By Sunidhi Gupta

Abstract

Gender discrimination is a rampant issue in India despite the existing legislation which includes unequal pay, limited career advancement opportunities and harassment. Strengthening anti-discrimination legislation is crucial to address these systematic inequalities and promote a fair and inclusive work environment. This paper examines the existing anti-discrimination legislation to protect women in the workplace, focusing on key aspects such as equal pay, promotion opportunities, maternity leave, and protection against harassment and retaliation.

INTRODUCTION

India is diversified due to its wide range of cultures and populations, yet it also presents difficulties. In India, biased treatment of individuals based on their identity or heritage has long been a concern. Discrimination is the term for unequal treatment, which can take many forms. The Indian legislature has created laws to tackle inherent discrimination. However, true equality is hampered by social attitudes, gaps in implementation, and the necessity for ongoing legal adjustments. Discrimination takes place due to various reasons which include caste, religion, gender, age or even education and most of them prevail due to the divide between privileged and marginalised as well as men and women in history. Discrimination based on gender stems from patriarchal norms across various socio-economic backgrounds, irrespective of whether one belongs to the upper or lower strata of society. 

The laws for reducing discrimination towards women in India include the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013; Maternity Benefits Act, 1961; and Equal Remuneration Act, 1976. Most of them aim at creating a safe and equal working environment which is imperative to initiate equality in India. 

CONSTITUTIONAL PROVISIONS

The Indian Constitution is a trailblazer in safeguarding women against discrimination and promoting gender equity in the modern era. It can be argued that the Constitution, as the highest legislation of the land, adequately confronts and overcomes the issues about women. The Indian Constitution’s provisions guide the design of the legislatures. However, laws by themselves will not be able to transform society overnight. Still, they will undoubtedly bring about positive changes and guarantee that those who are discriminated against cannot be treated in any way. Developing a culture of acceptance, encouraging inclusive education, and raising awareness are all essential steps in the direction of a more just society. 

The Articles in the Indian Constitution, which work around equality, are Articles 14 to 18; Articles 14, 15 and 16 are of prime importance. Article 14 states that equals shall be treated equally, which includes equality and equal protection of law. Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth, and this precisely protects the discrimination of women. Article 16 also promises equal opportunity in matters of public employment and that discrimination should not occur on any grounds mentioned above. The Constitution of India does not just obligate the State to protect women from discrimination but provides a personal obligation on all citizens to ensure the dignity of women is protected under Article 51A of the Indian Constitution.

Additionally, the 73rd and 74th Amendments in the Constitution have led to an increase of participation of women in the democratic process by reserving seats for women in Lok Sabha, State Legislature as well as Panchayats at the grassroots level. All these include institutional provisions that initiated the conversations to reduce discrimination against women. However, the government has worked leaps and bounds to create legislation that caters to areas where women are particularly discriminated against, the top of which is the workplace due to the role of them being not just women but mothers. Further, such legislation by the government will be discussed.

EQUALITY OF WOMEN IN WORKPLACE 

With the passage of numerous progressive laws that also apply to employment in the private sector, India has improved the involvement and retention of women in the workforce over the years. The primary law relevant to this topic is the Equal Remuneration (ER) Act of 1976. Employers are required to make sure that men and women are paid equally for work that is done the same or equivalent work. Discrimination against women in hiring, training, transferring, and promoting is illegal under the Equal Remuneration Act. Though some progressive companies have utilized the ER Act to provide priority to female recruits, it currently solely protects women and does not forbid positive discrimination in favour of women over male employees (or employees of other genders). When the planned Code on Wages 2019 (the Wage Code) is put into effect, it will enhance the ER Act by eliminating the binary concept of men and women and making all current rules gender-neutral.

The Maternity Benefit (MB) Act 1961, which provided women in India with a paid 12-week maternity benefit supported by their employers, has been in place for a long time. One of the most generous maternity leave policies in the world, the MB Act was revised in 2017 to grant female employees access to childcare, adoption and surrogacy leave, as well as 26 weeks of paid maternity leave for the first two children. Additionally, it is specifically forbidden by the MB Act for employers to fire female employees while they are on maternity leave. Additionally, it is illegal for an employer to adversely affect a female employee’s terms of service while she is on maternity leave. This is not just legislation for the equality of women but also the job safety of women so that they can flourish in their careers without compromising on their domestic lifestyle, considering the societal pressures they undergo. 

SAFETY OF WOMEN IN WORKPLACE

To shield women from sexual harassment at work, India passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. To protect women from being sexually harassed at work, to prevent and handle accusations of sexual harassment, and to handle issues related to or incidental to these goals. The Act aimed to address how sexual harassment violates women’s fundamental rights, including equality, life, dignity, and the right to practice any profession or occupation. International conventions and instruments, such as the Convention on the Elimination of all Forms of Discrimination against Women, recognize these human rights. The Indian government ratified the Convention on the Elimination of all Forms of Discrimination against Women in 1993, and provisions are being made to protect women against sexual harassment in the workplace. 

The Act came as a perspective to the definition of sexual harassment laid down by the Supreme Court in the case of Vishaka v. State of Rajasthan. The case determined that, under Article 19 (1) g, acts that cause a person’s rights to “Life and Liberty” and “Gender Equality” to be violated also constitute a breach of the victim’s fundamental rights. The case verdict makes it clear that sexual harassment of women at work is illegal and not only an issue of personal hurt. It also infringes on women’s rights. Employers and local agencies must establish grievance committees to investigate all complaints under the Act, which also applies to patients in hospitals and schools. Companies who don’t follow the rules risk fines of up to 50,000 rupees.

CONCLUSION

There’s still a long journey before India truly achieves gender parity and inclusivity in the workplace. In India, there are sufficient laws that both work towards the elimination of discrimination against women and give them more power. The Constitution itself provides for regulations that discriminate against men and favour women, who are viewed as the weaker sex and face disadvantages and discrimination in a society dominated by men. The government’s action-oriented strategy for combating prejudice has shown that the laws are ineffective. The main issue in India is that these laws only exist in the books. On the other hand, the Supreme Court has also taken action and, in certain situations, given the Government instructions. On the other hand, eliminating discrimination in society depends heavily on the application of these laws.

Author’s Bio

Sunidhi Gupta is a Jindal Global Law School student in her fourth year of BA. LLB (Hons.).

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