'Equal Pay for Equal Work' as a Fundamental Right: How Article 14 Absorbed Article 39(d)
- Umang
- 5 days ago
- 14 min read
Table of Contents
Conclusion: A Directive Principle Enforced as a Right
Introduction: A Directive That Would Not Stay in Its Lane
Article 37 of the Constitution of India declares that the provisions of Part IV — the Directive Principles of State Policy — shall not be enforceable by any court, but shall nevertheless be fundamental in the governance of the country.
The Constituent Assembly placed the Directives in a different chamber from the Fundamental Rights: aspirational goals for the State rather than enforceable entitlements for the citizen.
Article 39(d) is one of those Directives. It enjoins the State to direct its policy towards securing equal pay for equal work for both men and women. On its face, it is a policy instruction, not a justiciable right.
A citizen whose employer pays a male colleague more for identical work could not, the classical reading suggested, march to the Supreme Court under Article 32 and demand parity by invoking Article 39(d) alone.
Yet that is precisely what Indian courts made possible — by a process of doctrinal absorption that gave Article 39(d) effective enforceability through the Fundamental Rights in Articles 14 and 16. The doctrine of 'equal pay for equal work' was originally propounded as part of the Directive Principles of State Policy in Article 39(d).
But, having regard to the constitutional mandate of equality and the inhibition against discrimination in Articles 14 and 16, it has, in service jurisprudence, assumed the status of a fundamental right — as the Supreme Court confirmed in Union of India v. Dineshan K.K., AIR 2008 SC 1026.
How this absorption occurred — through which cases, by what doctrinal reasoning, and with what qualifications — is the subject of this blog.
The Constitutional Scheme: Part III versus Part IV
Article 39(d): The Directive in Its Own Words
Article 39 of the Constitution lays down certain principles of policy to be followed by the State. Clause (d), specifically, directs the State to secure that there is equal pay for equal work for both men and women.
Read with Article 39(a) — which guarantees the right to an adequate means of livelihood to men and women equally — the provision reflects the Constitution's ambition to dismantle both gender-based and structurally unjust wage hierarchies.
The Fundamental Rights and the Directive Principles are described as the two wheels of the chariot — jointly aimed at making social and economic democracy a reality, as affirmed in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
Together they form the core of the Constitution. The Fundamental Rights cannot be enjoyed in their fullest measure unless the conditions created by the Directives are in place — and the Directives lose their meaning if courts cannot give them effect. This inherent tension set the stage for the doctrinal manoeuvre that brought Article 39(d) within the orbit of Part III.
The Non-Justiciability of Directives — and Its Limits
Article 37's declaration of non-enforceability does not mean that Directives are constitutionally inert. It was held as early as Kesavananda Bharati that Parliament is competent to amend the Constitution to override or abrogate any of the Fundamental Rights in order to enable the State to implement the Directives, so long as the basic features of the Constitution are not affected.
The Directives inform the interpretation of Fundamental Rights — restrictions that serve the purposes of the Directives are treated as reasonable restrictions under Articles 19(2) to 19(6); and a favourable classification of an object whose promotion is encouraged by the Directives is regarded as a reasonable classification under Article 14.
This interpretive interaction — Directives colouring Fundamental Rights, not replacing them — is the mechanism through which Article 39(d) found its way into justiciable territory.
The First Step: From Abstract Doctrine to Part III
Kishori Mohanlal Bakshi: The Initial Refusal
The question of whether the principle of equal pay for equal work had any connection with Article 14 came before the Supreme Court in Kishori Mohanlal Bakshi v. Union of India, AIR 1962. The Court, at that stage, held that the abstract doctrine of 'equal pay for equal work' had nothing to do with Article 14.
The two categories of employees — recruited from different sources with different pay scales — did not, on the Court's view, present a case of irrational discrimination amenable to Article 14 challenge.
At the same time, the Court acknowledged that Article 14 would not prevent the State from dividing employees doing the same kind of work into superior and inferior classes with different pay scales, or from fixing different scales for persons employed in the same post on account of being recruited from different sources or by different methods of recruitment. Classification based on source of entry, then, was treated as per se rational.
The Doctrinal Bridge: Directive Principles Colouring Fundamental Rights
The transformation required a bridge between Part IV and Part III. That bridge was provided by the principle, well-established by the early 1980s, that the Directive Principles are relevant to the interpretation of the Fundamental Rights.
Applying Article 39(d) and the word 'Socialist' in the Preamble — inserted by the Constitution (42nd Amendment) Act, 1976 — the Supreme Court held that the right to equal pay for equal work as between the sexes, or within the same sex, is a fundamental right included in Article 14, so as to invalidate an administrative order which violates this right by making an irrational classification, as affirmed in Randhir Singh v. Union of India, AIR 1982 SC 879 : (1982) 1 SCC 618.
Randhir Singh: The Landmark Elevation
Randhir Singh v. Union of India, AIR 1982 SC 879, is the foundational decision in the doctrine's journey from Directive to fundamental right. The petitioner, a driver in the Delhi Police Force, contended that drivers in other Central Government departments were paid higher wages for the same work.
The Supreme Court, per Justice Chinnappa Reddy, held that the principle of equal pay for equal work is not merely a Directive under Article 39(d) but is deducible from the combined reading of Articles 14, 16, and 39(d).
The Reasoning: Article 14 and Article 16 Read with Article 39(d)
The Court reasoned that Article 16(1), which guarantees equality of opportunity in matters relating to employment, read with Articles 14 and 39(d), also guarantees equal pay for equal work, so that the Court would strike down unequal scales of pay for identical work under the same employer, where the differentiation is based on no classification or on an irrational classification.
The combination of the equality guarantee (Article 14), the employment equality guarantee (Article 16), and the Directive (Article 39(d)) together creates a judicially enforceable principle.
The Court drew special force from the Preamble's insertion of 'Socialist' in 1976, reading this as a constitutional signal that equal pay for equal work had been elevated in the constitutional hierarchy — and that courts must give effect to it in appropriate cases.
Irrational Classification as the Constitutional Trigger
The key legal proposition from Randhir Singh is that the doctrine bites precisely when the unequal treatment rests on no rational basis. Article 14 permits classification — it does not prohibit differential treatment of unequals. What it does prohibit is differential treatment of equals without any intelligible differentia.
When two employees perform identical work for the same employer, and there is no rational ground distinguishing their roles, pay disparity becomes an irrational classification and thus a violation of Article 14.
In other words, the constitutional migration of Article 39(d) into Part III happens through the prism of arbitrariness: unequal pay for equal work is, almost by definition, an arbitrary act of the State — and arbitrariness is the antithesis of Article 14.
The Gender Dimension: Article 39(d) and Sex Discrimination
Mackinnon Mackenzie: Same Work or Work of Similar Nature
Article 39(d) was explicitly designed to address gender-based pay disparity — it speaks of equal pay for equal work for both men and women. The Supreme Court gave effect to this dimension in Mackinnon Mackenzie and Co. Ltd. v. Andrey D'Costa, (1987), where it held that men and women doing the same work or work of similar nature should get equal pay.
Notably, in determining whether the work done is similar, the Court should take a broad view and also strike down any discrimination made on the ground of sex.
The instruction to take a broad view when comparing work for Article 39(d) purposes — as opposed to the more exacting 'complete identity' test that has since emerged in the general Article 14/16 context — reflects the Constitution's specific concern about gender-based wage discrimination.
The combined reading of Articles 39(a) and 39(d) reinforces this: both men and women are entitled to an adequate livelihood and to equal pay for the same work, and any classification that undermines these goals requires careful judicial scrutiny.
The Doctrine Matures: Consolidation in Service Jurisprudence
After Randhir Singh, the doctrine's trajectory in service law was one of progressive consolidation — with the courts accepting the fundamental right status of the principle while simultaneously qualifying its application.
State of M.P. v. Pramod Bhartiya: Implicit Enshrinement in Article 14
In State of M.P. v. Pramod Bhartiya, (1993), the Supreme Court confirmed that while the doctrine of equal pay for equal work was originally an abstract doctrine unrelated to Article 14 (as Kishori Mohanlal Bakshi had initially held), later decisions held it to be implicitly enshrined in Article 14.
The evolution was formal and complete: the Directive had been incorporated into the fundamental right by judicial construction, not by constitutional amendment.
Union of India v. Dineshan K.K.: Fundamental Right Status Confirmed
Union of India v. Dineshan K.K., AIR 2008 SC 1026, provides the most explicit judicial affirmation of the doctrine's status. The Supreme Court held in plain terms:
The doctrine of "equal pay for equal work" was originally propounded as a part of the Directive Principles of State Policy in Article 39(d) of the Constitution.
Thus, having regard to the constitutional mandate of equality and inhibition against discrimination in Articles 14 and 16, in service jurisprudence, the doctrine of "equal pay for equal work" has assumed the status of a fundamental right.
This formulation — moving from Article 39(d) as source, through Articles 14 and 16 as the vehicle, to the status of a fundamental right as the destination — captures the entire arc of the doctrine's constitutional journey in a single paragraph.
What 'Equal Work' Actually Means: The Evolving Standard
The hardest question in equal pay litigation is always the comparator: what makes two roles 'equal'? The Supreme Court's answer to this question has itself undergone a significant evolution.
The Early View: Identical Functions Suffice
In the earlier cases, courts were broadly receptive to the position that if two persons discharge the same functions, they are entitled to the same wages. The focus was on functional parity — if you do the same job as your counterpart, you should receive the same pay.
The Sea Change: Complete and Total Identity Required
Subsequently, the view changed substantially. The Supreme Court held that the principle requires complete and total identity between the two persons so situated. In State of Punjab v. Surinder Singh, (2007) 13 SCC 231, the Court held that even if a daily wage employee discharges the same functions as a regular employee, the authorities are not bound to grant equal pay if the person was appointed on a daily-wage basis, i.e., for a short term, and has not undergone the selection process applicable to regular employees.
The doctrine does not contemplate that only because the nature of the work is the same — irrespective of educational qualification, source of recruitment, or other relevant considerations — it would be automatically applied.
Holders of higher qualifications can be treated as a separate class; such classification is reasonable. Employees performing similar jobs but with different educational qualifications can be treated differently — Government of W.B. v. Tarun K. Ray, (2004) 1 SCC 347.
Though 'equal pay for equal work' is a concomitant of Article 14 — such that 'equal pay for unequal work' will also be a negation of that right — equal pay depends not only on the nature or volume of work but also on the qualitative difference as regards reliability and responsibility.
Though the functions may be the same, responsibilities make a real and substantial difference — State of Orissa v. Balaram Sahu, (2003) 1 SCC 250.
Factors Courts Consider
The principle of equal pay for equal work has no mechanical application in every case. Equal pay can only be given for equal work of equal value. The application of the principle requires consideration of various dimensions of a given job — State of Haryana v. Charanjit Singh, (2006) 9 SCC 321.
Among the factors the Supreme Court has identified as relevant to any comparison are: the nature and quality of work produced; the volume of work; responsibility and reliability attached to the post; educational qualifications; mode of recruitment (direct vs. promoted, regular vs. ad hoc); the selection process undergone; experience and seniority; risk involved; confidentiality; geographical location; and the hierarchy in which the post sits.
The equality is not based on designation or nature of work alone. There are several other factors — difference in management or geographical location, source of funding, responsibilities, reliabilities, experience, risk involved, confidentiality involved, volume of work, functional need and requirements commensurate with the position in the hierarchy, and the qualifications required — which are equally relevant, as stated in State of Punjab v. Jagjit Singh, (2017) 1 SCC 148.
Limits of the Doctrine: When Equal Pay Cannot Be Claimed
The doctrine's elevation to fundamental right status does not mean it applies in every case where two employees perform broadly similar work. The Supreme Court has been careful to delineate the conditions in which the principle cannot be invoked.
Mode of Recruitment and Source of Entry
Classification between employees doing the same kind of work, where they have entered service through different routes, is a valid rational basis for pay differentiation.
Article 14 would not prevent the State from fixing different scales of pay for persons employed in the same post on the ground of their being recruited from different sources or by different methods of recruitment — Kishori Mohanlal Bakshi v. Union of India, AIR 1962. This position has never been departed from; source of recruitment remains a legitimate differentia.
Daily Wage and Ad Hoc Employees
This is one of the most litigated limits. The concept of equal pay for equal work is different from the concept of regularisation — conferring permanency on those appointed on ad hoc or temporary basis, or based on no proper selection process, as the Supreme Court clarified in Secretary, State of Karnataka v. Umadevi (3), (2006) 4 SCC 1.
Equal pay for equal work and the permanency of appointment are distinct entitlements; obtaining the former does not entitle a temporary worker to the latter.
Where the only difference between two employees is the method of appointment — one regular, one daily wage — the regular employee's pay advantages cannot be automatically claimed by the daily wager. The mode of appointment is itself a rational differentia.
Different Employers and Jurisdictions
The principle of equal pay for equal work cannot be invoked in cases where the discrimination sought to be shown is between acts of two different authorities functioning as the State — Union Territory, Chandigarh v. Krishan Bhandari, (1996) 11 SCC 348.
The State is not a monolith; its agencies and instrumentalities are distinct employing entities. India being a Union of States, each State having its own way of governance, one State is not bound to follow the pay rules of another, though the employees be similarly situated — State of H.P. v. P.D. Altri, (1999).
Expert Body Determinations
The question of whether two posts are equal and should carry equal pay is primarily an administrative question and courts should not normally interfere with the views expressed by an expert body such as a Pay Commission.
The Pay Commissions are constituted specifically to evaluate the duties and functions of employees, the nature of their work, and the educational qualifications required, and to recommend pay scales. The court's power of judicial review is confined to examining whether the decision of the State authorities is rational and just, or prejudicial to a particular set of employees — State of Haryana v. Charanjit Singh, (2006) 9 SCC 321.
Although the Pay Commission is considered to be an expert body, the State in its wisdom and in furtherance of policy may or may not accept its recommendations and, in exercise of the power conferred by the proviso to Article 309 of the Constitution, may frame appropriate rules and give them retrospective effect — M.P. Rural Agriculture Extension Officers Assn. v. State of M.P., (2004).
The Burden of Proof and the Writ Court's Restraint
The person claiming parity of pay must lead necessary averments and prove that all things are equal between the posts concerned. Such a complex issue cannot be adjudicated merely by evaluating affidavits filed by the parties.
An expert committee has to decide issues with regard to fixation of pay scales, which falls within the exclusive domain of the executive. The courts, in the exercise of their limited power of judicial review, can only examine whether the decision of the State authorities is rational and just.
The person who asserts that there is equality in work has to prove it — State of Punjab v. Jagjit Singh, (2017) 1 SCC 148. The doctrine is not an abstract proposition that can be mechanically invoked by pointing to similarity of designation or general job description.
Normally, the applicability of the principle must be left to be evaluated and determined by an expert body, and the court should not interfere unless it is satisfied that the necessary material is available on record with necessary proof, and that there is equal work of equal quality with all other relevant factors fulfilled — Union of India v. Dineshan K.K., AIR 2008 SC 1026.
This restraint is consistent with the broader principle under Article 14 that the Court will not substitute its own judgment for that of the executive on matters of administrative policy, unless the decision is patently irrational, unjust, and prejudicial.
Directive Principle Enforced as a Right
The transformation of Article 39(d) from a non-justiciable Directive into a justiciable fundamental right is among the most elegant examples of constitutional cross-pollination in Indian law. It did not require a constitutional amendment — it required judicial imagination.
By reading Article 39(d) as an aid to interpreting the equality provisions in Articles 14 and 16, the Supreme Court accomplished what Part IV's structure formally forbade: the direct enforcement of a Directive Principle in an Article 32 petition.
The logic is impeccable. Unequal pay for equal work is, by definition, an irrational differentiation among persons who are similarly situated. And irrational differentiation is the classic violation of Article 14. Article 39(d) did not create a new right — it illuminated the content of an existing one. The Directive told the courts what 'equality' in the context of wages demanded; Article 14 provided the enforcement mechanism.
The doctrine, as it stands today, is at once powerful and carefully bounded. It is a fundamental right — enforceable under Article 32 — but its application requires proof of complete identity in work, mode of appointment, qualifications, and responsibility.
It is a rule against irrational pay discrimination, not a guarantee of pay uniformity across all public employment. The courts will enforce it where the differentiation is manifestly arbitrary; they will defer to expert bodies where the comparison is complex and value judgments are required.
Frequently Asked Questions
Q: Is 'equal pay for equal work' a fundamental right or only a Directive Principle in India?
It is both, in a carefully nuanced sense. Article 39(d) of the Constitution places it among the Directive Principles, which are non-justiciable on their own. However, the Supreme Court in Randhir Singh v. Union of India, AIR 1982 SC 879, and subsequently in Union of India v. Dineshan K.K., AIR 2008 SC 1026, held that, having regard to Articles 14 and 16 and the inhibition against irrational discrimination, the doctrine has assumed the status of a fundamental right in service jurisprudence. A petition under Article 32 therefore lies to enforce it.
Q: What is the test for deciding whether two jobs are 'equal' for the purpose of this doctrine?
The principle requires complete and total identity between the two persons and their posts — a standard stricter than simple functional similarity. Factors like educational qualifications, mode of recruitment, selection process, responsibilities, reliability, experience, and the hierarchical position of the post are all relevant. A mere similarity in the nature of duties assigned is not sufficient. Equal pay can only be given for equal work of equal value — State of Haryana v. Charanjit Singh, (2006) 9 SCC 321.
Q: Can a daily wage or contract employee claim equal pay as a regular employee under this doctrine?
Not as an automatic entitlement. The Supreme Court has held that where an employee is on a daily-wage basis — appointed for a short term and without undergoing the selection process applicable to regular employees — the authorities are not bound to grant equal pay even if the work performed is similar. The concept of equal pay for equal work is distinct from the concept of regularisation — State of Punjab v. Surinder Singh, (2007) 13 SCC 231.
Q: Does this doctrine apply between employees of different State Governments or different public sector employers?
No. The principle cannot be invoked in cases where the discrimination is between acts of two different authorities functioning as the State — Union Territory, Chandigarh v. Krishan Bhandari, (1996) 11 SCC 348. One State is not bound to follow the pay rules of another State for similarly situated employees, given that each State has its own governance structure.
Q: What role does gender play in the equal pay doctrine?
Article 39(d) was explicitly drafted to address gender-based pay disparity — it directs equal pay for both men and women. In Mackinnon Mackenzie and Co. Ltd. v. Andrey D'Costa, (1987), the Supreme Court held that men and women doing the same work or work of similar nature must get equal pay, and courts should take a broad view when determining similarity of work. Any wage discrimination on the ground of sex, without rational justification, violates Articles 14, 15, and 39(d) read together.
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