Gender Discrimination in the Factories Act, 1948
Introduction to the Act
First enacted in 1881, the Factories Act came with the rapid industrialization that started in the nineteenth century. After numerous consistent amendments, the act was passed again on the recommendation of the Royal Commission on Labour in 1934, taking the place of previous legislation concerning factories. The act could not suffice the rapidly changing working conditions and was prone to further amendments.
The Factories Act, 1948 was passed by the Constituent Assembly on August 28, 1948. The Act received the assent of Governor-General of India on 23 September 1948 and came into force on April 1, 1949.[1]The purpose of the act articulates upon the need to safeguard the interests of the labour community by providing them with healthy working conditions, welfare, annual leaves, and also to enact special provisions for women and children.
This act regulates factories which have employed 10 or more than workers on any day of the preceding 12 months, engaged in manufacturing process being carried out with the aid of power or twenty or more than twenty workers are employed in manufacturing process being carried out without the aid of power.[2]
Gender-Based Provisions
Laws evolve and grow with society. The legal fraternity realized soon the need to have special provisions for women in law. The need for this is primarily based on the uneven sex ratio of our nation and secondly, to promote and achieve parity in terms of the workforce of men and women. The problem still stands since a large number of women are working under the ‘unorganized sector’, dealing with domestic household work and agricultural work, which is not regulated and accounted for.
ILO also has a significant contribution in terms of the formation of laws as most of them are the ratification of conventions/recommendations of ILO. India being a founding member, makes it tacitly obliged to adopt conventions of the ILO.
Apart from the Factories Act, we also have various other labour legislations that tell us about the consistency of formation in women-centric law; some of them serve the purpose, whereas some have been counter-productive as well. These are –
- The Employees’ State Insurance Act, 1948
This covers the insurance of workers, especially women along-with the maternity leave; certain contingencies arising out of pregnancy, confinement, miscarriage, sickness arising out of pregnancy, premature birth of child or miscarriage, and death.
- The Maternity Benefit Act, 1961
Women who are employed, whether directly or through a contractor and have worked in an establishment for at least 80 days during twelve months prior to the date from which they wish to claim maternity benefit are eligible to claim the benefits under this act. One condition here, however, is that cash benefits to women during their maternity leave should not be less than two-thirds of her previous earnings.
In B. Shah v. P.O.[3], it was held that wages will be provided in totality including days of leave like Sundays and rest days as they were being provided for the actual number of working days missed.
The fact that almost all the major labour laws enacted by the Central Government apply to female workers cannot be missed. Equal Remuneration Act of 1976 forbids discrimination in similar or same recruitment and service conditions except where employment of women is legally prohibited or restricted. The situation regarding enforcement of the provisions of this law is regularly monitored by the Central Ministry of Labour and the Central Advisory Committee.[4]
Analysis
It is evident from the above-mentioned legislations that almost all the laws that come under the ambit of ‘labour laws’ have special provisions for women. The purpose of establishing this is to clarify the gender contention that is still very prevalent. The term ‘gender discrimination’ is assumed to be associated with women only. This does not pose a problem until the discrimination happens to be positive. It has been quite some time now that the women-centric laws have come in the mainstream. The question that prevails here is concerning other genders. This does not imply that women-centric laws are acting as a hindrance but this merely removes the camouflage of gender equality. The special provisions that have already been made for women by the virtue of Article 14, 15, and 19 were backed with healthy intentions to promote and encourage women.
The Equal Remuneration Act 1976 has been recently repealed in August 2019 and replaced by the Code on Wages 2019. The Code has been successful in progressing from the binary of men and women towards acknowledging the need for equal pay for all genders; thereby extending the benefit of the law to other oppressed genders, including transgender people.[5]
This is a classic example that puts forth the purpose and epitome of what this article aims to establish. As much as we appreciate the enhancing awareness regarding women based laws, we can’t deny the existence of other genders. The purpose behind women-centric laws was to balance the society by encouraging women via various incentives. The purpose of it shall fall if we ‘only’ focus on one gender and keep making laws around it. Doing this in a society that only recently recognized a third gender would show sheer ignorance. Moreover, when we say that men contribute to the majority of the labour population, we should keep in mind to cater to their needs as well. The inclusion of women in work-force is a slow and gradual process. If we wait on and keep making legislations, the results will be anything but productive. The counterproductive aspect of labour laws has been propounded by the former Chairman of NITI Aayog Arvind Panagariya-
“The labour situation is incredibly complicated: when you go from six workers to seven in a firm, the Trade Unions Act kicks in. When you go from nine to ten, then Factories Act kicks in. And when you go from 19 to 20, something else kicks in, as happens again when you go from 49 to 50 and 99 to 100. The biggest killer is the Industrial Disputes Act, which says that if you are a manufacturing firm with 100 workers or more, you cannot dismiss any of them under any circumstances unless you get prior approval from the government.”[6]
Conclusion
Every bill concerning labourers which will be put to the table for discussion will directly/indirectly be impacted by the pandemic, at least for the current year. From social distancing to the norms related to sanitization and number of people employed over machinery, everything will change. In these changing times, something that concerns us more is the overall growth of the society by equal and fair distribution of resources. Now that the first half of this article was dedicated to establishing that we have quite a few legislations with special provisions for women and they are in function, their productivity depends on numerous other social factors, some of which are inevitable.
Hence, the need of this hour is to encourage the transgenders as well as the existing labour force. Secondly, focus shall be on the masses that lost their respective jobs. Discrimination will remain positive until the point there is positive growth. If it is extended to a point where it’s misused and is rather counterproductive, an uneven situation will most likely arise.
A rationale should be maintained by the policy-makers while focusing on an issue. More than anything, a family would just want the bread-earner to return home with a few hundred rupees. Women empowerment to them comes out of necessity when the male member is not earning enough. Hence, we need provisions and legislations to bring the labour force back on track and then emphasize on a particular gender.
By-
Vaibhav Chaturvedi
Lloyd Law College
[1]Smriti Tiwari, The Factories Act, 1948, Legal Service India(June 12,2020), http://www.legalserviceindia.com/legal/index.html
[2]Kanti,The Complete Compliance Checklist under the Factories Act, 1948,Ipleaders Blog (July 20,2018) https://blog.ipleaders.in/compliance-checklist-factories-act/
[3] AIR 1978 SC 12; 1977 (4) SCC 334.
[4] Irwin Cheema,Gender Justice and Indian Labour, Legal Services (10:58 PM)http://www.legalservicesindia.com/article/763/Gender-Justice-and-Indian-Labour.html
[5]RishikaSahgal, Equal Pay for Equal Work? Flaws in the Indian Law, Oxford Human Rights Club (8th December 2019), https://ohrh.law.ox.ac.uk/equal-pay-for-equal-work-flaws-in-the-indian-law/
[6]PrasannaMohanty, 5 contentious issues holding up India’s labour law reforms, Business Today (July 11, 2020)https://www.businesstoday.in/current/economy-politics/labour-law-reforms-india-contentious-issues-lok-sabha-trade-unions/story/363160.html