EQUAL PAY FOR EQUAL WORKCONSTITUTIONAL PERSPECTIVE

SUBMITTED TO-Ms. Supreet Gill SUBMITTED BYAditya Dassaur Roll No-206/10 8th Semester Section-A

ACKNOWLEDGMENT
I would like to express my Gratitude to my teacher, Ms. Supreet Gill, who gave me the golden opportunity to do this wonderful project on the topic Equal Pay for Equal Work which also helped me in doing a lot of Research and I came to know about so many new things. Secondly I would also like to thank my parents and friends who helped me a lot in finishing this project within the limited time.

INTRODUCTION
The topic of my project is Equal Pay for Equal Work. In this project I have tried to understand the concept of equal pay and work from the constitutional perspective and understanding the roots of the concept from the constitution, understanding how the concept emerged from the fundamental rights. The preamble of the Constitution of India is an introduction to the Constitution and laysdown in brief the aims and objectives of the policy framers of the Union of India. Itenunciates those socio-economic goals and ends which are to be achieved by theIndian Constitution. These goals are multitudinous in nature and secure for the citizensof India (in some cases for foreigners as well) a variety of rights and ensure justice,liberty, equality, and fraternity to all. Part IV of the Constitution lays down the Directive Principle of State Policy. This novelfeature, envisaged by our Constitution, was borrowed from the Constitution of Ireland,which itself had borrowed it from the Spanish Constitution. These Directive Principleslay down the basic aims and objectives of the States, to be followed in the governanceof the country. They are more or less the guidelines, directing the government as towhat is to be kept in contemplation while framing the policies. They can also be termedas a distinct set of moral duties, to be implemented by the state, while giving shape tolegislations and provisions of the State. In other words Directive Principles act as a device for making the Government conformto the ideals, which the Constitution lays, for the attainment of democracy in its truesense i.e. political as well as economic. This can be done only when the Governmentcomplies with these stated objectives and makes an attempt to make India welfare statein real as well as practical terms.They are however non-justifiable rights on the people, which set out the economic,social and political goals of the Indian Constitutional system, and place the governmentunder a moral obligation to achieve and maximise social welfare and basic social valueslike education, employment, health etc. The reason for their non-enforceabilityis that they impose apositive obligation upon the state and it is while taking actions for implementing theseobligations that there arise several limitations to the Government, one such constraintbeing the availability of resources. The purpose for enunciating the extent ofenforceability of directive principles of state policy is of relevance in the present topicbecause the concept of equality of pay i.e. equal pay for equal

work being a part ofthese Directive Principles is to hold the same fate as other Directive Principles. However, the Courts in India and the Supreme Court in particular have constantly andconsistently regarded the principle of equal pay for equal work as a constitutional goal,much higher than being a mere Directive Principle, and have subsequently enforced itintandem with the fundamental rights, enshrined under Right to Equality (Art. 14-18).The primary purpose of this research project is to study the various interpretationswhich have been made by the Supreme Court while adjudicating the cases, involvingthe concept of Equal pay for Equal work as enshrined in Article 39(d) of theConstitution. The topic is of great relevance on the contemporary world as it is being felt thatconsidering and stating that all men are equal is not enough but a concrete step orrather a series of steps need to be taken to bring the concept of classless society intoexistence and the applicability of the concept of equal pay for equal work is one of suchsteps, taken to wipe out any scope of unreasonable discrimination as which may occuror may be followed in any form of society when it comes to payment of remuneration.This research project is an attempt to grasp the various interpretations the conceptholds and the different analogies, which can be formed to save the people from theclutches of irrational discrimination.

LITERATURE REVIEW:
The principle of equal pay for equal work has an important place in India. It is read with Article 39(d) and Article 14 of the Constitution of India.Article 39 (c) of the Constitution of India provides for Directive Principles of State Policy. This aims for equitable distribution of resources of production among all citizens. It also aims to prevent the concentration of wealth in the hands of a few. One such principle is Equal Pay for Equal Work. As the name itself suggests, its purpose is to ensure that individuals who are doing an equal amount of work shall be entitled to equal remuneration. The term equal pay includes basic salary, and also other benefits, such as bonuses and allowances. These clauses highlight the Constitutional objectives of building an egalitarian social order and establishing a welfare state, by bringing about a social revolution assisted by the State, and has been used to support the nationalization of mineral resources as well as public utilities.

However, the Courts in India and the Supreme Court in particular have constantly and consistently regarded the principle of equal pay for equal work as a constitutional goal, much higher than being a mere Directive Principle, and have subsequently enforced it in-tandem with the fundamental rights, enshrined under Right to Equality (Art. 14-18). great relevance on the contemporary world as it is being felt that considering and stating that all men are equal is not enough but a concrete step or rather a series of steps need to be taken to bring the concept of classless society into existence and the applicability of the concept of equal pay for equal work is one of such steps, taken to wipe out any scope of unreasonable discrimination as which may occur or may be followed in any form of society when it comes to payment of remuneration.

EQUAL PAY FOR EQUAL WORK UNDER THE CONSTITUTION OF INDIA

The concept of Equality of pay was incorporated under the Directive Principles of State Policy by the framers of the Constitution so as to follow the principles of Equality and make India a welfare State i.e. a country aimed at creating an egalitarian society. However the application of the concept of Equality of pay was restricted only up to the discrimination on basis of gender and sex as under the principle laid down under Article 39 which states as follows; 39. The State shall, in particular, direct its policy towards securing-(d) that there is equal pay for equal work for both men and women.Thus the framers of the Constitution incorporated this provision to wipe out any discriminationmade against women or men in regards to the terms of pay. However on going strictly according to the provision, it nowhere states that this concept of equality of pay is to be followed even interms of employment as of between man and man or woman and woman i.e. it does not granta right that man must be paid equally among themselves and woman among themselves if they perform the same kind of work. The aforesaid provision also does not state any distinctionbetween the capacity of these men and women and that has to be constructed by the Courtsthemselves. Thus it is clear that while framers of the Constitution incorporated this provision, they only kept in contemplation that there should not be any discrimination in terms of pay on grounds of sex or gender of the person. It has to be stated here that though it is the primary task of the employer not to discriminate onthe basis of sex (as made mandatory by the Supreme Court in recent judgments), the

Constitution does not provide for any classification that the employer can make such as on the basis of qualification and level of skill of the employee i.e. if the workers perform the same task, they have to be treated equally without any discrimination thereof. Though the article speaks only as to discrimination between man and woman, the concept ofequal pay for equal work has been applied in generality to all without any hint of gender or class.The Supreme Court continuously and consistently increasing the purview of this doctrine hasgone far off to make new interpretations so that any sort of discrimination, unless based on reasonable grounds, does not go un-refuted. The very purpose and nature of the said article has been changed by the apex court and the article which was originally instilled to support woman in there right of equal status is now applied to now employed to nullify any sort of rule and provision which tends to affect the rights of workers to get equal pay if they perform the same kind of work in similar organizations. However the Supreme Court has added a new clause to the article in the way of reasonable nexus of discrimination. This reasonable nexus includes the qualifications of the employees, capacity of the workers and many more. The list is endless and new points of classifications are incorporated in it as and when the Supreme Court says so.

EQUAL REMUNERATION ACT, 1976

For the purpose of incorporating and giving effect to the Constitutional directive of Equal payfor equal work, The Equal Remuneration Act, 1976 was passed. The objects and reasons of the Act states that President of India promulgated The Equal Remuneration Ordinance, 1975 on 26thSeptember, 1975 so that the provision of Art. 39(d) was implemented in the year, which was being celebrated as the International Womans Year. The ordinance was brought to effect to provide for payment of Equal Remuneration to both man and woman workers for the same work or work of similar nature and for the prevention of discrimination on grounds of sex. The various provisions for the payment of remuneration at equal rates are provided inChapter II of the Act and almost all the provisions point to similar ends and ultimately directthe employers not to practice discrimination while recruitment, while payment or even while considering employees for promotion. The Act also provides for maintenance of registers in the organizations, creation of posts of Inspectors and other related offices to keep a check on such prejudiced practices, which are likely to affect the provisions of the Act. It speaks extensively of what the employers have to follow but is silent on the point of reasonable

classification with the apex court has pointed out freely and exhaustively. The Act does not, also, lay any provision as to whether the qualifications of the employees are to be considered while framing paying packages or not. The only thingwhich the Act point to is that the employer must not discriminate on the basis of the sex of the worker if both man and woman are doing same or similar kind of work. Thus it is merely an enactment of Article 39(d) of the Constitution in its strict sense, leaving the scope of interpretation to the Courts. The need for such a directive was felt as: Progress in fighting discrimination at work has always been uneven and patchy, even forlong recognized forms such as discrimination against women. Discrimination at workwill not vanish by itself; neither will the market, on its own, take care of it. Inequalities within discriminated groups were widening. Affirmative action policies, forexample, helped create a new middle class of formerly-discriminated persons in somecountries. A few rises to the top of the social ladder, while most remain among the lowpaid and socially excluded. Discrimination often traps people in low-paid, informal economy jobs.

Thediscriminated are often stuck in the worst jobs, and denied benefits, social protection,training, capital, land or credit. Women are more likely than men to be engaged in thesemore invisible and undercounted activities. The failure to eradicate discrimination helps perpetuate poverty. Discriminationcreates a web of poverty, forced and child labor and social exclusion, the report says,adding eliminating discrimination is indispensable to any viable strategy for povertyreduction and sustainable economic development. Everyone gains from eliminating discrimination at work - individuals, enterprises andsociety at large. Fairness and justice at the workplace boosts the self-esteem and moraleof workers. A more motivated and productive workforce enhances the productivity andcompetitiveness of businesses.

AMENDMENTS:
42nd Amendment was passed during internal emergency by Indira Gandhi. Provides forcurtailment of fundamental rights, imposes fundamental duties and changes to the basic structure of the constitution by making India a "Socialist Secular" Republic.

CONSTITUIONAL PERSPECTIVE
It can be seen that considering and stating that all men are equal is not enough but a concrete step or rather a series of steps need to be taken to bring the concept of classless society into existence and the applicability of the concept of equal pay for equal work is one of such steps, taken to wipe out any scope of unreasonable discrimination as which may occur or may be followed in any form of society when it comes to payment of remuneration. The concept of Equality of pay was incorporated under the Directive Principles of State Policy by the framers of the Constitution so as to follow the principles of Equality and make India a welfare State i.e. a country aimed at creating an egalitarian society. However the application of the concept of Equality of pay was restricted only up to the discrimination on basis of gender and sex as under the principle laid down under Article 39 which states as follows; The State shall, in particular, direct its policy towards securing that there is equal pay for equal work for both men and women. Thus the framers of the Constitution incorporated this provision to wipe out any discrimination made against women or men in regards to the terms of pay. However, going strictly according to the provision, it nowhere states that this concept of equality of pay is to be followed even in terms of employment as of between man and man or woman and woman i.e. it does not grant a right that man must be paid equally among themselves and woman among themselves if they perform the same kind of work. The aforesaid provision also does not state any distinction between the capacity of these men and women and that has to be constructed by the Courts themselves. Thus it is clear that while framers of the Constitution incorporated this provision, they only kept in contemplation that there should not be any discrimination in terms of pay on grounds of sex or gender of the person. It has to be stated here that though it is the primary task of the employer not to discriminate on the basis of sex, the Constitution does not provide for any classification that the employer can make such as on the basis of qualification and level of skill of the employee i.e. if the workers perform the same task, they have to be treated equally without any discrimination thereof. Article 14 of the Indian Constitution explains the concept of Equality before law. The concept of equality does not mean absolute equality among human beings which is physically not possible to achieve. It is a concept implying absence of any special privilege by reason of birth, creed or the like in favour of any individual, and also the equal subject of all

individuals and classes to the ordinary law of the land. As Dr. Jennings puts it: "Equality before the law means that among equals the law should be equal and should be equally administered, that like should be treated alike. It only means that all persons similarly circumstance shall be treated alike both in the privileges conferred and liabilities imposed by the laws. Equal law should be applied to all in the same situation, and there should be no discrimination between one person and another. As regards the subject-matter of the legislation their position is the same. Thus, the rule is that the like should be treated alike and not that unlike should be treated alike.

CASES TO UNDERSTAND THE CONSTITUTIONAL PERSPECTIVE

1. Randhir Singh v. Union of India In this case, the petitioner was a Driver-Constable in the Delhi Police Force under DelhiAdministration who claimed that his scale of pay should be the same as the scale of pay of otherdrivers in the service of the Delhi Administration as he discharged the same duties as the restof the drivers in the other offices. He stated that there was no reason whatsoever to discriminateagainst the petitioner and other driver-constables merely because he and his ilk were described asconstables belonging to the Police Force instead of ordinary drivers, who had a greater pay scale.In this landmark case the court conceded that, though the equation of posts and equationsof pay were matters primarily for the Executive Government and expert bodies like thePay Commission and not for Courts to decide but persons holding identical posts were notto be treated differentially in the matters of pay merely because they belonged to differentdepartments. It was this case in which the Court held for the first time that though theprinciple of equal pay for equal work was not expressly declared by the Constitution tobe a fundamental right, it was certainly a constitutional Goal. The Court also first timecontemplated the fact that the doctrine proclaiming Equal pay for equal work for both menand women meant Equal pay for equal work or everyone as and between sexes. The Court extended the purview of the doctrine under Right of Equality and stated that Art.14 of the Constitution enjoined the State not to deny any person equality before the law or theequal protection of the laws and simultaneously Art. 16 declared that there shall be equality ofopportunity for all citizens.In matters relating to employment or appointment to

any office under the State and it was in thiscontext that the doctrine of equal pay for equal work was to be adjudged. 2. Dharwad District PWD Literate Daily Wages Employees Association v. State of Karnataka This case was brought before the Supreme Court through a series of writ petitions asking forquashing a notification of the government of Karnataka and for issuing directions to Governmentto confirm the daily rated and monthly rated employees as regular government servants and forpayment of normal salaries to those workers employed under temporary terms. The petitionswere made, pleading that about 50,000 daily-wage workers were employed in the differentGovernment establishments and though many of them had put in 16 to 20 years of continuousservice, they were not regularized in their service and were not being paid equally, violatingthe principle of equal pay for equal work as mandated by the Court. The petitions claimed forthe pay of such workmen at the rates equivalent to the minimum pay in the pay-scales of theregularly employed workers. The Court laid that the equality clauses of the Constitution under Articles 14 and 16 were to beconstrued in the light of the Preamble and Article 39(d), and it followed that the principle 'equalpay for equal work' was deducible from those Articles and could properly be applied to cases ofunequal scales of pay based on the classification or irrational classification.

3. Federation of All India Customs and Central Excise Stenographers v. Union Of India In this case, a petition for seeking parity in pay scales was filed before the Supreme Court. Thepetitioners were personal assistants and stenographers attached to the heads of the Customsand Central Excise Departments under the Ministry of Finance. They asserted that they werediscriminated vis--vis personal assistants and stenographers attached to the joint secretaries andofficers above them in the Ministry. They contended that the type of work was the same and infact they had more work to be done. The Respondents in return emphasized that the difference inthe functional requirements of the work done was one of the points for such discrimination. Therespondents also stated that while devising the pay-scales of various posts and categories, thedegree of skill, experience involved, training required, responsibility

taken, strain, fatigue, riskand confidentiality undertaken, mental and physical requirements were factors borne in mind. The Respondent also emphasised that though the duties and works were identical between thepetitioners and their counterparts attached to the Secretaries in the Secretariat, their functionswere not identical with regard to their duties and responsibilities.The Supreme Court held that Equal pay for equal work is a fundamental right. But equal paymust depend upon the nature of the work done and it cannot be judged by the mere volumeof work.The Court re-emphasised that equal pay for equal work was a concomitant of Article 14 of theConstitution and it naturally followed that equal pay for unequal work was a negation of thatright.The Court also took a great step by laying down that the interpretation of Article 39(d) wasto be read in the Fundamental Rights, under Articles 14 and 16 of the Constitution. So theprinciple of equal pay for equal work, though not expressly declared by our Constitution tobe a fundamental right, was a constitutional goal. Construing Articles 14 and 16 in the lightof the Preamble and Article 39(d), the Court laid that the principle of Equal pay for equalwork was deducible from those articles and was to be applied to cases of unequal scales ofpay, which were based on no classification or irrational classification. 4. Mewa Ram v. A.I.I. Medical Science Supreme Court has held that the doctrine of 'equal pay for equal work' is not an abstractdoctrine. Equality must be among equals, unequals cannot claim equality. Even if the duties andfunctions are of similar nature but if the educational qualifications prescribed for the two postsare different and there is difference in measure of responsibilities, the principle of equal payfor equal work would not apply. Different treatment to persons belonging to the same class ispermissible classification on the basis of educational qualifications. 5.In Deena v. Union of India It was held that labor taken from prisoners without paying proper remuneration was "forcedlabor" and violation of Art. 23 of the Constitution. The prisoners are entitled to payment ofreasonable wages for the work taken from them and the Court is under duty to enforce theirclaim.There shall be equality of opportunity for all citizens in matters relating to employment orappointment to any office under the State. No citizen shall, on grounds only of religion, race,caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminatedagainst in respect of, any employment or office under the State.They are however non-justifiable rights on the people, which set out the economic, social andpolitical

goals of the Indian Constitutional system, and place the government under a moralobligation to achieve and maximize social welfare and basic social values like education,employment, health etc.The reason for non-enforceability, as M.P. Jain1 describes, is that they impose a positiveobligation upon the state and it is while taking actions for implementing these obligations thatthere arise several limitations to the Government, one such constraint being the availability ofresources. However, the Courts in India and the Supreme Court in particular have constantly andconsistently regarded the principle of equal pay for equal work as a constitutional goal, muchhigher than being a mere Directive Principle, and have subsequently enforced it in-tandem withthe fundamental rights, enshrined under Right to Equality (Art. 1418). Article 39(d)Thus it is clear that while framers of the Constitution incorporated this provision, they only keptin contemplation that there should not be any discrimination in terms of pay on grounds of sex orgender of the person. The Supreme Court continuously and consistently increasing the purviewof this doctrine has gone far off to make new interpretations so that any sort of discrimination,unless based on reasonable grounds, does not go un-refuted. The Act does not, also, lay any provision as to whether the qualifications of the employees areto be considered while framing paying packages or not. The only thing which the Act point tois that the employer must not discriminate on the basis of the sex of the worker if both man andwoman are doing same or similar kind of work.Persons holding identical posts were not to be treated differentially in the matters of pay merelybecause they belonged to different departments. It was this case in which the Court held for thefirst time that though the principle of equal pay for equal work was not expressly declared by theConstitution to be a fundamental right, it was certainly a constitutional Goal. The Court also firsttime contemplated the fact that the doctrine proclaiming Equal pay for equal work for bothmen and women meant Equal pay for equal work for everyone as and between sexes. The Court also held that the classification of persons performing the same work into senior and junior groups with different pay will be a violation of the principle of equal pay for equal work.The apex Court held that the scope of Equal Remuneration Act would be invited when therewere any disparities of terms of pay within same levels even if the organisation had financialconstraints. The Court laid that the applicability of the Act does not depend upon the financialability of the management to pay equal remuneration as provided by it. . The Supreme Courtgave a landmark decision and stating the various social and material

requirements held that inaddition to the principle of equal pay for equal work, the pay structure of the employees of thegovernment was also to reflect other social values. The degree of skill, the strain of work, experience involved, training required, responsibilityundertaken, mental and physical requirements, disagreeableness of the task, hazards involvedetc. were some of the relevant factors which were to be taken into consideration while fixingthe pay scales. The method of recruitment, the level at which the recruitment was made in thehierarchy of service or cadre, minimum educational and technical requirements prescribed forthe post, were also some of the relevant factors. The paying capacity of the government was alsoto be taken into consideration. Thus the Court laid the complete rational and logical nexus fordetermination of pays. The Court held that it could not be said that the doctrine of Equal pay forequal work was a mere abstract doctrine and that it was not capable of being enforced in a courtof law. If the classification is proper and reasonable the doctrine of 'equal pay for equal work' will nothave any application even though the persons doing the same work are not getting the same pay.A temporary or casual employee performing the same duties and functions is entitled to the samepay as paid to a permanent employee. Similarly, the difference in mode of selection will notaffect the application of the doctrine of "equal pay for equal work" if both the classes of personsperform similar functions and duties under the same employer.

LEGISLATIVE PERSPECTIVE
Major points of consideration that have come up during our study are: The concept of equality does not mean absolute equality among human beings which is physically not possible to achieve. It is a concept implying absence of any special privilege by reason of birth, creed or the like in favour of any individual, and also the equal subject of all individuals and classes to the ordinary law of the land. Equal law should be applied to all in the same situation, and there should be no discrimination between one person and another. The Supreme Court has held that although the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right, but it is certainly a constitutional goal under Articles 14, 16 and 39 (c) of the Constitution.(Ref-Randhir Singh v. Union of India)

 it has been held that the principle of equal pay for equal work is also applicable to casual workers employed on daily wage basis.(REF-DhirendraChamoli v. State of U.P) the Supreme Court has held that different pay scales can be fixed for government servants holding same post and performing similar work on the basis of difference in degree of responsibility, reliability and confidentiality, and as such it will not be violative of the principle of equal pay for equal work, implicit in Article 14. The Court said, "Equal pay must depend upon the nature of the work done. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility.(REFF.A.I.C. and C.E.S. v. Union of India)

Gender inequities throughout the world are among the most all-pervasive forms of inequality. Gender equality concerns each and every member of the society and forms the very basis of a just society and hence, the issue of gender justice is of enormous magnitude and of mammoth ramification engulfing an all-embracing and illimitable canvas. In the midnight of August 15, 1947, when India awoke to life and freedom, most of its 170 million women scarcely knew what the Tryst with Destiny was all about. Victims of poverty, ignorance and oppressive social institutions, they hardly knew their destiny and who controlled it. However, the stalwarts who led India to its independence were aware that if the new India of their dreams was to become a reality and not remain only a figment of imagination, it would need social engineering on a massive scale, in respect of the backward and oppressed sections of the society and above all, its women. It has to be stated here that though it is the primary task of the employer not todiscriminate on the basis of sex (as made mandatory by the Supreme Court in recentjudgments), the Constitution does not provide for any classification that the employercan make such as on the basis of qualification and level of skill of the employee i.e. ifthe workers perform the same task, they have to be treated equally without anydiscrimination thereof.Though the article speaks only as to discrimination between man and woman, theconcept of equal pay for equal work has been applied in generality to all without any hintof gender or class. The Supreme Court continuously and consistently increasing thepurview of this doctrine has gone far off to make new interpretations so that any sort ofdiscrimination, unless based on reasonable grounds, does not go un-refuted. The verypurpose and nature of the said article has been changed by the apex court and thearticle which was originally instilled to support woman in there right of equal status isnow applied to now employed to nullify any sort of rule and provision which tends toaffect the rights of workers to get equal pay if they perform the same

kind of work insimilar organizations. However the Supreme Court has added a new clause to thearticle in the way of reasonable nexus of discrimination. This reasonable nexus includesthe qualifications of the employees, capacity of the workers and many more. The list isendless and new points of classifications are incorporated in it as and when theSupreme Court says so.

SUGGESTIONS

1. The equal remuneration act should not focus only on gender discrimination. 2. Equal pay for equal work should be mentioned as constitutional goal in writing so that it can be implemented strictly. 3. The degree of skill, the strain of work, experience involved, training required, responsibility undertaken, mental and physical requirements, disagreeableness of the task, hazards involved etc. were some of the relevant factors which were to be taken into consideration while fixing the pay scales. The method of recruitment, the level at which the recruitment was made in the hierarchy of service or cadre, minimum educational and technical requirements prescribed for the post, were also some of the relevant factors. 4. The criteria to define equal work should be clearly mentioned.

BIBLIOGRAPHY

STATUTES/RULES 1. The constitution of India

WEB SITES

1. 2. 3. 4. 5.

http://legalperspectives.blogspot.in/2010/06/equal-pay-for-equal-work-law-revisited.html http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=3300 www.scribd.com/doc/79668816 www.manupatra.com www.scconline.com

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