An examination of the Minimum Wages and Maternity Benefit Acts establishes that extending the coverage and scope of such legislation will make only a marginal difference to women's conditions at work. In fact, while ostensibly addressing labour market inequalities, the state has actually contributed to reinforcing gender-based discrimination in the work arena
It is difficult to pronounce unequivocal judgement on the position of women in India since the beginning of the 20th century. While declines in fertility, access to education, employment and public office give an impression of a blurring of divides based on sex, these achievements have gone alongside beliefs, attitudes and practices that have reinforced these divisions as well as reformulated the ideology of domesticity. The process of economic development has taught us that it is easier to gain equal rights than to impose equal responsibilities on men for the day-to-day running of the household, including care work.
The sexual division of labour is taken for granted in a rather different way in the argument for 'wages for housework' which carries an implicit position on the socialisation of domestic labour. The argument here is that wages are due to housewives as they are already involved in social production. But while demanding wages for housework can be seen as a demand for a sort of 'righting', it still leaves women doing the same work in isolation. From the point of view of women, thus, "women are trapped into a material dependence on a man by lack of access to a decent wage, the absence of services to make full-time waged work and childcare compatible, the ideological and social pressures to marry, and the almost complete absence of any alternative to the family as a way of life, a learned sense of inferiority, and the personal effects of isolation and overwork," (Mackintiesh, M et al, quoted in Bland et al, 1978).
In light of the above, to officially state that women's work participation rates have increased over the decades, going by census data, is to give a particular definition of work, one that excludes almost all of the above. The state, for its part, contributes to women's subordination through policies that reproduce sexual divisions through the particular manner in which it defines equality, and the particular measures that the state has designed to achieve this equality. For example, our examination of the assumptions and implementation of Acts such as the Minimum Wages Act, 1948 and the Maternity Benefit Act, 1961 makes it clear that mere extension of the coverage and scope of such Acts will make only a marginal difference to women's conditions of work since the Acts themselves are constrained by the particular understanding of work, families of workers and notions of breadwinners (as, for instance, in the case of the Minimum Wages Act) and deliberate attempts to subvert the coverage and quantum of benefit (in the case of the Maternity Benefit Act).
We are aware that gender itself, as a category, cannot explain all of the inequality and discrimination discernible in the labour market. But what feminists have demonstrated is that the 'structured' labour market and the factors that perpetuate this structure, when examined through the lens of gender, show inequalities. More important, the state through its capacity and authority to initiate/enact policies, ostensibly to address labour market inequalities, has contributed to reinforcing gender-based discrimination in the work arena.
Let us examine the two aspects of continuity and change characterising Indian women's work simultaneously but from different angles: one, through a discussion of the Minimum Wages Act, 1948, we illustrate how the refusal to confront and grapple with the gendered assumptions on which the Act itself is premised, continues to contribute to gender injustice. Two, examination of the operation of the Maternity Benefit Act, 1961, on the other hand, brings out several aspects of continuity and change. To begin with, the Act, being a standalone legislation, has no mechanism that Parliament has evolved to make the beneficial provisions of the Act mandatory in its application to all establishments that come under its purview; equally unfortunate is the fact that changing forms of employment (from factory to home-based work, from regular/temporary to casual/daily, etc) have proved handy in making women workers ineligible for maternity benefits.
I have, elsewhere, through an examination of the historical underpinnings and assumptions that finally went into the making of the Minimum Wages Act, 1948, tried to establish the manner in which the Indian state contributes to women's subordinate position in society. Here we will recall how, 60-odd years since the enactment of the Minimum Wages Act, 1948, the discussion relating to minimum wages has yet to take on board the contentious issues of what our notion of 'family' is; how 'basic needs' of a family will be defined; and whose 'work' and what 'work' will be privileged to arrive at a basic needs-based definition of minimum wages.
The Minimum Wages Act, 1948, does not define the term 'minimum wage', or what precisely should be its content. The minimum wage advisory committees, set up under the Act, have not therefore been following any uniform set of principles while fixing or revising minimum wages. Considerable debate has centred around the need to define 'the needs of workers', whether it be to fix a living wage, fair wage or minimum wage, and it is this which has important implications for women in the workplace and for legislative and institutional action outside the workplace.
In this context it is pertinent to recall the report of the Textile Labour Inquiry Committee (Government of Bombay, 1941) that devoted considerable time and space to arrive at the notion of the living wage standard because of its bearing on the Minimum Wages Act that was passed subsequently in 1948. The Textile Labour Inquiry Committee dealt with what it considered two important questions: the first is the number of earners per family to be allowed in the calculation and the second is the question of supplementary earnings. The consideration of the first question is made easy by our adopting the natural family as the basis of our calculations. In such a family the question can refer only to the earnings of the wife; the dependants or children can obviously not be expected to earn anything. Should any allowance be made for the possible earnings of a wife? It has been argued that, under a proper interpretation of the term living wage standard, a wife should be spared for the duties of the household and for looking after the children. She cannot be and should not be expected to supplement the earnings by extra paid work… The conclusion we arrive at is that an adult male should be held to have to support the family without the help of any supplementary earner or any other source of income (Government of Bombay, 1948).
Deliberating further on the question of wage differentials based on gender, the committee opined:
Should the minimum level of earnings for men and women, whatever be their occupation, be the same? We believe the answer is inevitable; they will have to be different. A considerable gap, in fact, exists between the lowest wages earned by men and women in the industry. Any violent disturbance of the existing differentiation is bound to affect the proportion in the employment offered to the two classes of workers. The trade board may reduce the differential between the basic minimum for men and women, but this can only be a gradual process. We have (already) noticed that in countries where the living wage basis is adopted for fixing a minimum wage, the standard of responsibilities for the calculation of a woman's wage is defined in a different manner from that of an adult male. A similar difference may have to be postulated for the textile industry in this province and an independent standard will have to be fixed for a woman worker's earnings. This will be an important and necessary part of the work of the trade board (Government of Bombay, 1948).
The Committee on Fair Wages (1954), relying heavily on the arguments put forth by the above Textile Labour Inquiry Committee, went further and stated that: (I)f minimum wages and consequently fair wages are to be calculated on the basis of the requirements of the worker and his family, there is every justification for rating the standard family at a lower number of consumption units in the case of a woman worker than in the case of a man, for she will not be expected to support at any rate her husband even though she may have other dependants and encumbrances. According to this line of reasoning, the wages of a woman worker should be based on two consumption units if those of a male worker are calculated on three (Government of India, 1954).
As a concession to the then prevailing views on wage differentials based on gender, the Committee on Fair Wages agreed to take cognisance of the principle of equal pay for equal work, but laid down that this principle applied primarily to piece-rates. "We suggest (therefore) that where employment is on piece-rates or where the work done by men and women is demonstrably identical, no differentiation should be made between men and women workers regarding the wages payable. Where, however, women are employed in work exclusively done by them or where they are admittedly less efficient than men, there is every justification for calculating minimum and fair wages on the basis of the requirements of a smaller standard family in the case of a woman than in the case of a man," (Government of India, 1954).
In sum, therefore, the underlying assumption on which the Minimum Wages Act, 1948 is premised is that a woman has fewer requirements/responsibilities than a man; also, that a woman's efficiency can at the most equal a man's but can never surpass it.
Sixty-odd years down the line, while the debate around securing and ensuring minimum conditions of work for all workers, including those working informally, continues, and while there is official acknowledgement that there are variations in minimum wages across space, industrial occupations and the sex of workers, it is not clear where we stand with respect to the underlying assumptions that formed the premise for the Minimum Wages Act, 1948.
The Challenge of Employment Report (April 2009) of the National Commission for Enterprises in the Unorganised Sector (NCEUS) has recommended the introduction of a national minimum wage 'with statutory backing which shall represent the lowest level of wage for any employment in the country. This wage shall be applicable to all employments presently not covered under the Minimum Wages Act of the state concerned, and would be applicable to both wage workers and home workers… The general principles in the fixation of the national minimum wage will be the minimum basic needs of the wage workers and the home worker and her/his family'. We are therefore back to square one, since there is no clarity as to what constitutes a 'family' and how the basic minimum needs of 'her/his' family will be arrived at. In other words, elimination of discrimination and exploitation based on sex continue to elude the premises on which progressive laws should be enacted.
Now let us examine how women fared with the Maternity Benefit Act, 1961, an important piece of legislation in independent India. Over the years, the courts have had to deal with several cases from aggrieved women workers who have alleged denial of benefits under this Act despite, according to them, being eligible for the benefits. It needs also to be stated here that, according to an exercise conducted by the NCEUS (2009) on the effectiveness of coverage of workers under different legislations, the Maternity Benefit Act was able to cover only 16% of eligible workers as of 1999-2000. I therefore conducted a content analysis of a few cases filed for relief under this Act, to help comprehend, among other things, categories of workers who have been denied or given less than the entitled benefits; the nature of establishments that deny such benefits; reasons cited by establishments for denying benefits; reasons for courts' acceptance or rejection of arguments by employers/petitioners. Around 20 judgments among the cases filed under this Act were reviewed.
A point that I noted, but did not labour because of the very nature of the litigation process in India, is the enormous time, patience, not to mention financial resources that had to be expended in the quest for justice. Suffice it to mention in this context that even as it takes the aggrieved woman worker close to a decade to get justice, the interim period was one of unemployment, since, in a few cases, the worker's application for maternal leave with benefits was answered by employers with a termination notice. The route that the litigation process involved, all the way from a local labour court/industrial tribunal to the Supreme Court, has taken upwards of a decade in several cases. Since this exercise is confined to content analysis of judgments, there is no way of ascertaining whether the Supreme Court's directives, be it reinstatement of retrenched workers with back wages, or any other, have been complied with within the time stipulated.
The study of judgments relating to cases under the Maternity Benefit Act, 1961 revealed, among other things, the manner in which women employed by the state have been excluded from provisions of the Act. Contrary to all norms of justice, the state has employed women workers but used nomenclature such as 'daily', 'ad hoc', 'casual', etc, to justify denial of maternity benefits on grounds that even the amended Maternity Benefit Act, 1961 applies only to regular and temporary workers, not casual, daily or ad hoc ones. Two, while recruitments have followed a set procedure, appointment letters have been arbitrarily changed to render women employees ineligible for any benefits, maternity or otherwise. Three, when the Supreme Court has come down heavily on state governments for denying maternity benefits to women employees kept for years on contract or on a daily basis, the bureaucracy has come up with other ways of making women employees ineligible, by citing, for example, that women employees on consolidated mode of payment of salary are not eligible for benefits under the Maternity Benefit Act. The government's own resolutions appointing persons on an ad hoc basis have come in handy for establishments to deny maternity benefits altogether and/or allow maternity leave but without monetary benefits. To top it all, in a few of the cases, applications for maternity leave were answered with termination notices, an aspect that the Supreme Court has specifically underlined as being illegal and bad in law.
From a feminist perspective, an important learning is the realisation that mere enactments of more laws to address specific feminist demands need to be backed by 'rules of operation' that also specify how binding these provisions are and whether existing laws governing establishments need to be amended in light of the new women-friendly laws. Hence, while struggles to extend the coverage of the Act to establishments and women workers outside the purview of the Act need to be strengthened, equally important is the need to struggle to unravel the ways and means by which legally eligible women workers get excluded from the provisions of such legislation. Further, despite feminist opposition to population control policies, the service rules of organisations, including some state governments, deny maternity benefits to women who already have two living children. While the Maternity Benefit Act, 1961 itself does not state anything about the number of times a woman worker can avail of benefits under the rule, the service rules of organisations incorporating the Government of India's population control policies have taken precedence over the Maternity Benefit Act, to the detriment of women workers.
Going by the history of post-Independence India, the state's response to the issue of gender gaps has generally been in terms of 'welfare' measures ostensibly aimed at 'empowering' the disempowered. The persistence of poverty and vulnerability despite social sector interventions and despite any number of studies documenting the linkages and connections between macro-economic policies and changes on the ground, has contributed very little to the way discrimination is perceived at the policy level and/or in the manner data is gathered.
Debates around gender mainstreaming emphasise the dilemmas feminists face in addressing women's needs: should 'sameness' be the criterion wherein women enter previously male domains and the existing male norms remain the standard? Should 'difference' be recognised, leading to a valuation of contributions based on difference but which ends up entrenching the status quo? Or, how do we work towards 'new standards for both men and women that could potentially lead to transformation of gender relations'?
Going back to our discussion on the Minimum Wages Act, it is clear that we have not progressed beyond the 'sameness' criterion. The NCEUS approach could lead to proposals that enable women's different needs to be met to allow them to participate in a man's world or as T Rees put it in 'Reflections in the Uneven Development of Gender Mainstreaming in Europe' (International Feminist Journal of Politics, December 2005), it would 'tailor' situations to fit the needs of women.
But the bottomline of our argument is that, as of now, none of our present policies come anywhere close to even suggesting that we replace existing segregated institutions and standards associated with masculinity and femininity so that gender transformation in the true sense of the term can be achieved in the foreseeable future.
(Padmini Swaminathan, who has a doctorate in industrial economics, is Professor, Tata Institute of Social Sciences. She was also a Professor at the Madras Institute of Development Studies)
Working for Rs 5.50/hour, with no benefits
In an analysis of law and policy related to domestic work in India, Nimushakavi Vasanthi draws upon a study of domestic workers -- all women -- conducted in 2010-11 through the National Domestic Workers Movement in Hyderabad. Some of the findings reported:
From: Nimushakavi Vasanthi. 'Addressing Paid Domestic Work: A Public Policy Concern Review of Women's Studies'. Economic & Political Weekly, October 22, 2011
Infochange News & Features, December 2012