This Article is written by Dhruv Kumar & Amish Gupta from the University of Petroleum and Energy Studies and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
Table of Contents
Introduction
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 to the equal pay if the work allotted is of similar nature.
Equivalent Pay for Equal Work is a global development at a 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
Remuneration is defined under section 2(g) of the Equal Remuneration Act 1976 which defined it as any kind of pay or salary which can be cash or any other form, paid to a 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 a 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. These 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 D.
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 labour 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 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 the 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 Articles 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 in 1962 . 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 Act, 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.
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 a 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. This principle is not merely enshrined in the constitution rather strictly adhered to 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 importance. 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 practising 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 also. 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, breaks 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 end 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. The aforementioned 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 centre 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.
Indian scenario
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 in 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 person. 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 qualifications.
Conclusion
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 appearance.
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.
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