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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

S.S. JAIN SUBODH LAW COLLEGE

A CRITICAL STUDY OF THE PROVISIONS RELATED TO WOMEN


UNDER CONSTITUTION & LABOUR LAW

SUBMITTED TO SUBMITTED BY
MS. AASHI SAXENA GARGI SHARMA

ASSISTANT PROFESSOR OF LAW 6TH SEMESTER (SEC – A)

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

DECLARATION

I, Gargi Sharma, do hereby declare that, this research project titled ‘A Critical Study of the
Provisions related to women under Constitution & Labour Law’ is an outcome of the research
conducted by me under the guidance of Ms. Aashi Saxena (Assistant Professor of Law) at S.S.
Jain Subodh Law College in fulfilment for the award of the degree of B.A.LL.B. at the
University of Rajasthan.

I also declare that, this work has taken assistance from other sources and necessary
acknowledgements for the same have been made at appropriate places.

I further declare that, this work has not been submitted either in whole or in part, for any degree
or equivalent in any other institution.

09-11-20

Gargi Sharma

S.S. Jain Subodh Law College

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

CERTIFICATE

This is to certify that the research project titled ‘A Critical Study of the Provisions related to
women under Constitution & Labour Law’ submitted by Gargi Sharma in fulfilment for the
award of the degree of B.A.LL.B from Rajasthan University at S.S. Jain Subodh Law College is
the product of research carried out under my guidance and supervision.

Ms. Aashi Saxena

Assistant Professor of Law

S.S. Jain Subodh Law College

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

ACKNOWLEDGEMENT

I acknowledge with profundity, my obligation to Almighty God and my parents for giving me
the grace to accomplish my work, without which this project would not have been possible.

I express my heartfelt gratitude to my respected faculty Ms. Aashi Saxena (Assistant Professor of
Law) for providing me with valuable suggestions to complete this research project.

I am especially grateful to all my faculty members at S.S. Jain Subodh Law College who have
helped me imbibe the basic research and writing skills.

Lastly, I take upon myself, the drawbacks and limitations of this study, if any.

09-11-2020

Gargi Sharma

S.S. Jain Subodh Law College

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

Table of Contents

CHAPTER – 1 INTRODUCTION..................................................................................................6
CHAPTER - 2 PROVISONS UNDER THE CONSTITUTION OF INDIA................................10
CHAPTER – 3 PROVISONS UNDER THE LABOUR LAW.....................................................13
CONCLUSION..............................................................................................................................20
BIBLIOGRAPHY..........................................................................................................................21

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

CHAPTER – 1
INTRODUCTION

India’s Labor Force Will Soon Become the Largest in the World.1 According to the information
provided by the office of Registrar General & Census Commissioner of India, As per Census
2011,2 the total number of female workers in India is 149.8 million and female workers in rural
and urban areas are 121.8 and 28.0 million respectively. Out of total 149.8 million female
workers, 35.9 million females are working as cultivators and another 61.5 million are agricultural
laborers. Of the remaining female workers, 8.5 million are in household Industry and 43.7
million are classified as other workers. clear understanding that whatever is good and is due to
the labour must be given. Industry owners should treat the workers as co-partners. Similarly,
“workers in the country must understand fully that if they desire to secure their due place in the
industrial economy of the country, they must think more in terms of responsibilities and duties
and not interpret independence for impertinence and liberty for licence. Sabotage and violence
of all kinds and bitterness in thought, word and deed mustbe eschewed. Then alone a Socialist
Democracy is possible in this country and industrial relations of a higher order can be
maintained for the benefit of the country and the community.”

WOMEN AND LABOUR LAWS

Women constitute a significant part of the workforce in India but they lag behind men in terms
of work participation and quality of employment. According to Government sources, out of 407
million total workforce, 90 million are women workers, largely employed (about 87 %) in the
agricultural sector as labourers and cultivators. In urban areas, the employment of women in the
organised sector in March 2000 constituted 17.6 % of the total organised sector.The situation
regarding enforcement of the provisions of this law is regularly monitored by the Central
Ministry of Labour and the Central Advisory Committee. In respect of an occupational hazard
1
https://www.catalyst.org/knowledge/women-workforce-india#footnote23_dm40jni, accessed 12-09-2020.
2
Government of India, Ministry of Labour, https://labour.gov.in/womenlabour/about-women-labour accessed 12-
09-2020.

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

concerning the safety of women at workplaces, in 1997 the Supreme Court of India announced
that sexual harassment of working women amounts to violation of rights of gender equality. As
a logical consequence it also amounts to violation of the right to practice any profession,
occupation, and trade. The judgement also laid down the definition of sexual harassment, the
preventive steps, the complaint mechanism, and the need for creating awareness of the rights of
women workers.

LEGISLATIVE SUPPORT FOR WOMEN

India has witnessed many social changes post-independence. Today, women have come out of
homes and established an identity of their own in different areas of work. Though most Indian
adult women make an economic contribution in one form or another (including housework,
working in family land etc.), much of their work is not documented. This is because majority of
women workforce is employed in the unorganized sector and working for family is considered
as responsibility which should not be counted. The Economic survey data for 2007-08 reveals
that the overall percentage share of female participation in work was comparatively low as
compared to thatof male.

Owing to cultural restrictions and family responsibility, women participation in the formal
economy is limited. Some other concerns that affect working women relate to gender
discrimination, quantum of payment, safety at work place, working hours and conditions of
employment that are sensitive to cultural and religious bondages as well as family
responsibilities. Indian legislature has been active on this front. Its main focus is on reducing
inequality of any sort, and thereby promoting a fair, non-discriminatory and safe work
environment.

Indian political and administrative structure is multi-layered. At the apex is the central
government, under which there are states and local self-bodies. Responsibilities for legislation
are also divided accordingly, so that autonomy of states is protected. In labour legislation, both
center and states have powers to enact suitable legislations.

The government has given greater focus to issues relating to women through creation of an
independent Ministry of Women and Child Development, initiation of legislation that has taken

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

the country closer to complete legal equality for women, gender budgeting and initiation of
programs for greater inclusion of women in all walks of life.

There are over 45 labour legislations from the Central Government and the number of
legislations enacted by the State Governments is close to four times that of the Central Act. The
government hasso far passed/amended 5 women specific legislations. However, effectiveness of
the laws can be seen/felt if women’s are politically and socially empoweredclear understanding
that whatever is good and is due to the labour must be given. Industry owners should treat the
workers as co-partners. Similarly, “workers in the country must understand fully that if they
desire to secure their due place in the industrial economy of the country, they must think more in
terms of responsibilities and duties and not interpret independence for impertinence and liberty
for licence. Sabotage and violence of all kinds and bitterness in thought, word and deed mustbe
eschewed. Then alone a Socialist Democracy is possible in this country and industrial relations
of a higher order can be maintained for the benefit of the country and the community.”

India has witnessed many social changes post-independence. Today, women have come out of
homes and established an identity of their own in different areas of work. Though most Indian
adult women make an economic contribution in one form or another (including housework,
working in family land etc.), much of their work is not documented. This is because majority of
women workforce is employed in the unorganized sector and working for family is considered as
responsibility which should not be counted. The Economic survey data for 2007-08 reveals that
the overall percentage share of female participation in work was comparatively low as compared
to that of male.

Owing to cultural restrictions and family responsibility, women participation in the formal
economy is limited. Some other concerns that affect working women relate to gender
discrimination, quantum of payment, safety at work place, working hours and conditions of
employment that are sensitive to cultural and religious bondages as well as family
responsibilities. Indian legislature has been active on this front. Its main focus is on reducing
inequality of any sort, and thereby promoting a fair, non-discriminatory and safe work
environment.

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

Indian political and administrative structure is multi-layered. At the apex is the central
government, under which there are states and local self-bodies. Responsibilities for legislation
are also divided accordingly, so that autonomy of states is protected. In labour legislation, both
center and states have powers to enact suitable legislations.

The government has given greater focus to issues relating to women through creation of an
independent Ministry of Women and Child Development, initiation of legislation that has taken
the country closer to complete legal equality for women, gender budgeting and initiation of
programs for greater inclusion of women in all walks of life.

There are over 45 labour legislations from the Central Government and the number of
legislations enacted by the State Governments is close to four times that of the Central Act. The
government has so far passed/amended 5 women specific legislations. However, effectiveness of
the laws can be seen/felt if women’s are politically and socially empowered.

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

CHAPTER - 2
PROVISONS UNDER THE CONSTITUTION OF INDIA

The Constitution of India not only grants equality to women but also empowers the State to
adopt measures of positive discrimination in favour of women for neutralizing the cumulative
socio economic, education and political disadvantages faced by them. Fundamental Rights,
among others, ensure equality before the law and equal protection of law; prohibits
discrimination against any citizen on grounds of religion, race, caste, sex or place of birth, and
guarantee equality of opportunity to all citizens in matters relating to employment. Articles 14,
15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the Constitution are of specific importance in this
regard.

Constitutional Privileges

(i) Equality before law for women (Article 14)

(ii) The State not to discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them (Article 15 (i))

(iii) The State to make any special provision in favour of women and children (Article 15 (3))

(iv) Equality of opportunity for all citizens in matters relating to employment or appointment to
any office under the State (Article 16)

(v) The State to direct its policy towards securing for men and women equally the right to an
adequate means of livelihood (Article 39(a)); and equal pay for equal work for both men and
women (Article 39(d))

(vi) To promote justice, on a basis of equal opportunity and to provide free legal aid by suitable
legislation or scheme or in any other way to ensure that opportunities for securing justice are not
denied to any citizen by reason of economic or other disabilities (Article 39 A) (vii) The State to
make provision for securing just and humane conditions of work and for maternity relief (Article
42)

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

(viii) The State to promote with special care the educational and economic interests of the
weaker sections of the people and to protect them from social injustice and all forms of
exploitation (Article 46)

(ix) The State to raise the level of nutrition and the standard of living of its people (Article 47)

(x) To promote harmony and the spirit of common brotherhood amongst all the people of India
and to renounce practices derogatory to the dignity of women (Article 51(A) (e))

(xi) Not less than one-third (including the number of seats reserved for women belonging to the
Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct
election in every Panchayat to be reserved for women and such seats to be allotted by rotation to
different constituencies in a Panchayat (Article 243 D(3))

(xii) Not less than one- third of the total number of offices of Chairpersons in the Panchayats at
each level to be reserved for women (Article 243 D (4))

(xiii) Not less than one-third (including the number of seats reserved for women belonging to the
Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct
election in every Municipality to be reserved for women and such seats to be allotted by rotation
to different constituencies in a Municipality (Article 243 T (3))

(xiv) Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the
Scheduled Tribes and women in such manner as the legislature of a State may by law provide
(Article 243 T (4))

SPECIAL INITIATIVES FOR WOMEN

(i) National Commission for Women: In January 1992, the Government set-up this
statutory body with a specific mandate to study and monitor all matters relating to the
constitutional and legal safeguards provided for women, review the existing
legislation to suggest amendments wherever necessary, etc.
(ii) Reservation for Women in Local Self -Government: The 73rd Constitutional
Amendment Acts passed in 1992 by Parliament ensure one-third of the total seats for
women in all elected offices in local bodies whether in rural areas or urban areas.

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

(iii) The National Plan of Action for the Girl Child (1991-2000) : The plan of Action is to
ensure survival, protection and development of the girl child with the ultimate
objective of building up a better future for the girl child. (iv) National Policy for the
Empowerment of Women, 2001: The Department of Women & Child Development
in the Ministry of Human Resource Development has prepared a “National Policy for
the Empowerment of Women” in the year 2001. The goal of this policy is to bring
about the advancement, development and empowerment of women.

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

Chapter – 3
PROVISONS UNDER THE LABOUR LAW

Crèche Facility for Women Employees:

As per the provisions under Section 48 of the Factories Act, 1948 “Any factory employing 30 or
more women workers are required to provide creche facilities for the use of children under the
age of 6 years for the women employees.”

Provision for crèches exists under the following:

 The Factories Act, 1948;


 The Mines Act, 1952;
 The Plantation Labour Act, 1951;
 The Building and Other Construction Workers’ (Regulation of Employment and
Conditions of Service) Act, 1996;
 The Beedi and Cigar Workers (Conditions of Employment) Act, 1966;
 The Contract Labour (Regulation and Abolition) Act, 1970;
 The Inter-State Migrant Workmen (Regulation of Employment and Conditions of
Service) Act, 1979.

Safety/Health Measures

Provides that no woman shall be allowed to clean,


1 Section 22 lubricate or adjust any part of a prime mover or of
The Factories Act, 1948
. (2) any transmission machinery while the prime mover
or transmission machinery is in motion

2 Section 27 The Factories Act, 1948 Prohibits employment of women in any part of a
. factory for pressing cotton in which a cotton-opener

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

is at work.

No woman employee shall lift, carry, or move by


3 hand or on the head of any material, article, tools, or
Section 34 The Factories Act, 1948
. appliance exceeding the maximum limit in weight of
30 kilograms

4 Section There shall be at least one women (worker) on the


The Factories Act, 1948
. 46 (2) (d) Canteen Managing Committee.

Section
5 41, Contract Labour (Regulation
Separate Restrooms and Canteens
. Section and Abolition) Act, 1970
43,

The Inter-State Migrant


Section
6 Workmen (Regulation of
40, Separate Restrooms and Canteens
. Employment and Conditions of
Section 41
Service) Act, 1979

Prohibition of work in Hazardous Occupations

Section 22(2) of the Factories Act, 1948 prohibits women to work with machinery in motion or
in any case whatsoever.

Also Section 87 of the Factories Act, 1948 empowers the State Government to prohibit
employment of women in dangerous operations.

The Factories Act also prohibits the employment of women in pressing cotton where a cotton-
opener is at work. There is a proviso that if the feed end of a cotton-opener is in a room separated
from the delivery end by a partition to the roof or to such height as the inspector may in any
particular case specify in writing, women may be employed on the side of the partition where the
feed end is situated under Section 27.

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

Section 34 states that Maximum Permissible Load To safeguard women against the dangers
arising out of lifting to heavyweight, the Factories Act authorize the appropriate Governments to
fix the maximum load that may be lifted by women. Rules framed by all the State Governments
(Except U.P.) have fixed the following maximum weights for women employed in factories.

1. Adult Females 65 lbs

2. Adolescent Females 55 lbs

3. Children Female 30 lbs

Prohibition of Night Work

Section States that no woman shall be required or allowed to work


1. 66 (1) The Factories Act, 1948 in any factory except between the hours of 6 a.m. and 7
(b) p.m.

The Beedi and Cigar Stipulates that no woman shall be required or allowed to
Section
2. Workers (Conditions of work in any industrial premise except between 6 a.m. and
25
Employment) Act, 1966 7 p.m.

Section
Prohibits employment of women in any mine above
3. 46 (1) The Mines Act, 1952
ground except between the hours of 6 a.m. and 7 p.m.
(b)

Shops and Establishment No women shall be required or allowed to work in any


4. –
Act, 1953 establishment after 9:30 PM

Except with the permission of the State Government, no


woman or child worker shall be employed in any
Section The Plantation Labour Act, plantation otherwise than between the hours of 6 a.m. and
5.
25 1951 7 p.m.: Provided that nothing in this section shall be
deemed to apply to midwives and nurses employed as such
in any plantation.

6. – The Inter-State Migrant No women shall be required or allowed to work in any

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

Workmen (Regulation of
Employment and
establishment after 9:30 PM
Conditions of Service) Act,
1979

In Triveni K.S. and Others v. Union of India and others, Section 66(1)(b) of the Constitution was
challenged to be discriminatory on the basis of sex. The High Court held that women should not
be employed for their own safety and welfare even during the night was an ideology of an
erstwhile age that was out of tune with modern requirements for equality, especially between
sexes. With regard to an exception provided to the fishing and canning industry, this was
postulated that it would seem a ludicrous assertion that women in these sectors would be
completely safe but still not safe in the textile industry. Consequently, Section 66(1)(b) of the
Act was ruled unconstitutional by the High Court and proclaimed that females in the fishing
industry should also be given more or less the same protection as some of those provided for.

 Provisions for Separate Latrines and Urinals

1 Section
The Factories Act 1948
. 19

2 Section
The Mines Act 1952
. 20

3
Section 9 Plantations Labour Act 1951
.

4
Rule 42 The Inter-State Migrant Workmen (RECS) Central Rules 1980
.

5
Rule 53 The Contract Labour (Regulation and Abolition) Act 1970
.

6 The Building and Other Construction Workers’ (Regulation of Employment and


– 1996
. Conditions of Service) Act

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

7
– The Beedi and Cigar Workers (Conditions of Employment) Act 1966
.

Latrine and Urinal Facilities Separate conservancy facilities are provided to women workers in
Factories Act, 1948.  

The Factories Act, 1948 makes it obligatory for every factory to maintain an adequate number of
latrines and urinals of the prescribed type separately for men and women workers. Such facilities
are to be conveniently situated and accessible to workers at all times while they are in the
factory.   Every latrine is required to be undercover and so partitioned off as to secure privacy
and have a proper door and fastenings.   Sweepers are required to be employed to keep latrines,
urinals and washing places clean.  Standard of construction and the scale of the latrine
accommodation to be provided for men and women workers are contained in the rules framed by
the concerned state government.

 Provisions for Separate Washing Facilities:

1
Section 42 The Factories Act 1948
.

Section 43,
2
Section 41 (4), The Inter-State Migrant Workmen (RECS) Act 1979
.
Section 41 (9)(ii)

3 Section 57,
The Contract Labour (Regulation and Abolition) Act 1970
. Section 44

4 The Building and Other Construction Workers’ (Regulation of


Section 34 1996
. Employment and Conditions of Service) Act

According to Section 42 (1)(b) of the Factories Act,1948 separate and adequately screened
washing facilities shall be provided for the use of male and female workers. Such facilities shall
be conveniently accessible and shall be kept clean. However, the State Government is
empowered to prescribe standards of adequate and suitable facilities for washing.
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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

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.

Provisions of Information Center under Factories Act, 1948

Each factory shall set up an information center for female workers to provide them with
information on the protection measures in accordance with the law and the rules.

Exclusive Provisions for Women Workers

There are also numerous other facilities to be offered to factory workers, such as women’s
washing and bathing facilities, toilets( separate latrines and urinals for women), toilets and
canteens. Public utility amenities will be offered separately for women at work.

A female worker shift timing need not be altered except after a weekly holiday or a totally
different holiday. Thus, employees (female) now have the right to receive at least a 24-hour
notice for their change in shift timing.

Female workers are prohibited from working in a dangerous occupation, from pressing cotton
where a cotton-opener is at work and from limiting the maximum allowable load.

The Factories Act also stipulates the employers employing 30 or more women workers to
provide for cheches for children of the women workers, aged 6 years and below.

No woman worker shall be allowed to work in a factory except between 6 a.m. and 7 p.m. The
State Governments may by notification vary the limits as set out in this point, but in no
circumstance will women employees be allowed to work between 10 p.m. and 5 a.m.

In 1987, the Act was amended, establishing safeguards against its use and handling of hazardous
materials and protocols for the establishment of hazardous industries.

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

The Equal Remuneration Act, 1976 (“Equal Remuneration Act”)

Here again, we find discussions and cases of wage discrimination, in which women workers are
paid less than their male counterparts. This is a story throughout the world, even in developed
countries.

Article 39 of our Constitution directs that “States shall, in particular, have policies towards
securing equal pay for equal work for both men and women.”

Under the Equal Remuneration Act:

Employers shall pay equal pay to man and a woman who perform the same or even similar work.

Employers could not legally discriminate between men and women in the recruitment process
unless there is a legal limit to the employment of females in certain sectors.

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

CHAPTER – IV

CONCLUSION

It can be seen from the multiple special provisions created for the welfare of women that both at
the national and international levels, there has been a movement towards the empowerment of
women in labor law. There has been a transparent move towards creating equal pay, equal access
to opportunity, bar, and redressal of harassment and provision of maternity benefits a reality in
Republic of India. in fact, a majority of laws in respect to the special provisions for women are
modeled after the International Labour Organization conventions.

India being a founding member of the International Labour Organization has tried terribly
onerous to stick to the standards provided by the International Labour Organization : The special
rights provided to women in various labour laws (i.e. The Factories Act, 1948, The Mines Act,
1952, The Plantation Labour Act, 1951, The Building and Other Construction Workers’
(Regulation of Employment and Conditions of Service) Act, 1996, The Beedi and Cigar Workers
(Conditions of Employment) Act, 1966, The Contract Labour (Regulation and Abolition) Act,
1970, The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service)
Act, 1979, The Maternity Benefit Act, 1961, The Employees’ State Insurance Act, 1948, The
Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, The Payment of Gratuity
Act, 1972, and The Workmen’s Compensation Act, 1923, Minimum Wages Act, 1948, Payment
of Wages Act, 1936 and Equal Remuneration Act, 1976) are proof of this.

However, it is important to note that some of these protective legislations have backfired and
proved to be counterproductive in nature. The only way to solve such issues in socially rather
than legally, i.e. by making the work environment safer through social intervention, legal rules
that are paternalistic in nature can be relaxed. The next level of effort that India needs to make is
to develop effective implementation and redressal mechanisms. The best way to ensure effective
implementation of these provisions and redressal of any complaints is to begin implementation at
a grassroots level, i.e. at the level of individual enterprises, and employers. This will ensure that
the actions are more specific in nature and will bring about more concrete outcomes.

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A Critical Study of the Provisions related to women under Constitution & Labour Law 2020

CHAPTER V

BIBLIOGRAPHY

Books

 S N Mishra, Labour & Industrial Laws, Central Law Publications, 2011


 SC Tripathi, Law Relating to Women & Children, Central Law Publications, 2017
 P R N Sinha & Indubala, Labour & Social Welfare, Bharti Bhawan, 2016
 Pankaj Tiwary & Anshu Tiwary, Industrial Relations, Trade Unionism & Social
Problems (Pratiyogita Sandarbh Publication)

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