top of page
Search

BREAKING BARRIERS – WOMEN’S RESERVATION IN EMPLOYMENT 


(Authored by Aviral Pathak and Bhavpreet Singh Dhatt)


"Gender equality is more than a goal in itself. It is a precondition for meeting the challenge of reducing poverty, promoting sustainable development, and building good governance."

- Kofi Annan


Women in Indian society face several disabilities due to their subordinate position in the socio-economic hierarchy, emanating from historical gender bias.[i] The need to eliminate discrimination against women resulted in the formulation of specific measures like reservation. Reservation, in Dr B.R. Ambedkar’s words, is a means to ensure the representation and upliftment of historically marginalized communities. In the book ‘Theory of Distributive Justice’, John Rawls presents the best rationale for reservation as “those with the same level of talent and ability and the same degree of willingness to use them should have equal chances of success”. The concept of reservation aligns with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which aims to eliminate discrimination against women in political and public life.


The concept has evolved with the evolving nature of the state from laissez-faire to paternalism, from paternalism to maternalism.[ii] In the contemporary era, it draws its foundation from the Constitution of India. Article 15, alongside prohibiting discrimination, carves out an exception for women and children. Article 15(3)[iii] reads, “Nothing in this article shall prevent the State from making any special provision for women and children”, whereas Article 15(4)[iv] grants the power of affirmative action in favour of socially and educationally backward classes of citizens.


According to the 2011 census, the literacy rate for males was 82.14%, and that for females was significantly lower at 65.46%.[v] The data highlights the disparities faced by women, indicating their status as a backward community in terms of education and thus justifying affirmative action under Article 15. Moreover, Article 16(4)[vi] contains an enabling framework[vii] for the government to grant reservations to any underrepresented class. It states that “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”. The 2011 census establishes the inadequate representation of women by revealing that the workforce participation rate for females is 25.51% against 53.26% for males.[viii]


The Directive Principles of State Policy (DPSP) further bolster the basis for providing reservations for women in employment, as encapsulated in Article 38 of the Indian Constitution. Article 38(1)[ix] mandates that “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.” This directive places a constitutional obligation on the State to ensure that justice, including gender justice, permeates all facets of national life, thereby justifying measures such as reservations to promote the welfare of women. Furthermore, Article 38(2)[x] explicitly directs the State to “strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.” This provision highlights the State's duty to address and reduce inequalities across various dimensions, including gender.

 

Regulatory Framework for Women's Reservation in Employment


In an attempt to address the gender gap in employment, the Women's (Reservation in Workplace) Bill, 2021[xi] (“Bill”) was introduced in Rajya Sabha and Lok Sabha respectively in December 2021 and February 2022. The Bill mandates a minimum of 30% for women in direct recruitment and promotions,[xii] extending to public sector undertakings, educational institutions[xiii] and to private establishments that choose to comply voluntarily.[xiv] It provides for a Council on Women's Welfare at Workplace,[xv] chaired by the Union Minister for Women and Child Development, to oversee the implementation, provide recommendations, and ensure adherence. Moreover, the Bill mandates establishments to appoint liaison officers to monitor compliance, maintain records, and report annually on women's appointments, to ensure transparency and accountability.[xvi]


Apart from the union legislation, various states have implemented specific rules and regulations to promote gender equality by reserving a certain percentage of government job positions for women.


State-wise overview

1. Sikkim: In 2018, via a notification, the Sikkim government mandated a 33% reservation for women in employment.[xvii]

2. Tamil Nadu: The Tamil Nadu Government Servants (Conditions of Service) Act, 2016, initially provided a 30% reservation for women, which was increased to 40% through a 2021 amendment.[xviii]

3. Rajasthan: The Rajasthan Subordinate Courts (Driver and Class-IV Employees) Service Rules, 2017, stipulate a 30% reservation for women in direct recruitment, with one-third reserved for widows and divorced women in an 80:20 ratio.[xix] Additionally, an amendment to the Rajasthan Panchayati Raj Act aims to increase the reservation limit for women to 50% in Grade-3 teacher recruitment.[xx]

4. Bihar: In 2016, Bihar implemented a 35% reservation for women in all government jobs.[xxi]

5. Gujarat: In 2014, the Gujarat government amended the Gujarat Civil Services (Reservation of Posts for Women) Rules, 1997 to implement a 33% reservation for women.[xxii]

6. Madhya Pradesh: The Madhya Pradesh government amended the Madhya Pradesh Civil Services (Special Provision for Appointment of Women) Rules, 1997 (as amended in 2023) now provides 35% reservation for women in recruitment.[xxiii]

7. Uttarakhand: The Uttarakhand Public Services (Horizontal Reservation for Women) Act, 2022, provides a 30%  reservation in direct recruitment for women permanently domiciled in Uttarakhand.[xxiv]

These reservation policies reflect a growing recognition of the importance of gender equality in the workforce. They aim to empower women, promote inclusive growth, and ensure their active participation in public administration.

 

Position  in Punjab


In a landmark move towards gender inclusivity, the Punjab government enacted the Punjab Civil Services (Reservation of Posts for Women) Rules, 2020 (“Punjab Rules” or “Rules”) in the exercise of the powers conferred by the proviso to Article 309[xxv] read with Article 15(3)[xxvi] of the Constitution of India. The Punjab Rules stipulate a 33% reservation for women in direct recruitment across Group A, B, C and D services. Although, the rationale of providing 33% quota is not discussed under the Rules, its basis can be driven from Critical Mass Theory. The theory advocates that a critical mass ranging from 30 to 35 percent is needed before bringing any major change in the paradigm.[xxvii] It gained prominence in political science with the publication of Dahlerup’s 1988 paper ‘From a Small to a Large Minority: Women in Scandinavian Politics’.[xxviii] The Women Empowerment Principles (WEPs) established by UN Women and UN Global Compact Office also rely on critical mass to reach the 50-50 gender equality.[xxix]


The Rules further provide that the reservation shall be horizontal and compartmentalized.[xxx] Explanation thereto states that “For the purposes of this rule, ‘horizontal and compartmentalised reservation’ means reservation within each watertight category, namely, Scheduled Castes, Backward Classes, Other Backward Classes, Economically Weaker Sections and Open Category”.[xxxi]


The procedural aspect is provided in Rule 5[xxxii] which states that the open category must be filled first, followed by vertical reservation quotas, then determining whether or not 33% of women are selected for each category. If not, the number of women in that vertical category will be adjusted until the quota is satisfied. In the event of unfilled posts due to a lack of eligible women candidates, the posts will not be carried forward in the next years and will be filled by other candidates from the same category. Such a step-wise procedure ensures that the horizontal reservation is met in each vertical category.[xxxiii] Meticulous adherence to the step becomes essential to prevent excessive reservation of a category.[xxxiv] 


The benefit of Punjab Rules extends only to the women domiciled in Punjab. In other words, Punjab domicile is a prerequisite condition for availing the reservation in employment under the Rules. In the case of Kalpana Komal Bhati v. State of Punjab[xxxv] the Court held that non-domiciled women are not entitled to the 33% reservation in Punjab state services. It further observed that the Cabinet had consciously reserved 33% of jobs for women domiciled in Punjab. Although there was initial ambiguity in the rules, they never stated that non-domicile women would be eligible for this reservation. This was clarified by the Department of Personnel in both 2021 and 2022, affirming that the reservation applies exclusively to women domiciled in Punjab.

 

Way Forward: Ensuring Effective Implementation


Work participation of women is not merely a matter of statistical representation but encapsulates multifaceted dimensions of societal progress, economic empowerment and individual dignity. The introduction of the Women's (Reservation in Workplace) Bill, 2021 and various state rules represent a significant stride towards achieving gender equality in employment within India. However, the implementation of these reservations presents complications. The Parliamentary Committee on Women's Empowerment emphasized the need to enhance the facilities accessible to women. It observed, “Despite a spate of efforts from the government, lack of basic amenities/restrooms/mobile toilets is still a major problem for the women in police in many States."[xxxvi] To put it another way, simply recruiting more women is insufficient. Both the government and the business sector must guarantee that women's working circumstances do not dehumanize them or contribute to their stress.


Furthermore, the efficacy of these rules depends upon the availability of competent female candidates and the willingness of businesses, particularly those in the private sector, to comply willingly. The skewed skill set often becomes the deterrent factor for employing women.[xxxvii] Therefore, vocational training programs for women must accompany statutory rules on reservation.[xxxviii] Enhancing women's skill sets through targeted training programs is crucial for making their employment a choice rather than a compulsion. This would not only improve their employability but also empower them economically and socially.

To summarize, while reservation regulations are a significant step forward, they must be supplemented with skill training programs, improved working conditions, rigorous monitoring mechanisms, and judicial control. Progress will be made when women's employment becomes a social norm that empowers and dignifies every individual, rather than a legal obligation.


 

[i]General Administration Department Resolution, No. 43328-2M-54/92-Gen. https://odisha.gov.in/sites/default/files/2020-02/RESERVED_CATEGORIES.pdf.  

[ii] Bhagwan Das, Moments in a History of Reservations, 35 EPW, 3831–34. (http://www.jstor.org/stable/4409890).

[iii] India Const. art 15(3).

[iv] India Const. art 15(4).

[vi] India Const. art 16(4).

[vii] Ajit Singh II v. State of Punjab, (1999) 7 SCC 209.

[ix] India Const. art 38(1).

[x] India Const. art 38(2).

[xi] Bill No. XIV of 2021.

[xii] The Women's (Reservation in Workplace) Bill, 2021, § 3.

[xiii] The Women's (Reservation in Workplace) Bill, 2021, § 1(4).

[xiv] The Women's (Reservation in Workplace) Bill, 2021, § 1(5).

[xv] The Women's (Reservation in Workplace) Bill, 2021, § 14.

[xvi] The Women's (Reservation in Workplace) Bill, 2021, § 12.

[xxv] India Const. art 309.

[xxvi] India Const. art 15(3).

[xxviii] Drude Dahlerup, From a Small to a Large Minority: Women in Scandinavian Politics. Scandinavian Political Studies, 11 SPS, 275-299 (2007). Also see Sarah Childs and Mona Lena Krook, Critical Mass Theory and Women’s Political Representation, 56 Political Studies, 725–736 (2008). 

[xxx] Punjab Civil Services (Reservation of Posts for Women) Rules, 2020, § 4(1). 

[xxxi] Punjab Civil Services (Reservation of Posts for Women) Rules, 2020, § 4(2)(ii). 

[xxxii] Punjab Civil Services (Reservation of Posts for Women) Rules, 2020, § 5.

[xxxiii] Anil Kumar Gupta v. State of U.P, 1995 (5) SCC 173.

[xxxiv] Rajesh Kumar Daria v. Rajasthan Public Service Commission, AIR 2007 SC 3127.

[xxxv] 2023 SCC OnLine P&H 57.

[xxxvii] Klasen & Pieters, What Explains the Stagnation of Female Labor Force Participation in Urban India? 29 World Bank Econ Rev., 449-478 (2015).

[xxxviii] Ibid.

 
 
 

Comments

© 2022 Chambers of BSD

  • Instagram
  • Facebook
  • Twitter
  • LinkedIn
  • YouTube

insolvency & restructuring

bottom of page