Guest post by Saurabh Bhattacharjee

The Code on Wages Bill 2017 was introduced in the Lok Sabha in August 2017 as part of the National Democratic Alliance (NDA) Government’s attempt to catalyse the process of labour reforms. Promised in its manifesto for the General Elections 2014, the agenda of labour reforms has so far largely centred around (a) liberalisation of regulatory restrictions on employers and (b) simplification and consolidation of existing labour regulations. Thus, the Labour Ministry has sought to consolidate thirty-eight central legislations into four Labour Codes – on Code of Wages, Code on Industrial Relations, Code on Social Security and Code on Occupational Safety, Health and Working Conditions. The progress of most of these draft Codes have been stalled amidst massive protests by workers against dilution of labour rights that have been proposed. The Code on Wages Bill (hereinafter ‘Code Bill’), in contrast, has attracted relatively less attention and mild opposition. Indeed, there is much to commend about the Code Bill, especially its attempt to make the right to minimum wages a truly universal entitlement. In spite of its progressive intent however, the Code Bill constitutes a significantly retrograde step in the field of gender discrimination in employment law. 

The Code Bill seeks to unify 4 laws currently in force – the Minimum Wages Act, 1948; the Payment of Wages Act, 1936; the Payment of Bonus Act, 1965; and the Equal Remuneration Act, 1976 – and repeals these statutes. Curiously in this process, the Code Bill omits one of the most central provisions of the Equal Remuneration Act 1976 – the general gender-discrimination clause.

The Equal Remuneration Act, 1976 (hereinafter ‘ERA’) is a beneficial legislation that operationalises the doctrine of ‘equal pay for equal work’ enshrined in Article 39 of the Constitution of India. Indeed, the Supreme Court has held that the doctrine is a component of the equality clause under Article 14 and has therefore assumed the status of a fundamental right. In that sense, the ERA provides a framework for concretising the fundamental right to equality in the context of gender and work place.

It is pertinent that in spite of its title, the ERA does not guarantee protection against gender discrimination only in matters pertaining to wages. Instead, the Act also prohibits discrimination on the basis of gender in all aspects of employment. Indeed, while section 4 of the Act speaks of equal remuneration for performing same work or similar work, Section 5 has a far broader ambit. It stipulates 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.” Thus, the ERA prohibits gender discrimination with respect to all aspects of employment and not just quantum or payment of wages.

Admittedly, the heading of Section 5 refers only to discrimination while recruiting men and women workers. In fact, the Supreme Court also observed in M/s. Mackinnon Mackenzie & Co. Ltd. v Audrey D’ Costa that the section “prohibits any kind of discrimination being made while recruiting men and women workers.” But a plain reading of the text would suggest that the provision extends beyond recruitment to any condition of service. Nonetheless, even if the ambit of this section is limited only to recruitment, it is still amply clear that the ERA transcends the mandate of equal pay for equal work and deals with other aspects of employment.

It is also noteworthy that the Act provides for criminal sanctions not just for payment of unequal remuneration for same work or work of similar nature, but also for any discrimination with respect to employment.

However, in trying to assimilate the provisions of the ERA into a single statutory instrument, the Code Bill has ignored these general anti-gender discrimination provisions of the Act. While the substance of section 4 and the equal pay for equal work doctrine has been incorporated in section 3 of the Code Bill, the anti-discrimination provision of section 5 finds no mention. Sections 3 and 4 are the only provisions of the Code Bill that deal with gender discrimination. They state that there shall not be any discrimination on the ground of gender in matters relating to wages in respect of the same work or work of similar nature done and that any dispute as to whether a work is of same or similar nature shall be decided by an authority notified by the appropriate government. However, there is no reference whatsoever to gender-based discrimination in matters of recruitment or other conditions of service. Consequently, such gender-based discrimination with respect to other aspects of employment that have no direct connection with wages shall not be considered a contravention of this Code Bill.

This is a dangerous regression in the field of employment law. If this Code Bill is enacted as it stands, women workers in India would be left without any statutory remedy against gender-based discrimination on matters of recruitment and conditions of service. Admittedly, persons seeking employment with or employed by public employers would still have recourse to the fundamental right to equality in Part III of the Constitution. However, in absence of a clause analogous to Section 5 of the ERA, the Code Bill shall leave private employers free to discriminate on the basis of gender with respect to conditions of service which are not connected to wages.

Admittedly, the ERA has been poorly implemented till now and systematic inequality in wages and other conditions of labour between men and women is pervasive in India. Yet, it cannot be overstated that the Act does provide a formal legal remedy against gender-based discrimination at the workplace. Indeed, the criminal sanctions mandated by the statute can potentially act as a significant deterrent against discriminatory acts.

The removal of the general anti-gender discrimination clause also weakens the quest to make workplaces in India more gender-just and women-friendly. The Vishakha judgment, which recognised sexual harassment at workplace as a form of discrimination, and the subsequent enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 have led to incremental steps towards creation of a robust legal framework on one of the most oppressive and pervasive forms of discrimination experienced by women at the workplace. In so far as sexual harassment is inextricably linked with the wider asymmetry of power between men and women and structural discrimination against women, the Code’s failure to prohibit discrimination in conditions of service not related to wages may irretrievably harm the struggle against harassment of women at workplace. Similarly, absence of strong anti-discrimination provisions may perpetuate subversion of the Maternity Benefit Act 1961 (MBA). Indeed, only an effective legal provision prohibiting gender discrimination by employers can address the widely-held apprehension that the recent increase in the number of days that a woman can claim as statutory maternity leave under the MBA will result in decline in hiring of women workers.  

The weakening of the legal standards on gender discrimination at workplace runs against the recent attempts towards creating an overarching anti-discrimination law in India. The Sachar Committee Report on the Social, Economic and Educational Status of the Muslim Community of India had recommended the constitution of an Equal Opportunity Commission to look into the grievances of the deprived groups. Thereafter, the Ministry of Minority Affairs set up an Exert Group which prepared a draft Equal Opportunity Commission (EOC) Bill in 2008. While the Bill has not been introduced in the Parliament as yet, the Minister of State (IC) for Minority Affairs, Mr Mukhtar Abbas Naqvi informed the Lok Sabha in March 2017 that “it has been re-circulated for inter-ministerial consultations.” Furthermore, a Private Member’s Bill, the Anti-Discrimination and Equality Bill 2016 was introduced in the Lok Sabha by Member of Parliament, Mr. Shashi Tharoor in March 2017. These attempts have sought to supplement the constitutional standards on equality by creating a comprehensive legislation against discrimination that covers both the public and the private sector.

In this context, the curious omission of norms prohibiting gender discrimination by an employer with respect to recruitment and other conditions of service from the Code is a deliberately retrogressive measure. The Code, as it stands now, will radically undermine the existing legal standards on gender discrimination under the ERA, thereby impairing women’s constitutional right to equality in employment. 

References:

1. Panchanan Das, Wage Inequality in India: Decomposition by Sector, Gender and Activity Status, Economic and Political Weekly, Vol. 47, No. 50 (Dec. 15, 2012), 58
2. Dipa Mukherjee and Rajarshi Majumdar, Occupational Pattern, Wage Rates and Earning Disparities in India, Indian Economic Review, Vol. 46. No. 1 (Jan. 2011) 136