The Oxfam’s India Discrimination Report 2022, released in September, criticise gender discrimination as the major reason for low female work force participation in India.
Laws in many countries reflect and perpetuate gender norms, and often act as an impediment for women to achieve full economic empowerment. A 2014 World Bank study shows that 90 percent of the countries have at least one law that limits the opportunities for women by restricting them from working in certain occupations. India is no exception; it has many laws that restrict opportunities for women to enter the women workforce.
Indian Factories Act 1948
In order to protect women workers from health hazards in factories, they were restricted from working near cotton openers, and were banned from lubricating and cleaning machinery in motion. The law also prescribed the amount of weight a woman can lift in a factory. They were also not allowed to work in night shifts, and certain ‘dangerous’ activities carried out in a factory.
Section 66(1) (b) of the Factories Act, 1948 that prohibited women from work at night was struck down by several high courts as unconstitutional and discriminatory, violating Articles 14, 15, and 16 of the Constitution. Acting in furtherance of these judicial decisions, states such as Haryana, Rajasthan, Punjab, Andhra Pradesh, Madhya Pradesh, Karnataka, and Maharashtra allowed women workers to do night shifts by amending state laws.
Occupational Safety, Health, And Working Conditions Code 2020
The Factories Act 1948 is now superseded by the Occupational Safety Health and Working Conditions Code 2020 (OSH code). Most of the prohibitions in the Factories Act were lifted in the OSH code, including the night shift ban on women. But the employer has to comply with conditions to ensure the safety and security of the women workers, as mandated by the corresponding state rules.
The OSH code also allows women to work in all establishments; this includes factories and in all types of work, hazardous or otherwise. But the necessary safeguards and safety measures have to be ensured by the employer, and they need to be regularly inspected as per the OSH code, and/or state rules.
Additionally, the provision of crèche is now gender neutral, and is applicable to those factories with more than 50 workers. Under the Factories Act, a crèche was mandated in an organisation which employed 30 or more women. The OSH code is progressive in a way that it breaks the social stereotype that women are responsible for childcare.
Can The OSH Code Help Improve Women's Workforce Participation?
The Factories Act 1948 and various state rules were acting as a hindrance to many women to get employed in the factory floors, especially those factories that engaged in three shifts a day, or are engaged in hazardous/dangerous activities. The OSH code, by removing these barriers, can possibly rectify the legal barriers, and provide a viable ecosystem for employers to engage more women workers.
But OSH code can be said to be effective, only if the corresponding state rules are in compliance with and in similar lines with the code. Further, the state rules must focus on the implementation aspect of the law, rather than being too idealistic. Often the overarching emotion of protecting women blinds the lawmakers from looking into the practicality of the provisions.
While the night shift ban was lifted in certain states, studies have shown that employers have frequently evaded their responsibility by making use of strategies such as under-reporting the number of female workers in the muster roll of the factory to evade compliance of the laws. This has hindered women's employment, especially when it comes to smaller organisations, and entry-level jobs. Enforcement costs are one of the reasons for the non-compliance of factories laws, and the cause for low numbers of medium-sized firms.
The larger problem with this protectionist stance towards employing women is that it has some unintended consequences. First, it dis-incentivises employers to employ more women as they would have to incur additional expenses and effort to ensure all the stipulations provided in the Act and rules; and second, it legitimises the traditional gendered notions about women, and that in turn plays a role in reinforcing the same hierarchical structures. Moreover, there is an active correlation between safety measures and the efficiency of workers. If proper functional welfare measures are taken, then productivity will also increase.
The NITI Aayog, in its report titled ‘India’s Booming Gig and Platform Economy’, released in June, suggests fiscal incentives like tax breaks or startup grants for companies with about one-third of their workforce women, to increase the labour force participation of women in the gig economy. This suggestion can be applied in factories and establishments as well. The enforcement costs will be offset by the incentives provided.
Anu Maria Francis is Research Associate, and Gauthaman V is Research Intern, CPPR. Views are personal, and do not represent the stand of this publication.