The constitution of India was framed in the year 1946 by the constituent
assembly. Cabinet mission plan (1946) lay down the foundation of the Lengthiest,
rigid simultaneously flexible constitution which was a huge achievement for the
framers of the constitution.
The major policy objectives and priorities painted in the constitution are well
stated in the preamble of the constitution briefly found at the beginning of the
constitution of the Union of India. The preamble has prime significance as it
lays down the ends and aims which are to be achieved in the social-economic
subject without any hindrance or delay in achieving the same. Rights, liberties,
duties, responsibilities concerning a citizen of India are well mentioned in the
constitution of India.
Ways of justice have been elaborated which ensures
equality amongst all without any kind of discrimination. In fact, the rights and
the remedies are not only available to the citizen of India but also to the
foreigners who claim to be doing a job, business or tourist and are within the
territory of India.
The governance structure and principles to be followed and respected with
respect to India are briefly elaborated in the Directive Principles of State
Policy which are enshrined in Part IV of the Indian constitution. It aims at
achieving the set objectives in a civil and idealistic manner. At the time of
framing the policies and laws, there are more or less explained guidelines that
needed to be levied and adhered to. Merely forming up policies isn't enough as
the extent of its enforcement also matters. All the aspects covered under the
DPSP are relevant to the Indian context. The objective stated in the concept of
equal pay for equal work holds the same fate as the other mentioned DPSPs.
Significance of the concept of equal remuneration is never hidden and has always
been a major point of discussion which requires amendments as per the changing
working conditions and the uncertainty while determining the capacity of an
individual to work in the prescribed period of time simultaneously applying fair
mind while determining the wages to be given to each as the work nature might
differ but efforts can and has to be same for becoming entitled for the equal
pay if the work allotted is of similar nature.
Equivalent Pay for Equal Work is a global development at huge level with the
1951 UN Convention concerning Equal Remuneration expressing that the guideline
of equal remuneration is to be applied to people for work of equivalent esteem
and can likewise be found in the International Covenant on the social, economic
and the cultural rights.
Remuneration is defined under section 2(g) of equal remuneration act 1976 which
defined it as any kind of pay or salary which can be cash or any other form,
paid to worker or employee who is employed for work in any factory or
establishment under the contract.
Equal Remuneration Act 1976
From ancient times we have observed that women have very low status in society
and men also rule over women. Even the working area is not prevented by this
oppression where even the woman works equally to the man but still end up
getting paid less than man. By the growing contribution of women in the
industries, it was realized that there should be the law that should prevent a
woman from such discrimination at their working place.
It came to the notice of
legislature and hence they enacted the law of equal remuneration which was
passed by parliament in 1976 which was enacted to pay equally for the equal
amount of work irrespective of their gender. This act intends to bring equality
in pay and prevent discrimination in a matter like transfer, promotion, and
training of female workers.
The major objective of the act is to prevent discrimination against females in
the matter of pay or incidental thereto and that is the reason for enforcing
this law as the central act which has applicability all over India. All matters
related to this act will be taken up to the appropriate authority who is the
Central government that is entrusted with the protection of discrimination.
Chief Labor Commissioner (Central) heads the Central Industrial Relations
Machinery (CIRM) who further appoints the Labor Enforcement Officers.
appointed officers work as inspectors who inspect the production and
remuneration registers of the industries on the direction of the appropriate
government. For ensuring that the policy of 'equal pay' has been followed by
factories, it is mandatory on the part of the employer to maintain the register
where the pay/ salary of every worker with the amount of work which can be in a
number of hours, will be clearly mentioned which should be in prescribed form
Inspectors shall also have the power to enter into any premises for the purpose
of inspection and to inspect any book of accounts that has the remuneration
details. He can seek evidence from any person from whom he believes to be
acquainted with evidence. apart from this, the central government will also
appoint officers above the rank of labor officer who will entertain the claim of
the parties ad settle the dispute between employer and employee if arises.
It is mandatory for every worker to follow the rule of 'equal pay' and whoever
violates it, will be punishable under section 10 of the equal remuneration act
1976 which states the punishment for one month or fine up to Rs. 10,000 or both
for the employer who discriminated against the worker on the ground of sex.
It is inferred from circumstances that this act has no absolute applicability
and thus constitutes the exceptional situation where there can be discrimination
on the pay of the workers. The difference can be because of the seniority
factor, productivity system or, any other merit factor [i] which should not be
linked to the gender of the worker.
If an employer is accused in the matter of
discrimination in the pay of workers then he can defend himself by stating the
evidence and reason for the discrimination in his way and to satisfy the jury
that the discrimination is not merely based on gender. The disparities between
the remuneration of the worker may be related to the job like if the employee
has additional education or training, has more experience in the field, extra
work done by him including nights or any other excellent skills which make him
an extraordinary employee and the discrimination on these factors will not be
covered under the respective act as there is sufficient reason and the
discrimination is just and fair.
Constitutionality Of Right
Equal pay for equal work is not a fundamental right neither it is a
constitutional right but by many judgments, the court established that by
interpretation of article 14, 15, and 16 of the constitution of India 1950 which
are fundamental rights, it can be inferred that equal pay for equal work is also
constitutional right for every person as no one can be discriminated on the
ground of gender and for this protection, parliament enacted the equal
remuneration act 1976. This policy is based on Article 39 of the Indian
constitution which mentioned that states are duty-bound to enact policy for
ensuring equal pay for equal work.
It was the first time when court constituted that there will be a policy on
article 39(d) of the Indian constitution which is a DPSP which is generally not
enforceable by law but still executive played a role under article 39 and
enacted a policy for equal pay, under the case of Kishori Mohanlal Bakshi vs.
Union of India
This was not enough as the court doesn't enforce the
rule of 'equal pay for equal work' and hence in 1982 in the case of Randhir
Singh v. Union of India
, the apex court held that the court can enforce this
policy as it is based on article 14 and 16 of the Indian constitution which
states that equality is a fundamental right and remedy can be sought under
article 32 of Indian constitution.
Moreover in the case of State Of Punjab And
Ors v Jagjit Singh and Ors
, justice J S Khehar and SA Bobde extended the
applicability of the policy to the casual workers and daily wagers who mostly
face discrimination in the pay even if they work equal to the permanent workers.
Code Of Wages 2019
Code of wages acts 2019 repealed the Equal Remuneration Act and rather than
describing the rights and duties of women separately, this code has
applicability on both men and women equally. [ii]
Code of wages 2019 has wider coverage than the equal remuneration act as it not
only covers the aspect of gender discrimination but also prevents discrimination
based on caste. It extends its arm to provide the benefit of equal pay to
transgender who is exploited more than a woman in society. Today, the law is
doing a lot to help grow the of transgender.
Earlier in the old act, the government was authorized to declare the unequal as
equals and for that declaration, they were not bound to give any reason or
support their decision with an explanation. This was the presumptive proof that
was not serving good results. Hence section 16 of the equal remuneration act was
done away with the code of wages act 2019 as per the case of Air India Etc. Etc vs Nergesh Meerza & Ors
Challenge For Constitution And Test For Judiciary:
The constitution of India always had a challenge in formulating the laws and
policies as India is a huge country with a vast number of diversities existing
with different mindsets and believes. However, the existence of political,
social and economic and gender gaps makes the situation even worse for the
framers of the constitution and the judiciary as they have the responsibility to
respect the rights and sentiments of every individual who represents certain
religion, caste, and gender.
With regards to the profound influence this topic
has in the minds of policymakers and the citizens, therefore, lawmakers and the
courts have time and again interpreted the meaning of the term " equal
remuneration" from a different angle as it can be well envisaged that payment
made for equal work cannot be different. Article 39(d) of the Indian
constitution states the principle i.e. Equal Pay for Equal Work.
is not merely enshrined in the constitution rather strictly adhered in the
day-to-day governance of the country. Indian courts and political leaders have
ensured effective implementation of the policies and the principles of national
With time, the right to get equal wages for equal work has proved
not only the constitutional right but has a higher value and is said to be a
constitutional ultimate goal that has a significant role to attain a democratic
approach and practicing equal treatment In its true and practical sense.
Enforcement of articles 14 to 18 in the Indian constitution is the evidence
stating the importance of equal treatment that has only become possible with the
consistent and constant efforts of the government in ensuring no one violates
the law and disrespects its principles.
In India, to date equal and open pay policy is struggling to get recognition in
becoming more active in the economic sectors of the country. The issue in recent
times is directly related to the future of India which might lead to uncertainty
and disturbance where people would be revolting for the equal payment of
salaries for equal work done.
Even after the existence of concrete laws and
principles been engraved in the constitution the call for ending this
discrimination is suffering to achieve success at the pace desired as gender and
pay inequality is persisting across wide regions of nation causing a threat to
the violation of the article 39(d) of the Indian constitution.
Drawbacks In The Current Law And Governance System:
The goal of the lawmaking body while making laws to convey forward the tenet of
'equivalent wage for equivalent work' was respectable without a doubt however
current insights have demonstrated that the gender orientation pay drawback is
lessening yet not up to the norms of the rest of the world. Even though the Code
on Wages was made to achieve more tough measures to overcome this issue, the
actual law isn't satisfactory and has specific defects and botched freedoms
Although this Code has discarded the parallel arrangement of sex to
incorporate individuals of each sex, it hasn't resolved an issue that India was
looking for seemingly forever. Sex-based prejudice, notwithstanding being a
critical component of this Code, break down to address another social class
while attempting to resolve the issue of equal pay linking to the lower
communities or castes.
Generally, in free working environments all over India,
the work done by individuals of specific ranks considered generally low has been
underestimated. I accept that it is a botched chance of sorts where the law
could be better used to dispose of more up-to-date types of caste and gender
discrimination, particularly in the working environment alongside achieving the
balance of payment of wages between all the genders.
Interpretation of law by the courts is criticized on numerous occasions and the
power of the court to decide the matter without anybody questioning is
challenged many times in the form of appeal and petitions which ends up piling
up because the court procedure is time taking.  The code on wages states,
employers, pay an equal amount of wages to the employees who have the same job
and similar work nature to do within a similar time duration.
explanation has been interpreted in a cramped manner by the courts as a
consequence of which the broad aspects of the definition are missed several
times leading to an existing lacuna stuck in the judiciary system of the
country. The idealistic and imaginative approach must be replaced with a
realistic approach in the current scenario where it is often seen that the work
assigned requires an equal and same degree of skills and experiences however the
nature of the work and duties allotted might differ no matter which gender is
playing which role.
For instance, a man working outside the house in a
factory putting his physical strength in his job simultaneously women working in
the daycare center involved in the care and protection of children, here both
the gender are performing equal work requiring equal hard work and degree of
excellence in their respective fields while at the same time skills they use for
doing their work are altogether different.
So the degree and work experience
have to be considered while determining the wages rather than focussing on the
place and the kind of work performed. Traditional devaluation must be eliminated
from society and wider interpretation will help in the determination of wages in
different sectors and establishments.
The lacuna of unequal pay between male and female e in India is very
inauspicious with ladies who are working and earning, with an average of 19% not
as much as men, who are acquiring 46.19 rupees more than ladies, considering
each hour wages. India positions 112th in the Global Gender Gap Ranking starting
in the year 2019 with a descending pattern after slipping 4 places when
contrasted with the past year.
Notwithstanding the sex wage disparity, India is
additionally confronting a gigantic pay gap among coordinated and unorganized
sectors, country and metropolitan regions, constant and daily wage workers. Even
though the per capita pay in India has improved impressively, it has appeared to
have an insignificant impact on the sexual orientation pay gap.
The rise of unfair rates in the present scenario has resulted in boosting the
pay gap in the economy. This has become a major matter of concern as instances
can be seen where the disparity occurs between employees and workers in the same
workplace doing the same job on the same position.
Exceptions to the principle of - EQUAL PAY FOR EQUAL WORK:
Nothing in this world is as flawless and accurate as every law. Provision,
principle, belief have some of the other exceptions present deep inside which
can never be denied or neglected. Absolute right is a myth as every right
has limitations up to certain boundaries which have to be abided by the common
As time passed, these exceptions changed and evolved differently with
every case law as it has to be interpreted distinctly by applying the judicial
mind with an ultimate objective to administer justice. The alterations and
amendments are the results of a sequence of advancements as the exceptions
develop with time and are not expressly embedded anywhere in the constitutional
texts. As per believes of people, such instances where the law is altered or
denied is considered as a law having distinct properties which may not be called
exceptions in its actual symbolization.
In the landmark case of F.A.I.C and C.E.S. v. Association of India
, the Supreme
Court of India held that distinctive pay scales can be made stable for
government workers holding the same post and performing indistinguishable work
based on the contrast in the level of liability, dependability, secrecy. Later
on, the court additionally said that equivalent payment relies upon the idea of
work done and not the trivial amount of work. There might be subjective
contrasts as respects unwavering quality and obligation.
In the case of Mewa Ram v. A.I.I.M.S
, Supreme Court held that if the obligations
and capacities are alike however if academic qualification recommended for the
two posts are dissimilar and there is a distinction in a proportion of
liabilities, the guideline of equivalent pay for equivalent work would not make
a difference. In this manner, disparate payments can be given to Hearing
Therapists and Audiologists in A.I.I.M.S because of distinction in instructive
India is a country that has experienced colossal separation beginning of the
time from Britishers, then, at that point, the male during the period of
pre-independence that practiced bigotry against the opposite sex based on their
birth and gender which depressingly expanded post-independence period cornering
the women resulted in an escalation in bigotry. it can be well noticed that the
condition of different sexes of LGBT community population is agonizing even
after the courts had declared them to be one of the respected gender and
community who should not suffer in any field and is held to be equal to the
other two genders as they are still considered a sin to the human survival and
termed as taboo for various reasons. This discrimination enlarges the gap
between different genders leading to an unjust society to live in.
In any case thereof, we are secured in light of the designers of our Indian
Constitution who outlined it in a manner so that the inherent rights can be well
safeguarded and ensured and each individual no matter male or female who is
working with same characteristics, skills, qualities, effectiveness would be
paid similarly regardless of their sex, race, sex, religion, caste and
It is additionally significant on the part of the law and governance of the
country producing effective and timely amendments when required that are
presently not in standard with the current situation and sanctions increasingly
more just and fair laws to forestall sexism and discrimination.
What's more, appropriate cures ought to be given to individuals who are
influenced by this sex hole infection so that individuals would trust our
administration system, legitimate redressal framework should be there or they
would feel vulnerable because destitute individuals as of now have very little
cash and bonafide authority with them.
Likewise these days, there are reports and signs are depicting that sexual
discrimination crack is presently diminishing and that the social evil is
eliminated at an impressing and desirable rate, therefore, setting one's heart
on and one ought to be glad for it.
- This paper has been written by Amisha Gupta and Dhruv Kumar. The Authors
are students at The University of petroleum and energy studies, Dehradun
pursuing their BBA LLB Hons corporate laws.
- Civil Appeal No 213 OF 2013
- 1981 AIR 1829, 1982 SCR (1) 438
- Dhruv Kumar, Fourth Year, University Of Petroleum And Energy
Ph No: 9587747972, LinkedIn Profile Link: linkedin.com/in/dhruv-kumar-110510198
- Amisha Gupta, Fourth Year, University Of Petroleum And Energy
Ph No: 9215204121, LinkedIn Profile Link: linkedin.com/in/amisha-gupta-90834b194