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White Black Legal – International Law Journal · ISSN 2581-8503
EQUAL PAY FOR EQUAL WORK: CONSTITUTIONAL AND ITS IMPLEMENTATION IN INDIA
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Abstract
EQUAL PAY FOR EQUAL WORK: CONSTITUTIONAL
AND ITS IMPLEMENTATION IN INDIA
AUTHORED BY - PREKSHA.A
B.B.A L.L.B (Hons)
ABSTRACT -
The concept of “Equal
Pay for Equal Work” is an important concept in Indian labour and constitutional
law. The principle is not mentioned explicitly in the Constitution of India but
Article 39(d) mandates that the State ensure equality of pay for equal work for
both men and women. In certain cases, and with judicial interpretation,
especially through Articles 14 and 16, the Supreme
Court has converted this DP into a constitutional doctrine that is enforceable.
The doctrine has developed from the public employment/servants of the
government to the temporary, casual, contractual and daily-wage employees. The
Equal Remuneration Act, 1976 was the
main legislation at the statutory level which was the first attempt in India to
address the issue of gender-based wage discrimination. The Act has been later
incorporated into the Code on Wages, 2019, which bans wage disparity on the
basis of gender between the same or similar work. But there are still plenty of
challenges to overcome, such as the issue of
informal employment, occupational segregation, unequal bargaining power, a lack
of transparency in wage structures, and the problem of establishing a level of
comparability between the jobs and between “equal work” and “work of equal
value.” This paper discusses the constitutional basis and development of equal
pay, judicial history, legislation, gender aspect, international conventions
and problems in respect of equal pay in India. It states that India has a
robust formal legal structure but with greater institutional control, objective
job evaluation and greater transparency in pay and recognition of the wider
international recognition of equal remuneration for work of equal value will
achieve the greater equality.
INTRODUCTION -
Fair and non-discriminatory remuneration forms an integral
part of labour justice. Wages are
not just an economic factor, they reflect the standard of living, dignity,
social security and meaningful participation to society of the worker.
This means that unequal pay is a violation
of both economic equality and the guarantees of social justice in the
constitution.
Equal Pay for Equal
Work” suggests that if two individuals are doing a similar job and the work of
both the jobs involves same level of skill, effort, responsibility and working
conditions, they should
normally be paid the same wages. This is especially relevant when it comes to concerns of gender
discrimination, as women have been paid less compensation than men who are
doing the same or similar work.
This principle
is contained in the Indian Constitution primarily
in Article 39(d) that mandates the State to ensure that women
are given the same pay as men for the same work. Article 39 is not a standing
valid cause in court but over the years, the Supreme Court
has time and time
again established that the meaning and scope of Fundamental Rights must be
guided by the Directive Principles. The Supreme Court in Randhir Singh v. Union
of India interpreted the principle of equal pay for equal work in the light of
Articles 14, 16 along with Article 39(d) and Preamble of the Indian
Constitution.[1]
However, the doctrine
does not apply to every disparity in remuneration being unconstitutional. The Supreme Court has consistently declared that "equal pay" is dependent upon "equal work", and
equality must be judged on the basis of the actual duties and responsibilities of the job. Pay scales
may vary based
on the differences in the qualifications,
experience, responsibility, reliability or other reasonable factors.[2]
Statutory codification of the principle is also important. The Equal Remuneration Act, 1976 was enacted
in India after the convention of Equal Remuneration Convention, 1951 of ILO.
The Act banned unequal treatment of equal work or work of a similar nature,
and also had a
ban on discrimination between women and men in remuneration. It's provisions
have now been incorporated into the Code on Wages, 2019, which bars gender
discrimination in recruitment and wages.[3]
Hence, the concept of equal pay in India is available
in three dimensions, namely, Constitutional equality, Statutory protection and
International labour standards.
MEANING AND SCOPE OF EQUAL PAY FOR EQUAL WORK -
Meaning -
Equal Pay for Equal
Work is equal pay for work that is substantially the same, and not equal pay for work that is the same, but for a different reason,
such as category, department, gender
or employment classification.
It doesn't
imply that two jobs have to be exactly the same. The comparison is based upon relevant factors such as:
1.
Nature of
duties
2.
Skill required
3.
Effort involved
4.
Responsibility undertaken
5.
Qualifications
6.
Experience
7.
Working conditions
8.
Degree of supervision
9.
Reliability and confidentially
10.
Functional responsibilities
This approach
was further explained
in Federation of All India Customs & Central Excise Stenographers v. Union of India, by
the Supreme Court, which ruled that the principle of equal pay is not just to
be measured by quantity of work. Qualitative differences in responsibility,
reliability, confidentiality and other factors may necessitate differences in remuneration.[4]
“Same Work”
and “Similar Work” -
Under the present statutory provisions by the Code on Wages, 2019,
the term “same
work or work of a similar
nature” is used.
The statutory
definition considers if the skill, effort, experience and responsibility are
the same in respect of the work done under similar
conditions and if differences between
men and women are practical.[5]
So, the law doesn't
strictly call for a comparison of job titles alone.
For example:
If a male stenographer
and female stenographer are employed to do substantially the same stenographic work,
have the same skill and responsibility level,
and provide the same type of
work environment, the employer should not be able to claim on the basis that
the two positions are different that they should be paid different wages.
This has been directly
applied in Mackinnon Mackenzie & Co. Ltd. v. Audrey D' Costa, where female stenographers were paid less than male stenographers who were doing work of a comparable nature. The employer tried
to argue the difference was justified by his employment practices, but the
Supreme Court disagreed and ruled the women deserve equal pay. The employer
argued the difference was justified by his employment practices, but the
Supreme Court disagreed and ruled the women were entitled to equal pay.[6]
qual Pay Does Not Mean Identical
Pay in Every Situation -
The doctrine
is not a strict one that insists
on equal pay for all workers in similar roles. For instance, two workers can have
broadly the same role and the one can:
-
have much higher levels of qualifications;
-
have greater
experience;
-
take on significantly more duties;
-
operate in much harsher
environments than;
-
perform confidential functions;
-
have more supervisory duties.
Then there is a rational and objective distinction which may justify
different remuneration. The
question is:
Is the difference in payment rooted
in a rational and objective distinction related to the nature and needs of the work, or is it
based on an impermissible ground (sex), or an irrational classification?
HISTORICAL DEVELOPMENT OF THE PRINCIPLE
IN INDIA –
The development of equal pay in India
can be divided into four stages – Stage – 1 – Constitutional Recognition
Equal pay has been included in the Directive Principles in the Constitution under
Article 39(d). The provision particularly mentions equal
pay for equal
work, as between
men and women.
The framers
of the Constitution, therefore, defined
the concept of remuneration equality
as a component of social and
economic justice.
Stage – 2 – International Influence
The International
Labour Organisation (ILO) adopted the Equal Remuneration Convention, 1951 (No. 100), in which equal
pay for work of equal
value is stipulated for men and women.
India acceded to the Convention on 25th September 1958. International Labour
Organization
The Convention was significant because
it expanded the notion of “identical jobs” to “work of equal value.”
Stage – 3 – Equal Remuneration Act, 1976
To ensure equal remuneration for men and women and to eliminate
discrimination against women
in employment, the Equal Remuneration Act, 1976 was enacted in India.
This was preceded by the Equal Remuneration Ordinance
of 1975.[7]
The Supreme
Court later clarified that the Act was for the purpose
of implementing Article 39(d) and India's international
obligations under ILO Convention No. 100.[8]
Stage – 4 - Code on Wages,
2019
The Equal
Remuneration Act was then incorporated into the Code on Wages,
2019 together with Payment
of Wages Act, 1936, Minimum
Wages Act, 1948 and Payment
of Bonus Act, 1965.[9]
The Code introduces
modernisation of the statutory framework, which prevents discrimination on the basis
of gender in the field
of wages and recruitment for the same work
or work of similar nature.
CONSTITUTIONAL FRAMEWORK
–
Article 39(d)
is not the only provision in the Constitution that guarantees equal
pay. Multiple provisions are
in play.
1.
Article 14 – Equality
Before Law
Article 14 ensures equality
in law and equality under the law.
It
bans unreasonable state measures and demands equality
of treatment for those in like
circumstances.
Article 14 was the main constitutional argument advanced by the Supreme
Court to make the
provision of equal pay a constitutional obligation and not just a Directive
Principle obligation.[10]
In the case of Randhir Singh, the
Court stated that Article 14 has to be read in conjunction with Article
39(d) especially in the context
of persons working
same work and getting placed on different scales of pay.[11]
2.
Article 16 — Equality
of Opportunity in Public Employment
Article 16 provides equality
of opportunity in the public
service. Article 16 is an important
constitutional foundation, as many important equality of pay cases involve
government employment.
If
two government officials
have similar duties but receive
different salaries for these duties, there may be a possibility of
invoking Articles 14 and 16.
3.
Article 15 – Prohibition of Discrimination
Article 15(1) is a general ban on
discrimination based on factors, among others, sex. Article 15(3),
however, allows the State to make special
provision for women
and children. Gender-equality
cases focused on the Article 15 and employment equality.
4.
Article 39(d)
According to Article 39(d) the State is directed
to ensure:
“Equal pay for equal work to
both men and women.”
While Article 39 is not enforceable per se due to Article
37, it offers a valuable
form of constitutional
guidance to the interpretation of Article 14 and Article 16.
In
a landmark judgment, the Supreme Court
in Randhir Singh
held that Article
39(d) is a constitutional objective that could
sway the Fundamental Rights interpretation.[12]
5.
Article 38
Article 38 calls upon the State
to maintain a social order
in which social,
economic and political
justice guides the national institutions.
This goal of decreasing economic inequality is linked to a desire for equal pay.
6.
Article 43
Article 43 requires the State to provide a decent standard
of living and a living
wage conditions of work.
Equal pay is thus a component of the constitutional goal of economic
justice and dignity
of labour.
EVOLUTION OF THE PRINCIPLE THROUGH JUDICIAL DECISIONS–
a)
Randhir Singh
v. Union of India, (19820 1
SCC 618
Facts -
Randhir Singh
was a driver-constable of the Delhi Administration. He stated that he had done
very similar jobs to those of drivers in other government offices, only to be
paid less.
He approached the Supreme Court under Article
32. Principle -
The main issue raised
was whether “equal
pay for equal
work” could be given effect
to in Articles 14 and 16,
even though it is stated in Article 39(d).
Held -
The Supreme
Court decided that:
-
equal pay for equal work is a constitutional goal;
Article 39(d) should be interpreted in conjunction with Articles 14 and 16;
-
the principle
of equality is infringed upon by any difference in pay for the same
work;
-
the doctrine
is not only a political
catch phrase.
The Court used to
explain the principle with reference to Article 14 and Article 16 read with
Article 39(d) and the Preamble of the Constitution of India. The Court had
famously tried to explain it that the principle could be deducted
from Article 14 along with Article 16 read with Article 39(d) and the Preamble of
the Indian Constitution.[13]
Importance -
The first Indian equal pay case.
It brought
the non-binding Article
39(d) into the realm of constitutional instruments.
b)
Convention: Dhirendra
Chamoli v. State of U.P. (1986) 1 SCC 637 Facts -
The petitioners were working as casual labourers
in the Nehru Yuva Kendra organisation.
They worked as regular workers but were paid less due to their temporary
status.
Held –
In this decision, the
Supreme Court determined that temporary or casual workers who are essentially doing
the same work as regular
employees should not be denied
the same wages just because their job is
classified as “temporary.”
The Court
found that this was an unequal treatment, which is a violation of Article 14 and the constitution's promise of a socialist
welfare state.[14]
Importance -
The decision
brought equal-pay cases outside the realm of permanent employees
and acknowledged the issue of exploitation of temporary workers.
c)
Surinder Singh
v. Engineer-in-Chief, CPWD (1986) 1 SCC 639 Facts -
Workers on a day to day basis received
wages equivalent to regular work on a similar task. Held-
The Supreme
Court held that the principle of equal pay should apply
to temporary workers when their work is “substantially
equivalent”.
The ruling
was also aimed
at clarifying that an employer
is not able to evade
the obligations of equal pay
by altering the way in which it is paid.
Importance -
It strengthened the thesis that the content
of labour is more important than the name of the job.
d)
Mackinnon Mackenzie
& Co. Ltd. v. Audrey D'Costa (1987) 2 SCC 469
Facts -
Audrey D' Costa was a Stenographer woman. The stenographers were getting paid less than the male stenographers who were doing
very similar work.
The difference was explained by the employer
in terms of the status
and makeup of the
workforce.
Held -
The employer's arguments were rejected
by the Supreme Court. The
Court ruled that:
-
the specific
tasks carried out need to be compared;
There should
be no technical objections to a claim
for equal pay where there
are only minor variations;
-
statutory equality
will not be superseded by employment settlements;
The inability of the
employer to meet financial obligations does not excuse the employer from complying
with the provisions of the equal remuneration requirements. Failure to pay
for financial
reasons does not excuse the employer to breach the equal remuneration requirements.[15]
Importance -
One of the most powerful voices
around gender wage discrimination in
India.
It affirms
that an employer
may not make artificial classifications to pay women
less.
e)
Federation of All India Customs & Central Excise Stenographers v. Union of India
(1988) 3 SCC 91
Facts -
In the Central Secretariat, stenographers were claiming
equality with stenographers in Customs and Central Excise offices.
They contended that it was also substantially similar and that the difference in wage rates
for both was in breach of Articles 14 and 16.
Held -
The Supreme
Court denied the
claim.
It believed
that equal pay was not to be based simply
on the work quantity. Factors
such as:
-
responsibility;
-
reliability;
-
confidentiality;
-
skill;
-
experience;
-
working conditions;
The salary ranges may be justified
may differ.[16]
Importance -
This case is a limitation of the doctrine.
It helps prevent courts from applying
the “equal pay” principle mechanically without asking whether
or not the jobs are actually equal.
f)
State of Haryana v. Charanjit Singh
The Supreme Court
restated that equal pay is not a formula and that the Claimant has to
demonstrate that the workers in question are in an equal employment situation with respect
to their duties and responsibilities.
The Court
emphasized that before
the question of "equal work" can arise, one must first
be able to prove "equal work" before claiming equal pay.
This is especially true in light
of the repeated warnings by courts not to apply
the doctrine across the board
in all salary disputes.
g)
State of Punjab v. Jagjit Singh (2017) 1 SCC 148. Facts -
The case was of
temporary employees who argued that they should be treated in the same manner as regular employees doing substantially the same work,
such as daily
wage, casual, ad hoc and
contractual employees.
The State
contended that the pay disparities were due to differences in recruitment and status
of employment and therefore were permissible.
Held -
The earlier decisions
of the Constitution Bench were quoted and the Supreme Court concluded that the temporary
employees doing the same work and having the necessary qualifications may be granted
the minimum of the regular pay scale with conditions as defined by the Supreme
Court.
The Court
did not accept
the argument that an equal-pay claim is defeated
by being
"temporary" alone as it were.[17]
The Court,
however, made it clear that equal pay does not necessarily lead to regularisation or permanency.
Importance -
The contemporary expert on equal pay for:
-
daily-wage employees;
-
casual employees;
-
contractual employees;
-
temporary employees;
-
ad hoc employees.
It shows that wage discrimination because
of employment status is not justified if the
underlying job is essentially the same.
STATUTORY IMPLEMENTATION IN INDIA –
i.
Equal Remuneration Act, 1976
The main legislation that existed in the past was the Equal Remuneration Act, 1976. Its
objectives included:
1.
Equal wages
for men and women;
2.
The prevention of sex based
discrimination;
3.
Treatment of all equally
when it comes to recruitment;
4.
Creation of authorities to settle conflicts;
5.
Advancement of opportunities for women in the labour
market.
Section 4 imposed the obligation on employers to pay an equal wage to both men and women
doing the same work or work of a comparable nature.
Section 5 did not allow discrimination in recruitment.
The Supreme
Court's recent ruling in the Mackinnon Mackenzie
case illustrates how these
provisions are dealt with in practice.[18]
ii.
Code on Wages, 2019
The existing
legal provisions are contained in the Code on Wages, 2019.
Four statutes were incorporated into the Code:
-
Payment of Wages Act, 1936;
-
Minimum Wages
Act, 1948;
-
Payment of Bonus Act,
1965;
-
Equal Remuneration Act, 1976.[19]
Section 3 — Prohibition of Discrimination on Ground of Gender
Section 3 states that there shall
be no discrimination based on sex in the matters
of wages for employees doing the same work or work
of a similar nature.
It also bars discrimination in recruitment when doing the same or similar work,
except as may be reasonably necessary in accordance
with law.[20]
Section 4 – Determination of Same or Similar work
If there
is an argument over whether
work is the same or similar, it is within
the authority of the relevant body to decide the
question.
This is significant because
there must be an objective basis by which
the job can be compared in order for wage equality to be
achieved.
The importance of the Code
The Code streamlines and clarifies the wage-law framework
by consolidating several
wage laws into one.
As per the Ministry
the Code is specific in stating that it covers
the Equal Remuneration Act, and bans gender discrimination in pay and hiring.[21]
EQUAL PAY AND GENDER EQUALITY -
Equal pay is an important component
of substantive gender
equality.
There are a number
of ways in which wage inequality can be observed
for women:
1.
Direct wage
discrimination
Females and males are paid different
wages for the same work due to their gender.
2.
Occupational segregation
Women's work might be undervalued as a system and concentrated in occupations that are
considered “women's work”.
3.
Recruitment discrimination
Lower starting
wages may be provided to women for the same qualifications.
4.
Promotion discrimination
Women may not move up the career ladder
as quickly as men do and that can impact
lifetime earnings.
5.
Motherhood penalty
Women's earnings
can be adversely impacted by career interruptions due to childbirth and caregiving duties.
6.
Informal employment
There is under-representation of women in formal and secure jobs, where legal enforcement
is stronger.
ILO has acknowledged that gender wage gap may also result from undervaluation of women's work and/or penalties for motherhood.
But the gender pay gap is not being
closed when only the same pay rate is required
for the same job.
ROLE OF COURTS AND BURDEN OF PROOF –
• Role of Courts
Courts have three key
functions:
First — Constitutional Review
Article 14 and 16 violations are decided by the courts.
Second — Comparative Assessment
Courts consider
whether it is truly equivalent or similar.
The third
is prevention of the artificial classification. The third
is the prevention of the artificial classification.
Courts do not allow
employers to rely upon artificial distinctions as a justification for pay
discrimination.
In Mackinnon Mackenzie,
for instance, the court said that it was not possible to justify disparate pay to stenographers with various specializations when they actually
do the same work.[22]
• Burden on the Employee
When an employee alleges
the existence of a prima
facie case of comparability, they typically
must prove that the job duties of the two positions are comparable.
The employer
may demonstrate differences relating to:
-
who the comparator is
-
what their responsibilities are
-
qualifications
-
skill
-
effort
-
responsibility
-
working conditions
-
remuneration received
-
similarity of actual work.
Just stating
that two employees have the same job title doesn't cut it.
• Employer's Burden
When a prima facie
case has been made, the employer must offer a rational explanation for the difference.
The employer
can show inequalities in respect of:
-
qualifications;
-
experience;
-
seniority;
-
responsibility;
-
working conditions;
-
recruitment requirements;
-
functional responsibilities.
This is in keeping
with the general
principle of the constitution that classifications must have
a rational connection and have a reasonable basis to the object to be achieved.
CHALLENGES IN IMPLEMENTATION –
While there is robust
constitutional and statutory safeguarding, it is difficult to implement.
• Informal Sector
In India a considerable number of people work without
an employment contract. These employees frequently are
missing:
-
written contracts;
-
wage records;
-
bargaining power;
-
opportunities for grievance avenues.
In this sense, there can be statutory equality
without the real
equality.
• Difficulty in Comparing Work
It isn't always easy to identify
if two jobs are truly equal.
Job titles can be the same, but duties can be different.
On the other hand, job titles
can vary even though the job content
is quite similar.
• Lack of
Wage Transparency
Many workers
have no idea of how much their fellow workers
are paid. This makes it hard
to detect pay discrimination.
9.4 Gender
Stereotypes
Assumptions about
women may lead to their
being directed into jobs with lower wages, including those related to:
-
physical ability;
-
leadership;
-
family responsibilities;
-
maternity;
-
working hours.
• Contract Labour and Outsourcing
Outsourcing can create multiple
layers of jobs and may result in the difficulty of identifying the
responsibility to implement wage equality.
• Weak Enforcement
Although legal
rights may be in place,
employees might be reluctant to complain for the
following reasons:
-
fear of dismissal;
-
workplace retaliation;
-
financial constraints;
-
lack of awareness;
-
unequal bargaining power.
• Narrow Concept of “Similar Work” This is one of the biggest
deficits.
While statutory law in India
is more on the lines
of same or similar work,
ILO Convention No. 100 takes
the concept of work of equal value.
Specifically, the ILO has noted that India's constitutional and statutory definition has been more
restrictive than the “work of equal value” in the Convention. Normlex.
INTERNATIONAL FRAMEWORK
–
A.
The ILO Equal Remuneration Convention, 1951
The most important international instrument is the Equal Remuneration Convention, 1951
(No.100) of the International Labour Organisation.
According to Article 1, equal remuneration is "remuneration based on equal value and determined without discrimination on
the basis of sex".
Article 2 obliges the Member States
to promote and ensure equal
remuneration for men and
women for work of equal value.Article 3 calls for objective job evaluation.[23]
India has ratified Convention No. 100 in 1958 and it is still valid for India.
B.
ILO Convention No. 111
Discrimination (Employment and Occupation) Convention, 1958 (No. 111) relates to employment and occupation.
In 1960 India ratified
Convention No.111.[24]
C.
Universal Declaration of Human Rights
Article 23(2) of the UDHR recognises the right of everyone, without
discrimination, to equal pay for equal work.
This means
that the principle of equal remuneration is a wider human rights
principle.
D.
The International Covenant on Economic, Social and Cultural
Rights
Article 7(a)(i)
of the ICESCR states that people have a right
to "fair wages
and equal remuneration for
work of equal value without distinction".
India has ratified the ICESCR in
1979.
In the case of State of Punjab vs. Jagjit Singh,
the Supreme Court
mentioned India's obligations
under international law in the context of equal pay.[25]
E.
CEDAW
The Convention on the Elimination of All Forms of Discrimination Against Women calls on
States to take steps to ensure equality of pay and to remove discrimination in
employment.
It thus helps to
strengthen the principle that access to the labour market should not be the
only indicator of gender equality
and that labour
market conditions and pay should
reflect the same.
CRITICAL ANALYSIS
-
Article 31A of the Constitution and the Equal
Pay Act are examples of economic equality that are embodied in the Indian
law.
The most impressive aspect
of it is its constitutionalisation of the principle.
Article 39(d)
was not an empty declaration of the Supreme
Court with regard
to the Randhir Singh interpretation. Through Article 14+16, it put the
concept of equal remuneration into practice.
The Court, through
Article 14+16, put the concept
of equal remuneration into practice.[26]
The second important
aspect is the evolution of jurisprudence of protection for temporary workers.
The judgment of Dhirendra Chamoli and Surinder Singh and Jagjit Singh is
indicative of the fact that the employer
cannot always evade
the requirement of equal pay by
tagging an employee on temporary basis.
The third strength is the specific
statutory ban on gender pay gaps.
But the rules and regulations are not complete.
First is the fact that the principle is very reliant
on the employee ensuring comparability.
Second, there
has been a history of reluctance to get involved
in pay structures because of the
administrative and economic aspects of wage determination.
Third, the statutory focus
is on “same or similar
work” whereas the ILO's standard
focuses on “work of equal
value.”
Fourth, in informal employment, legal protection is far less
effective.
Fifth, equal pay laws are not enough to eradicate occupational segregation or unequal promotion to senior levels.
ILO's analysis
of India has revealed that despite legal and economic
developments there is continued gender wage gap.
International Labour Organization
The key issue,
therefore, is no longer whether a law is lacking. In India, the principle is
followed. The bigger issue is effective enforcement and moving towards
substantive equality in the
economic realm.
SUGGESTIONS AND REFORMS –
1.
Introduce Greater
Wage Transparency.
Employers, especially large employers, should
have clear wage structures and provide
relevant gender-specific wage information.
Transparency helps identify wage disparities that may be discriminatory.
2.
Adopt Objective
Job Evaluation
Jobs should be assessed
by the following objective standards:
-
skill;
-
effort;
-
responsibility;
-
working conditions.
This would
be in line with ILO Convention No. 100 – Article.[27]
3.
Move Toward
“Work of Equal
Value”
The concept
of “same or similar work”
in the Indian law should
evolve over time towards
“equal remuneration for equal work” as is recognized internationally.
For instance,
an occupation that is predominantly female and another
that is predominantly male may have similar skills, responsibilities and
efforts but with a different type of work.
4.
Strengthen Labour
Inspection
The mechanism
of Inspector/Facilitator to detect gender based wage discrimination under the
Code must be effectively used.
Ensure the protection of whistleblowers and complainants.Ensure protection of whistleblowers and complainants 12.5
Wage Discrimination Complaints should be protected from Retaliation by employees.
5.
Strengthen Awareness
Opinion should be shared
with workers about the following:
-
wage rights;
-
equality provisions;
-
complaint mechanisms;
-
labour authorities;
-
available remedies.
6.
Address Informal
Employment
Protecting workers
from informal, casual and contract
arrangements should be done in an
effective manner.
7.
Gender-Neutral Job Classification
Employers should
avoid job classifications based upon stereotypes.
Job descriptions should be based on the job description and not gender
assumptions.
8.
Regular Pay
Audits
Periodic internal
pay-equity audits should
be done in large establishments. These audits can detect:
-
gender pay
gaps;
-
unequal starting
salaries;
-
promotion disparities;
-
occupational segregation;
-
unequal allowances.
9.
Stronger Judicial
Guidelines
Courts could
establish more definitive rules on assessing:
1.
prima facie
comparability;
2.
burden shifting;
3.
objective job evaluation;
4.
permissible wage differentials;
5.
indirect discrimination.
This would make litigation more uniform.
CONCLUSION -
Equal Pay for Equal
Work is one of the most significant crossovers between the constitutional and
labour law in India. While Article 39(d) of the Preamble makes the principle part of the Directive Principles of State Policy,
the Supreme Court has accorded
it the force of a constitutional principle in Article 14 and 16.
It was the judiciary starting with Randhir
Singh that started
to make equal
pay a reality, rather than
a constitutional dream. Later judgments, by Dhirendra Chamoli, Surinder Singh
and State of Punjab v. Jagjit Singh, extended the doctrine to temporary and
non-permanent workers, and Mackinnon Mackenzie gave robust protection against
gender based wage discrimination. Concurrently, Federation of All India Customs
& Central Excise Stenographers asserted that equal remuneration cannot be
awarded mechanically and that a true difference in responsibility, skill,
experience and working conditions would merit a difference in remuneration.
The legislative
structure has also undergone significant change. The Equal Remuneration Act, 1976 was the first detailed statutory
initiative to address gender based wage discrimination in India which has been
incorporated in the Code on Wages, 2019. Section 3 of the Code does not allow for differences in wages and/or
recruitment for the same or similar
work based on gender.
However, there is no
substantive equality as a result of formal legal equality. The lack of
information, wage transparency, occupational segregation, gender
stereotypes and lack of
evidence of comparability of work remain as obstacles to implementation.
The most important
change in the future must thus be from “equal pay for equal work” to “equal remuneration for work of equal value.”
This would make Indian law more in line with ILO Convention No. 100 and would be
able to include not only the direct discrimination but also the structural
undervaluation of traditionally female dominated professions.
Finally, equal pay
should be seen as more than a wage formula, but as a reflection of the dignity of the person,
substantive equality, social
justice and decent
work as enshrined in the Constitution.
India's legal system offers a solid backbone, while the hurdle now is to bring
this constitutional assurance to the ground for every worker.
[1] Randhir Singh v. Union
of India, (1982) 1
SCC 618, 625–27 (India).
[2] Fed'n of All India Customs
& Cent. Excise Stenographers (Recognized) v. Union of India, (1988) 3 SCC 91,
101–07 (India).
[3] Code on Wages, No. 29 of 2019, §§ 3–4 (India).
[4] Fed'n of All India Customs
& Cent. Excise Stenographers, (1988) 3 SCC 91.
[5] Code on Wages, 2019, § 2(v).
[6] Mackinnon
Mackenzie & Co. Ltd. v. Audrey D'Costa, (1987) 2 SCC 469, 473–78 (India).
[7] Equal Remuneration Ordinance, 1975 (India).
[8] Mackinnon Mackenzie, (1987)
2 SCC 469.
[9] Ministry of Labour &
Employment, Government of India,
The Code on Wages, 2019.
[10] INDIA CONST. art. 14.
[11] Randhir Singh, (1982)
1 SCC 618.
[12] Id.
[13] Id. at 625–27.
[14] Dhirendra
Chamoli v. State
of U.P., (1986)
1 SCC 637.
[15] Mackinnon Mackenzie, (1987) 2 SCC 469.
[16] Fed'n of All India Customs
& Cent. Excise Stenographers, (1988) 3 SCC 91.
[17] State of Punjab
v. Jagjit Singh, (2017) 1 SCC 148, 182–91 (India).
[18] Mackinnon Mackenzie, (1987)
2 SCC 469.
[19] Ministry of Labour &
Employment, Government of India,
The Code on Wages, 2019.
[20] Code on Wages, 2019, § 3.
[21] Press Information Bureau,
Ministry of Labour
& Employment, New Wage Code
(July 25, 2022).
[22] Mackinnon
Mackenzie, (1987) 2 SCC 469.
[23] International Labour
Organization, Equal Remuneration Convention, 1951 (No. 100), arts.
1–4.
[24] International Labour Organization, Ratifications for India, NORMLEX.
[25] State of Punjab
v. Jagjit Singh, (2017) 1 SCC 148
[26] Randhir Singh, (1982)
1 SCC 618.
[27] ILO Equal Remuneration Convention, 1951
(No. 100), art. 3.
How to Cite This Article
PREKSHA.A, EQUAL PAY FOR EQUAL WORK: CONSTITUTIONAL AND ITS IMPLEMENTATION IN INDIA., White Black Legal – International Law Journal, ISSN: 2581-8503, Vol. Volume 4, Issue VOLUME 4 ISSUE 2, October 2026, pp. 1509-1530. Available at: https://www.whiteblacklegal.co.in/details/equal-pay-for-equal-work-constitutional-and-its-implementation-in-india-by-prekshaa
Author & Publication Record
Authors: PREKSHA.A
Registration ID: 107225 | Published Paper ID: WBL7225
Year: Oct- 2026 | Volume: 4 | Issue: 2
Approved ISSN: 2581-8503 | Country: Delhi, India
Page No.: 1509-1530
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