Equal Pay for Equal Work under the Indian Constitution
Equal Pay for Equal
Work under the Indian Constitution
The phrase Equal pay
for Equal Work means that every individual who has been employed for the work
which is allotted to him should be given sufficient pay as that of the others.
There should not be any discrimination while payment of wage. It is most commonly
used in the context of sexual discrimination, in relation to the gender pay gap[1].
The temporary workers who are working the shifts instead of the permanent
workers should get the same remuneration as that of the permanent workers is a
rule and a right for the individual for getting the same. The mere difference in
nomenclature would not dis-entitle an employee from being paid the same wages
as permanent employees. Any act of paying less wages as compared to others
similarly situated constitutes an act of exploitative enslavement.[2]
The equal pay is governed under the Equality Act of 2010 which gives a right to
equal pay between women and men for equal work[3]. This covers individuals
in the same employment, and includes equality in pay and all other contractual
terms.
International Convention on Equal Pay for Equal Work
The
preamble of the Constitution of International Labor Organization proclaims the
principle of equal remuneration for equal work. Article 4(3) of the European
Social Charter which provides the right to fair remuneration and includes the
recognition of right to men and women workers to equal pay.[4]
This has been considered as a good practise by various organizations including
the United Nations. The Indian Constitutions has also made several other Acts
for protecting the individuals from irrational way of payment for the work that
they have done.
Organizations and individual employers can both be considered responsible to
keep the guidelines endorsed under this Act. Despite thse fact that in the
greater part of the government employments there are equivalent wages for
equivalent work, this is not valid for private segment occupations[5].
There is still a separation in the private division particularly in low paid
occupations and in sloppy segments or the unorganized sectors which is not
sorted out as indicated by government standards[6]
Constitutional Provision for Equal wages for equal work
The Indian Constitution does not expressly grant this right as
fundamental or constitutional but various provisions in the Constitution of
India point towards the implementation of equal pay for equal work.[7]
Article 14 – Equality before the law that is men and women
having equal rights and opportunities in the political, economic and social
spheres. [8]
Article 15(1) which talks about prohibition of
discrimination on grounds of caste or sex and Article 15(3) which mentions about the various special
provisions laid down which grants various powers to the state to make positive
discrimination in favour of women. [9]
Article 16 which grants special rights which include
laws to be made for the benefit of women and children.[10]
Article 39 deals with principles that are to be
followed by the state for laying down policies regarding equal pay for both men
and women.[11]
Article 42: The State is required to make provisions
for ensuring just and humane conditions for a woman in the workplace and ensure
proper provisions are being followed and made regarding maternity relief. [12]
Article 51(A)(e): To quit the practices derogatory to the the dignity of a woman.
Current laws for equal pay for equal work
Workmen’s Compensation Act, 1923
Objectives of Workmen’s Compensation Act, 1923:[13]
·
Aims
to provide financial protection to the dependents of the worker in case of
accidental injury by paying compensation. Thought this was only for a certain
class of employers.
·
Due
to the difference in bargaining power, there are high chances that women may be
subject to exploitation.
·
These
above-listed risk factors are discussed in this act with listed suitable
measures. [14]
Minimum Wages Act,
1948
Objectives of Minimum Wages Act, 1948:[15]
·
Providing
for statutory fixation of minimum wages.
·
Workers
are poorly paid & have less bargaining power in India.
·
The
minimum wage is reviewed and revised after fixed interval of five years.
.
Factories Act, 1948
Objectives of Factories Act, 1948: [16]
·
Introduced
to regulate the conditions of labourers employed in the factories and
industries.
Contract Labour
(Regulation and Abolition) Act, 1970
Objectives of Contract Labour (Regulation
and Abolition) Act, 1970:
·
This
Act provides for a separate provision for utilities and fixed working hours for
women.
Equal Remuneration
Act of 1976
Objectives of Equal Remuneration Act of
1976:[17]
·
The Equal remuneration Act 1976 has been significant government
step towards “equal pay for equal work”. This Act was mainly passed with
the point of giving equivalent compensation to men and women labourers and to
forestall segregation based on sexual orientation in all issues identifying
with business and work openings or opportunities. This enactment not just gives
women a privilege to request equivalent compensations, yet any imbalance
concerning enlistment forms, work preparing, advancement and moves inside an association can likewise be challenged in the Court of Law.
Code on Wages 2019
Objectives of Code
on Wages 2019:[18]
·
Moved
away from the binary sexual arrangement of men and women.
·
Recognized
the need for equal pay for equal work for all genders.
·
Increased
the arenas of the benefit of the law to other oppressed genders, including
transgenders.
·
Allowed
the government to declare that the difference in wages of men and women workers
but not on the bases of sex.
·
Section
16 gave the government the power to declare the unequal equal, without reasons
or explanations as to why.
Flaws in Indian law[19]
Code of Wages 2019 was replaced by Equal Remuneration
Act, 1976. This
legislation deals with equal pay for equal work for both men and women without
any discrimination. This was an opportunity to amend this act, fill major gaps
and bring crucial changes in accordance to the 21st century’s need of the hour.
The Code took a step forward by moving away from the concept of
binary gender of men and women and recognized the need for equal pay for all
genders, by further extending the benefit of the law to other genders,
including the transgender people. The Code also makes progress by eliminating Section 16 of the Equal Remuneration Act,
1976, which allowed
the government to declare that the factor of pay difference shall be other than
sex in any establishment or job. Section 16 essentially gave the government the
power to declare the unequal to be equal, without any explanations.
Role of Judiciary
The SC observed that India being a signatory to the
International Covenant on Economic, Social and Cultural Rights, 1966[20], there is no escape from
the obligations thereunder in view of the different provisions of the
Constitution. Thus, the principle of “equal pay for equal work” constitutes a
clear and unambiguous right and is vested in every employee, whether engaged on
a permanent or temporary basis.[21]
Equal pay for equal work is not a constitutional right or a fundamental right.
It can be described through the interpretations of Article 14,15 ad 16 which
guarantees fundamental rights of equality before law, protection against any
kind of discrimination and equal opportunities in the matters of public
employment[22].
The UDHR( Universal Declaration of Human Rights) states that without any
discrimination made has the right to pay for equal work.
.
The principle of Equal Pay for Equal work was first introduced
in the year 1962 in Kishori Mohanlal
Bakshi v. Union of India[23].
The Supreme court rejected this plea of equal work and equal pay. Later in 1982 In Randhir Singh vs. Union of India,[24]
the Apex Court recognized and held that the principle of “equal pay for equal
work” though is not a fundamental right but, is certainly a constitutionally
valid principle under Art 14, 39 clause(c) and Article 16 and hence capable of
being enforced through constitutional remedies granted under Article 32 of the
constitution.
Punjab and Ors v Jagjit Singh and Ors[25] also
hold a significant place in the history and evolution of equal wages for equal
work. In this judgement, a bench of Justice J S Khehar and S A Bobde held that
the principle of equal pay for equal work has to be made applicable to those
engaged as daily wagers, casual and contractual employees who perform the same
duties as the regulars and, termed the denial of equal pay as “exploitative
enslavement” “Coercive” and “oppressive suppression”.
·
The Indian Supreme Court, in the
case of Air India Etc. Etc vs
Nergesh Meerza & Ors[26] held
that a declaration under section 16 was ‘presumptive proof’ of the fact that
there was no gender discrimination under the Equal Remuneration Act 1976, and
that such declaration ‘completely settles the matter’. The phrase ‘same work or
work of similar nature’ has been interpreted very narrowly by courts and thus
leaves many unfilled gaps and loopholes. Operating machines and taking care of
children requires different types of considerable skills, efforts and
responsibility, and therefore both types of work deserve decent pay. Yet,
courts’ vision in terms of possible comparisons has been limited by the phrase
“same work or work of a similar nature”. The Equality Act of the United Kingdom
uses the phrase “work of equal value” instead of “same work”.[27]
·
Equal Remuneration Act 1976 was amended to avoid discrimination
in recruitment and the condition of service, apart from pay. This was for the
reason being, the Supreme Court in Air India Etc. Etc vs Nergesh Meerza & Ors considered that differences in the recruitment
process and conditions of service of female air hostesses and male air
stewards, evidenced that these were separate classes of employees that could
not be compared, even though they performed similar work. The Code focuses only
on equal pay, and does not incorporate provisions to prevent discrimination in
conditions of service, and thereby downgrades the protection against
discrimination offered under the Equal Remuneration Act 1976. [28]
·
The Court decided in favour of women
stenographers as the court was supportive of the principle of equal pay for
equal work. There were misinterpretations for the said principles as it was
held in the case S.
Narkara Vs Union of India the court was of the opinion that Article
38(d) of the Indian Constitution that the state will endeavour to limit the
imbalances in pay and attempt to take out disparities in status, offices and
openings among people as well as among gatherings of individuals living in
various territories with various livelihood.[29]
In Markendeya vs. State of Andhra Pradesh, the difference in pay scale,
between graduate supervisors holding a degree in Engineering and non-graduate
supervisors being diploma and licence holders was upheld. It was held that on
the basis of difference in educational qualifications such difference in pay scales
was justified and would not offend Article 14 and 16. The Court pointed out
that where two classes of employees perform identical or similar duties and
carry out the same functions with the same measure of responsibility having the
same academic qualifications, they would be entitled to equal pay.[30]
The Equal Remuneration Act 1976 (ERA), legislation in India dealing with
equal pay for equal work for men and women, was repealed in August 2019 and
replaced by the Code on Wages 2019(Code). This could have been used as an
opportunity to fill crucial gaps in the legal regime dealing with pay equality
in India. Unfortunately, the opportunity has been squandered [31]
Measures
to be taken by the Employer[32]
·
Duty
of the employer to pay equal wages to men and women workers when the work is of
the same character or nature. No employer shall pay any employee employed by
him in an organization or a job, compensation and benefits, whether payable in
or at rates less favourable than those at which remuneration paid by him to a
worker of the opposite sex in that company or a work of the same nature.
·
There
should be no discrimination on the bases of sex during recruiting.
·
Formation
of the Advisory and check committee at every organization. This organization will
ensure that no gender faces any discrimination of any kind. This committee
shall also ensure that the minimum wage limit set by the state and local
government is followed rationally in the organization.
·
A
government body should be formed to keep a strict review on labour and daily
wage organization and maintain a constant review over such organizations.
·
Every an employee should be explained his/her rights of getting equal pay for equal work
and remedies available if this is not being followed in his/her organization.
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