Empowering Women and Working in Night Shifts

Legal Framework for Women in India

Swami Vivekanand had said: “Just as a bird could not fly with one wing only, a nation would not march forward if the women were left behind”. 

Lord Denning in his book “Due Process of Law” has observed that a woman feels as keenly, thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom-develop her personality to the full-as a man. When she marries, she does not become the husband's servant but his equal partner. If his work is more important in life of the community, her's is more important in the life of the family. Neither can do without the other. Neither is above the other or under the other. They are equals.

History:

During early 19th-century the employment for women and children in factory often involved unsafe and unsanitary conditions. The Industrial Revolution ushered women out of domestic roles and into factories and the economic shift created a need for both single and married women to earn wages. Women primarily found work in areas like domestic service, textile mills, piecework shops, and even coal mines. While the Industrial Revolution offered some women the potential for independent wages, increased mobility, and a better standard of living, for most, factory life meant a life full of hardships and ungainly hours.

In 1919, the International Labour Organisation (“ILO”) decided to completely prohibit night work for women in public and private industry. However, the Convention adopted by ILO stated that the night work should be permitted in case of, force majeure, when in any undertaking there occurs an interruption of work which was impossible to foresee and which is not of a recurring nature or in case where the work has to do with raw materials or materials in the course of treatment, which are subject to rapid deterioration, when such night work is necessary to preserve such materials from certain losses.

Article 2 of the Convention No. 89[1] of ILO to which India is a signatory lays down, for the purpose of this Convention the term "night" signifies a period of at least eleven consecutive hours, including an interval prescribed by the competent authority of at least seven consecutive hours falling between ten o' clock in the evening and seven o'clock in the morning, the competent authority may prescribe different intervals for different areas, industrial undertakings or branches of industries or undertakings, but shall consult the employers' and workers' organizations concerned before prescribing an interval beginning after eleven o' clock in the evening. Article 3 lays down, women without distinction of age shall not be employed during the night in any public or private industrial undertaking, or in any branch thereof other than an undertaking in which only members of the family are employed.  Article 5(1) lays down, the prohibition of night work for women may be suspended by the Government after consultation with the employers' and workers' organizations concerned, when in case of serious emergency the national interest demands it. Article 5(2) lays down, such suspension shall be notified by the Government concerned to the Director-General of the International Labour Office in its annual report on the application of the Convention.

Legal Scenario in India

In India, labour laws come in the concurrent list of Indian Constitution wherein both Indian Parliament and State Legislatures have the right to make laws. The provisions for employment of woman employees at night are contained in various Central and State statutes. Section 25 of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 stipulates that no woman shall be required or allowed to work in any industrial premise except between 6.00 a.m. and 7.00 p.m. Section 46(1)(b) of the Mines Act, 1952 prohibits employment of women in any mine above ground except between the hours of 6.00 a.m. and 7.00 p.m.

The Factories Act, 1948 and various State Shops and Establishments Acts govern the regulation of conditions of work in factories as well as State shops and establishments in India.

With regard to factories, the Factories Act, 1948 is a comprehensive central legislation on safety, health and welfare of labour as well as regulation of conditions of work in factories in India. The enforcement of the laws concerning safety, health and welfare of labour in Factories is primarily the responsibility of the State Governments under the Factories Act which remains the backbone and the primary means of achieving the desired Occupational Safety and Health (OHS) standards in the country.

In India, Section 66(1)(b) of the Factories Act, 1948 prohibits women employees from working at night by providing that no woman shall be required or allowed to work in any factory except between the hours of 6.00 A.M and 7.00 P.M. However, the State Government may, by notification in the Official Gazette, in respect of any factory or group or class or description of factories, vary the limit to allow women employees to work till 10.00 P.M at night and begin work at 5 A.M in the morning, meaning an absolute bar on working between 10 P.M to 5 A.M. Women working in Hospitals & Agriculture are exempted from Factories Act, 1948 and State Shops and Establishment Acts regarding ban on nightshifts for women employees. 

Many women’s organisations and employees filed writ petitions in High Courts of Madras, Andhra Pradesh, Kerala and Gujarat challenging that the provisions contained in Section 66 are discriminatory and biased, as a result of which several High Courts allowed employment of women during night shifts.

For e.g. in the year 2000, the Madras High Court in the judgment of Vasantha R[2], set aside the provision of Section 66(1)(b) of the Factories Act 1948 as unconstitutional by holding that the provision which denies an opportunity for women to work during night hours where they are desirous of doing so, for betterment of their employment prospects would be violative of the provisions of Articles 14, 15 and 16 of the Constitution of India and discriminatory. Similarly, various High Courts in including the Andhra Pradesh[3], Gujarat[4], Kerala[5] High Courts had occasion to consider similar challenges and it was held that Section 66(1)(b) could not stand in the way of a woman being employed during night hours unless there is a compulsion on the part of the employer on the woman to carry out her duties in a factory during the night-time.

The guidelines and welfare measures for the female workers who come forward to work during the night shifts as given by Madras High Court in Vasantha R judgment provided that before the Central and State Government introduce rules, the following measures should be adopted by every employer who wants to employ women in their factory in nightshifts:- employers should prevent and deter any sexual harassment and provide procedures to resolve, settle or prosecute any such act; the employers should maintain a complaint mechanism, including a complaint committee headed by women and half the members of the committee should be women; women should be employed only in batches, of not less than ten or not less than two thirds of the total nightshifts’ strength; separate work sheds, canteen facilities, all women transport facility, additional paid holiday for menstruation period, medical facilities should also be provided besides two or more women wardens to work as special welfare assistants; the employer shall provide proper working conditions with respect to work, leisure, health and hygiene and there should be proper lighting in and around the factory where female workers may move, there should be security at entry and exit points of factory and at least twelve consecutive hours of rest or gap  between shifts; the employers should send fortnightly reports to the inspector of factories about night shifts including any unwanted incident and also to the local police station.

Consequently, on the basis of High Court judgments, various States in India such as States of Maharashtra, Goa, Karnataka, Haryana, Himachal Pradesh, Odisha, Assam, Odisha, Andhra Pradesh and Uttar Pradesh altered the position under Section 66(1)(b) by permitting the employment of women post 7.00 p.m. provided all safety and security safeguards are met by the employer thereby notifying the conditions for exemption to factories from application of Section 66(1)(b) of the Factories Act, 1948.

Significantly, the soon to be enforced the Occupational Safety, Health and Working Conditions Code, 2020 (OSH Code)[6] permits establishments to employ female employees, with their consent before 6.00 a.m. and beyond 7.00 p.m. subject to such conditions relating to safety, holidays and working hours or any other condition to be observed by employer as may be prescribed by the labour authorities. The OSH Code includes provisions aimed at promoting the well-being of women, such as mandatory health checkups and employers are required to facilitate free-of-cost health checkups on an annual basis for all workers. OSH Code grants women the right to work at night, subject to their consent, and mandates that employers must establish sufficient measures to ensure the safety and well-being of female workers during at night besides extending its provisions to transportation, mandating employers to provide a pickup and drop-off service for female employees.

Anhad Law’s Perspective

Article 21 of the Constitution of India reinforces 'right to life.' Life in its expanded horizon includes all that given meaning to a person's life including culture, heritage and tradition with dignity of person. The fulfilment of that heritage in full measure would encompass the right to life, equality, dignity of person and right to development, elimination of obstacles and discrimination based on gender for human development.

In construing an ongoing Act such as the Factories Act, 1948, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred since the Act's passing, in law, in social conditions, technology, the meaning of words and other matters.

It is apposite to reproduce the words of Justice Bhagwati set out in the case of National Textile Workers' Union v. P.R. Ramakrishnan[7], which are:

"We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast-changing society and not lag behind."

The Courts in India have rightly observed the fact that Factories Act, 1948 was enacted at a time when requiring a woman to work in an establishment of any nature, more so in a factory, during night-time could only be seen as exploitative and violative of her rights. Apparently, the World has moved forward and women who were relegated to the roles of home makers during the times when the enactment had been framed have taken up much more demanding roles in society as well as in economic spheres. We have reached a stage where the contributions made by women in the spheres of economic development cannot be ignored by any industry. Women are being engaged to work during all hours in several industries including health care, aviation and information technology. Also important to mention is the employment even in defence forces asserting the fact that women can do everything, that a man can do, provided they are given an opportunity.

Women have been engaged in several professions requiring round the clock labour and have proved themselves quite capable of facing the challenges of such engagement. Thus, the submissions based on stereotypes premised on assumptions about socially ascribed roles result in gender discrimination against women and violate their fundamental rights.

The ILO has also carved out an exception under Article 8 of the Convention No. 89, with regard to women holding responsible positions of a managerial or technical character. Another exception was with respect to women employed in health and welfare services, who are not ordinarily engaged in manual work. These two exceptions are understandable as the women who are holding managerial positions would have lesser chances of being exploited by their men counterparts, rather than those who are engaged in manual work. Similarly the exception with respect to women employed in health and welfare services who are not engaged in manual work was an exception, where also the chances of exploitation are minimum.

In conclusion, the analysis of Indian laws pertaining to the employment of women in night shifts underscores the importance of prescribed conditions aimed at safeguarding the safety and security of female employees. The regulations by various States in India serve as crucial safeguards within the industrial landscape, ensuring that women can participate in the workforce while mitigating risks associated with nocturnal work environments. By adhering to these regulations, employers can foster an inclusive and protective atmosphere conducive to the participation of women in night shift work, thereby promoting gender equality and workplace safety. Through a balance of legal frameworks and practical measures, such as exemptions for factories meeting specific safety standards, India seeks to promote gender equality in the workplace while prioritizing the well-being of its female workforce.

[1] Night Work (Women) Convention (Revised), 1948

[2] Vasantha R versus Union of India and others (2001)IILLJ 843 MAD

[3] Triveni K.S. And Ors. vs Union Of India (Uoi) And Ors. (2002)III LLJ 320 AP

[4] Mahila Utkarsh Trust and Ors. vs. Union of India and Ors. (13.12.2013 - GUJHC)

[5] Treasa Josfine vs. State of Kerala (09.04.2021 - KERHC)

[6] 43. Women shall be entitled to be employed in all establishments for all types of work under this Code and they may also be employed, with their consent before 6 a.m. and beyond 7 p.m. subject to such conditions relating to safety, holidays and working hours or any other condition to be observed by the employer as may be prescribed by the appropriate Government.

[7] 1983 1 SCC 228, at page 256