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Taxmann's Analysis | Breaking the Night Barrier

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Breaking the Night Barrier Women’s Right to Work under the OSHWC Code

CS Isha Bathla

Neetisha Gulati

Manager - Research and Advisory, Taxmann

2nd-year Law Student at MNLU, Nagpur


Breaking the Night Barrier Women’s Right to Work under the OSHWC Code

CS Isha Bathla

Neetisha Gulati

Manager - Research and Advisory, Taxmann

2nd-year Law Student at MNLU, Nagpur


Contents 1.

Introduction

5

2.

Provisions Relating to Employment of Women Under the Code

5

3.

Necessary Conditions to be Fulfilled by the Employer

6

4.

State- Specific Regulation governing the employment of women during night hours

7

5.

The Consequences of Non-Compliance for the Employer

9

6.

The Shift from Older Legislation

9

7.

What was the need for change?

10

8.

Constitutional and Judicial Perspective

11

9.

Critical Analysis

12

10. Conclusion

12


1. Introduction From protection to participation, the workplace is changing, and so is the law governing women’s right to work at night. For decades, restrictions on night-shift employment were justified on grounds of safety and protection, but these restrictions also limited women’s access to employment opportunities. Under the erstwhile Factories Act, 1948, women were prohibited from working at night, with their employment in any factory permitted only between 6 AM and 7 PM. With the enactment of the Occupational Safety, Health and Working Conditions Code, 2020 (“OSHWC Code”), this position has changed. Women can now work during night hours, subject to their consent and the safeguards and conditions prescribed under the Code and the rules made thereunder. The shift, however, is not merely about removing a restriction; it reflects a broader change in the legal approach towards women’s participation in the workforce. While the earlier framework largely viewed night work through the lens of protection, the present framework seeks to enable women to undertake such work while placing corresponding responsibilities on employers. Written consent, safe transportation, adequate lighting, workplace security, maternity protections and compliance with safeguards against sexual harassment form part of this framework. At the same time, State Governments may prescribe additional conditions, resulting in variations across jurisdictions. The key question is therefore whether the move from restriction to regulated participation can effectively secure both the right to work and the right to work safely. This article examines the legal framework governing the employment of women during night hours under the OSHWC Code, the safeguards imposed on employers, State-specific variations, the consequences of non-compliance, and the constitutional and judicial developments that have shaped this shift.

2.

Provisions Relating to Employment of Women Under the Code

While the OSHWC Code does not specifically define a “night shift”, Section 28 refers to shifts extending beyond midnight as night shifts. Women can generally be employed during the period between 6:00 AM and 7:00 PM. Under Section 43, women can also be employed before 6:00 AM and after 7:00 PM. Still, only with their written, documented consent, and the employer must meet conditions for safety, holidays, and working hours. The code prescribes conditions the employer must meet. The employer must also comply with any State-specific conditions prescribed by the appropriate State Government. The appropriate Government is empowered to make additional rules and conditions by notification.

Breaking the Night Barrier Women’s Right to Work under the OSHWC Code

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3. Necessary Conditions to be Fulfilled by the Employer The Occupational Safety, Health and Working Conditions (Central) Rules, 2026, prescribe conditions that an establishment must fulfil to employ women during night (after 7:00 PM) or before 6:00 AM.

3.1

Written Consent

The employer must obtain the female employee’s written consent before employing her during the prescribed hours (i.e., before 6:00 a.m. and after 7:00 p.m.). The rules do not specify when consent should be vitiated; however, for practical and legal purposes, consent must be free from coercion, undue influence, fraud, misrepresentation, or mistake of fact. Consent must be clear, specific, formal, voluntary and must reflect a mutual agreement between the employer and the employee. Although the Code does not expressly define “consent”, a key aspect of valid consent is that it must be capable of being withdrawn without repercussions. The Inspector cum Facilitator, during an investigation, has the power to require the production of documents, including the written consent of the employee.

3.2

Compliance with Maternity Benefit Provisions

Under the Occupational Safety, Health and Working Conditions (Central) Rules, 2026, no woman shall be employed in a manner that contravenes the maternity benefit provisions laid down under the Code on Social Security, 2020. The Code of Social Security provides certain maternity benefits to protect female workers, such as prohibiting employment or work during the six weeks immediately after delivery, miscarriage or medical termination of pregnancy. It provides creche facilities and protects women from being required to do work likely to affect pregnancy or health adversely. It also protects women from dismissal because of maternity-related absences. These maternity-related protections continue to apply irrespective of whether a woman is employed during regular working hours or during the period between 7 PM and 6 AM. Accordingly, employment during night hours cannot override or dilute the maternity benefits and protections available to women under the Code on Social Security, 2020.

3.3

Transportation and Safety Conditions

The employer must provide safe, secure, and healthy working conditions and ensure women are not disadvantaged in their employment because they work night hours. The employer is obligated to ensure the following:

3.3-1 Transportation facilities Where a woman is employed before 6:00 AM or after 7:00 PM., the employer must provide transportation facilities, including pick-up from and drop-off at her residence. The transportation facilities provided by the employer must be adequate and follow the safety requirements prescribed by the State Government of appropriate jurisdiction.

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Breaking the Night Barrier Women’s Right to Work under the OSHWC Code


3.3-2 Adequate Lighting The workplace must have adequate lighting in areas including passages leading to conveniences, toilet and washroom facilities, areas around drinking water facilities, and entry and exit points.

3.2-3 Closed Circuit Television Surveillance Washrooms, toilets, and drinking water facilities must be located near and around the workplace where women are employed. The employer must make adequate arrangements for CCTV surveillance along the routes leading to these facilities.

3.4 Exigencies or Emergencies The establishment must display its dedicated telephone numbers inside the establishment and on vehicles so that female employees can use them in case of an emergency or exigency. The telephone numbers must be displayed clearly and visibly at conspicuous places so that they can be readily accessed and used in case of an emergency

3.5

Women Employed in Below Ground Mines

At least 3 women employees must be on duty at the workplace during night hours when women are employed in below-ground mines.

3.6

Compliance with the POSH Act

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a legislation enacted to ensure a safe and equitable working environment for women. It provides a mechanism to protect women’s right to work with dignity and helps maintain an environment free from discrimination and without the threat of facing harassment. The POSH guidelines must be strictly complied with at every workplace, including workplaces that employ women during night hours.

4. State- Specific Regulation governing the employment of women during night hours The appropriate State Government has the power to make variations to, or prescribe additional conditions in respect of, the obligations laid down under the Code. It can be illustrated in a table in the following manner:

Breaking the Night Barrier Women’s Right to Work under the OSHWC Code

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State

Night Hours

Consent

Key Conditions

Karnataka

8:00 PM-6:00 AM

Written consent required

•

Secure transport with GPS tracking.

•

Drivers must undergo background checks and be duly vetted.

•

The supervisor must approve the routes.

•

No woman should be picked up first or dropped off last.

•

Adequate security guards must be provided.

•

Separate restrooms must be provided for women.

•

The employer must bear the costs of creche facilities.

•

Secure door-to-door transport must be provided.

•

Drivers must be police verified.

•

A complaint box must be provided.

•

At least 3 women must be employed during night shifts.

•

Separate restrooms must be provided for women and must be capable of being locked only from the inside.

•

The employer must provide an undertaking confirming compliance with all applicable conditions.

•

A sufficient number of women security guards must be provided.

•

Night shifts are prohibited for 24 weeks after the woman gives birth.

•

This restriction may be relaxed upon production of a medical certificate at the woman's request.

•

Vehicles used to transport women must have GPS tracking.

•

The supervisor must approve the routes.

•

Random checks of vehicles must be conducted.

•

Control rooms must be established for monitoring vehicles.

•

Personal details of female employees must be kept confidential.

•

Employment of women must be on a rotational basis.

•

At least five women must be employed together during a night shift.

•

Night shifts are not permitted for 16 weeks immediately after childbirth.

(The Karnataka Shops and Establishments Amendment Act)

Maharashtra

9:30 PM- 7:00 AM

(under the New Shops Act)

Telangana

8

8:30 PM- 6 AM

Breaking the Night Barrier Women’s Right to Work under the OSHWC Code

Consent prescribed through Form L

Written consent required


Tamil Nadu

Haryana

8:00 PM- 6:00 Written AM (in establishconsent ments employing required more than 10 employees)

8:00 PM- 6:00 AM

•

A notice regarding the availability of transportation for night shifts must be displayed at the entrance of the establishment.

•

Every employee must be provided at least one holiday per week.

Written • consent declaration by • employer

Transportation with GPS tracking must be provided.

•

Picking up a woman first and dropping her off last must be avoided.

•

Security guards must undergo background checks.

•

Tie-ups must be established with nearby hospitals for emergencies.

•

Night shifts cannot be assigned to women during the 12 weeks before or after childbirth.

•

Where an establishment provides boarding or lodging, separate accommodation must be provided exclusively for women, under the control of a female supervisory officer.

Pick-up and drop-off must be on routes fixed by the supervisor.

Further, Andhra Pradesh, Himachal Pradesh, Madhya Pradesh, Odisha, and Delhi also have minor variations and additions to the conditions specified under the Code and rules.

5. The Consequences of Non-Compliance for the Employer While the Code does not specify a penalty for contravention of Section 43, it provides that contravention of its provisions attracts a penalty of a minimum of Rs 2 lakh and up to Rs 3 lakh. If the contravention continues after conviction, an additional penalty of up to Rs 2,000 per day may be imposed for each day during which the contravention continues.

6. The Shift from Older Legislation The right to work at night has not always been extended to women. The erstwhile Factories Act, 1948 imposed restrictions on women’s employment as a preventive and protective measure. These restrictions were consistent with the International Labour Organization’s Night Work (Women) Convention, 1948, which India ratified in 1950. Section 66(1)(b) of the Factories Act, 1948, restricted women from working at any time other than between 6:00 AM and 7:00 PM, subject to variations by the State Government in the specific timings. It absolutely prohibited women from working beyond 10:00 PM or before 5:00 AM, and no State variation could permit employment beyond these limits.

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Along with the Factories Act, the Plantations Labor Act, 1951, Mines Act, 1952, and Bidi and Cigar Workers (Conditions of Employment) Act, 1966 also imposed similar restrictions on women’s employment during night hours.

7.

What was the need for change?

Legislative recommendations and studies on the older legislation highlighted the need to reform the restrictions under the Factories Act. Various authorities recommended changes to, or critically examined and analyzed, the Factories Act in light of its restrictions on women’s employment. These include the Standing Committee on Labour and Welfare, the Associated Chambers of Commerce and Industry of India (ASSOCHAM), and the National Commission for Women, among others.

7.1

The Factories (Amendment) Bill, 2003

The bill sought to remove the restriction on employing women between 7:00 PM and 6:00 AM, provided the factory occupier implements safeguards to protect women’s health and safety. The bill also recommended providing adequate transportation facilities to the nearest point of residence for women working such shifts.

7.2

Standing Committee on Labour and Welfare’s Report on the Factories (Amendment) Bill, 2003

In its report, the Standing Committee on Labour and Welfare referred to several High Court judgements that struck down restrictions on the employment of women as unconstitutional. The Committee recommended providing transportation facilities up to her residence at night, rather than merely to the nearest point of her residence, as proposed in the bill. The Committee also recommended that the bill specify the woman’s consent and prescribe strong punitive measures to deter contraventions.

7.3

The Associated Chambers of Commerce & Industry of India funded by the National Commission for Women

The Associated Chambers of Commerce & Industry of India (ASSOCHAM), funded by the National Commission for Women, conducted a study that highlighted a significant gap between the restrictions under the Factories Act and their practical application. Although the Factories Act prohibited women from working night shifts as a protective measure, women in the IT sector and Special Economic Zones (SEZs) often worked night hours. They faced the risks and challenges that the legislation sought to address, without necessarily having the corresponding safeguards. These gaps, together with concerns regarding restrictions on women’s right to work without discrimination, highlighted the need for legislative change.

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Breaking the Night Barrier Women’s Right to Work under the OSHWC Code


8. Constitutional and Judicial Perspective The debates surrounding restrictions on women working at night revolved around the constitutional tension between the State’s power to enact laws for the protection of women under Article 15(3) and the freedom to practice a profession under Article 19(1)(g) Discussions of equality, the rights against discrimination, and equality of opportunity also formed part of these debates. The ostensible intention of protecting women from harassment and danger could, however, restrict their ability to practise their professions freely.

8.1

Laws Protecting Women

The Factories Act sought to protect women from working at night and prevent their exploitation. Article 15(3) permits special provisions to protect women. The restriction on women working between 7: 00 PM and 6:00 AM was argued to be an example of such protective legislation. The National Commission on Self-Employed Women and Women in the Informal Sector, in its Report, observed that employers perceived women as docile and therefore vulnerable to exploitation through low wages. In Leela v. State of Kerala [2004] 2004 taxmann.com 3157 (Kerala), the Court observed that the provisions restricting the employment of women during night hours embodied special protection for women. The Kerala High Court held the restriction was non-discriminatory and hence valid.

8.2 The Right to Work Article 19(1)(g) protects every citizen’s right to practice a profession, trade or business. In the context of restrictions on women working at night, this right assumes particular significance, as such restrictions can, to some extent, limit women’s access to employment opportunities.

8.2-1 Romantic Paternalism In Smt. R. Vasantha v. Union of India and others, 2001 (2) LLN 354, it was argued that the provision was introduced when women were prone to exploitation by men. Now, the provision impedes women’s emancipation and would hinder their liberation in the socioeconomic sphere. It was contended that the section reflected romantic paternalism, where such a restriction would help men retain economic superiority in homes by restricting women’s access to work. The restriction was held to be unreasonable and discriminatory solely based on sex. The Madras HC held the restriction on the employment of women under section 66 of the Factories Act as unconstitutional.

8.2-2 The Contention on Exceptions In K. S. Triveni and Others vs. Union of India and Others [2002] 2001 taxmann.com 5666 (Andhra Pradesh), the exception to the restriction on employment of women during night hours was tested.

Breaking the Night Barrier Women’s Right to Work under the OSHWC Code

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Generally, it was impermissible for women to work during night hours, but an exception granted rights to women working in fish-curing or fish-canning factories, seemingly without concern for their protection. The Court deduced that the existence of such an exception is discriminatory in itself. Safety factors do not change with the nature of the factories, and a woman in fish–canning factories would be just as unsafe as a woman in a textile factory. The exception existed not to protect women, but to protect raw materials. It was also pointed out that Article 15(3) applies only to laws that benefit women. The Court struck down section 66(1) (b) of the Factories Act as unconstitutional due to its discriminatory nature.

8.3 Shift in legislation The legislative approach to restrictions on the employment of women shifted in response to changing societal conditions and judicial precedents. In Treasa Josfine v. State of Kerala and others [2021] 4 taxmann.com 1998 (HC-Kerala), it was observed that the restrictions under the Factories Act were based on a time when night work was viewed primarily as an opportunity for the exploitation of women. However, societal conditions had evolved. The Court held that there was no justification for denying appointment to a qualified candidate solely on the ground that she was a woman. With Section 43 of the OSHWC Code, 2020, the shift from protective paternalism towards safety- oriented emancipation is reflected in enacted legislation.

9. Critical Analysis The Code has, in principle, enabled women to exercise their right to work at night, however, certain gaps remain in the legislative framework. The requirement of voluntary consent may become merely nominal in practice where employees have limited bargaining power vis-à-vis their employers. The requirement for employers to bear the costs of facilities such as CCTV surveillance may also create a disparity between larger and smaller establishments. While larger establishments may have greater resources to comply with these requirements, smaller establishments may find compliance more burdensome and could potentially be discouraged from employing women during night hours. The enforcement gap remains a significant challenge. Despite the availability of statutory safeguards and facilities, women may still be denied creche facilities, equal pay, or even adequate toilet facilities. The introduction of night shifts for women therefore may become another area where statutory protections do not translate effectively into practice.

10. Conclusion The framework governing night shift employment for women under the Occupational Safety, Health, and Working Conditions Code, 2020 represents a shift away from protective restrictions towards greater access to employment opportunities for women, while

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Breaking the Night Barrier Women’s Right to Work under the OSHWC Code


retaining safeguards for their health and safety. Through this approach, the Code seeks to facilitate greater participation of women in the workforce. The effectiveness of this shift, however, depends upon the implementation and enforcement of the safeguards prescribed under the Code. Genuine consent, safe transportation, and adequate workplace facilities are essential to ensure that the new provisions translate into meaningful workplace participation for women. The ultimate objective of the Code is therefore not merely to remove restrictions on the employment of women at night, but to create conditions in which women can exercise their right to work safely and with dignity.

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