Rebalancing the Biases

Gender inequality in terms of employment opportunities at workplaces, a much-talked-about topic, has partial solutions available in some of the less-talked-about provisions. One such provision is Section 5 of The Equal Remuneration Act, 1976, which categorically mentions that no employer shall, while making recruitment for the same work or work of a similar nature, or in any condition of service subsequent to recruitment such as promotions, training, or transfer, make any discrimination against women—except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force. The statute provides for the payment of equal remuneration to men and women workers and for the prevention of discrimination, on the ground of gender, against women in matters of employment and for matters connected therewith or incidental thereto. It includes issues such as those mentioned in Section 5.

Section 6 of the Act further states that, for the purpose of providing increasing employment opportunities for women, the appropriate Government shall constitute one or more Advisory Committees to advise it with regard to the extent to which women may be employed in such establishments or employments as the Central Government may, by notification, specify in this behalf. It inter alia further states that, in tendering its advice, the Advisory Committee shall have regard to the number of women employed in the concerned establishment or employment, the nature of work, hours of work, suitability of women for employment—as the case may be—the need for providing increasing employment opportunities for women, including part-time employment, and such other relevant factors as the Committee may think fit. Thus, we have some well-defined provisions, awareness and implementation of which can make a lot of difference to gender-based imbalance issues.

Article 39 of the Constitution of India refers to certain principles of policy to be followed by the State. It inter alia states that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means to livelihood; and that there is equal pay for equal work for both men and women.

The Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value was adopted by the General Conference of the International Labour Organisation on June 29, 1951. India has been one of the parties to the said Convention. In order to implement Article 39(d) of the Constitution of India and the Equal Remuneration Convention, 1951, the President promulgated, on September 26, 1975, the Equal Remuneration Ordinance, 1975 so that the provisions of Article 39(d) of the Constitution of India could be implemented in the year which was being celebrated as the International Women's Year.

Article 16 also talks about equality of opportunity in matters of public employment. It inter alia states that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Clause (2) specifically prohibits discrimination inter alia on grounds of gender.

The factor of gender equality is an important element and signifies that women have the freedom to be themselves and are free to develop their talents as much as men. There are reasonable restrictions to it, such as women being barred from working in hazardous roles at certain places or late at night in some establishments. Though some of these restrictions have been relaxed by virtue of amendments, government notifications—along with riders like safe transportation, etc.—for specific industries and states, still apply. The Labour Codes, 2020, which are yet to see the light of day, have specific provisions further diluting these restrictions, thereby promoting women's workforce participation and their protection, aiding in the achievement of Constitutional objectives of equality and livelihood.

Courts too have been very vocal about women's equality. For instance, in the judgment of Mackinnon Mackenzie & Co. Ltd vs Audrey D'Costa & Anr (1987), the Apex Court discussed the provisions of the Equal Remuneration Act, and held that if it is found that a man and a woman employed in two jobs are paid differently, then discrimination clearly arises.

The implementation of the provisions of statutes in letter and spirit will ensure gender justice at workplaces, promote equality, and overall improve the economy—apart from positioning India as a model employer for the world.

The writer is a practising Advocate in the Supreme Court and High Court of Delhi. Views expressed are personal