“Naryastu Rāṣṭrasya Śvahi”
Women are the nation’s future.
The month of March celebrates women and it comes across as an opportunity to see how far we have come in guaranteeing equality to women. Discrimination existing in society is one of the biggest violations of human dignity. Discrimination against women exists in all spheres of life. On the workplace front, women are often faced with quite uncomfortable working conditions such as discrimination during hiring, unequal pay, and insensitivity towards women-centric issues such as maternity and menstrual care. However, this article would focus on discrimination in the payment of wages.
The issue of gender discrimination has given an upsurge to the gender pay gap. Historically speaking, equal pay for equal work has been the aim of many feminist movements across the world. The principle of “equal pay for equal work” has not been expressly embodied in our Constitution but the principle has matured into a fundamental right by the collective interpretation of Articles 14, 16 and 39(d) of the Constitution of India.
The Hon’ble Supreme Court has explained in State of Madhya Pradesh v. Pramod Bhartiya, the doctrine of equal pay for equal work is implicit in the doctrine of equality enshrined in Article 14 and flows from it. The rule is as much a part of Article 14 as it is a part of Article 16(1). The doctrine is also stated in Article 39(d), a directive principle that ordains the State to direct its policy toward securing equal pay for equal work for both men and women.
The Hon’ble Supreme Court has enunciated the doctrine of “equal pay for equal work” as follows:
“The doctrine of equal pay for equal work would apply on the premise of similar work but it does not mean that there should be complete identity in all respects. If the two classes of persons do some work under the same employer, with similar responsibility, under similar working conditions, the doctrine of ‘equal pay for equal work’ would apply and it would not be open to the State to discriminate one class with the other in paying salary.”
The service rules of female employees of Air India which made it compulsory for women to seek permission of the Government before marriage and also made it compulsory for them to retire if they marry within four years of service or if they become pregnant, were held by the Supreme Court of India to be discriminatory and unconstitutional and violative of Articles 14 and 16 of the Indian Constitution.
A study in 2019 on working women in India shows that India’s female labour force participation is 27 % while that of men is 96%.
India ranks 135 among a total of 146 countries in the Global Gender Gap Index, 2022 released by the World Economic Forum. Iceland led the global ranking. It is the only economy to have closed more than 90% of its gender gap.
The Periodic Labour Force Survey’s 2020-21 annual report says that labour force participation rate among Indian women is just 23.15 percent, in contrast to 57.75 percent in men.
According to National Family Health Survey 2019-21, 25.2 percent of the surveyed women were employed, while 74.8 per cent of the surveyed men had a job at that point.
According to the Monster Salary Index (MSI) on gender for 2016, women in India earn 25% less than men.
Equal Remuneration Act, 1976
The Equal Remuneration Act, 1976 was brought forward to meet the obligations of Equal Remuneration Convention, 1951. The Act provides for equal remuneration for both men and women. It shall be the duty of the employer to provide equal remuneration to men and women workers for the same work or for work of similar nature. The Act also suggests that there must be no discrimination during the period of recruitment.
Code on Wages, 2019
The Equal Remuneration Act of 1976 was replaced by this Code. The aim of the code is to discourage the gender pay gap. The Act recognizes the need for equal pay for equal work for all genders including transgender.
India has recently taken the presidency of G20 (Group of Twenty), which has adopted certain sustainable wage policies to address the wage gap which have been identified as the key objectives of the United Nations 2030 Agenda for Sustainable Development.
Recently, the Board of Control for Cricket in India (BCCI) has been in the headlines for introducing equal pay for men and women players who represent the country at international levels.
This gender pay gap not only exists in India but exists even in developed countries. In 2022, the World Economic Forum gave its report saying that the gender pay gap will take 132 years to close.
The right to equality finds its place in the United Nations Charter, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Following the path of equality shown by these international instruments, the concept of income equality took birth through the following international initiatives.
The International Labour Organization (“ILO”) was created in 1919 and expanded in 1946. The organization lays down international labour standards. The aim of ILO is to improve labour conditions and to set uniform labour standards throughout the world. Among other objectives, ILO aspires to achieve equal pay for equal work.
This Convention was adopted by the International Labour Organization in 1951 at a General Conference convened in Geneva. The convention came into force in May 1953. Article 1(b) of the Convention defines the term “equal remuneration for men and women workers for work of equal value” as rates of remuneration established without discrimination based on sex. The Convention through Article 2 puts an obligation on the states to adopt legislation that would prevent such discrimination and ensure the application of this principle to all the workers.
The Convention has so far been ratified by 174 countries and India is one of them. Last ratification was done by Liberia on 13 June, 2022.
The Universal Declaration of Human Rights also adopted a convention on 25th June, 1958 known as the Discrimination (Employment and Occupation) Convention, 1958. The convention defines discrimination as-
“a. any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or imparting equality of opportunity or treatment in employment or occupation;…”
The Convention further requires the member states to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.
The Convention has so far been ratified by 175 countries and India is one of them.
Discrimination against women continues to exist and affects society as a whole. Feminist movements have inspired a lot of positive changes in the world. Major changes have been adopted in the laws related to workplace discrimination. Despite efforts at national and international levels, the fact remains that within each racial and ethnic group in the world, a woman earns less than a man. Women all over the world were paid lesser than men doing the same work. After several protests, laws were introduced to bring gender parity to workplaces. However, even after several legislations in India as well as abroad on equal pay, we still have a long way to go. There is also a lack of awareness among the people about the laws related to equal pay which makes them the target of oppression by employers. There is a need to ensure the strict implementation of these laws and also make people aware of their rights under these laws. Above all the different stakeholders need to be sensitized on issues related to gender justice in the working sphere. This should be a consistent and continuous process.
The Equal Pay Act, 1963 of the United States requires that men and women in the same workplace should be given equal pay for equal work. Section 6 of the Act prohibits the employers from discriminating between employees on the basis of sex by providing for equal wages for works of similar nature.
According to the Office for National Statistics of the United Kingdom, the gender pay gap among full time employees in April 2022 was 8.3%. The Equal Pay Act of 1970 was the first law of UK that gives an individual a right to the same pay and benefits as a person of the opposite sex doing the same work. This Act has now become part of the Equality Act of 2010.
As reported by a survey in China, the average monthly income of the female respondents in 2022 was about 12 percent lower than the monthly salary of the male respondents. China has passed a series of laws and regulations that emphasize women’s equal rights in employment including the Law on the Protection of Rights and Interests of Women (2005), the Employment Promotion Law (2007), and the Special Rules on the Labour Protection of Female Employees (2012).
A recent survey highlights the gender pay gap in Australia. It is over 14%. The federal laws relating to equal remuneration were the Workplace Relations Act, 1996 and the Sex Discrimination Act, 1984. The Workplace Relations Act 1997 provides for equal remuneration to be paid to men and women workers performing work of equal value. On the other hand, the Sex Discrimination Act of 1984 prohibits direct and indirect discrimination on the grounds of sex in terms or conditions of employment. The Human Rights and Equal Opportunity Commission hears complaints about such treatment.
Naveen Kumar is an Advocate-on Record at the Hon’ble Supreme Court of India and has appeared in several mining related cases before courts/tribunals across India.