Supreme Court of India, Mackinnon Mackenzie v. Audrey D’Costa and another, 26 March 1987, [1987] 2 SCC 469

Equal remuneration , Protection against discrimination in employment and occupation
Role of International Law:
Use of international law as a guide for interpreting domestic law
Type of instruments used:

Ratified treaty;1 Foreign case law;2 International case law3

Discrimination on the grounds of sex/ Equal remuneration/ Differences in pay between female shorthand typists and their male colleagues/ Use of international law as a guide for interpreting domestic law

Once her employment contract had been completed, a female shorthand typist had challenged the pay system applied in her firm, arguing that there was discrimination between women and men. That discrimination had been recognized by three courts. The firm instituted proceedings before the Supreme Court to have the measures taken for the benefit of Ms D’Costa cancelled. The shorthand typist held what was referred to as a “confidential post” in the company. The problem was that there was no man employed in a similar job. It had been recognized, however, that a male shorthand typist would have been paid a higher salary for the same work.

The Court first held that ILO Convention No. 100 was one of the sources of law applicable to the dispute:

“Before dealing with the contentious of the parties, it is necessary to set out the relevant legal provisions governing the case. Article 39(d) of the Constitution of India provides that the State shall, in particular, direct its policy towards securing that there is equal pay for equal work for both men and women. The Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value was adopted by the General Conference of the ILO on June 29, 1951. India is one of the parties to the said Convention.”

After referring to Article 2 of ILO Convention No. 100,4 the Court then endeavoured to describe the legal situation of European countries in the field of equal remuneration:

“In England the above Convention is given effect to by the enactment of Equal Pay Act, 1970. Almost all other European community States have also signed the Convention. The European Economic Community Treaty also provided that “during the first stage that is before December 31, 1961 each member State should ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work.””

In its examination of European case law the Court noted that:

“In a case concerning the pay of a woman who claimed equal pay with her predecessor, a man, the European Court held that the concept of equal pay in the EEC Treaty was not restricted to cases where men and women were employed contemporaneously but also applied where a woman received less pay than a man employed prior to her on equal work.”

Interpreting national legislation in conjunction with ILO Convention No. 100 and European jurisprudential practice in the field, the Supreme Court of India found that Ms D’Costa had received much lower pay than her male colleagues performing work of equal value. The fact that there was no man employed in the same job in the company was irrelevant, since the principle of equal remuneration presupposed that the same level of pay be guaranteed not only to persons performing identical jobs but also to persons performing work that was different but was considered to be of equal value. The Court refused to cancel the corrective measures that had been taken for the benefit of Ms D’Costa.

1 ILO Equal Remuneration Convention, 1951 (No. 100).

2 United Kingdom.

3 Court of Justice of the European Communities.

4 Article 2 of Convention No. 100:

“1. Each Member shall, by means appropriate to the methods in operation for determining rates of remuneration, promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value.

2. This principle may be applied by means of:

(a) national laws or regulations;

(b) legally established or recognized machinery for wage determination;

(c) collective agreements between employers and workers; or

(d) a combination of these various means.”

Full text of the decision