These, and a few more questions regarding gender equality in the right to livelihood - recognised as a fundamental right - are being asked in a petition filed by a woman's organisation in the Bombay High Court.Adarsh Hitvardhak Mahila Mandal has challenged the validity of section 66 (1) (b) of the Factories Act, 1948 - which is a Central legislation - wherein a woman is prohibited from working in the third shift between 10 pm and 5 am. The petition is aimed mainly at the electronics units of Santacruz Electronics Export Processing Zone (SEEPZ) where women are trained in the mechanical work of assembling computer peripherals, soldering, winding, inspection etc in the 100 per cent exportoriented units.

While SEEPZ does employ a large female workforce, more women who could be employed are being turned back simply because the employers are unable to operate a third shift due to the restrictions of law.

The numbers involved are big. Around 25,000 women are already employed in SEEPZ. If another shift were to be allowed, it would be an employment opportunity for around 12,000 more women.

The restrictions on women working in a third shift stems from a Royal Commission of Labour as ancient as 1931, where the Commission reported that the maximum hours of a woman's work should be lower than that of men because ``women have domestic duties to perform...'' where long hours could be a strain. Consonant with this view, section 66 (1) (b) of the Factories Act, 1948 further specified that women should not be allowed to work in factories except between the hours of 6 am and 7 pm. While the fish curing and fish canning industry has been exempted from this clause because of the perishable nature of theproduct, a state notification of 1978 has only relaxed restrictions for women in SEEPZ allowing them to work from 5 am to 10 pm. The employers in SEEPZ have however to provide transport facilities for their women workers.

The petitioners have argued that if women can be allowed to work in the third shift in the police and defence services, the hotels and the airlines businesses, the prohibition in this clause is violative of Article 15 (1) of the Constitution which prohibits the state from discriminating on the grounds of sex. The choice of working during the night shift should be left to the women concerned, it has argued.

In his submissions before the division bench of the Chief Justice Y K Sabharwal and Justice A P Shah, senior advocate K K Venugopal, who was assisted by Meenakshi Arora and Haresh Metha, argued for the petitioners that in the shift beginning from 5 am, women risked travelling at 4 in the morning. Were the shift to begin from 10 pm to 6 am, this danger eases out. With transportfacilities being provided, the women are protected to that extent, he said.

``In the 21st century, where women are on an equal basis to men, it would be cruel to take away their right to livelihood,'' he said. He informed that the Madras High Court, having admitted the case of JTS Technology Ltd (1998) and two others, had already stayed the operation of the section of the Act.However, additional solicitor - general of India, D Y Chandrachud argued that the section was the result of a social welfare legislation. ``It is not just talking of SEEPZ, or even Maharashtra or Mumbai, but the entire unorganised market place,'' he said. Chandrachud claimed that the exemption of the clause for the fish industry has led to ``the gravest of abuses'' of women workers, especially in the Thane industrial belt and asked for more time from the court.

The petition is now posted for hearing on March 16.