[Analysis] What Replaced the Equal Remuneration Act 1976 – Sections 3 and 4 | Gender vs Sex | Same Work

The Equal Remuneration Act, 1976 was repealed by section 69 of the Code on Wages, 2019 with effect from 21st November 2025. Its subject matter now sits in sections 3 and 4, read with the definition of "same work or work of a similar nature" in section 2(v). One thing has clearly widened: section 3(1) prohibits discrimination on the ground of gender rather than sex, so it reaches transgender persons. Compliance is mandatory for every establishment, whatever its size. Disputes on whether two jobs are of similar nature go to the authority notified under section 4 — the Deputy Chief Labour Commissioner (Central) in the central sphere.

Table of Contents

1. Is the Equal Remuneration Act, 1976 still in force?
2. Where did the 1976 Act come from?
3. What does section 3 of the Code on Wages say?
4. What has changed from the 1976 Act?
5. “Gender” or “sex”? An unresolved wrinkle in section 3
6. What is “same work or work of a similar nature”?
7. Which wage figure is compared? The second proviso to section 2(y)
8. Who decides a dispute? Section 4
9. Case law carried forward
10. Quick answers

1. Is the Equal Remuneration Act, 1976 still in force?

No. The Equal Remuneration Act, 1976 (25 of 1976) is one of the four Acts expressly repealed by section 69(1) of the Code on Wages, 2019, with effect from 21st November 2025.

The 1976 Act had received the assent of the President on 11th February 1976 and came into force on 8th March 1976. It ran for a little under fifty years.

Its subject matter has not gone anywhere. It has moved into sections 3 and 4 of the Code, which sit in Chapter I, before the Code turns to minimum wages. That placement is itself a signal: equal remuneration is not treated as a sub-topic of wage fixation but as a rule of general application running through the whole Code.

The mapping recorded in the commentary is this. Section 3 of the Code corresponds to sections 4 and 5 of the 1976 Act. Section 4 of the Code corresponds to section 7(3). It is not a complete transposition: sections 15 and 16 of the 1976 Act have no counterpart on the Code side of the concordance at all, and section 7 of that Act maps partly to section 4 and partly to section 45.

2. Where did the 1976 Act come from?

Two sources, one constitutional and one international.

Article 39(d) of the Constitution, among the Directive Principles in Part IV, requires the State to direct its policy towards securing that there is equal pay for equal work for both men and women. The 1976 Act was enacted to give effect to it, and the commentary records at Para 3.3 that section 3 of the Code carries the same directive forward — extending it, for the first time, beyond men and women.

The Equal Remuneration Convention, 1951, adopted by the General Conference of the International Labour Organisation on 29th June 1951, to which India is a party. Article 2 requires each member to promote and ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value, by national laws, by established wage-determination machinery, by collective agreements, or by a combination. Article 3 requires measures to promote appraisal of jobs on the basis of the work to be performed.

The commentary sets this history out at Para 3.2, drawing on the Supreme Court’s account in Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa (1987) 2 SCC 469, and notes that in England the Convention was given effect to by the enactment of the Equal Pay Act, 1970.

3. What does section 3 of the Code on Wages say?

Section 3 is headed “Prohibition of discrimination on ground of gender” and has two sub-sections.

Section 3(1) provides that there shall be no discrimination in an establishment or any unit thereof among employees on the ground of gender in matters relating to wages by the same employer, in respect of the same work or work of a similar nature done by any employee.

Section 3(2) provides that no employer shall —

• (i) for the purposes of complying with sub-section (1), reduce the rate of wages of any employee; and
• (ii) make any discrimination on the ground of sex while recruiting any employee for the same work or work of similar nature and in the conditions of employment, except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force.

Clause (i) closes the obvious escape route. An employer faced with a disparity may not level down.

Two points from the Section Notes are worth stating plainly because they are the ones that decide applicability in practice.

Mere differential treatment is not discrimination. Discrimination means treating equally or similarly placed persons differently, or treating differently placed persons equally. Differential treatment of similarly placed employees amounts to discrimination only where it is based only on gender, and not on an intelligible differentia such as the nature of the work, working conditions, experience or seniority. Even for the same work or work of a similar nature, differential payment grounded in such a differentia is not discrimination.

There is no exemption for small establishments. The Code provides no exemption from sections 3 and 4 based on the size of the establishment or the number of employees. However small the establishment, compliance is mandatory.

4. What has changed from the 1976 Act?

	Equal Remuneration Act, 1976	Code on Wages, 2019
Protected ground	Sex — men and women workers	Gender, in section 3(1) — covering male, female and transgender
Commencement	Section 1(3) permitted different dates to be appointed for different establishments or employments	Enforced for all establishments together, from 21st November 2025
Size threshold	—	None. No exemption based on size or headcount
Reach	Remuneration under section 4; recruitment, promotion, training and transfer under section 5	Wages under section 3(1); recruitment and conditions of employment under section 3(2)(ii)
Levelling down	Prohibited — section 4(2)	Prohibited — section 3(2)(i)
Dispute on “same or similar”	Decided by the authority appointed under section 7(1)	Decided by such authority as the appropriate Government notifies — section 4
Terminology	“Remuneration”, defined in section 2(g)	“Wages”, defined in section 2(y), with a special rule for equal-pay comparisons

The single most significant change is the first. The commentary puts it at Para 2.33-5: under the 1976 Act the guarantee of equal pay for equal work ran between men and women, whereas under the Code the principle has been made available to all genders. It states that this is a specific feature of the Code — that for the first time the principle of equal pay for equal work has been formulated as law for all three genders, namely masculine, feminine and transgender.

The Central Government’s own FAQ on the Code confirms the position in terms: employers shall not discriminate on the ground of gender including transgender in matters relating to wages, recruitment of an employee for the same work or work of a similar nature, and the conditions of employment.

Two features of the 1976 Act are not reproduced in sections 3 and 4. Section 15 of that Act disapplied it to cases affecting the terms and conditions of a woman’s employment in complying with any law giving special treatment to women, and to special treatment accorded in connection with the birth or expected birth of a child, or with retirement, marriage or death. Section 16 permitted the appropriate Government, satisfied that a difference in remuneration was based on a factor other than sex, to make a declaration to that effect — with the consequence, as the Supreme Court held, that the declaration was presumptive proof that no discrimination on the ground of sex had been made, and concluded the matter. The Code’s only express carve-out is the narrower one written into section 3(2)(ii) itself: employment of women prohibited or restricted by or under any law.

5. “Gender” or “sex”? An unresolved wrinkle in section 3

Sub-section (1) of section 3 prohibits discrimination on the ground of gender. Sub-section (2) prohibits discrimination in recruitment on the ground of sex. The Code defines neither word.

The commentary takes the point seriously, and the reasoning is worth following because it decides a real question.

“Gender” is the wider term. On its plain language, section 3(1) prohibits discrimination not only against women but also against transgender persons. If, however, section 3(2) — prohibiting discrimination in recruitment on the ground of sex — were read as protecting only women, then discrimination against transgender persons in recruitment would be permitted. And in that case, as the commentary puts it, the protection given to transgender persons by section 3(1) against discrimination in wages “will be illusory in that if they do not get recruited where is the question of discrimination in payment of wages?”

Three textual indications point the other way. The marginal note to section 3 reads “Prohibition of discrimination on ground of gender”. The expression “same work or work of a similar nature”, which is common to section 3(1) and section 3(2)(ii), is defined in section 2(v) by reference to “any gender” and not to sex — whereas its predecessor, section 2(h) of the 1976 Act, spoke of “a man and a woman”. And unless “sex” in sub-section (2) is read as “gender”, sub-section (1) cannot work efficaciously.

The commentary’s conclusion is that both “gender” and “sex” in the Code imply not mere biological sex but all genders — male, female and transgender — and it goes further, suggesting that the Central Government should issue a removal of difficulties order clarifying that the word “sex” in section 3(2) is to be read as “gender”.

Until that happens, an employer designing a recruitment policy is safer treating the two sub-sections as running on the same ground. The narrow reading offers no advantage worth the litigation risk, and it is inconsistent with the Government’s own FAQ.

6. What is “same work or work of a similar nature”?

The comparison in section 3 turns entirely on this expression, which is defined in section 2(v). Its ingredients:

• the skill, effort, experience and responsibility required for the works being compared are the same;
• the works are performed under similar working conditions; and
• any difference between the skill, effort, experience and responsibility required for employees of any gender is not of practical importance in relation to the terms and conditions of employment.

Note the asymmetry in the drafting: the four attributes must be the same, while the working conditions need only be similar. It is easy to lose. The Section Notes in the commentary summarise the first limb as “the same or similar”, which is looser than the clause, and the second as “same working conditions”, which is stricter than it. Where a comparison is finely balanced, the clause is the text to work from.

How that is applied is the subject of Para 3.12, drawing on Mackinnon Mackenzie. The commentary sets out the working tests:

• in deciding whether the work is the same or broadly similar, the authority should take a broad view;
• in ascertaining whether differences are of practical importance, an equally broad approach should be taken — the concept of similar work implies differences in detail, and these should not defeat a claim for equality on trivial grounds;
• the authority should look at the duties actually performed, not those theoretically possible;
• in making the comparison, the authority should look at the duties generally performed by men and women; and
• where both men and women work at inconvenient times, there is no requirement that everyone who works at night be paid the same basic rate as everyone who works normal day shifts.

The facts of Mackinnon Mackenzie illustrate the first three. Confidential lady stenographers were found to be doing the same work or work of a similar nature as male stenographers in the same establishment; in addition to stenography they attended to visitors and to filing and correspondence. The Court declined to allow that additional trust and responsibility to justify lower pay, observing that it did not mean they should suffer for their loyalty, integrity, sincerity and punctuality and receive less pay for possessing those qualities while doing the same kind of work as men.

7. Which wage figure is compared? The second proviso to section 2(y)

This is the part of the analysis most often skipped, and it changes the answer.

An equal-pay comparison under section 3 is a comparison of “wages” as defined in section 2(y). That definition excludes eleven categories, including house rent allowance, conveyance allowance, overtime allowance and remuneration payable under an award or settlement.

But the second proviso to section 2(y) says that for the purpose of equal wages to all genders — and for the purpose of payment of wages — the emoluments specified in clauses (d), (f), (g) and (h) shall be taken for computation of wage. Those four clauses are conveyance allowance and travelling concession, house rent allowance, remuneration under an award or settlement or court or Tribunal order, and overtime allowance.

So for a section 3 comparison, all four are counted in full. They are not counted in full for minimum wages or for bonus.

The practical consequence is direct. An establishment that audits itself for pay parity on basic pay plus dearness allowance is auditing the wrong number. Where allowance structures differ across roles or grades — and they usually do — a disparity can exist on the section 3 measure that is invisible on the basic-pay measure. The definition of wages under section 2(y) and the 50% rule works through the full component grid.

8. Who decides a dispute? Section 4

Section 4 is one sentence: where there is any dispute as to whether a work is of the same or similar nature for the purposes of section 3, the dispute shall be decided by such authority as may be notified by the appropriate Government.

Its predecessor, section 7(3) of the 1976 Act, routed the same question to the authority already appointed under section 7(1) for hearing claims and complaints. Section 4 of the Code does not tie itself to the claims authority in that way. It leaves the forum to be separately notified.

It has been notified. By Notification No. S.O. 2450(E), dated 12th May 2026, issued under section 4 and in supersession of S.O. 3729(E) dated 17th October 2019, the Central Government notified the authority to decide any dispute as to whether a work is of the same or similar nature for the purposes of section 3, in relation to establishments for which the Central Government is the appropriate Government. The forum is the Deputy Chief Labour Commissioner (Central), and the notification carries a jurisdiction table:

Sl. No.	Officer	Jurisdiction
1	All Deputy Chief Labour Commissioners (Central), office of the Chief Labour Commissioner (Central), New Delhi	The whole of India
2	Deputy Chief Labour Commissioner (Central), Ahmedabad	Gujarat, and the Union Territories of Dadra and Nagar Haveli and Daman and Diu
3	Deputy Chief Labour Commissioner (Central), Ajmer	Rajasthan
4	Deputy Chief Labour Commissioner (Central), Asansol	The civil districts of Bardhaman-East, Bardhaman-West, Birbhum, Bankura and Purulia in West Bengal
5	Deputy Chief Labour Commissioner (Central), Bengaluru	Karnataka
6	Deputy Chief Labour Commissioner (Central), Bhubaneswar	Odisha
7	Deputy Chief Labour Commissioner (Central), Mumbai	Maharashtra, other than the listed Vidarbha, Marathwada and north Maharashtra civil districts, and Goa
8	Deputy Chief Labour Commissioner (Central), Kolkata	West Bengal other than the five districts at Sl. 4, Sikkim, and the Union territory of Andaman and Nicobar Islands

The table continues for the remaining regional offices. It is worth reading before a claim is filed, because the jurisdictions are drawn by civil district rather than by State line in Maharashtra and West Bengal, and the Sl. 1 entry gives every Deputy Chief Labour Commissioner (Central) all-India competence alongside the regional allocations.

One caution for anyone working from the printed commentary. At Para 4.3 it records that “till now no such notification has been issued for prescribing the Authority to decide the dispute”, while Appendix 3 to the same volume reproduces S.O. 2450(E) in full. The two cannot both be right, and the notification — dated two months before the 20th July 2026 cut-off — is the position to act on. Where the appropriate Government is a State, the State’s own notification governs; that position is maintained on Taxmann.com | Research.

9. Case law carried forward

Nearly fifty years of authority accumulated under the 1976 Act and under Article 39(d). Because section 3 re-enacts the same principle in wider terms, most of it continues to inform the analysis. The commentary carries the principal decisions into the discussion of section 3:

Decision	Why it still matters
Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa (1987) 2 SCC 469	The working tests for “same work or work of a similar nature” — broad view, duties actually performed, differences of practical importance.
Air India v. Nergesh Meerza (1981) 4 SCC 335	Article 14 forbids hostile discrimination but not reasonable classification; discrimination on the ground of sex coupled with other considerations stands differently from discrimination on the ground of sex only; and the benefit conferred on women by the 1976 Act was held not to be absolute and unconditional.
Air-India Cabin Crew Assn. v. Yeshaswinee Merchant (2003) 6 SCC 277	Under section 5 of the Equal Remuneration Act, 1976, an early-age retirement policy for air hostesses could not be described as discriminatory conditions of service on the basis of sex alone.
Macarthy’s Ltd. v. Smith 1981 QB 180	On Article 119 of the EEC Treaty: equal pay is not confined to men and women employed contemporaneously, and applies where a woman is paid less than a male predecessor engaged by the same employer on equal work.

A caution on transposition. The section 16 declaration route under the 1976 Act, which featured in Nergesh Meerza, has no counterpart in sections 3 and 4 of the Code. Authority that turned on the existence or effect of such a declaration has to be handled with that in mind. On how far the older case law survives the repeal generally, see what survives the repeal of the four wage Acts.

10. Quick answers

Is the Equal Remuneration Act, 1976 repealed?
Yes, by section 69(1) of the Code on Wages, 2019, with effect from 21st November 2025.

What replaced the Equal Remuneration Act, 1976?
Sections 3 and 4 of the Code on Wages, 2019, read with the definition of “same work or work of a similar nature” in section 2(v).

Does the Code protect transgender persons?
Section 3(1) prohibits discrimination on the ground of gender, which the commentary and the Central Government’s FAQ both read as covering transgender persons. It is the first time the principle of equal pay for equal work has been enacted in India for all three genders.

Does it apply to small establishments?
Yes. There is no exemption from sections 3 and 4 based on the size of the establishment or the number of employees.

Can an employer equalise pay by reducing the higher wage?
No. Section 3(2)(i) prohibits reducing the rate of wages of any employee for the purpose of complying with section 3(1).

Is every pay difference between two employees discrimination?
No. A difference founded on an intelligible differentia such as the nature of the work, working conditions, experience or seniority is not discrimination. It is discrimination only where the differential treatment of similarly placed employees rests on gender alone.

Which allowances count in an equal-pay comparison?
Wages as defined in section 2(y), but with conveyance allowance, house rent allowance, remuneration under an award or settlement, and overtime allowance counted in full, by the second proviso to that clause.

Who decides whether two jobs are of the same or similar nature?
The authority notified by the appropriate Government under section 4. For establishments in the central sphere, that is the Deputy Chief Labour Commissioner (Central), notified by S.O. 2450(E) dated 12th May 2026 in supersession of S.O. 3729(E) dated 17th October 2019, with jurisdiction allocated regionally.

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Sections 3 and 4 are treated across sixteen numbered paragraphs, with the text of the Code set beside sections 4, 5 and 7(3) of the Equal Remuneration Act, 1976, in Taxmann’s Law & Practice Relating to Code on Wages by Sunil Kumar Tripathi, Senior Advocate. The law is stated as on 20th July 2026.

For students and candidates preparing for professional and judicial service examinations, the repealed Acts and their successors are covered in the study material on Taxmann.com | Students. For HR and compliance teams working through the four Codes in sequence, see the certification programmes on Taxmann.com | Learning. Related reading: the Code on Wages 2019 — complete guide.