Madras High Court
Vasantha R. vs Union Of India (Uoi) And Ors. on 8 December, 2000
Equivalent citations: (2001)IILLJ843MAD
JUDGMENT E. Padmanabhan, J.
1. The crux of the contention in this batch of writ petitions is there shall be no discrimination on ground of sex, which is perhaps the most controversial of all protective measures, an ever raging controversy and the issue, has been now set in motion in the form of legal action. This Court deems it apt to quote the great jurist before taking up the writ petitions for consideration:
"It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights." JUSTICE FRANKFURTER, in Wolf v. Colorado [338 U.S. 25, 27(1949)].
2. In the present batch of writ petitions the plea that has been advanced is essentially a claim of equality for women with passion and the equality means equality of opportunity for both men and women. It is the plea of the petitioners that no discrimination shall be practised against women on account of sex in their livelihood, in their right to be treated as equal which includes equality of opportunity. In other words, absolute equality on par with men is the plea advanced on behalf of the petitioners in each writ petition filed for the women and by the women.
3. It is the further plea of the petitioners that women show their ability m various walks of life, besides they have played their part quite well and at times they have even beaten men on their own ground. It is the further claim that women could participate in the public activities and could also discharge their domestic duties as well. It is the further claim of the petitioners that in the field of employment in a factory as in any other field, the work in the third shift should also be thrown open for women and it is for the women to decide which shift they would work and which shift they would not do. The fulcrum of contention being when variety of careers had been thrown open to both men and women which recognise significance of careers to women and when substantial number of women are being deprived of chances of fair employment or equal opportunity on the ground that they shall not be employed during the night shift (third shift) the evils of discrimination is being played and the same shall not be allowed as it is violative of Articles 14, 15, 19(1)(g) and 21 of the Constitution.
4. In the above batch of writ petitions, the petitioners respectively most of the petitioners being women and some of them being the management of various mills or factories where the provisions of the Factories Act, 1948, are being implemented, have advanced identical challenge to Section 66(2) of the Factories Act 1948, as arbitrary unconstitutional and violative of Articles 14, 15 and 19(1)(g) of the Constitution. It would be sufficient to refer to the facts in one of the petitions leading to the present batch of writ petitions.
5. In W.P. No. 4604 of 1999, Smt. R. Vasantha who is employed in the fifth respondent-mills and who is willing to work during day time or at night time on shift basis, depending on the workload had come forward with the present writ petition. It will be sufficient to refer to the facts as set out in writ petition filed by Smt. Vasantha. According to the petitioner the fifth respondent has informed her that the management will render dormitories for comfortable stay and food within the factory premises, transport if necessary and other facilities to enable the women employees to work in the night shifts. However, due to the operation of Section 66(1)(b) of the Factories Act, 1948, the petitioner, a woman employee, is unable to carry on her chosen employment between 7.00 P.M. and 6.00 A.M. and hence she had challenged Section 66(1)(b) of the Factories Act, 1948.
6. According to the petitioner the fifth respondent-company, a leading Public Limited Company, has established a composite textile mill consisting of spinning, weaving, processing and printing at Belathur Village in Dharmapuri District. The said unit is engaged in the manufacture and export of yarn and cloth such as dhoties, sarees, shirtings, suitings and dress materials. The fifth respondent with a view to provide employment opportunity to women has employed women in its factory and substantial number of women are already employed in the fifth respondent factory. The fifth respondent requires further hands to fulfil its export requirements and it has to necessarily run its factory, in three shifts, the first shift being 6.00 A.M. to 2.00 P.M. the second shift being 2.00 P.M. to 10.00 P.M. and the third shift being between 10.00P.M. and 6.00 A.M. Nature of work also, it is claimed necessitates the employment of work during late evening and night shifts as well,
7. The petitioner and other women employees have been informed that Section 66(1)(b) of the Factories Act prohibits the fifth respondent, in the case of employment of women in its factory, in the third shift and as a result of which employment to women are denied. Hence many women had been denied employment in the fifth respondent factory like any other factories in the State and this results in discrimination and violation of Articles 14 and 15 of the Constitution.
8. It is claimed that women workers are ideally suited for textile industries and the production output of women employees is comparatively higher. It is further claimed that if the women are allowed to work in the night shifts, the women as well as the industry will be benefitted and the same will lead to equality in employment leading to elimination of discrimination on ground of sex. It is the claim at Section 66(1)(b) of the Factories Act, 1948, is an impediment on the women employees and restrict them from carrying on their lawful employment. The said provision came to be introduced in an era when the women were uneducated and exploited by men. The petitioners claim that women employees themselves realise the fact that such restriction would come in the way of liberation of women's rights both socio and economic and it is an impediment in their emancipation.
9. It is contended that Section 66(1)(b) of the Factories Act, 1948, discriminates the factory workers based on sex and gender and such gender discrimination is arbitrary and without any basis. Section 66(1)(b) of the Factories Act in so far as it imposes a restriction on the employment of women during night shifts is unconstitutional as it violates Articles 14, 15 as well as 19(1)(g) of the Constitution of India. The discrimination on ground of sex is impermissible in law. It is the contention of the petitioner that it is a clear case of discrimination on ground of sex and it is a clear case of denial of employment only on ground of sex. It is contended that portion of Section 66(1)(b) of the Factories Act and the proviso which enables the State Government to grant exemption only to a limited extent are arbitrary, unreasonable and unconstitutional as it violates Articles 14, 15 and 19(1)(g) of the Constitution.
10. According to the petitioner, gender classification superficially favouring the women were sought to be justified by State and Courts on account of traditional approach and stereotyped thinking about females with reference to the roles by men and women in their family life and those legislations are outmoded. It is also contended that the said piece of legislation is one of the instances of romantic paternalism by which men wanted to restrict women to household activities so that they can retain their economic superiority in the homes. In view of the change in the society, working pattern and advancement in education this concept no longer holds good and such a concept has been fast disappearing and sex based distinction or discrimination should be condemned unless there is exceedingly persuasive justification and it substantially furthers an important public interest. The approach that the woman forms part of the family and she cannot have an independent status or economic freedom de hors the family is no longer good and it is fast disappearing in view of the change in the scenario after independence. Hence the impugned provision is arbitrary and violative of Articles 14, 15 and 16 of the Constitution. The said section came to be introduced with the intention of protecting women from over exploitation. However good intent or absence of discriminatory intent does not immunise an employment practice from the equal opportunity requirement under Articles 15 and 16 of the Constitution of India.
11. It is contended that covert sex classification, though ostensibly beneficial to women, will turn out to be a pretext for sex-based discrimination and is vulnerable to equal protection Act. When women are recruited in the police, in the army, in the air force and various avocations and professions, there is no justification for not allowing women to work in the night shifts in the factories as long as adequate safeguards and protections are afforded to them and if women voluntarily come forward to work in the night shifts for their own reasons, the same cannot be denied only on the ground of sex. Such an approach is unconstitutional. There are innumerable women either highly educated or possess minimum education or technically educated who are not being afforded employment or denied employment during night hours and this results in denial of equal opportunity.
12. It is further contended that such a legislation might have been a valid legislation at the time when it was introduced. However in the present context, it has become a classic instance of legislative despotism when both sexes are being given equal opportunity in the matter of employment. Article 39 of the Constitution directs that men and women shall have equal opportunity, shall have a right to an adequate means of livelihood. Hence in the circumstances Section 66(1)(b) of the Factories Act, 1948, which creates an impediment to the women workers in the factories to attain economic independence and adequate means of livelihood and opportunity of employment is nothing but arbitrary discrimination and offends Articles 14 and 15 of the Constitution.
13. Alternatively assuming that the provision 6(1)(b) of the Factories Act is valid, the proviso to sub-section should have enabled the State Government to relax the rigors of Section 66(1)(b) by varying the timing for women workers so that they are permitted to work in the factory even on night shifts, subject to safeguards to prevent exploitation of women. The said proviso empowers the Government to relax the rigors of the section marginally and exercise of the power of relaxation with respect to the particular type of industry and therefore the said proviso also has to be declared as unconstitutional. It is contended that to sustain the validity of the said provision, it has to be read down and this Court has got the ample powers in this respect. The statutory provision itself while conferring powers to State Government to frame rules to exempt the women working in the fish-curing, fish canning factories from Section 66(1)(b) of the Factories Act, it has restricted the powers of the Government to exempt women working in other factories from the purview of Section 66(2), which is discriminatory.
14. It is contended that it is a classification between the women workers employed in the fish-curing, fish canning factories and women workers employed in other factories which is discriminatory and there is no reasonable nexus for such a classification with the object sought to be achieved and hence according to the petitioner the said proviso is also arbitrary and violative of Articles 14 and 15 and unconstitutional. The petitioner further contends that it is nothing but mentality of male chauvanism and it has not allowed the women a fair share in power and attaining economic independence though various other constitutional amendments have been introduced providing reservation of seats to women in public life such as electing women to the panchayats and municipalities and for the local bodies and certain constitutional amendments also are in the anvil to enable the women to participate in the governance of the nation at the gross root level besides the Parliament is also contemplating to amend the Constitution providing for reservation of 1/3rd of seats to women in the legislative bodies.
15. The conservative provision is most unsuitable to the modern world and hence the present writ petition and also it has resulted in denial of employment opportunity and livelihood to women indirectly.
16. Identical contentions have been advanced by the various employers/textile mills and other establishments in this respect in various other writ petitions. It is not necessary to refer to the details of all those petitioners in each of the writ petitions. The only difference being either the employer had filed the writ petition or the women employees filed the writ petitions setting out the performance of the women employees is far better, their attendance and sincerity is remarkable which results in higher production as against male employees and realising the situation with a view to compete in the world market employers themselves have provided facilities in most of the establishments and provided congenial atmosphere and condition as well as security for women besides giving them transport facility, dormitory facility, food, etc. In some of the cases, it is the plea of the petitioner as well as the management that only women are employed exclusively and the management are willing to employ women alone in particular sections or shifts including night shifts where they desire to employ only women including the managerial and supervisory staff as well as watch and ward which will throw a protective arm on all women employees even if they work during the third shift, i.e., night shift.
17. It is also pointed out that the Legislature has failed to consider the representations made in this behalf and there has been neither an active consideration nor there is an attempt to introduce a provision by way of protective legislation, and this failure has resulted in sexual discrimination and denial of employment, livelihood only on ground of sex which is impermissible in law.
18. On behalf of the respondents, the Deputy Secretary to Government had filed a counter. So also the Central Government, besides one of the labour unions has also got itself impleaded and have made their submissions, besides filing a counter. On behalf of the respondents much reliance is placed on the resolutions passed by the International Labour Organisation and the Constitutional provision as well whereby the resolution of the International Labour Organisation is being given effect to.
Respondents' case:
19. On behalf of the first respondent, Director (Safety) in the office of the first respondent had filed a counter-affidavit. According to the first respondent exemption to Section 66(1)(b) has been given by the State Government for certain types of factories and extended employment of women up to 10.00 P.M. only. Exemption of restriction of women employment between 10.00 P.M. and 5.00 A.M. was given by the State Government to Fish-curing and Fish-canning factories under Section 66(2) whereby the employment of women beyond the hours specified in the said restriction is necessary to prevent damage to or deterioration in any raw materials. Any textile mill manufacturing cotton yarn does not necessitate for the night shift work and therefore there is no reason to relax such restriction with respect to the employment of women in textile mills or other factories. Section 66(1)(b) of the Factories Act, imposes certain restrictions on the employers in the case of employment of women in the factories between 7.00 P.M. and 6.00 A.M. only and not employment of women in factories during rest of the day. This restriction also could be relaxed by the State Government to certain description of factories and working hours of women could be extended beyond 7.00 P.M. and till 10.00 P.M. It is the contention of the first respondent that the said provisions of the Factories Act, is necessitated to safeguard women and protect them from exploitation and the said provisions were incorporated in the Factories Act to give effect to the International Labour Organisation Convention No. 89, ratified by India on "Night Work for Women." The grievance of the petitioner with respect to the impugned provision of the Factories Act are imaginary and without any merits. It is also admitted that no relaxation can be given even if women workers are willing to work in the factory during night shifts.
20. The provision is to protect women from exploitation and even today also the need for protection of women workers continues to be felt. In Vishaka v. State of Rajasthan and Ors. the Supreme Court had given directions regarding the action required to be taken to protect the women from sexual harassment. As the Convention No. 89 of the International Labour Organisation to which the Government of India is a signatory, the Government has to give effect to the international instrument by suitable provisions in National laws. Section 66(1)(b) and Section 66(2) of the Factories Act, 1948 cannot be construed as discriminatory, unreasonable and unconstitutional or violative of Articles 14 and 15 of the Constitution.
21. It is contended that there is no significant improvement in the conditions of women in the country as compared to those days when the Act came into force and still there is need for protection to women from exploitation. The employment, the nature of duties to women, duties of women police, doctors and nurses come under the essential services and they do not fall and they are not covered by the provisions of the Factories Act and the same cannot be compared to the women workers employed in the factories. Any decision to amend the provisions of Section 66 have to be taken carefully after weighing the pros and cons with particular reference to the working conditions in the factory.
22. It is contended that the impugned provision does not create impediment as contended by the petitioners since it only restricts the hours of employment for the reasons stated and that too only to a limited extent. The provision is in the larger interest of the women workers and it is a protective provision under the prevailing women working conditions and it is also as per the ILO Convention No. 89 which was ratified by the Government of India. The exemption provision has been specifically provided to fish curing and fish canning factories where the employment of women workers between 10.00 P.M. and 5.00 A.M. to prevent damage or deterioration in raw material and the same reason cannot be applied, to cotton yarn or other industries. The various contentions advanced by the petitioner are devoid of merits and the provisions are valid and intra vires of the Constitution.
23. On behalf of the second respondent the Deputy Secretary to Government of Tamil Nadu (Labour and Employment Department) had filed a common counter in W.P. No. 3186 of 1998 and the same has been adopted as counter in all the writ petitions. While admitting the substantial facts in the said writ petition the respondent stated that women workers are employed only in the first and second shift and third shifts are meant for male workers. The provisions of Section 66(1)(b) of the Factories Act, 1948, is in force since 1948 and the validity of the same had not been challenged so far though it is being enforced from 1948. Even when there is a demand for workers the management of a factory can employ female workers up to 10-00 P.M. after getting exemption under Section 66(1)(b) of the Factories Act, 1948. Section 66(1)(b) of the Factories Act is to protect the weaker section from exploitation rather than decreasing employment opportunity as they claim. When for 2/3 of a day female workers could been engaged, the claim of the petitioners that Section 66(1)(b) of the Act affects the employment opportunity of women workers is untenable.
24. The main object of Section 66(1)(b) of the Factories Act, 1948 is to protect the female workers from exploitation and it is for their interest and safety. It is a special provision to safeguard the interest of the weaker section and hence it is not offending any right guaranteed under Articles 14 and 15 of the Constitution. There are similar legislations available to protect weaker section of society like the Plantations Labour Act, 1951. The Tamil Nadu Catering Establishments Act, 1958, Maternity Benefit Act, 1961 and 30 per cent reservation for women as in Government recruitments, special reservations for socially backward classes, etc. These are all social legislations incorporated to safeguard the interest of weaker and poor sections of population and to uplift them in the society. No one can claim that it is ultra vires of the provisions of Articles 14 and 15,
25. The wage-structure, educational level of textile women workers cannot be compared with police, doctors or nurses as well as other service benefits enjoyed by the Government servants. If Section 66(1)(b) of the Act is set aside as unconstitutional this may lead to employment of a single woman worker to mingle with group of male workers during night hours. Without availing the existing: exemption provision, which enables a factory to employ women workers up to 10.00 P.M. there is no reason at all to approach this Court challenging Section 66(1)(b) and the proviso to Section 66(1)(b) are not arbitrary, unreasonable and unconstitutional but well founded to secure the welfare of the women as guaranteed under Article 15(3) of the Constitution.
26. Article 15(3) of the Constitution empowers the State Government to make special laws in respect of women reason being that woman's physical structure and performance of material functions place them at a disadvantageous position in the struggle for their subsistence and their well being becomes an object of public interest and care in order to preserve their strength and vigor of the race. Article 14 cannot be invoked here to better the cause of the women workers and for their advancement. If the contention of the petitioners are to be accepted, and the women workers are engaged during night shifts, the same will create problems for women to work in the night shifts such as their safety, protection, transport, stay etc. Women workers working in a night shift in a factory are not well educated and they do not come from higher strata of the society. They are all rural based and exposed to the vagaries of social compulsion. Section 66(1)(b) has not become arbitrary because of the passage of time and it can withstand the test of reasonableness at any point of time. The proviso to Section 66(2) also is constitutionally valid. Merely because exemption is granted to the fish curing and fish canning or food processing industries by the statutory provisions, the said proviso cannot be held to be discriminatory or arbitrary and it is based upon classification of the industries which is reasonable.
27. In W.P. No. 7059 of 1994, the All India Democratic Women's Association, Tamil Nadu State Committee represented by its Assistant Secretary while taking out an application to implead as one of the respondents in the said writ petition, resisted the writ petition on the following lines. The said association, it is claimed as the largest women's association in India having over a million number of members all over India. The said association also claims that it had been giving representations in major policy making bodies constituted for dealing with issues relating to women's welfare. Some of the national office-bearers of the association are members of the Parliament and were instrumental in bringing important changes in many legislations concerning women. It also claimed that the said association has formed a forum to specifically discuss issues affecting problems faced by women workers and it has also organised conferences of women workers and have passed numerous resolutions regarding their service conditions.
28. The said association further claims that it had studied the specific working conditions of women workers and represented their grievances before the various commissions. It is also claimed that it is interested in protecting the existing rights given to women workers under the Factories Act. It is contended that the writ petition is misconceived and not maintainable in law. The prohibition made in the impugned provision is valid and constitutional and it is based on the convention made by the ILO to which India is party. It is claimed that the socio-economic standards of Indian women work force is not suited for any night shift.
29. It is also contended that no employer has provided any safeguard for women. The employer operates the mill in a rural area where transport facilities are rare and the women to come public in the evening itself is a rarity. The writ-petitioner cannot challenge the legislative power of the Parliament. Sri K. Chandru, learned senior counsel appeared for the said association and reiterated the contentions.
30. Smt. Nalini Chidambaram, learned senior counsel for Sri S. Silambannan, Sri Vijaya Narayanan, Sri Elumalai, Sri V. Rama Jagadeesan, Sri R. S. Narendhiran and Sri G.K. Hari Kara Rajan, learned counsel on behalf of the women workers as well as the management challenged the provisions.
31. Sri V.T. Gopalan, learned Additional Solicitor-General, on behalf of the Central Government, Sri T.R. Rajagopalan, learned Additional Advocate-General on behalf of the State Government and Sri K. Chandru, learned senior counsel, on behalf of the trade unions, made their submissions.
32. The points that arise for consideration are:
(i) Whether Section 66(1)(b) of the Factories Act, 1948, in so far as it prohibits women being engaged in a factory during night shift, is violative of Articles 14, 15, 19(1)(g) and 21 of the Constitution and liable to be declared as unconstitutional?
(ii) Whether the restriction imposed by proviso to Section 66(2) of the Factories Act, on the State Government's power to grant exemption is arbitrary and violative of Articles 14, 15, 19(1)(g) and 21 of the Constitution and the directive principles?
33. The second contention is advanced as an alternate contention and the learned counsel for the petitioners in all the writ petitions mainly concentrated on the first contention. In the alternative only it is contended that the proviso to Section 66(2) imposing restriction on the power of the State Government with respect to grant of relaxation alone is being challenged.
34. It is also admitted that in a substantial number of cases, this Court granted interim stay and such stay is being in force for more than 5 years and so far according to Smt. Nalini Chidambaram, learned senior counsel, there has been no complaint by any of the Labour Inspector or Factories Inspector with respect to the employment of women workers during night shifts and there had been no untoward incident whatsoever so far complained of and this 5 years period is more than sufficient to study the working problem faced by women workers during night shift.
35. It is essential to incorporate the very provision of the Factories Act, 1948, which is under challenge:
66. Further restriction on employment of women, (1) The provisions of this chapter shall, in their application to women in factories, be supplemented by the following further restrictions, namely:
(a) no exemption from the provisions of Section 54 may be granted in respect of any woman;
(b) no woman shall be required or allowed to work in any factory except between the hours of 6 A.M. and 7 P.M. Provided that 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 limits laid down in Clause
(b), but so that no such variation shall authorise the employment of any woman between the hours of W P.M. and 5 A.M.:
(c) there shall be no change of shift except after a weekly holiday or any other holiday.
(2) The State" Government may make rules providing for the exemption from the restrictions set out in Sub-section (1) to such extent and subject to such conditions as it may prescribe, of women working in fish curing or fish canning factories, where the employment of women beyond the hours, specified in the said restrictions is necessary to prevent damage to, or deterioration in any raw material.
(3) The rules made under Sub-section (2) shall remain in force for not more than three years at a time.
36. The challenge is in respect of the entirety of Section 66(1)(b) of Factories Act, 1948, which imposes a prohibition with respect to the employment of women in any factory between 7.00 P.M. and 6.00 A.M. In other words, women shall be allowed to work or required to work in any factory only between 6.00 A.M. and 7.00 P.M. Proviso to Section 66 enables the State Government by a notification to vary the limits laid down in Clause (b) in respect of any factory or group or class or description of factories, but such variation shall not authorise the employment of any woman between the hours of 10 P.M. and 5 A.M. Sub-clause (2) of Section 66 provides that the State Government may make rules providing for exemption from the restrictions set out in Sub-section (1) to such extent and subject to such conditions as it may prescribe of women working in fish curing or fish canning factories where the employment of women beyond the hours specified in the said restrictions is necessary to prevent damage to or deterioration in any raw material.
37. The object of the enactment namely Factories Act, 1948, has been summarised by their Lordships of the Supreme Court in B. Y. Kshatriya (Private), Ltd. v. Union of India . In that context it has been held thus:
"(9) The Factories Act, as the preamble recites is an Act to consolidate and amend the law regulating labour in factories. The Act is enacted primarily with the object of protecting workers employed in factories against industrial and occupational hazards. For that purpose it seeks to impose upon the owners or to the occupiers certain obligations to protect workers unwary as well as negligent and to secure for them employment in conditions conducive to their health and safety. The Act requires that the workers should work in healthy and sanitary conditions and for that purpose it provides that precautions should be taken for the safety of workers and prevention of accidents. Incidental provisions are made for securing information necessary to ensure that the objects are carried out and the State Government are empowered to appoint Inspectors, to call for reports and to inspect the prescribed registers with a view to maintain effective supervision. The duty Of the employer is to secure the health and safety of workers and extends to providing adequate plant, machinery and appliances, supervision over workers, healthy and safe premises, proper system of working and extends to giving reasonable instructions. Detailed provisions are therefore made in diverse chapters of the Act imposing obligations upon the owners of the factories to maintain inspecting staff and for maintenance of health, cleanliness, prevention of overcrowding and provision for amenities such as lighting, drinking water, etc., provisions are also made for safety of workers and their welfare such as restrictions on working hours and on the employment of young persons and females and grant of annual leave with wages. Employment in a manufacturing process was at one time regarded as a matter of contract between the employer and the employee and the State was not concerned to impose any duties upon the employer. It is however now recognised that the State has a vital concern in preventing exploitation of labour and in insisting upon proper safeguards for the health and safety of the workers. The Factories Act undoubtedly imposes numerous restrictions upon the employers to secure to the workers adequate safeguards for their health and physical well being. But imposition of such restrictions is not and cannot be regarded, in the context of the modern outlook on industrial relations, as unreasonable."
38. Again in Central Railway Workshop, Jhansi, v. Vishwanath, reported in AIR 1970 SC 400, their Lordships of the Supreme Court while referring to the object and intention (sic) as well as the interpretation to be placed on the Factories Act, 1948, held thus:
"11. The Factories Act was enacted to consolidate and amend the law regulating labour in factories. It is probably true that all legislations in a Welfare State are enacted with the object of promoting general welfare; but certain types of enactments are more responsive to some urgent social demands and also have more immediate and visible impact on social vices by operating more directly to achieve social reforms. The enactments with which we are concerned, in our view, belong to this category and, therefore, demand an interpretation liberal enough to achieve the legislative purpose, without doing violence to the language."
39. While advancing their contentions which are two fold, the counsel for the petitioners contended that the said provision is violative of Articles 15, 16, 19(1)(g) as well as 21 of the Constitution. Per contra, it is contended that the said provisions are intra vires as it is a protective provision to safeguard the interest of the weaker section. The petitioners also relied upon directive principles of State policy in Part IV of the Constitution.
40. Per contra, the counsel for the respondents while contending that the provisions are intra vires and not violative of Articles 14, 15, 16 or 21 or Article 15(1)(g) of the Constitution relied upon Article 253 of the Constitution where it has been provided that the Parliament has the power to make any law for implementing any treaty, agreement or convention with any other country or countries or any decision made at any International Conference, Association or other body. The rules framed by the State Government under Sub-section (2) of Section 66 was referred to by the counsel for either side, viz., Rule 84A of the Tamil Nadu Factories Rules, 1950, which rules provide that women working in fish curing and fish canning shall be exempted subject to the following conditions:
"(1) No woman shall be employed before 6 A.M., or after 7 P.M. for more than three days in any one week. The number of days on which a woman may be so employed shall not exceed fifty in a year;
(2) No woman shall be employed after 11 P.M. and before 5 A.M. (3) A period of uninterrupted rest of atleast nine hours shall intervene between the cessation of period of work after 7 P.M. on any day and the beginning of a fresh period of work on the following day."
These rules in no way advance the case put forward by the respondent in any view of the matter.
41. The counsel for the respondents relied upon the International Convention on Night Work of Women employed in Industry (Revised 1948) Convention No. 89. Articles 3, 4 and 5 of the said convention read thus:
Article 3- 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 same family are employed.
Article 4. Article 3 shall not apply -
(a) in case of force majeure, when in an undertaking there occurs an interruption of work which it was impossible to foresee, and which is not of a recurring character;
(b) in cases where the work has to do with raw materials or materials in course of treatment which are subject to rapid deterioration when such night work is necessary to preserve the said materials from certain loss.
Article 5-1. The prohibition of night work for women may be suspended by the Government, after consultation with the employers' and workers' organisations concerned, when in case of serious emergency the national interest demands it:
2. 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.
42. Per contra, the counsel for the writ petitioner relied upon the protocol of the night work (women) revised (1948) and in particular to Article 1. According to the said convention the International Labour Organisation had enabled the various countries to frame national laws or regulations after consultation with the emplolyers' and workers' organisations concerned for carrying in the duration of night period as defined in Article 2 of the Convention and exemption from the prohibition of night work contained in Article 3 thereof may be introduced by a decision of the competent authority. Hence it is clear that the ILO Revised Convention watered down, the Convention No. 89 of ILO Convention, 1948 and therefore it is to be pointed out that the ILO Convention will not enable the State Government to impose restriction irrespective of the industry or factory and the said convention itself authorises the state authorities to introduce or amend or modify the existing provisions. It is also contended it is the constitutional provision which prevails and the reliance placed upon Article 253 cannot be relied upon to defeat the fundamental rights guaranteed by the Constitution.
43. Before taking up the points for consideration it is also useful to refer to the conditions of work (Vol.6 2/1987) published by the International Labour Office, Geneva with respect to the prohibition of night work, while summarising the legal provisions, the said Digest under the heading Prohibition of Night work reported thus:
"Scope of the prohibition - Only some 20 countries have no legislation prohibiting night work by women. In some countries this is not a new situation, in others, such as Barbados, Canada, Guyana, Ireland, Israel, New Zealand, Spain and Surinam, laws prohibiting night work by women workers have been repealed, mostly over the last ten years. In Australia and the United States also, federal and most state legislations on the subject have been repealed. Other countries (e.g., the United Kingdom) are preparing to take the same action or (e.g., Sri Lanka) have significantly relaxed their legal requirements.
In a small number of countries, night work is prohibited for both men and women. In Belgium and Switzerland, exemption possibilities are broader and more easy to obtain for men than for women, while in Norway and Sweden, the sex of workers is not a consideration in the treatment of exempted occupations. In the Netherlands, a 1986 law has brought exemption possibilities for women closer to those applicable to men."
44. While referring to the legal provisions in India the said Digest referred to the following legal provisions:
Scope: Factories (1) Plantations (2) work in mines above ground (3) catering establishments (in Pondicherry)6.
Exceptions: Family catering establishments (6) [Section 3(1)] Persons covered: All women in factories (1) Section 66(1)1; Plantations (2) (Section 25); mines (3) (Section 46); catering (6) (Section 18).
Exceptions: On plantations, a medical officer where monthly wages exceed 750 rupees; managerial positions; temporary employment in construction work (2) Section 2(k) midwives and nurses (2) (Sections 2(k) and 25).
Duration: 19:00 to 6:00 in factories (1) [Section 66(1)(b)], on plantations (2) (Section 25), and in mines above ground )3) [Section 46(1)]. 21:00 to 5:00 in catering, establishments (in Pondicherry) (6) (Section 18).
Partial exemptions: 22:00 to 5:00 in factories (Provincial Government) (1) (Section 66) and in mines above ground (Central Government (3) [Section 46(3)].
Total exemptions: To save materials from loss in fish processing factories (1) Section 66. With permission of State Government, on plantations (2) (Section 25).
Suspension: In catering establishments the Government may, by notification, provide exemption permanently or for specified periods (6) [Section 3(3)].
45. In the light of the latter I.L.O. Convention and Declarations, it is clear that the reliance placed on International Labour Organisation Convention by the respondents is of no avail. At any rate, as fairly stated across the Bar by the counsel appearing for either side it is the constitutional provision which alone prevails and I.L.O. Conventions and Declarations have to necessarily give way.
46. The main fulcrum of the arguments advanced by the counsel for the petitioners being violation of Articles 14 and 15(1) of the Constitution and the provision is a clear case of discrimination against women on the only ground of sex. Sri Chandru learned senior counsel appearing for the All India Democratic Women's Association sought to project the plea that the impugned provision is a protective legislation and therefore the contention that the provision is discriminatory cannot be sustained at all.
47. It would be proper to take up the challenge based upon Articles 14, 15 and 21 of the Constitution at the first instance. In C. Masiliamani Mudaliar v. Idol Swaminathaswami, the challenge to Section 14 of the Hindu Succession Act was made on the ground of elimination of gender based discrimination. In the said context, it has been held that it is imperative of the State to eliminate obstacles, prohibit all gender based discriminations as mandated by Articles 14 and 15 of the Constitution of India. While referring to Vienna Declaration on the elimination of all forms of discrimination against women for brevity referred as CEDAW to which Government of India was a party, the Apex Court pointed out that the said Convention reiterates that discrimination against women violates the principles of equality of rights and respect to human dignity, is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country. In the said judgment, the Apex Court held thus:
"The directive principles and fundamental rights, though provided the matrix for development of human personality and elimination of discrimination, these conventions add urgency and teeth for immediate implementation. It is, therefore, imperative of the State to eliminate obstacles, prohibit all gender based discriminations as mandated by Articles 14 and 15 of the Constitution of India. By operation of Article 2(f) and other related articles of CEDAW, the State should take all appropriate measures including legislation to modify or abolish gender based discrimination in the existing laws, regulations, customs and practices which constitute discrimination against women.
22. Article 15(3) of The Constitution of India positively protects such Acts or actions. Article 21 of the Constitution of India reinforces 'right to life.' Equality, dignity of person and right to development are inherent rights in every human being. 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. For its meaningfulness and purpose every woman is entitled to elimination of obstacles and discrimination based on gender for human development. Women are entitled to enjoy economic, social, cultural and political rights without discrimination and on a footing of equality. Equally in order to effectuate fundamental duty to develop scientific temper, humanism and the spirit of enquiry and to strive towards excellence in all spheres of individual and collective activities as enjoined in Articles 51A(h) and 51A(j) of the Constitution of India, facilities and opportunities not only are to be provided for, but also all forms of gender based discrimination should be eliminated. It is a mandate to the State to do these acts. Property is one of the important endowments or natural assets to accord opportunity, source to develop personality to be independent, right to equal status and dignity of person. Therefore, the State should create conditions and facilities conducive for women to realise the right to economic development including social and cultural rights."
48. In the very same judgment it has been observed that women have always been discriminated against and have suffered and are suffering discrimination in silence. Self sacrifice and self denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities, equality and discrimination. Articles 13, 14, 15 and 16 of the Constitution of India and other related articles prohibit discrimination on the ground of sex. It has also been emphasised by the Apex Court that equality, dignity of person and right to development are inherent rights in every human being.
49. In Dalmia Cement (Bharat) Ltd. v. Union of India, with reference to Article 14, the Apex Court held thus:
"18 Article 14 of the Constitution is a shining star among the fundamental rights which guarantees equality to "every citizen and equal protection of laws to all persons. Equality before law is a co-relative to the concept of rule of law for all round evaluation of healthy social order. Directives set forth social principles to eliminate inequalities in income, in status and opportunity" and to provide facilities and opportunities to every citizen to make the fundamental rights meaningful and the life of every citizen worth living and at its best, with the dignity of person and fraternity, lest they remain empty vessels and teasing illusions to majority population."
In the same decision the Apex Court held that every individual would exercise his right to achieve excellence, but subject to protective discrimination. In that context, the Supreme Court held thus:
"15. In Valsamma Paul v. Cochin University a Bench of this Court has held that human rights are derived from the dignity and worth inherent in the human person. Human Rights and fundamental freedoms have been reiterated in the Universal Declaration of Human Rights. Democracy, development and respect for human rights and the fundamental freedoms are interdependent and have mutual reinforcement. Article 29(2) of the Declaration of Human Rights provides that:
'in the exercise of this right and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of leading the just requirements of morality, public order and general welfare in a democratic society.' The concept of equality and equal protection of law guaranteed by Article 114 of the Constitution in its proper spectrum encompasses social and economic justice in a political democracy as its species to eliminate inequalities in status and to provide facilities and opportunities among the individual and group of people to secure adequate means of livelihood which is the foundation for stability of political democracy."
50. Hacking back to the provisions of The Factories Act, 1948, in Chapter VI, provisions have been made with respect to the regulation of working hours of adults. Section 51 prescribes that no adult worker shall be required or allowed to work in factory for more than forty eight hours in any week. Section 52 provides that.no adult worker shall be required or allowed to work in a factory on the first day of the week which is subject to certain exemptions. Section 53 provides for compensatory holidays. Section 54 prescribes that subject to Section 51, no adult worker shall be required or allowed to work in a factory for more than nine hours in any day. Section 55 provides for intervals for rest of at least half an hour. Section 57 provides where a worker in a factory works on a shift which exceeds beyond mid night for the purposes of Sections 52 and 53 a holiday for a whole day shall mean in his case a period of twenty four consecutive hours beginning when his shift ends. Section 58 prohibits overlapping of shifts and Section 59 provides for payment of extra wages for over time. Section 61 provides for a notice board being maintained indicating the hours of work, shift etc., in every factory. Section 62 provides for maintenance of a register of adult workers. Section 65 enables the State Government to grant exemption.
51. In the said Chapter except in Section 66 the restriction or regulation or privileges or obligations imposed are identical in all respects and there is no difference from one worker to another worker be it a male or female. Only individual discrimination introduced is the impugned provision found in Section 66 of the Act. Section 66(1)(b) provides that no woman shall be required by the employer to work in any factory except between the hours of 6 A. M. and 7 P.M. and so also no women shall be allowed to work in any factory except between the hours of 6 A. M. and 7 P. M. In other words, there is no restriction with respect to the working of women between 6 A.M. and 7 P.M. It may be a requirement made or prescribed by the employer or it may be a permission.
52. An analysis of Section 66 would disclose the following additional restrictions in respect of women:
(i) No exemption be granted from the provisions of daily hours of work under Section 54.
(ii) No woman shall be required or allowed to work in any factory except between 6 A.M. and 7 P.M. which restriction is subject to grant of exemption by the State Government varying the limits between 10 P.M. and 5A.M. Section 66 also discloses a statutory exemption from the restriction imposed by Sub-section (1) of Section 66 in respect of workers engaged in -
(i) fish curing factories ; or
(ii) fish canning factories.
In respect of such fish curing and fish canning caning factories the rule prescribes certain restrictions to women workers employed in fish curing or fish canning factories, viz., could be regulated or allowed to work in any shift of a day.
53. It is being pointed by the learned counsel for the respondents that if the women are required or allowed to work during the night shifts, it would result in their being subjected to very strenuous work as in addition to their working in factories they have to attend to their household duties. This explanation attempted or suggested cannot be taken as a universal phenomena. There are many women, as claimed by the women workers themselves either without family or residing in hostel for employed women or in the quarter allotted to them by the employers. In such cases the question of strenuous work does not arise at all. However it is pointed out by petitioners that under such guise constitutional guarantee shall not be allowed to be infracted as it is a discrimination only on the ground of sex. All the provisions of the Chapter VI except Section 66 treats adult workers irrespective of their sex identically while Section 66 alone treats women workers differently and deny them their opportunity of being employed or engaged or earning or engaged during night shifts which according to the petitioners is violative of Article 15(1) and it is not a protection in the interest of the women workers, but it is a discrimination solely based on sex.
54. It is not the contention of any of the respondents that the impugned provision is saved by Sub-clause (3) or Sub-clause (4) of Article 15. Also it is rightly pointed out that when the women workers could be allowed or required to discharge or execute the same work in the remaining hours of the day, there is no reason or basis to deny the very same opportunity during the night shifts as well. It is not as if the particular work or job or variety of jobs are reserved for women as suitable to their physical conditions. But on the other hand, any adult worker is allowed to work during the night shifts the same work which the women workers were required or allowed to work during the day shifts, namely, shifts 1 and 2.
55. Excepting the solitary reason namely difference in sex among the workers, there is no reason or rhyme to treat the women differently, nor it could be held that it is a protective legislation to save the women from exploitation. On the other hand, the very provision results in denial of livelihood, improvement in status to women as well as economic freedom and the impugned provision in any view of the matter offends Article 15(1) of the Constitution.
56. While considering the said provision in the light of Article 14 also, when there is no difference with respect to the work or hours of work or work load between an adult male or female worker in a given factory in a given period of time, there is no reason at all to discriminate an adult woman worker as against an adult male worker on the ground of sex alone. There is no valid classification to sustain the said provision as well and it is not as if the work or job or employment is exclusively reserved for either sex nor there is any categorisation in respect of a female worker being engaged in a particular field or work or factory or section of the factory. That being so, the impugned provision is discriminatory and it is neither a reasonable classification, nor there is any nexus with respect to the objects sought to be achieved by the said provision.
Therefore, Article 14 is also violated.
57. In Indra Sawhney v. Union of India, reported in AIR 1970 SC 477 (Nine-Judges Bench), B.P. JEEVAN REDDY I, speaking on behalf of the majority of the Judges while analysing the doctrine of equality with reference to Articles 14 to 18 held thus:
"4. The doctrine of equality has many facets. It is a dynamic, and an evolving concept. Its main facets, relevant to Indian Society, have been referred to in the preamble and the articles under the sub-heading 'Right to equality' - (Articles 14 to 18). In short, the goal is 'equality of status and of opportunity.' Articles 14 to 18 must be understood not merely with reference to what they say but also in the light of the several articles in Part IV (Directive Principles of State Policy). 'Justice, Social, Economic and Political' is the sum total of the aspirations incorporated in Part IV.
6. The significance attached by the foundin0g fathers to the right of equality is evident not only from the fact that they employ both the expressions 'equality before the law' and equal protection of the laws in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18. Through Article 15 they declared in positive terms that the state shall not discriminate against any citizen on the grounds only religion, race, caste, sex, place of birth or any of them. With a view to eradicate certain prevalent undesirable practices it was declared in Clause (2) of Article 15 that no citizen shall on the grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction or condition with regard to shops, public restaurants, hotels and place of public entertainment or to the use of well, tanks, bathing ghats, roads and place of public resort maintained wholly or partly out of State funds or dedicated to the use of general public. At the same time, with a view to ameliorate the conditions of women and children a provision was made in Clause (3) that nothing in the said article shall prevent the State from making any special provision for women and children."
In the same pronouncement while referring to affirmative actions and reservations, the Apex Court held thus:
"Inasmuch as public employment always gave a certain status and power it has always been the repository of State power besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1) expressly declares that in the matter of public employment or appointment to any office under the State, citizens of this country shall have equal opportunity while Clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent place of birth, residence or any of them. At the same time, care was taken to declare in Clause (4) that nothing in the said article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State Article 17 abolishes untouchability while Article 18 prohibits conferring of any titles (not representing military or academic distinction). It also prohibits the citizens of this country from accepting any title from a foreign State."
58. In the present case, the restriction imposed by the impugned provision is not an affirmative action, nor such an approach will bring it under Article 15(4) of the Constitution.
59. The question whether the International Labour Convention Declaration should prevail or the constitutional provision prevails need not be gone into in detail in the light of the recent pronouncement of the Apex Court in Apparel Export Promotion Council v. A.K. Chopra, wherein Dr. ANAND, C. J., speaking for the Bench while holding that sexual harassment is an affirmative of sex discrimination and such sexual harassment results in violation of fundamental right to gender equality and the right to life and liberty, held thus, in Para 26, at page 972 of LLJ:
"In cases involving violation of human rights, the Courts must forever remain alive to the international instruments and conventions and apply the same to a given case, when there is no inconsistency between the international norms and the domestic law occupying the field. In the instant case the High Court appears to have totally ignored the intent and content of the international conventions and norms while dealing with the case."
60. Therefore it is settled law that it is the law which occupies the field, namely the constitutional provision which governs and on which basis the point in controversy has to be decided.
61. With reference to the challenge based upon Article 19(1)(g), it would be sufficient to refer to the enunciation of law by the Apex Court, as held in Papanasam Labour Union v Madura Coats, Ltd., where their Lordships have laid down the principles and guidelines for considering constitutionality of a statutory provision upon a challenge on the alleged vice of unreasonableness and the restriction imposed by it. It would be relevant to refer to the relevant principles or guidelines for the purpose of this case and they are, in Para 16, at pages 945, 946 of LLJ:
"(a) The restriction sought to be imposed on the fundamental rights guaranteed by Article 19 of the Constitution must not be arbitrary or of an excessive nature so as to go beyond the requirement of felt need of the society and object sought to be achieved.
(b) There must be a direct and proximate nexus or a reasonable connection between the restriction imposed and the object sought to be achieved.
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(d) In interpreting constitutional provisions, Court should be alive to the felt need of the society and complex issues facing the people which the Legislature intends to solve through effective legislation.
(e) In appreciating such problems and felt needs of the society the judicial approach must necessarily be dynamic, pragmatic and elastic.
(f) It is imperative that for consideration of reasonableness of restriction imposed by a statute, the Court should examine whether the social control as envisaged in Article 19 is being effectuated by the restriction imposed on the fundamental rights.
(g) Although Article 19 guarantees all the seven freedoms to the citizen, such guarantee does not confer any absolute or unconditional right but is subject to reasonable restriction which the Legislature may impose in public interest. It is therefore necessary to examine whether such restriction is meant to protect social welfare satisfying the need of prevailing social values.
xxx"
62. Applying the same principles in the present case the statutory provision which prohibits the employment of women during night shifts offends Article 19(1)(g) as it is an unreasonable restriction imposed on the fundamental rights of the women as the factories in substantial numbers are being run by State or State owned corporations to which factories the provisions of the Factories Act equally apply like any other factory established by private bodies or individuals.
63. There is no quarrel with the proposition that all laws in force in the territory of India immediately before the commencement of the Constitution in so far as they are inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency shall be void. This position is clear from Article 13(1) of the Constitution. It is also equally well settled that the State shall not discriminate against any citizen on grounds only of sex, religion, race, place of birth or any of them.
64. Section 66 of the Factories Act, 1948, prohibits women from being engaged during the night shifts which prohibition is solely based on the ground of sex and there is no other plus factor which would warrant or justify such a prohibition. None of the respondents are in a position to point out any other reason or plus factor to treat female workers differently. Apart from difference in sex of the worker, they are unable to point out any other additional factor in this respect.
65. There is no additional factor warranting or justifying different treatment among the working class who work in the same factory and discharge the same work in the regular day shift. Clause (1) of Article 15 applies only where the discrimination against a citizen is solely based on the ground of sex, religion, race etc. If there can be found any rationale behind any general or customary law making such a discrimination between a male, and female worker in favour of the male based not solely on the ground of sex, then such a law cannot come within the sweep of Article 15. If the discrimination is based solely on ground of sex then there is no escape and this position is also fairly admitted by the counsel for either side.
66. In Air India v. Nergesh Meerza, reported in 1981 (2) LLN 572, with reference to Articles 15(1) and 16(2), the Apex Court held that the said two constitutional provisions prohibits discrimination when such discrimination is made only on the ground of sex and at the same time made it clear that the said constitutional provision do not prohibit the State from making discrimination on the ground of sex coupled with other considerations. In this respect, the Apex Court held thus:
"Even otherwise, what Articles 15(1) and 16(2) prohibit is that discrimination should not be made only and only on the ground of sex. These articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations. On this point, the matter is no longer res Integra but is covered by several authorities of this Court. In Yusuf Abdul Aziz v. State of Bombay and Husseinbhoy Laljee , sex was held to be a permissible classification. While dealing with this aspect of the matter this Court observed thus:
"Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provision in the case of women and children. The two articles read together validate the impugned clause in Section 497 of the Indian Penal Code."
67. The same view was taken by this Court in a later decision in Ms. C.B. Muthamma v. Union of India 1979 (2) LLN 586, where KRISHNA IYER, J., speaking for the Court made the following observations:
"We do not mean to universalise or dogmatise that men and women are equal in 1 all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either 1 sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern."
68. In Rustom Cavasjee Cooperative v. Union of India the Apex Court held that by Article 14 of the Constitution, the State is enjoined not to deny to any person equality before the law or the equal protection of the laws and the said Article forbids class legislation, but not reasonable classification in making laws and
(i) such reasonable classification must be founded on an intelligible differentia distinguishing persons, transactions or things grouped together from others left out of the group; and
(ii) the differential has a rational relation to the object sought to be achieved by the Act. In other words, there must be a nexus between the basis of classification and the object of the Act.
In State of Andhra Pradesh and Anr. v. P. Sagar, it has been held that Article 15 prohibits the State from discriminating any. citizen solely on religion, race, caste, sex or place of birth or any of them. Clause (4) of Article 15 is an exception Clause (1) and being an exception, it cannot be extended. In that respect, the Apex Court held thus:
"8. Article 15 guarantees by the first clause a fundamental right of far-reaching importance to the public generally. Within, certain defined limits an exception has been grafted upon the guarantee of that freedom in Clause (1), but being in the nature an exception, the conditions which justify departure must be strictly shown to exist."
In the present case, it is not the contention of the counsel for any of the respondents or for that matter either the State or the Central had advanced a contention that the restriction would fall within the exception either under Article 15(4) or Article 15(2) of the Constitution.
69. In Ms. C.B. Muthamma I.F.S. v. Union of India and Ors. (supra), the petitioner a member of the Indian Foreign Service contended that she had been denied permission to Grade I illegally and incidentally by practice of hostile discrimination against women while referring to the statutory rule and in particular to Rule 18(4) which forbids a woman as of right to be appointed to the service in case she is married, the Apex Court held thus:
"At the first blush this rule is in defiance of Article 16. If a married man has a right, a married woman, other things being equal, stands on no worse footing.
This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman's thraldom. Freedom is indivisible, so is justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-avis half of India's humanity, viz., our women is a sad reflection on the distance between Constitution in the book and law in action. And if the executive as the surrogate of Parliament, makes rules in the teeth of Part III especially when high political office even diplomatic assignment has been filled by women, the inference of die-hard-allergy to gender parity is inevitable.
In the same case, the Apex Court also added thus:
"We do not mean to universalise or dogmatize that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern."
70. While considering the scope of Articles 14, 15 and 16 and the special provision for woman, the Apex Court in Government of. Andhra Pradesh v. P.B. Vijayakumar and Anr. [1995 (2) LLN 647 held thus:
"6... The interrelation between Articles 14, 15 and 16 has been considered in a number of cases by this Court. Article 15 deals with every kind of State action in relation to the citizens of this country. Every sphere of activity of the State is controlled by Article 15(1). There is therefore no reason to exclude from the ambit of Article 15(1) employment under the State. At the same time Article 15(3) permits special provisions for women. Both Articles 15(1) and 15(3) go together. In addition to Article 15(1), Article 16(1) however, places certain additional prohibitions in respect of a specific area of state activity, viz., employment under the State. These are in addition to the grounds of prohibition enumerated under Article 15(1) which are also included under Article 16(2). There are, however, certain specific provisions in connection with employment under the State under Article 16. Article 16(3) permits the State to prescribe a requirement of residence within the State or Union Territory by Parliamentary legislation; while Article 16(4) permits reservation of posts in favour of backward classes. Article 16(5) permits a law which may require a person to profess a particular religion or may require him to belong to a particular religious denomination, if he is the incumbent of an office in connection with the affairs of the religious or denominational institution. Therefore, the prohibition against discrimination on the grounds set out in Article 16(2) in respect of any employment or office under the State is qualified by Clauses 3, 4 and 5 of Article 16. Therefore, in dealing with employment, under the State, it has to be borne in mind both Articles 15 and 16 the former being a more general provision and the latter, a more specific provision: Since Article 16 does pot touch upon any special provision for women being made by the State, it cannot in any manner derogate from the power conferred upon the State in this connection under Article 15(3). This power conferred by Article 15(3) is wide enough, to cover the entire range of State activity including employment under the State.
7. The insertion of Clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15, its object is to strengthen and improve the status of women. An important limb of this concept of gender equality is creating job opportunities for women. To say that under Article 15(3), job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this Article. Making special provisions for women in respect of employment or posts under the State is an integral part of Article 15(3). This power conferred under Article 15(3) is not whittled down in any manner by Article 16".
71. In the light of the above pronouncement of the Apex Court holding that the object of Article 15 is to strengthen and improve the status of women and the important limb of the concept of gender equality in creating job opportunities for women. It has been further emphasised that making special provisions for women in respect of employment or posts under the State is an integral part of Article 15(3).
72. In the present case, the provision is not a protecting provision so that it could be tested with reference to Article 15(3) or Article 15(4) of the Constitution but it is a restriction and therefore, the validity of such restricting provision has to be tested in the anvil of Article 15(1) of the Constitution. Such a restriction, which prohibits women being employed during the night shift has to be tested with reference to Article 15(1) of the Constitution as well as 14. While the Parliament had enabled the particular industry of fish canning and fish curing to engage women even during night shifts by relaxing the restriction, which is impugned in the present writ petition by the very women workers as they have been deprived of their livelihood, opportunity of employment and settlement in their life on the sole ground that they are women and being discriminated and there is no other reason or basis for such a discrimination. The denial of opportunity or the restriction as is pointed out has been imposed by the impugned provision solely based on sex, which is impermissible in law, besides, this Court hasten to add that it is not a protecting legislation.
73. Though Sri K. Chandru, learned senior counsel relied upon the judgment of the Apex Court in Government of Andhra Pradesh v. P.B. Vijayakumar and Anr. (supra) in support of his contention, in my considered view, the said pronouncement far from supporting the contention advanced by the respondents is against the respondents themselves. The impugned enactment as already noticed is a provision to regulate the factories and the objects of the enactment has already been extracted. It is an enactment primarily with the object of protecting the workers employed in factories against industrial and occupational hazards and only in that view certain obligations had been cast on the employer. But the provision impugned in the present case is a total restriction on the women employees being employed during the night shifts even though there is no difference at all between a male worker and a female worker. In Vijayakumar case (supra), the situation was converse and it is a protecting measure as this provision was held to be an affirmative action or reservation and therefore it has been upheld. In that context, it has been held thus:
"6. This argument ignores Article 15(3). The interrelation between Articles 14, 15 and 16 has been considered in a number of cases by the Court. Article 15 deals with every kind of State action in relation to the citizens of this country. Every sphere of activity of the State is controlled by Article 15(1). There is, therefore, no reason to exclude from the ambit of Article 15(1) employment under the State. At the same time Article 15(3) permits special provisions for women. Both Articles 15(1) and 15(3) go together in addition to Article 15(1) which are also included under Article 16(2). There are, however, certain specific provisions in connection with employment under the State under Article 16. Article 16(3) permits the State to prescribe a requirement of residence within the State or Union Territory by Parliamentary legislation, while Article 16(4) permits reservation of posts in favour of backward classes. Article 16(5) permits a law which may require a person to profess a particular religion or may require him to belong to a particular religious denomination, if he is the incumbent of an office in connection with the affairs of the religious or denominational institution. Therefore, the prohibition against discrimination on the grounds set out in Article 16(2) in respect of any employment or office under the State is qualified by Clauses (3),(4) and (5) of Article 16. Therefore, in dealing with employment under the State, it has to bear in mind both Articles 15 and 16 - the former being a more general provision and the latter, a more specific provision. Since Article 16 does not touch upon any special provision for women being made by the State, it cannot in any manner derogate from the power conferred upon the State in this connection under Article 15(3). This power conferred by Article 15(3) is wide enough to cover the entire range of State activity including employment under the State.
9. In the light of these constitutional provisions, if we look at Rule 22A(2) it is apparent that the rule does make certain special provisions for women as contemplated under Article 15(3). Rule 22A(2) provides for preference being given to women to the extent of 30 per cent of the posts, other things being equal. This is clearly not a reservation or women in the normal sense of the term. Reservation normally implies a separate quota which is reserved for a special category of persons. Within that category appointments, to the reserved posts may be made in the order of merit. Nevertheless, the category for whose benefit a reservation is provided, is not required to compete on equal terms with the open category. Their selection and appointment to reserved posts is independently on their inter se merit and not compared with the merit of candidates in the open category. The very purpose of reservation is to protect this weak category against competition from the open category candidates. In the case of Indra Sawhney (supra), while dealing with reservations, this Court has observed:
'it cannot also be ignored that the very idea of reservation implies selection of a less meritorious person. At the same time, we recognise that this much cost has to be paid, if the constitutional promise of social justice is to be redeemed'.
These remarks are qualified by observing that efficiency, competence and merit are not synonymous and that it is undeniable that nature has endowed merit upon members of backward classes as much as it has endowed upon members of other classes. What is required is an opportunity to prove it. It is precisely a lack of opportunity which has led to social backwardness, not merely amongst what are commonly considered as the backward classes, but also amongst women. Reservation, therefore, is one of the constitutionally recognised methods of overcoming this type of backwardness.
Such reservation is permissible under Article 15(3)."
In my considered view, this decision as already pointed though relates to a converse case is against the contention advanced by the respondents.
74. Sri K. Chandru, learned senior counsel appearing for one of the respondents, also sought to rely upon a judgment of Kerala High Court in A.M. Shaila and Anr. v. Chairman, Cochin Port Trust and others 1995-II-LLJ-1193 (Ker). In the said case, it has to be pointed out that the validity of Section 66 of the Factories Act was not challenged and on the other hand the policy. The learned Judge of the Kerala High Court proceeded on the premise that while women cannot be excluded from employment only on the ground of sex, their right may be restricted if the conditions in which they are required to work are hazardous to their health and well being and while noticing the differential treatment of women in the matter of employment as shed clerk in Port Trust and that the policy of the Port Trust was sustained as the post of shed clerk was held to be hazardous.
75. The learned senior counsel also relied upon another decision of the Kerala High Court in Omana Ommen and Ors. v. F. A. C. T. Ltd. 1990 (2) LLN 764, wherein again the Kerala High Court with reference to Section 66(c) of the Factories Act held that it is possible for the employer to accommodate the women in two shifts and further held that the refusal to admit the women for internal examination for selection leading to regular absorption as technician entirely on the basis of sex is violative of Articles 14 and 15 of the Constitution and directed the respondents namely, F.A.C.T. Ltd., to permit the petitioners therein to appear for the internal examination and if they get qualified they shall be considered for regular absorption, if need be after obtaining the orders of Government as provided in Section 66(b) proviso of the Factories Act.
76. The above judgment which is relied upon by Sri Chandru learned senior counsel supports the contention advanced by the counsel for the petitioner as V. SIVARAMAN NAIR, J. held that the exclusion of women from internal examination from selection leading to regular absorption as technician entirely on the basis of sex is violative of Articles 14 and 15 of the Constitution and held thus:
"12. I am of the opinion, that the refusal to admit the petitioners for internal-examination for selection leading to regular absorption as technicians (process/process control) entirely on the basis of sex is violative of Articles 14 and 15 of the Constitution of India. Respondent-company shall permit the petitioners to appear for the internal examination without regard to the results in the internal examination which they took pursuant to interim orders of this Court.'' The Kerala High Court held that women cannot be excluded from employment by stipulating irrelevant and unnecessary qualifications.
77. The restriction or the prohibition, imposed by Section 66 is in respect of the employment of a factory as defined in Section 2(m) of the Factories Act, 1948. The expression "worker" is defined in Section 2(1) of the Act. The expression "manufacturing process" is defined in Section 2(k). Excepting the solitary provision which is impugned in this respect, there is no other embargo or prohibition or restriction or distinction or discrimination with respect to a factory worker either male or female or as to the time of employment or days of employment or other requirements with respect to the factory and its functions. The definition clause also includes both male and female workers as well. There is no difference with respect to the workload or capacity or the payment of wages or wage structure and there could be no discrimination with respect to wages when other things being equal among the male and female workers either in a public employment or any factory as the provisions of the Payment of Equal Remuneration Act and the constitutional provision provides a safeguard in this respect, lest it will be an infraction of Article 14 as well.
78. Thus on a consideration of the entire provisions of the Factories Act, there is no other additional factor to treat the female workers differently and deny them employment during the night shift if the very same work or job is being performed or discharged by the female workers during the day shift in the same factory in respect of identical work and concedingly there is no difference at all. That being so, the only factor which prohibits a woman worker being engaged during the night shift or third shift is solely based on sex and not on any other factor which may come to the rescue of the respondents. Such an additional factor in my considered view neither exists, nor available, nor it could even be suggested by the respondents so as, to take the impugned provisions away from the clutches of Article 15(1) of the Constitution. The same test also would apply to Article 14 in all respects as there is no difference between a male worker or female worker either in the quantity of work or nature of work or wage-structure or payment or work which either the female or a male worker is entrusted to discharge in a factory.
79. No other constitutional provision has been cited before this Court, nor there is anything to suggest either in Part III (fundamental rights) or in Part IV (directive principles) or in Part IV-A (fundamental duties) that a female worker shall not be allowed to work during night hours but she shall be permitted to work during day time. The entire argument is on the premise on which the prohibition has been incorporated in Section 66 is that women shall not be over burdened as they have to attend to their family in addition to their regular work and that the other family members will be deprived of their helping hand or worldly affections. There had been developments, changes and transition after independence much due to the educational advancement and a need of the women had made them to take up industrial employment and for their succor they have to work in competition with male workers any where in any given situation and compete with them wherever employment potential is available.
80. It is also admitted that the female workers in certain sections in certain factories where delicate work is involved is being preferred rather than male workers as they concentrate with sincerity and the production level is higher and the rate of failure is minimal while contrary is admitted with respect to the male workers. In one of the affidavits it has been stated by the petitioner that the attendance of female workers is on the higher percentage as against the male workers who either avail leave or absent themselves and comparatively not so sincere as female workers. In other words, to put it straight when women are permitted to work during day shifts in the first and second shifts in the same factory or in the same section to deny them work or opportunity to earn or deny them a potential employment during night shift would be definitely a discrimination which is affront to Article 15(1) of the Constitution.
81. In State of Kerala v. N.M. Thomas the Apex Court while considering the rule of parity, held thus at p. 386 of LLJ:
"29. The rule of parity is the equal treatment of equals in equal circumstances. The rule of differentiation is enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons require special treatment. The Legislature understands and appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds. The rule of classification is not a natural and logical corollary of the rule of equality, but the rule of differentiation is inherent in the concept of equality. Equality means parity of treatment under parity of conditions. Equality does not connote absolute equality. A classification in order to be constitutional must rest upon distinctions that are substantial and not merely illusory. The test is whether it has a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category."
Again in the same judgment it has been emphasised thus at p. 421 of LLJ:
"19. JUSTICE BRENNAN, in a somewhat different social milieu, uttered words which may not be lost on us:
'Lincoln said this Nation was conceived in liberty and dedicated to the proposition that all men are created equal. The founders dream of a society where all men are free and equal has not been easy to realize. The degree of liberty and equality that exists today has been the product of unceasing struggle and sacrifice. Much remains to be done so much that the very institutions of our society have come under challenge. Hence, today as in Lincoln's time, a man may ask whether (this) nation or any nation so conceived and so dedicated can long endure. It cannot endure if the Nation falls short on the guarantees of liberty, justice, and equality embodied in our founding documents. But it also cannot endure if our precious heritage of ordered liberty be allowed to be ripped apart amid the sound and fury of our time. It cannot endure if in individual cases the claims of social peace and order on the one side and of personal liberty on the other cannot be mutually resolved in the forum designated by the Constitution. If that resolution cannot be reached by judicial trial in a Court of law, it will be reached elsewhere and by other means, and there will be grave danger that liberty equality, and the order essential to both will be lost".
82. In Consumer Education and Research Centre and Ors. v. Union of India and Ors., while considering Article 21 of the Constitution with reference to employment of workers in an asbestos manufacturing unit and in the context of Articles 14 and 38 of the Constitution, the Apex Court after referring to the Rules framed by the International Labour Organisation relating to safety in the use of asbestos held that the expression life assured in Article 21 of the Constitution does not connote mere animal existence or continued drudgery throughout life. It has a much wider meaning which includes means of livelihood. In the said context, it has been held that the workers have a special place in a socialist pattern of society and they are producers of wealth and without supply of labour, capital would be impotent. The Apex Court held thus, in Para 28, at page 787 of LLJ:
"Our Constitution has shown profound concern for the workers and given them a pride of place in the new socio-economic order envisaged in the preamble and the Directive Principles of State Policy. The Preamble contains the profound declaration pregnant with meaning and hopes for millions of peasants and workers that India shall be a socialist democratic republic where social and economic justice will inform all the institutions of national life and there will be equality of status and opportunity for all and every endeavour shall be made to promote fraternity ensuring the dignity of the individual."
In the very same judgment the Apex Court laid down that in appropriate cases, the Court would give appropriate directions to the employer be it a State or its undertaking or private employer to make the right to life meaningful. The Apex Court held thus, in Para 30, at p. 788 of LLJ:
"It would thus be clear that in an appropriate case, the Court would give appropriate directions to the employer be it the State or its undertaking or private employer to make the right to life meaningful; to prevent pollution of workplace; protection of the environment; protection of health of the workman or to preserve free and unpolluted water for the safety and health of the people. The authorities or even private persons or industry are bound by the directions issued by this Court under Articles 32 and 142 of the Constitution".
83. Human Rights and Fundamental Freedom have been reiterated in the Universal Declaration of Human Rights. The human rights for woman is inalienable and it is an integral and an indivisible part of human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life ar concomitants for national development and growth. All forms or dimensions of discrimination on ground of gender is violative of fundamental freedom and human rights. The Convention for elimination of all forms of discrimination against women was ratified by the United Nations Organisation on December 18, 1979 and the Government of India had ratified as an active participant on June 19, 1993. It has been reiterated that the discrimination against women violates the principle of equality, of rights as well as respect for human dignity. Article 1 of the Convention for Elimination of all forms of Discrimination Against Women (CEDAW) defines the expression "Discrimination Against Women" to mean "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognised enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women, all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."
84. In Mariamma v. Hindustan Latex Ltd., reported in 1994-I-LLJ-488 (Ker) BALAKRISHNAN, J., as he then was, had occasion to consider the denial of promotion to a lady security guard on ground of sex by the employer namely Hindustan Latex Ltd., a Government of India undertaking and the petitioner therein contended that such denial is a discrimination and is violative of Articles 16(1) and 16(2) of the Constitution. The challenge had been upheld by the learned Judge as the denial of promotion is purely on the ground that the petitioner is a female employee and such a denial is a clear violation of Article 16(2) of the Constitution- The same principle could be applied equally in the present case and the only difference being the employer in the said case is a Government of India undertaking which is amenable to writ-jurisdiction and Articles 14, 16 and 19 could directly be invoked in respect of such employment as it is a public employment. The said decision had been confirmed by a Division Bench of the Kerala High Court in Hindustan Latex Ltd. v. Mariamma (supra).
85. In A.N. Rajamma v. State of Kerala reported in 1983 L & I.C. 1388, a Division Bench of the Kerala High Court struck down the special rules as violative of Articles 14 and 15 of the Constitution as the said rules deny appointment to women on the sole ground that they are women and such a rule is opposed to Articles 14 and 15(1) of the Constitution POTI J., speaking for the Bench held thus:
"Remembering what the practical consequence of the attitude of the Government has been namely that for one reason or other not a single woman has been advised to any one of the 260 posts we find that this is a clear case of discrimination, a discrimination which falls not within Article 14 of the Constitution but also within the specific prohibition in Article 15(1) of the Constitution. The mandate to the State that it shall not discriminate against any citizen on grounds only of sex is one of the most important fundamental rules that calls for strict observance. In the framing of any statute or law or the making of subordinate legislation by a delegated legislative authority this is a fundamental rule which, under no circumstances, would bear violation. Unlike the freedoms in Article 19 of the Constitution there is no scope for restricting the absolute scope of the rights under Article 15(1) of the Constitution. There would be no scope whatever to justify differentiating between the male and female sexes in the matter of appointment. The right of women should not be denied on fanciful assumptions of what work the woman could do and could not do."
86. At the risk of repetition it is to be pointed out that the traditional and conventional sentiments, it may perhaps appear that women whose role was all along been understood to be domestic dominance, cannot expose and adjust herself to some of the occupations, which have been the sole preserve of men hitherto and that might perhaps explain the inaccessibility of several posts to women. Woman is no longer content merely to sit at home expecting the man to earn the bread for the family and await him for his return, Both are quite often equal partners in sharing the financial burden of running the home. This social change must necessarily have its impact upon traditional perspectives concerning woman's role and that must call for change in our laws and such laws should be to advance the constitutional guarantees and such laws and provisions shall not be affront to the rights guaranteed by Articles 14, 15, 16 and 19 of the Constitution as the Constitution mandates equality. No rule should operate as a deterrent to such change, but such a rule should advance or promote equality. Perhaps the time has come where all posts should be thrown open to men and women equally-except those which due to physical reasons women cannot take up.
87. In the erstwhile Soviet Union after the Second World War what was considered to be physically impossible for women in India was being performed by women in U.S.S.R. including loading and unloading of wheat bags each weighing 100 kilograms or thereabout in flour mills or rail heads or as well as in transit sheds. At any rate, every effort should be taken to advance equality and there shall be no discrimination on the ground of sex. Denial of appointment to women to posts on the sole ground that they are women is opposed to Articles 14 and 15(1) of the Constitution, excepting in those fields where either women are totally unsuitable or they do not come forward or for physical reasons women cannot take up particular kind of job or jobs.
88. As early as 1873 before the United States Supreme Court a woman who had acquired a law qualification to practice law, had been denied of licence which was the subject-matter of challenge in Bradwell v.
Illinois reported in (1873) 16 Wall 141. The United State Supreme Court while holding that the denial of licence solely on the ground that the applicant therein is a woman held that such a denial is discriminatory. Of course there had been subsequent divergence of views and there had been a marked departure from earlier views of the Supreme Court of United States. Yet, the discrimination on the ground of sex had been quashed.
89. In Dothard v. Rawlinson reported in 1977 433 US 321, the United States Supreme Court had to consider a State law which prescribed minimum height and weight-requirement for a prison guard. In the said case it was held that it is a case of sex discrimination particularly when the State had failed to show that the height and weight requirement has a manifest relation to the job in question.
90. In the famous Jockey Club case, reported in (1966) I All ER 689, in accordance with certain unwritten practice of refusing licence to women by the Jockey Club or trainer's licence, LORD DENNING M.R. held that such a policy is invalid as being contrary to the public policy. The same argument could be advanced in the present case as well.
91. In Vijayamma v. State of Kerela reported in 1978-11- LLJ-323 the Kerala High Court held that Article 15(1) prohibits classification of citizens on the basis of sex for any purpose and Article 16(2) in respect of public employment and those prohibitions are unqualified and absolute.
92. We cannot overlook the feeling that Equal Remuneration Act itself by now had its main impact, which obligates the employer to pay equal remuneration to men and women workers for the same work or work of similar nature. Section 4 of the Act provide for payment of remuneration at equal rates to men and women workers. Section 5 directs that no discrimination shall be made while recruiting men and women. Section 10 of the said Act prescribes that any discrimination between men and women workers is in contravention of the provisions of the said Act and it has been made punishable with fine which may extend to five thousand rupees.
93. The constitutional provisions also, it has been repeatedly held that non-payment of equal pay in public service offends Article 14 as well. The principle of equal pay means for the same work or work to which equal value is attributed the elimination of all discriminations on ground of sex with regard to all aspects and conditions of remuneration. The progress and indications as of today would mean significant expansion of the equal pay principle may be on the point of taking place. Equal pay would mean and also will take in equal opportunities and the enactment also provides for elimination of all discriminations on ground of sex to all aspects and conditions of remuneration. Any measure designed to raise wages of women to the level of the wages of men doing work of the same value must necessarily be a most far reaching and the said enactment has major potential than any other statute.
94. The implementation of Equal Remuneration Act, 1976 would mean elimination of all discriminations on grounds of sex with regard to all aspects of conditions of remuneration and it would also include equal opportunities. An employer is bound by the statutory provisions of the said Act to treat both sexes equally.
95. For the past two decades and over, various State Governments, Central Government, Universities, and Public Corporations are all trying to reverse the effects of past discrimination which was based on sex. To remedy the past discrimination, at times called "benign or reserve discrimination" and popularly known as "affirmative action," various measures have been taken for their own life. Surprisingly and perhaps certain statutes which make sexual classification which favour women, even if enacted solely to remedy past anti-female discrimination, are judged by exactly the same standard; the statute will be stricken if the sex based criterion is not substantially related to an important governmental objective. Further it is also to be pointed out that it is not always so easy to verify whether discrimination that is claimed to be "affirmative action" or "benign" whether really is and at times it is demonstrably established that such a discrimination actually reinforces a negative and untrue stereotype of them. At times, some of the affirmative action plans are ordered by a Court as well to remedy past discrimination and such an order of the Court confirms the constitutional mandate which is yet to be tested or answered. In some cases, strict scrutiny of the provision is required either to remedy the past discrimination or to enforce the constitutional mandate of equality.
96. It may be that a private employer voluntarily implement an affirmative action plan which has the effect of disadvantaging the female workers, but such a plan would not pose constitutional problems since there is no State action in it. But as in the present case it is the constitutional provision enacted by the Parliament which has the effect of disadvantaging the female workers, but for which provision, they are found to be suitable to work and to earn in the regular shifts, the question of discrimination imposed by the statutory provision looms large.
97. It is the statutory provision which has no rationale in this context as but for the statutory prohibition imposed by Section 66 of the Factories Act, the women who have also volunteered themselves could very well be engaged during night shifts. This creates more employment to women or at least a potential or a chance for more employment to women and it not only advances, but also secures equality. Such violation of fundamental rights requires a strict scrutiny and if the Court concludes that a statute had material impact on a fundamental right or interest, it has to apply the rigor of the constitutional provisions, enforcement of which is the obligation which the Constitution had imposed on this Court by exercise the powers under Article 226 of the Constitution.
98. It is useful to refer to the International Congress of Jurists in particular to the Declaration of Delhi, which reads thus:
The International Congress of Jurists..... * * * "Recognizes that the rule of law is a dynamic concept, for, the expansion and fulfilment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized."
Hence on a conspectus consideration of earlier pronouncements and the constitutional provision, the contention advanced by the petitioners have to be sustained,
99. The offending ground must not only be immediate, but also direct cause of the discrimination as in the present case "sex alone" is the basis of classification and not any other factor in addition to sex. In this respect Article 39 of the Constitution requires a special mention and the State Directive Principles should gain momentum.
100. From the above discussions, it is clear that women cannot be excluded from employment during night shifts when they are being employed in the same factory during the two day shifts and denial of employment on the sole ground of sex is violative of Article 15 and it is discriminatory and therefore unconstitutional. It is not the case of any one that the woman is being employed in a solitary corner in a factory which involves risk or hazardous operation. On the other hand the very same woman worker discharges or performs during the two days shifts in a day the same work and there is no reason or rhyme to deny them employment or livelihood, which throws more opportunity, the potential employment cannot be denied on the sole ground of sex when no other factor arises.
101. One of the contentions or objections advanced by the counsel for the respondents being that the forum for the petitioners to agitate is the Legislature and Parliament and not before the Court and it is for the Legislature to amend the provision. This objection cannot be sustained as in my considered view, the very provision is violative of Articles 15(1), 14 and 19(1)(g) of the Constitution. The legislature has not taken appropriate measures though there had been number of representations made by various trade unions and female workers.
102. It is not necessary to go into the second issue, as on the first point the petitioners' contention deserves to be sustained.
103. In the result, all these writ petitions are allowed. As a result of which, even the petitioners have confined their challenge to Sub-section (1) of Section 66, consequent to this Court striking down Section 66(1)(b), the remaining provision of the said Sub-section namely 66(1)(b) and the proviso of the Factories Act, 1948, not being severable, also will have to suffer the same consequence. In the result, Section 66(1)(b) is declared unconstitutional as violative of Articles 14, 15 and 16 of the Constitution.
104. Consequently connected, W.M.Ps are closed. Parties shall bear their respective costs.
105. Smt. Nalini Chidambaram, learned senior counsel pointed out that by allowing the factories to engage female workers in the night shift (3rd shift) without any regulation or in the absence of any regulatory measures by way of rules or enactments, it would amount to exposing the female workers to unforseen factors at times in some factories from which they may require protection to begin with or till the legal position gets settled. Hence while allowing the writ petitions, till the Central and State authorities introduce suitable provisions and frame necessary rules, as suggested by Smt. Nalini Chidambaram, learned senior Counsel, it would be fit and proper for this Court to make the following guidelines and welfare measures for the female workers who come forward to work during the night shifts:
(a) It shall be the duty of the employer or other responsible persons at the work places or institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, statement or prosecution of acts of sexual harassment by taking all steps required.
(b) All employers or persons in charge of work place or factory should take appropriate steps to prevent sexual harassment and they should take the following steps:
(i) Express prohibition of sexual harassment in any form such as unwelcome sexually determined behaviour either directly or by implication or advances or contact to gain contact or demand sexually favours or make sexually coloured remarks or showing pornography or any other unwelcome physic verbal or non-verbal contact of sexual nature;
(ii) The rules or regulations shall be framed by the factory managements relating to conduct and discipline prohibiting sexual harassment and provide for appropriate penalties in such rules against the offenders and also introduce amendments wherever necessary which are existing in the Standing Orders;
(iii) Provide appropriate working conditions in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
(c) In case of any criminal case the employer shall initiate appropriate action in accordance with the penal law without delay and also ensure that victims or witnesses are not victimised or discriminated while dealing with the complaints of sexual harassment and wherever necessary, at the request of the affected worker, shift or transfer the perpetrator, if circumstances warrant. The employer shall take appropriate disciplinary action if such conduct amounts to misconduct in employment.
(d) The employer shall maintain a complaint mechanism in the factory itself and the said mechanism should ensure time-bound treatment of complaints. Such mechanism should be at any rate to provide, when necessary a Complaint Committee, a special counsellor or other support services including the maintenance of confidentiality.
(e) Such Complaint Committee should be headed by a woman and not less than half of its members should be women, besides a non-governmental organisation's representation in the committee. Such person should be familiar with the issues of sexual harassment.
(f) The female employees should be allowed to raise issues of sexual harassment to workers in the Workers' meeting and other appropriate for a.
(g) The female employees should be made aware of their rights in particular by prominently notifying the guidelines on the subject.
(h) Wherever there is a harassment at the instance of a third party, either by an act or omission the employer and person in charge of the factory should take all steps necessary and reasonable to assist the affected person. in terms of support and preventive action.
(i) The employer shall provide proper lighting not only inside the factory, but also surroundings of the factory and to all places where the female workers may move out of necessity in the course of such shift.
(j) The employer shall see that the women workers are employed in a batch not less than ten and the total of the women workers employed in a night shift shall not be less than 2/3rd of the total strength.
(k) Sufficient women security shall be provided during the night shift at the entry as well as exit points.
(l) Sufficient number of work sheds shall be provided for the female workers to arrive in advance and also leave after the working hours.
(m) Separate canteen facility shall be provided for the female workers.
(n) Separate transportation facility shall be provided wherever transportation is provided by the employer or the occupier of the factory.
(o) Apart from the facilities, which is permissible under the Factories Act, an additional holiday shall be permitted for the women workers during their menstruation period, which shall be a paid holiday for the night shifts.
(p) The factory shall provide appropriate medical facilities and also make available at any time of urgency by providing necessary telephone connections and where more than hundred female workers are employed in a shift, a separate vehicle be kept ready to meet the emergent situation such as hospitalisation, whenever there is a case of injury or incidental acts of harassment etc.
(q) Wherever the factory provides boarding and lodging arrangements for the female workers, the same shall be kept exclusively for the women under the control of women wardens or supervisors.
(r) During night shift not less than 1/3rd-of strength of the supervisors or shift-in-charge or foreman or other supervisory staff shall be women.
(s) There shall be not less than twelve consecutive hours of rest or gap between the last shifts and the night shift whenever a woman worker is changed from day shift to night shift and so also from night shift to day shift.
(t) In other respects, the provisions of the Factories Act and the rules of other statutory provisions with respect to the hours of work and the Payment of Equal Remuneration Act and all other Labour Legislations shall be followed by the employer.
(u) The employer shall appoint not less than two female wardens per night shift who shall go round and work as Special Welfare Assistants.
(v) The female workers who work in night shifts and regular shifts shall have a monthly meeting through their representatives with principal employer once in eight weeks as grievance day and the employer shall try to comply all just and reasonable grievances.
(w) The employer shall be at liberty to employ female workers as a whole or in part during night shift, provided, the above directions be complied with.
(x) The employer shall send a fortnightly report to the Inspector of Factories about the details of employees engaged during night shifts and shall also send express report whenever there is some untoward incident to the Inspector of Factories and local Police station as well.
(y) The area Factories Inspectors and the Labour Officers shall strictly enforce the directions and make it a point to take note of the non-compliance in their inspection from time to time and see that the employer complies with the directions by appropriate action. The State Government is directed to circulate the copy of the above instructions to all the Inspector of Factories in the State.
106. The freedom which women have achieved so far and strive to achieve carries with it equal responsibilities. If they live up to their responsibilities, their equality is not only a matter of absolute justice, but is also capable of great benefits to the human race and of all their responsibilities; yet it has to be impressed that the chief is to maintain a sound and healthy family life in the land which alone would keep the Indian flag flying high. To this chief responsibilities, all other interests must be sub-ordinated.