Abstract
The promise of gender equality at the workplace sits at the intersection of constitutional aspiration and economic reality in India. When Parliament consolidated twenty-nine central labour enactments into four Labour Codes between 2019 and 2020, it presented the country with an opportunity not merely to streamline compliance but to reimagine the relationship between working women and the law. This paper examines how the Code on Wages 2019, the Code on Social Security, 2020, the Occupational Safety, Health and Working Conditions Code, 2020, and the Industrial Relations Code, 2020 address gender equality — not as an afterthought, but as a substantive organising principle.
The analysis moves through statutory text, judicial interpretation, and ground-level evidence to test whether the Codes deliver real change or merely repackage older protections in modern language. The findings are mixed. On the positive side, the Codes use gender-neutral language that for the first time expressly includes transgender workers, permit women to work night shifts with mandated safeguards, and retain the hard-won twenty-six weeks of maternity benefit secured by the 2017 amendment. On the negative side, substantive equality remains elusive: enforcement is weakened by a shift to self-certification, domestic workers and gig workers — two of the largest categories of women in paid work — are effectively left outside the protective framework, and the Codes say nothing about paternity leave or unpaid care work, which remain the invisible anchors that hold women back from full economic participation. The paper concludes with concrete recommendations, including ratification of ILO Convention 190, uniform national night-shift safety rules, subsidised common creches in industrial clusters, and an expanded definition of ’employee’ to bring gig workers within the fold of maternity and anti-harassment law.
1. Introduction
1.1 Conceptualising Gender Equality in Employment
It is tempting to think of gender equality in the workplace as a simple proposition: pay women the same as men, treat them the same, and the problem is solved. But decades of scholarship and lived experience have demonstrated that this formal equality model is woefully inadequate. True gender equality in employment requires the elimination of both direct and indirect discrimination, equal access to opportunity across the full range of occupations, equal remuneration for work of equal value, and conditions of work that recognise biological and social differences without using those differences as a justification for disadvantage.’ The International Labour Organization captures this broader vision in its defmition of gender equality as the equal enjoyment of rights, opportunities and treatment by men and women in employment and occupation.2 In the Indian context, the evolution from a ‘protective’ framework — which kept women out of night shifts and hazardous factories ‘for their own good’ — to a ‘substantive equality’ framework that seeks to enable full participation while guaranteeing safety and dignity has been slow, contested, and incomplete.
The stakes could not be higher. The Periodic Labour Force Survey 2022-2023 records a female labour force participation rate of just 37 per cent, compared to 78.5 per cent for men — a gap that places India near the bottom of the global rankings on this indicator.3 Of those women who are in paid work, the majority are concentrated in informal, low-paid, and insecure jobs: agricultural labour, domestic work, home-based piece-rate manufacturing, and platform-mediated gig work, none of which come with written contracts, maternity protection, or any meaningful redress for harassment or wage theft. Even among those fortunate enough to be in regular salaried employment, the gender pay gap stands at approximately 28 per cent.4 These are not statistics on a spreadsheet; they represent millions of women whose potential contributions to the economy and to their own families are constrained not by talent or ambition but by law, custom, and institutional failure. Against this backdrop, the question of whether India’s new Labour Codes advance or merely gesture towards gender equality is a question of urgent practical importance.
1.2 Historical Evolution of Women’s Labour Rights in India
Understanding where the Codes stand requires understanding where the law has come from. The history of women’s labour rights in India is, at its core, a history of the tension between protection and participation — a tension that has never been fully resolved.
The Factories Act, 1948 typified the protective approach. Section 66 prohibited the employment of women between 7 pm and 6 am and barred them from a range of processes deemed hazardous.’ The intent was benevolent; the effect was exclusionary. Women were shut out of the better-paying night shifts in textile mills, chemical plants, and later in IT and business process outsourcing facilities, not because they were incapable but because the law said they could not be there after dark. Similar restrictions appeared in the Mines Act, 1952 and the Plantations Labour Act, 1951. The cumulative result was a legal architecture that reinforced occupational segregation while presenting itself as caring for women.
The Equal Remuneration Act, 1976 marked the first direct legislative challenge to wage discrimination. It required employers to pay men and women equally for the same work or work of a similar nature, and it prohibited discrimination in recruitment on grounds of sex.6 The Act had genuine teeth, but its reach was limited to notified sectors, and employers proved inventive in fmding ways to classify women’s work as ‘different’ from men’s work to escape the equal pay obligation. The Supreme Court addressed one such attempt in Mackinnon Mackenzie & Co Ltd v Audrey D’Costa, where it held that female stenographers performing identical work to their male counterparts could not lawfully be paid less, and that a settlement agreeing to lower wages for women was overridden by the Act.7 The Court also confirmed that ILO Convention No 100 on equal remuneration could be used as an interpretive guide — a principle that remains significant for the Labour Codes today.
The Maternity Benefit Act, 1961, as amended in 2017, extended paid maternity leave to 26 weeks and required establishments with 50 or more employees to provide creche facilities.8 This was a genuine advance, though as discussed below, it has had the perverse side-effect of making some employers reluctant to hire women of childbearing age, particularly in the small and medium enterprise sector.
The landmark judgment in Vishaka v State of Rajasthan in 1997 addressed a gap that none of the existing statutes had filled: the absence of any legal framework to prevent sexual harassment at work.
The Supreme Court held that gender equality under Articles 14, 15 and 21 of the Constitution encompasses the right to work with dignity, and it laid down binding guidelines for employers to prevent and redress harassment pending legislative action.9 Those guidelines were eventually codified in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly called the PoSH Act. By 2019, therefore, India had assembled a patchwork of protective, promotional, and remedial statutes, each with its own defmition, thresholds, enforcement authorities, and penalties — a system that was difficult to navigate even for large employers with dedicated legal departments, and effectively invisible to the millions of women working in the informal economy.
1.3 The Case for Codification
The Second National Commission on Labour, reporting in 2002, identified legislative fragmentation as a central problem and recommended consolidation into four or five codes.1° The recommendation gathered dust for nearly two decades before Parliament femalely enacted four Labour Codes between 2019 and 2020. The stated goals were simplification, extension of protection to unorganised workers, and ease of doing business.11 For gender equality, codification held out three specific opportunities.
The first was the adoption of genuinely gender-neutral language. Where the older statutes spoke exclusively of ‘men’ and ‘women’, the Codes use the term ‘gender’ in a way that extends coverage to transgender persons, an inclusion that represents a meaningful step forward even if implementation remains uneven.
The second was the replacement of blanket prohibitions on women’s night work with a rights-based framework that respects autonomy while mandating concrete safeguards. Rather than assuming that women need to be kept away from night shifts for their own protection, the new approach assumes that women have the right to access all shifts and that it is the employer’s obligation to make those shifts safe.
The third was the harmonisation of benefits such as maternity leave and creche entitlements across sectors, replacing the fragmented sector-specific rules with a uniform national standard. The Codes also introduced digital compliance systems, inspector-cum-facilitators replacing traditional inspectors, and enhanced penalties for violations.12
These are genuine advances. But codification also raised serious concerns. Trade unions argued that replacing labour inspectors with ‘facilitators’ whose primary role is to assist employers in achieving compliance would fatally weaken enforcement.13 Women’s organisations warned that permitting night work without robust monitoring mechanisms and strong criminal deterrence could expose women to new forms of exploitation and coercion.14 And critics across the political spectrum noted that the Codes continue to exclude domestic workers from most protections unless the government issues a specific notification, leaving one of the largest categories of female paid work in a legal vacuum.15
1.4 Research Objectives and Methodology
This paper pursues four objectives. First, it maps the specific provisions in each of the four Labour Codes that bear on gender equality and compares them with the pre-Code regime. Second, it analyses how courts have interpreted the foundational concepts of equal pay, maternity benefit, and workplace dignity, and considers whether that body of jurisprudence is likely to continue to shape the application of the Codes. Third, it identifies patterns of violation and implementation failure using government data, reports from civil society organisations, and secondary academic literature. Fourth, it draws these threads together into a set of concrete reform recommendations aimed at moving from formal to substantive equality.
The methodology is doctrinal and analytical. Primary sources include the Constitution of India, the four Labour Codes and their subordinate rules, and judgments of the Supreme Court and High Courts. Secondary sources include reports of the Labour Bureau, ILO, NITI Aayog, and academic scholarship. The study follows OSCOLA referencing conventions. Where data is unavailable because the Codes remain to be fully notified in all States as of April 2026, the paper draws on draft rules and stakeholder commentary.
1.5 Scope and Limitations
The scope of this paper is deliberately focused: gender equality in employment as governed by the Labour Codes. It does not address personal law, property rights, or political representation, though it acknowledges that these dimensions of inequality reinforce each other. The analysis treats discrimination as intersectional — caste, class, disability, and sexuality compound the disadvantages associated with gender — but the primary lens is legal and labour-focused. The analysis of implementation is limited by the fact that many States have not yet framed rules under the Codes, and comprehensive enforcement data for the post-2025 period is still being compiled.
2. Constitutional and International Framework
Any analysis of the Labour Codes must begin with the constitutional framework that gives them their normative force. Articles 14 and 15(1) of the Constitution guarantee the right to equality and prohibit discrimination on the grounds of sex. Article 15(3) carves out a deliberate exception, permitting the State to make special provisions for women — a provision that has been used to justify both protective legislation and affirmative measures.16 Article 39(a) directs the State to secure for men and women equally the right to an adequate means of livelihood, while Article 39(d) requires equal pay for equal work. Article 42 mandates just and humane conditions of work and maternity relief.17 Taken together, these provisions create a constitutional mandate for labour law that is sensitive to gender, though they stop short of creating enforceable individual rights and must be given effect through legislation and judicial interpretation.
At the international level, ILO Convention No 100 on Equal Remuneration requires ratifying States to ensure equal remuneration for men and women workers for work of equal value — a standard that is deliberately broader than ‘the same work’, capturing differences in job classification that are themselves the product of historical gender bias.18 Convention No 111 on Discrimination in Employment and Occupation prohibits discrimination on grounds of sex, among other characteristics, and requires States to pursue a national policy of equality of opportunity.19 India has ratified both conventions, and the Supreme Court confirmed in Mackinnon Mackenzie that they are available as interpretive aids when domestic provisions are ambiguous.2°
3. Gender Equality Provisions Across the Four Codes
3.1 Code on Wages, 2019: Equal Pay and Representation
The Code on Wages consolidates and supersedes the Equal Remuneration Act, 1976 along with three other wage-related statutes. Its gender equality provisions are deceptively short but substantively significant. Section 3(1) provides that no employer shall pay to any worker, on the ground of gender, wages at a rate less than those paid to other workers for the same work or work of a similar nature.21 Section 3(2) extends the anti-discrimination obligation to recruitment itself, prohibiting employers from making hiring decisions on the basis of gender except where the employment of women is specifically prohibited by or under any law for the time being in force.22
Two features of these provisions merit particular attention. First, the language of ‘gender’ rather than `sex’ or ‘women’ explicitly brings transgender persons within the scope of protection — a meaningful change from the Equal Remuneration Act, which was worded in binary terms.23 Second, the Code mandates that one-third of the members of the Central and State Advisory Boards constituted under it must be women.24 This institutional measure matters because Advisory Boards shape the policy environment within which wage standards are set. A Board that includes women is more likely to identify and address the indirect discrimination mechanisms — job classification, part-time penalties, care-related career breaks — that keep women’s wages below those of men.
What the Code does not do is introduce a mechanism for challenging systemic pay discrimination through job evaluation or comparative worth analysis. The standard remains ‘the same work or work of a similar nature’ rather than the broader ILO standard of ‘work of equal value’. This gap allows employers to maintain lower wages for female-dominated occupations simply by ensuring that those occupations are classified differently from comparable male-dominated ones — a practice that has been documented extensively in the nursing, teaching, and domestic care sectors.
3.2 Code on Social Security, 2020: Maternity, Creches, and the Limits of Coverage
Chapter VI of the Code on Social Security codifies maternity benefits in terms that closely track the 2017 amendment to the Maternity Benefit Act. Section 60 entitles every woman who has worked for at least 80 days in the preceding twelve months to maternity benefit at the rate of her average daily wage for a period of 26 weeks, of which no more than eight weeks may be taken before the expected date of delivery.25 For women who already have two or more surviving children, the entitlement is reduced to 12 weeks.26 Importantly, the Code extends statutory maternity benefit beyond biological mothers: commissioning mothers using surrogacy arrangements, and women who adopt children below the age of three months, are entitled to 12 weeks of benefit.27 This extension acknowledges the diversity of family formation and removes an archaic restriction that treated biological motherhood as the only form of mothering worthy of legal recognition.
On creche facilities, Section 67 of the Code requires every establishment employing 50 or more workers to provide a creche either at the workplace or within 500 metres of it, or to make arrangements for a common creche facility shared with other establishments.28 Mothers are entitled to four visits to the creche during the working day, including their rest intervals. This provision has the potential to make a real difference to women’s ability to return to work after childbirth and to remain in formal employment thereafter.
The critical limitation, however, lies in the threshold. The 50-employee requirement means that the creche obligation does not apply to the vast majority of Indian enterprises, which are small or micro businesses. In a country where 99 per cent of registered companies employ fewer than 100 people, and where many informal workplaces have no fixed establishment at all, the creche provision reaches only a sliver of the women who need it most. The Code’s permission for shared facilities is a pragmatic response to this concern, but unless the government actively promotes and subsidises such arrangements, the provision will remain aspirational for most workers.
3.3 OSHWC Code, 2020: Night Work, Safety, and Dignity
The Occupational Safety, Health and Working Conditions Code makes its most consequential contribution to gender equality through Section 43, which overturns the longstanding prohibition on women working between 7 pm and 6 am. Under the new framework, women may be employed during night hours in any establishment, subject to two conditions: their explicit consent, and the implementation of prescribed safety measures.29 The mandatory safeguards include secure and GPS-tracked transport, adequate lighting across the workplace, CCTV surveillance, the presence of women supervisors during night hours, and compliance by the establishment with the PoSH Act, 2013.3°
This is a genuinely transformative shift. The IT and business process outsourcing sector, the hospitality and aviation industries, the healthcare sector, and the manufacturing sector all rely on night shifts, and the old prohibition had effectively created a two-tier workforce in which women were legally barred from the higher-paying, shift-differential positions available to men. Lifting that bar, while requiring employers to make those positions genuinely safe, is the correct approach: it treats women as autonomous agents capable of making their own decisions about working hours rather than as wards of the State who must be kept indoors after dark.
Section 23 of the OSHWC Code adds a further important protection: it requires separate and adequately maintained washrooms, bathing facilities, and locker rooms for male, female, and transgender employees in all covered establishments.31 The explicit inclusion of transgender employees is consistent with the gender-neutral language of the Code on Wages and reflects a broader legislative shift towards recognising gender identity beyond the binary. Section 43 also removes the earlier blanket prohibition on employing women in hazardous processes, replacing it with a framework of prescribed safeguards that must be implemented before women are deployed in such roles.32
3.4 Industrial Relations Code, 2020: Collective Voice
The Industrial Relations Code does not contain provisions that are specifically directed at gender equality, and this absence is itself noteworthy. The Code consolidates three statutes governing trade unions, industrial disputes, and standing orders, and it strengthens the right to form trade unions and to engage in collective bargaining.33 For women workers, particularly those in informal and low-wage employment, collective bargaining is often the most effective mechanism for securing equal pay in practice, for negotiating flexible working arrangements, and for holding employers accountable for harassment and discrimination. The absence of specific provisions requiring gender representation in union leadership, or mandating that collective agreements include equal pay clauses, represents a missed opportunity.
4. Implementation Mechanisms and Institutional Design
Across all four Codes, enforcement is restructured around an ‘inspector-cum-facilitator’ model that replaces the traditional labour inspector.34 Employers are required to maintain electronic registers and file returns through a unified online portal, intended to reduce the compliance burden and create a digital audit trail.35 The OSHWC Code requires that Internal Complaints Committees mandated under the PoSH Act, 2013 be constituted in all establishments with ten or more employees, and it tasks the inspector-cum-facilitator with verifying compliance with this requirement.36
The penalty structure has been strengthened. Under the Code on Wages, a first offence of gender-based wage discrimination attracts a fine of up to 250,000, compared to the maximum of 210,000 under the Equal Remuneration Act, 1976.37 Repeat offenders face imprisonment of up to three months or a fine of 21,00,000, or both. These enhanced penalties signal a serious legislative intent, but their deterrent effect depends entirely on whether the inspector-cum-facilitator actually investigates and prosecutes violations — something the facilitative philosophy of the model may discourage.
The shift from inspection to facilitation is the single most contested institutional design choice in the Codes. Critics argue, with considerable force, that a system in which the same official is responsible for helping employers understand the law and for penalising them when they break it creates an inherent conflict of interest that will, in practice, resolve in favour of the employer. For gender equality in particular, where violations tend to be informal, under documented, and contested — a woman complaining that she is paid less than her male colleague, a pregnant worker told that her contract will not be renewed, an Internal Complaints Committee that was never actually constituted
proactive inspection rather than passive facilitation is likely to be essential.
5. Judicial Interpretation: Building on Precedent
The Labour Codes do not write on a blank slate. They inherit a body of judicial interpretation developed over decades under the statutes they supersede, and understanding how courts have approached gender equality under the old law is essential to predicting how they will approach it under the new.
The most important wage discrimination precedent is Mackinnon Mackenzie & Co Ltd v Audrey D’Costa, decided by the Supreme Court in 1987. The case arose from the practice of paying female stenographers employed by a shipping company significantly less than their male counterparts for identical work. The employer defended the disparity on the basis of a settlement agreement that had been reached with the union. The Supreme Court rejected this defence, holding that the Equal Remuneration Act, 1976 overrides any contrary contract, settlement, or award.38 The Court also held that an employer cannot escape the equal pay obligation by pointing to historical wage structures that were themselves the product of discrimination.’ This reasoning should apply with equal force under Section 3 of the Code on Wages, 2019, which replaces the Equal Remuneration Act but preserves its core obligations.
On workplace dignity and safety, Vishaka v State of Rajasthan remains the foundational authority. The Supreme Court’s holding that the right to work in an environment free from sexual harassment is a component of the constitutional right to life and personal liberty under Article 21 transformed the legal landscape.4° The OSHWC Code, 2020 cross-references the PoSH Act, 2013, which codified the Vishaka guidelines, and makes compliance with that Act a mandatory component of the safeguards that must be in place before women can be employed on night shifts.41 Courts interpreting the OSHWC Code should therefore treat the Vishaka jurisprudence as directly applicable, and should read the night-shift consent requirement as requiring genuinely informed and freely given consent rather than merely the formal signature of an employee who may have no practical ability to refuse.
6. Patterns of Violation and Ground-Level Challenges
The gap between statutory promise and workplace reality is wide and well-documented. The Periodic Labour Force Survey records a gender pay gap of approximately 28 per cent in regular salaried employment.42 The following patterns of violation recur across sectors and regions.
The most pervasive violation is the evasion of maternity benefit entitlements. Employers particularly in the garment, domestic work, and contract staffing sectors — routinely terminate women’s employment on discovery of pregnancy, or reclassify them as casual or contract workers to take them below the 80-day eligibility threshold under Section 60.43 MSMEs frequently fail to provide creche facilities, citing cost, despite the Code’s provision for shared facilities.44 The result is that women who most need maternity protection — those in low-wage, insecure employment — are least likely to receive it.
Sexual harassment remains systematically underreported and underprosecuted. Research by the Martha Farrell Foundation found that Internal Complaints Committees are either not constituted at all, or are constituted with members who have received no training, who do not include an independent external member as required by the PoSH Act, or who are so closely allied with management as to be incapable of impartial inquiry.’ The result is that women who experience harassment face a choice between suffering in silence and making a complaint to a body they cannot trust, with the knowledge that a formal complaint may result in informal retaliation that the law does not adequately address.
The night-shift consent requirement is vulnerable to a different form of abuse: coercion. Workers who need the income from a particular position, or who fear that refusal will result in their not being offered work at all, are not in a genuine position to give or withhold consent. State rules vary considerably in how they operationalise the consent requirement and the associated safety measures, and monitoring of compliance is weak.46
Perhaps the most structurally significant gap is the exclusion of gig and platform workers from the Codes’ defmition of ’employee’. Chapter IX of the Code on Social Security creates a separate category for gig workers and platform workers and empowers the government to extend certain social security schemes to them, but does not automatically apply maternity benefit or PoSH protections.47 Women who work through platforms providing beauty services, home cleaning, elder care, and food delivery — an increasingly large and predominantly female workforce — are thus left without statutory protection against pregnancy discrimination or sexual harassment, in a sector where both are well-documented problems.
7. Comparative Analysis: Pre-Code and Post-Code Regimes
The table below provides a structured comparison of the key gender equality features of the pre-Code legal regime and the Labour Codes 2019-2020.48
| Feature | Pre-Code Regime | Labour Codes 2019–2020 |
| Coverage | Fragmented; Equal Remuneration Act applied to notified sectors only | Uniform across all establishments; gender-neutral language including transgender persons |
| Night Work | Blanket prohibition for women in factories under Factories Act, 1948, s 66 | Permitted with explicit consent and mandatory safeguards under OSHWC Code, s 43 |
| Maternity Benefit | 12 weeks originally; 26 weeks from 2017 amendment; biological mothers only | 26 weeks retained; extended to adoptive and commissioning mothers for 12 weeks |
| Creche | Required for establishments with 30+ workers under 2017 amendment | Required for establishments with 50+ workers; common facilities permitted |
| Enforcement | Labour inspectors with right of entry; paper records | Inspector-cum-facilitator; digital self-certification and electronic records |
| Penalties | ₹10,000 or 1 month imprisonment under Equal Remuneration Act, 1976 | Up to ₹50,000 (first offence); repeat offences: 3 months imprisonment or ₹1,00,000 |
| Transgender Inclusion | No express provision; binary ‘men and women’ language | Gender-neutral language; explicit coverage under Code on Wages, s 3 |
The table reveals a pattern of genuine formal advance accompanied by substantive uncertainty. Broader coverage on paper does not automatically translate into protection in practice. The reduction of the creche threshold from 30 to 50 employees (a change that has attracted less attention than it deserves) actually represents a regression for workers in the 30-to-49-employee band who previously had a creche entitlement and now do not.
8. Social Impact of the New Provisions
It would be unfair to dismiss the Codes’ gender provisions as merely cosmetic. The lifting of the night-work prohibition has already had observable effects in sectors where women previously could not access premium shifts.49 In the IT and business process outsourcing sector, where night-shift differentials can represent 20 to 40 per cent of base pay, the removal of the legal bar has allowed women to access positions from which they were previously excluded by law rather than by choice or capability. In the hospitality and aviation sectors, women are now able to access a full range of roles across all shift patterns.
The 26-week maternity benefit has contributed to improved retention rates among women in formal employment, though the evidence is complicated by the finding that some employers — particularly in the MSME sector — have responded by becoming more reluctant to hire women of childbearing age in the first place.50 This is a well-documented paradox of maternity protection: the more generous the leave entitlement and the more it is borne exclusively by employers rather than shared with the state, the greater the fmancial incentive for employers to avoid hiring women. A shift to a socialised model in which maternity costs are pooled through social insurance rather than borne by individual employers would address this perverse dynamic, but the Codes do not move in this direction.
The inclusion of transgender persons in the equal pay and anti-discrimination provisions of Section 3 of the Code on Wages51 is symbolically and practically important. It brings labour law into alignment with the Transgender Persons (Protection of Rights) Act, 2019 and signals a legislative commitment to non-binary conceptions of gender. Whether this inclusive language will be backed by enforcement remains to be seen, but it provides a legal hook that activists and litigants can use.
What the Codes do not address is perhaps more important than what they do. The distribution of unpaid care work — cooking, cleaning, childcare, elder care — remains overwhelmingly female in India, and this asymmetry drives every other dimension of gender inequality in the labour market. Women are less likely to be in paid work at all, more likely to work part-time, more likely to take career breaks, and more likely to accept lower pay in exchange for proximity to home, precisely because they bear the bulk of unpaid care responsibilities. The Codes are entirely silent on this structural issue. There is no provision for paternity leave, no mechanism for flexible working arrangements, and no acknowledgment that equalising labour market outcomes requires redistributing care work as well as eliminating overt discrimination.
9. Implementation Challenges and Structural Critique
The most fundamental challenge facing the Codes is the gap between awareness and entitlement. Rights that workers do not know they have are rights that employers need not respect. The vast majority of women in the unorganised sector have no awareness of Section 3 of the Code on Wages or Section 60 of the Code on Social Security, and the Codes contain no provision for systematic public information campaigns or worker education programmes.52
The shift from inspection to facilitation compounds this problem. Where traditional labour inspectors had a mandate to investigate workplaces proactively and penalise violations, inspector-cum-facilitators are oriented towards helping employers understand and achieve compliance.53 For employers who have no intention of complying — who are actively suppressing women’s wages, denying maternity benefits, or tolerating harassment — a facilitator who arrives to explain the law is not a deterrent. Genuine deterrence requires credible investigation, visible prosecution, and meaningful penalties.
The exclusion of domestic workers from the Codes’ protective framework is a particularly acute problem for gender equality. Domestic workers — predominantly women, often Dalit women, frequently migrants from other states — represent one of the largest categories of female paid employment in India. Section 109 of the Code on Social Security empowers the government to extend protections to domestic workers by notification,54 but no such notification has yet been issued. These workers therefore continue without maternity benefit, without creche entitlement, without PoSH protection, and without the equal pay guarantee, in a sector characterised by power asymmetry, physical isolation, and severe enforcement challenges.
10. Recommendations
The following recommendations are offered with the aim of moving the Labour Codes from formal to substantive gender equality.
First, the central government should urgently notify uniform national rules under Section 43 of the OSHWC Code prescribing minimum standards for night-shift safety.55 These standards should include mandatory GPS-tracked transport from the workplace to the employee’s home, 24-hour CCTV monitoring with third-party storage of footage, emergency response protocols, and mandatory annual compliance audits by the Labour Bureau. The variation between State rules that currently exists creates arbitrage opportunities for employers to locate facilities in States with weaker standards.
Second, India should ratify ILO Convention No 190 on Violence and Harassment, which provides a comprehensive international framework for eliminating violence and harassment in the world of work, including gender-based violence.56 Ratification would require domestic law reform to align with Convention 190’s broader definition of violence and harassment, which extends beyond the PoSH Act’s current focus on sexual harassment to encompass physical, psychological, and economic forms of gender-based harm at work.
Third, the maternity benefit and creche entitlements should be extended to establishments with ten or more employees, eliminating the exclusion of workers in small businesses who are currently outside the scope of these provisions. The cost implications for small employers should be addressed through the creation of a national Maternity Benefit Fund to which employers contribute and from which benefits are paid, removing the per-pregnancy financial liability that currently incentivises discrimination in hiring.
Fourth, the Industrial Relations Code should be amended to require that collective agreements include a gender pay audit clause, and that trade unions must demonstrate gender-representative membership and leadership in order to be registered. These measures would give collective bargaining a specific gender equality function rather than leaving it as an indirect mechanism.
Fifth, the definition of ‘worker’ or ’employee’ for the purposes of maternity benefit and PoSH should be extended to include gig and platform workers. This would require amending Chapter IX of the Code on Social Security and the PoSH Act, but the extension is both legally feasible and practically urgent given the rapid growth of platform work among women in India.
Sixth, a statutory framework for paternity leave should be introduced, requiring all employers to provide a minimum of four weeks of paid paternity leave. This is not merely a benefit for fathers; it is an equality measure for mothers, because leave entitlements that are available only to women reinforce the social expectation that childcare is primarily a female responsibility and make women more expensive to employ.
11. Conclusion
The Labour Codes represent a genuine legislative achievement. They consolidate a fragmented legal landscape, modernise compliance mechanisms, extend maternity protection to new categories of mothers, remove anachronistic prohibitions on women’s night work, and use gender-neutral language that recognises the diversity of gender identity. These are not trivial advances. For a woman working a night shift in a call centre in Bengaluru, or an adoptive mother claiming maternity benefit for the first time, or a transgender employee invoking the equal pay guarantee of Section 3, the Codes make a real difference.
But the gap between formal and substantive equality remains large, and it will not be closed by legislative text alone. The shift to facilitative enforcement, the exclusion of domestic and gig workers from the core protections, the silence on unpaid care work and paternity leave, the creche threshold that leaves small enterprise workers unprotected, and the absence of any mechanism for job evaluation or comparative worth analysis all represent points at which the Codes fall short of what a genuinely transformative legal framework for gender equality would require.
The judiciary, which has historically played an outsize role in expanding the content of gender equality norms in India — from Mackinnon Mackenzie’ s expansive reading of equal pay to Vishaka’ s foundational articulation of the right to work with dignity — will continue to be essential. Courts interpreting the Codes should read them in light of the constitutional provisions in Articles 14, 15, 39(d), and 42, in light of ILO Conventions 100 and 111, and in light of the progressive purposes that Parliament expressed in enacting them.
Ultimately, however, legislative reform and judicial interpretation can only do so much. Substantive gender equality in the workplace requires a broader social transformation: in the distribution of care work within households, in the cultural norms that treat women’s earnings as supplementary rather than primary, in the social infrastructure of childcare and elder care that enables women to participate fully in paid work, and in the political will to enforce the law rigorously rather than facilitate around it. The Labour Codes are a necessary but not sufficient condition for that transformation. The work of making them sufficient has barely begun.
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TaxGuru, ‘Code on Wages 2019: A Step Towards Women Empowerment’ (2021). TaxGuru, ‘Code on Wages 2019: Gender Inclusive Employment Policies’ (2023). TaxGuru, ‘Equal Pay for Equal Work: Impact of Code on Wages Act, 2019’ (2023). TaxGuru, ‘Gender Equality at Work: Understanding Equal Remuneration Act’ (2023). Taxmann, ‘Analysis: The Code on Social Security 2020’ (2023).
Notes:-
1Sandra Fredman, Discrimination Law (2nd edn, OUP 2011) 14.
2ILO, ABC of Women Workers’ Rights and Gender Equality (2nd edn, ILO 2007) 1.
3Ministry of Statistics and Programme Implementation, Periodic Labour Force Survey 2022-23 (2023) Table 33.
4ibid Table 35.
5Factories Act 1948, s 66(1)(b).
6Equa1 Remuneration Act 1976, s 4.
7Mackum. on Mackenzie & Co Ltd v Audrey D’Costa 2 SCC 469, 476.
8Maternity Benefit Act 1961, s 5 as amended by Act 6 of 2017.
9Vishaka v State of Rajasthan AIR 1997 SC 3011; (1997) 6 SCC 241.
10Government of India, Report of the Second National Commission on Labour (2002) vol 10, ch 6.
11Ministry of Labour and Employment, ‘Labour Codes’ Press Release (28 September 2020).
12Code on Wages 2019, ss 9, 51, 54.
13Frontline, ‘Are Night Shifts Safe for Women? Labour Experts Raise Alarm’ (2023).
14ibid.
15Code on Social Security 2020, s 109; s 2(86) defines ‘unorganised worker’ but domestic workers require notification.
16Constitution of India 1950, art 15(3).
17Constitution of India 1950, arts 39(a), 39(d), 42.
18ILO Convention No 100, Equal Remuneration Convention, 1951.
19ILO Convention No 111, Discrimination (Employment and Occupation) Convention, 1958.
20Mackinnon Mackenzie & Co Ltd v Audrey D’Costa 2 SCC 469, 476.
21Code on Wages 2019, s 3(1).
22Code on Wages 2019, s 3(2).
23TaxGuru, ‘Code on Wages 2019: Gender Inclusive Employment Policies’ (2023).
24Code on Wages 2019, s 42; TaxGuru, Wage Code, 2019: A Step Towards Women Empowerment’ (2021).
25Code on Social Security 2020, s 60(1), (3).
26Code on Social Security 2020, s 60 proviso.
27Code on Social Security 2020, s 60; India Briefing, ‘India’s Social Security Code 2020’ (2023).
28Economic Times, ‘Social Security Code: Focus on childcare benefits’ (5 January 2026); Code on Social Security 2020, s 67.
29Occupational Safety, Health and Working Conditions Code 2020, s 43.
30OSHWC Code 2020, s 43; Bhatt & Joshi Associates, ‘Women’s Employment: Night Shift Provisions’ (2023).
31OSHWC Code 2020, s 23.
32OSHWC Code 2020, s 43; Mondaq, ‘Code On Occupational Safety, Health And Working Conditions, 2020’ (2020).
33Industrial Relations Code 2020, ch III.
34Code on Wages 2019, s 51.
35Code on Wages 2019, s 9; TaxGuru, ‘Code on Wages 2019’ (2023).
36OSHWC Code 2020, s 43.
37Code on Wages 2019, s 54; TaxGuru, ‘Code on Wages 2019: A Comprehensive Comparison’ (2023).
38Mackinnon Mackenzie & Co Ltd v Audrey D’Costa 2 SCC 469, 480.
39ibid 480.
40Vishaka v State of Rajasthan AIR 1997 SC 3011; (1997) 6 SCC 241.
410SHWC Code 2020, s 43.
42Ministry of Statistics and Programme Implementation, Periodic Labour Force Survey 2022-23 (2023) Table 35.
43Code on Social Security 2020, s 60(2).
44Economic Times, ‘Social Security Code: Focus on childcare benefits’ (5 January 2026).
45Martha Farrell Foundation, ‘Status of PoSH Compliance in India’ (2022).
46Frontline, ‘Are Night Shifts Safe for Women? Labour Experts Raise Alarm’ (2023).
47Code on Social Security 2020, ch IX; Taxmann, ‘Analysis: The Code on Social Security 2020’ (2023).
48TaxGuru, ‘Equal Pay for Equal Work: Impact of Code on Wages Act, 2019’ (2023).
49ETNow, ‘New Labour Laws in India: Good news for women workers’ (2023).
50. ILO, ‘Maternity Protection in SMEs: An International Review’ (2018).
51Code on Wages 2019, s 3.
52TaxGuru, ‘Gender Equality at Work: Understanding Equal Remuneration Act’ (2023).
53TaxGuru, ‘Equal Pay for Equal Work: Impact of Code on Wages Act, 2019’ (2023).
54Code on Social Security 2020, s 109 excludes domestic workers unless notified.
55OSHWC Code 2020, s 43.
56ILO Convention No 190, Violence and Harassment Convention, 2019.
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