Ruchitha Bafna
Last updated: 01 February 2022
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The concept of equality that was established under the Indian constitution gave rise to the principle of equal pay for equal work but it is not explicitly stated as a fundamental or even constitutional right in the Indian constitution. Further, the Indian constitution states under Article 39 of its Directive Principles of State Policy that all states should ideally direct their policy towards securing equal pay for equal work for both men and women, as well as ensuring that men and women have the right to an adequate means of livelihood. But this could not be made enforceable in a court of law because it was only a Directive Principle and is present primarily while making legislation in order to have good governance. This article will examine the legal provisions and several acts that directly or indirectly include the principle of equal pay for equal work, and further, citing various cases to see how courts have interpreted this issue thus far.
Although the phrase "equal pay for equal work" is not specifically mentioned in the Indian Constitution's fundamental rights, there are doubts over whether it constitutes a fundamental right. There are several articles in the Indian Constitution that assure equal pay for equal work, particularly when it comes to matters related to the gender pay gap. Before referring to cases and why such a question arises on this principle being a fundamental right itself without being mentioned, it is important to refer to the articles of the Indian Constitution under this context:
Article 14: As per article 14 of the constitution it states that the State shall not refuse to any individual within the territory of India equality before the law or equal protection of the laws which means all have equal rights and opportunities.
Article 15: Article 15 of India's Constitution prohibits discrimination based solely on religion, race, caste, sex, or place of birth. It upholds the fundamental principle of equality outlined in Article 14 in specific instances by prohibiting classifications based on protected grounds.
Article 16: The right to equal opportunity in matters of public employment is protected under Article 16 of the Indian Constitution. It essentially stipulates thatcitizens shall have equal opportunities for employment or appointment to any position under the State. The difference between Article 15 and 16 is that Article 16 deals with a rather narrow subject, that is, public employment, while in comparison article 15 as seen is substantially broader, as it includes the entire range of state activities and enables special provisions in favor of women.
Article 39:While framing policies, Article 39 of the constitution states that the state will strive to provide adequate means of livelihood to all people, including women, and equal pay for equal work, which is very important because previously women received less from men due to the stereotype that women have less energy than men, but now the state comes into the picture directly and establishes this principle under Part IV of the Indian Constitution. Therefore, Article 39(a) stipulates that the State shall direct its policies toward safeguarding the right to means of livelihood for all citizens, men, and women, equally, and Article 39(d) states that equal pay for equal work applies to both men and women.
Having seen the provisions in the Indian Constitution that, although not explicitly states that equal pay for equal work is a fundamental right, and merely implies that it is, there are several acts in India as well that underline the principle of equal pay for equal work. Hence, it is critical to discuss them before referring to landmark decisions and interpretation of courts. The following are the legislations that have been passed:
Workmen’s Compensation Act, 1923: The key objective of the Workmen Compensation Act of 1923 is to offer financial assistance to employees' families in the event of death or being injured at work. Further, even employees who develop an occupational disease while on the job are covered under the act. Secondly, because of the disparity in bargaining power, there is a risk that women will be exploited thus, this act helps in avoiding such risk, and it has been updated from time to time to meet the needs of a changing society.
Minimum Wages Act, 1948: The minimum wages act aims to protect the workers from exploitation by ensuring that they are paid the minimum wage necessary to meet their basic needs and maintain their productivity. It also ensures that there are no pay differences between men and women.
The Factories Act, 1948 : The Factories act has three main objectives under it - firstly to regulate factory working conditions, second to regulate health, safety, and annual leave, and lastly to bring in new provisions for young people, women, and children who work in factories.
The Contract Labour (Regulation and Abolition) Act, 1970: When a workman is hired in connection with the work of a business by or through a Contractor, he is said to be employed as Contract Labor. Thus, this act was enacted to prohibit contract labor exploitation and to improve working conditions.
Equal Remuneration Act, 1976 : This act was enacted to ensure that men and women are paid equally for equal work being done. Moreover, it was considered to be a major step towards the principle of equal pay for equal work as it ensured that there is no discrimination taking place against women and that they are being treated fairly and equally.
Code on Wages 2019: The Wages Code of 2019, was introduced to regulate wage and bonus payments in all employments where any industry, commerce, or production is carried out, and acknowledged like the other acts discussed above the necessity for equal pay for equal work but specifically mentioning for all genders. Moreover, the Payment of Wages Act of 1936, the Minimum Wages Act of 1948, the Payment of Bonus Act of 1965, and the Equal Remuneration Act of 1976 are all replaced by the Code. Further, it's also important to remember that this code will apply to all employees, and the central government will make wage-related decisions for jobs in railways, mines, and oil fields, among others, while state governments will make decisions for other kinds of employment.
The principle of Equal Pay for Equal Work was first discussed in the case ofKishori Mohanlal Bakshi vs. Union of India (1961),in which the Supreme Court considered it unenforceable in a court of law. Later, it was only in the year 1987 whenMackinnon Mackenzie'scase took place that the court believed in the concept of equal pay. The brief facts of the case to note here is that a claim for equal remuneration for Lady and Male Stenographers was brought before the court and thereafter, the Court ruled in favor of female stenographers because as stated believed in equal pay.
Further, in the case of Randhir Singh v. Union of India (1982), the Hon’ble Supreme Court observed that, although the notion of "equal pay for equal work" is not explicitly stated as a fundamental right by our Constitution, it is inevitably a constitutional goal under Articles 14, 16, and 39(c) of the Constitution and additionally stated that, in circumstances of unequal pay scales based on unreasonable categorization, the right of equal pay for equal work could be enforced. Similarly, in the case of, Frank Anthony Public School Employees Association v. Union of India (1986), the court declared section 12 of the Delhi School Education Act unconstitutional as it violated Article 14 of the Constitution because it discriminated against school teachers in pay and other conditions of service primarily on being aided and unaided minority schools.
Another notable case to cite here is, the case of Dhirendra Chamoli v. State of Uttar Pradesh (1986) where the Hon’ble Supreme Court stated that the concept of equal pay applies to daily wage laborers as well as, it was seen that those engaged as casual workers on a daily wage basis in the country's Nehru Yuwak Kendra performed the same work as the Class IV employees employed on a permanent basis, and hence were entitled to the same salary and working conditions.
Apart from the above-mentioned cases, it is of paramount importance to cite the case of the State of Punjab and Ors v Jagjit Singh and Ors (2016) which was before the Hon'ble Supreme Court. In this case, as well it was held that the principle of 'equal pay for equal work' must be extended to daily wagers, casual, and contractual employees who perform the same obligations as regular employees. The Supreme Court called the practice of denying equal pay for equal work "exploitative enslavement," "oppressive, suppressive," and "coercive," and stated that in a welfare state, the principle must be extended to temporary workers as well. Further, it also observed that imposing artificial restrictions to deny the rewards of labor is erroneous because an employee hired for the same job who fulfills the same duties and obligations cannot be paid less in a welfare state like India as this would not only amount to humiliation, but it also would go against the basic principle of human dignity.
Another very recent case that came before the Supreme Court was State of MP vs. RD Sharma(2022) , where the court ruled that while "Equal Pay for Equal Work" is not a fundamental right vested with every employee, it is considered a constitutional goal that the government must accomplish. To better understand the facts of this case is that, a retired Principal Chief Conservator of Forests (PCCF) filed a writ petition in the Delhi High Court after the Government of India denied his application to revise his pension from Rs37,750 to Rs.40,000 as per the new rules. The High court passed the order in his favor and on being aggrieved by the same State, filed an appeal to the Supreme Court. The Supreme Court held that the HC had misconstrued the Apex Court's judgment in the State of Punjab vs Jagjit Singh. It emphasized that it was the duty of the executive, and not the judiciary, of equating postings and determining pay scales. Thus, the court should not take on the work of job evaluation, which is usually left to entities like pay commissions. It further stressed the fact that the courts would not intervene in such complicated matters unless there was a major mistake made in determining a pay scale for a certain post.
With the aforementioned cases, it is clear that equal pay for equal work is not an absolute right. Additionally, as seen there are various acts and provisions in the law that address the concept of equal pay for equal work but the problem persists. To address this issue, the Supreme court in the recent case has once again made it clear and acknowledged the principle of equal pay for equal work and observed that it is not a fundamental right. To reiterate, it is only a constitutional principle that must be followed, as stated under Articles 14, 15, and 16 of the Constitution, as well as several other acts that were discussed above. Lastly, it is important to remember that, everyone should be compensated equally and fairly for the job they have done, provided the work is the same and, as the Supreme Court has rightly stated it is at the discretion of the authorities to look into the equal pay for equal work; the courts could only intervene if a major mistake was made in determining a pay scale for a specific job orany kind of injustice has taken place.
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