INTRODUCTION
Equal pay for equal work is not explicitly stated in the Indian Constitution as a basic or even constitutional right. It has been interpreted in accordance with Articles 14, 15, and 16 of the Constitution, which ensure equality before the law, protection against discrimination, and equality of opportunity in matters relating to public employment. In the recent years, courts have handled numerous cases involving “equal pay for equal work.” The case law has been developed on how to interpret Article 39(d) of the Indian Constitution when read in conjunction with Articles 14 and 16.
Equal pay for equal work does not imply that there should be equal pay for all types of work. Rather, it refers to equal work for the same job. Different occupations, professions, and locales pay different wages. The government should take into consideration a number of different factors when setting pay scales, including the level of skill required, the physical and mental demands of the job, experience required, the training needed, and the amount of work involved. However, In terms of the gender pay gap, which exists not only in India but all over the world, equal pay for equal work is typically understood. To understand the concept of gender, pay gap, it is important to first understand the difference between sex and gender. Sex denotes biologically-determined characteristics, while gender indicates culturally and socially shaped variations between men and women.
SCOPE OF THE DOCTRINE
Although the principle of equal pay for equal work is not explicitly stated in Article 14 of the Constitution, it will be invoked if any classification of pay scales is made that is unreasonable, and if unequal pay is based on no classification, in which case Article 14 will be invoked, and such classification should be set at zero and equal pay should be directed to be provided for equal work.
There should be no discrimination on the basis of sex, religion, caste, or race, according to the Indian Constitution. All Indian nationals are treated equally under the law, and it is against the law and criminal to discriminate against one person over another. Equal pay for men and women workers has always been demanded due to modern advancement and increased education because women do not view themselves as inferior to men. Although the phrase “equal pay for equal work” isn’t explicitly mentioned in the Indian Constitution’s chapter on fundamental rights, there is no room for doubt as to whether it qualifies as such.
Men and women must have equal rights and opportunities in the political, economic, and social arenas, according to Article 14. Article 15(1) forbids discrimination against any citizen based on factors such as race, caste, gender, or religion. Article 15(3): Special provision allowing the State to discriminate positively against women. Article 16: Equal opportunity for all people in cases involving public appointments. Article 39(a): The State shall direct its policy towards providing the right to means of subsistence for all citizens, men and women, on an equal footing. Equal remuneration for equal work is mandated by Article 39(d) for both men and women.
The right to equal compensation for equal work was previously only guaranteed under Article 39 of the Constitution’s Directive Principles of State Policy. Although these Directive Principles cannot be enforced by any court of law, they are essential to the country’s governance, and states are required to take them into account when passing laws.7 Nevertheless, there is no doubt today that it is a basic right protected by the above-mentioned Articles 14, 15, and 16 of the Right to Equality. Through numerous court rulings, the right to equal pay for equal work has assumed the form of a fundamental right.
LEGISLATIONS
In August 2019, India’s Equal Remuneration Act (ERA), which dealt with equal pay for equal work for men and women, was abolished and replaced by the Code on Wages 2019 (‘Code’). This presented an opportunity to close significant loopholes in India’s legal framework governing wage equity. It’s unfortunate that the opportunity was lost. The Equal Employment Opportunity Act (ERA) prohibits any discrimination against men and women who work for the same job or jobs that are similar to it on the grounds of recruiting, including promotions, training, or transfer.
On August 8, 2019, the President assented to and notified the C0de on Wages, 2019 of India (C0de 0n Wages). The Equal Pay Act, the Minimum Wages Act of 1948, the Payment of Wages Act of 1936, and the Payment of B0nus Act of 1965 are the four national level labour regulations on wages that are covered under the Code of Wages.
The first set of provisions in the Code of Wages deals with anti-discrimination and prohibits treating employees differently on the basis of their gender when it comes to concerns involving the payment of wages. The Code on Wages forbids discrimination in hiring practises and employment conditions, unless women’s employment in such jobs is prohibited by or subject to legal restrictions.
The main points of distinction between the ERA and the Code on Wages are that the former prohibited discrimination on the basis of gender, which includes the LGBTIQ category, while the latter only applied to discrimination against women and between men and women workers.
THE CODE ON WAGES, 2019
A set of labour codes covering pay, industrial relations, social security, and occupational health and safety have been prepared by India’s Ministry of Labour and Employment. As recommended by the second National Commission on Labour, these labour codes seek to rationalise, simplify, and combine more than 30 labour regulations. The first of the four labour codes to take effect in India will be the Code on Wages.
The Act will consolidate four major labour laws and standardise and clarify the definitions of terms such as “worker,” “wages,” and “contract labour” adopted in these four acts. It is a step in the right direction to lessen the amount of litigation that results from the uncertainty of definitions around this unlawful conduct. It has taken the place of four labour regulations, including the Equal Remuneration Act of 1976 and the Payment of Wages Act of 1936. It also repealed the Minimum Wages Act of 1948 and the Payment of Bonus Act of 1965.
The Code’s Section 3 prohibits discrimination against employees in an organisation based on their gender when discussing wages for the same job, the same work, or work of a comparable type performed by any employee.
The phrase “same work” or “work of similar nature” is therefore important in figuring out how to protect someone on the basis of gender. The term “same work” or “work of a similar nature” has been defined in Section 2(v) of the Code along similar lines with the E.R Act as “work in respect of which the skill, effort, experience, and responsibility required are the same, when performed under similar working conditions by employees, and the difference, if any, between the skill, effort experience and responsibility required for employees of any gender, are not of practical importance in relation to the terms and conditions of employment.
Employers frequently adopt fictitious names for the posts in order to get around E.R Act restrictions. For instance, a woman employee was discriminated against while receiving remuneration in the case of M/s Mackinnon Mackenzie and Co. Ltd. v. Audrey D’Costa and others because the employer believed she was working as a confidential stenographer and belonged to a distinct class. The Supreme Court rejected the employer’s argument and said that an equality claim shouldn’t be disproved on frivolous grounds. The Apex Court advised the authority to have a broad perspective and determine whether there are any distinctions of practical importance between the employee categorizations or nomenclatures.
In this connection, it is noteworthy that Articles 1 and 2 of the Illinois Equal Remuneration Convention of 1951 strive to establish the idea of equal remuneration for work of equivalent value. The terms of equal compensation for work of equal value appear to be stricter than those for work of a comparable type; however, the effective enforcement of the chapter on equal pay in the Code will substantially close this disparity.
CONCLUSION
Despite numerous efforts by the legislature, executive branch, and court, the issue of unequal pay for equal work persists in India. While the legislature has passed numerous laws to address the issue, numerous court rulings have caused equal pay for equal work to be recognised as a fundamental right. Together, these factors have caused the situation to significantly improve. Although time has passed, the crisis continues.
The Code has implemented progressive initiatives aimed at streamlining and correcting the flaws in the current pay regulations. The Code will result in the efficient enforcement of wage regulations by introducing uniformity in definitions, measures for good governance and openness, an accessible grievance procedure, the ability to appeal, and consideration of employee interests. The Code, which aims to advance gender justice and provide nearly universal protection of wage laws to most employees working in almost all businesses with few exceptions, will greatly benefit the labour force in the country.
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