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Women Have The Right To Equal Payment

"There is no tool for development more effective than the empowerment of women"

Women are the headway to empower and strengthen the development of any State while the patriarchy society thinks women to be extremely weak and incapable of any hardship for which this misconception has been overwhelming the mindsets of the people of the society from the time immemorial.

The presence of sexual discrimination has innumerable variations where men are the superiors and have potentiality and competency whereas women are seen as incapable and incompetent compared to men so, the concept of Right to equal pay was focused under article 39(d) of The Indian constitution which means every woman should also be paid equal to what men are getting paid in different commercial sectors and this concept has been very important aspect for women empowerment.

The focus now shifts on to the various National organizations that have noticed and claimed that women are paid only 77percent of what men are getting paid. And so, to eradicate this form of sexual discrimination various steps and movements have been initiated which has slowly but changing the mindsets of the people in the 21st century.

Equal pay for equal work is the concept that mentions about the labor rights as how the individuals of any profession in the same workplace be given equal pay. It is preliminarily used in the context of sexual discrimination, in relation to the Gender Pay gap.

Gender Pay gap in India has been concerned with earnings between women and men in the various paid employment and labor market, as it is conspicuous that women have a frail and irregular reputation in the society from very ancient times which still has grave impact now. We know that there are 4 main periods in history namely the Ancient Period and early where women were treated equal to men in terms of all aspects of life.

In Medieval period (700 and 1857) due to involvement of various Muslim rules in this period various positions of women in the society started to slowly change where people eventually invented or discovered various evil practices like Jahaur, Hijab or Purdah System and it was believed that women are not eligible to any hardship and they are to be kept hidden from the other male member other than her husband to keep herself pious so, earning and having equal status was yet very far gone concept.

Whereas in British rule (AD 1857- 1947) many new evils of the society against women were taken forward like the sati system, lack of education and lack of opportunities for women to work though many reformers initiated to take a stand for women to empower and encourage their existence.

While Post Independence (1947- present) in initials of the independence it was hard for the leaders and the framers of the Constitution of the state to control the position of India in every field, but they never lost the sense of concern for the development of women in the society. Later, women have served at the heads of the states and have started a collective sense of importance to education and opportunities at various job levels.

The female labour participation rate in India from 1901 to 1951 was between 28 and 34%, which is higher than the level of participation observed in 1990. This rate can be varied from state to state and region to region as it was noticed that women living in Northern India have low participation rates in terms of working and jobs compared to Southern part of India where women are empowered. And in the reports of 2013 the Gender pay Gap in India was estimated and analysed to be 24.81%. More distinctly it was observed later that India was bottomed at the least 10 in the list of female participation in the economy around the globe.

In the modern world, we consider that the position of women has been a little progressive, but the table is yet to turn, and women have miles to go to reach the peak to prove their worth to the patriarchal society and the dim view of the people around. The Indian constitution firstly and secondly the various National organizations, protests, movements, and NGOs have initiated role of superheroes with no capes who always come up to the rescue for women and take a stand for their empowerment and fight against all the evils of the society discouraging and underestimating women to reach the peak.

Many more measures, laws and regulations have been initiated and inserted in the various rule books to empower and encourage women to grow and to change their position in the society and take a huge step towards development because empowering women and proper establishment of equality among people are the features and a great initiative towards development, development of the minds of the people will literally affect the development of the society which will eventually hit the progress in development of the State.

Laws supervising the pay incongruity in India

The constitution of India is the supreme law book which governs the whole of the state, and no one is above it. And the framers of the constitution struggled a lot to put up the perfect combos of all ingredients to a best constitution; many ideas were taken up from different countries to mould it to make a perfect one. So, while framing the framers have distinctly looked after the condition of women and have introduced article 15 of the Constitution which prohibits discrimination in the grounds of caste, sex, creed, religion, race, or birthplace.

Article 15(3) which states that nothing shall prevent from making laws for women and children this declares special provisions for women. And Article 16 provides equal opportunity provide to all in the matters of public employment irrespective of sex, caste, creed etc. To this, the 74th amendment was made for the reservations of the women in the panchayat.

Article 19 states that the citizens have freedom to carry any profession or job irrespective of any caste, creed, or sex. Article 39 (d) talks about adequacy of securing means of livelihood equally for both men and women, and to forward the concept of equal pay for equal work among men and women and the principle of ILO (International Labour Organization) was incorporated under this article.

In C.B. Muthamma vs. Union of India (Air 1868 Scc 940 260) is stated that the validity of Indian Foreign Service (Conduct and Discipline) Rules of 1961 was challenged which stated a women employee or worker to take written permission from the government before her marriage is duly performed and or any time after her marriage the women worker had to resign from the service. However, this was held unconstitutional by the Supreme Court because this was discriminatory against women.

In the B. Shah vs. P.O. in the [AIR 1978 SC12] case it was held that 100% wages should be provided for all days of leave and benefits of Sunday and rest days as wages were being paid for actual number of working days missed.

Air India vs. Nargesh Mirza [AIR 1981 sc 1829] in this case the Supreme Court struck down the rule of termination of work of an air hostess on her first pregnancy as it is contrary to the rules of constitution.

Few Legislations introduced for women are Factories Act, 1948 was introduced for labor's welfare, health, working hours and safety especially for women labors. Many provisions are added for their benefit.

The 'Employees' State Insurance Act, 1948 is one of the most important social legislations in India; the women workers get various kinds of benefits.
And then the Maternity Benefit Act, 1961 numbers of maternal benefits were given to women during her pregnancy.

The most important Act, the Equal Remuneration Act, 1961, which proposes the purpose of equal pay to equal work to both men and women at work. This act was introduced because people in our society thought that women are physically weak so they should get paid less, so to interrupt these kinds of mentality in the society and to make sure no women is deprived of her rights.

Kishori Mohanlal Bakshi vs. Union of India (1962) in this case the Supreme Court declared that the principle of equal pay to equal work was declared incapable of being brought into force in the court of law. Though later in the case of Mackinnon Mackenzie Co. Ltd. vs. Audrey D'Costa and other [AIR1987 SCC (2)469] this case was about equal remuneration, The Supreme Court under this updated the lower court's decision in regard with the respondent's support and stated repulsion against the work of the female stenographers was different just because they worked in different places and worked confidentially.

Whether the women work confidentially or not they are not deprived of their right to equal remuneration and hence the court was in favour of the respondent stating women are neither specially qualified to be confidential stenographer nor disqualified based on sex to do the work assigned to the male stenographers. And even though the women are appointed as confidential stenographers, they shall not be denied equal remuneration under the Equal Remuneration Act of 1976.

Further, The Supreme Court has given a judgement based on The Equality Act, 2010 in the case of State of Punjab and Ors. v. Jagjit Singh and ors where it was held that any employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities and certainly not in a welfare state.

The concept of equal pay is governed under the Equality Act of 2010 which gives a right to equal pay between women and men for equal amount of work done. This covers every individual in the same employment and includes equality in pay and all other contractual terms.

The provision in the Act states that the right of women and men to receive equal pay for equal work applies to:
  • all employees (including apprentices and those working from home), whether on full-time, part-time, casual, or temporary contracts, regardless of length of service,
  • other workers (example: self-employed) whose contracts require personal performance of the work.

The Contemporary Code on Wages

Based on the research and statistics, it is pertinent to note that pay disparity is one of the major indicators of the issue on social injustice, which needs immediate attention. India has also taken certain steps to curb the pay disparity. Like recently, the Code on Wages, 2019 of India (Code on Wages) has been notified and it received the Presidential assent on August 8, 2019. The Code of Wages consolidates four national level labour laws on wages, being the ERA, Minimum Wages Act, 1948, Payment of Wages Act, 1936 and Payment of Bonus Act, 1965.

The first set of provisions of the Code of Wages relates to anti-discrimination, prohibiting discrimination against employees on the ground of gender in matters relating to payment of wages. The Code on Wages also prohibits discrimination while recruiting any employee and in the conditions of employment, except in cases where employment of women in such work is prohibited or restricted under any law.

Ending Thoughts
After the analysis it makes the picture quite clear that like a bird can't fly with one wing only, similarly the country would not develop if the women were left behind. Although India has certainly come a long way in addressing the issue of pay equity, there is lots more to do. The principle of equal pay for equal work needs to be strongly advocated and promoted by the government, starting with itself! This should further be supported by strong wage policies and strict implementation of the existing anti-disparity laws.

Since pay disparity is also noticed in India's massive unorganized sector, it is imperative to conduct regular awareness programs among the workers enlightening them about their rights. Additionally, efforts need to be made by the government to formalize the unorganized / informal sector by framing of effective wage policies applicable to them and implementation of the same.

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