Women are the integral part of the world of work both in terms of the Quality and Quantity. The parity of women’s employment is very important and this depends upon several factors. The foremost being equal access to quality education and fair opportunities in the paid labour market. This requires empowerment of women as well as the creation of awareness amongst all the stakeholders about their legal right and duties. We need to learn and adopt the concept of rising Generation Equal.[i]
Gender discrimination has been present since time immemorial across the globe. It is more constrained to the areas where implementation of labour law is weak. The dominant area of gender discrimination is at workplace where women are paid less than men for equal work. The reason of wage disparities between men and women may range from poor bargaining capacity to variation in women’s workforce participation.
Article 14 guarantees “Equality before Law and Equal Protection of Laws within the territory of India”. Article 15 prohibits discrimination on grounds, inter alia of sex. Article 15(3) empowers the state to make, any special provision in favour of women. Article 16 guarantees equality of opportunity in matters of public employment. While Article 16(1) ensure equality of opportunity for all citizens 18 Implementation of The Equal Remuneration Act, 1976 including women in matter relating to employment or appointment to any office under the state, Article 16 (2) prohibits discrimination in respect of any employment or office under the state on the ground, inter alia, of sex
Article 39 [ii]of the Constitution of India is the tool that provides equality and social economic justice to an aggrieved person. It enshrines the principle of equal pay for equal work. Article 39 of the Constitution of India envisage that the State must direct its policy towards providing equal pay for equal work irrespective of sex of worker.
India has signed Equal Remuneration Convention [iii](100) in 1951 and implemented The Equal Remuneration Act, 1976. The Equal Remuneration Act [iv]also owes its origin to the Article 39 (d) which was incorporated as one of the ‘Directive Principles of State Policy’ in the Constitution of India.
In Randhir Singh Vs Union of India [v], the Supreme Court held that the principle of “equal pay for equal work” though not a fundamental right is certainly a Constitutional goal and, therefore, capable of enforcement through Constitutional remedies under Article 32 of the Constitution. The doctrine of equal pay for equal work is equally applicable to persons employed on daily wage basis.
However, if there is rational basis on which payment of wages are different between men and women then, it will not be violative of any law. In State of A. P. Vs V. G. Sreenivasa Rao [vi], the Supreme Court has held that giving higher pay to a junior in the same cadre is not illegal and violative of Article 14, 16 and 39(d) if there is rational basis for it.
Equal Remuneration Act, 1976 as a tool of Women’s Economic Empowerment
The main object of Equal Remuneration Act, 1976 is to provide equal renumeration to men and women for equal work or work of similar nature in the matter of employment. It prevents discrimination on the ground of sex against women. It also ensures that there is no discrimination on the basis of sex in the matter of recruitment of women. Further, it provides for setting up of advisory committee to promote employment opportunities for women.
This legislation not only provides women with a right to demand equal pay, but any inequality with respect to recruitment processes, job training, promotions, and transfers within the organization can also be challenged under this Act. The judgment of the Supreme Court in State of Punjab Vs Jagjit Singh [vii], which applies the principle of “equal pay for equal work” in the context of temporary employees of the Punjab Government.
Chapter – II of Equal Renumeration Act, 1976 from Section 4 to Section 7 provides for the payment of remuneration at equal rates to men and women workers and other matters whereas Chapter-III is the miscellaneous chapter that covers the duty of employer, power of appropriate government and penalty provision.
Section 4 of this Act provides the duty of employer to pay equal remuneration to men and women workers for same work or work of a similar nature. As per Section 2(h) same work or work of a similar nature means work in respect of which the skill, effort and responsibility required are the same, when performed under similar working conditions, by a man or a woman 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 importance in relation to the terms and conditions of employment.
Therefore, no employer shall pay to any worker renumeration at rates less favourable than those at which remuneration is paid by him to the workers of the opposite sex in the establishment or employment for performing the same work or work of a similar nature. Also, the employer cannot reduce the rate of remuneration of any worker. The category of renumeration paid can be in cash or in kind.
Section 10 of the Act provides that If, any employer—
(a) makes any recruitment in contravention of the provisions of his Act, or
(b) makes any payment or remuneration at unequal rates to men and women worker, for the same work or work of a similar nature, or
(c) makes any discrimination between men and women workers in contravention of the provisions of this Act, or
(d) omits or fails to carry out any direction made by the appropriate Government under sub-section (5) of Section 6.
Then he shall be punishable with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with imprisonment for a term which shall be not less than three months but which may extend to one year or with both for the first offence, and with imprisonment which may extend to two years for the second and subsequent offences.
The scope of Equal Renumeration Act, 1976 is very vast. It covers all industries, public or private, organized and unorganized, and all employees doing permanent, temporary and casual work. The law covers central, state and local authorities, hospitals and dispensaries, banks and financial services, educational institutions, mines, provident funds and other state insurance corporations, the Food Corporation of India and other warehouses, all industries under National Industrial Classifications (NIC) groups 1, 2 and 3; power, water and gas generation, trade, transport (water, land and air), construction, real estate and sanitation, religious community and medical and personal services. However, the Act does not cover self-employed workers like unpaid women workers in farming, households and in the unorganized Industries in large numbers.
[ii] Article 39. Certain Principles of policy to be followed by the State. – The State shall, in particular, direct its policy, towards securing—(d) that there is equal pay for equal work for both men and women.
[iii] C100 of 1951.
[iv] Act 25 of 1976.
[v] AIR 1982 I SCC 618.
[vi] AIR (1989) 2 SCC 290.
[vii] (2016) SCC online SC 1200.
Authored by: Radhika Mittal
Radhika Mittal is a law student of Guru Gobind Singh Indraprastha University