Recently, the Central Government objected to the appointment of Senior Advocate Saurabh Kirpal as a High Court judge, on the ground of his sexual orientation. The Supreme Court rejected the objection. This brings the discussion on discrimination in the workplace into the limelight.
What does the Constitution say about equal opportunity at the workplace?
Our Constitution guarantees us equal opportunity in matters of employment. It prohibits discrimination on grounds of religion, race, caste, sex, descent, place of birth or residence. Recent judicial decisions have upheld that “sex” also includes “sexual orientation.” The Supreme Court in its landmark decision in the Navtej Singh Johar and Ors. V. Union of India (2018) case, held “any discrimination on the basis of one‘s sexual orientation would entail a violation of the fundamental right of freedom of expression.”
Article 14 of the Indian Constitution guarantees equality to all citizens before the law and equal protection by the law irrespective of their religion, race, caste, sex or place of birth.
Article 15 prohibits discrimination on the basis of religion, race, caste, sex or place of birth.
Article 16 guarantees equality of opportunity in matters of public employment. It states that all citizens must have equality of opportunity in matters of employment or appointment to any office under the State. No citizen will be ineligible for or discriminated against in cases of employment under the State on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them.
What else does the law say about discrimination at the workplace?
The Wages Code 2019 prohibits discrimination in matters of wages and recruitment of employees. It also prohibits reduction in wages on account of gender.
Equal Remuneration Act, 1976 requires employers to pay equal remuneration to workers for same work or work of a similar nature without any discrimination on the basis of sex.
The Supreme Court in the case of Navtej Singh Johar v. Union of India (2016) held that LGBTQ+ people in India are entitled to all constitutional rights, including the liberties protected by the Constitution of India.
In State of Punjab & Ors. vs. Jagjit Singh & Ors., the Supreme Court ruled that employees doing the same work cannot be paid less than any other co-worker who performs the same or similar nature of duties and disparities. Disparity in pay was seen as ‘oppressive, suppressive and coercive.’ Thus, the principle of ‘equal pay for equal work’ constitutes a clear and unambiguous right and is vested in every employee, whether engaged on a permanent or temporary basis.
In case you’re facing discrimination based on your gender or sexual orientation, the following recourse is available to you:
- In case of discrimination based on Article 15, you can file a writ in the concerned High Court or the Supreme Court of India. To understand how to file a writ, you can refer to our explainer here.
- Approach the registered Trade Union in your office. They will be able to help you with your grievances at your workplace.
- You can also approach NGOs or institutions who work on LGBTQ+ Rights who will be able to provide employment opportunities or put you in touch with people who can. You can read more about getting help, here.
- For transgender persons, you can approach the designated complaint officer set up under the Transgender Persons (Protection of Rights) Act, 2019.
For filing a grievance with the National Transgender Council, create an account online in the National Transgender portal (https://transgender.dosje.gov.in/). On successful registration, click on the ‘Grievance tab’ on your dashboard. Detailed guidelines for the same can be found here – (https://transgender.dosje.gov.in/ docs/Manual.pdf)