participation rate of women, it continues to be
substantially less in comparison to the work participation rate of men. In
2001, the work participation rate for women in rural areas was 30.79 per
cent as compared to 11.88 per cent in the urban areas. In the rural areas,
women are mainly involved as cultivators and agricultural laborers. In the
urban areas, almost 80 per cent of the women workers are working in the
unorganized sectors such as household industries, petty trades and services,
buildings and construction. The total work force in the country during 2004-
05 is estimated to be 455.7 million based on the NSS 61st Round Survey on
Employment-Unemployment and census population projections for different
states. Women workers were 146.89 million or just 32.2 %, of the total
workers. About 106.89 million or 72.8%of these Women worker were
employed in agriculture even though the share of the industry among men
workers was only 48.8% The overall share of the industry in the rural
workforce was about 56.6 %.
In rural India in the agriculture and allied industrial sectors, females
account for as much as 89.5% of the labour force. In overall farm production,
women's average contribution is estimated at 55% to 66% of the total
labour. According to a 1991 World Bank report, women accounted for 94% of
total employment in dairy production in India. Women constitute 51% of the
total employed in forest-based small-scale enterprises.
According to the International Labour Organization (ILO), out of 131
countries for which data was available, India ranks 11th from the bottom in
female labour force participation (FLFP). The National Sample Survey
Organization (NSSO) data reveals falling FLFP from over 40% in the mid-
1990s, to 29% in 2004-05, to 23% in 2009-10 and 22.5% by 2011-12.
What attributes Empowerment of Women?
The most important aspects that define the empowerment of women in
relation of work force are.
1. Self Sustainability.
2. Attaining Authority.
Self Sustainability
Providing Job Opportunities to the large masses has become a major
challenge in India. With more generation of employment in India the
participation of women in workforce has literally or gradually increasing but
the perpetuality of employment has become an unanswerable question when
the self sustainability is an wanting criteria.
A women can self sustain herself by means of engaging herself into
workforce where she attains economic independency and sustain herself, but
self sustainability is not an only factor for women to empower herself, there
are many others factors to be considered when self sustainability is put as
foremost factor in empowerment of women.
Attaining Authority.
Education is a confronting challenge that world is facing in providing it
to the people where women education has been a major challenge among
all.
Self sustaining her can be done even by an illiterate woman by
engaging herself in domestic jobs but a legitimate power or authority can be
attained only by means of education and employment. Generation of jobs
equivalent to the education has become an inevitable factor for a women to
attain authority or legitimate power.
Only by attaining authority or legitimate power a women can have
more viability in choosing her life standard and living.
Do Education and Participation in Workforce complement each
other?
The above graphical representation shows that enrolment in higher
education and workforce participation of women are relatively unbalanced
which means not every women who enroll themselves into higher education
participate in workforce. The ratio between the two relative factors is very
much unbalanced such that providing education alone will not be a sole
solution to emancipate women kind.
Though Education is considered to be a foremost agenda only through
Education participation of women in workforce can seldom be balanced is
clearly expressed in the above graphical representation. This problem of an
unbalanced proportionality between the two factors can be examined only by
way of finding the difficulties faced by women in general for their non
participation.
PROBLEMS FACED BY WOMEN IN WORKPLACE AND REDRESSAL
MACHINERY
In 1997, the Supreme Court of India, for the first time, recognized
sexual harassment at the workplace as a violation of human rights. The
landmark Vishaka judgment outlined a set of guidelines (Guidelines on
Sexual Harassment at the Workplace) for the prevention and redress of
complaints by women of sexual harassment in the workplace. The guidelines
place the responsibility on employers to provide a safe work environment to
their women employees and include both preventive and remedial measures
to make the work environment safe for women employees. The Supreme
Court’s definition of sexual harassment includes “such un welcome sexually
determined behavior (whether directly or by implication) as physical contact
and advances; a demand or request for sexual favours; sexually coloured
remarks; showing pornography; any other unwelcome physical, verbal or non
verbal conduct of sexual nature”( The Supreme Court Guidelines on Sexual
Harassment at Workplace, Vishaka and others vs. state of Rajasthan and
others, 1997).While a significant number of women are in the workforce,
little is known about the extent to which, subsequent to the Vishaka
judgment, sexual harassment persists in the workplace, the kinds of actions
that are taken when it occurs and whether working women are even aware
of this judgment. The small amount of available evidence suggests that
sexual harassment in the workplace continues to be a common occurrence,
typically perpetrated by a person in a position of authority; the majority of
women do not take action or lodge an official complaint for fear of being
dismissed, losing their reputation or facing hostility or social stigma in the
workplace.
Some of the problems faced by women in workplace are
1. Verbal Harassment.
2. Sexual or physical harassment
3. Gender Discrimination.
Although the above said problems are not exhaustive in nature majority of
women in workplace are undergoing these under a crucial circumstances.
Laws and Redressal Machineries.
Sexual harassment at a workplace is considered violation of women’s
right to equality, life and liberty. It creates an insecure and hostile work
environment, which discourages women’s participation in work, thereby
adversely affecting their social and economic empowerment and the goal of
inclusive growth.
With more and more women joining the workforce, both in organized
and unorganized sectors, ensuring an enabling working environment for
women through legislation is felt imperative by the Government. Sexual
harassment of women at Workplace (Prevention, Prohibition and Redressal )
Act, 2013 contains provisions to protect every woman from any act of sexual
harassment irrespective of whether such woman is employed or not.
It was the need of the hour to enact a legislation protecting safety and
secure women in workforce from any kind of sexual harassment faced by
them in the workplace by fixing the responsibility on the employer as well
the District Magistrate or Additional District Magistrate or the Collector or
Deputy Collector of every district in the State or the District officer and laying
down a statutory Redressal mechanism.
Section 4 of the Act provides for the Constitution of Internal Complaints
Committee. It provides that every employer of a workplace shall constitute,
by an order in writing, a Committee to be known as the Internal Complaints
Committee”. It further provides that where the offices or administrative units
of the workplace are located at different laces or divisional or sub divisional
level, the Internal Committee shall be constituted at all administrative units
or offices.
Section 9 of the act provides for making of complaint of sexual
harassment. It provides that any aggrieved woman may , at her option,
make in writing a complaint of the sexual harassment at workplace to the
Internal Complaints Committee if so constituted or the Local Committee if an
internal committee is not constituted or if the complaint is against the
employer himself. The members of the Committee shall provide assistance
to the aggrieved women who prefer to give a complaint. Any legal heir of the
aggrieved woman can make a complaint on account of incapability of the
woman aggrieved to make a complaint.
Internal Complaints Committee at Madras High Court.
The Hon'ble Supreme Court of India in the order dated 17.07.2013 in
W.P. (C) No.162/2013 in Binu Tamta and another Vs. High Court of Delhi and
others, while setting Comprehensive Regulations viz., the Gender
Sensitization and Sexual Harassment of Women at the Supreme Court of
India (Prevention,
Prohibition and Redressal) Regulations, 2013 in place, has directed the High
Courts to formulate their own Regulations in the same manner and to ensure
that the same are implemented at the District level as well.
The High Court has framed “THE GENDER SENSITISATION & SEXUAL
HARASSMENT OF WOMEN AT THE MADRAS HIGH COURT – PRINCIPAL SEAT
AT CHENNAI AND MADURAI BENCH AT MADURAI – (PREVENTION,
PROHIBITION AND REDRESSAL) REGULATIONS, 2013” and “THE GENDER
SENSITISATION & SEXUAL HARASSMENT OF WOMEN AT THE SUBORDINATE
COURTS IN THE STATE OF TAMIL NADU / THE UNION TERRITORY OF
PUDUCHERRY (PREVENTION, PROHIBITION AND REDRESSAL) REGULATIONS,
2013”
The Internal Complaints Committee has also been constituted under the
chairmanship of Justice Mrs.Chitra Venkataraman including certain other
members belonging to the legal fraternity.
FACILITATIVE AND PROTECTIVE MEASURES MADE FOR WOMEN IN
WORKFORCE.
Safety/Health Measures
Section 22(2) of the Factories Act, 1948 provides that no woman shall
be allowed to clean, lubricate or adjust any part of a prime mover or of any
transmission machinery while the prime mover or transmission machinery is
in motion, or to clean, lubricate or adjust any part of any machine if the
cleaning, lubrication or adjustment thereof would expose the woman to risk
of injury from any moving part either of that machine or of any adjacent
machinery.
Section 27 of the Factories Act, 1948 prohibits employment of women
in any part of a factory for pressing cotton in which a cotton opener is at
work.
Prohibition of Night Work
Section 66(1)(b) of the Factories Act, 1948 states that no woman shall
be required or allowed to work in any factory except between the hours of 6
a.m. and 7 p.m.
Section 25 of the Beedi and Cigar Workers (Conditions of Employment)
Act, 1966 stipulates that no woman shall be required or allowed to work in
any industrial premise except between 6 a.m. and 7 p.m.
Section 46(1)(b) of the Mines Act, 1952 prohibits employment of
women in any mine above ground except between the hours of 6 a.m. and 7
p.m.
Prohibition of Sub-terrain Work
Section 46(1)(b) of the Mines Act, 1952 prohibits employment of
women in any part of a mine which is below ground.
Maternity Benefit
The Maternity Benefit Act, 1961 regulates the employment of women
in certain establishments for certain periods before and after child-birth and
provides maternity benefits. The Building and Other Constructions
(Regulation of Employment and Conditions of Service) Act, 1996 provides for
maternity benefit to female beneficiaries of the Welfare Fund.
Provisions for Separate Latrines and Urinals
Provision for separate latrines and urinals for female workers exist under the following:
Rule 53 of the Contract Labour (Regulation and Abolition) Act, 1970.
Section 19 of the Factories Act, 1948.
Rule 42 of the Inter State Migrant Workmen (RECS) Central Rules, 1980.
Section 20 of the Mines Act, 1952.
Section 9 of the Plantations Labour Act, 1951.
Provisions for Separate Washing Facilities
Provision for separate washing facilities for female workers exists under the following:
Section 57 of the Contract Labour (Regulation and Abolition) Act, 1970.
Section 42 of the Factories Act.
Section 43 of the Inter-State Migrant Workmen (RECS) Act, 1979.
Provision for Crèches
Provision for crèches exists under the following:
Section 48 of the Factories Act, 1948.
Section 44 of the Inter State Migrant Workmen (RECS) Act, 1979.
Section 12 of the Plantations Labour Act, 1951.
Section 14 of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966.
Section 35 of the Building and other Constructions (Regulation of Employment and Conditions of Service) Act, 1996.
Thus they are certain protective and facilitative measures found in Labour
Legislations in India given to women in workforce.
DECISIONS OF THE SUPREME COURT IN DETERMINING THE RIGHTS
OF WOMEN IN WORKFORCE
In C.B. Muthumma v. Union of India (1979) 4 SCC 260)4.4,
A Writ petition was filed by Ms Muthamma, a senior member of the Indian
Foreign Service, complaining that she had been denied promotion to Grade I
illegally and unconstitutionally. She pointed out that several rules of the civil
service were discriminatory against women. At the very threshold she was
advised by the Chairman of the UPSC against joining the Foreign Service. At
the time of joining she was required to give an undertaking that if she
married she would resign from service. Under Rule 18 of the Indian Foreign
Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1961, it was
provided that no married woman shall be entitled as of right to be appointed
to the service. Under Rule 8(2) of the Indian Foreign Service (Conduct and
Discipline) Rules, 1961, a woman member of the service was required to
obtain permission of the Government in writing before her marriage was
solemnised. At any time after the marriage she could be required to resign if
the Government was confirmed that her family and domestic commitments
were likely to come in the way of the due and efficient discharge of her
duties as a member of the service.
On numerous occasions the petitioner had to face the consequences of being
a woman and thus suffered discrimination, though the Constitution
specifically
under Article 15 prohibits discrimination on grounds of religion, race, caste,
sex or place of birth and Article 4 provides the principle of equality before
law.
The Supreme Court through V.R. Krishna Iyer and P.N. Singhal, JJ. Held that:
"This writ petition by Ms Muthamma, a senior member of the Indian
Foreign Service, bespeaks a story which makes one wonder whether Articles
14 and 16 belong to myth or reality. The credibility of the Constitutional
mandates shall not be shaken by governmental action or inaction but it is
the effect of the grievance of Ms Muthamma that sex prejudice against
Indian womanhood pervades the service rules even a third of a century after
Freedom. There is some basis for the charge of bias in the rules and this
makes the ominous indifference of the executive to bring about the
banishment of discrimination in the heritage of service rules. If high officials
lose hopes of equal justice under the rules, the legal lot of the little Indian,
already priced out of the expensive judicial market, is best left to guess."
Commenting further on the discriminatory rules the Court said
"Discrimination against woman, in traumatic transparency, is found in
this rule. If a woman member shall obtain the permission of government
before she marries. The same risk is run by government if a male member
contracts a marriage. If the family and domestic commitments of a woman
member of the service is likely to come in the way of efficient discharge of
duties, a similar situation may arise in the case of a male member. In these
days of nuclear families, intercontinental marriages and unconventional
behavior, one fails to understand the naked bias against the gentler of the
species."Expressing its opinion on Rule 18 of the Indian Foreign Service
(Recruitment, Cadre, Seniority and Promotion) Rules, 1961, the Court
observed:"At the first blush this rule is defiance of Article 16. If a married
man has a right, a married woman, other things being equal, stands on no
worse footing. This misogynous posture is a hangover of the masculine
culture of manacling the weaker sex forgetting how our struggle for national
freedom was also a battle against woman's thralldom. Freedom is indivisible,
so is justice. That our founding faith enshrined in Articles 14 and 16 should
have been tragically ignored vis-à-vis half of India's humanity, viz. our
women, is a sad reflection on the distance between Constitution in the book
and Law in action. And if the executive as the surrogate of Parliament makes
rules in the teeth of Part III, especially when high political office, even
diplomatic assignment has been filled by women, the46inference of diehard
allergy to gender parity is inevitable."
Striking down the rules as violating the principle of quality, it was said:
"We do not mean to universalize or dogmatize that men and women are
equal in all occupations and all situations and do not exclude the need to
pragmatise where the requirements of particular employment, the
sensitivities of sex or the handicaps of either sex may compel selectivity. But
save where the differentiation is demonstrable the rule of equality must
govern."
In Madhu Kishwar v. State of Bihar{ (1996) 5 SCC 145}4.8,
The Supreme Court dealt with the validity of the Chotanagpur Tenancy Act,
1908 of Bihar which denied the right of succession to Scheduled Tribe
women as violative of the right to livelihood. The majority judgment however
upheld the validity of legislation on the ground of custom of
inheritance/succession of Scheduled Tribes. Dissenting with the majority,
Justice K.Ramaswamy felt that the law made a gender-based discrimination
and that it violated Articles 15, 16 and 21 of the Constitution. In his
dissenting judgment he said:
"Legislative and executive actions must be conformable to and for
effectuation of the fundamental rights guaranteed in Part III, Directive
Principles enshrined in Part IV and the Preamble of the Constitution which
constitute the conscience of the Constitution. Covenants of the United
Nations add impetus and urgency to .eliminate gender-based obstacles and
discrimination .Legislative action should be devised suitably to constitute
economic empowerment of women in socio-economic restructure for
establishing egalitarian social order."
In Air India v. Nargesh Meerza ((1981) 4 SCC 335)4.5,
Nargesh Meerza filed a writ petition, In this case, the air-hostesses of the Air-
India International Corporation had approached the Supreme Court against,
again, discriminatory service conditions in the Regulations' of Air-India. The
Regulations provided that an air-hostess could not get married before
completing four-years of service. Usually an air-hostess was recruited at the
age of 19 years and the four-year bar against marriage meant that an air-
hostess could not get married until she reached the age of 23 years. If she
married earlier, shehad to resign and if after 23 years she got married, she
could continue as a married woman but had to resign on becoming pregnant.
If an air hostess survived both these filters, she 'continued to serve until she
reached the age of 35 years. It was alleged on behalf of the air-hostesses
that those provisions were discriminatory on the ground of sex, as similar
provisions did not apply to male employees doing similar work. The Supreme
Court upheld the first requirement that an air-hostess should not marry
before the completion of four years of service. The court held that:
"It was a sound and salutary provision. Apart from improving the
health of the employee it helps a great deal in the promotion and boosting
up of our family planning programme."
However, this argument given by the Court came in for criticism that
as the requirements of age and family planning were warranted by the
population policy of the State and once the State had fixed the age of
marriage, i.e. 18 years, the reasoning advanced for upholding the rule was a
camouflage for the real concern.
The Supreme Court struck down the Air-India Regulations relating to
retirementand the pregnancy bar on the services of Air-hostesses as
unconstitutional on the ground that the conditions laid down therein were
entirely unreasonable and arbitrary. The impugned Regulation 46 provided
that an air hostess would retire from the service of the corporation upon
attaining the age of 35 years or on marriage, if it took place within 4years of
service, or on first pregnancy, whichever occurred earlier. Under Regulation
7, the Managing Director was vested with absolute discretion to extend the
age of retirement prescribed at 45 years. Both these regulations were struck
down as violative of Article 14, which prohibits unreasonableness and
arbitrariness.
CONCLUSION
Female labour has been an important segment of the workforce of
India. With the changing Socio-economic scenario, women's productive roles
have assumed new dimensions. The observance of the International
Women's Year in the last quarter of the 20th century was a historic landmark
in the calendar of women's progress. Frankly speaking, it was in recognition
of crucial importance and need that women's participation has always been
necessary for the success of social and economic development. Over the
years, the main objective of the policies of the Government of India with
regard to female labour has been to remove the handicaps under which they
work, to strengthen their bargaining capacity, to improve their wages and
working conditions, to augment their skills and to open up better
employment facilities for them. It is hoped that Female Labour in India will be
well received in various academic
circles.