India Court Moves Away from Protectionism: A New Trajectory for Gender Discrimination Cases?
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India Court Moves Away from Protectionism: A New Trajectory for Gender Discrimination Cases?

Recently, the High Court of Kerala, India, in Treasa Josfine vs. State of Kerala invalidated an employment notification that invited only male candidates to apply for the permanent post of Safety Officer. The judgement, which determined that women cannot be denied employment on account of the appointment involving work during night hours, is a significant step in fueling true empowerment. In acknowledging the changing dynamics of professions, liberally construing protective provisions and (re)emphasizing the fundamental right to equality as enshrined in the Indian Constitution, the decision materializes the common aspiration of achieving gender parity in workplaces.

In this case, the petitioner, a graduate in Safety and Fire Engineering, was outright refused the opportunity to apply. Vide a notification issued by Kerala Minerals and Metals Ltd. – the respondents – a blanket ban was imposed on female participation in the appointment process itself. The petitioner challenged the notification on the ground that it was discriminatory and violative of Articles 14 (equality before law), 15 (prohibition of discrimination), and 16 (equality of opportunity in public employment) of the Indian Constitution.

Female involvement was said to be withheld on account of the appointment requiring round-the-clock attention. The respondents sought defense under Section 66(1)(b) of the Indian Factories Act, 1948, which provides that women employees shall not be required or permitted to work except between 6 AM and 7 PM. The Court however held that the provision protected women from exploitation, and is intended to be beneficial and not directive. Accordingly, it must be operated as a welfare provision and not as an excuse to deny engagement to a woman “who does not require such protection anymore.” Deliberation was extended to the decision of Leela v. State of Kerala, which earlier in 2004 identified that the provision did not stand to deny opportunity or livelihood to women employees.

The verdict was a culmination of the comparison drawn between the time the legislation was enacted in 1948 and the present-day employment scenario. Justice Anu Sivaraman opined that the demanding societal roles of women and their increasing contribution in various economic spheres rendered them capable of facing such professional challenges. She highlighted that:

We have reached a stage where the contributions made by women in the spheres of economic development cannot be ignored by any industry. Women are being engaged to work during all hours in several industries including Health Care, Aviation and Information Technology. Women have been engaged in several professions requiring round the clock labor and have proved themselves quite capable of facing the challenges of such engagement.

The Court refused to entertain the socially ascribed roles that have, for long, resulted in gender discrimination. Such stereotypes were also noted to be violative of a woman’s fundamental rights inasmuch as they restricted equal participation in society. A recent Supreme Court decision in Secretary, Ministry of Defence vs. Babita Puniya, wherein an absolute bar on women seeking appointment was held to be violative of the guarantee of equality, was also referred to. Under these considerations, the ‘only males can apply’ employment condition was quashed. Even on appeal, it was observed that protectionism prescribed seemingly in favor of women should be viewed with serious reservation, despite how ‘lustrous’ such provisions seemed ‘at first look’. The Court proceeded to clarify it is, in fact, the duty of government functionaries, such as the respondent, to ensure safety and convenience.

The appraisal of this judgement has to lie in appreciating the interpretation extended to Section 66(1)(b) of the Indian Factories Act, 1948. Since the word “shall” precedes the limitation placed on allowing/restricting the working of female employees beyond stipulated hours, an application of the law as-is would have allowed the respondents to escape accountability. The Court however construed it to be a non-mandatory, protective provision. In opining so, the judgment demonstrates that progress lies in participation, and not in constraint. For empowerment in the long run, the underlying issues (such as that of safety in respect of the instant case) must be addressed.

To exclude female participation in the appointment process in anticipation of the risk(s) that night hours present is nothing but a temporary diversion from responsibility. It is also an implication that female participation, and not the wrongdoer, instigates such risks. According to a 2021 project (The Women, Business and the Law Project) undertaken by the World Bank, this attitude is not unique to India. There exist 104 economies that prevent women from working in specific jobs. To rephrase for emphasis – over a hundred countries do not give women the same choice in jobs as men! This discrimination manifests itself in various ways. Many countries, such as Russia, enlist jobs like driving a train or steering a ship as ‘too dangerous’ for women. In Kazakhstan, women cannot bleed or stun cattle, pigs or small ruminants, while in Nigeria, women can’t work at night in the gasworks.

Sarah Iqbal, the Program Manager of The Women, Business and the Law Project, succinctly stated: “Unfortunately, laws are a straight line for men and a maze for many women around the world. And that needs to change. There is no reason to keep women out of certain jobs or prevent them from owning a business. Our message is simple: no women, no growth.”

Thus, though purported to be in women’s interest, such exclusions are not only inapt, but also tend to excuse a country’s inaction. Gender-specific risks in certain employments are the result, and not source, of some already persisting issue waiting to be addressed. Gender equality in its true sense is a long-term goal, that must be realized holistic manner. The International Labor Organization (ILO) also recognizes that a life-cycle and rights-based approach is needed to promote decent and productive employment and income opportunities equally for women and men. This implies that a gradual and uniform effort will help achieve gender parity. Though gradually, the attitude towards limiting laws and policies is changing. For instance, countries like Bulgaria, Kiribati and Poland have removed all restrictive practices relating to gender from their laws, while Colombia and Congo have abolished certain discriminatory rules.

G.D. Anderson has said, “It isn’t about making women stronger. Women are already strong; it’s about changing the way the world perceives that strength,” and Justice Sivaraman’s perception identifies and recognizes the ever-advancing degree of such strength. The judgement sets out to create a new standard of empowerment and is bound to provoke thought and change in the right direction.

 

Manvee Kumar Saidha is currently a penultimate year B.A. LL.B. (Hons.) student at School of Law, Christ University, Bangalore, India. 

 

Suggested citation: Manvee Kumar Saidha, India High Court Takes a Step Towards Participation and Away from Protectionism in Gender Discrimination Cases, JURIST – Student Commentary, May 12, 2021, https://jurist.org/commentary/2021/05/manvee-kumar-saidha-india-gender-employment/.


This article was prepared for publication by Gabrielle Wast, JURIST’s Deputy Executive Editor. Please direct any questions or comments to her at commentary@jurist.org


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