Globalisation, liberalisation, restructuring, merger 'manias', take- overs and shakeouts have become the order of the day. There is an inflow of foreign investment and multinationals into India. But several sectors are wary of liberalisation. Majority of the workers and labour unions are also among the opponents of privatisation.
According to the latest annual report of the Labour Ministry , there has been a gradual shift of women workers from the organised to the unorganised sectors. It is reported that the number of women workers in the organised factories has dwindled to a mere 10 per cent. The ongoing economic restructuring has further strengthened this trend.
The Labour Ministry figures show that the average daily employment of women in factories has remained more or less static while the share of women's employment in organised factories stood at 12 per cent in 1951 (subsequent figures show a reduction in the number).
Over 80 per cent of women are employed in the agriculture sector as cultivators and labourers. Majority of women workers in the urban areas are found in theunorganised sectors like home-based industries, construction work, petty trades and services, and so on.
In the organised sector, it is only on plantations that there is a
high concentration of women workers, accounting for 51 per cent of
the total workforce. In the public sector electronics industry , women
workers account for a meagre 14 per cent.
Apart from being marginalised in the organised sector, women workers
still continue to.face rampant wage discrimination. There are various factors
contributing to stratification of the labour market- social, economic,
legal and institutional. Along with other dimensions, sex also acts as
a basis for discrimination against women in the labour market in the following
ways:
1. The National Perspective Plan has recognised women for the first time in their holistic dimension rather than as sectors and segments of national policy and strategy. The critical importance of the question of women in the development process have been recognised and mechanisms/policies/strategies have been adopted to respond to the special needs.
2. Changing economies and the desire of women to have both career and
motherhood. Women not only want both work and
family but seem to need both.
3. There is still no economic value imputed to household work, though some awareness has been generated recently.
4. New opportunities for women have emerged in foreign exchange earning export industries like garment, leather, food processing and electronic goods, but they are subject to occupational health hazards and oppressive work conditions. Export oriented industries, where price competitiveness is necessary for a firm's survival, are seekers of cheap labour and women do constitute cheap labour.
5. According to the 1991 census, male workers number 164 mil- lion while female workers number 72.2 million. Female employment is still so per cent below that of male employment.
6. Nearly 80 per cent of the women workers in the country are in agriculture.
7. The majority of female workers in India are under the categories of 'casual work' and 'no work'.
8. There are 6 per cent women in the organised sector and 94 percent in the unorganised sector (India, 1991).
9. About 60-70 per cent of women do their work at home and this helps the owner avoid social labour legislations (India, 1991).
10. There is a growing informalisation of women's work.
11. With all the difficulties in estimation, the number of women in the unorganised sector is many times more than that of organised sector. The bulk of the female work is in the unorganised sector. They work under inhuman working and living conditions with no legal protection.
12. According to India, 1991 there were 264 million female population out of which 132 million females were in the working age group of 14-50 years.
13. Discrimination on the basis of sex prevails mostly in the unorganised and informal sectors where workers are less aware of their rights and lack bargaining capacity.
14. There is a lack of trade union consciousness among women workers.
15. The male-female disparities in earning continue to be glaring as revealed by the National Sample Survey Organisation (NSSO) and the Rural Enquiry Reports. According to NSSO 1987, male-female difference in earnings are more pronounced in rural areas than in urban areas.
16. The existing techniques of data collections and surveys are not able to capture all the dimensions of women's economic contribution. Home-based work is one such example.
Laws Relating to Women Workers
There are two directives specifically applicable to women -one for
equal pay for equal work (Article 39[d]) and the second for a just and
humane conditions of work and maternity relief (Article 42). The directive
principles of State policy in our Constitution give expression to several
highly valued human rights. These principles sometimes take the form of
concomittant rights, which are nothing but the rights which facilitate
exercise of some of the fundamental rights. All Indian laws get their sanction
from the Indian Constitution which guarantees justice, liberty and equality
of status and of opportunity for all citizens. Article 14 of the Constitution
states that 'the State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India'.
Articles 15(1) and 16(2) ban discrimination on the ground of sex. Article
15(3) provides that the State may make special provisions for women.
A large number of the labour laws are sex neutral. For example, the Industrial Disputes Act, 1947, and the Payment of Bonus Act, 1965. There are various provisions in our laws which provide special protections and facilities for women. For instance, Section 22(2) of the Factories Act, 1948 prohibits women's employment in dangerous and hazardous tasks. There are specific limits on an amount of weight a women may carry .Section 34(2) empowers the State Government to make rules for that purpose. A women can be made to work only between 6.00 a.m to 7.00 p.m. (Section 66[1], [6]). Similarly the Mines Act, 1952 and the Plantations Labour Act, 1951, contain special provisions relating to hours of work and maternity and other benefits. Lastly there are two laws which are gender specific and have been specially enacted with the women workers in view. These are the Equal Remuneration Act, 1976 and the Maternity Benefit Act, 1961. The following two tables give a broad overview of the various legislations applicable to Indian workers.
These legislations raise the following issues.
1. The factory legislations themselves are not precise on the concept
of permanent, temporary , casual and contract employment. The Employees
State Insurance Act specifies that any worker in the factory sector is
eligible for the benefit from the first day of employment though in practice
permanent identity cards are normally issued after thirteen weeks of employment.
2. The Equal Remuneration Act, 1976, was passed to prevent discrimination against women in recruitment and pay and to comply with the constitutional mandates. Despite this Act, women continue to occupy low status job. The definition of 'same work' or 'work of similar nature' leaves much to be desired. In India, as in most other countries, there are many jobs which are sex- based,. Though the Act was passed in 1976, it is one of the least invoked legislations.. There have been some matters before the courts as in Air India vs. Nargesh Meerza which is popularly known as the Air Hostesses case, wherein, service rules made by Air India were challenged as being gender discriminatory. Air India rules provided that an air hostess who joined service at the age of nineteen could not get married until completion of four years of service. If she married after completing four years service, she would lose her job on first pregnancy .The retiring age for male pursers was 58 whereas for air hostesses it was 35 years. These rules clearly discriminated against air hostesses because they were women specific and, thus, violated the constitutional prohibition against gender discrimination in public sector organisations. As far as the first rule was concerned the Supreme Court gave in to the population argument. But, as far as the second rule was concerned the court agreed that requiring an air hostess to retire at the age of 35 while allowing male pursers to continue to serve unti158 was violative of the right to equality. There are other instances of sexist bias of public sector enterprises. For example, in the case of Neera Mathur vs. Life Insurance Corpo- ration of India (UC) in which Neera Mathur had applied for a post in the LIC. she was later discharged from service as it was alleged that she had given a false declaration which every female candidate was required to file at the time of medical examination. It was held in this case that the particulars furnished in the declaration were indeed embarrassing, if not humiliating.
The proposition of 'equal pay for equal work' has several practical difficulties. The courts have used different expressions to indicate that persons claiming the benefit of this principle must be performing identical work. With the privatisation wave sweeping in, some judicial mechanism needs to be developed to ensure the application of this principle in the private sector. There are instances when women were appointed ten years ago and they have still not been regularised while male workers appointed in the same year have not only been regularised, but also promoted.
3. The percentage of women workers in the organised sector has fallen due to the emergence of home-based production which offers tremendous advantages to employers. The unorganised sector wherein the majority of women work is not governed by the Minimum Wages Act, 1948; Factories Act, 1948; Contract Labour (Regulation and Abolition) Act, 1970, and so on. Hence it offers no guarantee of minimum wage or security of tenure or gratuity or pension or paid leave. The employer-employee relationship is always tilted in favour of the former.
4. There is an increasing number of women in the manufacturing sector on a contract basis. There is also widespread misuse of the practice of contract labour. The various statutory rights like bonus; provident fund, paid leave, gratuity, and so on are denied to the workers, as they are employed through an intermediate, parasitic class of contractors.
5. The Plantations Labour Act, 1951, is of special relevance to women workers. The definition of the term 'family' in Section 2(ee) of the Act needs revision. The parents of the female worker are not included in the definition.
6. Section 2(1) (n) of the Workmen's Compensation Act, 1923, excludes from its definition 'of workmen' a person whose employment is of casual nature. The very nature of women's work today falls in the category of' casual labour' and, hence, they are out of the ambit of this Act.
7. The Beedi and Cigar Workers (Conditions of Service) Act, 1966 is the only labour enactment that deals with home workers. Similar enactments are needed for home workers in other occupations as majority of home-based workers are women.
8. The law places the responsibility on the employer who, for that purpose, needs to be identified precisely. But in respect of a large number of women in the unorganised sector, either the employer keeps changing frequently as in agriculture or construction work, or there is no direct relationship with the ultimate employer as in beedi rolling. fu respect to all such categories where the normal pattern of labour laws may not be applicable, it will be necessary to evolve some kind of a regulatory mechanism.
9. The enforcement machinery under the various legislations need to be reviewed. There has to be greater sensitisation and understanding of the problems of working women.
10. Article 21 of the Constitution of India entails the right to personal liberty .Obviously, it comprises the right to be or not to be a parent; the right to use or not to use contraceptives; the right to or not to sterilise oneself. It also includes the right to" terminate pregnancy. The Medical Termination of Pregnancy Act liberalised the conditions for induced abortion since 1972 but it still has far to travel on the path of liberalising the policy. To make the abortion law more effective there is a need to give the woman the absolute legal right to decide about the number of children she wishes to have. The scope of the Maternity Benefit Act, 1961, needs to be extended to several other establishments. The penalties under this Act need to be revised.
11. Certain organisations like Self Employed Women's Association (SEWA) have made attempts to mobilise and organise self-employed and home-based women workers in the informal sector. These organisations focus on developmental interventions and are worthy of emulation.
12. We do need legislative measures and other measures to implement the return to labour market of women who have left for family reasons and provisions for part-time work.
13. A glaring omission in the labour legislations are provisions for sexual harassment. Sexual harassment is a growing menace and includes many forms of unwanted sexual attention that occur in the workplace. At present it is the criminal laws which have to be involved to combat sexual harassment. The labour legislations need to be reviewed to include this form of practice. Though not often brought to light, this is a growing problem in India. In a recent instance, Rupen Deol Bajaj, an Indian Administrative Services Officer, challenged the molestation and sexual harassment meted to her by a high ranking, 'much feared' police officer Mr. K.P.S. Gill in July 1988. The High Court had said that the act complained of was so trivial that no reasonable person would complain about it. The Supreme Court found this absolutely erroneous. The judgement of the Supreme Court was a triumphant outcome in the absence of a law dealing with sexual harassment.1
14. The relatively low degree of unionisation amongst women explains their low bargaining positions. There is a lack of trade union consciousness among women workers. The percentage of women trade union members has remained static at 10 per cent between 1986-1987.
15. Women's unpaid household work is usually not valued or considered a contribution to the economy. The economic value for household work will greatly enhance women's status in the household and also the ability to participate outside the home.
16. The legal provisions for women relating to equal pay maternity benefits,
night work, and so on, have resulted in discrimination in employing women
labour altogether. The working
conditions of the export-oriented industries earning tremendous foreign
exchange for the country, need to be regulated.
Towards Gender Justice at the Workplace
Though law alone cannot bring about social change, it is an instrument
to facilitate this change. India is still a society predominantly based
on norms of patriarchy and women workers face the ideology of patriarchy
in labour. In fact, several of these legislations perpetuate patriarchy.
Besides, the proliferation of multilateral trade agreements, the globalisation
of the capital markets and the emergence of borderless business operations,
are shifting the very basis of the employment scenario in India.
The principle of integrating women into all phases of the development
process and the importance of women's contribution to achievement of national
economic and social goals have now become widely accepted throughout the
world.
The empowerment of women at the workplace is intended to eliminate their subordination and establish gender equality. Law can create such empowerment through conferring rights to the women workers and by imposing liabilities on the employers and by strengthening the implementation and enforcement machinery and facilitating access to legal services.
Another method of empowerment is by legal literacy. Women can assert their rights only if they are aware of them. Therefore, educating them of their legal rights at the workplace can go along way in ensuring justice at the workplace.
The need of the hour is to look not only at the sustainable development but at a just equitable and balanced development. The debate on women's rights at the workplace is, thus, not only a legal, social or an economic issue, but an issue with very deep political and cultural dimension.
1. On August 6, 1996, the former Police Chief,K.P.S. Gill was convicted by the Chief Judicial Magistrate (CJM) Chandigarh, under Sections 354 and 509 of the Indian Penal Code, for outraging the modesty of a woman. The CJM has given a month's time for appeal to the sessions court against the order (The Times of India, 1996).
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