INTRODUCTION:
The basic idea behind equal pay for equal work arises from the traditional discrimination against women in the workplace, where a woman doing a particular job is paid lesser than her male counterpart doing the same kind of work. This was one of the driving factors behind the second wave feminist movement across the world. This is not a novel phenomenon and has been going on for ages. ‘Pay Gap’ or unequal pay is a matter of concern these days because of a rise in the instances of unfair wage rates for the same kind of jobs. Equal Pay for Equal Work is an international movement with the 1951 UN Convention concerning Equal Remuneration stating that the principle of equal remuneration is to be applied to men and women for work of equal value and can also be seen in the International Covenant on Economic, Social and Cultural Rights[1] It can be observed with the current state of the laws in India that it lacks an equitable and open pay policy for all economic sectors. This makes the issue of future equal pay demand a matter of concern in recent times.Despite having several constitutional provisions calling for the end of all discrimination based on gender,pay inequality is a fact and it ranges widely in terms of its severity across different regions of the country and various industries[2]. In this article, we shall look at the situation in India along with an analysis of various labour laws such as the Equal Remuneration Act, 1976, and the newly introduced Code on Wages, 2019 as well as various Constitutional provisionsconcerning the gender pay gap.
SITUATION IN INDIA:
The gender pay gap situation in India is quite grim with women earning, at an average 19% less than men, who are earning 46.19 rupees more than women, considering per hour wages[3]. India ranks 112th in the Global Gender Gap Ranking as of 2019 with a downward trend after slipping 4 places as compared to the previous year[4]. In addition to the gender wage gap, India is also facing a massive pay gap between organized and unorganized industries, rural and urban areas, and permanent and casual workers. Even though the per capita income in India has improved considerably, it has seemed to have minimal effect on the gender pay gap.
LAWS CONCERNING EQUAL PAY:
There is no express mention of the principle of ‘Equal Pay for Equal Work’ in the Fundamental Rights ensured to every citizen by the Constitution of India. However, there cannot be no denying whether it can be called a fundamental right or not. It has been included under the ambit of Article 14 which provides that men and women have equal rights and opportunities in political, economic, and social spheres. Even Article 15 provides for a prohibition on discrimination based on sex and enables the government to create special opportunities for women. The doctrine has found its most direct interpretation in Article 39 of the Constitution, forming a part of the Directive Principles of State Policy. Article 39(a) directs the states to make policy for ensuring a means of livelihood to equally to every citizen, men or women. It is most clearly seen in clause (d) of the same article directing States to provide equal pay for equal work to both men and women.
Even though this principle is enshrined in the Directive Principles of State Policy (which are not enforceable by any court but form an important consideration to keep in mind when States form policies), they have become fundamental rights through various judicial precedents. The first time it was held that equal pay has to be given for equal work done in the same capacity was in the landmark judgment of Mackinnon Mackenzie and Co. Ltd. vs. Audrey D’Costawhere female stenographers’ claim for equal pay, who were paid less than their male counterparts was accepted by the Supreme Court[5]. The interpretation that even though this principle is not expressly mentioned in the Constitution but is an important goal of Article 14, 15, and 39 was given in the case of Randhir Singh v. Union of India and thus could be enforced in cases of unequal pay scales based on arbitrary grounds[6].
Beyond the Constitution, several statutes also work to promote the principle of equal pay for equal work. The Workmen’s Compensation Act, 1922 corrects the defect that women may have lesser bargaining power as compared to their male colleagues by making provisions for the same. The Minimum Wages Act, 1948 makes no differentiation in providing men and women the same minimum wage for the same kind of work. Suitably differentiated treatment in favour of women is also made in Contract Labour (Regulation and Abolition) Act, 1970 providing for the separate provision for utilities and fixed working hours for women.
The Equal Remuneration Act(ERA) was passed in 1976 to provide equal remuneration to male and female employees and to prevent any kind of discrimination based on gender-related to employment and employment opportunities. Any inequality or arbitrariness in the selection, promotion, etc. based on the gender of the employee can also be challenged under this Act. Individual employers, as well as companies, are included under the purview of this Act along with Government establishments[7]. If in case an employer violates the provisions of this Act with respect to wages or recruitment, he can be punished with simple imprisonment not less than three months but up to one year for the first offense and up to 2 years for the second and subsequent offenses with a fine, not less than ten thousand rupees but up to twenty thousand rupees or both[8].
However, this Act was repealed in 2019 and was replaced by the new Code on Wages which now consolidates the ERA, Minimum Wages Act, 1948, Payment of Wages Act, 1936, and Payment of Bonus Act, 1965. The key difference between the repealed Act and the Code on Wages, 2019 is that it has been made with a more modern outlook and has expanded the meaning of the word ‘gender’ to also include people of the LGBTQ community, who can also now complain against discrimination against them concerning wages and recruitment.
However, ‘equal pay for equal work’ is not an absolute right and is subject to certain exceptions which have been formalised by judicial precedents. Different pay scales (government employees) may be set for persons performing similar work based on a difference in the degree of responsibility, reliability, and confidentiality[9]. This must be based on the work done and not the volume of work. In another landmark case, it was held that difference in pay scale based on educational qualifications was not in violation of Article 14 and 15[10]. The Supreme Court is also of the opinion that equal pay for equal work is not an easy doctrine to apply and several aspects such as the nature of work, qualifications, responsibilities, etc. must be considered for comparison[11].
SHORTCOMINGS OF THE CURRENT LAW:
The intention of the legislature while making laws to carry forward the doctrine of ‘equal pay for equal work’ was noble indeed but current statistics have indicated that the gender pay gap is reducing but not up to the standards of the rest of the world. Even though the Code on Wages was made to bring about more stringent measures to bridge this gap, the law itself is not perfect and has certain flaws and missed opportunities as well. Even though this Code has done away with the binary classification of gender to include people of every gender, it still hasn’t addressed a problem that India was facing for a very long time. Gender-based discrimination, despite being a key element of this Code, has failed to address another social class while trying to address the issue of equal pay – the lower castes. Traditionally, in independent workplaces all over India, the work done by people of certain castes considered historically low, has been undervalued. I believe that it is a missed opportunity of sorts where the law could be better utilised to get rid of newer forms of caste segregation and discrimination, especially in the workplace along with bringing about equality of payment between genders.
The next criticism is not directed towards the law in question but to how it has been interpreted by the Courts. The Code on Wages requires employers to pay the same wages to employees performing the ‘same work, or work of similar nature’. This term has been interpreted quite narrowly by the Judiciary and somehow, this interpretation has stuck till today. A more realistic approach has not been taken where the duties performed by male and female employees in the same establishment are different but require an equal degree of skill and experience. For example, care work performed by women working in a day-care center, and work performed by male machine operators in the same factory requires an equal degree of skill and patience even though the skills required are inherently different[12]. A wider interpretation could be given like the one found in Equality Act, 2010(England) which has utilised the term ‘work of equal value’[13]. This will bring work exclusively done by women at par with those done by men to stop being traditionally devalued as was done for ages.
CONCLUSION:
Upon an initial reading of this article, you may think that the gender-pay gap scenario has no scope for improvement in light of our current laws. A closer inspection of the pay-gap statistics studied concurrently with the implementation of these laws indicates a downward trend in the reduction of the disparity as well. These laws, especially after ‘equal pay for equal work’ had been made a fundamental right, have been effective in lowering the percentage of the gender pay gap in the Country. Compared to 2016, where the gender pay gap in India was a staggering 25%, it has come down to 19% for 2019[14]. In spite of these statistics, we still have a long way to go not just in terms of bridging this gap, but to ensure more safety to women and empower them not just economically but also socially by breaking patriarchal norms that have boundthem for ages and make women truly equal to men in terms of the freedoms they possess and change the prevailing outlook of the society towards working women.
[1] Article 7, International Covenant on Economic, Social and Cultural Rights, 1966
[2]Siba Shankar Mohanty, MadhuBisht, and Purnima Mohapatra, Gender Wage Gap among Salaried Workers in India: Results of a Principal Component Analysis of State Level Statistics,Economic Affairs, Vol. 59 No.2: 107-320 June 2014
[3]Monster Salary Index Report, 2019
[4] Business Today, India Slips to 112th Rank on Gender Gap Index; in Bottom 5 on Health, Economic Fronts, Dec. 17, 2019,https://www.businesstoday.in/current/economy-politics/india-slips-to-112th-rank-on-gender-gap-index-bottom-5-health-economic-fronts/story/392184.html (accessed on 02.05.2020, 1.20 pm)
[5]Mackinnon Mackenzie and Co. Ltd. vs. Audrey D’Costa (1987) 2 SCC 469
[6]Randhir Singh v. Union of India AIR 1982 SC 879
[7] Section 2(c), Equal Remuneration Act, 1976
[8] Section 10(2), Equal Remuneration Act, 1976
[9]F.A.I.C. and C.E.S. vs. Union of India (1988) 3 SCC 91
[10]Markendeya v. State of Andhra Pradesh AIR 1989 SC 1308
[11]Orissa University of Agriculture and Technology v. Manoj K. Mohauly(2003) II, LLJ, SC 968.
[12]RishikaSahgal, Equal Pay for Equal Work? Flaws in the Indian Law, (OxHRH Blog, 6 December 2019) https://ohrh.law.ox.ac.uk/equal-pay-for-equal-work-flaws-in-the-indian-law/ (accessed on 03.05.2020, 03.49 pm)
[13] Sandra Fredman, The Right to Equal Pay for work of Equal Value, Background Paper for the Working Group on Discrimination against Women in Law and Practice (the Working Group): Economic and Social Life, Oxford University
[14] Times of India, Women earn 25% less than men in ’16: Study, March 7, 2017, https://timesofindia.indiatimes.com/business/india-business/women-earn-25-less-than-men-in-16-study/articleshow/57503639.cms
By-
Shivam Mulik