Published on 2nd February 2025
Authored By: Rama Prasad Zaware
Marathwada Mitramandal's Shankarrao Chavan Law College, Pune
Introduction
Everyone has the right to work, and they can choose to do so in a safe atmosphere. As is rightly said that the right to work is a constitutional right and can be compared to the right to life. This employment must be profitable so that these rights can be met in a country where millions of people have no income sources other than their wages. The other cause of poverty is unemployment. Workplace discrimination is still a big challenge that India is facing in every sector whether it be public or private. This article tries to give an overview of legal provisions related to discrimination at workplace and certain compelling rights of employees under Indian legislations. To achieve this broad goal, it will be possible to increase general awareness of current safeguards, ways in which they are currently applied and potential difficulties.[1] (Agrawal, 2022)
What is meant by workplace discrimination?
As provided in ILO Convention No. 111, discrimination is defined as any qualifying, preventing or averting practice made on the basis of race, color, political opinion, religion, sex, origin, or nationality for the consequence of removing or restricting fair possibilities and treatment in work or business.[2] (C111 – discrimination (employment and occupation) Convention, 1958 (no. 111)).
A survey done on Indian employees revealed that 48% of the Indians have faced discrimination at their workplace. Out of the biases, most are related to the caste/religion of the candidates being 18%, followed closely by age at (22%) and gender at (25%). The prejudice rate was also higher for employees from Delhi, Pune, Chennai, and relatively lower for Ahmedabad employees. Yet, concerning discrimination, only 30% of the polled businesses said that they have a clear non-discrimination policy.
Some types of discrimination are unlawful in India including; discrimination in terms of wages, sexual harassment and discrimination arising from a woman being pregnant or from a person being a handicapped person. As for other types of discrimination at the workplace, the discrimination based on caste, religion or ethnic ground is not prohibited in the private sector. But as far as the public sector employees are concerned, besides receiving all the protection like other private sector employees they have also been protected from being discriminated on the basis of caste, creed, colour, sex, religion or place of birth.
Legal Framework:
The Indian Constitution contains several clauses that grants rights to the citizen; right to equality that safeguards against any discrimination of a person at place of work.
- Provision of Article 14 of the constitutional law provides for equality before the law.
- Article 15 of the Indian constitution say that the state shall not make any discrimination on the ground of religion, race, caste, sex or place of birth. Thus, the state reigns all the powers to recommend exemptions to the members of the downtrodden social layers in regard to the employment opportunities available for them.
- The Constitution also creates a number of essential duties that despite being nonjusticiable, should presumably be performed by the government.
- In part IV of the constitution, Article 39 requires the state recognize the people’s right to decent means of living, housing, food, and job, which should not be discriminatory to the gender of the inhabitants. [3](The Constitution Of India)
Major types of discrimination in the workplace prevalent in society:
- Employment discrimination based on disability –Discrimination at the workplace regarding individuals with disability is defined as the ability of an employer or any other organization depriving a qualified disabled person applicant or employee from equal opportunity of employment by virtue of the disability. This unfavourable behaviour can be observed in case of recruitment, remuneration promotion, etc India has agreed to protect, safeguard and enforce the rights as enumerated in the United Nations convention on the rights of persons with disabilities through ratification. India has enacted ‘The persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act 1995’ to safeguard the disabled persons of the country.[4] (Persons with disability act 1995.PDF)
- Discrimination in the remunerations paid to the employee – The salary he or she earns, the overtime rate paid, the bonuses and stock options given and even life insurance, and other additional proffered privileges may also be discriminative.
- Sex discrimination in the workplace – The treatment of an employee or a potential applicant as a member of the less favoured sex is referred to as sex discrimination. In employment, staff relations, promotion, staff benefits and responsibilities of work assignment by gender and sex, discrimination may occur.
- Pregnancy as the basis of unfair treatment at workplace – Whenever a pregnant employee is turned down a job or dismissed from an organization after she has informed her employer that she is pregnant, then the actions taken are discriminatory in nature.
- Prejudice, particularly of caste at the workplace – Caste discrimination is also a type of prejudice since it is experienced by approximately 18% of the employees in India. Protection of Right to Civil Rights Act 1955 defined in section 3 that, whoever mole, injures, annoys, boycotts, obstructs or insult any member of the SC then shall be punished with imprisonment of not less than one month but more than six month and fine of not less than hundred but more than five hundred rupees.[5] (The Protection of Civil Rights Act, 1955)
The Equal Remuneration Act, 1976:
The intent of this act is to afford provisions of a remunerative equality between males and females. ‘Wage or salary’ ‘basic’ and any other allowances or benefits whatsoever given, whether in cash or in kind.” It is administered through the Central Industrial Relations Machinery (CIRM) in the Ministry of Labour. The main objectives of this act are to provide increased employment opportunities for women and to provide protection from unfair dismissal. Employers cannot unfairly dismiss employees based on sex.
The act is applicable in entire India other than state of Jammu and Kashmir. Implementing authorities are the Central Government, and often they appoint Labour Enforcement Officers, Assistant Labour Commissioners and Regional Labour Commissioners. The Central Government also oversees the manner in which state governments exercise the implementation of the act. According to the act, “same work or work of a similar nature” means work that call for like skills, efforts, and responsibilities, and done under like working conditions. The act also acknowledges the understanding that it does not preempt any special treatment of women in the country. The penalty for breaching the act, the fines start from Rs. 10, 000.[6] (Equal remuneration act, 1976)
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,2013:
This act is commonly known as the PoSH Act was effective from December 9th, 2013. The Act requires every employer to constitute an Internal Complaints Committee. It should be made up of the employer company and its employees and a third party. Also, there is a provision that the proportion of the board of directors should contain not less than half of women. A woman has a right to take her complaint to the Committee which is under legal mandate to investigate the complaint within 90 days. The Act means specifies penalties for failure to observe all the provisions of this Act together with provisions and enforcement measures against nuisance or frivolous complaints. This act defines Sexual Harassment as to mean any unwelcome act of physical, verbal or non-verbal conduct of a sexual nature including but not limited to demanding /requesting sexual favours, making sexually charged remarks, displaying pornography etc.[7] (THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 2013)
It requires an employer to submit to the district officer an annual report on the audit of the number of complaints made and the measures taken for the year. An employer is obliged to conduct workshops and awareness programmes for the employees under the Act while also providing orientation and programmes to members of the ICC. If the employer fails to constitute an ICC or does not abide by any other provision they are liable to a pecuniary penalty of not more than fifty thousand rupees If the employee repeats the same conduct, he will be liable to a pecuniary penalty of not less than fifty thousand rupees.[8] (Sexual harassment of women at Workplace (Prevention, Prohibition & Redressal) act 2013 ) from Vajirao & Reddy Institute)
The Rights of Persons with Disabilities Act, 2016:
The purpose of the RPwD Act is to empower each and every person with the disability so as they have the same rights as any other person, without prejudice and discrimination. Such rights are protected by specific provisions prescribed under the Act. It includes the rights of the persons with disability under the United Nations Convention for rights of Persons with Disability (U.N.C.R.P.D.) and India is a signatory to the said convention. (The Rights of Persons with Disabilities Act, 2016 2022)
It is under Section 3(1) of the RPwD Act that appropriate government must provide right to equality, to life with dignity and integrity of the person with disabilities as well as with others.
Section 4 of the law further states that any government that is relevant in each state and local governments of each state shall take action to safeguard the rights of the women and children with disabilities to perform their rights as any other person in the society.
Section 19 of the RPwD Act states that it shall be the duty of the appropriate Government whether Central or state to formulate schemes and programmes/Programmes to be implemented for the Employment of disabled persons particularly, for vocation, the training the giving of loans at Concessional rates. Thus, several sections provided in the act protect disabled persons against discrimination in workplaces.[9]
The Transgender Persons (Protection of Rights) Bill, 2019:
The Bill prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to the amendments in section 366 bill include the rights to: To or for: (i) to receive education; (ii) to obtain and sustain employment; (iii) healthcare; (iv) also, to or to partly enjoy services enjoyed by a particular class of person; (v) movement; (vi) residing or occupying the premises; (vii) appointing to or holding public or private positions; and (viii) accessing a governmental or private building. [10] (The Transgender Persons (Protection of Rights) bill, 2019)
It is prohibited by the law for any government or private employer to treat a transgender person unequally in employment matters like employment and promotion. Every business is required to appoint an individual to be a complaint officer in respect of complaints relating to the Act. The body called National Council for Transgender persons (NCT) also advice the central government while it also assesses the outcome of policies, laws and projects implemented for/with transgender folks. It will also answer the questions that was posed by the transgender persons.[11] (National Council for Transgender Persons 2024)
The Industrial Disputes Act of 1947:
An “Industrial Dispute,” as under Section 2 (K) of the Industrial Dispute Act 1947 is “any dispute or difference between employers and employers, employers and workmen, or workmen and workmen.”[12] (The Industrial Disputes Act, 1947)
It is a legal provision designed under the Indian Labor Law to maintain Industrial Peace and Tradesmen Rights. The act covers a range of topics, including:
The act provides for the methods of solving the conflict, for example, boards or labour courts. It also makes provision for conciliation, arbitration and adjudication. The act also entails employers recognize trades unions in a manner that enables the workers to collectively demand their rights. It seek to addresses cases of unfair labour practices among employers and trade unions. The act prohibits layoffs and retrenchments and also demands that any affected workers be paid compensation. Layoffs and retrenchments also must seek government approval before they can be implemented. The act allows the workers strike right but at the same time set out the circumstances and the ways that should be followed before the workers may go on strike.[13] (Industrial Disputes Act, 1947 – Objectives & Features: UPSC)
Case Law:
Union of India vs. Dilip Paul (2023)
In the Judgement cited as Union of India vs. Dilip Paul delivered on 06/11/2023 the Supreme Court of India examined charges of sexual harassment against Mr. Dilip Paul the former Deputy Inspector General DIG of the service selection board SSB. A female field assistant tendered a complaint against Mr. Paul of Sexual harassment, which included touching, following her around and making unsolicited visits at her apartment in the night. He was convicted in an internal probe by the Central Complaints Committee; he had a disciplinary action where he lost 50% of pension perpetually. Mr. Paul contested this in Gauhati High Court that struck off the penalty stating that the proceedings accompanying the complaints were unlawful.[14] (Union Of India vs Dilip Paul 2023)
The Union of India challenged the decision in the supreme court, and again the original penalty was upheld by the court. The Court also stressed that the sexual harassment allegations should be looked at without the apparent procedural defects. It underlined the need for procedural natural justice when a case against employees is prepared and conducted and at the same time drummed the point at which technicalities should not be used to defeat merit. This judgment rekindles the judiciary’s resolution to enhance safety in the workplace as well as guarantee that technicalities do not delay procedure of delivering justice in issues to do with sexual harassment.[15] (Desk, 2024)
Recent Developments:
In recent years, judicial decisions and policy actions that have aimed at enhancing workplace rights. For example, the recent decision of Supreme Court regarding the rights of developing the LBGTQ+ employment has employment opportunities. In the same way, the Anti-Discrimination workplace policies and Diversity and Inclusion policies are also being widely embraced by corporate India.
Conclusion
To conclude, Crucial action needs to be taken to eradicate workplace discrimination in India in order to improve conditions within the workplace. Although it is relatively sound for now, this legal approach must be supported with enhanced employee consciousness and the reinforcement of laws already in place. Many of these initiatives require employers to take positive affirmative action in ending discrimination and making workplaces safe for all. Thus with eradication of cultural prejudices, with judiciary coming to the rescue to bring justice to all the victims of discrimination in workplace, with embracing diversity India can go a long way in ensuring that all employee’s basic human rights are protected from being violated at workplace.
References
[1] Agrawal, Adv. R. (2022, December 26). How to deal with discrimination in the workplace?. EzyLegal. < https://www.ezylegal.in/blogs/status-of-discrimination-in-the-workplace-in-india >
[2]C111 – discrimination (employment and occupation) Convention, 1958 (no. 111). Convention C111 – Discrimination (Employment and Occupation) Convention, 1958 (No. 111). (n.d.). < https://normlex.ilo.org/dyn/nrmlx_en/f?p=NORMLEXPUB%3A12100%3A0%3A%3ANO%3A%3AP12100_Ilo_Code%3AC111 >
[3] Legislative Department Of Government Of India . (n.d.). The Constitution Of India. India.
[4] Persons with disability act 1995.PDF. (n.d.-c). < https://thenationaltrust.gov.in/upload/uploadfiles/files/Persons with Disability Act 1995.pdf >
[5] The Protection of Civil Rights Act, 1955. (n.d.-d). < https://www.indiacode.nic.in/bitstream/123456789/15434/1/protection_of_civil_rights_act,_1955.pdf >
[6] Equal remuneration act, 1976. (n.d.-b). < https://samadhan.labour.gov.in/whatsnew/equal_remuneration_act_1976.pdf >
[7] Government Of India. (2013). THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013.
[8] Sexual harassment of women at Workplace (Prevention, Prohibition & Redressal) act 2013 ) from Vajirao & Reddy Institute. Current Affairs | Vajirao & Reddy. (n.d.). < https://www.vajiraoinstitute.com/current-affairs/sexual-harassment-of-women-at-workplace-prevention-prohibition-redressal-act-2013/ >
[9] Persons with disability act 1995.PDF. (n.d.-c). < https://thenationaltrust.gov.in/upload/uploadfiles/files/Persons with Disability Act 1995.pdf >
[10] The Transgender Persons (Protection of Rights) bill, 2019. PRS Legislative Research. (2024, December 20). < https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2019 >
[11] Wikimedia Foundation. (2024a, August 31). National Council for Transgender Persons. Wikipedia. < https://en.wikipedia.org/wiki/National_Council_for_Transgender_Persons>
[12] IndiaCode. (n.d.). The Industrial Disputes Act, 1947.
[13] Industrial Disputes Act, 1947 – Objectives & Features: UPSC. Testbook. (n.d.). < https://testbook.com/ias-preparation/industrial-disputes-act-1947#:~:text=The%20Industrial%20Disputes%20Act%20of%201947%20is%20India’s%20major%20legislation,%2C%20reduction%2C%20or%20unfair%20dismissal. >
[14] Union Of India vs Dilip Paul (indiankanoon.org November 6, 2023).
[15] Desk, C. E. (2024, October 16). Union of India v. Dilip Paul: Supreme Court reinforces procedural fairness in workplace sexual harassment disciplinary proceedings. https://www.casemine.com. < https://www.casemine.com/commentary/in/union-of-india-v.-dilip-paul:-supreme-court-reinforces-procedural-fairness-in-workplace-sexual-harassment-disciplinary-proceedings/view >