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Emerging challenges on women and law in India – I: challenges relating to women’s engagement with labour laws

“The law has very little to do with the labour that women put in, because it is not even meant to come into the fold of the law.”

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ON February 23, the Centre for Women’s Rights [CFWR] at Jindal Global Law School, O.P. Jindal Global (Institution of Eminence Deemed to be University), held an inaugural webinar, as a first in a series of webinars on the theme – ‘Ear to the Ground’ which aims at examining the lived experiences and struggles of women in their engagements with the law. The webinar, titled ‘Emerging Challenges on Women & Law in India’, was a panel discussion with Apoorva Kaiwar, Regional Secretary, South Asia office, IndustriALL Global Union; Adv. Sandhya Raju, Founder and Managing Director of the Centre for Constitutional Rights Research and Advocacy; and Adv. Veena Gowda, a women’s rights lawyer, as panelists. The webinar was moderated by Prof. (Dr.) Saumya Uma, Director of CFWR and Professor at Jindal Global Law School.

This is the first part of a three-part series covering the webinar, and looks at the opening address by Dr Uma and Kaiwar’s address.

Saumya Uma (moderator):

 A warm welcome to one and all! This is the first lecture in a series of webinars that we are planning to hold in the next few months on the theme “Ear to the Ground”, by the Centre for Women’s Rights, Jindal Global Law School. The theme aims at examining the lived experiences and struggles of women in their engagements with the law. I am Dr. Saumya Uma, Director of the Centre, and I will give a very brief overview of the Centre since this is our inaugural programme.

It is not merely in the operation of the law but, somewhere even in our heads when we think of any workplace, except perhaps domestic work, when we think of a factory, when we think of a mine, when we think of even a plantation, the field, when we think of a farmer, you first only think of a man. You don’t really think of any of the workers in any of these fields as women.

The Centre for Women’s Rights commenced its activities in 2009-10, under the name of Centre for Women, Law, and Social Change. A small team of dedicated faculty members undertook phenomenal work for several years. While the Centre was renamed Centre for Women’s Rights in 2021, it carries forward much of the legacy, goodwill, and alliances forged with likeminded individuals and institutions. The Centre’s work foregrounds the pursuit of inclusive and intersectional justice through state-level, national, regional, and international forums by adopting feminist and interdisciplinary approaches.

With a commitment to high quality research, the Centre also plans to contribute to wider legal thinking on issues pertaining to social justice, and more importantly, we also hope to bridge the gap between women’s rights activism at the ground level, feminist lawyering in the courts, progress made on women’s studies, and work undertaken by the academia. The Centre’s work focuses on four specific areas, but these specific areas are also broad – Violence against Women; Women’s Right to Equality and Non-Discrimination; Women, Peace, and Security; and International Law, Human Rights Standards, and Women’s Rights. On these four focus areas, the fulcrum of the Centre’s work is its research activities, particularly socio-legal and action research.

This inaugural webinar titled “Emerging Challenges on Women and Law in India” is a panel discussion with three eminent speakers. The speakers are Advocate Apoorva Kaiwar, the Regional Secretary South Asia of IndustriALL Global Union; Advocate Sandhya Raju, the Founder Director for Centre for Constitutional Rights, Research and Advocacy, and a lawyer practicing in the courts of Kerala; Advocate Veena Gowda, a women’s rights lawyer practicing in the High Court of Bombay, family courts, and other trial courts. All our panelists have more than two decades of work experience, and we are very grateful to have them in today’s panel discussion. I welcome all the panelists.

The law as it stands is positivist usually, so I don’t think it really has the potential to change. It has the potential to exercise the right that it gives, and in any society the rights that it gives will be governed by what the dominant discourse is.

I now call upon the Executive Dean of Jindal Global Law School, Prof. (Dr.) S.G. Sreejith, to say a few words and motivate us all as we embark on the journey of Centre for Women’s Rights.

Prof. (Dr.) S.G. Sreejith

 Thank you very much Prof. Saumya Uma. Good evening everyone, distinguished speakers of the day, Director, and other members of the Centre for Women’s Rights, my colleagues, students, and everyone watching the session online. On behalf of Jindal Global Law School, O.P. Jindal Global University, I welcome you all to this session to mark the first webinar of the webinar series Ear to the Ground by the Centre for Women’s Rights. Today’s distinguished panel will deliberate on the theme Emerging Challenges on Women and Law in India.

This theme reminds me of a sentiment I shared with my colleague Prof. Dipika Jain, by way of an anecdote in one of our conversations. We agreed that law as it is posed itself as a dialectical opportunity to rediscover the self, we spoke specifically on the self or the female subjects working in the aerospace sector. However, we also agreed that the said opportunity is in fact a dialectical trap for the inquiring female subject. It is a dialectical trap for the inquiring female subject to rediscover herself in the image of the historically dominant gender. That conversation and our mutual collaboration has us further exploring the dialectical trap of law, how we studied male identities are posed in law as the otherness in dialectical conspiracy of synthesis. That collaboration kept me thinking that women studies is more than an analytic, and a perspective to look at the things at large. It gave me the awareness that no post-modern discipline has an epistemology of styles as women’s studies has. This could be that there is a rich body of narrations of lived experience of women which are not easy to be brought under broader generalizations and abstractions, which are in fact what legal imaginations are all about. Each experience has a respective context, it is on this point that law fails – on account of its tragic singularity, often passed off as a legal objectivity – the historically set untruth.

I am certain that the Centre for Women’s Studies, through this webinar series, will be a site for heterodox and critical imaginations on law. I wish everyone associated with the Centre all the very best of luck, and on behalf of the School I offer unconditional support to Prof. Saumya Uma and her team. Thank you, and welcome everyone.

Moderator:

Thank you Prof. Sreejith for your ever inspiring words. Once again, welcome to the panelists. We will start with Apoorva Kaiwar. Apoorva, can you please share your insights on what do you think are the emerging challenges particularly on women’s engagements with labour laws?

Apoorva Kaiwar:

Thank you Saumya. Thank you for inviting me to this panel discussion. It is, lovely to see many of you – my good friends – at this webinar.

Hello Prof. Sreejith and thank you for talking about how women’s lived experiences are very different from that of men. The ILO [International Law Organization] has been doing a series a papers on ‘The Future of Work’, and one of the things that a number of reports identified is that women continue to have to adapt to a world of work that is designed by men, for menIt is not merely in the operation of the law but, somewhere even in our heads when we think of any workplace, except perhaps domestic work, when we think of a factory, when we think of a mine, when we think of even a plantation, the field, when we think of a farmer, you first only think of a man. You don’t really think of any of the workers in any of these fields as women. And I think that is the beginning of how women have to try and fit in, into the space that was created by men for men.

I would get rapped on my knuckles if I didn’t say that this also complicates matters for people who do not identify as one gender, who identify as multiple genders, and that is not even recognized in the world of work. Even to the ILO Convention 190, there was a lot of opposition from not just the employers’ groups but also from entire continents. There were debates around adoption of C190, Convention against violence and harassment at the workplace, because it didn’t mention either the workers of other gender or workers of other sexualities in an explicit manner. This is where we are primarily in the world of work, which is for men by men. This is how we will have to negotiate the space, though I don’t like the phrase.

I don’t think that I really agree with the idea that the law has an immense potential to change. The law as it stands is positivist usually, so I don’t think it really has the potential to change. It has the potential to exercise the right that it gives, and in any society the rights that it gives will be governed by what the dominant discourse is. So, even in that sense I am not sure that law, per se, would have the potential to change anything. The law is an instrument of the State, and the State does not make revolutions, people do. You cannot talk about labour law without putting it into context. I think what I am going to say will be a little different but I will come back in the end to sexual harassment, because that is something that women face almost as much as epidemic in today’s workplaces, every workplace in time and space but at least we are able to speak about it today.

Just to put in context, about 17.4 per cent of women are employed in industry, which is defined as an organized economic activity. More than 80 per cent of women are in, what we broadly call the informal sectors. This means that most of the work that women do are already in a space that are not even regulated. When you say informal economy, it can be anything from rag pickers to domestic workers. I am not even getting into what would be some kind of edgy work that a lot of women do, whether it is at the edge of what would be deemed as work – care work, sex work, and so on. . At the same time, when you say informal economy, you are also looking at spaces which are spread across. The notion of a workplace may not even count. It might be your workplace, but notionally it is the streets, the homes, the fields, so how do you begin to regulate it?

I am not saying that it should not be regulated; I am saying that the law has very little to do with the labour that women put in, because it is not even meant to come into the fold of the law. Out of 17.4 per cent, whichever women are working in the industry- this includes industry across manufacturing, mining and energy which are the three sectors that IndustriALL represents. But also when you say industry, it includes the tea industry, agricultural and transport industry. Less than 20 per cent women are employed across industries. So where would the law even begin to operate? This would be the first question we would have to ask.

Though there is some amount of organizing, by which I mean collectivization into trade unions, into different kinds of labour organizations, by large number of women workers – government workers, ASHA workers, anganwadi workers,forest workers, tea workers … it is said that only 7 per cent of India’s workforce is organized, but I think it should be even less than that, because even in very formalized public sector employment you see more and more precarious employment. By precarious, I mean that it is not a regular direct employment in the company, it can be through a contractor, it can be fixed term contracts, it can be casual labour; there are several forms of irregular work, and it can be one of those.

Even in formal workplaces which may be regulated by law, a large number of workers are not really not in formal employment. They do not have formal contracts; they do not have employment letters; there is no proof of direct employment. We find that more women than men are in precarious work across the world and not just in India. Wherever people have been able to organize, they have been able to get a bit of wage raise for example, or some kind of recognition, whether it is the tea workers in Kerala, the garment workers in Bangalore who have been struggling and trying to make their union presence felt, anganwadi and ASHA workers.

The issue is that the change in the labour law regime in this country, which is not complete yet but in process, has meant that there is a direct attack on the trade unions. Without trade unions, you can’t collectively bargain. Without an organization you cannot collectively bargain, which means you don’t have rights in law. You get rights beyond what is available in law only through collective bargaining, and that is now taken completely out of the picture by our very benevolent government. So, most women don’t have the rights in law, and we also don’t have rights to get it beyond the law.

The change in the labour law regime in this country, which is not complete yet but in process, has meant that there is a direct attack on the trade unions. Without trade unions, you can’t collectively bargain. Without an organization you cannot collectively bargain, which means you don’t have rights in law.

If you ask me what are the emerging challenges in labour law, I would say it is the non-existence of labour law for most people. It is not just that substantive law is changing, I am sure that a lot of colleagues who are working on that would add to this later on, but also the labour administration and labour adjudication processes. You will no longer have labour courts and industrial tribunals the way we know now. You will have a judicial and a non-judicial member, and the adjudicatory institution will be a tribunal and not a court which means that the powers of a court in issuing summons for witnesses, calling for documents – all of that will be taken away. Even the right to lead evidence in a tribunal is based on judicial discretion. So I think this is not just about substantive right but the labour adjudication process that has changed.

This is the challenge; how do you expect to gain anything through law? You are outside the realm of law to a very large extent, and even when the organization that you are working in can maybe highly regulated or may have a complex structure, most women workers do not come into that. And how do you deal with it when the whole system of labour adjudication and labour rights are being completely eroded.

I think for the last three to four years, the emerging world of work focusses on digitalization. What kind of work will digitalization impact? It can impact sectors like mining, and manufacturing. We don’t know if it will impact tea leaf picking, we don’t know if it will impact the other forms of labour, we don’t know the extent to which automation will happen, we don’t know what would be automated – whether it would be just some amount of advanced mechanization or would it actually be digitalization in the way we understand, that is, talking to machines and doing something. Where will the jobs be in the future? Will we have the same kind of jobs? Will we have jobs in factories? Will we have jobs in warehouses? Will we have jobs in mines? Or will we have jobs only in the kind of things that only human beings can do, which are unfortunately neither well paid nor something that deserves dignity – doing care work, domestic work – this is also the kind of work women are supposed to be good at, we were born to do this! So, we will be relegated to that. Any advancement in technology, any advancement in the field of work, any kind of change that even happens, whether law will regulate it or not regulate it, women will not even be a part of it. We will be left behind, because for a number of women, we do not even have access to learn the skills that we ought to.

When we talk of women in STEM [science, technology, engineering and mathematics], we only talk of software engineers. We don’t really talk about even data entry people, which is the bulk of jobs available in India in the Information Technology sector. We are talking of jobs which are accessible by way of their education and training to women only of a certain class. It is not available to working class women, it is not available to women of marginalized caste, marginalized genders; it is not available to a lot of people. This needs to add to the whole discussion on what kind of jobs will be available. Because somewhere it is very easy to say that we used to think women would not be able to operate huge machines, huge boilers – men just have to press a switch; most of the boilers are digitized. They are literally very high mechanics. But there is a notion that women cannot work in steel mills, women cannot work in a cement plant, and therefore large number of women have been kept out of work. But even in cement plants, two hours from Raipur, you have clinkers that are being run through machines and there are young women who are sitting and doing that. Therefore, there are jobs available for women even in the cement industry, but these are not available to a large number of women. These are available to only a few women.

So when we say emerging challenges in law, we also have to understand who will law cover, at any point. And, who can even access that law, even if it covers them, because you are going to literally deprive a large number of people from jobs – if a large number of manufacturing processes get digitized, then it means that even the sewing operators’ job that is available to women today may not be available to women. So will they only be doing care work in informal places like homes or care homes?

We are talking of jobs which are accessible by way of their education and training to women only of a certain class. It is not available to working class women, it is not available to women of marginalized caste, marginalized genders; it is not available to a lot of people.

Where exactly are we looking for law that women can engage in, as far as their work is concerned? Sorry I do not have the time to talk about sexual harassment at the workplace, and I am hoping both Sandhya and Veena will talk about it, because whether we like it or not, this is one of the most difficult issues that women face even today.

Moderator’s Comments:

 Thank you so much Apoorva! You touched upon a range of issues, there is no way I will attempt to summarize them. But one of the important things, particularly for those who have joined the webinar late, that I want to highlight is what you have said – that one of the biggest challenges is the non-existence of labour law itself, and not only substantive law but also labour adjudication processes; the role of digitization and what that is going to do, and how that is going to impact women, given the lack of skills as well as the lack of access to those skills. Thank you very much once again.

(Transcription by Navami Krishnamurthy and Payal Mangla, students of Jindal Global Law School.)

The next two parts will contain coverage of the addresses by Raju and Gowda, as well as the Q&A session with all three speakers.

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