- ABSTRACT
Our Constitution does not explicitly states the right to receive equal pay for equal work as a fundamental or constitutional right of the workers or the employees of any organization. This concept is commonly understood in terms of gender pay gap in India as well as other places around the globe. Since the past times, there have been a number of issues that have been identified from time to time by the Indian judiciary.
The paper along with other statutes, analyses the Equal Remuneration Act, 1976, in this context, which was passed with the aim of providing equal remuneration to both men and women to negate the discrimination on the basis of gender in the matters in respect of employment and the employment opportunities. This Act not only provides the workers the right to demand equal pay for equal work performed but also the grounds to challenge any inequalities in relation to the employment such as recruitment process, transfers, promotions, job training, etc. under the Act against the employers. In Addition, the paper examines the scope and breaking points of this broad principle of ‘Equal pay for equal work’ by examining various decisions and interpretations given by Indian judiciary.
Thus the paper includes the critical evaluation of the principles laid down by the Indian Constitution and various statutory laws highlighting the issues as to pay gap.
Keywords: discrimination, pay gap, constitution, equality
- INTRODUCTION
The procuring or earning of livelihood had turned into a significant part of life after culture came into existence as the number of physiological changes happened during the procedure of advancement. In the social set up it turned out to be hard for a person to endure hence he became casualty of conditions. After coming into existence of the State, man looked for business, employment and different sources in order to acquire his job/livelihood and get by in this barbarous and cruel world.
Since the starting point of humanity, the fundamental want has been for standardized savings. Every single individual need least prerequisite of nourishment, shelter and attire or clothing. The financial structure of India is with the end goal that a few people live opulently and greater part of them lead an actual existence beneath the poverty line. Impulses of inconsistent dispersion of land in the small villages and village societies, which are unable to give work to its occupants, make them to race to the urban areas in search of work.[1]
The Indian Constitution does not expressly guarantees the right to receive equal pay for equal work as a fundamental or a constitutional right of the workers or employees. It can though be read through the interpretations of Article 14, 15 and 16 which guarantees the fundamental rights of equality before law; protection against any kind of discrimination; and equal opportunities in the matters of public employment.
Internationally, there are various declarations, covenant and conventions through which different organizations worldwide have recognized the right of equal pay for equal work as a basic and primary right of the workers/employees.
Article 23(2) of the Universal Declaration of Human Rights provides or states that every person, without any discrimination made has the right to pay for equal work.[2] Article 7(a)(i) of the International Covenant on Economic, Social and Cultural Rights provides a right to fair wages and equal remuneration for work of equal value without any discrimination, also, women being guaranteed conditions of work not less than that of men with equal pay for equal work.[3]Article 4(3) of European Social Charter which provides the right to fair remuneration and includes the recognition of right to men and women workers to equal pay for equal work.[4] The preamble of the Constitution of International Labor Organization proclaims the principle of equal remuneration for equal work value.[5]
The right to equal pay for work of equal value has been considered a good practice by recognizing the concept by organizations, including United Nations.
The concept of equal pay for equal work is generally understood in the terms of gender pay gap. ‘Pay Gap’ or inconsistent compensation is an issue which is a matter of concern nowadays because of an expansion in the situations of unfair compensation or pay scales for a similar sort of work. India still comes up short on an exhaustive and straightforward compensation approach for every one of the segments of the economy or different industries. This makes the issue of potential interest for equivalent compensation a matter of worry as of now. Equivalent compensation or equal pay here relates not exclusively to fundamental compensation yet incorporates different allowances and benefits included in the course of employment as well. The gender pay gap in India is majorly because of the way that there is a distinction among male and female education rates in the nation. As men are considered as the future bread-earners of the family, individuals particularly in villages and other many rural areas lean towards spending more on the training of their sons as opposed to their daughters which later on prompts ladies earning less.
- CONSTITUTIONAL ASPECT OF EQUAL PAY
The Indian Constitution is the Supreme Law of India and there is no law above the Constitution. According to Dr. Hens Kelsen’s pure law theory, there is a norm which can be said as a rule or regulation which forbids or prescribes a certain behaviour in the society. And, the validity of such norm can be ascertained with reference to its authorizing norm, which confers a power to create such norm and may also specify the conditions for its exercise. The authorizing norm which is the original and basic norm can be said as the grundnorm. In the Indian context, the Constitution of India is the grundnorm and other statutes like Equal Remuneration Act, 1976; Minimum Wages Act, 1948; Workmen’s Compensation Act, 1923 etc. are the statutes or norms which gains its authenticity and validity from the grundnorm i.e. the Constitution of India.
The Constitution has been drafted by the Constituent Assembly in such a way that it takes care of the rights of every individual from every section of the society and at the same time restricts the state from violating the fundamental rights of the individual enshrined under various articles of the Constitution.
Article 39[6] provides specific standards of approaches to be pursued by the state. It has been set out that equivalent compensation or equal pay ought to be given to men as well as women doing equal value of work. This article, which obviously foresee equality of pay for both men and women, has been applied to authorize balance of pay by and large. In the case of Randhir Singh vs. Union of India[7]the Supreme Court held that the guideline of equivalent compensation for equivalent workhowever not a fundamental right is unquestionably a protected objective of the Constitution, subsequently, and can be enforced under article 32 of the Constitution as a constitutional remedy. This principle of equivalent compensation for equivalent work is similarly relevant to people utilized on day by day wage premise. They are qualified for indistinguishable wages from other perpetual or permanent employees in the office utilized to do the indistinguishable work.[8]
The principle of equal pay for equivalent work can’t be followed blindly. This right, despite the fact that discovers its place in Article 39, is based on the principle of equality revered in Articles 14 and 16 of the Indian Constitution. Reasonable classification, in light of coherent criteria or intelligible differentia having nexus with the articleswhich is to be accomplished is allowed. In like manner, in the case of State of U.P. vs. J.P. Chaurasia[9] Supreme Court held that distinctive scale of pay in a similar unit of individual doing comparative work can be fixed if there is a distinction in the idea or very nature of work done and there is a difference as regards unwavering quality and obligation.
- JUDICIAL ACTIVISM AS TO EQUAL PAY FOR EQUAL WORK
The guideline of Equal Pay for Equal Work was first considered in the case of KishoriMohanlalBakshi vs. Union of India[10], 1962 where the Supreme Court announced it unequipped for being implemented in the court of law. Nevertheless, it got due acknowledgment just in 1987 through the Mackinnon Mackenzie’s case[11] where the issue in hand was a case for equivalent compensation for both male and female Stenographers. The Court decided in favor ofwoman stenographers as the Court was supportive of the principle of equal pay for equal work.
There have been various interpretations made in different situations of the aforesaid principle, some of them are as follows:
- Frank Anthony Public School Employee’s Association vs. Union of India[12],
The Court struck down Sec. 12 and declared unlawful and violative of the Indian Constitution of the Delhi School Education Act on the ground that it violates Article 14 as it made separation/distinction in pay and other terms of the employment of teachers fundamentally on the ground of aided schools and minority independent schools.
- S. Narkara vs. Union of India[13]
The Court was of the opinion that article 38 (d) of the Indian Constitution necessitates that the State will endeavor to limit the imbalances in pay and attempt to take out disparities in status, offices and openings among people as well as among gatherings of individuals living in various territories or occupied with various livelihoods.
- DhirendraChamoli vs. State of UP[14]
The Court held that the guideline of equal pay is likewise pertinent to the casual workers hired on day by day wage basis which was followed in the Daily Rated Casual Labour case[15]. As a result, it was held that people utilized in Nehru Yuwak Kendra in the nation as casual workers on day by day wage basis were doing likewise nature of work as done by Class IV workers/employees who were appointed on ordinary or regular basis and accordingly qualifies for same compensation and states of work.
- Jaipal vs. State of Haryana[16]
The Supreme Court held that however the principle of equal pay for equal work would apply on the basis of comparable work yet it doesn’t imply that there ought to be completely identical in all regards. To ignore the principle of equivalent compensation for equivalent chip away at the ground of one worker being transitory and the other being permanent or lasting in nature is nonsensical. A casual or temporary worker playing out similar obligations, other required duties & functions is qualified for a similar compensation as paid to a permanent worker. So also, the distinction in method of choice won’t influence the use of the teaching of equivalent pay for equivalent work if both the classes of people perform comparable capacities and obligations under the same employer.
- Markendeya vs. State of Andhra Pradesh[17]
The Supreme Court in this case held that the motivation behind Article 39(d) was to fix certain social and financial objectives for evading any segregation among the residents doing comparable work in issues related to pay. The rule of equivalent pay for equivalent work isn’t a conceptual or an abstract one, it is available to the State to recommend various scales of pay for various units in respect to the nature of obligations, duties and instructive capabilities. Where two classes of workers perform indistinguishable or comparable or similar kind of obligations and completing the same functions with a similar proportion of obligation having same scholastic capabilities, they would be qualified for equivalent pay. In the event where the State denies them uniformity in pay, it would be violative of Articles 14 and 16 of the Indian Constitution.
- State of Madhya Pradesh vs. PramodBhartiya[18]
The Court observed that the principle of equal pay for work of equal value is certain and implicit in the principle of equality cherished under Article 14, and streams from it. The standard is as a lot of a part of Article 14 as well as the principle under Article 16(1) of the Constitution of India.
- Government of Andhra Pradesh &Anrvs. Hari Hara Prasad P. &Ors.[19]
The Supreme Court held that the regulation of equivalent compensation for equivalent work is a fair guideline yet it isn’t normally reasonable for the court either to go into the nature of the obligations of workers while practicing compose purview under Article. 226 of the Constitution of India or on the premise to grant award equal of pay between two sets or classes of workers who were administered by various guidelines as respects their compensation scales and states of administration. Also, before applying the standard of equivalent compensation for equivalent work, assurance of nature of work, capabilities obligations and so on are essential elements required.
- Orissa University of Agriculture and Technology vs. Manoj K. Mohauly[20]
The Supreme Court held that the guideline of equivalent compensation for equivalent work isn’t in every case simple to apply. Nature of work, capabilities, and obligations and so on should be looked at. The fundamental averments and material must be put under the steady gaze of the court for considering the utilization of the said rule.
- State of Haryana and others vs. Charanjit Singh&Ors.[21]
The principle of equal pay for equal work isn’t a theoretical precept and is prepared to do being upheld in a courtroom. Yet the equivalent compensation must be for equivalent work but also of equivalent worth. The standard of equivalent compensation for equivalent work has no mechanical application for each situation. Article 14 grants reasonable classification and intelligible differentia dependent on the characteristics or the qualities of people selected and gathered, as against the individuals who were forgotten about. Obviously, the characteristics or qualities must have a sensible connection to the object tried to be accomplished. In administration matters, legitimacy or experience can be a legitimate and a very valid reason for classifying the purpose behind pay so as to advance effectiveness in the organization.
- State of Punjab &Ors vs. Jagjit Singh &Ors[22]
The Supreme Court of India held that the guideline of equivalent compensation for equivalent work must be made pertinent to those connected or engaged on day-to-day premises, casual and legally binding workers who play out or perform indistinguishable obligations as the permanent workers.Terming or stating the forswearing of equivalent compensation for equivalent work as the exploitative subjugation or enslavement, abusive, suppressive and coercive, the apex court held that in a welfare state like India, the rule must be reached out to temporary and casual workers as well.
- STATUTORY ASPECTS
- Equal Remuneration Act, 1976
This Act has been a significant government step or enactment towards “equal pay for equivalent work”. In 1976, the Equal Remuneration Act was passed with the point of giving equivalent compensation to men and women laborers and to forestall segregation based on sexual orientation in all issues identifying with business and work openings or opportunities. This enactment not just gives ladies a privilege to request equivalent compensation, yet any imbalance concerning enlistment forms, work preparing, advancements, and moves inside the association can likewise be tested or can be challenged in the Court of Law under this Act. Organizations and individual employers can both be considered responsible to keep up the guidelines endorsed under this Act. In different cases, the Supreme Court of India has likewise held that segregation or discrimination based on sexual orientation possibly emerges when people play out a similar work or work of a comparative sort. The Equal Remuneration Act means to accommodate the installment of equivalent compensation to men and womenlaborers and for the anticipation of separation, on the ground of sex, against ladies in the matter of business and for issues associated therewith or accidental thereto. As per the Act, the term ‘remuneration’ signifies the fundamental basic pay or wage or pay in form of salary and any extra emoluments all payable, either in real money or in kind, to an individual utilized in regard of business or work done in such business, if the conditions of the agreement of work, express or suggested, were satisfied.Nonetheless, in spite of these endeavors by the legislature the circumstance has not changed a lot. Despite the fact that in the greater part of the administration or government employments there are equivalent wages for equivalent work, the equivalent isn’t valid for private segment occupations. There is still a separation in private division, particularly in low paid occupations or jobs and in sloppy segment or the unorganized sectors which isn’t sorted out as indicated by government standards.
- Workmen’s Compensation Act, 1923:
The Act was enacted with the aim of providing financial protection to the workmen & his / her dependents in case of accidental injury arising out of and in course of employment by means of payment of compensation by a certain class of employers.
Because of the differences in bargaining power there are chances that the woman may be subject to exploitation. This act helps to avoid that risk. Also, the Act has been amend from time to time to meet the requirements of the dynamic society.
- Minimum Wages Act, 1948:
The Act provides a statutory fixation of minimum wages working in specified employments, since workers are poorly organized & have a less bargaining power in India. The minimum wage is revised and reviewed after fixed interval of 5 years.
- Factories Act, 1948:
This Act was introduced to regulate the working condition of laborers employed in the factories, to regulate certain aspects such as health, safety, etc. The factories should be clean so as to provide healthy working environment to the employees, proper safeguards should also be taken especially in the hazardous factories for the protection of the employees, etc. It casts different commitments, obligations and duties on the occupier of a manufacturing plant and furthermore on the production line director or other factory managers. Revisions to the Act and various decisions of courts have additionally broadened the nature and extent of the idea of occupier, especially in case of hazardous factories.
- CONCLUSION
The articles of Part III and Part IV are corresponding and advantageous for one another. The Fundamental Rights are nevertheless intended to accomplish the objectives proposed in Part IV of the Constitution. As, equivalent compensation for equivalent work is not explicitly provided by the constitution under the head of Fundamental Rights however these standards are the objectives and central in the administration of the nation, in this way these F.R’s must be translated in the light of these Directive Principles.[23]
This judgment is in reality an invite/welcome step and gives the correct heading as far as guaranteeing equity. Non-perpetual workers are intended to be utilized distinctly for business exigencies and not for wage exchange. Shockingly, there keeps on being occurrences of segregation of such non-perpetual staffs/employees/workers in India, particularly provisional work, where separation must be maintained a strategic distance from no matter what. Infact, the Contract Labor (Regulation and Abolition) Act, 1970 (“CLRA”) requires the temporary worker to guarantee that the paces of wages payable to the workers of the contractual worker are at the very least the rates recommended under the Minimum Wages Act, 1948. The SC judgments should, in the view, help to change the manner in which the employers approach such non-perpetual worker prompting critical decrease in wage separation.
Having crossed the legitimate parameters regarding the use of the standard of ‘equivalent compensation for equivalent work’, in connection to temporary employees, the most significant factor that would require assurance is whether the concerned workers are rendering comparative obligations and duties as are being released by lasting representatives, holding the equivalent/relating posts. This judgments of the SC clarifies that a simple contrast in terminology isn’t adequate to disentitle a transitory worker from being paid wages at standard with permanent employees.
[1]I.C. Awasthi, Contractual Employment in Indian Labour Market: Emergence and Expansion‖, 2010, http://books.google.co.in/books?isbn=8180696987, 322-325.
[2]Art. 23, cl 2, Universal Declaration of Human Rights, 1948.
[3]Art. 7, cl. (a), sub cl. (i), International Covenant on Economic, Social, and Cultural Rights, 1966.
[4]Art. 4, cl. 3, European Social Charter,https://rm.coe.int/168006b642.
[5]ILO, CONSTI, https://www.ilo.org/dyn/normlex/en/f?p=1000:62:0::NO:62:P62_LIST_ENTRIE_ID:2453907:NO#A10.
[6]INDIA CONSTI, art. 39, cl. d.
[7] AIR 1982 SC 879.
[8] Daily Rated Casual Labor vs. Union of India, (1988) SCC 122.
[9] AIR 1989 SC 19.
[10] AIR 1962 SC 1139.
[11]M/s Mackinnon Mackenzie & Co. Ltd. vs. Audrey D’Costa& Others, (1987) 2 SCC 469.
[12] (1986) 4 SCC 707.
[13] 1983 AIR 130.
[14] (1986) 1 SCC 637.
[15]Supra note 8.
[16](1988) 3 SCC 354.
[17] (1989) 3 SCC 191.
[18] AIR 1993 SC 286.
[19](2003)Vol.I, LLJ SC 213.
[20]2003 Vol. II, LLJ SC 968.
[21] AIR 2006 SC 161.
[22](2017) 1 SCC 148.
[23]Unni Krishnan vs. State of Andhra Pradesh, 1993 AIR 2178.
