Tejaswini U a 4th-year B.A. LL.B. (Hons.) Law Student, School of Excellence in Law, TNDALU, Chennai has written this article explaining How the law is affecting domestic workers in India?
Domestic workers are amongst the most exploited classes of workers. Approximately, over 5 million people in India are engaged as domestic workers, most of whom are women. Children too are a part of this workforce; nearly 2,00,000 minors are estimated to be employed as help. With a growing urban middle class, the demand for domestic workers is only increasing.
One of the biggest challenges for domestic workers is the lack of economic security, which the nature of their employment subjects them to. In the likelihood of any illness, injury, or economic needs of their family, they are under the heels of their employers, who offer them aid only as a favour.
The situation is worse for those employees who are compelled to continue working in abusive and unfavourable spaces for fear of losing their only source of income. Considering the number of workers who are engaged in domestic work and are currently excluded from such basic protection, the formulation of adequate schemes for bringing them within the fold of social security is of utmost importance.
However, owing to the peculiar and diverse nature of their work, the regulation of domestic workers is fraught with difficulties. In India, such efforts have largely been scattered. We are in dire need of specific regulations that can tackle the inherent problems unique to domestic workers and reduce the barriers associated with the implementation of labour laws in this sector.
II. DEFINITION AND SCOPE OF DOMESTIC WORK:
According to the International Labour Organisation (ILO), Domestic work is defined as “work performed in or for a household or households”. Domestic workers are those who are employed to perform these tasks. It thus entails an exchange of services for remuneration, and should therefore be accorded the same status as any other form of paid employment within the economy and be regulated by appropriate legislation. This may seem like a straightforward proposition. However, understanding the exact nature and scope of domestic work is extremely difficult, given that there is no uniformity – either in the nature of work, the conditions and terms of work, or even in the nature of employment relations.
In a welfare law, entitlement to benefits often depends solely on the definition clause. A particular class of workers may be denied benefits under an Act because of a narrow definition clause. It is, therefore, essential to maximise the scope of the definition and include within its domain, the diverse activities that constitute domestic work. It must be determined whether domestic work ought to be confined to work which is limited strictly to the household or should extend.
Extending the definition of domestic worker beyond the traditional understanding, may extend the protection to workers outside the classic definition but are in as much need of protection. Moreover, a broad definition will also help in the better collection of statistics as classes of workers will not be excluded based on the technicalities of the definition.
III. PROBLEMS FACED BY DOMESTIC WORKERS:
The problems faced by domestic workers are wide and diverse. In order to ensure effective safeguards for them, it is indispensable to find out and understand the vulnerabilities of the domestic workers and their problems. Most issues faced by domestic workers substantially fall under the below-mentioned five categories.
First, the absence of collective bargaining, along with a large supply of workers, has resulted in low wages for domestic workers. This merely benefits the relatively well-off employer at the cost of the vulnerable domestic workers. Most domestic workers are paid deplorable wages despite long working hours.
Secondly, domestic workers in India often face abuse in their workplace. Generally, in India, people belonging to the lower strata are unaware of their rights and remedies. Given their dependence on wages for basic subsistence, there is little to no choice but to tolerate exploitative working conditions.
Thirdly, there is a lack of skill development in domestic workers. With the increasing modernisation in India, the problems faced by domestic workers might aggravate. Hence it becomes significant to develop skills side-by-side.
Fourthly, domestic workers in India are usually subjected to discrimination– both caste and class discrimination. Employing servants reinforces discriminatory behaviour. The fact that these workers mostly come from marginalised sections of the society, subjects them to further socio-economic discrimination. This in turn leads to the harsh and exploitative treatment meted out to the domestic worker.
Lastly, domestic workers lack any form of social security due to a lack of formal law in action. Like most workers in informal sectors, domestic workers have little or no access to social security such as healthcare benefits, unemployment protection or maternity benefits. With wages for domestic work often below minimum wage, the lack of social security has a paralysing effect on their livelihood in case of health issues and so on.
IV. THE EXISTING LEGAL FRAMEWORK:
There is a lack of adequate legislation or law to regulate the service conditions of domestic workers in India. Despite having voted for ILO’s Domestic Workers Convention, 2011, India has not ratified it.
A) Attempts by Legislature
The earliest attempt to have a national law regulating the services of domestic workers dates back to the Domestic Worker (Conditions of Service) Bill, 1959 and the House Workers (Conditions of Service) Bill, 1989. However, these bills never sparked any important discourse and were never enacted. The first concrete attempt was made when the Housemaids and Domestic Workers (Conditions of Service and Welfare Bill), 2004, was introduced in the Rajya Sabha as a private member’s bill. This bill was not passed as well.
Later, in 2009 the Government of India constituted a task force for domestic workers, entrusted with making recommendations for a policy framework. It came up with several reports and recommendations. The draft national policy for domestic workers calls for promoting awareness of domestic work as a “legitimate labour market activity” recommending amendments to existing labour laws, such that domestic workers benefit from labour rights that other workers enjoy.
In this backdrop, there have been a few steps taken by the government, whereby it seeks to extend the application of a few formal sector laws to include domestic workers– those relating to minimum wages, sexual harassment, unorganised workers’ as well as welfare schemes adopted by the government. There have been certain legislative attempts by Tamil Nadu and Maharashtra to provide social security and the safety of the workplace for domestic workers. All these attempts seem to have brought the issues plaguing the sector to the forefront, with some progress being made.
B) Attempts by Judiciary
The judiciary has taken cognizance of the plight of domestic workers in the absence of concrete law to protect their rights. The Delhi High Court in Bachpan Bachao vs. Union of India attempted to fill the lacuna in the legislature by recommending guidelines to the Child Welfare Committee and the Delhi Commission for Women that, inter alia, grant some social security to domestic workers. However, these guidelines, which have been adopted through executive orders, are under legislation focusing on women and children in Delhi restricting the number of domestic workers that they could apply to.
Taking a stern stand against states that have not initiated the registration of domestic workers under the Unorganised Workers Social Security Act, 2008, the Supreme Court in Shramjeevi Mahila Samiti vs. State of NCT of Delhiordered the Centre not to disburse further grants to such states. The Apex court also observed that not only should domestic workers be registered but they should also be issued identity cards.
C) The Shortfall in the Legislative Approach
The legislative response has been grossly inadequate, and even small attempts such as inclusion have been ineffective. There are fundamental shortcomings in the policy approach. First, the state has been unwilling to legislate for the sector, as can be attributed to the lack of incentive and the apprehension of intervening within the private sphere. Second, its attempts at extending the existing laws to the sector reflect a lack of understanding of the peculiarities of domestic work, and its nature, which cannot be accommodated within laws designed for public employment. To avoid an imposition with inadequate protections at best and disastrous consequences at worst, an in-depth understanding of the ‘worker’ and the ‘workplace’ in the context of domestic work has to inform any legislative intervention.
V. SUGGESTED SOLUTIONS:
Domestic Workers face major economic, physical and sexual harassment with little or no recourse due to the cumulative impact of lack of specialised legislation, lack of awareness of applicable legislation and inefficient implementation of existing legislation. After comprehending the major problems faced by domestic workers and the international standard practice, it is evident that we need separate legislation and regulatory mechanism addressing the problems of domestic workers.
Ensuring access to social security is mandatory to reduce the economic and social vulnerabilities of the domestic worker. At the same time, to ensure access of domestic workers to social security, additional measures need to be introduced, which will reduce barriers to the implementation of social security.
Some of the proposed solutions are as follows–
- Comprehensive and suitable legislation for domestic workers.
- Funding for Social Security of Domestic Workers.
- Establishment of Welfare Boards in line with initiatives taken by the Governments of Tamil Nadu and Maharashtra.
- Regulating intermediaries to ensure that domestic workers employed through placement agencies will also have the right to avail of welfare measures.
- Government should institute a nationwide skill-training program that could provide an alternative to domestic work. Ensuring alternate employment would reduce the oversupply of domestic workers.
- Widespread public awareness of the law related to domestic workers is a recognised standard requirement.
- Unionisation is a recognised global practice to improve the bargaining power of domestic workers, which in turn improves wages and gives other economic benefits through the market mechanism. The role of unions in the improvement of social security for domestic workers has also been adequately recognised.
In the long run, substantial changes in the policies of the Government vis-a-vis domestic workers are required. The intense competition among domestic workers ought to be tempered and regulated. Otherwise, any regulation to formalise the sector is doubtful. For example, after minimum wages are notified a demand for the same by a domestic worker would probably lead to her being replaced by another worker willing to work for lesser wages.
While addressing concerns of domestic workers, those employed in rural/semi-urban households should also be taken into consideration. Proper implementation of initiatives focusing on the development of rural areas, like the Mahatma Gandhi National Rural Employment Guarantee and Pradhan Mantri Gram Sadak Yojana, should reduce urban migration, consequently reducing the intense competition amongst domestic workers. Implementation of universal social security schemes such as food security, free healthcare, free education would be immensely beneficial for domestic workers, both in rural and urban areas. The problems faced by domestic workers cannot be tackled in isolation. They must go hand in hand with other socio-economic welfare measures.
 Decent Work for Domestic Workers, Human Rights Watch (July 20, 2009) (Available at: https://www.hrw.org/ news/2009/07/20/decent-work-domestic-workers#_ftn1).
 Where are the Laws to Protect the Rights of Domestic Workers in India? Economic and Political Weekly Engage (2018) (Available at: https://www.epw.in/engage/article/domestic-workers-rights).
 Convention on Domestic Workers, 2011 (No. 189).
 Neetha N. & Rajni Palriwala, The Absence of State Law: Domestic Workers in India (2011).
 National Commission for Enterprise in the Unorganised Sector, Report on Conditions of Work and Promotion of Livelihoods in the Unorganised Sector (2007).
 Director General Labour Welfare, Ministry of Labour and Employment, Final Report of the Task Force on Domestic Workers (2011).
 Sampath G, Who will help India’s Domestic Helps? LiveMint (2013) (Available at: https://www.livemint.com/Opinion/Bj0ZhynE5rIO3zF3KntzkL/Who-will-help-Indias-domestic-helps.html)
 India: Domestic Workers, Anti-Slavery Organisation (Available at: https://www.antislavery.org/what-we-do/where-we-work/india-domestic-workers/).
 Unionizing Domestic Workers: Case Study of the INTUC- Karnataka Domestic Workers Congress, International Labour Organisation, Geneva (2013).
 International Labour Organisation, C189 – Domestic Workers Convention, 2011 (No. 189) (Available at: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11310:0::NO:11310:P11310_INSTRUMENTID:2551460:NO).
 Housemaids and Domestic Workers (Conditions of Service and Welfare Bill), 2004: This Bill was never enacted.
 Director General Labour Welfare, Ministry of Labour and Employment, Final Report of the Task Force on Domestic Workers (2011).
 Minimum Wages Act, 1948
 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
 The Unorganized Workers’ Social Security Act, 2008. It includes within its ambit domestic workers.
 Schemes like the like Indira Gandhi National Old Age Pension Scheme, National Family Benefit Scheme, Janani Suraksha Yojana and Janshree Bima Yojana.
 The Tamil Nadu Government established the Tamil Nadu Domestic Workers Welfare Board in January, 2007 bringing domestic workers under the Tamil Nadu Manual Wages Act, 1982.
 The Maharashtra Domestic Workers Welfare Board Act, 2008 accords the State Government the power to establish District Domestic Labour Welfare Board.
 (2011) 177 DLT 198
 Petition for Special Leave to Appeal No(s). 150/2012