M J Antony: Requiem for a principle

OUT OF COURT

The SC has virtually retreated from applying 'equal pay for equal work'.

Though the Constitution asserts that the Directive Principles of State Policy listed in Part IV are not enforceable and are guiding principles in making laws, a zealous Supreme Court once tried to elevate one of them to the status of a fundamental right. In 1982, the Supreme Court ruled in the case of a bus driver of Delhi, that though the principle of 'equal pay for equal work' is a directive principle, it could be considered as a fundamental right of the workers (Randhir Singh vs Union of India). It was the first and last time that a directive principle was anointed with the sanctity of a fundamental right. The experiment has failed, as recent judgements of the Supreme Court show.

The latest judgement delivered in the case of a tractor driver of Punjab (State of Punjab vs Surinder Singh) diluted the principle so much that it has been emptied of all practical utility. The court summed up the position thus: "The principle of 'equal pay for equal work' has undergone a sea change. Earlier the view of the Supreme Court was that if two persons are discharging the same functions, they will be entitled to the same wages. Subsequently this view has been changed and now the view of this court is that there should be complete and total identity between the two persons similarly situated so as to grant equal pay for equal work."

The court began having second thoughts on the application of its own principle in the nineties. In State of Haryana vs Jasmer Singh (1997), it observed that the principle was not easy to apply. "There are inherent difficulties in comparing and evaluating the work of different persons in different organisations. Persons doing the same work may have different degrees of responsibilities, reliabilities and confidentialities, and this would be sufficient for a valid differentiation," the judgement explained. The court, therefore, left the decision to the administrative wisdom and bonafides of the employers, though it would be a value judgement.

This year saw further assaults on the principle. In the Indian Drugs & Pharmaceuticals case, the Supreme Court stated that granting pay scales is a purely executive function and the court should not interfere with it. It may have a cascading effect, creating all kinds of problems for the government and employers. In SC Chandra vs State of Jharkand, involving the staff of schools run by Hindustan Copper Corporation and Bharat Coking Coal Ltd, the court openly said that the principle was "creating havoc". All over the country, different groups were claiming parity in pay with other groups.

The Supreme Court went so far as to say that if the court enforced the principle, it would violate the principle of separation of powers enshrined in the Constitution. Citing Madison, it said that all power was of an encroaching nature and judicial power is not immune to this human weakness. It must also guard against encroaching beyond its proper bounds, "and not the less so since the only restraint upon it is self-restraint."

The court, therefore, recommends that the judiciary should keep out of the field. "The equation of posts and salary is a complex matter which should be left to an expert body," it said in State of Haryana vs Secretariat Personal Staff Assn. "The courts must realise that the job is both difficult and time-consuming which even experts having the assistance of staff with requisite expertise have found difficult to undertake."

This retreat from a social welfare prescription in the Constitution leaves little hope for optimism in regard to other directive principles. One of them is the canon that the state shall see that "the tender age of children is not abused" and that they are not compelled to enter avocations unsuited to their age or strength. In MC Mehta vs State of Tamil Nadu (1997), the court asked the government to see that an adult member of the family of the child working in a factory, mine or other hazardous environment should be given a job in lieu of the child. But this has been hardly implemented.

Article 45 enjoins the state to provide childhood care and education till six years. However, the 86th Constitutional amendment providing for free and compulsory education to children up to 14 years has not been notified for the past five years. Some other principles deal with women, backward classes, forests and wildlife. The 'cascading' effect of the Supreme Court's judgements as cited above is that all initiatives urgently needed in these vital fields should be initiated by the executive and legislature so that the court may withdraw from the affirmative path.