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.