The Constitutions of India, 1950 [hereinafter referred to as COI] in its Preamble indisputably require the State to secure to all its citizens, “social justice, economic and political; equality of status and opportunity, and the rule of the law.” In addition, the Bill of Rights under Part III of the Constitution enshrines the equality clause of wide import. Moreover, the Equal Remuneration Act, 1976, stresses on payment of equal remuneration to men and women employees for the same work or work of similar nature. But the question is whether there is still pay disparity between men and women in India in this twenty first century? This paper evaluates the constitutional and legal provisions against inequality including judicial pronouncements by the Hon’ble Supreme Court of India [hereinafter referred to as SCI] on the doctrine of ‘equal pay for equal work’.
The doctrine of equal pay for equal work is a concept that has gradually evolved and has come to be recognized by a number of countries world-wide due to an increase in the instances of discriminatory pay scales for the same type of work1. Article.23 (2) of the Universal Declaration of Human Rights, 1948 debars all types of distinctions and classifications and clearly asserts that ‘everyone without any discrimination has the right to equal pay for equal work’. Similarly, Art.7 of the International Covenant on Economic, Social and Cultural Rights, Art.15 of the African Charter on Human and Peoples’ Rights, the International Labour Organisation Declaration on Fundamental Principles and Rights at Work, Art.11 of the Convention on the Elimination of All Forms of Discrimination against Women, S.59 of the Hungarian Labour Code, Clause 2 of S.111 of Czechoslovak Code, S.67 of the Bulgarian Code, S.40 of the Code of German Democratic Republic, Para 2 of S.33 of the Rumanian Code, Art.2 of the Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, etc., are other best international instruments that uphold the doctrine of equal pay for equal work. However, even after six decades of independence and with the existence of the international instruments that promote the principle of equal pay for equal work, and more importantly with the world’s biggest Constitution, India still lacks a comprehensive and transparent wage policy for men and women in all the sectors of the economy2.
In this paper, a detailed analysis of various constitutional and legal provisions including judicial pronouncements relating to the doctrine of ‘equal pay for equal work’ shall be undertaken. For proper perception, this paper is divided into five parts. The first part is an introductory part while the second part deals with the constitutional and legal provisions in existence in India relating to the doctrine. The third segment explains the applicability of the doctrine while the fourth part deals with the burden of proof of the doctrine. The last part is reserved for conclusions arrived at from the study.
1.2 Constitutional and legal provisions:
The Bill of rights under Part III of the COI guarantees not only equality before the law but also equality of opportunity in matters of public employment3. Moreover, Part IV of the Constitution embodies a provision requiring the State to direct its policy towards securing equal pay for equal work for both men and women4. This doctrine denotes equal pay for equal work5 for all men and women who are equally placed in all respects6 and as between the sexes7. In other words, for claiming the benefit under this principle, the claimants must be discharging the same or identical or similar nature of works8.
To supplement the provisions of the Constitution on the doctrine, Parliament, under the aegis of the Equal Remuneration Convention, 1951 and Art.39(d) of the Constitution passed the Equal Remuneration Act, 1976 to provide for not only payment of equal remuneration to men and women employees for the same work or work of similar nature and for the prevention of discrimination on account of sex9 but also to ensure that there is no discrimination against recruitment of women10.
In India, the principle of ‘equal pay for equal work’ was first considered in Kishori Mohanlal Bakshi11 where the SCI declared it incapable of being enforced in the court of law. However, it received due recognition only in 1987 through Mackinnon Mackenzie’s case12 which involved a claim for equal remuneration for lady and male stenographers.
1.3 Applicability of the doctrine:
The doctrine of equal pay for equal work not only is applicable and/ or relates to basic pay of an employee but it also includes allowances i.e., overtime allowance13 and other financial benefits for e.g., housing loans14. The SCI has however held the principle inapplicable in the area of professional services15; or where the employees belong to two distinct categories16; or where the classification is based on educational qualifications17; or where the difference in pay scale is because of increments earned by virtue of length of service in the same cadre18; or where the differentiation in pay between the two groups of employees in the same cadre is based on difference in duties and responsibilities19 or nature and volume of work20.
An interesting question arose before the SCI on whether the applicability of the doctrine of ‘equal pay for equal work’ should be extended to persons working under the same employer or not? The Court in its wisdom held in Jaipal case21 that for the applicability of the doctrine, the concerned group of persons seeking equality must be working under the same employer22. Since however, the doctrine and the concomitant claim is based on enforcement of fundamental rights under Art.14 of the COI, the requirement of the same employer principle has been diluted and the benefit of the doctrine has been extended to other instrumentalities of the State23.
Whether the Court can direct merger of post to avoid inequality is another significant point to ponder. In this regard, the SCI has categorically held in Inder Singh24 that no Court has jurisdiction to direct merger of posts especially when they carry unequal responsibilities, duties and pay. Similarly, no Court/Tribunal has jurisdiction to recommend the revision of pay scales under the doctrine. Such jurisdiction is solely within the Executive arm of the Government or an expert body like the Pay Commission25.
1.4 Burden of proof:
The burden of proving the right to equal pay is a mountainous task that needs to be handled with a clear mind. In Pramod Bhartiya26 it was observed that the burden to establish the right to equal pay for equal work is on the person claiming the same. The petitioners must point out the apparent or prima facie similarity. Once the initial burden is discharged, the burden is then shifted to the respondent State to establish that the services are dissimilar in essence and in substance27.
In recent times, the Courts have been reluctant to apply the doctrine as there are complexities not only in establishing the burden of proof and comparing and evaluating work done by different persons in different sections or even in the same section but also many claims are being filed for equality requiring the Courts to take up intensive factual enquiry beyond their competence. After realizing that it had opened the doors wider than what was intended, SCI has now adopted a restrictive approach and held that the Courts must be fully satisfied that the petitioners are performing equal and identical work as discharged by the employees against whom the claim is made28.
An all-inclusive analysis carried out in this paper unveils major constitutional and legal provisions relating to the fundamental doctrine of equal pay for equal work. It can specifically be noted that the existing legal framework in India acknowledges the right to equal pay for equal work heedless of gender. It can however, be noted that absence of strong unions for collective bargaining has reduced the advancement of this principle to its existence in paper only. In developed countries, unions are very pro-active. They can compel employers to adjust pay scales for the benefit of all including female employees. The same should be replicated in India. Besides, an independent “Equal Opportunities Commission” should be established to start developing mechanisms to implement equal pay for work of equal value.
Furthermore, it is remarkable to point out the role the SCI has played to enforce the doctrine over the years. The Court has not only laid down extensive guidelines in regard to the application of the doctrine while keeping in view the purpose for which this principle was conceived, (i.e., to steer clear of discrimination on grounds of sex in the payment of remuneration to both men and women) but it has also extended its scope to all institutions, establishments and organizations within India thereby helping in sorting out the problem of discrimination.
- The report published by International Trade Union Confederation in 2009, reveals existence of gender pay gap to the extent of 30% in India in 2008. See, ITUC Report 2008, Gender (In) Equality in the Labour Market: An Overview of Global Trends and Developments, https://www.ituc-csi.org/IMG/pdf/GAP-09_EN.pdf (Accessed on 24th March 2013, 10:34am).
- For g., the survey done by World Economic Forum shows a large difference in the salary structure of men and women in corporate India. The average annual income of a woman is $1,185, which is less than one-third of a man’s $3,698, employed in Indian companies, see, Women’s Salary in India, Less Than a Third of Men’s, https://www.siliconindia.com/shownews/Womens_salary_in_India_less_than_a_third_of_mens_-nid-62718-cid-30.html (Accessed on 24th March 2013, 10:46am).
- See, Arts.14 and 16,
- See, Art.39(d), the Constitution of India, 1950. Part IV of the Constitution also includes the ‘Right to Work’ under Art. 41. The two Articles serve as guidelines for framing laws and policies relating to the doctrine.
- Equalpay here relates not only to basic pay but includes other benefits and allowances, see, Equal Pay for Equal Work, https://www.paycheck.in/main/work-and-pay/paycheck-articles-archives/paycheck-articlesi/equal-pay-for-equal-work; Constitution of India: The Concept of Equal Pay for Equal Work, https://www.lawisgreek.com/constitution-of-india-the-concept-of-equal-pay-for-equal-work (Accessed on 4th April 2013, 11:22am).
- See, Uttar Pradesh Sugar Corporation Ltd., v. Sant Raj Singh, AIR 2006 SC 2296. See also, Secy. To Govt., v. C. Muthu, (2001) 10 SCC 545; State of U. P. v. Polytechnic Diploma Shikshak Sangh, (2001) 10 SCC 643; State of U. P. v. Pratap Narain Chaddha, JT 2000 (9) SC 447: (2001) 9 SCC 310; Shyamalendu Chatterjee v. Hooghly Dock & Port Engineering Ltd., 1995 (1) SLR 209 (Cal); Narendra Kumar v. Dharam Dutt, (1993) II LLJ 88: JT 1993 (2) SC 423; Gopal Krishna Sharma v. State of Rajasthan, AIR 1993 SC 81: 1992 (5) SLR 362; Karnataka State Private College Stop- Gap Lecturers Association v. State of Karnataka, AIR 1992 SC 677: JT 1992 (1) SC 373; Doordarshan Cameramen’s Welfare Association v. Union of India, AIR 1990 SC 1387: 1991 (3) SLR 18 (SC): 1990 (Supp) SCC 260; State of Bihar v. Bihar State Workshop Superintendents Federation, AIR 1993 SCW 758: 1993 (4) SLR 383 (SC); State of H. P. v. H. P. State Recognised & Aided Schools Managing, 1995 (2) SLR 725 (SC): JT 1995 (8) SC 406; Central Bank of India v. Secretary to Government of Tamil Nadu, AIR 1996 SC 676: (1996) 1 SCC 345; Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering, (1997) 3 SCC 571: 1997 (2) SLR 448; Government of India v. Court Liquidator’s Employees Assn., (1999) 8 SCC 560: (1999) 5 SLR 487; Equal Pay for Equal Work, https://en.wikipedia.org/wiki/Equal_pay_for_equal_work (Accessed on 5th April 2013, 12:14pm); Sukhdeo Pandey v. Union of India and Another, 2007 SC2 GJX 0806 SC, the SCI held in this case that that a person must be paid if he has worked and should not be paid if he has not. In other words, the doctrine of ‘no work, no pay’ is based on justice, equity and good conscience and in absence of valid reasons to the contrary, it should always be applied.
- Randhir Singh v. Union of India, AIR 1982 SC 879 at 881: (1982) 1 SCC 618: (1982) 1 LLJ 344.
- See, State of Bihar v. Bihar State ‘Plus-2’ Lecturers Associations, (2008) 7 SCC 231; Union of India v. Dineshan K. K., (2008) 1 SCC 586; Doordarshan Cameramen’s Welfare Association v. Union of India, supra note 86 – [In this case, there was disparity in pay amongst employees e., sound recordists, cameramen, etc., of Doordarshan and Films Divisions. The SCI directed for parity of pay basing on the principle enshrined under Art.39(d) since the employees of both the organizations were discharging same/identical/similar work]. See also, R. D. Gupta v. Lt. Governor, Delhi, AIR 1987 SC 2086: (1987) 3 SCR 808: JT 1987 (3) SC 259 – [There cannot be disparity of pay based on status i.e., temporary or permanent]; Sandeep Kumar v. State of U. P., AIR 1992 SC 713: 1993 Supp (1) SCC 525: 1992 Lab IC 395 – [There cannot be disparity of pay based on status i.e., regular or casual]; Equal Pay Act: Equality of Work, https://labor-employment-law.lawyers.com/employment-discrimination/Equal-Pay-Act-Equality-of-Work.html (Accessed on 7th April 2013, 3:54pm).
- See, S.4, the Equal Remuneration Act, 1976. The Act further prohibits any kind of discrimination being made while recruiting men and women employees. See also, Equal Pay for Equal Work: The Law Revisited, https://legalperspectives.blogspot.com/2010/06/equal-pay-for-equal-work-law-revisited.html (Accessed on 2nd April 2013, 4:14pm).
- See, Scope of the Concept of Equal Pay, https://www.ilo.org/public/english/dialogue/ifpdial/publ/infocus/equalpay/8_2.htm (Accessed on 5th April 2013, 2:45pm).
- Kishori Lal Mohan Lal Bakshi v. Union of India, AIR 1962 SC 1139.
- Mackinnon Mackenzie and Co. Ltd. v. Audrey D’Costa and Others, (1987) 2 SCC 469.
- D. N. Panikar v. SAIL, AIR 1987 SC 1347: (1987) 1 SCC 63: 1987 Lab IC 981; Abid Hussain v. Union of India, AIR 1987 SC 820: (1987) 1 SCC 532: (1987) 2 SCR 47: JT 1987 (2) SC 72: (1987) 1 LLJ 359: 1987 (3) SLJ 61: 1987 Lab IC 633: 1987 (1) SLR 495.
- See, Hans Raj Arora v. Union of India, 1998 (Supp) SCC 564: 1988 SCC (L&S) 925. See also, Vijay Kumar v. State of Punjab, 2002 (1) SLR 694.
- See, C. Girijambal (Dr.) v. Government of A. P., AIR 1981 SC 1537: (1981) 2 SCC 155: (1981) 2 SCR 782: (1981) (2) SLJ 206: (1981) II LLJ 314: 1981 (1) SLR 364. [Medical officers in Zilla Parishad holding L.I.M., G.C.I.M or D.A.M. qualifications though in-charge of dispensaries run by the Zilla Parishad cannot be treated at par].
- Union of India v. E. S. Soundara Rajan, AIR 1980 SC 959: (1980) 2 SCR 1200: 1980 SLJ 344: 1980 Lab IC 589-[Commercial Clerks and Assistant Station Masters/ Station Masters]; Hundraj Kanyalal Sajnani v. Union of India, AIR 1990 SC 1106: 1990 (Supp) SCC 577: JT 1990 (2) SC 145: 1990 (2) SLR 400: (1990) 1 SCR 994; Ram Singh Malik v. State of Haryana, AIR 2002 SC 964: (2002) 3 SCC 182: 2002 SCC (L&S) 375-Cadre and ex-cadre posts.
- Markendeya v. State of A. P., AIR 1989 SC 1308: (1989) 3 SCC 191: JT 1989 (2) SC 108: (1989) II LLJ 169: (1989) 2 SCR 422: 1989 (3) SLR 37: 1989 (3) SLJ 34; Mewa Ram Kanojia v. All India Institute of Medical Sciences, AIR 1989 SC 1256: (1989) 2 SCC 235: JT 1989 (1) SC 512: (1989) II LLJ 578: (1989) 1 SCR 957: 1989 (2) SLR 37: 1989 Lab IC 1348- [hearing therapists denied parity with Audiologists]; National Federation of State NFC (Physical Education) Teachers’ Associations v. Union of India, AIR 1993 SC 369: 1993 Supp (2) 303: 1993 Lab IC 38: 1993 (1) SLR 118: 1993 (1) SLJ 96- [ physical instructors not equated with secondary school teachers]; State of Rajasthan v. Gopi Kishan Sen, AIR 1992 SC 1754: 1993 Supp (1) SCC 522: 1992 Lab IC 1798 [trained and untrained teachers]; Nain Singh Bhakuni v. Union of India, AIR 1998 SC 622: JT 1998 (1) SC 43: (1998) 3 SCC 348; Union of India v. Secy., Madras Civil Audit & Accounts Association, JT 1992 (1) SC 586; Shyam Babu Verma v. Union of India, (1994) 2 SCC 521: 1994 (1) SLR 827.
- Canara Bank Officers Congress v. Canara Bank Head Office, 1988 (6) SLR 497 (AP).
- R. Seshan v. State of Maharashtra, AIR 1989 SC 1287: JT 1989 (1) SC 542: 1989 Supp (1) SCC 610: 1989 Lab IC 1332. See also, Garhwal Jal Sansthan Karmachari Union v. State of U. P., AIR 1997 SC 2143: (1997) 4 SCC 24: 1997 (76) FLR 114: 1997 Lab IC 2101; National Federation of State NFC (Physical Education) Teachers’ Associations v. Union of India, AIR 1993 SC 369: 1993 Supp (2) 303: 1993 Lab IC 38: 1993 (1) SLR 118: 1993 (1) SLJ 96; State of Tamil Nadu v. M. R. Alagappan, AIR 1997 SC 2006: 1997 (2) SLR 554: (1997) 4 SCC 401: (1997) II LLJ 711.
- See, Federation of All India Customs & Excise Stenographers v. Union of India, AIR 1988 SC 1291: (1988) 3 SCC 91: JT 1988 (2) SC 519: 1989 Lab IC 1157: 1988 (2) SLR 721. See also, State of U. P. v. Prem Lata Misra, AIR 1994 SC 2411: (1994) 4 SCC 189: 1994 (2) SLJ 167 (SC): (1995) 1 LLJ 28; Ajay Kumar Jaitly v. State of U. P., 1998 (6) SLR 740 (All-FB) Gril Kalyan Kendra Workers Union v. Union of India, AIR 1991 SC 1173: (1991) 1 SCC 619: 1991 (1) SLR 618: JT 1991 (1) SC 60; State of Punjab v. Savinderjit Kauri, (2004) 4 SCC 58; State Bank of India v. M. R. Ganesh Babu, AIR 2002 SC 1995: (2002) 4 SCC 556.
- Jaipal v. State of Haryana, AIR 1988 SC 1504: (1988) 3 SCC 354: 1988 Supp (1) SCR 411: JT 1988 (2) SC 528: 1988 Lab IC 1673: 1988 (2) SLR 710. See also, All India Sainik Schools Employees’ Associations v. Sainik School Society, infra note 27; All India Railway Institute Employees’ Association v. Union of India, AIR 1990 SC 952: (1990) 2 SCC 542: JT 1990 (1) SC 319: (1990) 1 SCR 594- [Employees of Railway Canteens and those of Railway Institute and Clubs not under the same employer]. But see, M. M. R. Khan v. Union of India, AIR 1990 SC 937: 1990 (Supp) SCC 191: JT 1990 (3) SC 1: 1990 (4) SLR 666: (1990) 1 SCR 687.
- See, Alvaro Noronha Ferriera v. Union of India, AIR 1999 SC 1356: (1999) 4 SCC 408.
- Employees of Tannery and Footwear Corporation of India Ltd., v. Union of India, AIR 1991 SC 1367: JT 1991 (5) SC 90: 1991 (2) SLR 131: (1991) 1 LLJ 563: 1991 Lab IC 1120- [Employees of the Government Company and a Cotton Corporation of India]. See also, Girindra Chandra Chakraborty v. Managing Director, W. B. Dairy and Poultry Development Corporation Ltd., 1988 (3) SLR 60 (Cal) – [Purchase Assistants in the Corporation equated with Purchase Assistants under Government]; Haryana State Adhyapak Sangh v. State of Haryana, AIR 1988 SC 1663: (1988) 4 SCC 571: 1988 Supp (1) SCR 682: JT 1988 (3) SC 172: 1988 (3) SLR 584: 1989 Lab IC 1314- [Teachers of private aided schools were declared to be at par with teachers of Government schools in the matter of pay and allowances]; State of Haryana v. Champa Devi, (2002) 10 SCC 78: (2002) 2 SLR 1.
- Inder Singh v. Vyas Muni Mishra, 1987 (Supp) SCC 257: (1987) 3 SCR 972: JT 1987 (3) SC 384: 1987 (4) SLR 550.
- State of Madhya Pradesh v. Pramod Bhartiya, AIR 1993 SC 286: (1993) 1 SCC 539: (1993) 2 SLJ 91. See also, Union of India v. S. A. Sarma, (1998) 1 ATJ 162 (SC); Griha Kalyan Kendra Workers’ Union v. Union of India, AIR 1991 SC 1173: (1991) 1 SCC 619: 1991 (1) SLR 618: JT 1991 (1) SC 60.
- See, Bhagwan Dass v. State of Haryana, AIR 1987 SC 2049: (1987) 4 SCC 634: (1987) 3 SCR 714: JT 1987 (3) SC 206: 1987 Lab IC 1662. See also, All India Sainik Schools Employees’ Associations v. Sainik School Society, 1989 Supp (1) SCC 205: JT 1988 (4) SC 22: 1988 Supp (3) SCR 398: AIR 1989 SC 88: (1989) 1 LLJ 263: 1988 (5) SLR 626; State of M. P. v. Pramod Bhartiya, AIR 1993 SC 286: (1993) 1 SCC 539: (1993) 2 SLJ 91.
- C. Chandra v. State of Jharkhand, AIR 2007 SC 3021; Union of India v. Dineshan K. K., AIR 2008 SC 1026.