Gender based economic division of labour and law

INTRODUCTION

The society is made of numerous individuals who need to co-ordinate their activities so as to ensure a harmonious co-existence for the benefit of each other. We are dependent on others and require a certain degree of co-ordination to ensure the stability of any organization. [1] Production takes place due to the synchronization of the efforts of humans with nature and other humans. The concept of ‘Division of Labour’ flows from this notion. Division of labour can be defined as a method or approach adopted for the completion of a complex task by dividing it into simpler tasks assigned to certain specific individuals, classes, ages, groups etc. [2] This is done for optimizing the resources, increasing productivity and income. It is a kind of virtuous circle, [3] a reciprocatory exchange [4] which increases the wealth-creating capacity of society. [5] 

A division of labour by gender within both paid and unpaid work and between them exists in almost all societies, although the nature of the specialized work done by women and men differs substantially by place, time, and in some cases, over the life cycle. Adam Smith’s concept of dividing labour to enhance production in his famous book ‘Wealth of Nations’ is rooted in the economy of the society and is purely an economic concept. The fact that co-ordination or interdependence between members, groups or classes creates a social connection, relating one to another in the society affects the twin structures of society and economy.

It is no denying that the primary aim of using such a method is increasing economic growth but, since people contribute to this growth also, when such a growth affects the society at large, it falls within the realm of sociology and sociological problems. Since division of labour is central to the functioning of such a concept in reality, it is important to understand the basis for such a division or specialization. The basis of such a classification can be age, skill, area, class, gender etc.

This project would essentially deal with gender as the reason for such a division in labour. Such divisions are not new and have been in practice in the society for thousands of years. Society has had and will have certain set notions of what is appropriate work for men and women. [6] 

With progress and development such classifications have witnessed change in the society and found expression in the law, but there is a prevalence of prejudice, discrimination and unfair treatment seen in an entire class. The present level of participation of women, their status of employment is pitiful. Esther Boserup [7] emphasizes that the division of labour within the family is assigned by age and sex, and this distribution varies across regions and cultures.

This project tries to understand the concept of gender division of labour, its effect on the society. The present rate of participation of women in India in various labour markets, reasons for the degree of participation, the influence of such unfair division on the law that governs the country. Certain important cases that have benefited women or disadvantaged them also certain remedial measures for greater participation of the supposedly ‘weaker sex’ have also been discussed. In doing so there is equal importance attached to the social and the legal facets of the theory.

2. GENDER DIVISION OF LABOUR IN FEMINIST ECONOMIC SENSE

Gender division of labour, also known as sexual division of labour, refers to the way that people are divided according to what is appropriate work for men and women. [8] The gender division of labour is derived from social perceptions about what is ‘natural’ for a particular sex to do as an occupation. Naturally, such divisions are bound to a particular society such as the gendered division of labour can be seen in the primacy of women engaged in informal employment, and caring for children, or in the numbers of men who sit on the boards of the world’s largest corporations.

In the early days only 50% of white women were employed. 80%-90% of waitering, housekeeping and nursing, and over 50% of music instructors were women. [9] Feminist economics essentially tries to enhance economic analysis by simply removing the science of its unwarranted male biases [10] . Thus its function is two fold, firstly that of countering untruths and secondly to produce truer accounts of data to balance the unfair social relations [11] . This definition is particularly important as it provides a definite context in case of gender division of labour.

Thus, an approach in feminist economic sense adopted to study the concept by enabling justifiable information regarding the power differences between women and men, to understand the influence of such constraints in labour markets, to try and expel certain myths relating to the capacity of women to work and thereby modify social relations between men and women.

2.1 Statement of Problem – Past and the Present

Traditionally, it was never considered appropriate for women to work outside of their homes for wages. One may talk of the society’s progress and development but there has been a disheartening improvement or change of attitude when it comes to women and their right to equal opportunities to work in urban or rural areas. There is a close nexus between the present state of employment of women and the status occupied by them in the past. It is a matter of fact that at the present day, women are exploring working opportunities beyond those of home-based wage work, temporary or part time work [12] , but due to the hostile attitude that the society adopts towards working women, they are forced to do work that is menial as well poorly paid with inhuman conditions of work. Thus, the future is quite debilitated by the conditions and practices of today which is a direct result of the past discriminatory practices and behaviour towards women who aspire to work and be economically independent.

The kind of work that is most likely to be offered to women who enter the labour market could be classified as jobs which are temporary in nature or suffer from a short shelf life, like the construction jobs which are on a contract basis, thereby creating an income that is unstable or irregular. Due to the weak bargaining power of women in the labour market as compared to that of men, working conditions are non-negotiable and are solely dictated by the employers who have no concern for their social or monetary security. Also these jobs are not covered by the labour legislations and at the same time have no familial or societal support. [13] The tragic result is that women are exploited both at work and at home with little or no economic or legal protection.

Essentially the concept of employment encompasses within itself two important elements, that of income and work. Looking at the first aspect, women have forever been accorded the status of a ‘home maker’, more plainly they have been assigned the role of wife and mother [14] , which has no economic benefits attached to it. The reason for this is that there have been water tight compartments for the work that can be done by a man and that which must be done by a woman. Such categorization is based on the notion that women are capable of doing work which is primarily related to the concept of nurturance i.e. to take care, be affectionate and loving which apparently cannot be measured by its monetary value. The other jobs that are taken by women can vary from that of construction work, politics, administration, media etc. Focusing on the unorganized sector which consists of small workshops and petty production which is labour-intensive [15] , we can infer that there is a stark disparity between the incomes of men and women doing the same work.

In India women’s labour force participation rates are comparatively low and according to 1991 census 22.69 % women are in the labour force (organized and unorganized sector) as against 51.52% men. [16] 

2.2 Reasons Attributed for the Poor Participation of Female Labour

Economic and Socio-Cultural factors determine the level of female participation especially in an agrarian economy like India [17] . One of the most obvious and important causes for the current level of participation of women in the labour market would be poverty. “Economic status of a household is an important factor that affects the female participation in the economic activity.” [18] If the economic backing of a household is meager or insufficient, the women are forced to seek employment to meet the family needs. [19] Thus the economic deprivation [20] pressures them to accept hazardous jobs, which have long working hours, low pay and no security. An extension to the argument is that when the economic status of the household is sound, then the need for women to work and be economically independent as against relying on the earnings of men are not felt and therefore there is absence of the need to encourage women to work.

The cultural tradition of female seclusion is a major restricting factor on women’s labour force participation. [21] Attitudes of the society changes from one geographical region to another, thus the cultural attitude towards women working naturally affects the status and position given to them. Thus in a region where outdoor participation of women is vehemently discouraged, there is a shockingly low rate of contribution such as in the states of Sikkim and Punjab the participation of women in the former is 52.74% and in the latter an insignificant 6.78%. In reality the wife or mother has to undertake the entire burden of household responsibilities more often than not single handedly. It is only human that her efforts would not be diverted to contributing to production outside the home.

Dr. Radhakrishnan had once observed that by educating a man we educate only one person but while educating a woman we educate an entire family [22] . But the problem lies in the fact that despite innumerable initiatives the literacy rate among women is miserable. In rural India, if we were to study the distribution of female labour force by education the percentage of female labourers who are illiterate is 88.10 and a mere 1.21 percent have passed secondary. The situation is not very different in urban areas as well where there happen to be 58.71 percent who are illiterate and only 17.68 percent who have passed secondary. [23] There is need for technical knowledge in the organized sector, and the lack of education or limited educational qualifications would only lead to the complete sidelining of women in those fields. Apart from the fact that work done by women is marginalized and undervalued in the society it is also underpaid.

According to the Tsuchigane and Dodge [24] index of discrimination, sex discrimination in employment consists of three categories – income, occupational and participation discrimination. [25] So long as women earn less than men for the same work, income discrimination exists. If women primarily are inducted into low paying jobs than in high paying jobs, occupational segregation or occupational discrimination exists. Since the rate of participation of women is much lesser than that of men, participation discrimination exists.

Thus, one can safely infer from the above mentioned causes and conditions of women with respect to work, that the biased division of labour on the basis of gender is a social reality which affects the lives of a large section of the society.

3. GENDER DIVISION OF LABOUR AND ITS EXPRESSION IN THE LAW

3.1 Constitutional Provisions

The framers of the Constitution while drafting the Constitution did realize the need for a society where gender equality prevails. There are various articles in the Constitution of India which aim at achieving an egalitarian society, though the actual implementation is a distinct matter that quite nullifies the aim of the framers. The related provisions can further be divided into rights that are enforceable and objectives which direct the State in its governance. The rights mentioned in the Constitution are as follows:

Article 14

Article 14 or the Right to Equality ensures that the State shall not deny to any person equality or equal protection of the laws within the territory of India. In essence equals would be treated equally and unequal unequally. The principle of gender equality is ingrained in this all Article. [26] Thus, equal pay for the equal work done by either male or female employees has to be remunerated equally. In the case of Uttrakhand Mahila Kalyan Parishad and Others v. State of U.P. [27] the Supreme Court held that under the constitutional arrangement, there can be no situation entertained whereby, there is differential treatment meted out to male and female employee’s in the educational department when they are doing the same job; also there can be no rational explanation given to the preferential treatment given to male employees when promotional avenues are allocated. The Court directed the State to create equal pay scales.

Article 15 (1), 15(3)

Article 15 states that there shall not be any discrimination against any citizen on the grounds of only religion, race, caste, sex, place of birth or any of them. While Article 14 ensures equality to everyone, Article 15 concerns itself with citizens alone. But Article 15 (1) does not prohibit the State from making any special provision for women and children as per clause 3 of Article 15. There have been a host of cases that do not get reported, where discrimination was done solely on the basis of gender. In most of such cases the action of the State was violative of Article 15 and was asked to be struck down. An appropriate example would be the case of Omana Oomen v. Fact Ltd [28] , the petitioners, who were post-graduates in Chemistry were selected as attendant operators in a chemical plant to undergo training. The male trainees were also simultaneously appointed, some of whom left the training. The remaining male employees were absorbed as technicians before the completion of the training period, on the basis of an internal examination. The Kerala High Court held that the denial of opportunity to the female employees merely due to their sex is in contravention to Article 15 and therefore struck down the unfavourable recruitment.

Article 16 (1), (2), (4)

This is by far the most important provision with respect to this project since it talks of rights of employment of the people. Article 16(1) ensures that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Clause 2 explains that no citizen shall be discriminated in respect to any employment or office under the State on grounds of sex, religion, place of birth etc. Clause 4 also states that there can be positive provisions made by the State to accommodate the interests of the weaker sections of the society. Therefore, this Article does not create a right to employment but the right to equal treatment in State employment. In the case of State of Kerala v. K. Kunihipacky [29] , the promotion of a female teacher had been questioned by the male professor who claimed he was more senior in experience. Despite the fact that the college was a women’s college, the Court directed the Government to reconsider the promotion stating that once an appointment has been made, seniority must be given preference. Such a decision by the Court was much criticized simply because the Court appeared to have upheld convention, the existing social preferences and thereby discrimination. The judiciary cannot choose professional qualifications and efficiency at its convenience. If the same claim would have been made by a female teacher, the entire case would suddenly seem different.

Article 39

Apart from other things, it embodies three important directives for the State with regard to wage and employment policies in India. It states that the citizens, men and women equally, have the right to an adequate means of livelihood. It guarantees equal pay for equal work for both men and women and the health and safety of the employees.

3.2 Labour Legislations

The labour legislation for women in India is rooted in the Indian Constitution and is guided by the International Labour Organisation conventions such as the convention on Discrimination (employment and occupation), workers with family responsibility and the convention on equal remuneration. [30] The basic objective is to prevent the exploitation of women.

The present Director-General of the International Labour Organization, Juan Somavia stated that, “the primary goal of the ILO today is to promote opportunities for women and men to obtain decent and productive work together, in conditions of freedom, equity, security and human dignity.” [31] In working towards this goal, the organization in its conventions seeks to promote employment creation, strengthen fundamental principles and rights at work – worker’s rights, improve social protection, and promote social dialogue as well as provide relevant information, training and technical assistance [32] .

At present, the ILO’s work is organized into four sectors or groups: (1) Standards and fundamental principles and rights at work; (2) Employment; (3) Social Protection; and (4) Social Dialogue. The labour legislations can be divided into three categories.

Firstly, there are those legislations that have been drafted exclusively for women such as the Maternity Benefit Act, 1961 or the Equal Remuneration Act, 1976.

Secondly, the Acts that is sex-neutral [33] but contain certain special provisions for women, for example the Factories Act of 1948, the Plantation Labour (Amendment) Act, 1981 and The Mines Act of 1952.

The third and the final category are legislations which are neither meant especially for women nor do they have any clauses in them for women. Examples of these would be the Minimum Wages Act, 1948, Contract Labour Act 1972 and the Beedi and Cigar workers Act, 1966.

All these legislations make claims to achieve gender equality and put women at the same level as men, but there are inherent flaws in them which defeat their original purpose. The most obvious example of this would be the:

Equal Remuneration Act, 1976

This Act provides for prevention of discrimination on the ground of sex by ensuring their contributions are valued equally. Section 2(h) of the Act defines the term work of either being ‘same’ or ‘of similar nature’. This is the deciding factor for the successful pursuit of the claim to equal wages. According to this there have been certain views made whereby a lower grade women employee gets paid lesser. In the field of agriculture there are certain women specific tasks and these get termed as ‘light work’ which naturally gets paid a lower amount of remuneration. In essence the law first makes certain categories of work knowingly that those in the lower rung would mostly be performed by women.

A landmark judgment under this controversial provision that highlights the weakness of the clause ‘equal pay’ for ‘same or similar work’ was the case of Air India v. Nargish Meerza [34] . The air hostesses of Air India claimed that they were being discriminated against assistant flight pursers who did the same kind of work on the flight. But these men had better service conditions for retirement, better recruitment facilities etc. The air hostesses complained that the practices were in contravention to the Equal Remuneration Act. Sadly the Supreme Court, the apex body which claims to administer justice while granting some marginal concessions like raising the age of retirement for the air hostesses and few pregnancy related issues, upheld other discriminatory conditions of service.

4. CONCLUSION

After having understood the importance of the theory of division of labour and its expression in the law, the researcher feels that there is a low female participation rate in the country. The orthodox attitude of the society towards women is the primary cause for such pathetic levels of participation. Married women are forced to stay at home, the set notions of ‘women’s work’ is narrowly defined and does not have any monetary value.

It is essential to realize that women’s economic empowerment is absolutely essential for raising their status in society since the two concepts that of women empowerment and economic independence are so closely interwoven. When work done by women is uncounted for, it is unpaid. [35] When the society thinks and undervalues her work she has no option but to bow down to the pressures. Sometimes due to economic hardships she is forced to work. Factors such as job-security, working conditions etc are not given any importance. Though the law has certain provisions to ensure safety from exploitation, women in the unorganized sector are regularly denied their salaries, sexually harassed, improperly laid off etc.

In conclusion the researcher has some suggestions that could possibly increase the level of participation of women. Firstly, society must respect women and the fact that they can work. Every woman must get paid wages for the work she does. If she chooses to do the same work as fellow men, then she must get paid equally. Due consideration must be given to the already existing status of women and therefore there must be special accommodations to induce more and more women to work, pregnancy leave being a suitable example.