Mr. HIMANSHI BHATIA,
Law Centre 2, Faculty of Law, University of Delhi
Mr. VAIBHAV KARADALE,
Law Centre 2, Faculty of Law, University of Delhi
India, on its way to becoming the most populous nation in the world, consequently harbours a substantial workforce. Formal economy struggling with unemployment propels the workers towards the unorganized sector. Within this sector, standing at the last pedestal are workers engaged in domestic work. Non-recognition by various statutes under labour law as right-bearing workers amplifies the hardships suffered at the hands of their employer. One of the reasons behind their exclusion from Indian labour laws is not considering domestic work as legitimate ‘labour’ or ‘work’. Society conveniently overlooks their service as benevolence from their end. This paper deals with the position of such unnoticed workforce within Indian demography by consolidating their issues, social standing and laws which discusses their plight. A draft named National Policy for Domestic Workers (2016), a significant step towards the legitimacy of domestic workers under various labour laws is under consideration by the Government even after four years of its formulation. Neither international statutes with non-binding conventions nor legislations under municipal law are sufficient for redressal of their grievances and force them to sustain such a vulnerable state of work. Unless there is comprehensive legislation entitling them as “Right-bearing Workers”, mainstream Acts or authorities will be unable to reciprocate benefits of minimum wages, social security etc.
Keywords: Domestic Workers, ILO, Slavery, Caste, Gender, Undervalued, Legislations
Domestic work, an amalgamation of seemingly unimportant tasks in the upkeep of the dwelling house, which lies outside the purview of the traditional definition of labour, nonetheless has been a vital part of human productivity since settlements of civilization. The lack of a well-knit safety net of legislative protection for the unorganized sector in general and domestic workers, in particular, has been exposed by the Covid-19 pandemic of 2020. These workers who are perceived as disease carriers are deprived of their right to work due to fear of compromising the safety of the household.
As per the International Labour Organization (ILO) Convention number 189 on Domestic Workers, ‘domestic worker’ means, “… any person engaged in domestic work within an employment relationship”. Further, the International Standard Industrial Classification (ISIC), categorizes the activities of households as employers of domestic personnel to include “… maids, cooks, waiters, valets, butlers, laundresses, gardeners, gatekeepers, stable-lads, chauffeurs, caretakers, governesses, babysitters, tutors, secretaries, etc.” (Division 97, Revision 4.0).
Post-Independence, various central legislations were being passed dealing with the labour laws which defined the employer-employee relationship along with pre-defined rights and liabilities in case of crisis. The large proportion of the unorganized domestic workforce is still not considered under major labour law reforms of the country. Most of the workers of this sector are not protected by any type of social or economic contingencies. This situation has exposed their life to all sorts of vulnerabilities.
This paper takes cognizance of these issues and analyses various initiatives taken up by the State, working towards the betterment of domestic workers. This paper is divided into three parts, first deals with challenges followed by legislative protection provided. Last part discusses judicial pronouncement remedying shortcomings of the legislative enactments.
Inherent Issues of Domestic Workers
Domestic work is performed predominantly by women of the household. Social and economic upliftment and privileges lead to the delegation of such work to labourers. The considered unimportance of the work puts these workers on the lower side of the hierarchy in the labour sector, and they are subject to exploitation through various means. Few of the problems can be listed as-
The roots of domestic work can be traced back to slavery that was existent globally, and in the modern world, the traces of it still remain. Slavery pertains to long hours of work with no pay, restriction on movement and free will. In domestic workers, especially of those who have migrated to other countries and lack security by the State, parallels are drawn with slavery because they are vulnerable to physical and psychological violence along with harsh working conditions. This bonded labour is higher in women and young children who are victims of human trafficking worldwide.
Caste has been part and parcel of every work or job performed in India until recently. This system has dictated what jobs are to be performed by whom or which community. It also permeates into the domestic work sector where the tasks are distributed on the lines of caste, and it leads to differentiation not only in the form of remuneration but also in the employee-employer contracts and their relations. This diversity in the conditions of workers means there is non-uniform exploitation, and one size fits all solutions would not suffice. Although exposure to urbanization is withering away the issue of casteism, nevertheless it is snail-paced.
According to the International Labour Office, among the 67 million estimated domestic workers globally, approximately 80 percent are women. In India as per NSSO 2011-12, Employment-Unemployment Survey out of 4.1 million domestic workers 68% were women. A sector which is feminized to this extent is further intertwined with the caste system prevalent in India. It results in multitudes of complex sets of problems for the female domestic workforce who in essence are enablers of women employers, where women can perform better at their respective workplaces without being dragged down by responsibilities of housework. However, the ones who empower are disqualified from the benefits of such progress. Due to low wages, a worker works several households, and therefore, her own house and children are deprived of the attention and care. Indian legislators while formulating policies for workers fall short to of including gender aspects, for example, Maternity Benefits Act, 1961 does not extend to domestic workers.
Crimes against domestic workers
Owing to poverty, illiteracy and being part of lower strata of the society, there is discriminatory treatment towards domestic workers. Migrating workers are the prime victims of human trafficking and related crimes. The administration has taken steps such as police verification of workers to curb the crimes in cities, which is not a viable solution. Similarly, police verification does not protect an employee from the crimes committed by the employer, which is even more widespread problem. There are many mechanisms in place for redressal of grievances in organised sector, but the unorganized sector is desolate of similar arrangements. Women workers are victims of sexual harassment not only in physical but also in verbal, non-verbal and visual forms. The severity of such assault is high towards workers who reside in the employer’s house. There is also underreporting of cases due to stigma and threats of loss of employment.
Recognition of work
Domestic workers are part of an unorganized workforce which is in hindsight of legislation and municipal laws. They are not recognized as workmen by the law and hence are not entitled to benefits flowing from there. The employing household is also out of the ambit of definition of establishment. There is no single category to define domestic work which incorporates all jobs performed as a domestic worker. It is evident from discrepancies present in the estimation of the total number of domestic workers in India. There are various estimates with significant differences which create ambiguity in the definition of domestic work. Solving a problem without knowing the structural extent of it leads to inadequate policies which seem to be the case of domestic workers.
Undervaluation of work
The continued undervaluation done for unpaid work by women is reflected in lower wages of domestic workers. Further, employer-employee relation in domestic work is between two unequal parties, and it is asymmetric in nature. This leads to the underpayment of the labour of work done. There is also discrimination based on gender, wherein, the skills of women are given less valuation than that of men. Legislation like Equal Remuneration Act, 1976 does not apply to domestic work, where each performed job (e.g. cooking, cleaning, gardening) is different and not properly categorized. Again, each household is a different establishment, which renders the Act ineffective. Domestic work is not considered as skilled work, which if performed similarly under formal economy is highly remunerative. There are no reliable methods for quantification of work done unlike their counterparts in the formal economy. Therefore domestic workers have the most irrational and inconsistent payment of wages.
Legislative History of Domestic Workers
“The Domestic Workers Convention (Convention No 189) adopted by the International Labour Organization (ILO) coincided with a renewed campaign to have national-level legislation and policy dealing with domestic workers in India. A central question in debates across the country has been whether to focus on expanding the coverage of existing labour laws to include domestic workers or to have single sector-specific legislation at the national level addressing the working conditions, social security, wage rates and employment relations of domestic workers. Domestic workers are now partially covered in some central- and state-level legislation. At the central level, the most recent legislation that also covers domestic workers is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Earlier the Unorganized Workers Social Security Act, 2008 had expressly included the domestic workers”.
A comprehensive law for domestic workers covering all aspects of their working conditions is yet to be enacted. However, the debates on legislative protection for domestic workers has focused unduly on labour laws, ignoring the discussions on the valuation of unpaid care and domestic labour performed by women in the household. The consequences of such lack of recognition and valuation of unpaid work, affects the determination of wage rate for the domestic workers.
Protection under International Statutes
ILO, as well as the United Nation, has enacted various international conventions and agreements to formalize the domestic workforce at a global level. As we can notice, there’s a large influx of Indian domestic workers in Gulf countries due to better employment opportunities, but there was dire need to enact laws for unorganized domestic workers at the international level to safeguard them from human rights violation at a foreign land. Two major conventions which cover domestic workers as well are–
United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990
In consonance with ILO conventions, on 18th December 1990, this convention was adopted by resolution of the General Assembly. To recognize the hardships of the migrant workers and their families’ experience away from their home country is one of the major objectives of this instrument. Domestic workers are considered within the ambit of Part III of the convention, specifically dealing with human rights. Further in Article 27 and 28, the convention also guarantees equality with nationals in case of social security protections and medical care in case of sickness, respectively.
The International Labour Organization Domestic Workers Convention, 2015
The 100th session of the ILO adopted a convention for recognizing domestic workers particularly along with it observed 16th June as the International Domestic Workers Day. The main objective behind this convention was to consider the fact that domestic workers continue to be undervalued and invisible and also considering that in developing countries with scarce resources for formal employment, domestic workers constitute the major part of the national workforce and remain the most marginalized sect.
Article 4 of the convention set the minimum age for domestic workers in consonance with the Minimum Age Convention,1973 and The Worst Forms of Child Labour Convention, 1999. It has provided various kinds of protection concerning abolishment of child labour, discrimination, freedom of association and elimination of forced labour.
It is pertinent to note that major developed countries have not ratified these conventions till now, which is a matter of concern as such inaction is a clear reflection of disregard to the protection of domestic workers.
Legislative Framework – Indian Context
After independence, India passed many legislations in the area of labour laws pertaining to the organized sector. However, within the unorganized sector, domestic workers are still in the grey area of legislation. They are not included within the definition of ‘workman’ or ‘establishment’ under the major labour laws of the country. Some of the acts which touch upon the issue of this sect are minuscule in number which hardly addresses the major concerns of the domestic workers. Nevertheless, the protection granted by certain legislation in municipal law are as follows:
Minimum Wages Act, 1948
This Act applies to 45 occupations which do not include domestic workers. However, there is a proviso to this application in the form of amendments by various states like Karnataka, Kerala, Tamil Nadu, Bihar, Andhra Pradesh and Rajasthan. These states have provided a minimum specified wage rate for domestic workers.
Rashtriya Swasthya Bima Yojana
Above stated, the national health insurance plan provides health insurance coverage to below poverty line families extending it to domestic workers and their families as well. This scheme was launched in 2007.
Unorganized Workers Social Security Act, 2008
This Act was enacted to provide social protection to the unorganized sector, specifically. Domestic workers are included within the definition clause of the Act and even recommended formulation of National Social Security Board as well as the State Social Security Board in respective states. The Act has been criticized for not defining the minimum social security level that is enforceable by law and for not providing institutional powers to ensure effective implementation.
Draft on Domestic Workers Welfare and Social Security, 2010
This draft bill deals with the working conditions and issues of domestic workers. It deals with the formulation of the Central, State and Domestic Level Advisory Committee Board for the implementation of the Act at the grass-root level. In addition to this, it prescribes the procedure for the registration of the domestic workers, a step towards formalization of this sect. It also recommends the establishment of domestic workers welfare fund with domestic workers as it’s beneficiaries. However, it has been a decade now, and there’s not much progress in accordance with the draft
Task Force for Domestic Workers
Under the initiative taken up by the Ministry of Labour and Employment, a task force was set up to deliberate on the issues related to welfare and regulatory measures for promoting decent work for domestic workers. This was set up in 2009 and after undergoing various meetings and study came up with the recommendations for the Government to adopt a national policy on domestic workers in order to lay down certain minimum conditions for domestic workers at pan India level.
National Policy on Domestic Workers
This policy formulated by the Government of India envisages a minimum salary of 9000 rupees per month in case of full-time household help apart from other benefits like mandatory leave. For domestic workers working abroad, the Draft National Policy bars India from offering more favourable treatment under bilateral or multilateral schemes. Though Policy is still under consideration and has not been passed yet.
Judicial Dictum For Domestic Workers
Domestic Workers are excluded from the legislation across many countries, including India. Therefore, various judicial petitions have been sought before judicial courts to seek justice for this particular sector. And the judiciary has given various pronouncements dealing with the plea of domestic workers.
National Domestic Workers Welfare Trust v. Union of India
This petition seeks the enactment of comprehensive legislation to protect the service conditions of workers across the country. It addressed domestic workers issues and sought directions for a minimum level of protection to domestic workers as guaranteed under the Constitution of India, which would include:
- Comprehensive legislation for the protection of rights of domestic workers
- Minimum wage for domestic workers
- Schemes for benefits of domestic workers such as payment of wages, weekly holidays and medical assistance
- Safety of women and children employed as domestic workers
In response to this petition, the Central Government has submitted that the Unorganized Workers Bill, 2004 will include provisions for safety and social security of domestic workers as well. As prior to this petition, Domestic Workers were not included in the schedule of employment in the Unorganized Sector Workers Bill, 2004.
Delhi Domestic Working Women’s Forum v. Union of India
This PIL invokes the benign provision of Article 32 of the Constitution of India, at the instance of the petitioner to espouse the plight of four domestic workers subjected to sexual assault committed by seven army personnel. In this regard, the court ordered various provisions, including compensation and legal assistance to the victim workers. Thereupon, Union of India was asked to take necessary steps for the implementation of the welfare scheme for such vulnerable sects.
National Domestic Workers Welfare Trust v. State of Jharkhand 
This petition put forward the loopholes in the implementation of the schemes floated under the Unorganized Workers Social Security Act, 2008 by the State Government of Jharkhand. Even when the Central Government provided adequate financial assistance, there was not much progress concerning schemes in the State.
Therefore, the court passed various orders to initiate the implementation of the schemes and constitution of the Social Security Board as prescribed under Article 6 of the Act.
There are many similar judgements passed by the different courts of the country for the cause of social justice to domestic workers along with an unorganized workforce. However, still there’s a persistent violation of human rights against such vulnerable sectors on the behest of their masters. Some of the basic working conditions and minimum wages are not given to them despite various legislations and judgement across many decades.
The Way Forward: Concluding Remarks
The emergence of the COVID-19 pandemic has aggravated the already existing plethora of issues faced by domestic workers. The pandemic led unemployment forcing them to reverse migrate indicates the failure of the administration. Exclusion of domestic workers as a group from the ambit of country’s labour legislation weakens their position vis-a-vis other workers. The coverage of general labour legislation extends to only 10 percent of all domestic workers.
However, the working condition issues can be resolved by incorporating domestic workers within the scope of existing legislation by amending them. The gap between State-led legislations and central legislations should not be violative of the minimum protection conferred by the International standards.
One of the primary concerns associated with female domestic workers is the benefit of maternity leave. There can be an extension of The Maternity Benefits Act, 1961 to include domestic workers as prescribed under Article 14(1) of ILO Convention No. 189 which states “that domestic workers enjoy conditions that are not less favourable than those applicable to workers generally in respect of social security protection, including with respect to maternity” Even after long working hours the workers are not entitled to minimum wages because the Minimum Wages Act, 1948 does not recognize domestic workers as the beneficiary occupation. It shall be made in consonance with global benchmarks.
Recently, “National Platform for Domestic Workers” submitted a draft bill for Domestic Workers Regulation of Work and Social Security Bill, 2016 with few recommendations as compulsory registration with the District Board of both employer and employee and mandating the collection of cess from the employer for maintenance of social security fund etc. It fulfils dual objectives of police verification and prevents prejudiced depiction of domestic workers as criminals, empowering them as right bearing workers. Policy mindset regarding workers should be shifted from the law order paradigm to workers right.
ILO Domestic Workers Conventions 2015 is a comprehensive tool which enables nations in preparing inclusive legislations. Its ratification by countries and incorporation of the same in the municipal laws will serve the need of the hour. The country, like the Philippines, although being a developing nation was the second member to ratify the convention and has passed the exemplary “Batas Kasambahay” (Domestic Workers Act). The countries which are trailing behind can follow such steps for upliftment and protection of Domestic Workers. With the enactment of National Policy on Domestic Workers in the near future, India can establish social security of its vulnerable section.
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