This article is written by Avni Sharma, a 2nd year student of National Law University Odisha. This article covers all relevant portions of the Equal Remuneration Act, 1976.
For instance, consider that you are a woman working really hard to earn well, but you find that there is some other person who worked half as hard as you but earned double the amount just because that person was a male. The basic concept underlying, the very controversial subject, Feminism, is “equity”. Equity refers to a treatment of equal with equals and Unequal with unequals. The Equal Remuneration Act, 1976 (the Act) does just that. It provides for Equal remuneration both men and women, but also understanding the fact that it will not override any special treatment provided to women in the country. There was a time in India when women used to face heavy discrimination in pay. But, after the advent of this Act, women have been able to sue malpractices prevailing in their workplace.
Act to have overriding effect
The Central Industrial Machinery (also, Chief Labour Commissioner) has given effect to this Act and it states that it will not affect the terms and conditions of any law which provides special treatment to women. The statement in Section 3 itself suggests that it will have effect under all circumstances.
However, it also provides that any special treatment accorded to women in connection with the birth or expected birth of a child, or the terms and conditions relating to retirement, marriage or death or any of them will not be affected by the present Act.
Payment of Remuneration at Equal Rates to Men and Women Workers and Other Matters
Chapter 2 of the Act, provides for payment of remuneration at Equal Rates to Men and Women workers and other matters.
Duty of employer to pay equal remuneration to men and women workers for the same work or work of similar nature
The employer must not discriminate on grounds of sex, when it comes to remuneration provided for the same amount and nature of work. This Act was placed because there were numerous cases of women getting paid at a lower rate than their male counterparts.
In the case of People’s Union of Democratic Republic v. Union of India 1982, women were only paid 7 per day as opposed to 9.25 per day for male workers. After hearing both sides, Justice P.N. Bhagwati held that the authorities need to make sure that the men and women both are paid at par to each other for similar amount of work.
No discrimination to be made while recruiting men and women workers
The Act suggests that there must not be discrimination in recruitment of personnel on the basis of ground of sex. The section states that there must be no discrimination in remuneration from the commencement of the Act and provides an exception regarding employment of women is prohibited. There are certain places which are hazardous for employment of women and children, the section provides immunity from employment at those places.
Section 6(1) of the Act states that an Advisory committee must be created which will aid the purposes increasing employment opportunities. The government is taking all possible steps in making a change in the remuneration policies of the employers in India.
Section 6(2) states, the definition of appropriate government is given in 2(a)(1) here means, the part of the Central Government which is responsible for the administration of that area of work. The areas of work, which are administered by a Central authority or a Central Act, for example, Banking companies, oil fields etc. will be addressed to the Central Government. The rest of the areas which come under the state government’s authority, will be governed by the State government.
The advisory committee must consist of at least 10 people, which will be nominated by the appropriate government. Women must consist of one-half of this committee because that will help in formulation of policies with the help of people who are the real stakeholders.
Section 6(3) states, the factors which make a difference in the decision are:
- Number of women at work
- Nature of work
- Hours of work
- Suitability of women
- Need to provide opportunities
After consideration of all these factors, the committee must decide in bringing the appropriate norms in effect. The advisory committee will work towards bringing reforms by understanding the requirements of the employees. The committee is free to regulate its own procedures. The appropriate government will implement the policy as suggested by the committee.
Section 7 of the Act states, the complaints and claims regarding the infringement of this Act shall be addressed to the appointed officer. The applicants have to make sure that they have accurate proof of the commitment of the offence. The offenders will certainly be sued for any inequality in payment. In cases where the discrimination is made in two or more works, the consequences will be decided by the appointed officer.
Section 7(4) of the Act, suggests that due inquiry must be made by the appointed officer, wherein both the parties in the matter, must be given an opportunity to be heard. The appointed officer shall have all the powers of a Civil Court, as mentioned under Section 195, Code of Civil Procedure 1908 and Chapter XXVI of the Code of Criminal Procedure.
Section 7(6) mentions the situation where any of the parties is dissatisfied with the decision given by the authority. The aggrieved party must prefer an appeal before such an authority which is specified by the appropriate government, within thirty days from the date of the order.
There are several miscellaneous duties and powers provided in Chapter III of the Act.
Duty of employers to maintain registers
Section 8 of the Act specifies a duty of Employers to maintain a record of the employees, which must contain detailed information regarding the remuneration. This is done in order to gauge, if there is an discrimination in pay on the basis of sex. The ascertainment of offence is important in order to impose the correct amount of liability.
In order to ascertain the offence, the appropriate government is given a task to appoint an Inspector, who will be responsible for carrying out the investigations.
Section 8(2) states that the inspector must be a public servant. Section 21 of the IPC, provides 12 broad categories of a public servant, where the post of the Inspector must lie, otherwise his or her appointment will be considered unauthorised.
The Inspector is bestowed with certain powers which help him in carrying the investigations, smoothly.
The inspectors have the following powers while investigation, which are provided in Section 8 of the Act:
- Enter the premises at reasonable hours.
- May call for any official or official documents for examination.
- May call for evidence at any given point.
- Examine the employer.
- Make copies of required documents.
These powers help the Inspectors to carry out the work in a fair and just manner.
Penalties are charged in case, any employer fails to comply with the norms provided in the Act. Section 10 of the Act specifies that if an employer fails to:
- Fails to maintain a register;
- Fails to produce the register when required;
- Refuses or omits to give evidence as per requisitions;
- Refuses to give any information;
- Makes any recruitment in contravention of the provisions of this Act;
- Makes payments at unequal rates;
- Makes any discrimination on the basis of sex;
- Fails to carry out any direction as mentioned in the Act;
shall be punishable with at least a fine of 10,000, which may extend till 20,000 or imprisonment, not less than 3 months, which may extend to one year. In case of more than one offence, the punishment will increase, accordingly.
Offences by companies
Section 11 of the Act specifies that if the offence is committed by any body corporate and includes a firm or other association of individuals, shall be deemed to be guilty of the offence. Unless, the person can prove that such an act was done without his or her knowledge or he is she exercised all due diligence in order to prevent the act from happening.
Cognizance and trial of offences
Section 12 of the Act was amended in 1987, with the Equal Remuneration (Amendment) Act, 1987. It suggests that Metropolitan Magistrate or a Judicial Magistrate of the first class will be the authority at the lowest position for reviewing such a case under the Act. The courts are allowed to take cognizance only on its own knowledge or any complaint made by the appropriate government. An authorised officer can also complain to such an authority. The aggrieved person is also authorised to take his or her own complaint to the court. Apart from these, the court shall not entertain any complaints under the Act.
The courts involved in these matters must take immediate actions in order to protect the employees from such discrimination.
Power to make rules
The Central Government has the power to make regulations in order to protect the interest of the employees. Section 13 of the act mentions the powers of the government to form policies and regulate changes in the Act.
The Houses of Parliament can implement changes by following due procedure. The employers will have to comply with the norms, so provided.
Power of Central Government to give directions
Section 14 of the Act states that the Central Government has the power to direct the state government as to the execution of the Act. The state government will have to comply with the directions, so provided.
Exclusion of certain cases
Section 15 of the Act was amended by Equal Remuneration (Amendment) Act, 1987 which states,
“Nothing in this Act shall apply-
(a) to cases affecting the terms and conditions of a woman’s employment in complying with the requirements of any law giving special treatment to women, or
(b) to any special treatment accorded to women in connection with-
(i) the birth or expected birth of a child, or
(ii) the terms and conditions relating to retirement, marriage or death or to any provision made in connection with the retirement, marriage or death.”
The Act provided for all possible exclusions, which helps with the protection of interests of women who require special treatment. This emanates the idea of equity and the spirit of protection of all kinds of rights.
Power to make declaration
Section 16 of the Act states exemption from liability of employer in certain circumstances.
The Act also provides for a situation where the employer has to discriminate on the basis of any ground, but sex, will be exempted from any prosecution, if after complete consideration of the case, the government deems it fit.
Power to remove difficulties
The Central Government has the power to make any order, which might be inconsistent with the provisions of the Act, but are necessary for the circumstances of that case. Such act must be necessary for the removal of such difficulty. The implementation of the provisions must be carried out smoothly, without any difficulties.
Repeal and saving
The Equal Remuneration Ordinance, 1975 (12 of 1975), which was the Act governing, before the implementation of the present Act, stands repealed by the effect of Section 18 of the current Act. The actions taken under the ordinance which was repealed, will be deemed to be under the provisions of the present Act.
The Equal Remuneration Act, 1976, helps in bridging the gap between unequal remuneration faced by the women of our country. By the successful implementation of the Act, India is moving closer to being a country, which treats its men and women equally.
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