CHANAKYA NATIONAL LAW UNIVERSITY,PATNA

2012-2017

SEMINAR PAPER ON LAW RELATING TO WOMEN AND CHILD

PROTECTION AND EMPOWERMENT OF WOMEN THROUGH

EQUAL REMUNERATION ACT

SUBMITTED TO : SUBMITTED BY:

MR. VIJAYANT SINHA SUJEET PRAKASH

TEACHER ASSOCIATE OF LAW 5TH YEAR

ROLL NUM: 822

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 ACKNOWLEDGEMENT

I express my deepest sense of gratitude to my reverend guides VIJAYANT SIR for his
countenance advice, adherent interest and pain taking nature. He spent no pains in correcting
and expertly evaluating my project work.

It is pleasant opportunity to pay my regards and sincere thanks to Sir for his
valuable support, guidance and immediate help whenever I approached him.

Finally, I wish to thanks my parents and colleagues for their pleasant cooperation,
support and encouragement.

SUJEET PRAKASH

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 RESEARCH METHODOLOGY

RESEARCH METHOD

The researcher has adopted a doctrinal method of research. The researcher has made
extensive use of library at the Chanakya National Law University and also the internet
sources.

AIMS AND OBJECTIVES

The aims and objectives of this project is to recognize women empowerment as a central
issue in determining the status of women by eliminating discrimination and challenging
gender inequality and to deal with the protection and empowerment of women through
special laws and also to get acquaintance with the initiatives taken by the government from
time to time for the development of women.The main aim of the paper is to show that the
discrimination on the basis of sex or gender must be abolished and to treat both men and
women equal.

HYPOTHESIS

Women are legal citizens of the country and have equal rights with men. India is a society
where the male is greatly revered and just because of lack of acceptance from the male
dominant society, Indian women suffer immensely. Most Indian women are uneducated and
thus unaware of their rights. Women are powerless and are mistreated inside and outside the
home. Effective steps have been taken to improve their status and to provide them protection
like Equal Remuneration Act aims to provide equal remuneration to women with that of men
and thus to treat them equally with the men .

SOURCE OF DATA

The two secondary sources of data have been used in this project: BOOKS and WEBSITES.

METHOD OF WRITING

The method of writing used in this research work is primarily analytical.

MODE OF CITATION:

The researcher has followed a uniform mode of citation throughout the course of this research
paper.

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 CONTENTS

SL.NO. TOPIC PAGE NO.

1. INTRODUCTION 5
2. GENDER JUSTICE 10
AND
CONSTITUTIONAL
PROVISIONS

3. RIGHT TO EQUALITY 14
AND EQUAL
REMUNERATION
ACT

4. INTERNATIONAL 22
MEASURES FOR
GENDER JUSTICE
5. CONCLUSION 30
6. BIBLIOGRAPHY 31

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 CHAPTER – 1

INTRODUCTION

In today's globalized era, women form an integral part of the Indian workforce. In such an
environment, the quality of women’s employment is very important and depends upon
several factors. The foremost being equals access to education and other opportunities for
skill development. This requires empowerment of women as well as creation of awareness
among them about their legal rights and duties.

Women empowerment is the process of treating the women with same status with that of men
in all the fields of the society. We have restricted our perceptions to only upliftment of
women- from the value of an object to the value of a living being. But what is required in the
present period is something beyond it. It is the creation of an environment where women can
make independent decisions on their personal development as well as shine as equals in
society. Women want to be treated as equals so much so that if a woman rises to the top of
her field it should be a commonplace occurrence that draws nothing more than a raised
eyebrow at the gender. This can only happen if there is a channelized route for the
empowerment of women.

It is evident from all available accounts that in early Vedic society, women occupied the same
position as men. Reference to complete gender equality is found in all parts of Vedic
literature. Women reached a very high standard of learning and culture, and made all round
progress

The principle of gender equality is enshrined in the Indian Constitution in its Preamble,
Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution not only
grants equality to women, but also empowers the State to adopt measures of positive
discrimination in favour of women. Within the framework of a democratic polity, our laws,
development policies, Plans and programmes have aimed at women’s advancement in
different spheres. India has also ratified various international conventions and human rights
instruments committing to secure equal rights of women.

In India the most of the laws were not effective as they were ahead of public opinion and
willingness of the people to change the society and give the women the status of equality in
society too lacked, so in order to give women their respective position in the society strong

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public opinion should be created trough education, seminars and by taking the help of various
other instruments of the society such as media etc, so that the people of the society should get
educated about and change their centuries old thinking and willingly implement the laws
enacted for the emancipation for women.

To improve the status of the women in the society the need of the hour is that laws should be
enacted but they should be backed by strong public willingness and public opinion because so
long as conservative social thinking remain deep rooted in the society laws will not be able to
achieve their ends. It must be asserted that social reforms is in social thinking, behaviour and
law would be effective only if they are backed by major section of the society.
As it rightly said, by Wendell Phillips: Law is nothing unless close behind it stands a warm
living public opinion.

It is a harsh reality that women have been ill-treated in every society for ages an India is no
exception. The irony lies in fact that in our country where women are worshipped as shakti,
the atrocities are committed against her in all sections of life. She is being looked down as
commodity or as a slave, she is not robbed of her dignity and pride outside her house but she
also faces ill-treatment and other atrocities within the four walls of her house. They are
considered as an object of male sexual enjoyment and reproduction of children. They are real
dalits (downtrodden) of the society. They are discriminated at two levels, firstly they suffer
because of their gender and secondly due to grinding poverty.

Women are deprived of economic resources and are dependent on men for their living.
Women works are often confined to domestic sphere, she had to do all house hold works,
which are not recognized and unpaid. In modern times many women are coming out to work
but has to shoulder the double responsibility; one she has to work where she is employed and
secondly she also has to do all the house hold works, moreover, she is last to be considered
and first to be fired as she is considered to be less productive than her counterpart. Her
general status in the family and in the society has been low and unrecognized.
From the cradle to grave, females are under the clutches of numerous evils acts as
discriminations, oppressions, violence, within the family, at the work places and in the
society.

In our society girls are socialized from their tender age to be dependent on males. Her
existence is always subject to men. In her childhood she is under the protection of her father,

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after marriage under the protection of her husband and in old age at the mercy of her sons.
The patriarchal system in India made women to live at the mercy of men, who exercise
unlimited power over them. In order to ameliorate the condition of women in India
Legislature enacted the large volume of enactments and many of these legislations were
enacted in colonial period. 

Which are as follows: 

(1) 1829, Abolition of Sati; 
(2) 1856 Widow Remarriage made legal; 
(3) 1870 Female infanticide banned; 
(4) 1872 inter caste, intercommunity marriages made legal;
(5) 1891 age of consent raised to 12 years for girls; 
(6) 1921 women get rights to vote in Madras province: 
(7) 1929 Child Marriage Restraint Act was passed; 
(8) 1937 women get special rights to property; 
(9) 1954 Special Marriage Act was passed; 
(10) 1955 Hindu Marriage Act was passed;
(11) 1956 Suppression of Immoral Traffic in Women and Girls Act was passed; 
(12) !961 Dowry Prohibition Act was passed; 
(13) 1981 Criminal Law Amendment Act was Passed; 
(14) 1986 The Indecent Representation of Women (Prohibition) Act was Passed; 
(15) 1987 Commission of Sati (Prevention) Act was passed.

Apart from these above mentioned laws there are some enactments pertaining to industry
which contain special provisions for women such as: The Workmen Compensation Act,
1921; Payment of Wages Act, 1936; Factories Act, 1948; Maternity Benefit Act, 1961;
Minimum Wages Act, !948: Employees State Insurance Act 1948 and Pensions Act ,1987.In
addition to this, the Constitution of India which is regarded as the supreme law of the land too
gives special protection to women.

The root cause of all the evils practices faced by the women are:
(1) illiteracy, (2) economic dependence, (3) caste restrictions, (4) religious prohibition, (5)
lack of leadership qualities and (6) apathetic and callous attitude of males in the society.

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The principle of gender equality is enshrined in the Indian Constitution in its Preamble,
Fundamental Rights, Fundamental Duties and Directive Principles . The Constitution not
only grants equality to women, but also empowers the State to adopt measures of positive
discrimination in favour of women.Within the framework of a democratic polity, our laws,
development policies, Plans and programmes have aimed at women's advancement in
different spheres. From the Fifth Five Year Plan (1974-78) onwards has been a marked shift
in the approach to women's issues from welfare to development. In recent years, the
empowerment of women has been recognized as the central issue in determining the status of
women.

The National Commission for Women was set up by an Act of Parliament in 1990 to
safeguard the rights and legal entitlements of women. The 73 rd and 74 th Amendments
(1993) to the Constitution of India have provided for reservation of seats in the local bodies
of Panchayats and Municipalities for women, laying a strong foundation for their
participation in decision making at the local levels.

1. India has also ratified various international conventions and human rights instruments
committing to secure equal rights of women. Key among them is the ratification of the
Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in
1993.

2. The Mexico Plan of Action (1975), the Nairobi Forward Looking Strategies (1985), the
Beijing Declaration as well as the Platform for Action (1995) and the Outcome Document
adopted by the UNGA Session on Gender Equality and Development & Peace for the 21 st
century, titled "Further actions and initiatives to implement the Beijing Declaration and the
Platform for Action " have been unreservedly endorsed by India for appropriate follow up.

3. The Policy also takes note of the commitments of the Ninth Five Year Plan and the other
Sectoral Policies relating to empowerment of Women.

4. The women's movement and a wide-spread network of non-Government Organisations

which have strong grass-roots presence and deep insight into women's concerns have
contributed in inspiring initiatives for the empowerment of women.

5. However, there still exists a wide gap between the goals enunciated in the Constitution,
legislation, policies, plans, programmes, and related mechanisms on the one hand and the
situational reality of the status of women in India, on the other. This has been analyzed

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extensively in the Report of the Committee on the Status of Women in India, "Towards
Equality", 1974 and highlighted in the National Perspective Plan for Women, 1988-2000, the
Shramshakti Report, 1988 and the Platform for Action, Five Years After- An assessment"

6. Gender disparity manifests itself in various forms, the most obvious being the trend of
continuously declining female ratio in the population in the last few decades. Social
stereotyping and violence at the domestic and societal levels are some of the other
manifestations. Discrimination against girl children, adolescent girls and women persists in
parts of the country.

7. The underlying causes of gender inequality are related to social and economic structure,
which is based on informal and formal norms, and practices.

8. Consequently, the access of women particularly those belonging to weaker sections

including Scheduled Castes/Scheduled Tribes/ Other backward Classes and minorities,
majority of whom are in the rural areas and in the informal, unorganized sector – to
education, health and productive resources, among others, is inadequate. Therefore, they
remain largely marginalized, poor and socially excluded.

http://mahilakalyan.up.nic.in/child/NATIONAL%20POLICY%20FOR%20THE
%20EMPOWERMENT%20OF%20WOMEN.pdf

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 CHAPTER - 2

GENDER JUSTICE AND CONSTITUTIONAL PROVISIONS

The elimination of gender based discriminations is one of the fundamentals of the

constitutional edifice of India. The Constitution of India not only grants equality to women
but also empowers the State to adopt measures of positive discrimination in favour of women
for neutralizing the cumulative socio economic, education and political disadvantages faced
by them. Fundamental Rights, among others, ensure equality before the law and equal
protection of law; prohibits discrimination against any citizen on grounds of religion, race,
caste, sex or place of birth, and guarantee equality of opportunity to all citizens in matters
relating to employment. Articles 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the
Constitution are of specific importance in this regard.

Article 14 expresses that the State shall not deny to any person the equality before the law
and equal protection of laws with in the territory of India

It guarantee the right to equality to every citizen of India . It embodies the general principles
of equality before law and prohibits unreasonable discrimination between persons. Article 14
embodies the idea of equality expressed in preamble.

EQUALITY BEFORE LAW

Its origin is from America. And somehow its negative concept. It aims at implying the
absence of any special privilege by reason of birth, sex, religion etc in favor of individuals
and the equal subject of all the classes to the ordinary law.

The phrase “equality before law” find a place in almost in written constitution that guarantees
fundamental right both these expression .both this expression aim at establishing what is
called “equality of status” While both the expression are kind of identical but they don’t give
similar meaning.

EQUAL PROTECTION OF LAW

Its origin is from British. And some how it is a positive concept. it aims at equality of
treatment in equal circumstances. It means whether someone is P.M. or President he should
be deal with same law as normal being deals with

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D.S. Nakara v. Union Of India

The Government issued an office memorandum announcing a liberalized pension scheme for
retired government servants but made it applicable to those who had retired after 31 March
1979. The supreme court held that the fixing of the cut off date to be discriminatory as
violating Article 14. The devision of pensioners into two classes on the basis of the date of
retirement was not based on any rational principle because a difference of two days in the
matter of retiremnt could hav a traumatic effect on the pensioner. Such a classification held to
be arbitrary and unprincipled as there was no acceptable or persuasive reason in its favour.
The said classification had no rational nexus with the object sought to achieved.

Article 15(1) prohibits the State to discriminate against any citizen on the grounds only of
religion, race, caste, sex, place of birth pr any of them. Clause (1) specifies the prohibited
grounds in any matter in which the State has exclusive control.

Read more: http://www.lawnotes.in/Article_15_of_Constitution_of_India#ixzz497IRmq9K

Article 15(3) permits the State to make special provisions for women and children. Clause
(3) enables the government to make special provisions for the protection of women and
children.

Article 16 provides that there shall be equality of opportunity for all citizens and they shall
not be discriminated on the basis of religion, race, caste and sex.

Right to Equality is one of the basic fundamental rights that the constitution of India
guarantees to all the citizens of the country. Article 16 deals with the equality of opportunity
in matters of public employment. Equal opportunity is a term which has differing definitions
and there is no consensus as to the precise meaning. The constitution of India has given a
wide interpretation to this article. Equal Employment Opportunity (EEO) principles apply to:

 Access to jobs
 Conditions of employment
 Relationships in the workplace
 The evaluation of performance and

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  The opportunity for training and career development.

What Article 16 guarantees is equality of opportunity in matters of appointment in State

services. Equality of opportunity connotes that every citizen shall be eligible for employment
or appointment to any office under the State according to his qualifications and capability,as
held in by the Supreme Court in State of J. & K. v. K.V.N.T. Kholo, AIR 1974 S.C. Article
16 therefore does not prevent the State from prescribing the necessary qualifications and
selective tests for recruitment of government services.

Article 39(a) of the Constitution provides that the state in particular direct its policy towards
securing that citizen, men and women equally, have the right to an adequate means of
livelihood.

Article 39(e) of the Constitution provides that the health and strength of workers, men and
women, and the tender age of children are not abused and that citizens are not forced by
economic necessity to enter avocations unsuited to their age or strength.

Article 51(A)(e) of the Constitution provides that it will be the duty of every citizen to
renounce practices derogatory to the dignity of women.

Policy Prescriptions

Judicial Legal Systems

Legal-judicial system will be made more responsive and gender sensitive to women’s needs,
especially in cases of domestic violence and personal assault. New laws will be enacted and
existing laws reviewed to ensure that justice is quick and the punishment meted out to the
culprits is commensurate with the severity of the offence.

1. At the initiative of and with the full participation of all stakeholders including community
and religious leaders, the Policy would aim to encourage changes in personal laws such as
those related to marriage, divorce, maintenance and guardianship so as to eliminate
discrimination against women.

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2. The evolution of property rights in a patriarchal system has contributed to the subordinate
status of women. The Policy would aim to encourage changes in laws relating to ownership
of property and inheritance by evolving consensus in order to make them gender just.

Decision Making

1. Women’s equality in power sharing and active participation in decision making, including
decision making in political process at all levels will be ensured for the achievement of the
goals of empowerment. All measures will be taken to guarantee women equal access to and
full participation in decision making bodies at every level, including the legislative,
executive, judicial, corporate, statutory bodies, as also the advisory Commissions,
Committees, Boards, Trusts etc. Affirmative action such as reservations/quotas, including in
higher legislative bodies, will be considered whenever necessary on a time bound basis.
Women–friendly personnel policies will also be drawn up to encourage women to participate
effectively in the developmental process.

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 CHAPTER - 3

RIGHT TO EQUALITY AND THE EQUAL REMUNERATION ACT

Right to equality means that every person, who lives within territory of India, has the equal
right before the law. the meaning of this all are equal in same line. No discrimination based
on religion ,race, caste, sex,and place of birth. its mean that all will be treated as equality
among equal and there will be no discrimination based on lower or higher class.

Article 14 Of Constitution Of India:

The state not deny to any person equality before the law or the equal protection of the laws
within The territory of India. protection prohibition of discrimination on grounds of religion,
race, Caste, sex, or place of birth.

Prof. Dicey, explaining the concept of legal equality as it operated in England, said: “with us
every official, from the prime minister down to a constable or a collector of taxes, is under
the same responsibility for every act done without any legal justification as any other
citizen.”

Art 14 states that “The state shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.” It is not only right of Indian citizens but
also right of non-citizens .It defines no one is above the law. All are equal in eye of law. No
discrimination based on religion ,race, caste, sex,and place of birth. It means that all will be
treated as equality among equal and there will be no discrimination based on lower or higher
class.

The two phrases—(a) equality before the law and (b) equal protection of the law do not
mean exactly the same thing. The former is negative in content implying absence of special
privilege in favour of any section of the people or any individual. Equality before the law
means that equality among equals the law should be equal for all. And should be equally
administered, that like should treated alike. Equal protection of the law is positive in content.
It implies equality of treatment in equal circumstances.

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The phase “ equality to the law “ find a place in all written constitutions that guarantees
fundamental rights. “All citizens irrespective of birth, religion, sex, or race are equal before
law ; that is to say, there Shall not be any arbitrary discrimination between one citizen or
class of citizens and another.” “All citizens shall, as human persons he held equal before
law.” “All inhabitants of the republic are assured equality before the laws.”

Pantanjali Sastri, c.j., has expressed that the second expression is corollary of the first and it
is difficult to imaging a situation in which the violation of laws will not be the violation of
equality before laws thus, in substance the two expression mean one and same thing.

According to Dr. Jennings said that: “Equality before the law means that equality among
equals the law should be equal for all. And should be equally administered, that like should
treated alike. The right to sue and be sued, to prosecute and prosecuted for the same kind of
action should be same for all citizens of full age and understanding without distinctions of
race, religion, wealth, social status or political influence.”

Equal Protection Of Law

“Equal protection of law” has been given in article 14 of our Indian constitution which has
been taken from section 1 of the 14th amendment act of the constitution of the united state.

Meaning of equal protection of law: here, it means that each person within the territory of
India will get equal Protection of laws.

In Stephen’s college v. university of Delhiunder The court held that the expression “Equal
protection of the laws is now being read as a positive Obligation on the state to ensure equal
protection of laws by bringing in necessary social and economic changes so that everyone
may enjoy equal protection of the laws and nobody is denied such protection. If the state
leaves the existing inequalities untouched laws d by its laws, it fails in its duty of providing
equal protection of its laws to all persons. State will provide equal protection to all the people
of India who are citizen of India and as well as non citizen of India.

Exceptions To Rule Of Law

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In the case of Indra Sawhney the right to equality is also recognized as one of basic features
of Indian constitution. Article 14 applies to all person and is not limited to citizens. A
corporation, which is a juristic person, is also entailed to the benefit of this article. This
concept implied equality for equals and aims at striking down hostile discrimination or
oppression of inequality. In the case of Ramesh Prasad v. State of Bihar, AIR 1978 SC 327 It
is to be noted that aim of both the concept, ‘ Equality before law’ and ‘ Equal protection of
the law’ is the equal Justice.

Underlying priniciple:-
The Principle of equality is not the uniformity of treatment to all in all respects. it only means
that all persons similarly circumstanced shall be treated alike both in the privileges conferred
and liabilities imposed by the laws. Equal law should be applied to all in the same situation,
and there should be no discrimination between one person and another.

Rule Of Law

The rule of law embodied in Article 14 is the “ Basic feature” of the Indian constitution.
Hence it cannot be destroyed even by an amendment of the constitution under article 368 of
the constitution.

Meaning of rule of Law

The Rule of law has been given by prof. Dicey the expression the guarantee of equality
before the law. It means that no man is above the law, all are equal in eye of law. The concept
of rule of law come from magnacarta.its means that law is equal for all in same line. Because
state have no religion all are equal in same line. And uniformity will be applied for all. Every
organ of the state under the constitution of India is regulated and controlled by the rule of
law.Absence of arbitrary power has been held to be the first essential of rule of law. The rule
of law requires that the discretion conferred upon executive authorities must be contained
within clearly define limits. The rule of law permeates the entire fabrics of the constitution of
India and it forms one of its basic features.

Article 361 of Indian constitution Law 

The President, or the governor or rajpramukh of a state, shall not be answerable to any court
for the exercise and performance of the powers and duties of his office or for any act done or
purporting to be done by him In the exercise and performance of those power and duties.

16
Provided that the conduct of the president may be brought under review

(2) No criminal proceedings whatsoever shall be instituted or continued against the President,
or the Governor of a State, in any court during his term of office.

(3) No process for the arrest or imprisonment of the President, or the Governor of a State,
shall issue from any court during his term of office.

(4) No civil proceedings in which relief is claimed against the President, or the Governor of a
State, shall be instituted during his term of office in any court in respect of any act done or
purporting to be done by him in his personal capacity, whether before or after he entered
upon his office as President, or as Governor of such State, until the expiration of two months
next after notice in writing has been delivered to the President or the Governor, as the case
may be, or left at his office stating the nature of the proceedings, the cause of action therefor,
the name, description and place of residence of the party by whom such proceedings are to be
instituted and the relief which he claims.

In Srinivas Theatre v. state of T.N., Reddy, J., has noted that equality before law is a
dynamic concept having many facets. one of them there is that there shall be no privileged
person of class and name shall be above state law. A fact there of is the obligation upon the
state to bring about, through the machinery of law, a more equal society envisaged by the
preamble and part ivth ( directive principles of state policy ) of the Indian constitution.

EQUAL REMUNERATION ACT

An Act to provide for the payment of equal remuneration to men and women workers and for
the prevention of discrimination, on the ground of sex, against women in the matter of
employment and for matters, connected there with or incidental thereto. The main provisions
of the Act are:-

 The term 'remuneration' means "the basic wage or salary and any additional
emoluments whatsoever payable, either in cash or in kind, to a person employed in
respect of employment or work done in such employment, if the terms of the contract
of employment, express or implied, were fulfilled".

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  Payment of equal remuneration at same rates applicable to both men and women
without any discrimination.

 No discrimination against women while making recruitment except 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 State Government must consider the following issues:

a) Steps are required to ensure effective enforcement of the provisions of the Equal
Remuneration Act, 1976.

b) Submission of quarterly Progress Report on implementation of the Act regularly and on

time.

The Act applies to various classes of establishments where a large number of daily rated for
piece rated workers including women are employed. If any distinction is made between a so-
called regular employee and other workers, the very object of the Act will be defeated.
Hence, the Act makes no distinction in the nature of employment or the period of
employment and applies to all workers even if engaged only for a day or few days. Such
equality is not acceptable by the working class and what is ‘equal work’ is not so easy to
determine. This Act, in the opinion of the researcher is more a psychological justification of
the urgency rather than a practical step in the direction of ensuring equal pay for men and
women.

It is clear from the object of the Equal Remuneration Act that it is intended to provide
protection against the discrimination on the ground of sex in case of remuneration on the
same or similar work. The determination for the same or similar work requires caution. The
Authority appointed under this Act for determination of the nature of the particular work
should have to work with broad outlook. The nature of work is to be considered in general to
avoid the chances of defeat of the claim on trifle grounds. The observations of the Supreme
Court such as to have broad outlook, consideration of the work in general and avoiding of
defeatation on minor technicalities are appropriate to achieve the object of the Act.

http://shodhganga.inflibnet.ac.in/bitstream/10603/28562/13/13_conclusion.pdf

The Equal Remuneration Act is a gift of "the International Women's Year" to women
workers. It is enacted to give effect to the provision of Article 39 of the Constitution of India

18
which contains a directive principle of equal pay for equal work for both men an women. The
Act provides for the payment of equal remuneration to men and women workers for the same
work or work of a similar nature and for the prevention of discrimination on the ground of
sex against women in the matter of employment. The main provisions of the Act are as
follows. 

Equal pay for equal work: No employer shall pay to any worker employed by him
remuneration at rates less favourable than those at which remuneration is paid by him to the
workers of the opposite sex for performing the same work or work of similar nature. {Section
4(1)}

No discrimination to be made while recruiting men and women: No employer shall make
any discrimination against women while making recruitment for the same work or work of a
similar nature. {Section 5} .Under Section 5 women are prohibited or restricted by law to take
up certain employment or to take up the employment during particular hours of the day. It is
high time that the list of the category of the work, wherein women are prohibited or restricted
by law from taking the work is pruned down, unless the same is hazardous and threatens the
life and limp of the women. Today, the women are giving effective competition to men in
different sphere of activity and has proven themselves. It the restrictions are not removed or
significantly curtailed, then they are likely to be challenged on the ground of discrimination
and violation of Article 14 of the Constitution.

Section 15 deals with special benefits given to the women. It is necessary that the explanation
be incorporated in the Section, wherein it should be provided that the special treatment
should never be detrimental to the interest of the women.

Exceptions: The provisions of the Act shall be inapplicable when special treatment is given
to women under any law or when special treatment is accorded to women in connection with
the birth of a child. {Section 15}

Claims and Complaints:

Section 7 relates to the officer manning the adjudicatory body. It is the first pint of contact for
the aggrieved party. The Act provides for a Labour Officer to hear the complaint relating to

19
contravention of any provisions of the Act of non-payment of equal wages. Since the
complaints primarily emanates from Women section of the employees it is of utmost
important that the adjudicatory authority should provide assurance and should inspire
confidence of aggrieved party. For this reason, the Labour Officer who has been empowered
under this Section should be a women with background of Labour practices.

The power of filing complaint should not be confined only to the aggrieved party. It has to be
broad based on any information relating to contravention of the Act must be entertained.

For this reason, two changes are necessary under Section 7. Firstly, if any person including
voluntary organisation reports of any contravention of provisions of the Act, the same should
be treated as a complain and the adjudicatory authority should dispose of the same as per law.
Secondly, if the Labour Officer or whosoever, is the adjudicatory authority get some
information or knowledge about any practice by the employer which is in contravention of
the Act, then it should have power of registration of complaint upon its own knowledge and
information. These amendments are also necessary as the employees are likely to be reluctant
to lodge any complain against their present employer, least they face the wrath of employer.

a. Complaints with regard to the contravention of any provision of the Act and claims
arising out of non-payment of wages at equal rates to men an women workers for the
same work or work of similar nature shall be heard and decided by an authority
appointed by the appropriate Government. An appeal shall lie against any order of the
authority to an appellate authority appointed by the appropriate Government {Section
7}

b. Monies due from an employer arising of the decision of the authority or the appellate
authority can be recovered by making an application under Section 33-C(1) of the
Industrial Disputes Act, 1947. {Section 7(8)}

Penalties: If any employer (a) makes any recruitment in contravention of the provisions of

the Act, or (b) makes any payment of remuneration at unequal rates to men and women
workers, for the same work or work of a similar nature, or (c) makes any discrimination
between men and women workers in contravention of the provisions of the Act, he would be
punished with fine upto Rs. 10000.00 {Section 10}

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 http://ncw.nic.in/frmReportLaws23.aspx

Maintenance of Register: Every employer shall maintain in the prescribed form a register in
relation to the workers employed by him. {Section 8 & Rule 6}

What is meant by equality of work ?The equality of work is not based on the designation or
the nature of work alone. There are several other factors, which are equally relevant. They are
qualifications, responsibilities, reliabilities, experience, confidentiality, functional need and
requirements commensurate with the position in the hierarchy.

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 CHAPTER - 4

INTERNATIONAL MEASURES FOR GENDER JUSTICE

The Universal Declaration of Human Rights, 1948 ,The International Covenant on Civil and
Political Rights, 1966 , International Covenant on Economic, Social and Cultural Rights,
1966 lays stress on equality between men and women. The Convention on the Elimination of
All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General
Assembly, is often described as an international bill of rights for women. It defines what
constitutes discrimination against women and sets up an agenda for national action to end
such discrimination. It basically provides the basis for realizing equality between women and
men through ensuring women's equal access to, and equal opportunities in, political and
public life -- including the right to vote and to stand for election -- as well as education,
health and employment.Consisting of a preamble and 30 articles, it defines what constitutes
discrimination against women and sets up an agenda for national action to end such
discrimination.

Moreover, there is ample space for protection of doctrine of equal pay for equal work in all
the three important general convention on human rights. The Universal Declaration of
Human Right e.g. given protection to the rights of labours as well as the doctrine of equal pay

268 for equal work under Article 23 of the Universal Declaration of Human

Rights, which provides that the everyone has the right to work, free choice of employment, to
just and favourable conditions of work and protection against unemployment. In the same it
has been ensure that everyone without any discrimination has the right to equal pay for equal
work. Then there is Article 26 of the International Convention on Civil and Political Right
providing protection against all kinds of discrimination on the grounds of race, colour, sex,
language, religion, national or social origin, birth or other status.

The Convention defines discrimination against women as "...any distinction, exclusion or

restriction made on the basis of sex which has the effect or purpose of impairing or nullifying
the recognition, enjoyment or exercise by women, irrespective of their marital status, on a
basis of equality of men and women, of human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field."

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By accepting the Convention, States commit themselves to undertake a series of measures to
end discrimination against women in all forms, including:

 to incorporate the principle of equality of men and women in their legal system,
abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination
against women;

 to establish tribunals and other public institutions to ensure the effective protection of
women against discrimination; and

 to ensure elimination of all acts of discrimination against women by persons,

organizations or enterprises.

The Convention provides the basis for realizing equality between women and men through
ensuring women's equal access to, and equal opportunities in, political and public life --
including the right to vote and to stand for election -- as well as education, health and
employment. States parties agree to take all appropriate measures, including legislation and
temporary special measures, so that women can enjoy all their human rights and fundamental
freedoms.

The Convention is the only human rights treaty which affirms the reproductive rights of
women and targets culture and tradition as influential forces shaping gender roles and family
relations. It affirms women's rights to acquire, change or retain their nationality and the
nationality of their children. States parties also agree to take appropriate measures against all
forms of traffic in women and exploitation of women.

Countries that have ratified or acceded to the Convention are legally bound to put its
provisions into practice. They are also committed to submit national reports, at least every
four years, on measures they have taken to comply with their treaty obligations.

 http://www.un.org/womenwatch/daw/cedaw/

The Convention on the Elimination of all Forms of Discrimination against Women (the
CEDAW Convention) is a human rights treaty for women. The UN General Assembly
adopted the CEDAW Convention on 19th December 1979. It came into force as a treaty on
3rd September 1981; thirty days after the twentieth member nation became a States party to
it. The CEDAW Convention is monitored by the CEDAW Committee which operates out of
the UN in New York.

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CEDAW is one of the most highly ratified international human rights conventions, having the
support of 188 States parties. When governments become States parties to a convention, they
can enter reservations by identifying particular elements of a treaty they will not be bound to.
State parties may also make declarations, which have the same effect.

The Convention is being continually updated to include new insights and new issues that are
brought to the CEDAW Committee's attention, through the formulation of General
Recommendations by the committee. It does not automatically confer rights on women. Its
promise can only be delivered if we learn to use it effectively in practice to set goals, identify
needs, frame laws, policies and programmes and evaluate action.

The notion of State obligation has to be fully exploited. By ratifying the CEDAW
Convention, States are saying that they:

- Recognise discrimination and inequality.

- Recognise the need for State action.

- Commit themselves to do certain things and not do certain things.

- Are willing to be held accountable at national and international levels.

Together with the State, we have to develop criteria for State action and responsibility. We
have to learn to use the CEDAW Convention as an advocacy tool to interpret equality, call
for action and use it to define rights, interpret needs, identify obstacles and actions to be taken
by the State, establishing criteria for success and documenting impact of state action.

The substance of the Convention is based on three interrelated core principles: equality, non-
discrimination and State obligation.

PRINCIPLE OF EQUALITY

The concept of equality is traditionally understood to mean "the right to be equal to men".
This becomes problematic when it is extended to the understanding that women must be
treated exactly like men if they are to gain equality with men. It implies that women must be
treated according to male standards, obscuring the ways in which women are different from
men and how they will be disadvantaged because of these differences.

There are two ways of responding to gender differences in policy or approach:

24
- The protectionist approach which, while recognising differences, seeks to curtail or curb
women's activities or freedoms with the rationale that the aim is to "protect" women from
harm or wrongdoing. This approach does not challenge gender discrimination, but reproduce
it in the guise of protecting women.

- The corrective or substantive approach which recognises that in order to redistribute

benefits equally between women and men, measures to promote women's rights must
transform the unequal power relations between women and men in the process. There should
not only be equal opportunities for women but also equal access to those opportunities.

PRINCIPLE OF NON - DISCRIMINATION

The principle of non-discrimination is based on the understanding that discrimination is

socially constructed rather than “natural”. This recognises the need and paves the way for
concerted action against inequality and the institutional mechanisms which perpetuate it.

The definition of discrimination in Article 1 of CEDAW can be summarised as:

Any act of distinction, exclusion or distinction which has the intent/purpose or effect of
nullifying, impairing or denying the enjoyment of rights by women.

This definition helps us identify the weaknesses of formal or so-called neutral laws and
policies because they do not recognise that women continue to suffer from the effect of past
or historic discrimination. A law or policy may not have the intention of denying a woman
the enjoyment of rights but if it has the effect of doing so then it constitutes discrimination.
Despite legal rights being granted to women in many countries, discrimination persists, and
women's access to legal rights are curtailed by denial of women's rights to economic and
social development. Therefore CEDAW bridges the traditional divisions between civil and
political and socio-economic rights, mandating both legal and development policy measures
to guarantee the rights of women.

PRINCIPLE OF STATE OBLIGATION

When a country becomes a State party to CEDAW, it voluntarily accepts a range of legally
binding obligations to eliminate discrimination against women and bring about equality
between women and men.

A State party to CEDAW essentially enters into a contract with all other States parties that:

25
- It will abide by norms and standards collectively agreed upon by the States parties

- It is offering itself to a scrutiny by an international expert committee on the basis of these

norms and standards.

Every State party is obliged to present an initial report to the United Nations one year after
accession on the obstacles to the equality status of women and the actions it intends to take to
remove such obstacles. Thereafter, the States party is required to submit a periodic report on
the progress made every four years. Under the CEDAW treaty, the State has responsibilities
to women from which it cannot withdraw, and to which it will be held accountable at the
national and international levels.

Some basic principles of State obligation are:

- An obligation of means through the law, or the formal guarantee of the provision of rights.

- An obligation of results, or ensuring the practical realisation of rights.

http://www.iwraw-ap.org/cedaw/what-is-cedaw/cedaw-principles/

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 CONCLUSION

It is said that the law without the public opinion is nothing but a bundle of papers. The gap
between the men and women cannot be bridged by just enacting laws without any public
support and opinion as social engineering laws are different from penal laws which are just
related to injuries and punishment and are deterrent in nature but social engineering laws
enacted to uplift the norms of the society and are progressive in nature and therefore it should
be backed by the will of the people for whom it is enacted. It is also be clear that centuries
old practice can not be eliminated in one or two days it take much time. And when laws are
enacted to bring radical change in society and are not backed by the will of the people or laws
are ahead of public opinion then it has to face great resistance and opposition from the
conservative thinking of the society and they are like dead law, which have no effect on
society.

In India the most of the laws were not effective as they were ahead of public opinion and
willingness of the people to change the society and give the women the status of equality in
society too lacked, so in order to give women their respective position in the society strong
public opinion should be created trough education, seminars and by taking the help of various
other instruments of the society such as media etc, so that the people of the society should get
educated about and change their centuries old thinking and willingly implement the laws
enacted for the emancipation for women.

To improve the status of the women in the society the need of the hour is that laws should be
enacted but they should be backed by strong public willingness and public opinion because so
long as conservative social thinking remain deep rooted in the society laws will not be able to
achieve their ends. It must be asserted that social reforms is in social thinking, behaviour and
law would be effective only if they are backed by major section of the society.

What article 14 forbids is discrimination by law that is treating persons similarly

circumstanced differently and treating those not similarly circumstanced in the same way or
as has been pithily put treating equals as unequals and unequals as equals. Article 14
prohibits hostile classification by law and is directed against discriminatory class legislation.

A legislature for the purpose of dealing with the complex problem that arise out of an infinite
variety of human relations cannot but proceed on some sort of selection or classification of
persons upon whom the legislation is to operate. Article 14 contains a guarantee of equality

27
before law to all persons and protection to them against discrimination by law. It forbids class
legislation.

Its is well settled that Article 14 forbid classification for the purpose of legislation. Its is
equally well settled that in order to meet the test of Article 14

(i) classification must be based on intelligible differentia which distinguishes persons or

things that are grouped together from those that are left out of group and (ii) the differentia
must have a rational nexus to the objects sought to be achieved by the executive or legislative
action under challenge.

In spite of having so many enactments dealing with women and judgments of the Supreme
Court protecting women the downtrodden and poor conditions of women has not been
improved and she still faces all types of atrocities and legislature and judiciary some what
fails to provide respect to women in society.

After independence the founder father of the nation, wanted to reform the society and were
keen to establish an egalitarian society. To achieve this end they used law as an instrument to
check the gender discrimination, number of laws, were enacted to meet this end but due to
strong patriarchal mentality and unfavourable social environment they failed to accomplish
their goal. The social engineering through law was not fully achieved, while some rights
enshrined under the enactments were enjoyed and accepted by the society most of them
remained only in papers due to lack of public support. Many evils are still practiced on
women such as bigamy, child marriages are still in practice, dowry demands are still on rise,
and women are still harassed for dowry. Malnutrition and illiteracy are growing at alarming
rate, rape and molestation have become daily phenomenon, and moreover still we see women
as commodity as one of the songs of the movie depicts her as Tu cheez badi hai mast mast.

In our society girls are socialized from their tender age to be dependent on males. Her
existence is always subject to men. In her childhood she is under the protection of her father,
after marriage under the protection of her husband and in old age at the mercy of her sons.
The patriarchal system in India made women to live at the mercy of men, who exercise
unlimited power over them. In order to ameliorate the condition of women in India
Legislature enacted the large volume of enactments and many of these legislations were
enacted in colonial period.

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To abolish the wage disparity among male and female workers, the Equal Remuneration Act,
1976 should be made gradually more and more effective with large coverage over the time
not only in regard to redressal of complaints and claims but also in regard to recruitment.
Above all, there is an urgent need to regularly monitor the working of this Act in terms of
periodical reports and information in some prescribed manner. It is further concluded that the
employees being weaker in bargaining because of their weaker financial position can easily
be exploited by the employer. Any settlement arrived at or any agreement agreed upon cannot
be allowed to be detrimental to the weaker party.

The employer can use such tactics easily. Therefore, the settlement or agreement adversely
affecting the interest of employee has no legal effect for the purpose of this Act. The
intention of Legislature is clear not to give overriding effect to any agreement, settlement or
contract to the provisions of the Equal Remuneration Act.

It is the result of the movement for the upliftment of status of workers, which has given
reality to the concept of participative management. Now worker (both men and women)
which were once treated as mere commodities by entrepreneur can think of an actually do
perform a role in the management policy and decisions making, howsoever small it can be.
The history of doctrine of equal pay for equal work shows that the future of this doctrine is
not only bright but will be written with golden ink in times to come. There is however, need
to undertake research work on certain other aspect of the doctrine of equal pay for equal work
from the comparative angle in relation to different regions of the world so as to find as to how
for the concept has been put into practice.

In fact, there is not even a single piece of legislation in India guaranteeing a citizen equal pay
for equal work. No State Machinery is there to protect the worker’s right to get equal pay for
equal work, of course, there is the Equal Remuneration Act, 1976. But the Act is insufficient
and ineffective. Firstly it seeks to provide for payment if equal remuneration to male and
female workers, but it does not guarantee equal pay for equal work among men. Secondly if
provides for equal wages for man and women for same or similar work. Similar work is
defined as one on which the skill, effort and responsibility are the same.

While undertaking a comparative study of equal pay for equal work doctrine in India vis-à-
vis in U.K. it has been noticed that the Equal Pay Act, 1970 in U.K. as well as Equal
Remuneration Act, 1976 in India is something more than the traditional doctrine of master

29
servant relationship. In fact, the legal analysis regarding the doctrine of equal pay for equal
work shows that ‘both in United Kingdom and India’ this doctrine applies where the work is
same on broadly similar in nature. Moreover, there is again compatibility in U.K. and India in
case where the women work rated as equivalent to that of men in the same employment in the
course of job evaluation based on factor such as effort, skill and decisions making
responsibility with the job entails. Again, analysis shows that there is third ground of
compatibility between the India and United Kingdom. Scenario in relation to equal pay for
equal work in cases where apart from any job evaluation the work done by women and men
are of equal value even if dissimilar in nature. It is therefore, clear that we have followed
almost all-important aspect of doctrine of equal pay for equal work as embodied in Equal Pay
Act of 1970 in United Kingdom.

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 BIBLIOGRAPHY

BOOKS:

1. Kumar H.L, Labour Problems & Remedies, 8th Edn.

2. Mishra, S.N, Labour and Industrial Laws 24th Edn
3. Malik P.L, Labour and Industrial Law 11th Edn.
4. G.B. Pai, Labour Law in India, Vol. 1
5. Dr. V.G. Goswami, Labour & Industrial Laws, 8th Ed., Central Law Agency
6. Dr. Avtar Singh & Dr. Harpreet Kaur, Introduction to Labour & Industrial
Law, 2nd Ed., 2008, Lexis-Nexis Butterworths Wadhwa Nagpur
7. Ludwig Teller, Labour Disputes and Collective Bargaining, Vol 1

WEBSITES:

1. http://www.un.org/womenwatch/daw/cedaw/
2. http://www.iwraw-ap.org/cedaw/what-is-cedaw/cedaw-principles/
3. http://www.helplinelaw.com/employment-criminal-and-labour/METB/
maternity-benefits-under-the-maternity-benefits-act-1961.html
4. http://ijme.in/index.php/ijme/article/view/2179/4663

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