Equal pay for women at work — the rule under the new wage code

The Equal Remuneration Act, 1976 was repealed by the Code on Wages, 2019 — Section 69 of the Code lists it among the four wage statutes (the Payment of Wages Act 1936, the Minimum Wages Act 1948, the Payment of Bonus Act 1965, and the Equal Remuneration Act 1976) that the new Code consolidates. The repeal is not a substantive rollback — the core rule of equal wages for the same work or work of a similar nature is preserved in Section 3 of the Code, and the prohibition on gender discrimination in recruitment for the same work is preserved in Section 4. What did not survive the consolidation is the Advisory Committee architecture in Section 6 of the old Act, the express prohibition of discrimination in transfer, training and promotion that the old Section 5 carried, and the explicit reverse-burden language the old Act used. The constitutional foundation — Article 14 on equality, Article 15(1) and 15(3) on non-discrimination and protective discrimination for women, Article 16 on equality in public employment, and Article 39(d) on the directive principle of equal pay for equal work — continues to do the heavy lifting through the line that runs from Randhir Singh v Union of India, (1982) 1 SCC 618 to State of Punjab v Jagjit Singh, (2017) 1 SCC 148. This guide maps the transition.

The equal-pay rule in Indian labour law has two strands. The first is statutory — the Equal Remuneration Act, 1976 from its enactment until its repeal by the Code on Wages, 2019, and the Code on Wages itself from the date of commencement of each of its substantive provisions. The second is constitutional — the line of Supreme Court rulings beginning with Randhir Singh v Union of India, (1982) 1 SCC 618 that read Article 39(d), the directive principle, into Article 14 and Article 16 to produce an enforceable constitutional right to equal pay for equal work. The constitutional strand is what carried the doctrine forward when the statute was thin and is what continues to carry it forward where the Code on Wages, 2019 has narrowed the field. This article sets out the old Act and the new Code side by side, identifies what was lost in the consolidation, and traces how the constitutional line covers the gap.

The law in plain English — old Act and new Code

The Equal Remuneration Act, 1976 was a focused statute. Its operative provisions were four. Section 4 imposed the duty on every employer to pay men and women workers equal remuneration for the same work or work of a similar nature, and barred any reduction of the rate of remuneration of any worker to comply with the duty. Section 5 prohibited discrimination against women at the time of recruitment for the same work or work of a similar nature, and extended the prohibition to any condition of service subsequent to recruitment — promotions, training, and transfers. Section 7 designated a claims and complaints authority — typically a Labour Commissioner or other officer notified by the appropriate government — to hear complaints of contravention, and provided for an appeal to the prescribed appellate authority. Section 8 set up an Advisory Committee with representation for women workers to advise the government on increasing the employment opportunities for women. Section 10 set out penalties — fine of up to twenty thousand rupees, imprisonment of one month to one year, or both, for repeated contravention.

The Code on Wages, 2019, which received Presidential assent on 8 August 2019 and is being brought into force in a staggered manner with the Code on Wages (Central) Rules, 2020 already notified, repeals the Equal Remuneration Act, 1976 by Section 69 of the Code. The Code carries the equal-pay rule into Chapter III. Section 3 of the Code is the operative substitute for Section 4 of the old Act — it prohibits every employer from making any discrimination on the ground of gender in matters relating to wages by the same employer in respect of the same work or work of a similar nature done by any employee. Section 4 of the Code prohibits any discrimination on the ground of gender, while recruiting any employee for the same work or work of a similar nature, 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 claims and limitation machinery moves to Section 45 (claims authority) and Section 49 read with Section 50 (one-year limitation, extendable on sufficient cause). The penalty for contravention of the equal-pay rule sits in Sections 53 to 57 — a maximum fine of fifty thousand rupees on first contravention; imprisonment up to three months and a fine of one lakh rupees on repeat.

The structural shift is from a stand-alone statute to a chapter inside a larger wage code. The change is not cosmetic. The Equal Remuneration Act was administered by a separate apparatus — its own claims authority, its own Advisory Committee, its own annual reports to Parliament. The Code on Wages folds the equal-pay claim into the general claims authority that also hears minimum-wages, payment-of-wages, and bonus disputes. The single-window architecture is procedurally simpler. The trade-off is that the equal-pay claim now competes for adjudication time and institutional focus with the wider universe of wage claims.

What survived the consolidation — and what did not

Three substantive changes deserve close attention. First — the Advisory Committee structure of the old Section 6 (and the operational committee under the old Section 8) is gone. The Code on Wages does not replicate the standing committee with women-worker representation that was tasked with advising the government on increasing women's employment opportunities. The institutional voice the old Act gave to a women-worker constituency is therefore lost; the function, to the extent it is carried forward, sits within the general advisory boards that the Code constitutes for minimum-wage fixation.

Second — the express prohibition of discrimination in transfer, training, and promotion that the old Section 5 carried is narrowed. Section 4 of the Code on Wages prohibits gender discrimination "while recruiting any employee for the same work or work of a similar nature" — the language is recruitment-focused. The old Section 5 went further: "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" (emphasis on the post-recruitment sweep). The Code-on-Wages text omits the post-recruitment list. The plain-reading consequence is that discrimination in promotion, training, and transfer is no longer caught by the express prohibition in the Code; the claim has to be brought instead under Article 14 and Article 16 (for public employment) or under the general anti-discrimination jurisprudence the courts have built around Articles 15 and 16. The first reported decisions under the Code will test how the courts read Section 4 — whether they confine it to recruitment or read in the post-recruitment scope by reference to the constitutional foundation. Until those rulings, the practitioner working a discrimination-in-promotion claim should plead Articles 14 and 16 alongside Section 4 of the Code.

Third — the express reverse-burden language of the old Act is dropped. The old Section 4(3) prohibited the employer from reducing the rate of remuneration of any worker to comply with the Act; the old Section 10 imposed criminal liability with a knowledge-based defence that, in practice, the courts read narrowly. The Code on Wages takes a different drafting approach — the penalty provisions in Sections 53 to 57 work on the standard regulatory model, and the question of who bears the burden of proving the same-work-or-work-of-a-similar-nature predicate is left to general evidence principles. The companion question — what counts as "work of a similar nature" — continues to be governed by the case law under the old Act, which the courts have carried forward.

The constitutional line — Randhir Singh and what follows

The Constitution does the heavy lifting in any equal-pay case. Article 14 guarantees equality before the law; Article 15(1) prohibits discrimination on grounds of sex; Article 15(3) preserves the State's power to make special provision for women and children; Article 16(1) guarantees equality of opportunity in matters of public employment; Article 16(2) prohibits discrimination in public employment on grounds of sex; and Article 39(d), in the Directive Principles, requires the State to direct its policy towards securing that there is equal pay for equal work for both men and women.

The Supreme Court in Randhir Singh v Union of India, (1982) 1 SCC 618 — Chinnappa Reddy J writing for a three-judge bench — held that "equal pay for equal work", though a directive principle and not by itself a fundamental right, is a constitutional goal capable of being achieved through constitutional remedies under Article 32. The Court read Article 39(d) into Article 14 and Article 16 to produce an enforceable rule that two posts whose duties and responsibilities are functionally similar cannot, without a rational basis, be paid differently. The case concerned a driver-constable in the Delhi Police whose pay scale was lower than that of drivers in the railway protection force and other government departments performing comparable work — the Court ordered parity. The doctrine has been applied to a wide range of fact patterns: temporary and casual employees performing the same duties as regular employees; daily-wagers performing the same work as permanent staff; women performing the same work as men.

The Court in Mackinnon Mackenzie & Co Ltd v Audrey D'Costa, (1987) 2 SCC 469 — a leading equal-pay-for-women case — applied the Equal Remuneration Act and the Article 39(d) doctrine together to hold that female stenographers in a private company who performed the same work as male stenographers, with the same skill, effort, and responsibility, were entitled to the same wages, and that the differential historical treatment of "lady stenographers" as a separate cadre could not justify the differential pay. The case is the practical template for an equal-pay claim by women workers — the burden is to establish the same-work-or-work-of-a-similar-nature predicate, after which the discrimination in pay is presumed to be on the ground of sex unless the employer establishes a non-gender-based justification.

The Constitution Bench in State of Punjab v Jagjit Singh, (2017) 1 SCC 148 settled, for the public-employment sphere, that daily-wagers and contractual employees engaged in posts whose duties are the same as the regular employees of the same establishment are entitled to wages on par with the regular employees on the principle of equal pay for equal work. The ruling has direct application to many of the women-worker fact patterns that the Equal Remuneration Act, 1976 was originally designed to address — anganwadi workers, ASHA workers, and the large body of women engaged on casual or contractual terms in government schemes.

Air India v Nergesh Mirza, (1981) 4 SCC 335 sits on the protective-discrimination side of the same field. The Court there struck down certain Air India service conditions that discriminated against air hostesses on grounds related to marriage and pregnancy, reading Articles 14 and 15 with Article 16 to find that the differential treatment had no nexus with the duties of the post. The case is a reminder that the equal-pay doctrine sits within a broader constitutional architecture that polices not only wage differentials but also discriminatory conditions of service. State of MP v Pramod Bhartiya, (1993) 1 SCC 539 illustrates the inverse — that historically separate wage scales for women and men in the same job cannot survive scrutiny once the same-work predicate is established.

Same work or work of a similar nature — the comparator test

The pivot of every equal-pay claim is the comparator. Section 2(y) of the Code on Wages defines "same work or work of a similar nature" as work in respect of which the skill, effort, experience and responsibility required are the same when performed under similar working conditions by employees, and the differences, if any, between the skill, effort, experience and responsibility required for employees of any gender, are not of practical importance in relation to the terms and conditions of employment. The definition is substantially carried forward from Section 2(h) of the old Equal Remuneration Act, 1976.

The Supreme Court in Mackinnon Mackenzie set out the working test — the inquiry is into the skill, effort and responsibility required by each post, not into the formal designation. A "lady stenographer" performing the same dictation, typing and confidential-office duties as a male stenographer is performing work of the same or similar nature; the historical cadre separation is not a justification for differential pay. The same approach applied in State of Haryana v Tilak Raj, (2003) 6 SCC 123, where the Court refused parity between daily-wagers in different government departments performing visibly different duties — the comparator must be properly identified, and the same-work predicate must be made out on the facts.

Where the same-work predicate is contested, the practical evidentiary burden is on the employee to establish that the comparator post and the claimant's post are functionally similar. The employer's defence is typically that the comparator post requires additional skill, experience, or responsibility, or that the working conditions are materially different. The 2017 Constitution Bench in Jagjit Singh emphasises that the test is functional, not formal — the duties actually performed, not the cadre name, determine the comparison.

Step by step — bringing and defending an equal-pay claim

For an employee complaining of unequal pay on the ground of gender, the procedural map is this. First, identify the appropriate statutory route — for a claim arising on or after the commencement of Section 3 of the Code on Wages, 2019 in the relevant sector, the route is an application to the Inspector-cum-Facilitator under Section 51 read with a claim before the authority notified under Section 45 of the Code; for a claim arising before commencement, the residual route under the Equal Remuneration Act, 1976 continues to apply for the limitation period preserved by Section 6 of the General Clauses Act, 1897. Second, plead the comparator with precision — the post, the duties, the skill/effort/responsibility, the working conditions. Third, plead the wage differential and quantify the arrears. Fourth, plead the Article 14, Article 16 (where the employer is the State or an instrumentality) and Article 39(d) overlay — the constitutional pleadings carry the post-recruitment discrimination ground (promotion, training, transfer) that the Code's express text no longer covers. Fifth, watch the limitation — Section 49 of the Code prescribes a one-year limitation for filing a claim from the date the wages became payable, extendable by the authority on sufficient cause; for the constitutional remedy under Article 226, the doctrine of laches applies but no fixed period.

For an employer defending the claim, the practical check-list is: (a) audit the wage structure for any unexplained gender differential in the same-work-or-similar-work cohort; (b) document the skill, effort, responsibility, and working-conditions distinctions that justify any pay differential between superficially similar posts; (c) ensure that recruitment notices, job descriptions, and standing orders under the Industrial Employment (Standing Orders) Act, 1946 do not contain language that suggests gender as a recruitment criterion outside the narrow Section 4 exception (work where employment of women is prohibited or restricted by law); (d) review HR-policy language on transfer, training, and promotion — even though the Code's express prohibition is narrower, the constitutional line in Air India v Nergesh Mirza continues to govern.

Where things go wrong — three common failures

The first failure is comparator-blindness — pleading the equal-pay claim without identifying a specific comparator post and establishing the same-work predicate. The Supreme Court in State of Haryana v Tilak Raj refused the claim precisely on this ground; the comparator must be named and the functional similarity must be shown.

The second failure is statute-only pleading. Many equal-pay claims after the Code on Wages, 2019 stop at Section 3 and Section 4 of the Code and do not plead the constitutional overlay. The consequence is that post-recruitment discrimination — promotion, training, transfer — falls outside the express pleading and the claim narrows to recruitment-only. The fix is to plead Articles 14, 15(1), 16(1), 16(2) and 39(d) in addition to the Code provisions, particularly where the employer is the State or its instrumentality and Article 226 jurisdiction is available.

The third failure is on the limitation side. Section 49 of the Code prescribes a one-year limitation, with a discretionary extension under Section 50 for sufficient cause. The recurring-wage doctrine — that each pay-day is a fresh cause of action for the unpaid differential — applies, but only in respect of the periods within the limitation window. The pre-limitation arrears are barred unless the claimant establishes sufficient cause for the delay or invokes the constitutional remedy under Article 226 where the doctrine of laches is the only constraint.

Watch for — the open questions under the new Code

Three open questions sit at the boundary of the new statute and the constitutional line. First, the scope of the Code's Section 4 — does it confine itself to recruitment, or do the High Courts read it together with the Mackinnon Mackenzie line to cover post-recruitment service conditions? The first reported decisions on Section 4 are awaited and will determine the litigation strategy for the next decade of equal-pay claims.

Second, the treatment of transgender employees and gender beyond the binary. The Code uses the word "gender" rather than "sex" — a textual choice that, read with NALSA v Union of India, (2014) 5 SCC 438 (recognising transgender as the third gender) and the Transgender Persons (Protection of Rights) Act, 2019, opens the question whether the equal-pay rule of Section 3 extends to wage differentials between transgender employees and cisgender employees performing the same work. The plain reading suggests yes — "gender" is wider than "sex" — but the issue is not yet authoritatively settled.

Third, the interplay with protective discrimination under Article 15(3). The constitutional line in Air India v Nergesh Mirza and the subsequent Supreme Court rulings have made it clear that Article 15(3) permits the State to make special provisions for women that go beyond formal equality — but the equal-pay rule is itself a special provision and the question of when Article 15(3) justifies a wage differential in favour of women (rather than the reverse) is unresolved.

Outcome — what the equal-pay claim produces

An equal-pay claim that succeeds yields an order directing the employer to pay the wage differential going forward and to pay the arrears for the limitation period. The quantum of arrears depends on the limitation window — one year before the date of filing, extendable on sufficient cause under Section 50 of the Code. Where the constitutional remedy under Article 226 is invoked alongside the statutory claim, the High Court may grant relief that extends beyond the statutory limitation, subject to the doctrine of laches.

The penalty route — a prosecution under Sections 53 to 57 of the Code — is rarely used in practice; the wage-arrears remedy is the operative route. The Code's penalty provisions are reserved for systemic or repeat non-compliance — fine of fifty thousand rupees on first contravention, imprisonment of up to three months and a fine of one lakh on a repeat within five years. The Inspector-cum-Facilitator's role under Section 51, requiring an opportunity to comply before prosecution, further pushes the enforcement balance toward arrears recovery and away from criminal prosecution.

The doctrinal lesson is that the equal-pay rule in India is a layered architecture. The Code on Wages, 2019 supplies the statutory chassis; the Constitution supplies the foundation; the Supreme Court case law from Randhir Singh through Mackinnon Mackenzie to Jagjit Singh supplies the operating doctrine. The repeal of the Equal Remuneration Act, 1976 narrowed the statutory text on post-recruitment discrimination and dissolved the dedicated Advisory Committee — but the constitutional line carried by Articles 14, 15, 16 and 39(d) holds the field where the statute now goes thin.