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A PROJECT REPORT ON

EQUAL REMUNERATION AND GENDER JUSTICE: A COMPARETIVE STUDY WITH OTHER NATIONS

 ______________________  _________________________________ ______________________ ______________________ ______________________ ____________________ _________

Table of contents

OBJECTIVES ..................................................................... ........................................................................................................................................... ........................................................................ .. 3 Abbreviation ................................................................... ......................................................................................................................................... ........................................................................ .. 3 Research Methodology Methodology ...................................................................................................................... ........................................................................................................................... ..... 4 Sources of Data: ........................................................................................................... ...................................................................................................................................... ........................... 4 Method of Writing: ............................................................................................................................ ................................................................................................................................. ..... 4 Mode of Citation: .............................................................................................. .................................................................................................................................... ...................................... 4 Introduction .................................................................... .......................................................................................................................................... ........................................................................ .. 6 Global View: .......................................................................................................................................... ............................................................................................................................................ .. 7 Meaning of Gender Justice .................................................................... ..................................................................................................................... ................................................. 7 Gender pay equity in i n Europe ..................................................................................................... .................................................................................................................. ............. 7

The gender pay gap  –  figures,  figures, status and trends  ................................. Error! Bookmark not defined. Pay statistics – statistics – quality and coverage ...................................................................................................... ...................................................................................................... 9

Legislation. ....................................................................................................... ........................................................................................................................................... .................................... 10 United States .............................................................................. ......................................................................................................................................... ........................................................... 11 ........................................................................................................................................ ...................................................................... 12 Laws of India .................................................................. ........................................................................................................................... ... 12 Constitutional Aspect ......................................................................................................................... Problems Faced By Women ....................................................................................................... .................................................................................................................. ........... 14 Gender Justice and Labour Law ............................................................................................................ ............................................................................................................ 15 Case laws .......................... ............................................................................................... ..................................................................................................................... ................................................ 18 Analysis ................................................................ ...................................................................................................................................... ................................................................................. ........... 20 CONCLUSION: CONCLUSION:.................................................................. ........................................................................................................................................ ...................................................................... 21 Bibliography .................................................................... .......................................................................................................................................... ......................................................................23

OBJECTIVES • To make make the topic clear as to better understanding. understanding. • To stress upon upon the provisions provisions of Criminal Criminal Procedure Procedure & its implications implications • To analyze those those grounds grounds upon which cases cases are being being adjourned. • To observe the constitutional constitutional safeguards for speedy & fair trial. • To focus focus on the significance significance of speedy trial. trial.

 Abbreviation AIR

-

All India Reporters

A.P

-

Andhra Pradesh

Cal

-

Calcutta

Cr

-

Criminal

Cr. L J

-

Criminal Law Journal

Del

-

Delhi

E

-

Emperor

EU

-

European Union

ILR

-

Indian Law Report

Ors

-

Others

Pat

-

Patna

M.P

-

Madhya Pradesh

SC

-

Supreme Court

SCC

-

Supreme Court Cases

V

-

Versus

Research Methodology I have used doctrinal method (i.e. books, internet, journals, and newspapers) for gathering information regarding my topic. Statistical report has been mentioned in my project which shows growth of trade union in recent years. My project mainly focused on current growth,  position, changes and news related to the trade union.

Sources of Data: The following secondary sources of data have been used in the project1. Books 2. Websites.

Method of Writing: The method of writing followed in the course of this research paper is primarily analytical and the researcher has, for his convenience divided the write up into various parts.

Mode of Citation: The researcher has followed a uniform mode of citation throughout the course of this research  paper

 ACKNOWLEDGEMENT I would like to thank all the teaching and non teaching staff members of the University for their Kind Support and valuable suggestions in my draft. I would like to thank specially Bharath Sir who was every time there with a helping hand for the completion of my draft. At last I would not forget to thank my friends who acted like a motivation which helped me to sit for long hours for completion of my draft.

Introduction The comparative study of this topic provides an overview of the situation as regards access to  justice in gender equality and anti-discrimination anti -discrimination law. It addresses procedural guarantees, the requirement for an effective, proportionate and dissuasive remedy and the effectiveness of the legal framework in practice. As we know that women constitute half the population of the society but it is a harsh reality that women have been ill-treated in every society for ages and India is no exception. From tribal to agricultural to industrial societies to organised states, the division of labour has  primarily stemmed from physiological differences between the sexes, leading to the power resting with the men, resulting in the established gender hierarchies. We have been gifted with a history of discrimination, subjugation and suppression. 1 An effective access to justice is of fundamental importance for victims seeking redress when discrimination occurs. Alleged victims of discrimination may seek redress through the general judicial mechanisms and in accordance with the general national procedural rules. Several extra-judicial or alternative dispute settlement mechanisms such as conciliation and mediation are available at national level. Ombudsmen and equality bodies may also provide an alternative to the general courts. However, whilst there is progress in terms of awareness and promotion of fundamental rights, this is not matched by an equivalent awareness and accessibility to remedies for breaches of these rights.2 Equal participation by women and men in socio-economic development has led to the need of achieving gender justice. There should not be any discrimination in terms of pay on grounds of sex or gender of the person. It has to be stated here that though it is the primary task of the employer not to discriminate on the basis of sex (as made mandatory by the Supreme Court in recent judgments), the Constitution of India does not provide for any classification that the employer can make such as on the basis of qualification and level of skill of the employee i.e. if the workers perform the same task, they have to be treated equally without any discrimination thereof.3

1

Report of the National Commission on Labour,1969 p. 162 www.preservearticles.org/emplyees/act,, accessed on 29 th Oct. 2013 www.preservearticles.org/emplyees/act 3 www.prsindia.org/.../Unorganised%20Sector/1189419973_Unorganised accessed on 14th Oct, 2013 2

Global View4 The UNDP has developed the two most well known gender justice indexes Gender Related Development Index and the Gender Empowerment Measure to compare and rank member states with regard to gender justice performance. India is ranked 113 in the Gender Related Development Index, while USA is 16th and UK is 10th. The struggle for equal rights, freedom and justice has been made by human rights activists, feminists, feminists, NGO‟s and through Government support. Even though considerable progress has  been made in this regard, women are still sti ll lagging la gging behind. With globalisation, there are other complex issues that women face today along with the elementary issues that have always  plagued women.

Meaning of Gender Justice It is said that “justice” is primarily a problem of discovering the right course of action. Since ancient times, political thinkers have been trying to formulate the concept of justice. With the rise and growth of modern world and modern consciousness, especially under the effective influence of the principles of democracy and socialism, this very concept has been thoroughly transformed.5 “Gender justice” is often used with reference to emancipator projects that advance women‟s rights through legal change, or promote women‟s interests in social and economic policy. However, the term is rarely given a precise definition and is often used interchangeably with notions of gender equality, gender equity, women‟s empowerment, and women‟s rights. Gender justice in the spirit of social justice is about more than simply questioning the relationship between men and women. It involves crafting strategies for corrective action toward transforming society as a whole to make it i t more just and equal and it means “a place in which women and men can be treated as fully human”.

Gender pay equity in Europe 6 Studies show that a wide - though narrowing - pay gap persists between women and men in all European Union Member States and in Norway, to the detriment of women. Although a variety of factors are cited to explain the existing wage differentials between women and

4

 www.ilo.org, accessed on 13 th Oct 2013 5  Report of the National Commission on Labour, 1969, p. 132 6 www.genderpayineurope.ac.in,, accessed on 21 st Oct 2013 www.genderpayineurope.ac.in

men, most studies conclude that, in addition to the gap arising from these factors, there is an unexplained difference in wages, which is presumed to be due to discrimination. In the search for ways to fight wage discrimination, a considerable number of statutory measures have been in existence for a very long time both at Community level and in individual Member States. These measures concern mainly 'prohibiting' legislation, providing for the principle of equal pay for equal work or for work of equal value, while a few f ew countries have gone a step further by passing legislation of a 'proactive' type. The issue is also addressed through collective agreements at different levels, either directly or indirectly. Increased pay equality between women and men in the labour market is also among the main  priorities identified in the EU's current 'European employment strategy'. The recent Employment Guidelines for the Member States indicate that the issue of equal pay is  progressively playing a more prominent part in the strategy. In the 2001 Employment Guidelines,, the Member States were, among other measures, asked to pay particular attention Guidelines to ensuring the application of principle of equal pay for equal work or work of equivalent value. Moreover the Member States - where appropriate with the social partners - were invited to 'initiate positive steps to promote equal pay for equal work or work of equal value and to diminish differentials in incomes between women and men: actions to address gender  pay gaps are necessary in the public and private sector, and the impact of the policies on gender pay gaps should be identified and addressed'. 7 The 2002 Employment Guidelines stress the equal pay issue further. They note that: 'The significant level of the pay gap between women and men in many Member States has been identified as a potential disincentive for women to take up work or to remain at work. The request from the Stockholm European Council to develop indicators in this area equally equall y underlines the importance of this issue.' The Member States, where appropriate with the social partners, are thus called on to 'adopt a multi-faceted strategy to achieve gender pay equality in both the public and private sectors, and consider the setting of targets to tackle the  pay gap. Such a strategy could include inter alia a review of job classification and pay systems to eliminate gender bias, improving statistical and monitoring systems, and awareness-raising and transparency as regards pay gaps.'

7

 Ibid, page 7

The aim of this comparative study is to give a broad overview of national frameworks and instruments to combat pay discrimination against women and to improve their pay conditions in the 15 Member States of the EU plus Norway. The study is based on information provided  by the European Industrial Relations Observatory  Observatory  (EIRO) national centres in each of these countries in response to a questionnaire. The national reports, which contain more detailed information on the national experiences summarised here, are available separately on the EIRO website, along with the questionnaire. The study: 

considers the general development of the wage gap across Europe, and the quality and coverage of wage statistics - the tools to monitor and analyse the wage gap;

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reviews statutory measures to combat pay discrimination against women and improve their pay conditions;

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looks at the relationship between the issue of pay equity and collective bargaining and the approach taken by the social partners; and

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examines the pay equity issue within the Member States' National Action Plans (NAPs) for employment, drawn up in response to the EU Employment Guidelines.

Pay statistics – quality and coverage Wage statistics of sufficient quality and coverage are important in order for the social  partners and authorities to monitor and analyse the gender pay gap. In connection with the Swedish EU Presidency in the first half of 2000, an informal report on pay differentials  between men and women was prepared by Swedish researchers (Highlighting pay differentials between women and men) men). The report stresses  –  as   as have many other studies on the subject - that pay differences between men and women may be explained by a variety of structural factors, such as position in the labour market, occupation or education. However, the report further points to the fact that pay differences may also be seen as a consequence of men's and women's jobs being subject to different evaluations, as well as differences that can  be explained only by direct discrimination. The study thus emphasises that improving statistics is an important strategy to reduce this unjustified pay gap. Thorough national studies on the gender pay gap have also been undertaken in many European countries (as well as analyses done on the basis of SES material). For instance, in Ireland a recent study by the Economic and Social Research Institute  Institute  (ESRI) found that: 'About three-quarters of the gap between men's and women's hourly wages can be attributed

to the fact that women, under current social and economic structures, typically spend less time in the labour market than men and more time as carers in the home'. According to the ESRI, the average female employee has worked for 12 years in the paid labour market, as against 18 years for the average male. However, this still leaves an 'unexplained' wage gap of about 5%. This kind of analysis seems to have been conducted in many of the countries covered by EIRO. In 1999, the German parliament asked the federal government to present a detailed report (expected in early 2002) on the job and income situation of women and men. On the  basis of this report, parliament will decide on a future monitoring system regarding pay developments for women and men. Reports highlighting the gender pay gap are also  produced in many other other countries, including France, Italy and the UK. A central question regarding the quality of wage statistics and the gender pay gap is the extent to which some female-dominated (and low-paid) groups are left out, leading to an underestimation (or possible overestimation) of the pay gap. For example, the SES did not include part-time employees. A study commissioned by the UK Equal Opportunities Commission   (EOC) has found that the UK gender pay gap would increase substantially if Commission  part-time employees had been included in the SES. A final aspect concerning the quality of wage st atistics and gender pay equity, is the degree d egree to which bonuses, overtime compensation etc are included in the statistics. One might argue that these kinds of 'extra' payments contribute to the gender wage gap, but are often ignored in the wage statistics and thereby contribute to an underestimation of the wage gap. The general impression is that overtime payments are often recorded in the existing wage statistics, but that typical fringe benefits are more rarely accounted for in statistics. Legislation

All countries covered by this study have legislation concerning pay discrimination. Pay discrimination at work on the grounds of gender is explicitly prohibited by the constitutions of eight countries  –  Finland,   Finland, France, Germany, Greece, Italy, the Netherlands, Portugal and Spain - while in Belgium, though not explicitly, the constitution contains the fundamental rules on which the principle of equal treatment is based in domestic law.

In addition, in all 16 countries covered there are specific laws providing for the principle of equal pay for women and men. In particular, in all countries national legislation is reported to  be completely harmonised with EU law, mainly with: 

Article 141 of the European Community Treaty (formerly Article 119) , which  provides that 'each Member State shall s hall ensure that tha t the principle princip le of equal pay for male and female workers for equal work or work of equal value is applied.' For the purpose of this Article, pay means 'the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer'. 'Equal pay without discrimination based on sex' means: '(a) that pay for the same work at piece rates shall  be calculated on the basis of the same unit of measurement; (b) that pay for work at time rates shall be the same for the same job;' and



Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women. women. This provides for the Member States to implement the principle of pay for men and women, which means, 'for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration. In particular, where a job classification system is used for determining pay, it must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.'

United States8 The Women‟s Rights Convention, New York in 1848 specifically marked the beginning of the American movement towards achieving gender justice. It asserted that all men and women were equal and most importantly demanded the right to vote, formally launching the American campaign for women‟s suffrage. In 1920 this demand was met by the Congress. The Civil Rights Act, 1964 and Equal Pay Act, 1963 guarantee equal employment opportunities and renders it unlawful to discriminate on the basis of sex. The Family and Medical Leave Act, 1993 permits any employee, male or female, to take upto 12 weeks of unpaid leave per year for maternity leave or child care.

8

www.sourceofusgenderjustice.com,, accessed on 23 rd Oct 2013-10-30 www.sourceofusgenderjustice.com

The ruling in Roe v. Wade given by the Supreme Court put to rest the controversial issue of Abortion and it is now legal in every state. It determined that every woman has a right to self determination and abortion falls under right to privacy. Her decision should be free from unwarranted governmental intrusion into such a fundamental matter. Laws of India

Women‟s groups started emerging in India in the early 1900s and at first focused on social reform. They have also campaigned vigorously and successfully for social and political equality with men. In 1950 women and men over the age of 21 were granted voting rights. Indian patriarchal society not only harbours a culture of violence against women in the form of dowry, domestic violence and female infanticide, it also manifests in government policies towards women. The unequal representation of Indian women in national political parties is all the more disquieting given that the Indian constitution guarantees gender equality in the Articles 325 and 326. Despite the deeply ingrained patriarchal attitude prevalent in India, it is one of the few countries ever to have elected a woman prime minister: Indira Gandhi. We still haven‟t secured 33% reservation for women in parliament and state assemb lies, despite the Women‟s Reservation bill being close at hand for so long. Constitutional Aspect

The Constitution of India has various provisions to ensure equality of the sexes and also to dismantle the prevalent imbalances in gender hierarchy .Article 14 of the Constitution states that there shall be equality before the law and equal protection of the law. Article 15 safeguards the right against discrimination. The Constitution also provides for positive discrimination and affirmative action on some counts. Article 15(3) permits special  provisions for women. Article 16 provides equal opportunity with respect to public employment and they shall not be discriminated on the basis of sex of the person. Article 21 guarantees the right to life, the interpretation which has been broadened to include the right to live with dignity. Article 23 guarantees the right against exploitation. It prohibits traffic in human beings. The directive Principles of State Policy also provide measures for gender equality. Article 39(a) aims at providing the right to adequate means of livelihood for men and women, equally. Article 51(A)(e) of the Constitution provides that it will be the duty of every citizen to renounce practices derogatory to the dignity of women.

The Indian Constitution calls for eight years of compulsory education for girls and boys aged 6 to 14. However, women still lag far behind men and rural women are twice as likely to be illiterate compared to their urban counterparts. The legal marriage age is 21 for males and 18 for females. A recent law commission has recommended equalising the marriage age for both men and women to 18 but this has yet to be implemented. Personal laws of Hindus and Muslims dictate different codes of conduct regarding re garding marriage and divorce. The people of India are guaranteed equal pay for equal work by the Constitution and reinforced by the 1975 Equal Remuneration Act. The drawback is that this law does not appl y to Agriculture, the area where most women in India are employed. Gender based pay scales with lower wages for female workers are not uncommon. Today we observe a shift towards the service sector by working women but no occupational field is impervious to gender injustice as of today. It is also horrifying to note that there is no statutory enactment in India against sexual harassment at work place. But in the absence of a law, the Supreme Court has laid down certain guidelines pertaining to sexual harassment at the work place in the landmark case of Vishakha and others v. State of Rajasthan 9. Women are entitled to maternity maternit y  benefits under the Employees‟ State Insurance plan, which provides a 90 day paid leave. The central government has endorsed the concept of paternity leave for the same duration for men, but this cannot be enforced in the private sector. A woman does not have a right to Abortion in India. Commercial sex work i.e the exchange of sexual services for money is legal in India but related activities such as soliciting in public  places, owing a brothel, kerb crawling and pimping are illegal. The primary prima ry law dealing with sex workers is the Immoral Traffic (Suppression) Act of 1956. Male prostitution is not recognised in the Indian Constitution. In order to achieve gender justice, male sex workers should also be given recognition in order to avail of their basic rights. There are a few contentious issues which are peculiar to developing countries like India. Because of the tremendous preference for sons over daughters, female infanticide is not uncommon. The law bans infanticide and imposes penalties of life imprisonment or death. Harsh punishment has also been ineffective as a deterrent. The age old custom of Sati, in which the widow is burnt alive on her husbands funeral pyre, has been abolished since 1829 under the aegis of Lord William Bentinck, and the government eventually passed the Commission of Sati Prevention Act to prevent its occurrence and curb its glorification. 9

 (1997) 6 SCC 241

Problems Faced By Women10 • Female feticide, infanticide, child marriage, domestic violence, sexual violence, violence, and sexual harassment at the work place to the treatment meted out to elderly women makes any thinking person to wonder at the nature of the society. Participation of women in the decision making bodies be they within the home, workplace or community is marginal, never reaching even 25% of the total population of women in India. • Women are forced to change their jobs or seek transfers on account of Sexual Harassment. • Most of the women‟s work, inside the house goes unnoticed and unremunerated. Even outside the family they remain underpaid. • In terms of horizontal segregation, women are concentrated in low –  paying positions such as secretary, typist, beautician, nurse, caregiver and assembly –  assembly – line line worker. “Equal work but unequal pay” is still a common practice in India‟s private sector. • According to statistics from the United Nations “Women constitute 50% of the World  population, do two third of the work, get 10% of the total income and own 1% of the total assets”. While this is a global fact, the picture picture is much more pathetic in India. • Children living in this environment and witnessing the differential role pattern of the man and the woman learn the lessons of gender inequality right from their childhood and the  pattern is bound to continue generation generation after generation. • Women constitute a significant part of the workforce in India but they lag behind men in terms of work participation and quality of employment. According to Government sources, out of 407 million total workforce, 90 million are women workers, largely employed (about 87 percent) in the agricultural sector as labourers and cultivators. In urban areas, the employment of women in the organised sector in March 2000 constituted 17.6 percent of the total organised sector. • The existence of discriminatory laws, the fact that the laws fail to take account of rural women's special situation, and the adherence to paternalistic and male-oriented customs which hinder the implementation of, or fill the gaps in, non-discriminatory legislation, have helped to keep rural women in a subordinate position.

10

www.preservearticles.org/emplyees/act,, accessed on 29 th Oct. 2013 www.preservearticles.org/emplyees/act

Gender Justice and Labour Law Under the Industrial laws the women have been bestowed the special position in the view of their unique characteristics, physically, mentally and biologically. Some of the Acts related to employment were enacted during British period as well as after independence. These Acts not only regulated the hours of work but also contained provisions of health, safety and welfare of women workers and guarantees equality before law and equal treatment to women workers. Most of these laws have been inspired by the Conventions and recommendations adopted by the International labour Organization. The main objectives for passing these laws are to enable the women to increase their efficiency, to increase their participation in useful services, to ensure their infant welfare and to provide equal pay for equal work. The important labour legislations covering the women are 11: 1. The Factories Act, 1948 The Factories Act is a part of labour welfare legislations wherein measures have been laid down to be adopted for the health, safety, welfare, working hours, leave and employment of young persons and women. Exclusive provisions for women have also been incorporated in the Act keeping in view their soft and tender personalities. 2. The Employees‟ State Insurance Act, 1948 The Employees‟ State Insurance Act, one of the most important social legislation in India, it has been enacted to provide for various benefits in different contingencies. Under this Act, insured women workers get sickness benefit, disablement benefit, medical benefit and funeral expenses along with insured men workers. However, in addition to these benefits, insured women workers also get maternity benefit in case of certain contingencies arising out of  pregnancy, confinement, miscarriage, sickness arising out of pregnancy, premature birth of child or miscarriage and death. The duration of maternity benefit available to insured women in case of confinement is 12 weeks, of which not more than 6 weeks shall precede the expected date if confinement. The maternity benefit is paid subject to the condition that the insured women do not work for remuneration on the days in respect of which the benefit is  paid, In the event of the death of an insured woman, the t he maternity benefit is payable to her

11

S. N. Mishra, Labour and Industrial law, Central Law Publications, 26 th Editions.

nominee or legal representative for the whole period if the child survives, and if the child also dies, until the death of the child. 3. The Maternity Benefit Act, 1961 Economic dependence of women is what gives rise to their subordination in society today. Hence to remove such subordination and lay the foundation of equality women too must be made economically independent and must take an active role in all sectors of business today. Problem faced by women in the economic sphere of life are mostly relating to unequal wages and discrimination resulting from their biological role in nature of childbearing. To curb such  problems and protect the economic rights of women the legislature introduced the Equal Remuneration Act, 1976 and Maternity Benefit Act, 1961. A maternity benefit is one that every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit, which is the amount payable to her at the rate of average daily wages for the period of her actual absence. The Maternity Benefit Act aims to regulate of employment of women in certain establishment for certain periods before and after childbirth and provides for maternity and certain benefits. 4. The Equal Remuneration Act, 1976 Equal pay for equal work for women and men is a vital subject of great concern to society in general and employees in particular. There was a common belief that women are physically weak and should be paid less than their male counter parts for the same piece of work. Women all over the world, had till recently rec ently been very much in articulate and were prepared to accept lower wages even when they were employed on the same jobs as men. Even in the economically and socially advanced countries where remarkable progress has been made, discrimination still exists. In India, in the initial stages when legislation for the protection of workers was hardly thought of, factory owners taking advantage of the backwardness and  poverty, recruited women on a large scale at lower wages and made them work under inhuman condition. 5. The Workmen Compensation Act, 1923 In any industrial society the problem of labour management relations becomes so important that some sort of social insurance becomes necessary to provide adequate protection from losses caused to the labourers by accidents. With a view to improve the condition of the

workmen some social insurance legislations have been enacted. The Workmen‟s Compensation Act 1923 is one of the earliest pieces of labour legislation, adopted to benefit the labourers. 6.  National Rural Employment Guarantee Guarantee Act, 2005 Recently, the Government of India enacted National Rural Employment Guarantee Act whereby anyone who is willing to provide manual unskilled labour will be offered wage employment for 100 days. This Act provides the enhancement of the livelihood security of the households in rural areas of the country by providing at least one hundred days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work. Priority is given to women in the allocation of work. Gender equality is one of the core elements of this poverty reduction plan which stipulates that at least one third of the labour force should be women with equal wages for both men and women. Various gender related objectives such as provision of hygienic work environments, safe drinking water, and childcare facilities at the work-site, distance of work-place not exceeding two miles from home, health care and nutrition are emphasized. Women engaged in agricultural farming have to spend long hours under the hot sun but are invariably paid less than their male counterparts. Women‟s participation in the labour force with no wage discrimination and direct control of resources and assets can substantially enhance her health, child welfare and socioeconomic status. This employment policy if  properly implemented can certainly bring momentous changes changes in the lives of women. 7. Empirical Evidence Related to Female Work Participation According to 2001 census, the total number of women in the country is 494.82 million out of the total population of 1, 025, 25 million. This means that women accounted for 48.26% of the total population. Out of the total women in the country, the work participation rate was only 25.67% while the work participation rate of men was 51.93% in the year 2001. However there is rise in the percentage per centage of women workers through the years. According to another survey, in the year 2004, the total employed force in the public and  private sector was 49.34 lakh. Women working in organized sector constitute only 10 percent whereas 90 percent are in unorganized sector.

In 2003, the number of women in central govt. employment was 7.51 percent. The percenta ge of educated women seeking employment has shown an upward trend from 68.7 percent of Indian population. Census of India, 2001 defined work as an economically gainful activity, and as a result of this, ninety percent of women are recorded as non-worker in the census report of Indian states. Eighty percent women population in rural areas is physically active  but being poor and literate they face enormous problems in labour market.

Case laws12 • In Mrs. Neera Mathur vs. Life Insurance Corporation of India 13. Neera Mathur was a  probationer in the Life Insurance Corporation (LIC). During probation she applied and was granted maternity leave. She was simply discharged from service after she returned. Her discharge was defended by the LIC on the ground that she had given false declaration at the stage of entering the service. The court held that „the particulars to be furnished under columns (iii) to (viii) in the declaration are indeed embarrassing if not humiliating.‟ These columns were held unreasonable and discharge was set aside. • In Punjab National Bank by Chairman and another v. Astamija Dash, 14 it was held that as  per provision of the maternity benefit Act, 1961 a woman can avail leave during the period of six weeks from the day immediately following the day of her delivery, miscarriage or medical termination of pregnancy. If request is made by herself she would not be asked to work for the period specified as per section 4(4). She would be entitled to the benefits of section 6 and 9 of the Act. • In Ashok Kumar v. State of  Rajasthan,   Rajasthan,15 the Supreme Court criticised the Session Court for ignoring the evidence, merely because it was given by a lady doctor in a case where victim was woman. The court said; „we consider it necessary to record that the judge was uncharitable in discarding the testimony of Dr. Patrisia and doubting her truthfulness  principally because she was a women.' • In Air India V Nargesh Mirza 16, the first Air Hostess case, apart from other questions, the legality of regulation 46(c) was challenged. This regulation provided superannuation of an Air Hostess at the age of 35 years or on marriage if it takes place within four years of service 12

http://www.westlawindia.com, accessed on 23 rd Oct 2013 http://www.westlawindia.com,  [1992 AIR 392: 1992 SCC (1) 286] 14  [2008 III LLJ 58 (SC)] 15  [AIR 1990 SC 2134] 16  [AIR 1981 SC 1829; 1981 (4) SCC 335] 13

or on first pregnancy, whichever is earlier. The court declared the provision for retirement on first pregnancy to be unreasonable and said, 'Whether the woman after bearing children would continue in service or would find it difficult to look after the children is her personal matter and a problem which affects the Air Hostess concerned and the Corporation has nothing to do with the same.' • In State of Rajasthan v. Ram Prasad and Another 17, the workman died due to natural lightning while working at the site. It was held by the Supreme Court that in order that a workman may succeed in his claim for compensation it is no doubt true that the accident must have casual connection with the employment and arise out of it but if the workman is injured as a result of natural force of lightning though it in itself has no connection with employment of deceased Smt. Gita, the employer can still be held liable if the claimant shows that the employment exposed the deceased to such injury. In the present case the deceased was working on the site and would not have been exposed to such hazard of lightning had she not  been working so. Therefore the appellant was held liable to pay compensation. compensation. • In M/s Mackinnon Mackenzie and Co. Ltd. vs. Audrey D'costa and other 18. The Supreme Court applied the Equal Remuneration Act to grant same salary to the lady stenographers. The plea of the employer that only women are appointed as confidential stenographers and are in different class was negated. The court held, 'If only women are working as Confidential Stenographers it is because the management wants them there. Women are neither specially qualified to be Confidential Stenographer nor disqualified on account of sex to do the work assigned to the male Stenographers. Even if there is a practice in the establishment to appoint women as Confidential Stenographer such practice cannot be relied on to deny them equal remuneration due to them under the Act.' • In Tirath Kaur v. Kirpal Singh, 19 at the instances of the husband the wife took up training and succeeded in obtaining a diploma in tailoring. Thereafter she got a job at a place which was at some distance f rom rom the husband‟s house. The parties cohabited, sometimes the husband went to the wife‟s place and lived with her and sometimes the wife went to husband‟s place and lived with him. In this manner parties continued to cohabit for some time. Then it seems that differences arose between them on some matter and the husband asked the wife to resign her job and join him at his house. On wife‟s refusal to do so, the 17

 [(2001) I LLJ 177(SC)]  [1987 AIR 1281; 1987 SCC (2) 469] 19  [1964 Punj 28] 18

husband filed the petition for restitution. The Court held that the refusal by a spouse to give up his/her job and live with the other does amount to „withdrawal from the society of the other‟.

 Analysis Enacting gender just laws will not mean an end to the exploitation of and discrimination against women. Using law and the legal system can only be one of the many remedies to be used to change the unequal status of women. In spite of having so many enactments dealing with women and judgments of the Supreme Court protecting women the downtrodden and  poor conditions of women has not been improved and she still faces all types of atrocities and legislature and judiciary somewhat fails to provide respe ct to women in society. After independence the founder fathers of the nation, wanted to reform the society and were keen to establish an egalitarian society. To achieve this end they used law as an instrument to check the gender discrimination, number of laws, were enacted to meet this end but due to strong patriarchal mentality and unfavourable social environment they failed to accomplish their goal. The social engineering through law was not fully achieved, while some rights enshrined under the enactments were enjoyed and accepted by the society most of them remained only in papers due to lack of public support. As it rightly said; by Wendell Phillips: “Law is nothing no thing unless close behind it stands a warm living public opinion” It is said that the law without the public opinion is nothing but a bundle of papers. The gap  between the men and women cannot be bridged by just enacting laws without any public support as social engineering laws are different from penal laws which are just related to  punishment and are deterrent in nature but social engineering laws enacted to uplift the norms of the society are progressive in nature and therefore it should be backed by the will of the  people for whom it i t is enacted. It must be remembered that guaranteeing a right in law does not ensure the ability to access the right in reality

CONCLUSION: The idea of formal equality can be traced back to Aristotle and his dictum that equality meant “things that are alike should be treated alike”. This is the most widespread understanding of equality today. Equality as formal equality has an important role in the law and policy of many countries with advanced equality and non-discrimination provisions. For instance, it forms the conceptual basis of the term “direct discrimination” utilised in the UK or the guarantee of „equal protection of the laws‟ contained in the United States  Constitution. Despite this formal equality, few would argue that gender asymmetries have disappeared. The issue is especially topical at present, in the light of the EU's European employment strategy and its focus on equal opportunities. This comparative study reviews: the general development of the pay gap in the EU and Norway; statutory measures to combat pay discrimination against women and improve their pay conditions; the relationship between the issue of pay equity and collective bargaining; the approach taken by the social partners; and the pay equity issue within EU Member States' National Action Plans for employment. Positive action is a way of attaining substantive equality. Substantive equality is a concept of equality that is concerned with the ensuring ability of persons to compete on an equal basis, having regard to various obstacles (including discrimi nation) that may impede this equality equalit y of opportunity. While laws to eliminate discrimination are necessary to achieve gender justice, substantive equality encourages the state to move a step ahead and introduce positive action. This positive or affirmative action helps secure equal opportunities for all genders. In India, women comprise about one third of the working force. The number of women workers employed in the unorganized sector is higher in rural areas than in urban areas, majority of them in the agriculture sector. In urban areas women are engaged in a variety of occupations such as vegetables sellers, flowers sellers, ironing, construction workers, domestic maids etc. Since most of the activities in the unorganized sector generally require less skill and education, and are of a traditional nature, a significant proportion of women workers in India are in this sector. In urban areas, over 80 per cent are working in the unorganized informal economy where earnings are extremely low, hours of work long, no  paid leave, no medical insurance or pension or any other social security benefits. Working in the informal economy often becomes hazardous for undernourished women workers. Working as home based workers in household industries, domestic workers, petty trades, services, construction sector, etc. women contribute significantly to the national

economic growth as also to family welfare. Yet, their contribution is not adequately recognized; neither their gender specific problems adequately addressed. They remain largely unorganized, unheard, underpaid and under-represented. Although today every panchayat has a significant number of women, yet it is true that many of them are timid, mere alibis for their husbands or brothers, the fact that their presence is required in a panchayat and they possess the power to decide on village concerns, have enabled the more articulate women actually to participate in the democratic process. It is  possible that t hat women‟s sense of sense of themselves, their roles and functions may undergo a gradual transformation in the near future. The complexity, challenges, violence and extra requirements had convinced the women that they can never come up under the existing  process of nominations and they needed some compulsion like quota and reservation.

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