Women in Workforce- Challenges, Problems and Measures
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Women in Workforce- Challenges, Problems and Measures Document Transcript

  • 1. 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
  • 2. 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
  • 3. 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
  • 4. 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
  • 5. 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
  • 6. 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.
  • 7. 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.
  • 8. 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.
  • 9. 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
  • 10. 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 EmploymentUnemployment 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 mid1990s, to 29% in 2004-05, to 23% in 2009-10 and 22.5% by 2011-12.
  • 11. 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.
  • 12. 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.
  • 13. 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.
  • 14. 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
  • 15. 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.
  • 16. 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.
  • 17. 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.
  • 18. 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
  • 19. 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,
  • 20. 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."
  • 21. 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 AirIndia 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 airhostess 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,
  • 22. 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.