Case Law in India - Supreme Court

Discrimination

Nergesh Mirza v. Union of India, 1981

This case concerned the setting, by the government, of a lower retirement age for air hostesses, in comparison to their male counterparts. The Court held that this violated the principle of equality of employment set out in article 16(1) of the Indian Constitution, and that gender was not an intelligible difference upon which to base discrimination.

Equal Pay

Mackinnon Mackenzie & Co. v. Audrey D’Costa, 1987

A case concerning a claim for equal remuneration between Confidential Lady Stenographers and General Male Stenographers.

In assessing whether work is the same or of a similar nature, a broad approach should be taken, and the actual duties of men and women should be looked at, not those that are theoretically possible. In this case, the Court held that the stenographers performed the same work or work of a similar nature and therefore failure to pay them equal remuneration was a breach of s.4(1) of the Equal Remuneraton Act 1976. A settlement arrived at between the employer and the employees or financial incapability of the employer does not allow discrimination in remuneration between male and female employees in breach of the Act.

Ashok Kumar Garg v. State of Rajasthan, 1994

According to this case, the question of equal work in order to compare jobs in determining equal pay, depends on various factors such as skill, effort and conditions of work.

A leading sexual harassment case concerning a worker for the State Women’s Development Program who was gang-raped as an act of revenge for her work campaigning against child marriage. Prior to the rape, the women employee had complained of sexual harassment to the State employee, but no action had been taken. The State had no functional policy on sexual harassment and there was a failure of the authorities to pursue the case. A public interest case was litigated by a number of women’s organisations.

The Court developed legally binding guidelines,  in consultation with NGOs and women’s organisations which are applicable in the workplace and other institutions, such as universities, and these are summarised below.

The guidelines provide that it is the duty of employers to to prevent or deter sexual harassment and to provide procedures for the resolution, settlement or prosecution. Compliant mechanisms must exist which deadlines for dealing with the complaint. Sexual harassment is defined as including unwelcome sexually determined behaviour (direct or by implication) such as physical contact and advances, requests for sexual favours, remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. It must occur in circumstances where the women employee has reasonable grounds to believe she will be disadvantaged or for being humiliated.

The preventative steps that employers must take include prohibition of sexual harassment that must be notified to employees, and to improve work conditions to ensure that there is no hostile environment towards women at work. The employer should initiate appropriate criminal proceedings if the conduct amounts to an offence and/or disciplinary action. In addition employers must ensure that the victims are not victimised for making a complaint of sexual harassment. The victim should have the option of seeking the transfer of the perpetrator or their own transfer.

Complaints mechanisms should provide a complaints committee, support services and for confidentiality. The head of the Committee should be a women and not less than half the members should be women and it should include an independent third party such as an NGO. Complaints committees must make annual reports to the government, and employers must also report on compliance with the guidelines.

Employers must also take steps to prevent employees being sexually harassed by third parties.