Protected at Work? India’s Anti-Discrimination Laws

By Ritik Kumar
VES College Of Law

Introduction

India is the most populous country in the world with a population of over 1.4 billion. With this Vast population comes a lot many diversities. People from different castes, religions, languages, and ethnicities, reside in the nation. Each State lives by its own culture and tradition. Besides it dwells an intriguing fact regarding the regional variations which cites that in nearly every 30 kilometers, the spoken language changes in India. This diversity notwithstanding a source of immense cultural wealth, poses significant challenges, particularly in the Workplaces where Employees from numerous states, languages, castes, and Religions are working.
Every coin has two faces. Similarly, this variation is indeed the veritable beauty of our nation though this vivid difference in cultural methodologies brings an uphill task before us. This challenging hurdle is the ‘Discrimination’ which rises in India at large.

Therefore, to deal with the problem of discrimination regarding race, composition, caste, religion, region, etc at the workplace particularly due to this vast majority and the variations, there are several legal provisions to protect and safeguard Individuals from this heinous discrimination. This article puts forth these legal provisions implied in the country.
Definition of Workplace Discrimination
When an employee while working in the workplace is treated unfairly or differently at work because of their colour, gender, caste, religion, age, birthplace, or any other personal trait, this is known as workplace discrimination. In the recruitment process, discrimination can also take place when candidates are accepted or rejected based more on their caste, religion, and personal traits than their triumphant qualifications.

“IN INDIA, THERE MAY BE NOTHING IN THE NAME BUT, THERE IS A LOT IN SURNAME.”

Oxfam 2022 Report on Discrimination in India

The India Discrimination Report released by Oxfam India in the year 2022 highlighted that women, marginalized communities, and minorities were afflicted by discrimination in the workplace and while applying for jobs in India.
The report found that there is a rise in discrimination in Rural areas, The SC and ST communities in rural India are confronting an increase in discrimination in casual employment as compared to earlier.
Women: The discrimination has increased for women from 67.2% in 2004-05 to 75.7% in 2019-20.
Earning Gap between Males & Females: The earning gaps are large, both in rural and urban areas for casual workers ranging between 50% and 70%.
Gender discrimination in India is structural which results in great disparities between earnings of men and women under ‘normal circumstances.

Impact of Discrimination on Employees

Discrimination at the workplace affects the employee badly and can affect his mental condition as well as a psychological one. Fallouts of Discrimination are:

Interference with the productivity of the workplace.
Interpersonal conflicts.
Dwindle of morals and demotivation.
Clumsy work is being carried out.

Workplace discrimination is not just an infringement of individual rights but also a significant impediment to social and economic development. According to Articles 23 and 24 of the Universal Declaration of Human Rights (UDHR), everyone has the right to work, a free choice of employment, just and lucrative conditions to work, and the agitation against unemployment. These principles highlight the universal need to protect workers from hefty discrimination and ensure equality in the workplace.
Constitutional Provisions Against Discrimination
The Constitution of India does advocate for equality. Following are the articles mentioned in the Constitution germane to ‘Equality’ and ‘Prohibition of Discrimination’.

THE PREAMBLE: The word ‘Equality’ is present in the preamble of the Constitution which states the there should be equality of status and opportunity To promote among them all,
Fundamental rights are recognised by the constitution and can only be claimed against the State defined in article 12 however not against a private entity.

ARTICLE14: EQUALITY BEFORE THE LAW AND EQUAL PROTECTION OF LAWS

States that every citizen is equal in the before law and everyone should be treated equally.
ARTICLE 15: Prohibits the state from discriminating on the ground of religion, caste, place of birth, sex, or any co-factor.
ARTICLE16: States that there should be equality of opportunity in matters of public employment and also the prohibition of the states from discriminating Provided that states can make reservations to backward classes and women.
ARTICLE 17: Abolishes Untouchability.
DPSP (DIRECTIVE PRINCIPLE OF STATE POLICY)
Although not enforceable in a court of law, they are mentioned to guide the state to frame a policy for a given subject like
Equality is payment for equal work for both males and females.
Youth and children should be protected against discrimination.

Protection of Women from Sexual Harassment Act,(POSH) 2013

The POSH Act, passed by the Indian Parliament in 2013, addresses sexual harassment encountered by women in the workplace. It aims at creating a safe and supportive work environment for women and providing protection against any sort of sexual harassment.
The POSH Act defines sexual harassment as unwelcome and derogatory acts such as physical contact, sexual advances, demands or requests for sexual favors, making sexually colored remarks, and showing pornography.

Background

In the landmark 1997 case of Vishakha and others v. State of Rajasthan, the Supreme Court gave guidelines the ‘Vishakha guidelines’. These guidelines later were used by the parliament for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Supreme Court drew on several provisions of the Constitution, including Article 15 (which prohibits discrimination on the grounds of religion, race, caste, sex, and place of birth), as well as on relevant international conventions and norms such as the General Recommendations of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which India ratified in 1993.

Key Provisions

Prevention and Prohibition: The Act puts a legal obligation on employers to prevent and prohibit the employee from any kind of sexual harassment at the workplace.
Internal Complaints Committee (ICC): Employers are required to entrench an ICC at each workplace with 10 or more employees to receive and address complaints of sexual harassment. The committee has the powers just like the civil courts to gather evidences.
Duties of Employers: It is the duty of the Employers to make awareness and programs, provide a safe working environment to the employees, and display information about the POSH Act at the workplace.
Complaint Mechanism: The Act lays down a procedure for filing complaints, conducting inquiries, and providing a fair opportunity to the parties involved.
Penalties: Non-compliance of the Act’s provisions results in penalties, which includes fines and the revoke of business licenses.

Equal Remuneration Act (ERA), 1976

ERA passed by the Indian Parliament in year 1976 assures equal remuneration of males and females. Chapter II of the act mentions the payment of remuneration at equal rates to men and women workers. Section 4 of the ERA states that it’s a duty of the employer to pay equal remunerations to men and women workers for the same work or work of a similar nature. The employer must not discriminate on grounds of sex when it comes to remuneration bestowed for the same amount and nature of work. Section 5 of the ERA Act states that there should be no discrimination to be made while recruiting men and women workers. The Act suggests that there must not be discrimination in the recruitment of personnel on the basis of sex.

The Rights of Persons with Disabilities Act (RPWD Act) 2016

The Rights of Persons with Disabilities Act (RPWD Act) 2016 is indeed a significant piece of legislation in India, aiming at enhancing and safeguarding the rights of persons with disabilities.
Expanded Definition of Disability: The Act cognizances a disability as an evolving and dynamic concept. It has increased the types of disabilities covered from 7 to 21. This pervasion includes conditions like mental illness, autism, cerebral palsy, muscular dystrophy, chronic neurological conditions, speech and language disabilities, thalassemia, hemophilia, sickle cell disease, multiple disabilities including deaf-blindness, acid attack victims, and Parkinson’s disease.
Reservation in Government Jobs and Education: The RPWD Act increases the reservation for persons with disabilities from 3% to 4% in government jobs and from 3% to 5% in higher educational institutions. This focuses on providing more opportunities for employment and education to people with disabilities.
Right to Free Education: Every child with a benchmark disability between the ages of 6 and 18 years has the right to free education. This provision furnishes children with disabilities to have access to education without financial hindrance.
Accessibility: The Act emphasizes accessibility by setting a prescribed time frame for ensuring accessibility in public buildings. This is part of the broader Accessible India Campaign, which corresponds to creating barrier-free environments for persons with disabilities.

The Transgender Persons (Protection of Rights) Act,2019

This Act was passed in the year 2019 to protect the right and prohibition of discrimination against transgenders. The Bill prohibits discrimination against transgenders in various fields like education, employment, healthcare, and other public services. The act recognises the right of transgender and a certificate to be issued by the District Magistrate which acts as a certificate of identity.

Conclusion

The cultural and regional diversity in India does hone the sanctity and is a crown of pride for us. However, the other aspect of the same is a pillory to us in the form of rampant discrimination, prejudice, and bias. This can only be dispensed with by the obligations and stepping onto the preventive measures enumerated above. But before carrying out such an onerous task, it is incumbent for each of us to get aware and be abreast of the lousy deed. Moreover, confessing the same is also crucial in the entire voyage of turning over this new leaf. Proper insight and awareness among the residents is a must to aver the precautions stated. This can truly eradicate the problem of such kind and avert anyone being a victim of this.

Frequently Asked Questions (FAQs)

QUE.- What are the legal provisions related to discrimination at the workplace In India there are Acts and Articles related to workplace discrimination.
Articles 14,15, and 16,39 of the Indian Constitution act like Equal Remuneration
Act 1976, Maternity Benefit Act 1961, The Rights of Persons with Disabilities Act 2016, and The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act (POSH) 2013.

QUE.- What is the most common form of workplace discrimination?
In India the most common form of discrimination in the workplace is discrimination on the basis of gender, females usually face the sexual harassment in the workplace and that is why we have a law in India called the POSH Act 2013.

What is the Internal Complaint Committee
Internal Complaints Committee (ICC): Employers are required to establish an ICC at each workplace with 10 or more employees to receive and address complaints of sexual harassment. These committees have the powers of civil courts for gathering evidence.