Equal Pay: A Step Towards Equality

Equal Pay : A Step Towards Equality 16/04/24, 8:17 AM
Equal Pay : A Step Towards Equality

Legal Blogs June 16, 2021
“When we pay women less than men we’re telling women their work
isn’t as valuable. We’re all equally valuable. And we should be paid
equally.” [1]
-Maria Shriver
2. Constitutional Perspective
3. Equal Remuneration Act, 1976
4. The New Law on Wages
5. International Perspective
Introduction
The concept of “equal pay for equal work” denotes that individuals,
regardless of the gender, caste or religion, should be awarded equal
remuneration provided the work is alike. This ensures that there is no
space for prejudice among the individuals. Gender pay gap is a serious
concern when it comes to Labour Rights. The Constitution of India under
its Article 39, when read with Article 14, provides for the legislation
acknowledging the doctrine of equal pay for equal work.
The Equal Remuneration Act, 1976 administers for the payment of equal
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pay to men and women workers and to refrain any kind of discrimination
on the basis of sex. The International Forum also recognise the need to
remove discrimination in remuneration on the basis of gender.
International Convention on Economic, Social and Cultural Rights, The
European Social Charter African Charter on Human and Peoples’ Rights,
The Constitution of the International Labour Organization also aims on the
same policy. This principle is beneficial as it removes all barriers and
manifests women to choose their role in the society and evolve their
capabilities setting aside the stereotypes or rigid gender roles. The
jurisprudence of industrialization has exhibited the fundamental role of
labour laws as an instrument of social justice. Social justice means the
fulfillment of socioeconomic goals laid down by the planners. The
Industrial Law acquires a position of pride when it comes to the laws
which are vital to a nation’s life, which signifies a nation’s spirit, which
bestow revolutionary and dynamic values to jurisprudence and lift it from
conservative to progressive strata.
According to the Human Development Report, 1995, women’s

participation in the labour force had climbed only by 4 per cent points in
20 years from 36 percent in 1970 to 40 percent in 1999 women normally
receive a much lower average wage than men, all religions record a higher
rate of unemployment among women than men; women work for longer
hours than men in nearly in every country the deeply unequal sharing of
the burden of adversities between women and men is still persisting.
Various studies have shown that economic dependence of women is a
predominant cause of their subordination. Thus, a reform in the structure
of the economy whereby women are assigned a major productive role
would be a way to improve their status. Economic independence is the
foundation on which any structure of equality for women can be built.[2]
Constitutional Perspective
The Preamble of the Indian Constitution seeks to attain and administer
social, economic and political justice to all the persons of the country.
Article 39 of the Constitution anticipates that the state shall address its
policy, among other things, towards assuring that there is equal pay for
equal work for both men and women. To give effect to this constitutional
provision, the President, on 26th September 1975 promulgated the Equal
Remuneration Ordinance, 1975 so that the provisions of Article 39 of the
Constitution may be implemented in the year which is being celebrated as
International Women’s Year. The ordinance provides for payment of equal
remuneration to men and women workers for the same work or work of
similar nature and for the prevention of the discrimination on the grounds
of sex.
Article 39(d), Part IV of the Constitution of India affirms that the State
should direct its policy towards attaining the objective of equal
remuneration for both men and women. It expresses that where the work
is the same, all the circumstances and considerations are similar then the
people holding identical posts or ranks shall not be treated in a different
way on the basis of their gender.
[1]
In case of Jitendra Prasad Singh v. TELCO The court held that the
principles of equality are virtually present in the nature of natural law and
the denial of equality would be against Article 14 of the Constitution of
India. Article 15 prohibits discrimination on the grounds of sex, religion,
caste etc. Hence the Constitution treats each and every citizen equal and
further provides them with equal rights.
Equal Remuneration Act, 1976

The Equal Remuneration Act, 1976 was enacted to prevent discrimination
on the ground of sex and to administer equal remuneration to men and
women workers. In Dharwad District PWD literate Daily Wage Employees
[2]
Assn v. State of Karnataka it was held that the act provides for payment
of equal remuneration to men and women workers for the same work or
work of similar nature and for the prevention of prejudice on grounds of
sex.
Section 2(g) of the Equal Remuneration Act defines remuneration as ‘the

basic wage or salary and any additional emoluments, either in cash or in
kind, payable to a person in respect of employment or work done in such
employment.’ Section 2(h) of the Act defines such work as work in
respect of which skill, effort and responsibility required of a man and
those required for a woman are not of practical importance in relation to
the terms and conditions of employment.
The deciding element in cases of equal wages is the “same or similar

work” principle. However, this principle leads to adoption of indirect
means for fixing lower wages for women like dividing the jobs into Grade 1
and Grade 2 and then employing women in the lesser grade, thus
prevailing the equal Remuneration provision.
[3]
In the matter of Air India vs. Nergesh Meerza Air India air hostesses
claimed that they were being discriminated against by assistant flight
pursers who did essentially the same work on flights but had better
service conditions, a later retirement date, and other benefits. To dispel
any worries about possible violations of the Equal Remuneration Act of
1976, the government published a notification that stated unambiguously
that “inequalities in regard to pay, etc. of various groups of employees are
based on different conditions of service, not on sex differences”. The
Supreme Court gave the petitioners some minor concessions, such as
raising the retirement age and finding the section requiring the
termination of air hostesses’ duties due to pregnancy as unconstitutional.
However, it upheld the discriminatory working conditions.[3] At the same
time, the court acknowledged that “the two functions, albeit manifestly
different, overlap on certain areas,” but that “the distinction, if any, is one
of degree rather than kind.”[4]
The principle of Equal Pay for Equal Work was first discussed in the case
[4]
of Kishore Mohanlal Bakshi vs. Union of India , in which the Supreme
Court ruled that the principle is unfit to be used in a Court of law.
Nonetheless, it was only in 1987 that it received fair recognition in the

[5]
Mackinnon Mackenzie case , in which the issue at hand was a plea for
equal compensation for both male and female stenographers. The
Supreme Court ruled in favour of female stenographers because it
believed in the concept of equal compensation for equal work.
[6]
State of Punjab & Ors vs. Jagjit Singh & Ors , The Supreme Court of
India ruled that the principle of equal pay for equal work must be applied
to those who are connected or involved on a day-to-day basis, as well as
casual and legally bound workers who carry out or execute similar duties
as permanent workers.Terming or stating the forswearing of equivalent
compensation for equivalent work as the exploitative subjugation or
enslavement as well as abusive, suppressive and coercive, the apex court
held that in a welfare state like India, the rule must be extended to
temporary and casual workers as well.
The New Law on Wages

Recently, the Code on Wages, 2019 of India (Code on Wages) has been
notified and it received the Presidential consent on August 8, 2019. The
Code of Wages amalgamated four national level labour laws on wages,
being the Equal Remuneration Act, 1976; Minimum Wages Act, 1948;
Payment of Wages Act, 1936 and Payment of Bonus Act, 1965. The
primary set of provisions of the Code of Wages relates to forbidding
discrimination against employees on the ground of gender in matters
regarding to payment of wages. The Code on Wages also forbids
discrimination in the recruitment of employees and in terms and
circumstances of employment, except in the circumstances where
employment of women in such work is forbidden or restricted under any
law.
The main points of distinction between the Equal Remuneration Act and
Code on Wages are that while the Equal Remuneration Act observed
discrimination against women and between men & women workers, the
Code on Wages forbiddiscrimination on the grounds of gender, thereby
covering the LGBTIQ category similarly.
International Perspective
There are several international declarations, compact and conventions
through which diverse organizations worldwide have identified the right of
equal pay for equal work as an essential and primary right of the
workers/employees. Article 23(2) of the Universal Declaration of Human
Rights, administer and states that every person, without any
discrimination made has the freedom to pay for equal work.[5] Article 7(a)
(i) of the International Covenant on Economic, Social and Cultural Rights
determines a right to fair wages and equal remuneration for work of equal
value without any discrimination, also, women being endorsed conditions
of work not less than that of men with equal pay for equal work.[6] Article
4(3) of European Social Charter which determines the right to fair
remuneration and incorporates the recognition of the right to men and
women workers to equal pay for equal work.[7] The preamble of the
Constitution of International Labor Organization affirms the principle of
equal remuneration for equal work value.[8]
The right to equal pay for work of equal value has been deemed as a good
approach by recognizing the concept by organizations, including the
United Nations. Thus, it is explicitly clear that the concept of equality is
prevalent vividly and widely in the International Scenario and Indian
Constitution keeps in conformity to them. Here, the conditions of the
international society are all the more important as it is in conformity with
these principles that the Supreme Court of India evaluates and adjudges
the perception and broadens its scope according to the conditions

prevalent in the International Scenario.
Conclusion
The stereotypical traditional notion that women’s role cannot exceed the
private, domestic spheres, has hindered the consideration of women in
paid spheres of the labor market. The status of women in the sphere of
economic involvement can be improved by increasing the participation of
women in the paid labor market.
Although, a mere increase in their participation will be inadequate and will

not make any difference to the issue of gender inequality, unless it is
backed by the nature of work undertaken. The nature of work should be
decent as well as lucrative and also, more remunerative and secure.
Participation where illiterate women are crowded into unskilled, manual
labor, which rewards a little and is also hazardous to their health and
safety is not appreciated.
If there is a demand for women’s labour and more women are being
deployed, it is worthwhile to analyse the factors that led to this
employment. The only explanation for this scenario could be increased
desperation and poverty-induced compulsion, which would lead them to
take a lower-paying job. At the other end of the scale, increased
educational attainment may result in women being able to take on tasks
that were previously unavailable to them.
The Equal Remuneration Act in India was executed to prevent

discrimination among workers on grounds of gender. But its success in
bringing an improvement to the labor market is quite doubtful. What’s
needed is not just the law but also its implementation and alertness ,
alertness among both the workers and employers.
References
1. Quote by Maria Shriver

2. Dr M.K. Stivastava, “ Role of Enforcement Agencies in Protecting
Women’s Rights” (2002) 15 C12Q
3. Neeru Chadha , “Levelling the workplace for women workers: Equal
Remuneration & Maternity Benefits” in Amita Dhanda and Archana
Prashar (Eds) , Engendering Law: Essays in Honour of Lotika Sarkar
(Eastern Book Co. 1999)
4. Air-India vs. Nergesh Meerza, (1981) 4 SCC 335: 1981 SCC (L&S)
599
5. Art. 23, cl 2, Universal Declaration of Human Rights, 1948.
6. Art. 7, cl. (a), sub cl. (i), International Covenant on Economic, Social,
and Cultural Rights, 1966.
7. Art. 4, cl. 3, European Social Charter,https://rm.coe.int/168006b642.
8. ILO, CONSTI, https://www.ilo.org/dyn/normlex/en/f?
p=1000:62:0::NO:62:P62_LIST_ENTRIE_ID:2453907:NO#A10.
[1] 1998 SCC OnLine Pat 353:(1998) 3 PLJR 277
[2] (1990) 2 SCC 396
[3] (1981) 4 SCC 335: 1981 SCC (L&S) 599
[4] Kishore mohan lal bakshi AIR 1962 SC 1139.
[5]M/s Mackinnon Mackenzie & Co. Ltd. vs. Audrey D’Costa& Others,
(1987) 2 SCC 469.
[6] (2017) 1 SCC 148.
Author- Vanshika Gupta, Maharaja Aggrasen Institute Of Management

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Equal Pay : A Step Towards Equality 16/04/24, 8:17 AM

Equal Pay : A Step Towards Equality

According to the Human Development Report, 1995, women’s

Equal Remuneration Act, 1976

Section 2(g) of the Equal Remuneration Act defines remuneration as ‘the

The deciding element in cases of equal wages is the “same or similar

Nonetheless, it was only in 1987 that it received fair recognition in the

The New Law on Wages

the perception and broadens its scope according to the conditions

Although, a mere increase in their participation will be inadequate and will

The Equal Remuneration Act in India was executed to prevent

1. Quote by Maria Shriver

[1] 1998 SCC OnLine Pat 353:(1998) 3 PLJR 277

[2] (1990) 2 SCC 396

[3] (1981) 4 SCC 335: 1981 SCC (L&S) 599

[4] Kishore mohan lal bakshi AIR 1962 SC 1139.

[6] (2017) 1 SCC 148.

Author- Vanshika Gupta, Maharaja Aggrasen Institute Of Management

Attention all law students!

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