Guest Post: Deconstructing the Paternalism in Section 66(1)(b) – Treasa Josfine v. State of Kerala

[This is a guest post by Unnati Ghia.]

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On 9^th 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.

The 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

The 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 Article 14.

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.

The 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. 

The 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”. 

Within 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. 

However, 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. 

There 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 process. 

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 therein. 

Another 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. 

Interestingly, 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. 

On 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 to them. 

The 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 paternalism. 

Justice 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.

Similar 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. 

Conclusion

Notably, 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.