SYMBIOSIS LAW SCHOOL, PUNE

LABOUR LAW II INTERNAL I

THE LACUNAE OF MODERN LABOUR

LAWS:
A CRITICAL ANALYSIS OF ISSUES FACED BY WOMEN
EMPLOYED IN URBAN AREAS IN INDIA

SUBMITTED BY:-
NAME: FORAM PATHAK
IV YEAR, DIVISION E, BA LLB
PRN: 18010125423
TOTAL WORDS: 1973
 TABLE OF CONTENTS
INTRODUCTION .........................................................................................................................................................3

IDENTIFICATION OF ISSUE: THE TREND OF DECREASE IN WORK FORCE PARTICIPATION ........4

CRITICAL ANALYSIS OF THE ISSUES FACED BY WOMEN ..........................................................................4

THE LACUNAE IN THE LAWS: THE CAUSES OF DISPARITY ..........................................................................................4

THE STATUS QUO ........................................................................................................................................................6

CONCLUSION ..............................................................................................................................................................8

PAVING THE WAY FORWARD ......................................................................................................................................9

Need for Affirmative Action ...................................................................................................................................9
Need for Dynamic and not Tokenistic Legislations ...............................................................................................9
Need for Gender Sensitization .............................................................................................................................10

ANNEXURE I: THE SURVEY .................................................................................................................................11

ANNEXURE 2: RESULTS OF THE SURVEY .......................................................................................................13

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 INTRODUCTION
The high level of growth of the Indian economy during the past two decades has been accompanied
by increasing informalisation. 1 It was found in the NSC Report that there were “indications of
growing interlinkages between informal and formal economic activities” and that sustaining high
levels of growth is intertwined with improving the domestic demand of those engaged in the
informal economy.2 Employment increased from 1999-2000 from 396 million to 456 million in
2004- 2005.3

Despite a 14% increase in formal employment, most of the increase was unemployed or without
social security. Most women work in the unregulated informal economy. Most workers identify
the informal sector as part-time, self-employed, odd jobs, and low-wage work with no job security.
Unpaid labour by women is frequently not recognised as work and is not accounted for. Women
bear the combined burden of productivity and reproduction. In India, labour rules govern equal
pay, working conditions, and non-discrimination against women. While analysing the efficiency
of various labour rules, the NCEUS discovered that “the actual coverage of the labour regulations
in India is very small; the laws themselves apply only to a small proportion of workforce and they
are actually implemented in the case of even smaller segments.”4

For the purposes of this paper, the compliance of legislations pertaining to labour laws, with the
support of primary research conducted through a survey is analysed. The absence of necessary
legal protections is also being examined since these in turn have a bearing on work participation
rates of women.

1
Report of the Committee on Unorganized Sector Statistics, National Statistical Commission (NSC), Government of
India, 2012. The NSC quoting from the NCEUS Report, 2008 defines „informal economy‟ as the informal sector and
its workers plus the informal workers in the formal sector.
2
Id.
3
National Commission for Enterprises in the Unorganized Sector, The Challenge of Employment in India, An Informal
Economy Perspective, Volume I, Main Report, 2009
4 Id.

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 IDENTIFICATION OF ISSUE: THE TREND OF DECREASE IN WORK
FORCE PARTICIPATION
There is a widening disparity between the ideals enshrined in various workforce legislations
applicable to women and the practical applications thereunder. Protective measures implemented
by the government, such as separate restrooms and washing facilities, as well as drinking water,
are either not provided or are not maintained adequately. There are almost no medical facilities or
maternity benefits available in practicality. The proposed laws, policies, and welfare system for
women workers will be ineffective unless they develop an awareness of the law and the strength
to ensure that laws are implemented, and unless the organs of public opinion, movement, and
organisations maintain vigil and intercede to ensure that the provisions of the proposed laws,
policies, and welfare system are implemented.

Owing to the present issues in the application of labour laws in India, the trend in work force
participation statistics is dismaying.

The increase in the Work Force Participation Rates (WPR) of women in India which took place in
2004-2005 has undergone a substantial decrease in the 2009-10 as per the quinquennial survey.
The survey conducted for 2009-2010 on Employment and Unemployment in India reveals that the
Work Force Participation Rates (WPR) of women have fallen quite substantially. Women’s WPR
has decreased from 44.16 percent to 33.65 percent and PWPR has decreased from 24.90 percent
to 21.82 percent.5

CRITICAL ANALYSIS OF THE ISSUES FACED BY WOMEN

THE LACUNAE IN THE LAWS: THE CAUSES OF DISPARITY

Part III and IV of the Indian Constitution outline the rights and duties of women employees. In
addition, Article 14 guarantees equality before the law and equal protection of the laws, while
Article 15 prohibits sex discrimination. In addition, Article 16 (1) guarantees equal opportunity in
public employment and appointments, while Article 16(2) prohibits sex discrimination in

5
Employment and Unemployment in India, NSSO, 66th Round (2009-10), Government of India

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employment under the state. Article 39 (a), (d), 41, 42, 43, 43A are essential labour related State
Policy Directives.6

Despite this acknowledgement, the issue of equal pay for women employees is still ignored, even
by trade unions, who frequently do not regard it as a problem affecting all workers.

Employment and occupational equality require equal opportunities and treatment. While equal
opportunity refers to the ability to apply for a job, equal treatment refers to the right to equal pay,
working conditions, social security, and protection, as well as a high quality of family life (in terms
of the opposite sex). Employment equality promotion is a positive enforcement, unlike
discrimination prevention, which is a sort of negative equality.7

This entails eliminating occupational segregation on both a horizontal and vertical scale. Equal
pay, the polar opposite of wage discrepancy, is based on the acknowledgement of an objective
evaluation of work for the purpose of determining compensation and the eradication of
discriminatory structural gender bias in labour markets. On average, a woman earns 75 percent of
what a man earns per hour worldwide. One reason this practise persists to this day is the widespread
belief that employing women is more expensive than employing males, because women work
fewer overtime hours and are required to take maternity leave, among other things. Wage
discrepancy is so difficult to address because it is frequently undetectable. It acts indirectly through
promotions and other similar mechanisms, as such qualifications affect not just compensation, but
also perquisites.

Gendering on the employer side takes place in the form of gender discrimination in hiring women,
terms of employment and so on. Studies find that the gap cannot be explained only by differences
in education, experience and skills, but the unexplained aspect could be attributed to
discrimination.8

6
Anita Abraham, Devika Singh and Poulomi Pal, Critical Assessment of Labour Laws, Policies and Practices through
a Gender Lens, Ministry of Women and Child Development, Government of India, 2014
7
Id.
8
Esteban Ortiz-Ospina, Max Roser, Economic Inequality by Gender, “Happiness and Life Satisfaction”. Published
online at OurWorldInData.org. Retrieved from: ‘https://ourworldindata.org/happiness-and-life-satisfaction’

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 THE STATUS QUO
For the purposes of the present article, the author conducted a survey of women employed in the
formal sector in the urban areas of Mumbai, Ahmedabad, Chennai, Bangalore, Pune, New Delhi,
Vadodara, Surat, Ghaziabad, Mehsana, Raipur, Mysore, Thane, Noida, Chandigarh, Rajkot. There
was a concentration of responses from the banking and financial services, face some degree of
discrimination and are not entirely aware of the ICC mechanism.

This highlights the need of awareness programs, which, as per the survey are mostly either rarely
conducted or not conducted at all. Almost a quarter of the women do not get equal opportunities,
or are not sure if they get equal opportunities as their male counterparts. Although 100% of the
responses have declared that the person has not faced any form of sexual harassment, the sample
is too small to derive a definitive conclusion with regards to sexual harassment at workplace. It
must be noted that with the resurgence of the MeToo campaign, and the Boys Locker Room
incident that brought the campaign back to light, it is of utmost importance to create a safe space
of work for all women.

The questionnaire of the survey is attached as Annexure-1.

Notable results are displayed below. Full results of the survey are attached as Annexure-2.

6
If the answer to the previous question is yes, please elaborate on such incidents.

7
 1. During promotion
2. Since I work in litigation, many times I have been ignored for outstation
hearings due to my gender

CONCLUSION
One of the most fundamental causes for women’s unequal employment possibilities and income
disparities is that women are considered as secondary earners while males are viewed as primary
breadwinners. This creates a vicious cycle, as women’s low pay further embed them in lower
cadres of employment, perpetuating inequalities. Additionally, women choose lower-paying
employment to avoid being idle, and this compensation disparity acts as a deterrent to better
performance, so limiting professional progression opportunities. Another factor contributing to
wage gap is the fact that the majority of the active female labour works in the informal sector, such

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as agricultural and domestic work, which are subject to few rules for remuneration and social
security.

However, in the plethora of Indian jurisprudence, there are various cases that safeguard the
interests of women at work. In the case of Air India v Nargesh Meerza,9 the court determined that
terminating service due to pregnancy was unjustified and arbitrary, and thus obviously violated
Article 14’s fundamental right. Taking on service and then terminating her service if she becomes
pregnant amounts to compelling the impoverished air hostess not to have children, interfering with
and diverting the natural flow of human nature. The Supreme Court ordered the State government
to pay not just the minimum wage but also wages consistent with the principle of equal pay for
equal work to men and women employed in famine relief activities, in the case of Sanjit Roy v
State of Rajasthan.10

PAVING THE WAY FORWARD

Need for Affirmative Action
Affirmative action such as reservation, as enshrined under Article 15 and 16 of the Indian
Constitution need to be taken proactively by the Government to ensure that the marginalised groups
of the society, such as women or the non-binary persons, so that there is an inclusion of these
persons in the work force. Penalisation of the employers who refuse to comply with the norms
must be ensured so that there is no gender bias when it comes to recruiting of personnel.

Need for Dynamic and not Tokenistic Legislations

It is respectfully argued that while simple legislations or judgments are insufficient to effect social
change, they do serve as a catalyst for the desired social transformation. The legislations examined
in this article are insufficient to safeguard women’s safety in the workplace, and the rate of urban
women participating in the workforce is at an all-time low, while certain existing rules, such as the
Companies Act, are purely tokenistic in character (with regards to the appointment of at least one
woman on the board of directors). These rules alone will not put an end to the structural oppression
that women have endured throughout history, and consequently affirmative actions that are not
tokenistic must be implemented by the government. Sexism and misogyny are deeply ingrained,

9
AIR 1981 SC 1829
10
AIR 1988 SC 238)

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and there is a long way to go on the road to equality before these laws have a noticeable positive
effect.

Need for Gender Sensitization

It is critical to recognise that gender sensitisation is critical for the eradication of deeply ingrained
gender biases, and hence that additional seminars and awareness programmes should be performed
to educate folks in both urban and rural areas. Women’s rights seminars that educate women about
their rights at work and in general need to be better incorporated into the status quo, since people
need to be informed of their rights and how to exercise them in the face of injustice.

It is the author’s personal take that with the rise of awareness with regards to gender and sexuality,
it is the need of the hour to amend the existing laws to be gender neutral inclusive laws, for the
protection of all those who do not fall under the gender binary, as gender in itself is recognised as
a fluid concept. With the rise of progressive judgments, such as the NALSA v Union of India11
(recognition of the non-binary nature of gender, transgender rights case), Navtej Singh Johar v
Union of India12 (decriminalisation of Section 377, Indian Penal Code) Justice Puttaswamy v
Union of India13 (the Aadhaar judgment, that recognises that right to privacy of an individual).

11
AIR 2014 SC 1863
12
AIR 2018 SC 4321
13
(2019) 1 SCC 1

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 ANNEXURE I: THE SURVEY
WOMEN IN WORK PLACE
I, Foram Pathak, from Symbiosis Law School, Pune, am conducting a survey for with regards to
the rights of women in their workplace for a research project targeted at the socio economic
ramifications of the laws pertaining to the same. Kindly fill up the short survey to aid the research.
Through this, we wish to study the compliance with the laws in place and how effective the
legislations are in the status quo. The answers are for research purposes only and will remain
strictly confidential.

• Name (Optional)
• Contact No. (Optional)
• Gender:
• Male/Female/Other/Do not wish to disclose
• Age
• Organisation name (Optional)
• City:
• Type of industry:
• Designation
• For how long have you worked in the Organisation?
• What is the percentage amount that you contribute to the Organisation’s Employee
Provident Fund?
• Education:
(Undergraduate , Graduate , Post graduate )
• Marital status: (Married/Single)
• Do you have children? (Yes/No)
• My organisation pays attention to the needs of women
employees (yes/no/rarely/sometimes)
• I have to work after 7 p.m. in the organisation that I work in. (yes/no/sometimes/rarely)
• There is a crèche facility available to me at my place of work. (Yes/No/ Not applicable)

• The organisation I work for has at least 1 woman in the Board of Directors. (yes/no/not
sure)

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• I get equal work opportunities as my male counterpart (yes/no/sometimes/not sure)
• I feel that I was discriminated against at any point of time in your period of work owing to
my
(yes/no/sometimes/rarely)
• Please specify the instance if the answer is yes if you are comfortable in sharing your
experience. (Optional)
• As per my best knowledge, my male counterpart and I get equal pay for equal work
(yes/no/maybe, not sure)
• I got paid maternity leave and other maternity benefits (yes/no/I was not aware I was
entitled to the same/Not applicable)
• I faced problems, such as discrimination, reduction in salary and/or responsibilities, on
resuming work post maternity leave (yes/no/Maybe/Not applicable)
• If the answer to the previous question is yes, please elaborate on the same. (Optional)
• I have faced some form of sexual harassment from any colleague/subordinate/superior at
work/outside work environment
(yes/no)
• My organisation conducts gender sensitisation workshops, activities, etc. in your work
place? (yes/no/sometimes/rarely)
• Is there an Internal Complaints Committee/ redressal mechanism to pander to these issues?
(yes/no)
• I am aware of the procedure to reach out to the ICC if any such aforementioned instances
occur
(yes/no/maybe, not sure)
• Any recommendations you would like to impart for making your work place a safe space
for all?

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ANNEXURE 2: RESULTS OF THE SURVEY

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14
If the answer to the previous question is yes, please elaborate on such incidents.
3. During promotion
4. Since I work in litigation, many times I have been ignored for outstation
hearings due to my gender

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3. Males are generally loud and aggressive and many a times they use that
aggression to voice out or impose their opinions on others and not submit to
opinions of female employees event at same designations, even if they are
logically correct

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If the answer to the previous question is yes, or maybe, please elaborate on the same.
I needed more flexible timings when my daughter was 1 year old. And didn’t get the same
in my earlier organization and hence joined a new organization but at a lower pay. So tradeoff
was flexible hours vs lesser pay.
As there is gap of six months while you resume work back and someone else is already
handling the responsibility, there is resistance to give back the responsibilities back to you.
Further, female employees are compromised with their annual appraisal and generally given
average ratings when they avail maternity leaves.

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