The premise of Section 66(1)(b) is that women do not have the capability to protect themselves in a job that requires them to work at night.
Section 66(1) (b) of the Factories Act Vs Fundamental Rights of Women
Panchkula (ABC Live India): Section 66(1) (b) of the Factories Act : On 9th April 2021, the Kerala High Court in Treasa Josfine v. State of Kerala directed the State authorities to consider an application submitted by the petitioner (a female trainee engineer) for the post of a Safety Officer in Kerala Minerals and Metals Ltd, on the grounds that she had been denied opportunity on the basis of her sex.
petitioner’s grievance was that the notification published by the State
inviting applications for the post applied only to
male candidates, which was discriminatory under Articles 14, 15 and 16 of the
Constitution. The counter affidavit filed by the State argued that the
notification was in compliance with Section 66(1)(b) of the Factories Act, 1948. Section
66(1)(b) states that “no woman shall be required or
allowed to work in any factory except between the hours of 6 A.M. and 7 P.M”.
The submission of the State was that the post of a Safety Officer required the
person so engaged to work round the clock, even during the night if required.
Therefore, women could not be hired for this position under the provisions of
the Factories Act.
Reasoning of the Court
Court in Treasa Josfine relied
on two key decisions of the Kerala High Court. The first decision was that of Hindustan Latex Ltd. v Maniamma, which,
in my opinion, does not appear to be a case under Section 66(1)(b). In Hindustan Latex, a
Division Bench of the Kerala High Court observed that special provisions for
women under Article 15(3) constituted an exception to sex discrimination under
In Leela v State of Kerala, another
Division Bench took the view that Section 66(1)(b) was a beneficial provision
under Article 15(3). The Bench held that Section 66(1)(b) ensured that women
were not taken away from their families, and they were protected from the
“hazards” of working at night.
Court also relied on Vasantha R v Union of India, where the Madras High Court
held Section 66(1)(b) to be discriminatory under Articles 14, 15 and 16.
Interestingly, the Madras High Court observed the validity of Section 66(1)(b)
must be tested under Articles 14 and 15(1) because it was a restriction on
women, as opposed to being a protective provision under Article 15(3).
In Treasa Josfine,
Justice Anu Sivaraman agreed that Section 66(1)(b) is a beneficial provision
intended to protect women. However, the Court observed that the Factories Act
was enacted at a different time and in a different socio-economic context,
particularly with respect to the roles played by women in society. Given this
context, Section 66(1)(b)’s force could only be utilised to protect women, but
would not constitute a reason to deny them engagement and opportunity if they
are fully qualified [paragraph 15]. On this basis, the Court set aside the
notification and held it to be violative of Articles 14, 15 and 16.
premise of the Court’s decision in Treasa
Josfine is that the change in the roles played by women as
they shift from domestic labour to wage labour warrants a different
interpretation of Section 66(1)(b) [paragraph 14]. The Court relies on the
Supreme Court’s decision last year in Ministry of Defence v. Babita Puniya, which
held that justifications founded in stereotypical assumptions about women do
not constitute a valid basis for denying opportunity. In light of this, the
Kerala High Court held the denial of opportunity to the petitioner under
Section 66(1)(b) is “completely untenable and unacceptable”.
this reasoning, it is not clear which stereotype has caught the scrutiny of the
court and rendered the notification unconstitutional. The Court refers to the
fact that women capably work round the clock jobs in several industries today.
From this, one may infer that the assumption that qualified women cannot work
in a night shift or beyond 7 p.m. is the problematic stereotype in this case.
If so, the application of Babita Puniya to
this case is valid.
this does little to detract from Section 66(1)(b) as it stands — that women
cannot be employed for tasks beyond 7 p.m. The issues identified by Sivaraman
J. in the notification therefore stand equally true for the main provision.
Yet, the constitutionality of Section 66(1)(b) vis-à-vis the decision in Babita Puniya was
not examined by the Court.
are two reasons as to why the Kerala High Court in Treasa
Josfine may have refrained from entering into this discussion.
First, the Judge sitting singly was bound by the previous Division Bench
decisions in Hindustan Latex and Leela, and was
obligated to follow the position taken in those decisions. Second, the
petitioner appears to have challenged the constitutionality of Section 66(1)(b)
only to the extent that it impacted her participation in the selection
In this post, I now present reasons for why Section 66(1)(b)
cannot withstand constitutional scrutiny under Article 15, in light of the same
principles as identified by the High Court.
Unconstitutionality of Section 66(1)(b)
The premise of Section 66(1)(b) is that women do not have the
capability to protect themselves in a job that requires them to work at night.
Thus, the denial of opportunity to women under Section 66(1)(b) is justified on
the basis of a need for security. What are the issues with this approach?
First, it presumes women to be hapless victims requiring robust
protection from the State. This is not to say that the workplace cannot be an
unsafe environment for women, but this could be addressed without victimising
them. Second, the approach under Section 66(1)(b) places the burden of this
protection on women themselves by completely removing them from a “dangerous”
work environment, as opposed to taking steps to remedy the threat
rationale behind Section 66(1)(b) was highlighted by the Kerala High Court in Leela — the
provision ensures that women would be able to take care of their families and
that their children would not suffer. A similar argument was made before the
Madras High Court in Vasantha R v Union of India. The Madras High Court held
that women holding household duties is not a universal phenomenon, and did not
constitute a reason for denying a night shift.
this rationale was also explicitly rejected by the Supreme Court in Babita Puniya.
There, Chandrachud J. observed that the argument that women could not meet
their requirements of service due to domestic obligations was itself predicated
on the stereotype of such obligations resting solely on women. Women are often
pushed into and limited to the domestic sphere by the patriarchy itself. This
is why it is problematic to deny employment opportunities or benefits on the
basis that women have to devote time to the home, because it further entrenches
the public-private divide.
the basis of the anti-stereotyping principle in Babita Puniya then,
Section 66(1)(b) cannot pass muster. An obvious response to this argument is
that even if it employs a stereotype, it is a special provision permitted under
Article 15(3). For instance, the Kerala High Court maintains that Section
66(1)(b) is a special and beneficial provision for women, intended to protect
them from exploitation. Admittedly, provisions such as Section 66(1)(b) have
posed a legal conundrum, because courts generally conflate provisions
protecting or prima facie in
favour of women as necessarily being materially beneficial
perils of this form of “protective discrimination” in favour of women have
already been acknowledged by the Supreme Court in Anuj Garg v. Hotel Association. In Anuj
Garg, a law prohibiting women from being employed in establishments
serving intoxicants was struck down because it ended up “victimizing
its subject in the name of protection”. Such laws presume that
women inherently lack agency, and thus are examples of State sponsored
Ruth Bader Ginsburg had pointed out a similar phenomenon in the United States
in the aftermath of Muller v Oregon. In Muller,
the US Supreme Court upheld a statute that prohibited women from working for
more than 10 hours a day, due to the “unique vulnerability” of women. The
decision in Muller resulted
in a series of “protective” labor laws for women, which prohibited night
shifts, limited the loads they could carry and excluded them from certain jobs
completely. According to Ginsburg J., these laws prevented women
from competing with men, resulting in lower paying jobs, and also reinforced
traditional gender roles — all in the name of “protection”. Subsequently, in
the first case Ginsburg J. argued before the US Supreme Court, Justice Brennan
observed that protective labor laws placing women on a pedestal were, on closer
inspection, often a cage.
forms of gender discrimination are justified by Indian courts under Article
15(3). In response, Gautam Bhatia for instance has argued that “special
provisions” must bear some relation to the historical and
structural subordination of women. This would ensure that the State must
identify and attempt to remedy specific forms of disadvantage, as opposed to
provisions that pay lip service to equality and limit the agency of women.
states such as Maharashtra and Kerala have altered the position
under Section 66(1)(b) by permitting the employment of women post 7 p.m.
provided that all safety and security safeguards are met by the employer. This
leaves the employment of women entirely to the option of the employer, but does
little to incentivise them, especially given the benefit of a statutory
justification to deny employment in the first place. In light of these reasons,
Section 66(1)(b) must not be understood as a “special or beneficial” provision
for women. Instead, laws that mandate safeguards and security for women at the
workplace without removing them from the workplace altogether would be better
suited to the objective of a “beneficial provision” for women.
Source: The post is written by Unnati Ghia
first published on Indian
Constitutional Law and Philosophy republished in the interest of justice