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IMPACT OF GENDERED LAWS ON ECONOMIC OPPORTUNITIES OF WOMEN IN INDIA



By- Sanigdh Budhia

(Author is a first year student at Gujarat National Law University)

INTRODUCTION



As Quoted by Gabriel Ivbijaro, “Social Justice is an integral part of Justice in the generic sense. Justice is the genus and social justice is one of its species.” (Ivbijaro, 2011) This is extremely important when looking at existing labour laws. A socially just law is one that actively transforms and develops into new paradigms by evolving to meet the needs of society at any given time. The dynamic social reformation of relieving the downtrodden and underprivileged from the current handicaps in the new social system is based on the ideals of social justice. In the greater interest of social life and growth, the aim is to provide distressed individuals with access to incorporeal tools of justice that have the capacity to fend off the evil of penury. The goal of social justice is to achieve a significant degree of social, economic, and political equality, which is a reasonable expectation both legally and morally. It has taken a herculean effort in India, a nation divided by various castes and cultures, to achieve the goal of eliminating inequality and providing uniform opportunities for all people of the country in the realms of social, economic, and political affairs. In democratic cultures, the judiciary has always been at the forefront of social rebirth. It is the only platform that upholds the rule of law in the broadest sense, assisting in social readjustment, which is a necessary precondition for creating a stable socioeconomic order.(Mohapatra, 2015) While discussing the rights of unorganised labourers in the case of Life Insurance Corporation of India v. Consumer Education and Research Center,3 the Supreme Court noted that Articles 41 and 47 of the Indian Constitution aim to maintain the social structure of the country by putting a duty on the state.

This paper examines the changing landscape of women's roles in today's society by highlighting the social justice elements incorporated into legislation and judicial decisions. With women's increased involvement in public life, it's more important than ever to shield them from society's antiquated and illogical biases. In the face of a plethora of cultural practises, customs, and norms that persistently obstruct the attainment of equality, the Indian government has taken many major measures to ensure fair rights and opportunities for women.











A STATISTICAL ANALYSIS OF WOMEN’S LABOUR FORCE IN INDUSTRIES

The most natural phenomenon in a woman's life is to become a mother. Whatever is required to assist a working woman in giving birth to her child, the employer must be considerate and compassionate to her, and must recognise the physical challenges that a working woman will face in performing her duties at work during both the pre- and post-natal phases. (Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Anr. (2000) 3 SCC 224). It is a well-known fact that women are at a disadvantage in the labour force as opposed to men. (Kumari, 2014) On a global scale, women workers are paid less on average than men for a variety of reasons, with the majority of these wage disparities occurring in Southern Asia, Middle East and Africa. (UN Women, 2018) According to World Bank data, women labour force in India is 20.79% of the total workforce. (ILO Database, 2021) Many countries pay for Maternity Benefits, according to the International Labor Organization (ILO), but these countries struggle miserably in their implementation. (ILO Women at Work trends, 2016). On a domestic basis, it is expected that India's total labour force will increase by 110 million people. Women's inclusion raises the projection by 68 million people by 2025, allowing for a 16 percent rise in the country's Gross Domestic Product (GDP). (Catalyst, 2020). According to the National Sample Survey Office (NSSO), only 24.8 women out of 100 employed in rural areas, according to the study Jadon and Bhandari Analysis of the Maternity Benefits Amendment Act, 2017. The men, on the other hand, were at a high 54.3.12 percentile. (Srivastava, 2019). Women's participation in the economy of cities was even lower. There was a depressing 14.7 working women for every 54.6 employed men. With the implementation of schemes such as the Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA), Rajiv Gandhi National Creche Scheme for the Children of Working Mothers, and Indira Gandhi Matritva Sahyog Yojana (IGMSY), the Indian government has been making sustained efforts to ensure gender equity and social security for India's female labour force. The IGMSY is a conditional maternity benefit programme that has made a significant difference. However, it has been unable to integrate it effectively into India's social security policy system. The National Policy for Women goes a long way toward addressing women's social security needs at all levels, but it is also in its early stages and is expected to take a long time to implement. Women's empowerment is based on their progress at all levels, including schooling, health, jobs, and positions of influence. (WCD Report, 2016) Women's empowerment steps (Deloitte, 2017) must be considered in both the structured and unorganised markets, where women continue to face challenges in obtaining social benefits.



ANALYSIS OF MATERNITY BENEFITS AMENDMENT ACT, 2017

The Maternity Benefit (Amendment) Act, which was passed by parliament last year, makes it mandatory for private businesses with more than 10 workers to provide women with 26 weeks of maternity leave. The act also requires that any organisation with more than 50 workers develop crèche facilities and have work from home options if the nature of the job allows it. With these amendments, India is now the third country in the world to allow for a longer maternity leave, behind Canada (50 weeks) and Norway (44 weeks). In addition, the government has introduced a bill in the Lok Sabha to increase the maximum gratuity for workers and to inform a longer period of maternity leave. Employers who have a gratuity limit of INR 10 lakhs would have to have enhanced gratuity of INR 20 lakhs as a result of the proposed amendment to the Payment of the Gratuity Act 1972. The Maternity Benefit (Amendment) Act aims to empower women by increasing their participation in the workforce and overall well-being. According to the World Bank's "India Development Report," (World Bank report on Indian Economic Fundamentals, 2017) India has one of the lowest female labour participation rates in the world, at just 27%, compared to 65-70 percent in China and Brazil. There are a variety of reasons for this dismal figure, including women taking time off after childbirth and a shortage of childcare facilities at work, among others. According to a study by Mckinsey Global Institute, if India can increase women's workforce participation by just 10% points (approximately 6 million more women) by 2025, the country's GDP will increase by 16%. Equal participation by women could boost global GDP by $28 trillion, or 26 percent, by 2025. The government also hopes to boost breastfeeding and reduce child and maternal mortality rates with this amendment, which will have a direct impact on the economy. Breastfeeding is the "highest investment in public health," according to a 2017 report published by the Global Breastfeeding Collective, (Unicef, Global Breastfeeding Collectie) which is led by UNICEF and the World Health Organization and produces a global return of $35 for every dollar invested. In the coming years, India hopes to catch up on this. The terms of the Sixth Central Pay Commission (For Maternity and Child Care Leave) and the Central Civil Services (Leave) Rules, 1972 (CCSL Rules), which for the first time introduced a "Six Months Paid Leave Policy" for Central Government Employees, were among the main amendments in this act. In 2000, the International Labour Organization (ILO) drafted the Maternity Protection Convention,(Convention concerning the revision of the Maternity Protection Convention (Revised), 1952, Adoption: Geneva, 88th ILC session (15 Jun 2000)), which stipulated that women should be given at least 14 weeks of maternity leave. Maternal Health is also one of the Sustainable Development Goals, according to the United Nations.( UN SDG Goal 3) During the 44th, 45th, and 46th sessions of the Indian Labor Conference (Ministry of labour and Employment, Maternity Bill Clarifications), the aforementioned foreign instruments were synthesised in the formulation of the Maternity Benefits Act, 2017. The Act, which went into effect on April 1st, applies to all women workers in both the organised and unorganised sectors who work in establishments protected by Section 2 of the Act. The Factories Act of 1948, the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act of 1966, and the unorganised Workers Social Security Act of 2008 are among the labour and industrial policy legislations that address and provide for maternity benefits for women. The Employees State Insurance Act of 1948 ( The Employees‟ State Insurance (General) Regulations, 1950, No. RS/5/48) makes maternity compensation one of its primary objectives, establishing a 12-week leave structure for the mother as well as a legislative framework for its successful implementation. However, the scopes of these acts are limited. The Maternity Benefit (Amendment) Act, 2017 aims to rectify this.


The Maternity Benefits Act, along with social justice values and DPSPs, are agents of women's social improvement. The cost of providing benefits to female workers is significantly outweighed by the benefits that result. In Dr. Ankita Baidya v. Union of India &Ors, (W.P. (C) 8748/2018 & CM APPL.45209/2018) the Delhi High Court reaffirmed this. The Court observed that, as a piece of social welfare legislation, the Maternity Benefit Act's scope and sweep must be as broad as possible, rather than constrained by any pedantic considerations of word or expression.


In comparison to the Act's goals, there have been many instances where women have been denied a voice, have been subjected to workplace harassment, have experienced exclusion, have faced injustice, and have a weak understanding of their rights. This has resulted in a slew of issues for working women, as they are unable to access the protections that are promised to them under the modal legal system. Unlike women in the organised sector, who are conscious of their rights under active jobs, the majority of these issues affect women who work in the unorganised sector. (AIR 2000 SC 1274). The law relating to advantageous legislations, specifically the Maternity Benefits Act, has been openly debated by the judiciary in recent decades, with B. Shah v. Presiding Officer, Labour Court, Coimbatore (1978 A.I.R 12) being a notable example. In relation to social legislations such as the Maternity Benefits Act, the doctrine of "beneficial law of construction" (GRANVILLE SHARP, MAXWELL ON INTERPRETATION OF STATUTES 68 (Sweet & Maxwell Limited, London, 10th ed. 1953) was thoroughly debated. Despite the fact that the aim of social legislation is to improve the wellbeing of the masses, improve access to justice, and promote reasonability, certain primary constituents of the great legislative purpose have failed to materialise in the majority of these promulgations ( Budhan v. Nabi Bux, AIR 1970 SC 1980). The lack of access to these laws for poor and oppressed women continues to be a barrier. In Parthasarathy case ( Parthasarathy M. v. Deputy Commissioner of Labour (Appeals) and Ors., A.I.R 1986 SC 458) it was held that the legislature's primary purpose was for any potential calculation of benefits under this Act to be made for the entire duration of the women worker's absence, including all unpaid leave days, including Sundays. This calculation was not only a fact-based query, but it was also a thread that connected figurative and materialistic meaning. As a result, the terms "week" and "time" ( Management of Sri Akilandeswari Mills Ltd., Salem v. Assistant Commissioner of Labour (Controlling Authority under Payment of Gratuity Act), Salem and Ors., 2000 (1) L.L.J 1411) have a lot of meaning. Although it is true that Sunday is just a wageless holiday for the rest of the workers, women in labour cannot be put on the same level as other employees. They are a vulnerable group in need of attention, rest, and nourishment. It cannot be overlooked that paying for a wageless day causes economic distress for employers and may put them in a financial bind, but pregnant working women are the responsibility of not only the state, society, but also employers.


It is important to remember that, in a broad sense, any employer seeks to maximise income by increasing output, and the basic tenants of this production mechanism are "labour utilization" and "production deficit". As a result of such predetermined objectives, it is important that employers are unconcerned about the distribution of benefits to female workers. With such considerations, public maternity benefits disbursement becomes inevitable, ensuring that workers are not overburdened with the social security benefits guaranteed by the Act. Furthermore, if the employer did not provide prenatal or postnatal treatment, a medical bonus would be paid. Pregnant women workers, on the other hand, find the in-benefits and post-benefits periods to be very stressful. During the in-benefits time, the employer has the right to fire a pregnant woman if she engages in gross misconduct, and under 12 (a) ( National Tobacco Co. of India Ltd. and Ors. v. Fourth Industrial Tribunal and Ors, AIR 1960 Cal 249), a woman may be fired if she pays out any of her benefits. Similarly, there nothing in the Act that prevents an employer from taking action against a woman who enters after the benefits period has ended. This effectively means that employers have full discretion to fire female workers for no reason after all benefits have been given to the woman employee. Employers are required to have advance notice of rights and benefits such as breastfeeding breaks, which exclude returning women workers from arduous labour, medical bonuses, tubectomy leave, miscarriage leave, and, most notably, crèche facilities, although it is unclear who will pay for the crèche facilities. Second, a woman is given a total of six breaks, including two nursing breaks and four crèche visits. With such a hotchpotch, the economic burden on the employer only grows, prompting him to engage in undesirable activities such as lay-offs, retrenchment, or attempting to avoid the cost of a crèche and subsequent taxation on the same (all of which could be detrimental to women's employability interests), but what is lacking is clear demarcation for a situation involving a conflict of interest on the part of the employe


MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2020

The act amends Medical Termination of Pregnancy Act, 1971. It mandates that for abortions up to 20 weeks of pregnancy, only one registered medical practitioner’s opinion is needed (rather than two or more). It establishes a provision for the approval of two licenced medical practitioners before a pregnancy of 20-24 weeks can be terminated. It has also increased the gestation cap for women in "special groups," such as rape survivors, incest victims, and other marginalised women such as differently-abled women and minors. It also states that a woman's "name and other details of a woman whose pregnancy has been termi