An Overview of the Gender Pay Disparity in India

Freedom cannot be achieved unless women have been emancipated from all forms of oppression.

– Nelson Mandela

Women have been the victim of subjugation since generations. The shallow notion that a man must be paid more just because he is a man is a gospel that many are fed since nonage. Women from all walks of life have been struggling to establish their status in their respective vocations. Howbeit, unethical, and nefarious elements of society constantly demean and treat them as inferior human beings. The oppression against women ranges from innocuous cat-calling to the dangers of sexual harassment at the workplace. The gender pay gap is one such element against women instilled in our minds and the economic system since its inception. Although the law enforcement agency has strived hard to curb the menace of discrimination against women, the gremlin somehow persists. The true insecurity lies in the psyche of the society who scorn at the thought of women in any other position other than the one attributed to them through ancient customs and observances. However, times have changed. Women have slowly started to realize that they are not mere objects of pleasure and slave to men. They have discerned that they exhibit the same potential to succeed, if not more.

As per the International Labor Organization, the gender pay gap refers to the difference in average wages between women and men who are engaged in paid employment[1]. Women in 2019 continue to be paid approximately 20% less than men[2]. This gender pay disparity does nothing but reiterates the notion of patriarchy and instills fear of sexism. The fickle rationale behind this gender pay gap is the century-long conscious bias and discrimination against women.

Women are almost half the workforce and sometimes the sole breadwinner of the families. Yet, on average, women continue to earn considerably less than men for the same job. The justification behind this is the persistent occupational segregation which primarily contributes to the lack of significant progress in dissolving the wage disparity[3]. Apart from decreasing the morale of the women, a 2016 study from Columbia University has revealed that women who earn less money than men are 2.4 times more likely to experience depression and 4 times more likely to encounter anxiety. In other words, this research showed that the discrimination and experiences of women that are “structurally embedded” in our society have a substantial impact on mental health[4].

In an era where women are venturing towards heights unknown, gender pay disparity still knocks them down. In our country, the pay-scale gap is further aggravated by socio-economic circumstances. A girl child is still considered as a taboo for many families. The practice of female infanticide stands testament to the organized discrimination faced by women right from infancy. Fortunate girls who are allowed to be born still struggle to gain basic education and in the rare cases where they are allowed an education, they are not allowed to work. All these factors collectively hold water to the prevailing pay disparity in our country.

Constitutional Perspective on Gender equality

The principle of “equal pay for equal work” is not an abstract doctrine but one of substance[5]. Equality is a basic feature of the constitution of India and any treatment of equals unequally will be a violation of the basic structure of the constitution[6]. Whilst the principle of “equal-pay for equal-work” is not explicitly provided as a fundamental right under the Constitution, there are a plethora of dictums of the Apex Court that has read the above principle within the ambit of Article 14, 15, and 16[7]. Denial of equal pay for equal work is thus a form of “exploitative enslavement” and “coercive oppression”[8]. Further, ‘equal pay for equal work’ is a directive principle enshrined under Part IV of the Indian Constitution. These principles oblige the State to direct its policy towards securing all citizens men and women, equally, the right to means of livelihood[9] and secure equal pay for equal work for both men and women[10].

The principle of “equal pay for equal work” implies that where all things are equal, persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to different-sex[11]. The State is also duty-bound to renounce the practices derogatory to the dignity of women[12]. Although these directives are non-enforceable[13], they are still fundamental to the governance of the State and the Government ought to take them into consideration while drafting legislations and national policies for the welfare of the public[14]. Thus, through the progressive dictums of the Apex Court, the principle of equal pay for equal work has attained the status of a Fundamental Right[15] by reading Article 39(d) along with Article 14 and 16 having regard to the Constitutional mandate of equality and non-discrimination[16].

Legislative Measures against Gender Discrimination

To fulfill the mandate of the Constitution, the legislature has zealously crusaded to safeguard the women from any form of discrimination. The overriding aim behind the measures undertaken by the authorities was to boost the determination of the women and to attain economic fairness. Notwithstanding the honest endeavors, the dearth of proper infrastructure and lack of awareness amidst the womenfolk had decelerated their liberation movement to a great extent. Prior to the 21st century, women were oblivious of their basic rights and did not insist upon equal remuneration. They were content with their prearranged rate of consideration. Naturally, the employers profited from this fact and exploited the women without paying them their due. This section of the article focuses on the various legislative measures undertaken to curb the prevalent evil of gender pay disparity.

1. Minimum Wages Act, 1948:

The first Central enactment to broach upon the concept of wages was the Minimum Wages Act of 1948. The primary drive behind this enactment was the lack of a uniform wage system in India. The Act equally applies to both men and women. Ergo, the female workforce is entitled to the same wages as compared to their male counterparts. Although the Act does not differentiate between workers based on their sex, it failed to fill the wage gap between men and women. Minute contradictions in the nature of work were used as a feeble excuse to pay the men a higher stipend as compared to women. Further, the Act also did not particularly address the existent issue of gender pay disparity.

2. Equal Remuneration Act, 1976:

The next big step in the emancipation of women workers was the Equal Remuneration Act of 1976. In an attempt to ensure compliance with the conventions of the International Labor Organization and in response to the report by the Committee on status of women in India[17], the government enacted the Equal Remuneration Act. In order to attest its significance, the Act was enacted right after 1975 which were declared as International Women’s Year. This act has been a significant step towards the realization of “equal pay for equal work[18]”. Under this Act, the employers shall pay equal remuneration to a man and a woman who perform the same or even similar work[19] irrespective of their gender. Further, where two classes of employees carry out the same functions with the same measure of responsibility having the same academic qualifications, they are entitled to equal pay[20]. Employers could not legally discriminate between men and women in the recruitment process unless there is a legal limit to the employment of females in certain sectors[21]. This legislation not only provides women with a right to demand equal pay, but any inequality with respect to recruitment processes, job training, promotions, and transfers within the organization can also be challenged under this Act[22].

Therefore, the Act can be hailed as a progressive step towards achieving gender neutrality. For once, the settlement or agreement adversely affecting the interest of employee has no legal effect for the purpose of this Act[23]. Further, the financial ability of the employer is also irrelevant for the purpose of application of this Act[24]. Hence, the Act has been successful to the extent that it provides a refined framework for equal remuneration irrespective of gender[25]. However, the same cannot be said about the practical implementation of the Act. Although the Act can be applauded for being the strongest form of protection extended to the workforce comprising of women, oftentimes, due to the narrow interpretation of the principle of “work of similar nature”, the claims of genuinely aggrieved people are lost.

3. Code of Wages, 2019:

The Code on Wages, 2019 is the latest addition to the lengthy list of legislations pertaining to wage determination. The Code, which was introduced in Lok Sabha on 23rd July 2019, replaced the Equal Remuneration Act of 1976 besides three other labor legislations. The Code explicitly forbids gender pay disparity and mandates the Employers to pay equal wages to both men and women for “similar kind of work” performed by them[26]. Further, the Code deviates from its foregoing legislation to the extent that it includes in its ambit the 3rd gender for the purpose of Section 3 i.e. prohibition of discrimination on the grounds of gender by replacing the words ‘men and women’ with a more common word ‘gender’. It can be rightly said that the Code has consolidated, simplified, and rationalized the labor jurisprudence. This could very well be used as an opportunity to cover up the shortfalls that were present in the earlier legislations.

International Response to Gender Pay Disparity

The equal status of women in the economic sphere was long recognized and established in the International realm with the adoption of the Equal Remuneration Convention in 1951[27] and the Discrimination (Employment and Occupation) Convention in 1958[28] by the International Labor Organization as its 100th and 111th Conventions respectively. According to the 100th Convention, each Member shall ensure equal remuneration for men and women workers for work of equal value[29]. The 111th Convention, on the other hand, prohibits the member States to discriminate among workers[30]. India is a permanent member of the ILO since 1922 and has ratified both the aforesaid conventions. Therefore, it is an international obligation of our country to ensure that there exists no pay disparity on the basis of sex[31].

The principle for ‘Equal pay for equal work’ is also enshrined in Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1976; Article 23 of the Universal Declaration of Human Rights, 1948; Article 26 of the International Covenant on Civil and Political Rights, 1976 and Article 19 of the Declaration on the Elimination of Discrimination against women, 1967. Thus, the principle for “equal pay for equal work” is succinctly embedded in the international instruments to which India is a Signatory and this makes it the duty of India to ensure that the public and private economic sector comply with the international standards pertaining to pay equality.

Conclusion

All over the world women have been treated as sub-human beings. However, with the progress of time, development of civilization and advancement of the human rights movement, we have strived hard to ameliorate their position through legal and other means[32]. While there has been some narrowing down of the differences in wages of men and women, disparities still exist, even after decades of ratifying the Conventions of the International Labor Organization[33]. Indeed, there is not even a single piece of legislation in India guaranteeing a citizen equal pay for equal work. Of course, there is the Equal Remuneration Act of 1976, but the Act is insufficient and ineffective. It provides for equal wages for men and women for the same or similar work. But the Government on subjective satisfaction has the power to declare that difference in remuneration between men and women in a specific establishment is based on a factor other than sex[34]. Moreover, establishing that the work is the same or similar is an arduous task. A claim for equal pay could easily be defeated by proving that the work performed by a woman is not the same or similar to that of a man. This is due to the inefficient implementation of the Act and the lack of consciousness among the women workers. Further, an inequality of such disposition cannot be curbed only through progressive legislations. It needs the support of social groups to inspire and elevate women and make them aware of their inherent basic rights. Only the collective efforts of Executive, Legislative, Judicial, and Social organizations can help eradicate the existent pay disparity from our society.


[1] Global Wage Report 2018/19, What lies behind gender pay gaps, International Labor Organization,  https://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/—publ/documents/publication/wcms_650553.pdf, Accessed on 16/06/20120 at 17:31 HRS.

[2] Ibid.

[3] Pay Equity and Discrimination, Institute for Women’s Policy Research, <https://iwpr.org/issue/employment-education-economic-change/pay-equity-discrimination/> Accessed on 16/06/2020 at 17:39 HRS.

[4] Cory Stieg, ‘How the gender pay affects the women’s mental health’, (CNBC, 31 March 2020) <https://www.cnbc.com/2020/03/31/how-the-gender-pay-gap-affects-womens-mental-health.html>, Accessed on 16/06/2020 at 17:43 HRS.

[5] Randhir Singh v. Union of India, AIR 1982 SC 879.

[6] M.G. Badappanavar v. State of Karnataka, AIR 2001 SC 260.

[7] Devi, Kovuru, ‘Women’s Equality in India: A myth or a reality’, 2000, pg 49-50 cited in Megha Sahni, ‘Equal pay for equal work in India’, International Journal of Law Management and Humanities, Volume 2, Issue 1, <https://www.ijlmh.com/wp-content/uploads/2019/04/Equal-Pay-for-Equal-Work-in-India.pdf>, Accessed on 16/06/2020 at 17:58 HRS. Also in People’s Union for Democratic Rights v. Union of India (1982) 2 LLJ 454 (SC).

[8] Jagjit Singh and Ors. v. State of Punjab, (2017) 1 SCC 148.

[9] Article 39(a) of the Constitution of India, 1950.

[10] Article 39(d) of the Constitution of India, 1950.

[11] Debalina Chatterjee, ‘Equal pay for equal work: the unfair gender pay gap’, (Legalbites, 6 November 2018) <https://www.legalbites.in/equal-pay-for-equal-work-unfair-gender-gap/>, Accessed on 16/06/2020 at 18:01 HRS.

[12] Article 51(A)(e) of the Constitution of India, 1950.

[13] Article 37 of the Constitution of India, 1950.

[14] Devi, Kovuru, Supra Note, 7.

[15] Mackinnon Mackenzie and Co. Ltd. v. Audrey D’Costa and Ors., (1987) 2 SCC 469; Kishori Mohanlal Bakshi v. Union of India, AIR 1962 SC 1139.

[16] Grih Kalyan Kendra v. Union of India, AIR 1991 SC 1173, 1176.

[17] ‘Towards Equality: Report of the Committee on the Status of Women in India’, Government of India, Ministry of Education and Social Welfare, Department of Social Welfare, December 1974, Available at <https://feministlawarchives.pldindia.org/category/towards-equality/towards-equality-towards-equality/>, Accessed on 20/06/2020 at 19:39 HRS.

[18] Megha Sahni, Supra Note, 7.

[19] Vikram Shroff and Archita Mohapatra, ‘Viewpoint: Gender pay gap in India Legal considerations’, (SHRM, 17 February 2020) <https://www.shrm.org/shrm-india/pages/gender-pay-gap-in-india-legal-considerations.aspx>, Accessed on 16/06/2020 at 18:24 HRS.

[20] Markendeya v. State of Andhra Pradesh, AIR 1989 SC 1308.

[21] Kabir Jaiswal, ‘Women’s rights and labour law statutes in India’, (Blog IPleaders, 12 February 2019) <https://blog.ipleaders.in/womens-rights-labour-law-statutes-india/>, Accessed on 16/06/2020 at 19:29 HRS.

[22] Megha Sahni, Supra Note, 7.

[23] Masood Ahmed, ‘Equal pay for equal work with special reference to India and U.K.’, Conclusion, Aligarh Muslim University, 2014, <https://shodhganga.inflibnet.ac.in/bitstream/10603/28562/13/13_conclusion.pdf>, Accessed on 16/06/2020 at 18:31 HRS.

[24] Mackinnon Mackenzie and Co. Ltd. v. Audrey D’Costa and Others (1987) 2 SCC 469.

[25] Masood Ahmed, Supra Note, 23.

[26] Section 3 of the Code of Wages, 2019.

[27] Equal Remuneration Convention, 1951 (No. 100), Declaration on Fundamental Principles and Right to Work, International Labour Office, International Labour Organisation, <https://www.ilo.org/wcmsp5/groups/public/—ed_norm/—declaration/documents/publication/wcms_decl_fs_84_en.pdf>, Accessed on 17/06/2020 at 16:48 HRS.

[28] Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Declaration on Fundamental Principles and Right to Work, International Labour Office, International Labour Organisation, <https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312256:NO>, Accessed on 17/06/2020 at 16:52 HRS.

[29] Article 2 of the Equal Remuneration Convention, 1951 (No. 100), Supra Note, 27.

[30] Preamble and Article 2 of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Supra Note, 28.

[31] Megha Sahni, Supra Note, 7.

[32] O.P. Parmer, ‘ILO and India in pursuit of Human Rights through Labour Standard’, 23 JILI (1981) p. 556 cited in Masood Ahmed, ‘Equal pay for equal work with special reference to India and U.K.’, Chapter II, Aligarh Muslim University, 2014, <https://shodhganga.inflibnet.ac.in/bitstream/10603/28562/9/09_chapter%202.pdf>, Accessed on 16/06/2020 at 18:31 HRS.

[33] Masood Ahmed, Ibid.

[34] Section 16 of the Equal Remuneration Act, 1976. Cited in Masood Ahmed, Ibid.


Nimrah Ali from School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University, Chennai

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