Equal Pay for Equal Work: Your Fundamental Constitutional Right to Wage Equality Across Genders
An Analysis of Article 39(d), the Equal Remuneration Framework, and Judicial Enforcement of Wage Parity in India
Published In :Lawvaani | Category: Employee Rights
Abstract / Introduction
A pay slip rarely lies about the value an organisation places on the person who earned it. Yet across Indian workplaces, from factory floors to corporate boardrooms, two employees performing the same job continue to draw different wages for no reason other than gender. The idea that equal work deserves equal pay sounds almost too obvious to need a law. In practice, it has taken seven decades of constitutional interpretation, one dedicated statute, its eventual absorption into a modern labour code, and a string of Supreme Court judgments to convert this idea into an enforceable right.
This article examines the constitutional foundation of wage equality in India, tracing its journey from a non-justiciable Directive Principle under Article 39(d) to a right that courts routinely enforce by reading it into Articles 14 and 16. It surveys the statutory architecture built around this principle, beginning with the Equal Remuneration Act, 1976 and its consolidation into the Code on Wages, 2019. It then analyses the landmark judgments that have shaped the doctrine, from the recognition of equal pay as a constitutional goal in Randhir Singh v. Union of India, through the gender-specific application in Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa, to the extension of the principle to temporary and contractual employees in State of Punjab v. Jagjit Singh. Finally, the article critically evaluates the persistent gap between legal guarantee and lived reality, including under-enforcement, wage secrecy, the limited reach of constitutional remedies against private employers, and the informal sector’s near-total exclusion from these protections, before proposing reforms that could close that gap.
The stakes of getting this right extend beyond individual pay slips. Wage discrimination on the basis of sex discourages women’s workforce participation, deepens household economic dependence, and perpetuates occupational segregation in which roles disproportionately held by women are systematically undervalued. A legal system that merely names equal pay as a goal, without building the enforcement machinery to realise it, risks leaving the principle exactly where Article 39(d) originally placed it: aspirational, well-intentioned, and largely unenforced.
Background and Legal Framework
The Indian Constitution does not use the phrase “equal pay for equal work” in its chapter on Fundamental Rights. Instead, the principle appears in Article 39(d), a Directive Principle of State Policy that directs the State to secure equal pay for equal work for both men and women. Directive Principles are, by design under Article 37, not enforceable in any court. For decades this left wage equality as an aspiration rather than a right that an aggrieved worker could actually litigate.
That changed through judicial interpretation rather than constitutional amendment. Courts began reading Article 39(d) alongside Article 14, which guarantees equality before the law, and Article 16, which guarantees equality of opportunity in public employment. The reasoning is straightforward: paying two employees differently for identical work, without any rational basis such as differing qualifications, experience, or responsibility, amounts to arbitrary classification, and arbitrary classification is precisely what Article 14 forbids. Once this connection was firmly established, equal pay for equal work effectively acquired the character of an enforceable right, even though it remains formally housed in a non-justiciable provision.
Parliament reinforced this constitutional principle through the Equal Remuneration Act, 1976, enacted specifically to give statutory teeth to Article 39(d) and to India’s obligations under International Labour Organisation Convention No. 100 on Equal Remuneration. The 1976 Act prohibited discrimination in pay on the ground of sex for the same work or work of a similar nature, and it also barred discrimination at the stage of recruitment. Section 4 imposed a direct duty on employers to pay equal remuneration to men and women workers, and Section 3 gave the Act an overriding effect over any inconsistent contract, settlement, or award.
In 2019, Parliament restructured India’s labour law architecture by enacting four consolidated codes, one of which was the Code on Wages, 2019. This Code repealed and subsumed the Equal Remuneration Act, 1976 along with three other wage-related statutes, folding its non-discrimination mandate into Chapter III of the new Code. The substantive guarantee of equal remuneration for the same work or work of a similar nature survives largely intact, now extended to cover discrimination beyond gender in matters of recruitment and conditions of employment for the same work. India’s obligations under ILO Convention No. 100 and the complementary Convention No. 111 on discrimination in employment continue to inform how courts interpret this framework.
A crucial structural point is often missed in popular discussion of this right: Articles 14 and 16 bind only the “State” as defined in Article 12, meaning government bodies, statutory authorities, and instrumentalities of the State. A private employer cannot be dragged before a constitutional court merely for violating Article 39(d); the worker’s remedy against a private employer lies exclusively in the statutory route, today through the Code on Wages, 2019, and previously through the Equal Remuneration Act, 1976. This is precisely why Mackinnon Mackenzie was litigated and decided as a statutory dispute under the 1976 Act rather than as a direct constitutional claim, even though the Court drew heavily on Article 39(d) to interpret the statute’s purpose. Constitutional doctrine and labour statute therefore work as two complementary tracks, one for the public sector and one for private employment, both converging on the same underlying principle.
Both the erstwhile Equal Remuneration Act and the Code on Wages hinge on a specific statutory phrase: “same work or work of a similar nature.” The law defines this as work in which the skill, effort, and responsibility required are the same when performed under similar working conditions, and it directs that any minor differences in duties should have no practical effect on the terms and conditions of employment. This functional, substance-over-form test is what has allowed courts to look past superficial differences in job titles, departmental placement, or shift timing, and ask instead whether two employees are, in real terms, doing the same job. It is this statutory test, rather than any single case, that ultimately does the analytical work in most equal-pay disputes.
Main Analysis and Case Studies
The doctrinal history of equal pay for equal work in India is best understood through three landmark judgments, each of which expanded the principle’s reach in a distinct direction.
The foundational case is Randhir Singh v. Union of India (1982). The petitioner, a driver-constable in the Delhi Police Force, was paid on a lower scale than drivers performing comparable duties in other government departments such as the Railway Protection Force. The Union of India argued that departmental differences justified the disparity and that pay-fixation was purely an executive prerogative beyond judicial review. The Supreme Court, speaking through Justice O. Chinnappa Reddy, rejected this defence. The Court held that although equal pay for equal work is not expressly declared a fundamental right, it is a constitutional goal capable of enforcement through Articles 14 and 16 when read with the Preamble and Article 39(d). Where two employees under the same employer perform identical duties and there is no rational classification separating them, unequal pay violates the equality clauses of the Constitution. This judgment converted a directive aspiration into a doctrine with real judicial bite, and it remains the anchor citation in virtually every subsequent equal-pay dispute in India.
Five years later, the Court confronted the specifically gendered dimension of the problem in Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa (1987). The respondent, a confidential lady stenographer, was paid less than her male counterparts performing the same or substantially similar work. The employer resisted the claim on two grounds: that confidential stenographers were a distinct category not comparable to general male stenographers, and that a prior settlement between the company and its employees’ union had already fixed the applicable pay structure. The Supreme Court rejected both defences. It held that where the skill, effort, and responsibility involved in two jobs are essentially the same, minor differences in job title or physical location of work cannot defeat a claim under the Equal Remuneration Act, 1976. Crucially, the Court also held that a settlement or contract cannot override the statute, since Section 3 of the Act expressly gives it overriding effect. The employer’s plea of financial hardship was likewise dismissed as irrelevant, the Court noting that the statutory duty to pay equal remuneration does not bend to an employer’s claimed inability to pay. Mackinnon Mackenzie remains the leading authority on how courts should conduct a functional comparison of jobs rather than accepting labels or negotiated fitment formulae at face value.
The third major extension came in State of Punjab v. Jagjit Singh (2016), which addressed whether the equal pay principle applies to temporary, ad-hoc, and contractual employees discharging the same duties as regular government staff. Conflicting decisions of the Punjab and Haryana High Court had left the question unsettled for years. The Supreme Court, in a judgment authored by Justice J.S. Khehar, held unambiguously that temporary employees performing duties identical to those of regular employees are entitled to wages at least at the minimum of the regular pay scale, though not necessarily to every allowance attached to the post. The Court reasoned that permitting employers to pay less merely because of an employee’s nomenclature as “temporary” or “contractual” would amount to what it termed exploitative wage arbitrage, disadvantaging both the underpaid temporary worker and the regular employee whose job security is undermined by cheaper substitutes. This judgment matters enormously in the Indian labour market, where a large share of the workforce, including in government-adjacent roles, is engaged on precisely such non-permanent terms. It confirms that the equal pay guarantee tracks the substance of the work performed, not the formal category of employment.
Read together, these three judgments establish a coherent test: courts examine whether the duties, skill, effort, and responsibility of two roles are substantially the same; if they are, any differential in pay must be justified by a rational classification unconnected to sex or employment status, failing which the disparity is unconstitutional and, where the Equal Remuneration Act or Code on Wages applies, also statutorily unlawful. It is also worth noting the different postures in which these cases arrived at the Supreme Court. Randhir Singh and Jagjit Singh were both writ petitions against government employers, invoking Articles 14, 16, and 32 directly, since the State qualifies as a constitutional duty-holder under Article 12. Mackinnon Mackenzie, by contrast, involved a private company, and could reach the Court only through the statutory appellate route under the Equal Remuneration Act, with Article 39(d) invoked merely as an interpretive aid to understand the purpose behind the legislation. This distinction is not a technicality; it determines which remedy, constitutional or statutory, is realistically available to a worker depending on whether their employer is a State entity or a private one, a theme explored further in the critical analysis below.
Critical Analysis and Evaluation
Despite this robust doctrinal architecture, the gap between the legal guarantee and its practical realisation remains wide. Several structural problems explain why.
First, the burden of proof rests almost entirely on the aggrieved employee, who must demonstrate that their work is substantially equivalent to that of a better-paid comparator. This is a heavy evidentiary burden for an individual worker to discharge without access to internal salary structures, job descriptions, or comparator data that employers rarely disclose voluntarily. India has no statutory pay-transparency or mandatory pay-audit requirement comparable to regimes in Iceland, Sweden, or the United Kingdom’s gender pay gap reporting rules, which require larger employers to publish aggregate pay-gap data. Without such transparency, wage discrimination frequently survives simply because it is invisible to the person affected by it.
Second, employers can and do camouflage identical work under different job titles, a practice sometimes called wage masking. Mackinnon Mackenzie shows that courts will look past titles to the substance of the work, but that judicial correction happens only after years of litigation. A worker without the resources or awareness to litigate has no practical remedy.
Third, and most significantly, the entire equal-pay framework is calibrated for the organised, formal sector, where employment relationships are documented and enforcement machinery under the Code on Wages can realistically operate. India’s workforce, however, is overwhelmingly informal. Domestic workers, agricultural labourers, gig and platform workers, and workers in unregistered micro-enterprises fall largely outside the practical reach of these protections, even though the statutory language of the Code on Wages does not formally exclude them. For this vast segment of the workforce, the constitutional promise of Article 39(d) remains aspirational rather than actionable.
Fourth, enforcement infrastructure is thin. Inspections under the Code on Wages depend on limited numbers of labour inspectors, and the shift toward self-certification and reduced inspection frequency, intended to ease compliance burdens on business, has correspondingly reduced proactive detection of pay discrimination. Complaint-driven enforcement, where the worker must come forward, deters those who fear retaliation or job loss, particularly in a labour market with limited job security for non-permanent staff, a group that Jagjit Singh sought to protect but that remains structurally vulnerable regardless of the judgment’s existence.
Fifth, the two-track structure described earlier creates its own inequity. Public sector employees can invoke the full weight of constitutional writ jurisdiction under Article 32 or Article 226, a comparatively swift and powerful remedy, whereas private sector employees must rely on the complaint and adjudication mechanism under the Code on Wages, which is slower, more procedurally demanding, and dependent on inspecting officers who are frequently overstretched. A private sector employee facing wage discrimination therefore has, in practice, a weaker and slower remedy than a government employee facing an identical wrong, even though the underlying principle is meant to apply to both alike.
Sixth, the gender pay gap in India persists well beyond what identical-role comparisons alone would predict, because much of the disparity arises before the point of hiring, through occupational segregation, unequal access to promotion, and undervaluation of roles predominantly held by women. Equal pay for equal work addresses direct discrimination within a comparable role; it does not, by itself, address the broader problem of equal pay for work of comparable value across differently structured but equally demanding roles, a more expansive principle recognised in ILO Convention No. 100 that Indian law has not fully operationalised through job-evaluation mechanisms.
A brief look beyond India’s borders is instructive. Iceland became the first country to make equal-pay certification mandatory, requiring larger employers to prove through an independent audit that their pay structures do not discriminate by gender, with penalties for non-compliance. The United Kingdom requires large employers to publish annual gender pay-gap statistics, which, while not itself a penalty-based mechanism, has generated significant public and shareholder pressure on employers to close visible gaps. Such regimes work precisely because they shift the burden of proof and visibility away from the individual worker and onto the employer, who is best placed to know, and best resourced to fix, whatever disparity exists in the payroll. India’s framework, by contrast, still expects the least powerful party in the employment relationship to detect, evidence, and litigate wage discrimination largely unaided.
On the reform side, several measures merit consideration. Mandatory pay-transparency and periodic gender pay-gap disclosure for establishments above a defined size would shift the burden of visibility away from individual employees. Strengthening the labour inspectorate and empowering it to conduct proactive, rather than purely complaint-driven, wage audits would improve detection. Extending effective coverage and simplified grievance redress mechanisms to informal and gig-economy workers, an area the Code on Social Security, 2020 has only begun to address, would meaningfully expand the reach of wage-equality protections. Finally, judicial and administrative bodies could move toward recognising the broader ILO standard of equal pay for work of equal value, which would allow comparisons across differently titled but comparably demanding roles, rather than confining relief to near-identical job descriptions.
Conclusion
The journey of equal pay for equal work in India illustrates how a principle placed deliberately outside the enforceable core of the Constitution can nonetheless acquire real force through sustained judicial interpretation. Randhir Singh established that the principle is not an abstract slogan but a substantive constitutional goal enforceable through Articles 14 and 16. Mackinnon Mackenzie confirmed that this guarantee has teeth against gender-based wage discrimination even when dressed up in job titles or prior settlements. Jagjit Singh extended its protective reach to the growing population of temporary and contractual workers whose labour is functionally indistinguishable from that of regular employees.
Yet a right that exists on paper but cannot be practically claimed by the worker most in need of it remains incomplete. The next phase in the evolution of India’s wage-equality jurisprudence must move beyond recognising the right in individual disputes toward building the transparency, inspection capacity, and informal-sector coverage that would allow ordinary workers, not just those with the resources to reach the Supreme Court, to actually receive equal pay for equal work.
The Code on Wages, 2019 gave India an opportunity to modernise this framework for a workforce that looks very different from the one that existed when the Equal Remuneration Act was drafted in 1976, one that now includes millions of gig and platform workers whose employment status is itself contested. Whether that opportunity is realised will depend less on further litigation than on political will to mandate pay transparency, resource labour inspectorates adequately, and extend meaningful coverage to workers outside the organised sector. Until that infrastructure exists, Article 39(d) will continue to describe a destination the law has named but not yet fully built the road to.
References:
The Constitution of India, 1950, arts. 14, 16, 32, 37, 39(d).
The Equal Remuneration Act, 1976 (Act No. 25 of 1976).
The Code on Wages, 2019 (Act No. 29 of 2019), ch. III.
Randhir Singh v. Union of India, (1982) 1 SCC 618.
Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa, (1987) 2 SCC 469.
State of Punjab v. Jagjit Singh, 2016 SCC OnLine SC 1200.
International Labour Organisation, Equal Remuneration Convention, 1951 (No. 100).
International Labour Organisation, Discrimination (Employment and Occupation) Convention, 1958 (No
. 111).
