Sunday, 28 October 2018

Rights of women

Hon'ble Justice K. Ramaswamy of the Supreme Court, in Madhukiswar v State of Bihar (1996, p.148), stated the position of women: "Half of the Indian population is women. Women have always been discriminated against and have suffered and are suffering all inequities, indignities, incongruities and discrimination in silence'.

Like children, women also constitute a special social group; they too have been given special rights, privileges and protection. Therefore, in post, we will focus on these aspects of women that help in their empowerment.

International Law and Women's Status

We all know that from the very moment of her birth, the girl child confronts a world which undervalues her existence in comparison with a boy. Girls face obstacles in their education, nutrition, health and other areas solely because of their sex. They are viewed as having a "transient presence" to be mamed young and then judged by their ability to procreate. As they mature into women, they are thrust into cycle of disempowerment and that is very likely to be their daughters' destiny as well. This is the position of women, in general, in. the global and national (Indian) contexts.

The United Nations, from the very day of its inception in 1945 till date, has been striving to secure women's legal equality. It found that in many parts of the world the women have constantly been denied equality in law, and in practice they are also compelled to live under male-dominated world and are subjected to a variety of discriminations. The U.N. has chalked out a comprehensive programme by means of various conventions to uplift and develop the status of women in the field of education, politics and in social life. As a result, the U.N. has incorporated in several treaties and conventions many provisions to achieve equal political rights, among others, of women worldwide. These include:
  1. United Nations Charter, 1945. 
  2.  Commission on the Status of Women, 1946. 
  3. Universal Declaration of Human Rights, 1948.
  4. International Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, 1949. 
  5. Convention on the Political Rights of Women, 1952. 
  6.  Convention on the Nationality of Married Women, 1957. 
  7. Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage, 1962. 
  8.  Declaration on the Elimination of Discrimination Against Women, 1967. 
  9. World Conference on Women's Human Rights, 1975. 
  10. United Nations Development Fund for Women's, 1976. 
  11. Convention on the Elimination of All Forms of Discrimination against Women, 1979. 
  12. Declaration on Elimination of Violence Against Women, 1993. 
  13. Vienna Declaration on Human Rights of Women, 1993. 
  14. Beijing Declaration, 1995. 
  15. Optional Protocol to the Convention on the Elimination of Discrimination Against Women, 1999. 
We will, now, have a brief look at the essence of each of them.

1. United Nations Charter, 1945

Provisions of United Nations Charter 1945 are concerned with Human Rights of Women. Advancement of right of women has been the concern of world community since the end of Second World War. Some of the important and relevant provisions of this Charter are as follows.
  1. In the preamble it is stated, "we the people of the United Nations are determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women, and of large and small nations.
  2. In Art- I , the charter lays down that one of the purposes of the United Nations is to achieve international cooperation In solving international problems of an economic, social and cultural or humanitarian charter, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
  3. Art-8 "Equality of Opportunity" of the Charter lays down that the United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs." Thus, equality of opportunity has been assured to the women in the matter of participation in the work of the United Nations 
  4. Art-13 of the Charter lays emphasis upon promoting international cooperation in the economic, social, cultural, educational and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. 
  5. Art-55 of the Charter also lays emphasis upon the promotion of universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
Thus, the principle of equality of men and women in the matter of promotion and observance of human rights and fundamental freedom has been fully established under the charter of the United Nations.

2. The Commission on the Status of Women, 1946

It is an organization established under the United Nations system. It is a functional Commission of the Economic and Social Council (ECOSOC). In the initial period, this Commission was particularly concerned with:
  1.  the improvement of the status of women in law, particularly private law; and 
  2.  the advancement of women's enjoyment of their rights to education, employment and health care.
The on the Status of Women, has done valuable work promoting the right of women in political, economic, civil, social, and educational fields and in achieving the goal of women having rights equal to those of men. 

The Commission has requested the International Labour Organization (ILO) to promote the principle of equal pay for equal work and to complete a convention on this, subject.

It has also requested the UNESCO to provide equal opportunities for women in education.:
  1. Equal access to education at all levels.
  2. Equal economic rights and opportunities for women.
  3. Equal pay for equal work.
  4. Equality in various aspects of family law and property rig)ts. 
The Commission on the Status of Women was instrumental to the following Conventions and Declarations:
  1. The Convention on the Political Rights of Women, 1952.
  2. The Convention on the Nationality of Married Women, 1957.
  3. The Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage, 1962.
  4. The Declaration on the Elimination of Discrimination Against Women, 1967.
  5. The Convention on the Protection of Women & Children during Emergency and Armed Conflicts, 1974.
The Commission has served as the preparatory body for the world conferences on women, held in Mexico city (1975), Copenhagen (1980), Nairobi ( 1985) and BelJ1ng (1995), It has now been assigned with "the functions of promoting the objectives of equality, development and peace, monitoring the implementation of measures for the advancement of women, and reviewing and appraising process made at the national, sub-regional, regional, sectoral and global levels.

3. Universal Declaration of Human Rights, 1948

The UDHR has been hailed as an historic event of the greatest achievements of the United Nations. The Preamble clearly declares the common standard of achievement for all the peoples and all nations. The declaration shows the importance and necessity of having fitting the fundamental human rights and dignity of individuals including men an omen. In view of Jurist C. Bunch (Transforming Human Rights from a Feminist Perspective, 1995): "Human Rights Instruments and mechanisms provide avenues for challenging the systematic abuse of women, and governments can be made to take gender-based violations more seriously by being held accountable for the implementation of laws against them.

The Declaration dealt with civil and political rights of men and women in terms of equality. It also dealt with the social and economic right. The principle of equal rights of men and women has been incorporated in the Universal Declaration of Human Rights.
  1. Art. 1: All human are born free and equal in dignity and rights. 
  2. Art. 2: Everyone, without distinction of any kind such as race, colour, sex, language, religion, political or other status, is entitled to all the Fights and freedoms set forth in this Declaration.
  3. Art. 3; Everyone has the right to life, liberty and security of person irrespective of the country of territory he/she belongs to.
  4. Art. 4: Prohibition of slavery and slavery trade.
  5. Art. 5: Prohibition of torture, cruel, inhuman or degrading treatment or punishment.
  6. Art. 6: Right to be recognized as person before law.
  7. Art. 7: Emphasises that all are equal before the law and are entitled, without any discrimination, to equal protection of law,
  8. Art. 10: Right to a full equality to a fair and public hearing by an independent and impartial tribunal.
  9. Art 11: Right to education, without any discrimination.
  10. Art. 13: Freedom from arbitrary interference with privacy, family, home and correspondence or attack on honour or reputation and right to protection by law against such interference.
  11. Art. 14: Right to freedom of movement and residence within the borders of the state.
  12. Art. 15: Right to leave any county, including his/her own, and to return to his/her county.
  13. Art. 16: Right to seek and enjoy in other country asylum from persecution in respect of political crimes.
  14. Art. 17: Freedom from arbitrary deprival of nationality and to change nationality (right to a nationality).
  15. Art 18: Right to marry with the free and full consent and to found a family and equal rights to men and women as to marriage, during marriage and at its dissolution.
  16. Art. 19: Right to own property and freedom from arbitrary deprival of property,
  17. Art 20: Right to freedom of thought, conscience and religion.
  18. Art 21: Right to freedom of opinion and expression.
  19. Art 22: Right to freedom of peaceful assembly and association.
  20. Art 23: Right to take part in the government of the county.
  21. Art. 24: Right of equal access to public services in the country.
  22. Art. 25: Right to social security and the right to realization of the economic, social and cultural rights.  
  23. Art. 26: Right to work and favourable conditions of work.
  24. Art. 27: Right to equal pay for equal work.
  25. Art. 28: Right to just and favourable remuneration.
  26. Art. 29: Right to form and to join trade unions.
  27. Art. 30: Right to rest and leisure.
  28. Art. 31: Right to living wages, adequate for the health and well-being of himself/ herself and his/her family. 
  29.  Art. 32: Right of all children to enjoy same social protection.
Legal effect of the Declaration (i.e. the UDHR, 1948) is a proclamation of the U.N. providing common standard of achievement. It recognized the inherent dignity and equality among the people, i.e. men and women. The concept of human rights mentioned in the proclamation is universal, indivisible, interdependent and interrelated. It is the duty of the states to promote and protect the social, political, civil and economic rights of all human beings. The said proclamation was not meant to be legally binding and therefore it did not impose any legal obligation on the state to give effect to its provisions. The nature of provision as contemplated in the said proclamation is only recommendatory and it was not strictly binding on the states.

4. International Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, 1949

It emphasized that the prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community. Subsequently, with respect to the suppression of the traffic in women and children, several international instruments have also come into force.

5. Convention on the Political Rights of Women, 1952

This convention intends to implement the principle of equality of rights for men and women on equal terms.
  1. The right to vote: Art. I of the convention lays down that the women shall be entitled to vote in all elections on equal terms with men without any discrimination.
  2. Eligibility for election: Art. Il of the convention provides that women shall be eligible for election to all publicly elected bodies established by national law on equal terms with men and without any discrimination. 
  3. The right to hold public office: Women shall be entitled to hold public office and to exercise all public functions, established by national law, on equal terms with men and without any discrimination.

6. The Convention on the Nationality of Married Women, 1957

This convention provides for determination of nationality of a married woman in the context of marriage and also of its dissolution.

7. Convention and Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage, 1962

It aimed at prohibiting child marriage and at safeguarding the principle of free consent to marriage. No marriage shall be legally entered into without the full and tree consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law. State parties to this Convention shall take legislative action to specify a minimum age for marriage. No marriage shall be legally entered into by any person under the so specified age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses. All marriages shall be registered in an appropriate official register by the competent authority.

8. Declaration on the Elimination of Discrimination Against Women, 1967

Declaration on the Elimination of Discrimination Against Women (DEDAW) united in a single instrument the principles and standards relating to the rights of women in all spheres of I Iv life and society. It was adopted unanimously by the General Assembly on 711 November 1967. In the preamble to the Declaration, it has been laid down that as the discrimination against women has continued to exist even after the charter of the United Nations, the Universal Declaration of Human Rights and other Instruments and the progress made in the matter of equality of rights, it becomes necessary to make the Declaration in order to attain equality of rights of men and women, and the Elimination of discrimination based on sex. It emphasises the flowing.
  1. That the discrimination against women, denying or limiting their equality of rights with men is fundamentally unjust and constitutes an offence against human dignity.
  2. That the existing laws, customs, regulations and practices which are discriminatory against women must be abolished. The adequate legal protection for equal rights of men and women must be provided. The international Instruments of the U. N. and specialized agencies relating to the elimination of discrimination against women and their full implementation must be ratified or accede to, as soon as possible.
  3. Appropriate measures shall be taken to generate public opimon towards the eradication of prejudice against women.
  4. That all appropriate measures be taken to ensure to women on equal terms with men and without any discrimination the right to vote in all elections and be eligible for election to all publicly elected bodies and the right to hold public office and to exercise all public functions.
  5. That woman shall have the same rights as men to acquire, change or retain their nationality and that marriage to an alien shall not automatically affect the nationality of the wife.
  6. That all appropriate measures, p'articularly legislative measures, shall be taken to ensure to women, married or unmarried, equal rights with men in the field of civil law, e.g. property, marriage, children, etc. 
  7. That all provisions In Penal Code which constitute discrimination against women shall be repealed.
  8. That all appropriate measures shall be taken to ensure to girls and women, married or unmarried, equal rights to seek education at all levels.
  9. That all appropriate measures shall be taken to ensure to women equal rights with men in the field of economic and social life.
  10. That all appropriate measures shall be taken to combat all forms of traffic in women and exploitation of prostitution of women.
  11. That child marriage and the brothel of young girls before puberty should be prohibited.
  12. That equal protection in employment and professional advancement shall be ensured.

9. Convention on the Elimination of all Forms of Discrimination Against Women, 1979

General Assembly adopted this Convention (CEDAW) on December 18, 1979. The State parties to this Convention determined to implement the principles set forth in the preceding declaration and for that purpose, to adopt the measures required for the elimination of such discrimination in all its forms and manifestations. The term "discrimination against women" means any distinction, exclusion or restriction made on the basis of sex which has the effect of impairing enjoyment bv women irrespective of their marital status, on a basis of equality of men and women, of human rights in the political, social, cultural, civil or any other field.

The specialized agencies have to be established in order to achieve the fundamental objectives of the conventions and the efforts should be made to root out all the forms of discrimination between men and women, as discrimination of any kind is a sure obstacle to the participation of women with men.

The State parties to the Convention were fully convinced that discrimination is an important factor causing obstruction in the development and advancement of women with men at national and international levels. It was realized that to achieve equality of women with men it is indispensable to bring awareness in the society across the world because it is needed most in the present scenario.

10. Declaration on Elimination of Violence against Women, 1993

This declaration is the first of its kind which exclusively dealt with the elimination of violence against women and intends to protect the fundamental right of freedom of women.

Art. 1 of the said Declaration provides as under: Any act of gender-based violence that results in or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life should be eliminated. Violence is not only physical or sexual harm to women, but also psychological harm caused to women.

Following are the World Conferences on Human Rights which are worth noting. particularly the Vienna Conference.
  1. First Conference held at Mexico City (1975): Focused on equality, development and peace at the international level. 
  2. Second world conference (1980) was held in Copenhagen: Focused on education, employment and health for all.
  3. Third World Conference at Nairobi (1985): Reviewed and assessed the achievements during the period commencing from the year 1976 to 1985,
  4. Fourth at Vienna, 1993: Took up 23 varieties of points covering aspects such as AIDS, aging, refugee and displaced women, poverty and apartheid. Pledged unanimously on the Elimination of Violence against Women and also realized that it is a major hurdle to the achievement of equality, development and peace. It was for the first time that the subject of physical, sexual and psychological violence against women was addressed vehemently.

11. Beijing Declaration, 1995

In September, 1995 the Forth World Conference on Women was held in Beijing, China. The outcome of this Conference was a 'Platform for Action' that emphasized the human rights of women and the need to mainstream a gender perspective in all sections and at all levels of policy-making and planning to achieve gender equality, The Platform for Action recommended action in twelve areas of concern as these areas were considered then hurdle in the women's advancement. These areas of concern are: poverty, education, health, violence, armed and other conflicts, economic participation, power, sharing and decision- making, national and international machineries, human rights, mass media, environment and development of the girl child.

12. United Nations Development Fund for Women, 1976

United Nations Development Fund for Women (UNIFEM) provides financial and technical assistance to innovative programmes and strategies that foster women's empowerment. It is the women's fund at the United Nations dedicated to advancing women's rights and achieving gender equality. UNIFEM works on the premise that it is the fundamental right of every woman to live a life free from discrimination and violence, and that gender equality is essential to achieving development and to building just societies.

13. Optional Protocol to the Convention on the Elimination of Discrimination Against Women, 1999

By means of this protocol it was realized by the State parties to the Convention on the Elimination of all Forms of Discrimination Against Women, 1979 that there is an urgent need to gear up by all adequate means to ensure full and equal enjoyment of freedom by women of all human rights. In this context, India, which is one of the signatories to the Protocol, has shown the Parliamentary Endeavour in the relevant field. As a result, in the year 2005, the Parliament has passed the enactment called the Protection of Women from the Domestic Violence Act, 2005.

Women's Rights and Their Protection in India

Prior to focusing on various legislations relating to women in India, we need to understand the status of women vis-a-vis the international conventions, etc.,

discussed above Status of India vis-a-vis International Conventions: India is a signatory to most of the aforesaid international Instruments. The Indian Constitution, which came into force from 26th January, 1950, has also adopted the various rights that have been mentioned under the international Conventions, and given them the status of fundamental rights in part Ill. The various rights that have been included are: the right to equality (Art. 14), freedom of speech and expression in various forms (Art. 19), Right to life and personal liberty (Art. 21 ), right to practice one's own religion (Art. 25), etc. Further, though any of the aforesaid conventions do not have any binding value, the courts have time and again relied on such conventions and have used them while delivering judgments in cases such as Keshavananand Bharti v State of Kerala (1973, p. 1461). In this case, the Supreme Court observed that the Universal Declaration of Human Rights, 1948 may not be a legally binding instrument but it shows how india understood the nature of human rights at the time Constitution was adopted. Thereafter, on several occasions the Supreme Court clarified that a number of Indian Constitutional provisions are similar to the provisions contained in the Declaration and the provisions of the Declaration can be referred while constructing judicial pronouncements and interpreting the Indian Constitutional provisions.

Rights of women as provided for in the Constitution of India are given in brief below.

1. Rights Guaranteed to Women under the Constitution

Our Constitution, the fountain head of all laws and the organic law of the land, recognizes equality of the sexes and prohibits discrimination on the basis of sex. There are many other constitutional privileges that are available to women. All provisions of the constitution are applicable in equal measure to men and women and can, therefore, be invoked by the women for assertion of their rights. It also provides legislation to be made to confer more rights on women by making special provisions. Further, there are many constitutional privileges that are available to women.

Part Ill of the Constitutions, consisting of Article 12 to 35, relating to Fundamental Rights, is considered the 'heart' of the constitution. The fundamental rights are regarded as fundamental because they are most essential for the attainment by the individual of his full intellectual, moral and spiritual status. Part Ill and Part IV provide the backbone of legislature for socio-economic emancipation of women. These are the foundations on which protective legislations for women have been designed.

The essence of these constitutional provisions along with relevant and important cases is presented below so as to highlight their significance in protection and promotion of women's rights and privileges.

Art. 14: Right to Equality: It enunciates the general principle of right to equality and prohibits the State from denying to any person "equality before the law or the equal protection of laws." Thus, it provides equality before law for women. The underlying principle of Art. 14 of the Constitution of India is reflected in the statement, "like should be treated alike and not that unlike should be treated alike." Therefore, amongst equals, law should be equal and should be equally administered. It recognizes "women" as a class and declares this "class" to be different from men as a class. In the case of Chitraghosh v Union of India (1970, p.35), the Court permits reasonable classification, yet classification based on sex is not permissible. Other relevant and important cases are: i) Uttarkhand Mahila Kalyan Parishad v State of UP (1992, p. 1695) — on differential treatment between man and woman in educational department; ii) Air India International v Nargesh Meerza (1981, p. 1829) — on discriminatory service conditions.

Article 15: It prohibits discrimination on ground of religion, race, caste, sex or place of births; Article 15(3) empowers the State to take affirmative measures for women, based on protective discrimination principle. It permits making special provision for women and children by the State and the Courts have upheld the validity of special measures in legislation or executive orders favoring woman. In particular, provisions in the criminal law, in favor of woman or in the procedural law discriminatory in favor of woman, have been upheld. Important cases are: i) Smt. Savitri v Bose (1972, p.305) — granting license for opening liquor shop, Art. 15 (3) advantage; ii) Dattatraya v State of Bombay (1952, p. 181) — Institution can be establish exclusively for woman,

Article 16: Equality of opportunity in matters of public employment: It ensures equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. It is an extension of the goal of "equality of status and opportunity". Important and relevant cases are: i) Randhir Singh v Union Of India (1982, p.879) — upheld the principle of equal pay for equal work; ii) Uttarkhand Mahila Kalyan Parishad v State of U. P. (1992, p. 1695) — difference in pay scales of male and female employees.

Article 19: Right to Freedom: 19 (l)(g) gives protection to certain rights regarding freedom of speech, etc., to practice any profession, or to carry on any occupation, trade or business. Important and relevant cases are: i) Vishaka v State of Rajasthan (1997, p,3011) — The Supreme Court laid down exhaustive guidelines to prevent sexual harassment of working women at their working place; ii) Delhi Domestic working Woman 's Forum v Union of India ( 1995, p. 14) — The Supreme Court called for protection to the victims relating to rape and violence against working woman.

Article 21: Protection of life and personal liberty: No person shall be deprived of his/her life or personal liberty except according to procedure established by Law, Important and relevant cases are: i) State of Maharashta v Madhukar Narain (1991, p.207) — the Court held that woman of easy virtue is entitled to privacy; ii) State of Punjab v Gurmit Singh (1996, p.998) — rape trial must be held in-camera; iii) Bodhi Satwa Gautam v Subra Chakraborty (1996, p,490) — The right to life also includes the right to live with human dignity and rape violates this right of woman.

Article 23: Right Against Exploitation: It prohibits traffic in human beings and forced labour. Traffic in human beings means selling and buying human beings as slaves and also includes immoral traffic in woman and children for other purpose.

To curb the deep rooted social evil of prostitution and to give effect to this Article the Parliament has passed the Immoral Traffic (Prevention) Act, 1956. Important and relevant cases are: i) Vishal Jeet v Union of India (1990, p. 1412 ) — prohibited prostitution; ii) Gaurav Jain v Union of India (1997, p.3021) — the Supreme Court has placed emphasis on the need to provide to prostitute opportunities for education and training so as to facilitate their rehabilitation; iii) Sanjit Ray v State of Rajasthan (1983, p.328) — held that the payment of wage less than the prescribed under the minimum wages Act amounts to forced labor or beggary; iv) Neeraj Choudhary v State of M.P. ( 1984, p.328) — compelling to work in unhygienic conditions amounted to violation of Art. 21 and Art. 23; v) Laxrni Kant v Union of India (1984, p.469) — selling the female infants and girls to foreigners under the guise of inter-country adoption and marriage violates Art.23. Guidelines laid down for foreign adoption.

Article 39 enjoins the State to provide an:
  1. adequate means of livelihood to men and women,
  2. equal pay for equal work, and
  3. men and women not forced by economic necessity to enter avocations. 
To give effect to this Article, the parliament has enacted the Equal Remuneration Act, 1976 which provides for payment of equal remunerations to men and woman workers. Important and relevant cases are: i) Randhir Singh v Union of India (1982, p.879; ii) Mackinnon Mackenzie and Co. Ltd. v Andrey D' Kosta (1987, p. 1281) — upheld equal pay for equal work (Stenographers).

Article 42: State to ensure the provision for just and humane conditions of work and maternity relief: The State shall make provision for securing just and humane conditions of work and for maternity relief. Legislations which promoted the objectives of this Article are:
  1. Workmen's Compensation Act, 1923.
  2. The Employees State Insurance Act, 1948.
  3. The Minimum Wages Act, 1948
  4. The Maternity Benefit Act, 1961.
  5. The payment of Bonus Act, 1965.
Important and relevant cases are: Municipal Corporation of Delhi v. Female workers (Muster Roll) (2000, p. 1274) — held that the maternity benefit extends even to daily wage employees.

Article 44: Uniform Civil Code: The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India. Important and relevant cases are: i) Mohd. Ahmed Khan v Shah Bano Begum (1985. p.945) — Sec 125 of Cr.P.C. Act. After this case, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted.

Article 46: The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation.

Article 51-A(e): Fundamental duties — It shall be the duty of every citizen of India to renounce practices derogatory to the dignity of woman. This provision found its manifestation through the enactment of The Indecent Representation of Woman Prohibition Act, 1986.

Article 243D and Article 243T have been added to the Constitution by the 73rd and 74th Amendments. 81st Amendment Bill reserves 1/3 of seats for woman in the Lok Sabha and the State Assemblies.
  1. Article 243D: Reservations of seats for women belonging to SC & ST in every panchayat — not less than 1/3 of the total number of seats. Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat (Article 243D(3)). Not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women (Article 243D(4)).
  2. Article 243T: Reservations of seats for women belongs to SC and ST in every municipality, not less than 1/3 of the total number of seats. Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality (Article 243T(3)). Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may by law provide (Article 243T (4)).
Further, the Constitution of India has provided in Part IV the Directive Principles of State Policy. These directives impose certain obligations on the State to take positive action in some circumstances that can promote the welfare of the people. Nevertheless, it can be concluded that despite the Constitutional safeguards and the active judicial support towards the women, the status of women is not yet equal to men. Laws written in black and white are not enough to combat the evils. It is expected that the courts should deal with cases relating to women in a more realistic manner. A socially sensitive judge should handle the cases of crimes against woman. Awakening of the collective consciousness is the need of the day to rise the status of women.

2. Specific Legislations and Policies Related to Women: An Overview

The State (India) has enacted various legislative measures intended to ensure equal rights to women, to counter social discrimination and various forms of violence and atrocities against them and to provide support services, especially to working women, to uphold the constitutional mandate. Although all laws are not gender specific, the provisions of law significantly affecting women have been reviewed periodically and amendments have been carried out to keep pace with the emerging requirements. Some Acts which have special provisions to safeguard women and their interests are:
  1. The Employees State Insurance Act, 1948 
  2. The Plantation Labour Act, 1951 
  3. The Special Marriage Act, 1954 
  4. The Hindu Marriage Act, 1955 
  5. The Hindu Succession Act, 1956 
  6. Immoral Traffic (Prevention) Act, 1956 
  7. The Maternity Benefit Acts 1961 
  8. Dowry Prohibition Act; 1961 
  9. The Medical Termination of Pregnancy Act, 1971 
  10. The Contract Labour (Regulation and Abolition) Act, 1976 
  11. The Equal Remuneration Act, 1976
  12. The Child Marriage Restraint (Amendment) Act, 1979
  13.  The Crirmnal Law (Aluendment) Act, 1983 
  14. The Family Courts Act, 1984 
  15. The Factories (Amendinent) Act, 1986 
  16. Indecent Representation of Women (Prohibition) Act, 1986 
  17. Commission Of Sati (Prevention) Act, 1987 
  18. Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 
  19. Protection of Women from Domestic Violence Act, 2005 
  20. Prohibition of Child Marriage Act, 2006
Thus, the State took measures to enact, amend or abolish specific legislations and policies affecting or discriminating against women and to facilitate effective participation of women. These, in nutshell, include the following.

A) Labour Laws relating to Women

  1. The Factories Act, 1948: Section 34 provides that the State government can lay down rules prescribing weights that may be carried by men and women.
  2. The Contract Labour (Abolition and Regulation) Act and Rules: Prescribed separate provision of utilities for women and fixed working hours (These laws have proper implementation mechanisms; however, there is no provision for monitoring the effect of these laws on women. Further, allowance for special provisions for women has often proven to be detrimental to their employment opportunities).
  3. Maternity Benefit Act, 1961 : It provides measures and benefits to women in service during pregnancy.
  4. Equal Remuneration Act, 1976: It mandates equal pay for equal hours of work for men and women.

B) Trafficking

  1. Immoral Traffic Prevention Act, 1956.

C) Domestic Violence

  1. Criminal law: Section 498A.
  2. Protection of Women from Domestic Violence Act, 2005 & Rules: It is a civil law on domestic violence. It gives protection to women by providing shelter, custody, medical facilities, compensation, etc. The cases under it are disposed in 60 days. Protection officers and service providers are appointed under this Act to help the women victims.

D) Dowry

Despite specific provisions under PWDVA, Protection Officers have yet not been appointed in all states. States that have identified Protection Officers have "deputed" officials as opposed to the required "full-time" appointments. Despite legislations mandating provisions of legal aid, women are often unable to avail of the services. Services are also often inadequate and not of quality. High cost of litigation deters court action by women. Lack of awareness of rights amongst community prevents women from taking or sustaining action. Inadequate responses and lack of co-ordination by multiple agencies in combating violence and discrimination are other problems.
  1. Dowry Prohibition Act, 1961: Prohibits giving and taking of gifts or money at the time of marriage.

E) Sex Determination and Abortions

  1. Pre-conception and Pre-natal Diagnostic (Prohibition of Sex Selection) Act, 1994: It requires the following bodies to undertake publicity efforts and allows for the filing of compliance reports on a regular basis: 
    1.  Policy-making Bodies at the Centre and State.
    2. Implementing Authorities at State, District and Sub-district levels. 
    3.  Advisory Bodies at State, District and sub-district levels.
  2. Medical Termination of Pregnancies Act 1971: Prescribes guidelines and procedures to the medical fraternity with regard to abortion. 
    1.  Despite legislations on sex selective practices, use of technology in conducting pre-natal sex selection continue to support female feticide. Lack of enforcement of the legislations coupled with inadequate recognition of equal rights of women serve in continuance of such sex discriminatory practices.

F) Sexual Harassment

  1. Indian Penal Code: Section 354 - Outraging the modesty of a woman: Criminalizes all non-penetrative sexual offences against women and is often used in cases of sexual harassment.
  2. Supreme Court Guidelines on the prevention of sexual harassment at workplace (Visakha v State of Rajasthan): Prescribes preventive steps and provides for a complaints mechanism through setting up of complaint committees and disciplinary action.
  3. Proposed Bill on Sexual Harassment at workplace: This bill provides for prevention and redressal mechanisms in cases of sexual harassment at work places.
  4. Personal Laws: Personal laws are based on religious practices. It deals with marriage, property rights, guardianship, custody rights and maintenance. Some of the personal laws are codified, and some are uncodified. Customary practices of communities are recognized under Law.
    • Madhu Kishwar v State of Bihar (1996, p. 125): Challenged a tribal law dis-entitling tribal women from inheriting land as being discriminatory. The court struck down the discriminatory provisions and ruled that women could assert a right of occupation against male inheritors but not alienate it.
    • Daniel Latifi Case (2001, p. 740): Challenged discriminatory provisions on maintenance for Muslim women. Although the court did not strike down the law, it held that unless Muslim women are paid not just a provision for the iddat period (three months) but a reasonable and fair provision for life, the provision would be liable to be struck down. The advantage of the challenge was to gam substantial rights to maintenance for Muslim women.
Obstacles to implementation: Personal laws relating to marriage, divorce and inheritance governed by laws of the specific community overshadow constitutional guarantees of equality. Discriminatory provisions under personal laws deny women equal protection or equality before the law. Some of the discriminatory practices are: triple talaq practice giving unilateral power of divorce to men; Hindu women have the right to guardianship only in the absence of the male guardian, discriminatory property rights under Hindu laws persist even after amendments. However, fact is that, none of the disc minatory personal laws have been struck down in entirety on the basis of violating fundamental rights of women.

G) Political Participation

  1. 73rd and 74th Amendments to the Constitution had given reservations for women in Panchayats and Municipal Bodies (local governments). Panchayati Raj Acts have been passed by several State governments giving effect to the Constitutional provisions.

3. Protection of Women under Criminal Laws

Women have a right to protect their person or body from being violated by men. Women belong to weaker section of the community, and in most circumstances unable to secure their person and honours and need keen and immediate relief from the courts in such matters.

Under the Indian Penal Code, there are certain offences against women which are punishable with imprisonments of description for different terms or with fine or with both. These offences are covered under relevant sections of IPC mentioned, in brief, below.
  1. Section 312 — Causing miscarriage: Whosoever voluntarily causes a women with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished. A woman who causes herself to miscarry also falls within the meaning of this section.  
  2. Section 313 — Causing miscarriage, defined in the preceding section, without women 's consent.
  3. Section 314 — Death caused by act done with intent to cause miscarriage. 
  4. Section 315 — Act done with intent to prevent child being born alive or to cause it to die after birth.
  5. Section 316 — Causing death of quick unborn child by act amounting to culpable homicide.
  6. Section 354 — Outraging the modesty of women: The test of the outrage of modesty must be whether a reasonable man will think that the act of the offender was intended to or was known to be likely to outrage the modesty of a woman.
  7. Section 375 — Rape: A man is said to commit 'rape' if he has sexual intercourse with a women under circumstances falling under any of the six following descriptions:
    1. Against her will;
    2. Without her consent;
    3. With her consent (fear of death or hurt);
    4. With her consent not his wife (lawfully married).
    5. With her consent (unsoundness of mind and intoxication).
    6. With or without her consent, when she is under 16 years of age. Explanation: Penetration is sufficient to constitute the sexual intercourse. Sexual intercourse includes that by a man with his own wife if his wife is within fifteen years of age.
  8. Section 376(2)(g) — Gang Rape: Where a women is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.
  9. Section 376-A: Intercourse by a man with his wife without consent during separation.
  10. Section 376-B: Intercourse by public servant with woman in his custody.
  11. Section 376-C: Intercourse by superintendent of jail, remand home, etc.
  12. Section 376-D: Intercourse by any member of the management or staff of a hospital with any woman in that hospital (advantage of his official position ). Section 493: Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.
  13. Section 494: Marrying again during lifetime of husband or wife: This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife if such husband or wife at the time of the subsequent marriage shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage, shall before such marriage takes place informs the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge. 
  14. Section 495: Offence under Section 494 committed with concealment of former marriage from person with whom subsequent marriage is contracted. 
  15. Section 496: Marriage ceremony fraudulently gone through, without lawful marriage.
  16. Section 497: Adultery: Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man without the consent or connivance of that man such sexual intercourse not amounting to the offence of rape is guilty of the offence of adultery. Section 498: Enticing or taking away or detaining with criminal intent a married woman.
  17. Section 498-A: A husband br relative of husband of a woman subjecting her to cruelty.
For the purpose of this section cruelty means:
  1. Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger of life, limb or health (whether mental or physical) of the women; or 
  2. Harassment of the women where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
In addition to the above, Section 113-A of Indian Evidence Act, 1872 provides that when a married woman commits suicide within a period of seven years from the date of her marriage, the court may presume that such suicide is abetted by the husband or his relations and the burden of proving that it was not dowry- death is on the husband and his relatives as the case may be.

4. Maternity Protection under Maternity Benefit Act, 1961

The Maternity Benefit Act, 1961 is an employer's liability scheme. 'Employer's liability' here implies that the employer solely bears the full amount of liability for providing maternity protection to pregnant employees and the employees are not required to make any contribution for availing of the maternity benefits. This is a Central Act and covers the whole of India. It aims to impart social justice to women employees. It protects the dignity of motherhood by providing for full and healthy maintenance of the woman employee and her child during the period of her confinement.

The Maternity Benefit Act, 1961 also aims at regulation of employment of women in certain establishments for certain periods before and after birth of the child and to provide maternity benefit and certain other benefits and facilities to the women employees such as paid-maternity leave, cash benefits, exemption from arduous work, protection from dismissal, and nursing breaks to the pregnant women employees in a dignified manner so that they may overcome the state of motherhood honorably, peaceably and undeterred by the fear of being victimized for forced absence during the pre- or post-natal period. Indeed, this is a major legislative enactment providing for maternity benefits in the formal sector.

In the case of B. Shah v Labour Court, Coimbatore (1978, p. 12), the Supreme Court, while interpreting the provisions of maternity benefit legislation, stated: "the beneficent rule of construction which would enable the woman worker is not only to subsist but also to make-up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output".

The Maternity Benefit Act, 1961 applies to every establishment, being a factory, mine, or plantation including any such establishment wherein persons are employed for the exhibition of aerobatics, equestrian, and other performances. It was amended in the year 1988 to extend its application to the shops and establishments employing ten or more. This Act also covers those establishments, which are covered under the enabling provisions of the Act in different states.

Significantly, there is no wage limit for coverage under the Maternity Benefit Act, 1961, which covers all women in the applicable establishments. It is not applicable to the employees working in fact ones and other establishments, which are covered by the Employees' State Insurance Act, 1948.

Quite noteworthy feature is that the Maternity Benefit Act, 1961 does not mandate that a woman employee be married to avail of these benefits. The act prohibits any woman from working in an establishment during the six weeks after her delivery or miscarriage. Also, the employers are forbidden to knowingly employ women during this period and employed women are required to take a paid leave of six weeks.

This Act enshrines that a woman shall be entitled to the maternity benefit for a maximum period of 12 weeks of which not more than six weeks shall precede the date of her expected delivery. If a woman employee could not avail of six weeks' leave preceding the date of her delivery, she was entitled to only six weeks' leave following the day of her delivery. However, by virtue of an Amendment in 1989, the position has changed. Now, in case a woman employee does not avail six weeks' leave preceding the date of her delivery, she can avail of that leave following her delivery, provided the total leave period, that is, preceding and following the day of delivery of her delivery does not exceed 12 weeks. The possibility for women to choose how they wish to divide up their maternity leave on a pre-natal and post-natal basis appears to be in the interests of a better harmonization of work and family responsibilities.

In this context, it is worth mentioning that the ILO Maternity Protection Convention, 2000 (No. 183) stipulates a period of maternity leave of not less than 14 weeks while the ILO Maternity Protection Recommendation, 2000 states that the members should endeavor to extend the period of maternity leave to at least 18 weeks. Interestingly, the pregnant women employees working in the Central Government are entitled to maternity leave of 135 days whereas the pregnant women under the Employees' State Insurance Act, 1948 the Maternity leave is up to a maximum of 12 weeks only.

Apart from this, women who suffer from illness arising out of pregnancy, delivery, premature birth, or miscarriage have the right to take an extra month's paid leave. In case of miscarriage, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit for a period of six weeks immediately following the day of her miscarriage. Whereas a woman employed in the Central Government, in case of miscarriage/abortion (induced or otherwise), is entitled to a total leave of 45 days in the entire service period (excluding such leave taken prior to 16 June, 1994).

Maternity Benefit Act, 1961 is also applicable to casual workers and daily wage workers. In Municipal Corporation of Delhi v Female Workers (2000, p. 1274), the Supreme Court declared that there is nothing in the Maternity Benefit Act which entitles only regular women employees to the benefit of maternity leave and not those who are engaged on casual basis or on muster roll on daily-wage basis. Also, in a very recent case, Anima Goel v Haryana State Agricultural Marketing Board (2007, p.479), the Punjab and Haryana High Court held that even when a female employee is engaged on contractual basis, she would be entitled to maternity benefit under Section 5 of the Maternity Benefit Act, 1961.

The Act lays down that every woman shall be entitled to the maternity benefit and her employer shall be liable for payment to the woman worker at the rate of average daily wages for the period of her actual absence immediately preceding and including the day of her delivery and for six weeks immediately following that day. In this regard, it is noteworthy that without making any contributions whatsoever the pregnant woman is entitled to derive maternity benefits provided she has worked for not less than 80 days in the establishment during the 12 months preceding the day of her expected delivery whereas under the Employees' State Insurance Act, 1948 a woman employee, to be eligible for the maternity benefits, must have paid weekly contributions for not less than 13 weeks in the contribution period. In addition, every woman entitled to maternity benefit shall also be allowed a medical bonus of Rs. 1,000, if there was no pre-natal confinement and post-natal care is provided by the employer free of cost. The Central Government may, before every three years, by notification in the official Gazette, increase the amount of medical bonus of Rs.20,000. If any woman who has been allowed to go on maternity leave, works in any other establishment for any period during the authorized leave, then her claim to the maternity benefit for such period worked shall be forfeited. In case a woman employee dies during the period when the maternity benefit is due to her, she is entitled to benefits up to including the day of her death. However, if she bears a child that survives her, the employer is obliged to pay benefits up to six weeks after delivery or as long as the child survives whichever is less. In such eventuality, the payment is to be made to the person she has nominated or if no one is nominated, to the legal representative.

However, no woman employee under the Maternity Benefit Act, 1961 shall be entitled to the maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit for a period of not less than 80 days in the twelve months immediately preceding the date of expected delivery. In Bharati Gupta (Mrs) v Rail India Technical and Economical Services Ltd. (2005, pal 108), the court held that the female employee on contractual appointment, having worked for 80 days will be entitled to maternity benefits. For calculating the number of days on which a woman has actually worked during the preceding twelve months, the days on which she has been laid off or was on holidays with wages shall also be counted.

During pregnancy, exposure to certain hazardous and arduous job or unsafe working environment may have adverse effects on the health of a woman employee and her unborn child. In line with the requirements of the ILO Maternity Protection Recommendation, 1952 (No.95), our legislation — Maternity Benefit Act, 1961 — provides for measures to protect the health of pregnant women and their children, seeking to minimize fatigue by the reorganization of working time or to protect women against dangerous or unhealthy work. Accordingly, the pregnant woman employee can opt not to perform work which entails long hours of standing and is likely to cause a miscarriage or otherwise to adversely affect her health. This act prohibits the employer from making deductions from her wages because of the nature of work that may be reassigned to her.

When a woman employee returns to work after delivery of a child, she has the right to two breaks per day for nursing until the child attains the age of fifteen months. In this regard, the ILO Maternity Protection Convention, 2000 (No. 183) provides that a woman shall be provided with the right to one or more daily breaks or a daily reduction of hours of work to breastfeed her child. Further, it outlines that, where practicable, provision should be made for the establishment of facilities for nursing under adequate hygienic conditions at or near the workplace. Indubitably, it is a step for the care and improvement of a newly born child's health. This measure is in addition to her normal interval for rest. It is to be noted that the employers are prohibited from decreasing woman's wages on account of the nursing breaks.

When a woman employee absents herself from work in accordance with the provisions of the Maternity Benefit Act, 1961, it shall be unlawful for her employer to discharge e: dismiss her during or on account of such absence, or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service. It guarantees that a working woman who is discharged at any time during her pregnancy but who would otherwise have been eligible for benefits will still have a right to maternity benefits and medical bonus. In this respect, the ILO Maternity Protection Convention, 2000 (No. 183), also provides that it shall be unlawful for an employer to terminate the employment of a woman during her pregnancy, or absence on account of maternity leave, or during a period following her return to work to be prescribed by national laws or regulations, except on grounds related to the pregnancy or birth of the child and its consequences or nursing. The burden of proving that the reasons for dismissal are unrelated to pregnancy Or childbirth and its consequences or nursing shall rest with the employer. By virtue of the Maternity Benefit Act, 1961, a woman is guaranteed the right to return to the same position or an equivalent position paid at the same rate at the end of her maternity leave.

It may, however, be mentioned that the protection against dismissal is not available to the pregnant woman employee if she is charged for gross misconduct, for example, willful destruction of employer's goods or property; assaulting any superior or co-employee at the place of work; criminal offence involving moral turpitude leslilting in conviction in the court of law; theft, fraud, or dishonesty in connection with the employer's business or property. In such eventuality, the employer must notify her in writing that her benefits and bonus will be denied. Further, the pregnant woman employee, who is not eligible for benefits because she has wolked less than the required period of time, is also not protected against dismissal.

As regards the term 'week e, it is significant to note that neither the Employees' State Insurance Act, 1948 nor the Maternity Benefit Act, 1961 defines it. Thus, a question arises as to whether for the computation of maternity benefit for the six weeks preceding the date of delivery (including the period of 12 weeks day of delivery) and six weeks (following that date), cover wages for non-working days such as Sundays falling during the period of absence. On this, the Supreme Court, in the case of B. Shah v Labour Court, Coimbatore (1978, p. 12), opined that in the context of sub-sections (1) and (3) of Section 5 of the Act, the term 'week' has to be taken to signify a cycle of seven days including Sundays. The language in which the aforesaid sub-sections are couched also shows that the legislature intended that computation of maternity benefit is to be made for the entire period of the women employees actual absence, that is, for all the days including Sundays which may be wage-less holidays, falling within that period and not only for intermittent periods of six days thereby excluding Sundays falling within that period.

If any woman employee's claim for the maternity benefit to which she is entitled under the Maternity Benefit Act, 1961 has been improperly withheld or her employer has discharged or dismissed her during or on account of her absence from work, may make a complaint to the Inspector. Upon receipt of such a complaint from the woman employee, the inspector has the power to order for an enquiry and pass such orders as are just and proper according to the circumstances of the case. In furtherance, the Inspector can enter, at all reasonable time, any premises or place where women are employed or work is given to them in an establishment for the purposes of examining any registers, records, and notices required to be kept or exhibited under this act and require their production for inspection.

The Inspector can also ask the employer to give information regarding the names and addresses of women employed, payments made to them, and application or notes received from them under this act; and to take copies of any registers and records or notices or any portions thereof.

For failure to pay maternity benefit as provided under the Maternity Benefit Act, 1961 the employer is punishable with imprisonment from three months to one year and a fine from Rs.2,000 to Rs.5,000. If the court finds the employer guilty of failure to produce any register or document before the Inspector or obstructing the Inspector, or contravenes any other provision of the act or the rules, it can impose a punishment of imprisonment up to one year or a fine up to Rs.5,000 or both.

Shortcomings of Maternity Benefit Act, 1961: These include the following.
  1. All pregnant women employees are not covered for maternity benefits. 
  2. The Employees' State Insurance Act, 1948 and the Maternity Benefit Act, 1961 providing maternity protection for women employees are, more or less, restricted to the formal sector, which represents a small proportion of economic activity. These acts do not apply to women in unregistered economic activities in the informal sector who, in reality, represent the majority of women employees, engaged in agriculture, dairying, small animal husbandry, fisheries, home-based industries, ready-made garments, zari and embroidery work, basket-making, cottage and handicraft industries, handloom and power loom, and khadi industries. The condition of women employees in the unorganized sector is such that there is a very strong need to compensate them for their loss of earnings during maternity. 
  3. Protection from dismissal of service only during maternity leave: The Maternity Benefit Act, 1961 protects pregnant women from discharge/ dismissal of their service by the employer during the period of maternity leave. In this connection, it may be mentioned that if a woman is dismissed during pregnancy it only safeguards her right to claim maternity benefits; it does not protect her service by forbidding discharge or. Dismissal of a pregnant woman.
  4. Maternity leave of twelve weeks not enough: The Maternity Benefit Act, 1961 as well as Employees' State Insurance Act, 1948 prescribe a maternity leave of 12 weeks. In this context, it is of interest to note that the pregnant women employees in the Central Government are entitled to 135 days maternity leave. Keeping this in view, women who are covered under the Maternity Benefit Act, 1961 and under the Employees' State Insurance Act, 1948 should get at least a total of 14 weeks, if not equal to 135 days. Also, the ILO Maternity Protection Convention, 2000 stipulates 14 weeks maternity leave. Further, it is important to note that ILO Maternity Protection Recommendation, 2000 recommends 18 weeks maternity leave.

5. The National Commission for Women Act, 1990

The main objective of the National Commission for Women Act, 1990 is to constitute a National Commission for Women and to provide for all matters connected therewith or incidental thereto. The special features, functions, weaknesses and suggestions for improvement of the Commission are presented below.

1. Salient Features of the Commission

The National Commission for Women is constituted under Section 3 of the Act. The Commission shall consist of:
  1. A Chairperson committed to the cause of women, to be nominated by the Central Government;
  2. Five Members to be nominated by the Central Government found amongst persons of ability, integrity and standing who have had experience in law or legislation, trade unionism, management of an industry or organization committed to increasing the employment potential of women, women's voluntary organizations (including women activists), administration, economic development, health, education or social welfare. Provided that at least one member each shall be from amongst persons belonging to the Scheduled Castes and Schedule Tribes respectively;
  3. A Member-Secretary to be nominated by the Central Government, who shall be: i) An expert in the field of management, organization structure of sociological movement, or ii) An officer who is a member of civil service of the Union or of an all-India service who holds a civil post under the Union with appropriate experience.
They will hold office as fixed by law, and other officers and employees shall be appointed to assist the Commission. The Commission may appoint such committees as may be necessary for dealing with such special issues as may be taken by the Commission frolic time to time. The Commission or a committee thereof shall meet as and when necessary and shall meet at such time and place as the Chairperson may think fit. The Commission shall regulate its own procedure and the procedure of the Committees thereof. All orders and decisions of the Commission shall be authenticated by the Member-Secretary or any other officer of the Commission duly authorized by the Member-Secretary in this behalf.

2. Functions of the Commission

The functions of the Commission are specified under Section 10 of the Act.

(i) The Commission shall perform all or any of the following functions, namely:
  1. Investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws;
  2. Present to the Central Government, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
  3. Make in such reports the recommendations for the effective implementation of those safeguards for improving the conditions of women by the Union or any State Review, from time to time, the existing provisions of the Constitution and other laws affecting women and recommend amendments thereto so as to suggest remedial legislative measures to meet any lacunae, inadequacies or shortcomings in such legislation; 
  4. Take up the cases of violation of the provisions or the Constitution and of other laws relating to women with the appropriate authorities;
  5. Look into complaints and also take suo motu notice of matters relating to:
    1. Non-implementation of laws enacted to provide protection to women and also to achieve the objective of equality and development;
    2. Non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and ensuring welfare of women; and 
    3.  Providing relief to women and take up the issues arising out of such matters with appropriate authorities.
  6. Call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women and identify the constraints so as to recommend strategies for their removal;
  7. Undertake promotional and educational research so as to suggest ways of ensuring due representation of women in all spheres and identify factors responsible for impeding their advancement such as, lack of access to housing and basic services, inadequate support services and technologies for reducing drudgery and occupational health hazards and for increasing their productivity;
  8. Participate and advise on the planning process of socio-economic development of women;
  9. Evaluate the progress of the development of women under the Union and any State;
  10. Inspect or cause to be inspected a jail, remand home, women 's institution -or other place of custody where women are kept as prisoners or otherwise, and take up with the concerned authorities for remedial action, if found necessary;
  11. Fund litigation involving issues afflicting a large body of women;
  12. Make periodical report to the Government on any matter pertaining to women and in particular various difficulties under which women toil; and 
  13.  Any other matter which may be referred to it by the Central Government. 
(ii) The Central Government shall cause all the reports referred to in clause (b) of sub-section ( I ) to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non- acceptance, if any, of any of such recommendations.

(iii) Where any such report or any part thereof relates to any matter with which any State Government is concerned, the Commission shall forward a copy of such report or part of it to such State Government who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations,

(iv) The Commission shall, while investigating any matter referred to the matters in clause (a) or sub-clause (i) of clause (f) of sub-section (l), have all the powers of a civil court trying a suit and in particular, in respect of the following matters, namely:
  1. Summoning and enforcing the attendance of any person from any part of India and examining him on oath;
  2. Requiring the discovery and production of any document; 
  3. Receiving evidence on affidavits; Requisitioning any public record or copy thereof from any court or office; 
  4. Issuing commissions for the examination of witnesses and documents; and 
  5.  Any other matter which may be prescribed.
The Commission shall prepare, in such form and at such time, for each financial year, as may be prescribed, its annual report, giving a full account of its activities during the previous financial year and forward a copy thereof to the Central Government and the Central Government shall cause the annual report together with a memorandum of action taken on the recommendations contained therein, in so far as they relate to the Central Government, and the reasons for the non- acceptance, if any, of any of such recommendations and the audit report be laid as soon as may be after the reports are received, before each House of Parliament.

3. Specific Areas of Work Done by the Commission 

 Researches have been done and reports published by the Commission on the following matters:
  1. The conditions of women prisoners in Indian jails;
  2. Women and child prostitution;
  3. Codification of criminal laws pertaining to women;
  4. Family courts;
  5. Women in politics;
  6. Tribal women and employment;
  7. Amendments in the existing laws; and 
  8. Framing new bills for empowerment of women. 
Based on the researches, the NCW has done the following, among other things.
  1. The Commission had made more than 300 concrete recommendations to elevate the status of women in the country. It had also been instrumental in setting up enquiries, reviewing laws and suggesting amendments to 12 Acts, including the Commission for Sati Prevention Act, 1987 and Dowry Prohibition Act, 1961.
  2. It has framed a Code of Conduct at work place to prevent sexual harassment of women. The Code of Conduct as framed in accordance with the Supreme Court judgment in Vishaka v State of Rajasthan (1997, p.384) has been sent to all government offices, ministries and industries with the hope that employers would become more sensitive towards women. 
  3. NC W has recently taken up several cases of killing and torture of women. 
Weaknesses of the Commission: Following are the main weaknesses of the Commission.
  1. The National Commission for Women (NCW) does not have enforcing power but enjoys only a recommendatory role, which makes it a toothless body. 
  2. The working of the Commission is hampered by lack autonomy and a clear status. The government is the controlling authority and, therefore, susceptible to bureaucratic and political interference and influence.
  3. The NCW has not been granted an audience in Parliament or with the Cabinet. Reports and recommendations of NCW are tabled in Parliament by the Women and Child Development Wing of the HRD ministry.
  4. The Commission cannot appoint its own staff. The appointment and removal of staff belonging to the lower cadre belongs to the Ministry. The usual red tapism has hampered the working of the Commission.
  5. A major constraint of the Commission is that it has no investigating agency of its own as in the case of National Human Rights Commission.
  6. The Government is often keen to appoint only those persons who are seen to be close to its own ideology. The present method of nominating the Commission's Chairperson and members leaves it wide open to political manipulation. Yet, the activist's role played by the NCW in the past has not been appreciated by the government.
  7. The commission is not financially independent. Without sufficient fund and staff the Commission has been reduced to a highly decimated body. 8) Persons who come to the Commission with a great hope to find solutions to their problems often go disappointed, as the commission does not have sufficient right, powers and facilities to solve their problems.
  8. In some States, State-Commissions do not exist. So, poor and destitute women are left with no option but to approach the National Commission.
  9. Different State Commissions, where they exist, have varying frameworks of powers, responsibilities and work-atmosphere. In some States, matters do not move quickly because of bureaucratic and political involvement. 
In the light of the above weaknesses, the existing Act under which the NCW was constituted and its working must be critically reviewed and analyzed so that adequate amendments can be brought in to make it effective (Thomas B. Jeyaseelan, 2003).

Thursday, 25 October 2018

Rights and Protection of Labour

The history of labour legislation in India is naturally interwoven with the history of British colonialism. Considerations of British political economy were naturally paramount in shaping some of these early laws. To date, India has ratified 39 International Labour Organisation (ILO) conventions of which 37 are in force. Of the ILO's eight fundamental conventions, India has ratified four — Forced Labour, 1930; Equal Remuneration, 1951; Abolition of Forced Labour, 1957; and Discrimination (Employment and Occupation), 1958. The major objective of social security is to provide preventive, curative and rehabilitative services to meet the special needs of those vulnerable groups.

ILO (1984, p.2) defined the social security "as the protection which society provides for its members through a series of public measures, against the economic and social distress that otherwise would be caused by the stoppage or substantial reduction of earning resulting from sickness, maternity, employment, injury, unemployment, invalidity, old age and death, the provision of subsidies for families with children".

Prominent Features of Social Security

Social security consists of the following features.
  1. It is a part of social justice programme.
  2. It relates to social and economic conditions prevailing in the economy.
  3. It is a compensatory measure to protect the person having small means from risk and contingencies.
  4. It provides protection and stability to workforce.
  5. It incorporates benefits and other measures to help in case of sickness, old age, invalidity unemployment, maternity, death and such other things.
Thus, social security is an important part of public policy and government is supposed to provide regulatory framework for the same.

Social security measures bring in an element of stability and protection in the midst of stress and strains of life. It is major aspect of public policy and the extent of its prevalence is a measure of the progress made by a country towards the ideal of a Welfare State (Report of National Commission on Labour, 1969, p. 162). The concept of social security is based on ideals of human dignity and social justice. The underlying idea is that a citizen who has contributed or is likely to contribute to his country's welfare should be given protection against certain hazards.

Legal Protection of Labour in Organised Sector

The provisions of social security for organised workers are mainly protective in nature and are ensured through a legal framework and institutional infrastructure created under enabling legislations. The measures providing protection to working class against contingencies like retirement, resignation, retrenchment, maternity, old age, unemployment, death, disablement and other similar conditions are said to be the social security for employees. Social security for employees is a concept which over time has gained importance in the industrialized countries.

In India, the Constitution levies responsibility on the State to provide social security to citizens of the country. The State, here, discharges duty as an agent of the society in order to help those who are in adverse situations or otherwise needs protection owing to above mentioned contingencies. Article 41, 42 and 43 of the Constitution do talk about the same. Also, the Concurrent List of the Constitution of India mentions issues like the following:
  1. Social Security and insurance, employment and unemployment.
  2. Welfare of Labour including conditions of work, provident funds, employers' liability, workmen's compensation, invalidity and old age pension and maternity benefits.
Drawing from the Constitution of India and ILO Convention on Social Security ratified by India in 1964, some of the legislations that have been enacted for social security are: Workmen's Compensation Act, 1923; Employees' State Insurance Act, 1948; Employees' Provident Fund and Miscellaneous Provisions Act, 1952; Maternity Benefit Act, 1961; Payment of Gratuity Act, 1972; etc. A social security division has also been set up under the Ministry of Labour and Employment which mainly focuses on framing policies for social security for the workers of organized sector. There are laws enacted and schemes established by the Central/State Governments providing for social security and welfare of working people in organised sector.

1. Administration of Certain Social Security Acts 

 Certain social security Acts are administered as mentioned below.
  1.  The Employees' Provident Fund and Miscellaneous Provisions Act, 1952 is administered by the Government of India through the Employees' Provident Fund organisation (EPFO).
  2. Cash benefits under the Employees' State Insurance Act, 1948 are administered by the Central Government through the Employees' State Insurance Corporation (ESIC), whereas the State Governments and Union Territory Administrations are administering medical care under the Employees' State Insurance Act, 1948.
  3. The Payment of Gratuity Act, 1972 is administered by the Central Government in establishments under its control, and establishments having branches in more than one State, major ports, mines, oil fields and the railways by the State Governments and Union Territory Administrations in all other cases. This Act applies to factories and other establishments. 
  4. In mines and circus industry, the provisions of the Maternity Benefit Act, 1961 are being administered by the Central Government through the Chief Labour Commissioner (Central) and by the State Governments in factories, plantations, and other establishments.
  5. The provisions of the Workmen's Compensation Act, 1923 are being administered exclusively by the State Governments.
We will, now, look into certain important aspects of selected social security Acts, among others.

2. Employees' Provident Fund and Miscellaneous Provisions Act, 1952

This Act is a welfare legislation enacted for the purpose of instituting a Provident Fund for employees working in factories and other establishments. The Act aims at providing social security and timely monetary assistance to industrial employees and their families when they are in distress and/or unable to meet family and social obligations and to protect them in old age, disablement, early death of the breadwinner and in some other contingencies. Presently, there are schemes that ensure terminal benefits to provident fund, superannuation pension, and family pension in case of death during service .

In this scheme both the employee and the employer make an equal contribution into a national fund. The contribution is made within the prescribed percent of the wage including a small percentage towards family pension. This contribution also attracts an annual interest at prescribed rates and the accumulated amount is paid on retirement to the employee along with the interest that has accrued. Unfortunately, the employee is allowed to draw many types of loan from the fund such as for house construction, children's education, marriage of children, etc. As a result, very little is available at the time Of retirement. This is also a benefit, which is steadily being extended to sections of the unorganised sector, especially where the employer is clearly identifiable.

Coverage of establishments and members: The Employees' Provident Fund and Miscellaneous Provisions Act, 1952 extends to the whole of India, excluding the state of Jammu & Kashmir. The Act is applicable to factories and other classes of establishments engaged in specific industries, classes of establishments employing 20 or more persons. The Act, however does not apply to cooperative societies employing less than 50 persons and working without the aid of power. The Act also does not apply to employees of the Central Government or State Government or local authority. The Central Government is empowered to apply the provisions of this Act to any establishment employing less than 20 persons after giving not less than two months’ notice of its intent to do so by a notification in the official gazette. Once the Act has been made applicable, it does not cease to be applicable even if the number of employees falls below 20. An establishment/ factory, which is not otherwise coverable under the Act, can be covered voluntarily with mutual consent of the employers and the majority of the employees under Section 1(4) of the Act. Thus, membership of the fund is compulsory for employees drawing a pay not exceeding prescribed amount per month (at the time of joining). Every employee employed in or in connection with the work of a factory or establishment shall be entitled and required to become a member of the fund from the date of joining the factory or establishment.

3. Employees' Deposit-Linked Insurance Scheme, 1976 

 Employees' Deposit Linked Insurance Scheme 1976 is applicable to all factories/ establishments with effect from August 01, 1976. All the employees, who are members of the Employees' Provident Fund are required to become members of this Scheme. Employers are required to pay contributions to the Insurance Fund at the rate of 0.5 per cent of pay, i.e. basic wages, dearness allowance including cash value of food concession and retaining allowance, if any.

4. Employees' Pension Scheme, 1995

The Employees' Provident Fund and Miscellaneous Provisions Act, 1952 was amended and a separate Pension Scheme was launched from 16th November 1995 replacing the then Employees Family Pension Scheme, 1971.
  1. Pension Criteria: Superannuation pension will be payable on attaining the age of 58 years and on completion of 20 years of service or more. Early pension can be taken at a reduced rate between 50-58 years of age, on completion of 10 years pensionable service or more.
  2. Benefits under the Scheme: The Employees' Pension Scheme, 1995 provides the following benefit-package: i) Superannuation pension; ii) Early pension; iii) Permanent total disablement; iv) Widow or Widower's pension; v) Children pension or orphan pension: vi) Nominee pension/dependent parents pension.
  3. Contribution to Pension Fund: From and out of the contributions payable by the employer in each month to the Provident Fund, a part of contribution representing 8.33% of the employee's pay is remitted to the Employee's Pension Fund. Employer to pay for cost of remittance. The Central Government contributes I. 16% of the pay of the employee to the Employees' Pension Fund. If the pay of the employee exceeds Rs.6500/- per month, the contribution payable by the employer and the Central Contribution will be limited to the amount payable on his pay of Rs.6500/- only. All accumulations in the ceased Family Pension Fund constitute the corpus of the Pension Fund (Sakthivel, S. Pinaki Joddar, 2006, pp.2107-2114).

5. The Employees' State Insurance Act, 1948

The Employees' State Insurance Act, 1948 provides for health care and cash benefit payments in the case of sickness, maternity and employment injury. The Act is applicable to non-seasonal factories using power and employing 10 or more employees and non-power-using factories and certain other establishments employing 20 or more employees. The Act is being implemented areas-wise, in a phase manner. The ESI Scheme is operated in 728 centres situated in 25 states/ union territories. As on 3 1.03.2006, 91.49 lakh insured persons and about 353.05 lakh beneficiaries are covered under the Scheme. The number of factories and establishments covered by the end of the year had cone up to about 3,05,294.
  1. Administration: As mentioned under the ESI Scheme is administered by the Employees' State Insurance Corporation (ESIC), which is a statutory body and has members representing Employers, Employees, Central and State Governments, Medical Profession and the Parliament. The Union Minister for Labour and Employment is the Chairman. A Standing Committee constituted from among the members of the Corporation acts as the executive body for administration of the Scheme and is chaired by Secretary to the Government of India, Ministry of Labour and Employment. There are 24 Regional Boards and 345 Local Committees in existence at present. The Director General is the Chief Executive Officer of the Corporation and is also an ex-officio member of the Corporation as well as its Standing Committee. The ESI Corporation, apart from the Headquarters Office located at New Delhi, has a large number of field offices throughout the country. The Corporation has 24 Regional Offices, 14 Sub-Regional and 7 Divisional Offices throughout the country. Besides, there are 646 Branch Offices and 179 Pay Offices for administration of cash benefits to insured persons. For inspection and coverage of new factories / establishments, 248 Inspection Offices are also set up across the country (Ibid).
  2. Funding and Operation of the Scheme: The ESI Scheme is mainly financed by contributions from the employers and employees. The rates of the employers' and the employees' share of contribution are 4.75% and I .75%respectively. The State Governments ' share of the expenditure on the provision of medical care is to the extent of 12.5% (1/8th within the per capita ceiling). The Corporation has prescribed a ceiling on the shareable expenditure on medical care. All capital expenditure on construction of ESI hospitals, and other buildings including their maintenance is borne exclusively by the Corporation.
  3. Investment: All contributions received under the ESI Act and all other moneys belonging to the funds which are not immediately required for defraying day to-day expenses are invested In the manner prescribed statutorily.
  4. Health Benefits: The Scheme provides full medical facilities, from primary health care to super-specialty treatment in respect of the insured persons and their family members. The medical care under the Scheme is administered by the State Governments, except in Delhi. Besides ESI hospitals, the Corporation also directly administers 1 7 Model Hospitals in the country. It facilitates both outpatient and in-patient care and freely dispenses medicines and covers hospitalisation needs and costs. The ESIC has also taken certain new initiatives to promote and popularize Indian Systems of Medicines (ISM)' along with Yoga and have drawn up programmes for establishing these facilities in EST hospitals and dispensaries in a phased manner. Leave certificates for health reasons are forwarded to the employer who is obliged to honour them. Employment injury, including occupational disease is compensated according to a schedule of rates proportionate to the extent of injury and loss of earning capacity. Payment, unlike in the Workmen 's Compensation Act, is monthly. Despite the existence Of tripartite bodies to supervise the running of the scheme, the entire project has fallen into disrepute due to corruption and inefficiency. Workers in need of genuine medical attention rarely approach this facility though they use it quite liberally to obtain medical leave.

6. The Payment of Gratuity Act, 1972

The Payment of Gratuity Act, 1972 provides for a scheme of compulsory payment of gratuity to employees engaged in factories, mines. oil fields, plantations, ports, railway companies, motor transport undertakings, shops or other establishments.
  1. Administration: The Act is enforced both by the Central and State Government, Mines, major ports, oil fields, railways, factorles and established owned or controlled by the Central Government and establishments having branches in more than one State, are controlled by the Central Government. The remaining factories and /establishments are looked after by the State Governments. Section 3 authorizes the appropriate government to appoint any officer as a Controlling Authority for the administration of the Act. The Central/State Governments appoint the Controlling Authonties and Inspectors for different areas to ensure that the provisions of the Act are complied with. The Central/ State Governments also frame rules for administration of the Act. In Maharashtra the labour courts in different localities are notified as Controlling Authority for the administration of the Act.
  2. Coverage: i) Every factory, oilfields, plantations, port, Railway Company and mine; ii) Every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which 10 or more persons are employed or were employed on any day of the preceding 12 months; iii) Every motor transport undertaking in which 10 or more persons are employed or were employed on any day of the preceding 12 months; iv) Such other establishments or class of establishments in which 10 or more employees are employed or were employed on any day of the preceding 12 months, as the Central Government may, by notification, specify in this behalf. A shop or establishment once covered shall continue to be covered notwithstanding that the number of persons employed therein at any time falls below.
  3. Entitlement: Every employee, other than apprentice irrespective of his wages is entitled to receive gratuity after he has rendered continuous service for five years or more. Gratuity is payable at the time of termination of his services either i) on superannuation, or ii) on retirement or resignation, or iii) on death or disablement due to accident or disease. Termination of services includes retrenchment. However, the condition of 5 years continuous service is not necessary if services are terminated due to death or disablement. In case of death of the employee, the gratuity payable to him is paid to his nominee, and if no nomination has been made, then to his heirs. Retirement benefit is also available to workers under the Provident Fund Act where a worker who has put in not less than five years of work is entitled to a lumpsum payment equal to 15 days' wages for every completed year of service. Every month the employer is expected to contribute the required money into a separate fund to enable this payment on retirement or termination of employment.
  4. Calculation of Benefits: For every completed year of service or part thereof in excess of six months, the employer pays gratuity to an employee at the rate of 15 days wages based on the rate of wages last drawn by the concerned employee. The amount of the gratuity payable to an employee not to exceed

7. The Maternity Benefits Act, 1961

The Maternity Benefit Act, 1961 is a piece of social legislation enacted to promote the welfare of working women. The Act prohibits the working of pregnant women for a specified period before and after delivery. It also provides for maternity leave and payment of certain monetary benefits for women workers subject to fulfillment of certain conditions during the period when they are out of employment on account of their pregnancy. The services of a woman worker cannot be terminated during the period of her absence on account of pregnancy except for gross misconduct. Maximum period for which a woman can get maternity benefit is twelve weeks. Of this, six weeks must be taken prior to the date of delivery of the child and six weeks immediately following that date. The Maternity Benefit Act is applicable to notified establishments. Its coverage can, therefore, extend to the unorganised sector also, though in practice it is rare. A woman employee is entitled to 90 days of paid leave on delivery or on miscarriage. Similar benefits, including hospitalisation facilities are also available under the law.

8. The Workmen's Compensation Act, 1923

After the Workmen's Compensation (Amendment) Act, the Workmen's Compensation Act, 1923 is now called The Employees Compensation Act, 1923 and the definition of employee includes clerical employees and casual employees also. The main objective of the Act is to impose an obligation upon the employers to pay compensation to workers for accidents arising out of and in course of employment. It, thus, covers all cases of 'accidents arising out of and in the course of employment' and the rate of compensation to be paid in a lump-sum, is determined by a schedule proportionate to the extent of injury and the loss of earning capacity. The younger the worker and the higher the wage, the greater is the compensation subject to a limit. The injured person or in case of his death the dependent can claim the compensation.

This law applies to the unorganised sectors and to those in the organised sectors who are not covered by the Employees State Insurance Scheme, which is conceptually considered to be superior to the Workmen's Compensation Act. Under the Workmen Compensation Act, persons employed as cooks in hotels/ restaurants are made eligible for benefits of compensation w.e.f. July, 1998 The Act applies to any person who is employed otherwise than in a clerical or administrative capacity, in railways, factories, mines, plantations, mechanically propelled vehicles, loading and unloading work on a ship, construction, maintenance and repairs of roads and bridges, electricity generation, cinemas, catching or trading of wild elephants, circus, and other hazardous occupations and other employments specified in Schedule Il to the Act. Under Section 2(3) of the Act, the State Governments are empowered to extend the scope of the Act to any class of persons whose occupations are considered hazardous after giving three months' notice in the official gazette. The Act, however, does not apply to members serving in the Armed Forces of Indian Union, and employees covered under the provisions of the Employees' State Insurance Act, 1988 as disablement and dependents' benefit is available under this Act.
  1. Administration: The State Governments administer the provisions of this Act through the Commissioners appointed for specified areas. The State Governments also make rules for ensuring that the provisions of the Act are complied with.
  2. Benefits: The compensation has to be paid by the employer to a workman for any personal injury caused by an accident arising out of and in the course of his employment (Section 3). The employer will not be liable to pay compensation for any kind of disablement (except death) which does not continue for more than three days. If the injury is caused when the workman was under the influence of alcohol or drugs or willfully disobeyed a clear order or violated a rule expressly framed for the purpose of securing the safety of workman or willfully removed or disregarded a safety devise. The rate of compensation in case of death is an amount equal to 50 per cent of the monthly wages of the deceased workman multiplied by the relevant factor or an amount of Rs. I whichever is more. Where permanent total disablement results from the injury, the compensation will be an amount equal to 60 per cent of the monthly wages of the injured workman multiplied by the relevant factor or an amount of Rs. 1,40,000, whichever is more. Hence, the maximum compensation can go up to 50% of Total Monthly Wages now, irrespective of limits. Funeral expenses limit extended to Rs.5000 (from Rs.2,500). The employee shall be reimbursed the actual (full) medical expenditure incurred by him for treatment of injuries caused during the course of employment. Time limit for disposal of cases relating to compensation has been introduced — The Commissioner shall dispose of the matter relating to compensation within 3 months of reference (The Employees Compensation Act, 1923).

9. The Industrial Disputes Act, 1947

The Industrial Disputes Act, 1947 provides for the settlement machinery above. The framework of this legislation, which is the principle legislation dealing with core labour Issues, is of colonial origin. This law originated firstly in the Trade Disputes Act, 1929 introduced by the British, when there was a spate of strikes and huge loss of person-days, and secondly, through Rule 81 A of the Defence of India Rules 1942, when the British joined the war efforts and wanted to maintain wartime supplies to the allied forces. Interestingly the interim government on the eve of formal independence retained this framework by enacting the ID Act, which still remains on the statute book (Goswami, 1999, pp.457-544).

Even though the ID Act was primarily meant for industry in the organised sector, its present application has now extended well into the unorganised sector, through judge-made law, Its pro-worker protection clauses and safeguards against arbitrary job losses have evolved over a period of time both through the process of sustained legislative amendments and through the process of judicial activism spread over more than five decades.
  1. Regulation of job losses: Under the present law any industrial establishment employing more than 100 workers must make an application to the Government seeking permission before resorting to lay-off, retrenchment, or closure; employers resorting to any of the said forms of creating job losses is acting illegally, and the workers are entitled to receive wages for the period of illegality. This has been identified as offering high rigidity in the area of labour redundancy, and has been targeted for change under globalisation and liberalisation.
  2. Protection of service conditions: A feature of the ID Act is the stipulation that existing service conditions cannot be unilaterally altered without giving a notice of 21 days to the workers and the union. Similarly, if an industrial dispute is pending before an authority under the ID Act, then the previous service conditions in respect of that dispute cannot be altered to the disadvantage of the workers without prior permission of the authority concerned. This has been identified as a form of rigidity that hampers competition in the era of the World Trade Organisation.
  3. Removal from service: A permanent worker can be removed from service only for proven misconduct or for habitual absence — due to ill health, alcoholism and the like, or on attaining retirement age. In other words, the doctrine of 'hire and fire' is not approved within the existing legal framework. In cases of misconduct, the worker is entitled to the protection of Standing Orders to be framed by a certifying officer of the labour department after hearing management and labour, through the trade union. Employers must follow principles of 'natural justice' , which again is an area that is governed by judge-made law. An order of dismissal can be challenged in the labour court and if it is found to be flawed, the court has the power to order reinstatement with continuity of service, back wages, and consequential benefits.
The Industrial Disputes (Amendment Act), 2010 have brought few significant changes to the Industrial Disputes Act. By inserting sub-section (2) to the section 2-A, a provision has been made for the workman/employee to make an application directly to the Labour Court or Tribunal for adjudication of the disputes relating to or arising out of discharge, dismissal, retrenchment or termination, after the expiry of the forty-five days from the date he has made the application to the conciliation officer of the appropriate Government for conciliation of the dispute. On receipt of the application, the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute. All the provisions of the Act shall apply in relation to such adjudication. Anew sub-section (3) has been inserted to section 2-A, which clearly provides that the applications referred to above shall be made to the Labour Court or Tribunal before expiry of three years from the date of discharge, dismissal, retrenchment or termination as the case may be. The Amendment Act further provides that every industrial establishment employing twenty or more workmen shall have one or more grievance reddressal committees for the resolution of disputes arising out of individual grievances. It has also brought a clear and fast mechanism for execution of the award, order or settlement made before Labour Court or Tribunal or National Tribunal.

10. The Trade Union Act, 1926

The Trade Union Act, 1926 defines a trade union "as a combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers, or for imposing restrictive condition on the conduct of any trade or business, and includes any federation of two or more trade unions". Then this definition, primarily, talks about three relationships. They are the relationships between the: workmen and workmen, workmen and employers, and employers and employers .

Thus, a trade union can be seen as a group that represents the interests of its members, and may even engage in political activity where legislation affects their members. Trade unions are voluntary associations formed for the pursuit of protecting the common interests of its members and also promote welfare. They protect the economic, political and social interests of their members. It is an association either of employers or employees or of independent workers.

The Trade Union Act facilitates unionisation both in the organised and the unorganised sectors. It is through this law that the freedom of association that is a fundamental right under the Constitution of India is realised.

Objectives of Trade Unions: Trade unions are formed to protect and promote the interests of their members. Their primary function is to protect the interests of workers against discrimination and unfair labor practices. Trade unions are formed to achieve the following objectives. i) Trade unions represent individual workers when they have a problem at work. Negotiation is where union representatives, discuss, the issues which affect people working in an organization; ii) Voice in decisions affecting workers which include determination of wage, selection of employees for lay offs, retrenchment, promotion and transfer; iii) They also play an important educational role, organizing courses for their members on a wide range of matters; and iv) Seeking a healthy and safe working environment is also prominent objective of union activity.

During the last few years, trade unions have increased the range of services they offer to their members. These include.' education and training, legal assistance, financial discounts, and welfare benefits thereby promoting greater bargaining power, minimize discrimination, providing sense of security, inducing the sense of participation and belongingness, as platform for self-expression, leading to the betterment of relationships.

Protection of Labour in Unorganised Sector

In recent times, provision of social security to unorganised sector workers assumed unprecedented significance in the development discourse in India. So far, there are no specific and comprehensive schemes or legislation at the national level, which exclusively address the issues of unorganised sector. Nevertheless, the workers in the unorganised sector benefit from several of the labour laws and social protection measures, which are more or less generic in nature. The Trade Union Act 1926, The Minimum Wages Act 1948, The Contract Labour (Regulation and Abolition) Act 1970, The Workmen's Compensation Act 1923, and The Payment of Wages Act 1936 are examples of this type. In certain cases, even the Industrial Disputes Act, 1947 would be included. For instance, the Minimum Wages Act, 1948 directs both the Central and State Governments to periodically notify the minimum wage rates for various categories of informal labour. Wage determination in India has been achieved by various instruments. For the unorganised sector, the most useful instrument is the Minimum Wages Act, 1948. This law governs the methods to fix minimum wages in scheduled industries (which may vary from State to State) by using either a committee method or a notification method. A tripartite Advisory Committee with an independent Chairman advises the Government on the minimum wage. In practice, unfortunately, the minimum wage is so low that in many industries there is erosion of real wage despite revision of the minimum wage occasionally.

The other important legislations, which have some bearing on the welfare of unorganised sector workers include: Bonded Labour System (Abolition) Act, 1 976, Payment of Wages Act, 1936, Employees State Insurance Act, 1948, Maternity Benefit Act, 1961 , Personal Injuries (Compensation Insurance) Act, 1963, Payment of Gratuity Act, 1972, Workmen's Compensation Act, 1923, Plantation Labour Act, 1948, Employees Provident Fund and Misc. Provisions Act, 1976, Inter-state Migrant Workmen (RECS) Act, 1979 and Child Labour (Prohibition and Regulation) Act, 1986. However, all these Acts are either benefiting the select organised segments of the unorganised workforce or mostly with certain limited enabling provisions. Despite the implementation of all these acts, the workers in the sector are mostly inadequately protected in terms of security of employment: better working conditions (prescribed times of work and reasonable wages); and effective systems/machines for identification of eligible beneficiaries, dispute resolution and so on.

During the past five decades, starting with the Community Development Programmes (CDP) in 1950s, the Government and other social institutions have launched vanous social security programmes to meet the basic subsistence and contingency needs of the unorgamsed and informal sector workers. Broadly, it is possible to group these measures into three categories, such as:
  1. Social Assistance Programmes;
  2. Social Insurance Schemes; and
  3. Welfare Funds.
A brief review of these programmes/Schemes is attempted below to provide some insights that help in strengthening the social protection to the unorganized workers.

1. Social Assistance Programmes

The social assistance programmes constitutes a varieties of measures such as food-based transferpmgrammes, income-transfer programmes and cash-transfer programmes.

(i) Food-based transfer programmes: The food-based social safety nets are designed to ensure livelihoods and adequate consumption, relieve deprivation and improve nutritional status of the poor and vulnerable sections of the population. Broadly, three types of interventions could be identified in this category such as:
  1. self-targeted employment programmes for able bodied (Sampoorna Gram Swarozgar Yojana; Food for Work Programmes; and Employment Assurance Schemes);
  2. welfare programmes for specific vulnerable groups (elderly and disabled, pregnant and lactating mothers, etc.); and 
  3. programmes for basic education and nutrition. 
The Public Distribution System (PDS) is the key component in the overall food security arrangements in the country. Over the years, the PDS has played an important role in moderating open market prices and ensuring food security at the household level by providing food grains and other essential goods at lower prices. The main objective of the Targeted Public Distribution System (TPDS) is to improve the PDS consumption of the 'identified poor' by offering a specific quantum of cereals at highly subsidised prices. Despite 'the functioning of T PDS the other food transfer schemes introduced subsequently include: The Annapurna Scheme launched by the central government in which 10 kgs of rice or wheat will have to be given to the destitute elderly who is not at all supported by any means either formally or informally; and Antyodaya Anna Yojana / Antyodaya Anna Scheme of the central government which targets to cover 10 million poorest of the poor households from amongst 65 million below poverty line (BPL) families by making available 25 kg of wheat and rice at highly subsidised rates. These are widely reviewed that the overall improvement in nutritional status of the population due to these schemes are rather low, which highlights the need for further strengthening the existing food transfer measures. In 1995, a major scheme on providing mid-day meals was launched through which some amount of cooked food was ensured per day to the children of indigent families. This measure not only acted as a means of nutritional support to the families of unorganised sector labour but also provided an incentive for school enrolment of their children.

One of the commendable alternative initiatives towards provision of food security is the Community Grain Bank Scheme, which was launched in late 1990s in 13 select States. As per the provisions, the Government provides a one time grant towards purchase of locally preferred variety of food grains at the rate of I quintal per member family for initial stock of the bank, setting up of traditional type of storage facilities and purchase of weights and scales. Within the first five years, nearly 2000-grain banks were set up at a cost of over Rs. 100 million. The scheme is truly participative in nature. At the village level, a 7-member working committee manages the scheme, with the village headman as its chairman and all tribal population of the village living below poverty line as its members. The member families are entitled to take loans in 4 instalments of up to 25 kg each during the period of scarcity, which is repayable at the time of next successful harvest to recoup the stock. The interest on loan is 5 per cent up to 3 months and 10 per cent from 3 to 6 months. In the event of non-payment beyond 6 months, the membership of the individual is liable to lapse but may be revived after repayment. The reports suggest that food bank schemes have been quite successful at local levels in improving food security in remote and difficult areas for vulnerable groups (Remesh Babu, et al, 2006). This scheme, however, did not cover all the workers in the informal economy, as it was specifically designed towards safeguarding against fall in nutritional standards of scheduled tribes living in remote and backward areas.

(ii) Income transfer programmes: Income transfer programmes in India basically include the labour-based public works and infrastructure programmes (or workfare programmes) to promote rural and urban livelihoods. The first such scheme was started in early 1960s in the form of Rural Works Programme largely due to recognition of the fact that growth alone could not take care of poverty. Subsequent to this, a number of wage employment programmes such as Food for Work Programme (FFW-1977), Jawahar Rozgar Yojana (JR Y), Sampoorna Gram Swarozgar Yojana (SGRY), Jawahar Gram Samridhi Yojana (JGSY), Employment Assurance Scheme (EAS), Pradhan Mantri Gram Sadak Yojana (JGSY), Food for Work Programme for Calamity Hit States (FFW-2002) and so on were initiated from time to time. The latest addition to this set of schemes is the recently introduced Employment Guarantee Act, 2005 (i.e. The National Rural Employment Guarantee Act, 2005) which assures that the State Government shall provide to every poor rural-household, whose adult members volunteer to do unskilled manual work, not less than one hundred days of such work in a financial year in accordance with the scheme made under this Act. The minimum wage to be paid to the workers is stipulated and if it fails to ‘provide the minimum guaranteed level of employment, the appropriate government is liable to pay an unemployment allowance.

A major proportion of the beneficiaries of the scheme are agricultural labour, though the scheme is not specially designed to cater to farm workers. Also, it is widely established that the scheme was successful in terms of reducing poverty and unemployment, besides acting as an effective insurance mechanism.

(iii) Cash Transfer Programmes: Among the cash transfer programmes in the social security front, which are equally applicable to the agricultural workers, National Social Assistance Programme (NSAP) is very prominent. NSAP, which is a social security programme for the welfare of poor households, has three components such as National Old Age Pension Scheme (NOAPS), National Family Benefit Scheme (NFBS) and National Maternity Benefit Scheme (NMBS) (Prabhu, 2001)

2. Social Insurance Schemes

Social Insurance Schemes are another major category of social protection in India for the labour in unorganised sector (and, thus, for agricultural labour). These are meant to improve ability of the poor individuals and households to resist sudden shocks or losses caused by social and other contingencies. The two major generic schemes under this are the Janshree Bima Yojana (JBY), 2000 and the Universal Health Insurance Schemes (UHIS), 2004. While the former envisages life insurance protections to persons between 18-60 years old and living below or marginally above poverty line in rural areas, the latter assures hospital care to poor persons and families. Other centrally sponsored schemes that benefit agricultural labourers are: Personal Accident Insurance Scheme for poor families and Group Insurance Scheme for landless agricultural labourers.

3. Welfare Funds

The various welfare funds, which are currently catering to different informal sector occupations in India, provide different types of welfare amenities to the workers such as healthcare, housing, educational assistance for children, drinking water and so on. At the central government level, there are no specific welfare funds functioning so far, which provide certain levels of social security to all the workers in the informal sector. However, at present the central government runs five occupation-based welfare funds set up under various Acts of Parliament. These funds are for: i) Beedi Workers, ii) Limestone and Dolomite Mine Workers, iii) Iron Ore, Chrome Ore and Manganese Ore Mine Workers, iv) Mica Mine Workers, and v) Cine Workers. A unique aspect of welfare funds is its effective involvement of multiple stakeholders in designing and implementing social safety nets (The welfare funds in Kerala are being run with active support from trade unions and through contributions from workers, employers and the government (Kannan, 2002).

Despite their impressive share in the workforce of the country, the unorganised labour in many occupations generally lacks comprehensive and effective legislations as well as welfare schemes that assure a certain minimum level of social security to them.

There are some specific enactments which have been introduced to bring in a positive growth and reforms in the field for providing protection to the labour forces. In 1996, two umbrella legislations were passed by the Parliament towards regulating the conditions of work and provision of a measure of social security to the group of construction workers. On the basis of these two legislations The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, and The Building and Other Construction Workers Welfare Cess Act, 1996 — the Government notified the Building and Other Construction Workers (ECS) Central Rules, 1998, which stipulated several social security benefits to the construction workers including accident relief, old age pension, housing loans, payment of insurance premium, payment towards educational expenses of children, medical and maternity benefits and so on. Subsequently, various States were expected to enact state level legislations.

The Second National Commission on Labour (NCL), constituted by the Government in 1999 dealt with the social security concerns of unorganised sector in a detailed manner, In response to the Commissicn's recommendations, Unorganised Sector Workers Social Security Scheme (2004) was launched. As a part of designing this system the Ministry also experimented the introduction of identity cards and identity numbers (Social Security Cards and Social Security Numbers) to the unorganised sector workers, which was again in line with the recommendations of the NCL. Further, Unorganised Sector Workers Bill, 2004 was also prepared which contained measures relating to both social security and conditions of work in the informal sector. In 2004, a National Commission for Enterprises in the Unorganised Sector (NCEUS) was set up to review, inter alia, the social security system available for labour in the informal sector and make recommendations for expanding their converge. Based on its report The Unorganised Workers' Social Security (Draft) Bill, 2006, was drafted, which was formulated after detailed review and examination of all the hitherto similar exercises in the country .

The National Employment Guarantee Act (NREGA), 2005 is a step towards legal enforcement of the right to work, as aspect of the fundamental right to live with dignity. The Act ensures at least 100 days of guaranteed wage employment in a year to at least one adult member of very household. The work is to be provided within 15 days of demanding it and to be located within five kilometers distance. The salient features of the NREGA include the self-selection characteristics and the unemployment compensation to be paid by the government, in case the required minimum employment could not be provided. It assures that the State Government concerning the rural area shall provide to every poor household whose adult members volunteer to do unskilled manual work not less than one hundred days of such work in a financial year in accordance with the scheme made under this Act. The minimum wage to be paid to the workers are stipulated and if fail to provide the minimum guaranteed level of employment, the appropriate government is liable to pay an unemployment allowance.

The Right to Information (RTI) Act, 2005 (Under the RTI Act, 2005 people can: demand from the government information pertaining to any of its departments; demand photocopies of government contracts, payments, estimates, measurements of engineering works etc.; demand to inspect any public development work that may be still under construction or completed; demand to inspect government documents — construction drawings, records, registers, etc.; demand status of the requests or complaints and so on), is expected to improve the effectiveness of the social security programmes, as it is expected that it could do a lot towards the proper implementation of employment guarantee scheme (NREGA) and other social security programmes for the unorganised sector.