Topic- Application, Applicability of Equal Pay for Equal Work in Current

Scenario
Author- Priyanshu Yadav
Designation- 4th Year Student of BALLB, IMS Unison University
Co-Author- Yuvraj Singh
Designation- 4th Year Student of BBALLB, IMS Unison University

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INTRODUCTION
We are living in a country which is one of the most fast-moving economics of the world
and aims to become an economic superpower. However, we forget to take it into
consideration that it is not possible for India to become an economic superpower unless we
don’t achieve “equal pay for equal work”. As a McKinsy study found the advancing
women equality can add US$12 trillion to the global economy1.
The problem of unequal pay for equal work under various categories like how the
constitution guarantees it, where can discrimination be allowed and where it can be
prohibited and mostly in case of gender gap pay.
In India the constitution does not expressly provide equal pay for equal work as a
fundamental or even as constitutional right. It is basically dependent upon the
interpretation of Article 14,15 and 16 which guarantee equality before the law, equal
protection of law and prohibited any discrimination of the opportunity in matter of public
employment.2
Though the constitution of India did mention in its Directive Principles of State Policy,
under Article 39 that all states ideally direct their policy towards securing equal pay for
equal work for both men and women, and also ensuring that men and women have the right
to an adequate means of livelihood, this right being only a Directive Principle was not
enforceable in the court of law. They are crucial to the governance of the country and a
state is duty bound to consider them while enacting laws Thus, it was only through
interpretation of Articles 14,15 and 16 of the constitution through various judgements of
the court that equal pay for equal work became a fundamental right.
Not only in India, but around the world, equal pay for equal work is commonly understood
in terms of the gender pay gap. To comprehend the concept of a gender wage gap, one
must first comprehend the distinction between sex and gender. Gender denotes culturally
and socially molded differences between men and women, whereas sex denotes
biologically established qualities.3
1
Devi, Kovuru, ‘Women’s Equality in India: A myth or a reality’,2000,pg49-50
2
Mahabir Prashad Jain, in INDIAN CONSTITUTIONAL LAW (2014).
3
Vlassoff , Garcia Moreno , „Placing gender at the centre of health programming: challenges and
limitations’, soc sci med 2002

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Equal Remuneration Convention 1951 of International Labour Organization, states that: -
“Each Member shall promote and, to the extent that it is consistent with the methods in use
for calculating rates of remuneration, ensure the application of the principle of equal
remuneration for men and women workers for work of equal value to all workers.”4
This principle of equal pay for equal work also covered under Article 7 of International
Covenant of Economics, Social and Cultural Rights 5. Article 4 of European Social Charter,
and Article 15 of African Charter on Human Rights 6. The Constitution of International
Labour Organization also proclaims “Equal remuneration for equal value principle”7
Four defenses allow for equal pay for equal work principle.
1- A seniority system 2- A merit system
3- A system which measures earnings by quantity or quality of production 4- Or any
other factor other than sex
The practice of equal pay for equal work is considered to be a impressive practice around
the globe and recognized by the various organization including United Nation. Equal Pay
Day is celebrated every year in this spirit, and it falls on 12 April this year.
LAW DEALING WITH EQUAL PAY PRINCIPLE
Equal pay for equal work is nowhere expressly mentioned under Fundamental Rights of
Indian Constitution yet there can be no second thought whether it is a fundamental right or
not. There are number of Provision under Indian Constitution that ensure that there is equal
pay for equal work in India especially when we discuss about gender gap in employment.
These articles of the Constitution are as:
Article 14: Men & women to have equal rights & opportunities in the political, economic
& social spheres.
Article 15(1): Prohibits discrimination against any citizen on the grounds of religion, race,
caste, sex etc.
Article 15(3): Special provision enabling the State to make affirmative discriminations in

4
Equal Pay and Compensation Discrimination”, www.eeoc,2018
5
International Covenant on Economic, Social and Cultural Rights, Article 7
6
African Charter on Human and Peoples‟ Rights, Article 1
7
ILOLEX:Constitution
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favor of women.
Article 16: Equality of opportunities in matter of public appointments for all citizens.

Article 39(a): The State shall direct its policy towards securing all citizens men and
women, equally, the right to means of livelihood.
Article 39(d): Equal pay for equal work for both men and women
Article 42: The State to make provision for ensuring just and humane conditions of
work and maternity relief.
Article 51 (A) (e): To renounce the practices derogatory to the dignity of women.
Previously, the right to equal compensation for equal work was only attainable under
Article 39 of the constitution's Directive Principles of State Policy. While these Directive
Principles are not enforceable in a court of law, they are critical to the country's
government, and a state is obligated to take them into account when passing legislation.8
However, it is now undeniably a fundamental right under Articles 14, 15, and 16 of the
Right to Equality, as previously stated through several judicial decisions, the right to equal
remuneration for equal work has become a basic right.
In Dhirendra Chamoli v. State of UP9 it was decided that the concept of equal pay applies
to casual workers who are paid on a daily basis.
As a result, it was determined that those engaged as casual workers on a daily wage
basis in the country's Nehru Yuwak Kendra performed the same work as Class IV
employees employed on a permanent basis, and hence were entitled to the same salary and
working conditions.
In a landmark decision, the Supreme Court ruled in state of Punjab and Ors v Jagjit

Singh and Ors10 that the principle of 'same compensation for equal work' must be
extended to daily
wagers, casual, and contractual employees who execute the same obligations as permanent
employees.The Supreme Court called the refusal of equal compensation for equal work
"exploitative enslavement," "oppressive, suppressive," and "coercive," and said that in a
welfare state, the norm must be extended to temporary workers as well. Bench of Justices
8
Devi, Kovuru, ‘Women’s Equality in India: A myth or a reality’,2000,pg49-50
9
Dhirendra Chamoli v State of UP, (1986) 1 SCC 637
10 11
agjit Singh and ors v State of Punjab,(2017) 1 scc 148

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J S Khehar and S A Bobde remarked :-
“We believe, after careful consideration, that is erroneous to set artificial parameters in
order to refuse the results of one's labour. An employee hired for the same job who fulfils
the

same duties and obligations cannot be paid less in a welfare state, of course not, Such an
action, in addition to being degrading, strikes at the fundamental root of human dignity.”
Legislature also performed some tasks toward equal pay equal work principle by passing
various legislature in order to guarantee equal pay for equal work. The following Act has
been passed by parliament of India.
Acts which aim to provide financial protection to the workmen & his /her dependents in
case of any miss happing by means of payment of compensation by a certain class of
employer.
Due to differences in bargaining power there are chances that women may be subjected to
some kind of exploitation.
The Factories Act of 1948: was enacted to govern the working conditions of factory
workers.
The Contract Labour (Regulation and Abolition) Act of 1970 establishes a distinct
provision for women's utilities and set working hours.
The Equal Remuneration Act of 1976: ensures that men and women are paid equally for
equal labour. The legislation was adopted to address the uneven physical and societal
burdens that women endure when it comes to childbearing and child rearing.
Minimum Wages Act, 1948: for the purpose for a statutory fixation of minimum wages,
Because Indian employees are weakly organized and have little negotiating power and for
ensuring there should be no difference in wages between men and women.
EXCEPTION TO EQUAL PAY OF EQUAL WORK
Right now, fair compensation for equal effort is a must. It is not, however, an absolute
right. There are a few exceptions. These exceptions aren't explicitly stated anywhere, and
they, too, have evolved over time. Some argue that these aren't exceptions, but rather cases
when the principle of equal compensation for equal effort isn't followed.
The Supreme Court concluded in F.A.I.C and C.E.S. v. Union of India 11that different
pay rates can be set for government employees holding the same office and performing
11
F.A.I.C and C.E.S. v. Union of India, (1988) 3 SCC 91
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similar work based on differences in degree of responsibility, trustworthiness, and
confidentiality. The court also stated that equal compensation is determined by the nature
of the work performed rather than the quantity of work performed. There could be
qualitative variations in terms of dependability and accountability.

The principle of equal pay for equal work would not apply in case of Meva Ram vs
A.I.IM.S.12As a result of the differences in educational degrees, Hearing Therapists and
Audiologists in A.I.I.M.S can be paid differently .In Associated Bank Officers
Association v. State Bank of India13, they are not in a comparable position considering
responsibilities of officers of the State Bank of India. Thus, the principle of equal pay for
equal work could not be applied in this case.
GENDER PAY GAP
Despite the fact that equal pay for equal work is specified in India's constitution as a key
goal to be accomplished, this is not the case in practice.
The wage disparity between men and women in paid employment and the labour market is
referred to as the gender pay gap. The gender wage gap in India was projected to be 24.81
percent in 2013. According to World Economic Forum research, a woman in India's
corporate sector is paid only one-third of what a man in the same position is paid.
Furthermore, this survey ranks India as one of the worst ten countries on its list when it
comes to female economic involvement.14
The gender pay gap in India is also due to the fact that there is a difference between male
and female literacy rates in the country. As men are considered as the future bread-earners
of the family, people especially in rural areas prefer spending more on the education of
their sons rather than their daughters which later on leads to women earning less. However,
contrary to this, it has been seen from a report that gender pay gap in fact increases with
increase in qualification. India has been a permanent member of the ILO Governing Body
which addressed the issue of equal pay between men and women for work of equal value.
This convention requires all member states to direct their national laws and policies
towards guaranteeing equal remuneration to all workers, regardless of gender. In an
12
Mewa Ram v. A.I.I.M.S, AIR 1989 SC 1256
13
Associated Bank Officers Association v. State Bank of India, AIR 1998 SC 32
14
Anand, Leeja, Varkkey, Biju, Korde, Rupa, ‘Gender pay gap in the formal sector: preliminary evidence
from paycheck India data’, WageIndicator data report, 2012

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attempt to ensure compliance with this convention and in response to the report by the
Committee on status of women in India, the government enacted the Equal Remuneration
Act The government created the Equal Remuneration Act in an attempt to ensure
conformity with the convention and in reaction to the report of the Committee on the
Status of Women in India.

This act was a key government action or piece of legislation in the direction of "equal pay
for equal effort." The Equal Remuneration Act was created in 1976 with the goal of
guaranteeing equal remuneration to men and women workers and preventing gender
discrimination in all aspects of employment and job prospects. This legislation not only
gives women the right to seek equal pay, but it also allows them to contest any
discrimination in recruiting, job training, promotions, and transfers within the company.
Companies and individual employers can both be held liable for failing to comply with
the Act's requirements. In several instances, Apex Court has also ruled that
discrimination based on gender only occurs when men and women undertake the same or
equivalent tasks.
The Equal Remuneration Act strives to ensure that men and women workers are paid
equally, as well as to prevent discrimination against women in the workplace and in
matters related to or incidental to employment.
The term 'remuneration' is defined under the Act as "the basic wage or salary, as well as
any other emoluments whatever payable, either in cash or in kind, to a person engaged
in respect of employment or work done in such employment, The express or implied
provisions of the employment contract were met."
Nothing in this Act applies to cases of:-
Affecting a woman's employment terms and conditions in order to comply with the
requirements of any law providing special treatment to women;
To any special treatment provided 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
provision made in connection with the retirement, marriage, or death of a woman.
THE MAIN PROVISION OF THE ACT ARE AS: -
No employer shall give any worker employed by him or her in an establishment
remuneration (whether in cash or in kind) that is less favorable than the remuneration paid
by him or her to workers of the opposite sex in the same establishment for performing the
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same or similar work. Furthermore, no employer may cut a worker's rate of remuneration
in order to comply with the rules of this Act.15
No employer shall discriminate against women in the recruitment for the same or similar
work, or in any condition of service subsequent to recruitment, such as promotions,
training,

or transfer, unless the employment of women in such work is prohibited or restricted by or

under any law currently in force.
Every employer is required to keep such registers and other documentation in the
prescribed manner in connection to the people he or she employs.
If any employer: I makes any recruitment in violation of the provisions of this Act; or
(ii) pays unequal remuneration to men and women workers for the same or similar work;
or (iii) discriminates against men and women workers in violation of the provisions of this
Act; or (iv) omits or fails to carry out any direction issued by the appropriate Government,
he or she shall be punished with a fine or imprisonment16.
When a company commits an offence under this Act, every person who was in charge of
and responsible to the company for the conduct of the company's business at the time the
offence was committed, as well as the company, is deemed guilty of the offence and is
liable to be prosecuted and punished accordingly.
Despite the government's efforts, the situation has not improved significantly.
Although most government occupations pay equal remuneration for equal effort, this is not
the case in the private sector. Discrimination still exists in the private sector, particularly in
low-wage occupations and in the unorganized sector.
AN OUTLINE OF EQUAL REMUNERATION ACT 1976
Equal Remuneration Act 1976 provide for the payment of equal wage payment to men and
women and for the prevention of discrimination on the ground of sex against women in the
matter of employment.
Prevails over other laws
Section 3 of this Act provide that the provision under this act shall have effect over any
inconsistent law or in the term of any award, agreement or contract of services whether

15
Mishra S.N labour & industrial laws 29th edition pg no 1122 - 1126
16
ibid
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made before or after the commencement of the Act.17
Definitions under this Act
Remuneration - Remuneration refers to the basic compensation or salary, as well as any
additional emoluments paid in cash or in kind, to a person engaged in respect of
employment or labour performed in such employment, if the requirements of the
employment contract,

express or implied, were met.

Equal Pay for Equal work – work of a similar nature refers to work in which the skill,
efforts, and responsibilities required are the same whether performed by a man or a woman
under similar working conditions, and the differences, if any, between the skill, effort, and
responsibility required of a man and those required of a woman are not of practical
employment terms and conditions.18
Punishment
if any employer: -
Makes any recruitment in violation of this Act's provisions.
Makes any payment of recruitment at unequal rates to men and women workers for the
same or similar work; Makes any discrimination between men and women workers in
violation of this Act's provisions; Omits or fails to carry out any directions issued by the
appropriate Government then he or she will be punished with a fine, jail, or both.
Then he/she shall be punishable with fine or imprisonment or with both. Discrimination
based on gender or sex must be removed, and it is disappointing to find that there is a law
in place to safeguard the public's interests and eliminate prejudice
CONCLUSION
Despite repeated efforts by the legislative, government, and judiciary, the problem of
unequal pay for equal work persists in India. While the legislature has adopted a number
of measures to address the issue, several court rulings have led to the recognition of equal
pay for equal work as a fundamental right.
All of this has resulted in a marked improvement in the situation. Even though time has
17
Sec 3 Equal Remuneration Act 1976

18
An outline of equal remuneration act, 1976, TAXGURU, https://taxguru.in/corporate-law/outline-equal-
remuneration-act-1976.html (last visited Mar 20, 2022).

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gone, the crisis persists. According to a survey published by the International Trade Union
Confederation (ITUC) in March 2009, there was a 30% pay difference between men and
women in India in 2008.
In January, Adobe reported that it has closed the gender pay gap between male and female
employees in India, signaling a favorable shift in this context. This comes after the
corporation revealed in early December that gender pay equity for its employees in the
United States had been eliminated.

Adobe said in a blog post that it reviewed its job structure and remuneration processes over
the last year and made minor changes to its existing personnel practices, such as using
gender- neutral job descriptions and providing targeted training to spot unconscious
prejudice. "Today, we are ecstatic to announce that we have achieved pay parity between
men and women in India."

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