State of Discrimination

Legal barriers to women’s right to choose work across India’s states

Authors: Bhuvana Anand and Sarvnipun Kaur

Published in March 2022.
Disclaimer: The text on this microsite has been distilled from the report for easy reading. The report contains full attributions to sources. For citing, please refer to the main report.

The curious case of Indian working women

Female labour force participation rates in India are amongst the lowest in the world; only parts of the Arab world fare worse. Even as the economy has grown, educational attainment has increased, and fertility rates have fallen, women are not participating in the formal economy. Only 18.6% of working-age women participate in the labour force. Female workers typically earn low wages working highly insecure jobs. They also do not rise the ranks, despite being better supervisors and workers. For example, in garment factories in India, women dominate the frontline workforce yet do not grow to occupy supervisory roles.

What is holding our women back?

Several factors influence women’s participation in the workforce: family income, marriage, childcare responsibilities, safety in public spaces, political disempowerment, and limited job opportunities. In particular, sex-based legal restrictions hinder female employment and the transition into the formal sector.

More than 50 Acts and 150 Rules in India prevent women from choosing to work. Women in India often cannot work after 7 PM or in underground mines and different factory processes. Research shows that removing legal restrictions on the employment of women has positive outcomes for women and economies. If Indian women participated in the labour market at the same rate as men, over 200 million more workers could be mobilised. By 2025, equal opportunities for women in India could add USD 700 billion to the economy.

Why does the state of discrimination matter?

India has already supported the removal of systemic sex-based discrimination on global platforms such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). India is also committed to meeting Sustainable Development Goal 5.1.1 of promoting non‑discrimination on the basis of sex.

There is currently no exhaustive list of legal provisions that sanction economic discrimination against women. The State of Discrimination index shows the extent of law-based discrimination across India’s states in an effort to ultimately repeal these stifling directives.

How do we measure the state of discrimination?

The report presents a comparison of 23 Indian states on the extent of sex-based legal discrimination using 48 Acts, 169 Rules, and 20 Notifications/Orders. The index tracks state performance on four parameters:

  1. freedom to work at night,
  2. freedom to work in jobs deemed hazardous,
  3. freedom to work in jobs deemed arduous, and
  4. freedom to work in jobs deemed morally inappropriate.

Parameter 1: Freedom to work at night

Legacy of 18th century constraints

Prior to the industrial revolution, most work had to be halted at sunset. In 1891, India fixed women’s working hours in factories at 11 per day. By 1896, most mills adopted electric light and machinery that could run around the clock. While the average working day of men increased from 12 to 16 hours, the working hours of women remained capped at 11. In 1921, India cemented these restrictions by adopting ILO Conventions 3 and 4 prohibiting the employment of women in factories between 7 PM and 5 AM.

Current state

Several state and union laws mandate prohibitions against women working at night in factories, commercial establishments, plantations, and as contract and migrant workers. In intent, these restrictions have been set to protect women, guard them against exploitation, and preserve ‘the vigour of the race’. Karnataka, Kerala, Tamil Nadu, and Uttar Pradesh grant the most freedom to women to work at night. Odisha and Telangana place the greatest restriction on the employment of women at night.

Can women work in factories at night?

The law

The Factories Act restricts the employment of women between 7 PM and 6 AM, but allows states to vary the restricted hours as long as women are not employed between 10 PM and 5 AM.

The state of affairs

Not a single Indian state allows women complete freedom to work in factories at night. 14 out of 24 states in India restrict women from working at night in factories. Only 8 states allow factories to employ women at night under special conditions.

The gripe

States vacillate between allowing or disallowing women to work at night in factories based on myriad reasons. Some of these do not pass the smell test. For example, some states exempt the fish canning and curing industries from these restrictions, although the nexus between being allowed to work at night as a woman and food perishability is unclear! In a different case, in the pandemic year, Himachal Pradesh revoked the exemption for three months, leaving factory owners and female employees in the lurch. Viruses do not stop propagating at night or distinguish between the sexes, so it's not clear why Himachal Pradesh would take this step.

A story

Vasantha R., a woman employed in a leading textile mill in Tamil Nadu, was willing to work day or night depending on her workload. Her employer was also ready to provide dormitory and transport services. But the Factories Act prevented her from exercising this willingness. She went to Madras High Court arguing that 66(1)(b) violated her fundamental right to livelihood and equality. The Government of Tamil Nadu fought back arguing that this measure protected women from physical dangers, not to mention leaving more time for domestic responsibilities. Madras High Court rejected the argument and declared the Section unconstitutional. The intent to ensure occupational safety was already served by other provisions regulating working hours. Instead of being a ‘beneficial protection’, this provision was causing harm as it held women back from greater financial success.

A story with a different ending

Leela, who worked at the Kerala Books and Publication Society, contested that she was denied a promotion because Section 66(1)(b) prohibited her from working the night shift. But in her case, the Kerala High Court maintained that women were particularly vulnerable to hazards on the job, and legal restrictions did not completely stifle them from professional advancement. These restrictions were reasonable, and women should not try to rebuke them after accepting them as part of their employment negotiations.

Moral of these stories

The cases of Vasantha and Leela had completely different outcomes, even though they challenged the same provision. Courts used completely different reasoning to arrive at their judgments, perhaps exhibiting doctrinal confusion and showing some lack of precedent consciousness. Even in Vasantha’s case, Madras High Court did not completely strike the restriction down. The Court instead took initiative to develop acceptable forms of discrimination, prohibiting women from working at night if less than two-thirds of the workforce at night comprised women.

Can women work in shops and establishments at night?

The law

Each state in India has a Shops and Establishments Act to regulate trade and businesses not engaged in manufacturing processes.

The state of affairs

Only in 2 states, Goa and Tamil Nadu, are there no prohibitions on women working at night at commercial establishments. 7 states allow shops and commercial establishments to employ women at night if they comply with the conditions laid out by the government. 3 states do so on a case-by-case basis.

The gripe

How states arrive at these regulatory choices remains unexplained. Women are allowed to work at night if they are employed to take care of the sick, infirm, and destitute in the states of Haryana, Himachal Pradesh, and Punjab. Telangana grants conditions-based exemptions to IT establishments, while in Jharkhand, women who are employed in cinemas and theatres are allowed to work at night.

A story

Between 2015 and 2021, the Government of Haryana granted 592 exemptions to 212 firms to allow them to employ women in night shifts. 49 firms secured multiple exemptions within the same year, while 111 firms were granted exemptions for multiple years. For instance, in 2015, Accenture secured exemptions for 8 different locations, including two separate floors in the same building. American Express secured exemptions for each year from 2015–2018 including three renewals for different floors in nearby locations. To grant these exemptions, the Government of Haryana would have had to scrutinise individual applications for merit, issue approvals, and periodically check if the establishments meet the long list of conditions.

Can women work in plantations at night?

The law

The Plantation Labour Act, 1951 prohibits the employment of women in plantations between 7 PM and 6 AM.

The state of affairs

All states in the index restrict plantations from employing women in the night shift unless the plantation gets a state authority’s approval. Only in cases where women are working as midwives and nurses in plantations are exemptions granted.

The story

India’s rarest and most expensive tea—Silver Tips Imperial—is only picked during a full moon night. It is harvested by people from Makaibari—the oldest of Darjeeling's 87 tea estates, and they believe that the alignment of the sun, moon, and other cosmic forces produces the exact conditions for the finest harvest. Makaibari tea estate likely takes permission from the state government to employ women in plantations at night. Darjeeling’s tea estates employ 52,000 workers, and women form 60% of their workforce. Despite forming a majority of the workforce, female workers are limited to fieldwork, whereas male workers largely dominate factory production.

Can female contract workers work at night?

The law

In 1970, the Contract Labour (Regulation and Abolition) Act was passed in order to give state governments the power to prescribe conditions for contract labour to be gainfully employed.

The state of affairs

Currently, 17 states in India grant complete or partial freedom to female labourers to work at night without restrictions. Female contract labourers are restricted from working between 7 AM and 6 AM in states like Assam, Haryana, Maharashtra, Meghalaya, Odisha, Punjab, and Tamil Nadu.

The gripe

Female workers employed as nurses and midwives in creches, pithead baths, and canteens, are given the freedom to work at night. Why they might be immune to the reasons of ‘protection’ is perhaps a rhetorical question. Interestingly, most of these are stereotypically ‘female’ jobs.

Can female migrants work at night?

The law

In 1979, the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act was passed to regulate the employment of migrant workers. The Act empowers state governments to prescribe conditions for contractor licences. States use this power to prohibit the employment of female migrant workers between 7 PM and 6 AM.

The state of affairs

Female migrant workers are not given the freedom to work at night in 25 states. These states create these restrictions by including them as conditions for grant of licence. Only Gujarat and Kerala allow freedom for female migrant workers to be employed at night in all situations.

The gripe

Just as in the case of female contract workers, these restrictions seem to be waived for women in typically ‘female’ jobs.

States need to see the light

Imagine a manufacturing company with factories in 5 states—Gujarat, Karnataka, Maharashtra, Tamil Nadu, and Uttar Pradesh. To remain compliant, the company will have to track changes across laws, rules, and court judgements in all of them. Between 2015 and 2020, most of these states instituted some form of change in the provisions related to the employment of women in the night shift. Maharashtra and Uttar Pradesh amended the Act, and Tamil Nadu and Karnataka issued government orders. Even worse, in Uttar Pradesh, while the Act was amended, the Rules stayed the same.

Holding women hostage to sunset curtails their options to earn overtime pay and rise the ladder. In fact, research shows allowing women to work at night is positively correlated with the likelihood of women being top managers.

Parameter 2: Freedom to work in jobs deemed hazardous

Women are too fragile for machines

Women have been kept away from establishments deploying machinery and processes considered ‘hazardous’. Following the Industrial Revolution, many economies banned women from certain jobs to protect them from unsafe working conditions. The Bombay Factory Commission (1884) and Factory Labour Commission (1890) led to the passing of the first Factories Act in India in 1881. Notions such as “women working with moving machinery were at greater risk and more prone to accidents” led to restrictions on places in a factory where women could work. Even as safer machines were later introduced, the bias against women working with machines continued.

Current state

Many Indian states continue to restrict women from working in dangerous jobs across factories, commercial establishments, and plantations. Andhra Pradesh and Telangana are the only two states that allow women to work in all hazardous factory processes. Madhya Pradesh is the most restrictive; it is the only state that prohibits women from working in dangerous processes in both factories and commercial establishments.

Can women work in jobs deemed hazardous in factories?

The law

The Factories Act prohibits the employment of women to clean, lubricate, or adjust any part of a machinery, to work near cotton openers, and to work in operations deemed hazardous by the government. States in India are empowered to draft rules prohibiting the employment of women in ‘dangerous operations’ under the Factories Act.

The state of affairs

At present, 22 states prohibit the employment of women in up to 80 different processes deemed dangerous. Bihar is the worst offender, prohibiting women from 49 processes. Telangana and Andhra Pradesh are the only two states to allow complete freedom for women to work in dangerous processes.

The gripe

The Factories Act and Rules across states prohibit the employment of women in at least six types of rooms, including rooms where toxic and inflammable substances are treated/stored, where zinc is treated, where lead is treated, where employees can be exposed to benzene, where dangerous pesticides are manufactured and stored, and where carcinogenic dye intermediates are manipulated. The Factories Act pushes women out of important areas of the factory floor, buildings, and premises.

What constitutes a ‘dangerous process’? Anything that, in the opinion of the state government, would expose employees to serious bodily injury, poisoning, or disease. For instance, Bihar prohibits the employment of women in pottery manufacturing, Madhya Pradesh from working on machines used for cutting stones or making grooves on the stones in the manufacture of slate pencils, and West Bengal from working on jute hemp and fibre softening machines. Think of each of these processes as a stream of income women are cut from.

A story

Uttar Pradesh is home to the city of Moradabad, also known as Peetal Nagri or Brass City. The city’s Rs 6,000-crore exports industry is 40% of India's overseas handicrafts trade. At Moradabad, about one-third of the total population of the city is dependent on direct employment in the brassware industry. The industry employs approximately 1.10 lakh people, of which 76% are men and 5% are women. Women are majorly involved in gully making and scraping work. Turns out brassware manufacturing is deemed dangerous in Uttar Pradesh, and women are restricted from full participation in the sector.

Can women work in jobs deemed hazardous in shops and commercial establishments?

The state of affairs

On a positive note, 24 out of 26 states grant commercial establishments complete freedom for employing women in jobs deemed hazardous. Only in Madhya Pradesh and Sikkim are commercial establishments prohibited from employing women in jobs notified as dangerous.

Can women work in jobs deemed hazardous in plantations?

The state of affairs

When it comes to women working in plantations, Tamil Nadu and Tripura have used rule-making powers granted by the Plantation Labour Act, 1951 to prohibit the employment of women handling hazardous chemicals. Tamil Nadu prohibits the employment of women for handling, storing, and transportation of insecticides, chemicals, and toxic substances. In addition to these processes, Tripura also prohibits women from spraying insecticides, chemicals, and toxic substances in tea gardens.

Ungendering technology

In India, laws often seem to hold women’s biological imperative above their standing as individuals. There are deeper repercussions to these restrictions: women remain ensconced in unpaid care work and their work and incomes are devalued.

Laws that prohibit women from working on, or even near, sophisticated machinery, leave them wanting in skills and training. Historically, such restrictions made employers perceive women as unsuitable for operating machinery and dispense with female workers by mechanising their tasks. McKinsey Global Institute has estimated that up to 12 million Indian women could lose their jobs by 2030 owing to automation.

Parameter 3: Freedom to work in jobs deemed arduous

Can women engage in tasks that require lifting heavy objects?

Women are systematically excluded from jobs that require manual labour on the basis that they lack the physical capabilities needed. When it comes to roles that require women to lift heavy weights, countries across the world have issued legal prescriptions to regulate this activity. 46 countries apply weight-lifting restrictions on women’s labour.

The law

The Factories Act, 1948 allows states to put caps on the maximum weight women are allowed to carry.

The state of affairs

Women are prohibited from lifting heavy objects in 22 states. Bihar and Jharkhand grant the maximum amount of freedom to women working in jobs deemed arduous by allowing them to be employed with government permission. On average, the prescribed weight that a woman is allowed to lift or carry ranges between 25–30 kgs across states.

The gripe

Some states make a distinction between intermittent and continuous work. Uttar Pradesh and Uttarakhand allow women to lift 29 kgs for intermittent work and 19 kgs for continuous work. What constitutes intermittent and continuous work has not been defined by either state.

A story without a fairytale ending

AM Shaila worked at Cochin Port Trust where women could not be employed as shed clerks because of long working hours at night and in isolated locations, and because they would have to carry heavy parcels and operate heavy machinery. Shaila and other women contested that Cochin Port Trust’s employment policies violated Articles 14 (right to equality) and 15 (prohibition of discrimination by the State) of the Indian Constitution. Unfortunately, the Court upheld Cochin Port Trust’s decision. The court held that based on their physical limitations and capacity for work, women require to be grouped as a separate class.

States need to weigh in on the matter

Weight restrictions may have been put into effect to preserve women’s health and safety in the workplace. But they also make it so that all women for all perpetuity are unable to engage in arduous work, irrespective of individual ability or willingness. While women’s abilities to lift weights may be generalisable, they are not universalisable. Such universalisation constitutes an integral part of the state of discrimination.

Parameter 4: Freedom to work in jobs deemed morally inappropriate

The morality excuse

Laws around the world often prohibit the employment of women for the manufacture or sale of liquor because it runs afoul of the moral development of women. Even in different states of the USA, women could not work as bartenders unless they were related to the owner; Chicago removed the restrictions on women bartenders as late as 1970.

The framers of the Indian Constitution recognised prohibition on intoxicating drinks and drugs as an ideal. This policy aversion towards consumption of liquor and other intoxicating drugs, the centrality of ‘public order’ and ‘decency to administration, and the ‘special protection’ approach have combined to restrict the employment of women in the liquor trade.

Current state

The law

The Excise laws of most states exclude women from the sale of liquor to save ‘the woman folk from becoming addicted to the intoxicants and avert and avoid any conflict between sexes and chances of foreseen sexual offences’.

When it comes to employing women, Goa, Himachal Pradesh, Kerala, and Tamil Nadu allow women to be employed in licensed liquor establishments. The most restrictive states are Chattisgarh, Haryana, Odisha, Punjab, Uttarakhand, and West Bengal, as they do not allow women this freedom.

Can women work in licenced country liquor establishments?

The state of affairs

8 states—Andhra Pradesh, Goa, Himachal Pradesh, Kerala, Rajasthan, Sikkim, Tamil Nadu, and Telangana—place no restrictions on the employment of women for the sale of country liquor. Jharkhand, Karnataka, and Tripura offer this freedom subject to written permission from the Excise Commissioner/Board. 12 states prohibit women from working as salespersons of country liquor or in premises where the public consumes country liquor.

The gripe

Chhattisgarh and Uttar Pradesh require a licence applicant to file an affidavit to the effect that ‘he shall not employ any salesman or representative who has criminal background’, or any person ‘who suffers from any infectious or contagious disease or is below 21 years of age’, or ‘a woman’. Madhya Pradesh also restricts the employment of women in the sale of ‘hemp drugs or tari’.

Can women work in licenced foreign liquor establishments?

The state of affairs

7 states impose no restrictions on the employment of women in foreign liquor establishments, while 8 states prohibit this. 9 states—Assam, Jharkhand, Karnataka, Manipur, Meghalaya, Rajasthan, Sikkim, Tripura, and Uttar Pradesh—allow licensed foreign liquor establishments to employ women after taking written permission from the Excise Commissioner/Board. Andhra Pradesh, Telangana, and Uttarakhand levy restrictions on women working in the sale of foreign liquor, and Chhattisgarh, Haryana, Odisha, Punjab, and West Bengal levy restrictions on women working in premises where foreign liquor is served to the public.

A story

In Bombay, employees of bars and restaurants are required to procure a ‘Nokarnama’ under the Foreign Liquor Rules of 1953. In 2014, Barkur Sudhakar Shetty’s bar and restaurant, Rukmini Palace, had all these Nokarnamas. Yet, employees were harassed by the police. In Bombay High Court, Shetty argued that these restrictions violated his fundamental right to livelihood. Plus, he had already obtained all the licences specified under the law. The Government argued that bars employing women were particularly susceptible to immoral activities and lewd behaviour. The restrictions on working women are justified in the interest 'of law and order and prevention of crime’. Eventually, Bombay High Court restricted police constables from being continually stationed at the premises and held such a practice to be violative of Articles 14 and 19(1)(g) of the Constitution.

Another story

In Bengal, all establishments are required to have a licence if they wish to conduct live performances by women. Purnima Nandi, a performer, petitioned the courts against the excesses of the Government of West Bengal who had instituted additional requirements such as obtaining an additional ‘crooner’s licence’. Although Calcutta High Court read down the extra crooner’s licence, it still mandated female performers to disclose information regarding themselves and their workplaces before performing at any establishment. This information had to be shared with the police authorities prior to any performance.

States need to take the equality high ground

All of these restrictions are said to have been put in place to preserve public health and morality, despite the protests of women and establishments who believe that they are doing more harm than good by restraining women from economic growth. Bombay High Court as well as Kerala High Court both pushed back on the assumptions that women serving liquor was indecent and questioned discriminatory restrictions based on difficulties of the job. Even the Supreme Court and Delhi High Court have held that these stereotypes are outdated and regressive.

In sum

The problem

Across Indian states, laws seem to hold 21st-century women hostage to anachronistic mores. The claim is that sex-based legal restrictions on employment are justified because of women’s responsibility towards the race and to ‘promote the general health of the whole body of workers’. These restrictions weaponise women’s vulnerability, reproductive function, and family responsibilities against them. They even go so far as to use absurd equivalence between adult women, and children, diseased, disabled, and criminals. State governments often go above and beyond what the law stipulates they can do and assign themselves enormous discretionary powers. Funnily enough, state governments selectively apply discriminatory provisions only to private establishments.

The effects

While drafting or justifying these legal provisions, states have kept women’s constraints in mind, but rarely their aspirations. Legally sanctioned restrictions against women discourage their employment. Laws make competing in the labour market difficult for women, adding to the challenge of bringing them into formal high-paying jobs. These provisions take away women’s bargaining power and deprive them of the opportunities to earn a livelihood and grow. In some instances, laws even push women into occupations far more harmful for them. It may be time for states to reassess the outcomes of laws that treat male and female job seekers differently.

The upside

Many states and courts have started reassessing discriminatory laws based on facts and logic. In 16 of the 22 cases analysed in this report, courts invalidated state-sanctioned discrimination by highlighting that laws presupposed stereotypes, failed to balance concerns for security with personal freedom, and had a detrimental effect on women’s livelihood. At least four states, namely Haryana, Himachal Pradesh, Karnataka, and Punjab, have been granting approval-based exemptions to factories through government orders citing the court’s judgment in Vasantha R. v. Union of India. Other states have either amended their principal legislation or granted exemption to specific sectors like fish canning and curing factories, hospitals and dispensaries, Information Technology establishments, canteens, and creches.

The opportunity

Many discriminatory restrictions on female jobseekers stem from labour laws, and there is an imminent opportunity to correct these. In 2020, the Parliament passed a new labour regulatory framework that removes many restrictions on the employment of women at the union level. However, the new codes allow states to increase or decrease restrictions on women using their rule-making powers. The inter-state comparison in the report will hopefully encourage state governments to undertake reform. Once the codes are implemented, the State of Discrimination index will be updated, and the ranks of states will be recalibrated. This will show us if states are moving towards greater economic freedom for women.