Gender Discrimination In Employment As Criminal Offence
Gender discrimination in employment refers to unequal treatment of employees based on sex, including discrimination in hiring, promotion, wages, training, or termination.
In India, gender discrimination in employment is prohibited under constitutional provisions, labour legislation, and criminal law.
1. Constitutional Provisions
Article 14 – Equality before Law
Guarantees equality and prohibits arbitrary discrimination, including on the basis of sex.
Article 15(1) – Prohibition of Discrimination
Explicitly prohibits discrimination on grounds of sex.
Article 16 – Equality of Opportunity in Public Employment
Ensures equal opportunity for all citizens in matters related to employment under the State.
Article 21 – Right to Life with Dignity
Courts interpret gender-based discrimination and harassment as a violation of dignity.
2. Statutory Provisions
(A) Equal Remuneration Act, 1976 (Now under Code on Wages, 2019)
It mandates:
Equal pay for equal work
No discrimination in recruitment, promotion, or working conditions
Violation can lead to criminal penalties — fines and imprisonment.
(B) Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
Sexual harassment is treated as a criminal offence under the IPC (Section 354A).
(C) Indian Penal Code (IPC)
While the IPC does not explicitly say “gender discrimination”, several provisions criminalize practices that constitute discriminatory behaviour, including:
Section 354 & 354A – harassment or sexual advances
Section 509 – insulting the modesty of a woman
Section 503/506 – threats for employment decisions
Section 498A – cruelty against women in employment tied to dowry in some rare cases
(D) Maternity Benefit Act, 1961
Termination or discrimination on grounds of pregnancy is a punishable offence.
3. Important Case Laws (More Than Five) — Detailed
Case 1: Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa (1987 SC)
Facts:
Women stenographers were paid substantially less than male stenographers in the same company, despite performing identical duties.
Held:
Supreme Court held:
Paying women less for the same work violates the Equal Remuneration Act, 1976.
“Equal pay for equal work” is a constitutional requirement under Articles 14 and 16.
Importance:
This case strongly established that gender-based wage discrimination is illegal and punishable.
Case 2: Vishaka v. State of Rajasthan (1997 SC)
Facts:
A social worker, Bhanwari Devi, was gang-raped for attempting to stop child marriage. There were no clear laws addressing sexual harassment at workplace at the time.
Held:
Supreme Court laid down the Vishaka Guidelines, holding sexual harassment to be a:
Violation of Articles 14, 15, 19(1)(g), and 21
Form of discriminatory employment practice
A criminal offence under IPC
Importance:
This landmark judgment made workplace harassment a form of gender discrimination and eventually led to the POSH Act, 2013.
Case 3: Medha Kotwal Lele v. Union of India (2013 SC)
Facts:
Petitioners complained of widespread non-compliance with Vishaka guidelines across institutions.
Held:
Supreme Court ruled:
Non-compliance with sexual harassment guidelines amounts to denial of women’s fundamental rights.
Directed all states and institutions to strictly follow Vishaka guidelines until the POSH Act came into force.
Importance:
The Court reaffirmed that failure to prevent or redress gender discrimination and harassment is itself a violation of constitutional rights.
Case 4: Air India v. Nargesh Meerza (1981 SC)
Facts:
Air hostesses challenged discriminatory employment rules:
Different retirement age for men and women
Termination upon pregnancy
Unfair maternity regulations
Held:
Supreme Court struck down:
Automatic termination upon pregnancy
Lower retirement age for women
as arbitrary and unconstitutional under Articles 14 and 16.
Importance:
The Court recognized that employment rules discriminating on sex are unconstitutional and can amount to criminal wrongdoing under labour laws such as the Maternity Benefit Act.
Case 5: C.B. Muthamma v. Union of India (1979 SC)
Facts:
India’s first female IFS officer challenged discriminatory service rules in the Ministry of External Affairs:
Women were required to seek government permission before marriage
They could be forced to resign after marriage
Held:
Court held such rules were:
“Highly chauvinistic”
Violative of Articles 14, 15, and 16
Importance:
This case was a strong judicial statement that gender bias in recruitment and service rules is illegal and unconstitutional.
Case 6: Apparel Export Promotion Council v. A.K. Chopra (1999 SC)
Facts:
A woman employee complained of sexual advances by her superior. The accused argued no physical contact occurred.
Held:
Supreme Court expanded the definition of workplace sexual harassment:
Physical contact not required to constitute harassment
Such harassment is discrimination and a violation of Articles 14, 15 & 21
Importance:
The Court affirmed that any unwelcome behaviour affecting employment is criminal and discriminatory, even without touching.
Case 7: Anuj Garg v. Hotel Association of India (2007 SC)
Facts:
A law barred women from working in establishments serving alcohol.
Held:
Supreme Court struck down the law, stating:
Protective discrimination based on stereotypes is unconstitutional
Employment cannot be denied based on gender
Importance:
The judgment condemned paternalistic and stereotyped employment restrictions as discriminatory.
4. Gender Discrimination as a Criminal Offence
While discrimination in itself is often addressed through civil/constitutional remedies, it becomes a criminal offence when linked with:
1. Sexual Harassment (IPC 354A, 354, 509)
Punishable with imprisonment.
2. Violation of Maternity Benefit Act
Penalties include fines and imprisonment.
3. Equal Remuneration Act violations
Failure to pay equal wages or discriminatory recruitment is punishable.
4. Harassment or Intimidation in Workplace
Falls under IPC sections related to criminal intimidation (503, 506).
Conclusion
Gender discrimination in employment is not merely a violation of workplace ethics—it is:
A breach of fundamental rights
A violation of labour laws
In many forms, a criminal offence under the IPC, Maternity Benefit Act, POSH Act, and Equal Remuneration provisions
The Supreme Court has repeatedly reaffirmed that gender equality is non-negotiable, and discriminatory employment practices can invite strict penalties.
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