This article is written by Sahil Aggarwal, from NALSAR University of Law, Hyderabad. This article explores the traditional dimensions drawn around the idea of ‘equal pay for equal work’ and argues for a reconsideration of our aims around it.
The phrase ‘equal remuneration for equal work’ has mostly attracted a simple understanding, that every individual must be paid in terms of wages, salary, etc. at par with his peers for doing similar work. In this article, however, it is argued that the understanding of discrimination has deepened over time and thus we have to also reflect upon our traditional ideas, and expand our aims that were previously set. Hence, it is suggested that the idea of ‘equal pay for equal work’ still remains a distant dream.
The constitutional commitment to socio-economic justice
The Constitution of India envisioned an egalitarian and justice society, by etching into itself the principles of equality, liberty and justice. The Preamble reflects the concept of justice in all aspects of an individual’s life, be it social, cultural, political, or economical. This reflection gets reaffirmed in Part III of the Constitution of India, dealing with Fundamental Rights and Part IV dealing with the Directive Principle of State Policy.
In Part III, Article 14 guarantees equality before the law as well as equal protection of laws. Subsequently, Article 15 prohibits discrimination on varied grounds like race, caste, religion, sex, place of birth, or any of them. In Article 15(3) and 15(4), the Constitution empowers the state to make special provisions for women, children, and socially and educationally backward classes of citizens. When we look at these provisions from a formalist point of view, the special treatment given to women, children, and socially and educationally backward classes of citizens, has been interpreted as an exception to the concept of equality. But another perspective is of substantive equality which embraces the special treatment as an essential dimension of the concept of equality. This is to suggest that the substantive equality approach, ideologically acknowledges the ‘disadvantage’ that is perpetuated in different aspects of the lives of members from the aforementioned categories.
Under Article 16, this substantive approach to equality gets manifested more clearly. In Article 16(1), the Constitution provides specific consideration to equality of opportunity concerning employment as well as the appointment. Under 16(2), it prohibited any discrimination based on categories like race, caste, religion, sex, place of birth, or any of them. This is to say that our Constitution makers were very well aware of the existing social hierarchies, and its adverse impact on the economic dimension of multitudes of lives. In fact, under Article 39(d), as a directive principle to the State, the Constitution explicitly, secures the right of equal pay for equal work for both men and women. Hence, it can satisfactorily be said that the themes of socio-economic justice found a prominent place in our Constitution, and thus becomes one of the main aims of the Indian society to achieve.
Keeping in mind the idea of substantive equality, when we look at the categories identified in the Constitution, the question arises how do we see these categories practically playing their roles in our society. Can we imagine each of these categories of social identity playing a role in an individual’s life separately? Here, we realize that these categories affect an individual in an intersectional way. For instance, in a simplistic understanding, a lower caste woman is relatively more disadvantaged than an upper-caste woman, and hence more exposed to unequal income and differential treatment by employers, or an inter-state migrant may also face such treatment because he was born in some other state as well as he belongs to a lower caste. This idea, however, could not sufficiently surface itself in our Constitution. Arguably, one can say that this aspect reflects itself in the phrase ‘or any of them’ in Article 15 or 16(2), as against the use of ‘only’ before. However, it cannot be denied that this aspect has not been emphasized enough in legislative actions by the governments. Hence, the problem deepens in terms of equal remuneration for these groups.
India and remuneration disparity
The idea of gender disparity in terms of incomes and wages has commonly been regarded as an issue in our country, but how does the understanding of the word ‘gender’ itself affect the people of this category other than the two dominant genders, that are, male and female? Similarly, how much do we know about the remuneration disparity between interstate migrant workers and native workers? Intersectionality, in this sense, has been relatively less emphasized in the context of wage gaps. In further sections, we attempt to explore some of the aspects of these claims.
Gender discrimination and wage inequality
In January 2019, in a report released by Oxfam, the gender pay gap in India was at 34%. Moreover, more recent studies have also shown the inequality in wages on the basis of gender, still continuing after contrary constitutional commitments. There are multiple reasons for such exclusion of women in employment and wage discrimination including unequal access to education, patriarchal social norms, conception such as work being ‘suitable’ for women or not, etc. Amidst these prominent reasons, however, the less emphasized reasons such as race, colour, class, caste, age, etc., also play their role in intensifying this kind of discrimination against women.
After understanding this, it is submitted that the heteronormative understanding of the word ‘gender’ is problematic, since it is not only ignorant, rather abusive of other genders like lesbian, gays, bisexuals, transgenders, queers, etc. (hereafter, LGBTQ+). And consequently, it affects the economic dimension of their lives significantly. The most important reason for such exclusion and discrimination is stigmatization. The community is discriminated against in employment opportunities, wages, salaries, etc. The high rate of poverty in these communities forces them to engage in further criminalized activities.
The point being emphasized here is that our predominant perspective has clouded the discrimination against such communities. It is, however, not to undermine the continuing wage disparity against women, rather it is argued that the concerns of wage gaps are way more problematic than they seem to be, thus need to be dealt more actively.
Inter-state migrant workmen and wage inequality
Search for employment is, perhaps, one of the major reasons for migration. According to the Economic Survey of India 2017, the magnitude of inter-state migration was around 9 million annually between 2011-2016. Moreover, the Census of 2011 estimated the total number of inter-state migrant workers at 139 million. These communities are vulnerable to many social and economic issues involving the risks associated with low-paying, hazardous, and informal market jobs. Multiple studies have concluded that the migrant workers are generally remunerated substantially lower than the local labour, their working conditions such as security of a job, shelter, medical facilities, insurance, and provident fund, etc. are near to non-existent in some areas. In this respect, we can’t ignore the exacerbation of their situation because of the other factors like caste, language, gender, etc. Hence, the dimension of the apparent violation of a Constitutional guarantee also becomes part of the problem.
Through these arguments, however, it is not argued that the problem related to the celebrated phrase ‘equal remuneration for equal work’ is not at all to demoralize the attempts of major government actions and the works of multiple national as well as international non-governmental organizations. Rather, the idea is to point to the complexity of the issue and demand a change in perspective of the common populace in the country.
The legislative response to the issue
To implement the Constitutional directive under Article 39(d), the Equal Remuneration Act of 1976 (hereafter, ERA Act) was passed, which sought to provide for payment of equal wages and salaries to ‘male’ and ‘female’ workers and prevent discrimination based on sex against women in matters of employment.
Section 2(g) of the ERA Act used the term ‘remuneration’ to mean basic wages and salaries including additional emoluments, be it in cash or kind, to a person employed. In Section 5, it specifically prohibits employers from discriminating against women. Further, in the case of People’s Union for Democratic Rights v. Union of India, the Supreme Court observed that the principle of equality embodied in Article 14 of the Constitution of India, finds its expression in the provision of the ERA Act.
However, in a report by the Center for Civil Society, which identifies several links in the chain where the implementation of the ERA Act could break down leading to the non-enforcement of the act, for instance, the flaws in the periodicity and thoroughness of the inspection by labour inspectors.
Recently, in March 2019, the Code of Wages Bill was introduced in Parliament. It has been passed by both the Lok Sabha and the Rajya Sabha. The Bill sets out to replace four statutes, namely, Payment of Wages Act, 1936; Minimum Wages Act, 1948; Payment of Bonus Act, 1965; and Equal Remuneration Act, 1976. The major reasons for introducing such a code involved the concern that statutes such as Payment of Wages Act, 1936 were obsolete in present times, hence it was necessary to update these laws. Secondly, the earlier Acts only covered 40% of the total employment workforce, since the Act provided for only certain salary groups and specific schedules. The new Code will cover all employees and workers in its purview. Thirdly, different legislations provided different definitions of the same words, hence leading to a difficulty for courts to decide the cases, thus, a single code provides for single definitions. Lastly, due to multiple statutes, compliance was difficult at administrative levels as well. Hence, the government introduced the Code of Wages Bill. However, the effectiveness of the bill is subject to future implementation of it.
Some of the landmark judgments in the context of equal pay for equal work include:
In the case of Budhan Choudhary v. the State of Bihar, the Supreme Court held that the concept of equality does not require that the law treat all individuals the same, but rather classification made between individuals must be reasonable. Hence, the classification must be grounded on two rationals, firstly, on an intelligible differentia which distinguishes people of one group from other groups, secondly, such differentia must have a rational relation to the object sought to be achieved. Although, the facts of the case itself did not deal with the idea of ‘equal pay for equal work’, however, the principles laid down have been significantly relied on by the courts in the cases involving such issues.
In the context of the Equal Remuneration Act, 1976, in the case of Mackinnon Mackenzee and Co. ltd. v. Andrey D’Costa, which involved a claim for equal remuneration for female Stenographers and male stenographers. The Supreme Court held that such kind of differentiation is not maintainable, further, the management could not arrive at a settlement, by flouting the express provision of the statute.
In the case of Randhir Singh vs. Union of India, the Supreme Court observed that although the principle of ‘equal pay for equal work’ did not find an explicit place in the fundamental rights, it certainly constitutes a constitutional goal, therefore, it is capable of being enforced through constitutional remedies under Article 32 of the Constitution.
In the case of V. Markendeya v, State of Andhra Pradesh, the facts provided that there was a difference in pay scale between graduate supervisors having a degree in engineering and non-graduate supervisors having diploma and license. The Court upheld such difference and stated that the basis of difference being educational qualifications is reasonable for the difference in pay scales, thus would not go against Article 14 and 16.
In the landmark case of State of Punjab and Ors. v. Jagjit Singh and others, the Supreme Court observed that the temporary employees performing similar duties and functions as discharged by permanent employees are to be given wages at par with permanent employees similarly placed. It also stated that this principle must be applied in the cases where the same work is being performed, irrespective of the class of the employee.
Although the Judiciary has been proactive in its approach to settling the issues related to the principle of ‘equal pay for equal work’, it has been shown in this article that the aim still remains distant for us.
In sum, it can be said that the issue of ‘equal remuneration for equal work’ stems from the idea of discrimination rooted in society. These are multifarious reasons for such discrimination which affect a person economically in equally multifarious ways but in different quantum. Our Constitution embraces the topical idea, however, as it is shown, the limited understanding of various aspects related such as gender, race, caste, etc. can become an impediment for its aim. When we look at the legislative actions, we realize, although the strong moves were taken by the government, still the initial aim of brig parity remains partially realized. This is to say that, not only do we have to achieve the aims actually set out in our statutes (to root out discrimination against women), but also expand our aims with more deep-seated problematic aspects in our society (for instance, the disparity in wages and opportunities for employment for LGBTQ+ community).
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