LAST MONTH, in a public interest litigation (‘PIL’) seeking inclusion of domestic workers under minimum wages notifications, a bench of the Supreme Court dismissed the petition, with the Chief Justice of India (‘CJI’) making several adverse comments against trade unions, projecting them, rather than employers, as the real exploiters of workers. While the CJI’s tirade against trade unionism was alarming and should be critiqued, it were the specific comments on paid domestic workers that continue to demand our immediate attention, given the core issue informing the PIL.
The CJI had remarked that the proposed reforms for domestic workers could drag every household into litigation, and thereby, hamper the hiring of such workers. In his sweeping observations, he had argued that severing the “human connection” and “trust” between employers and domestic workers would unleash unnecessary hardship for “millions of families who treat domestic workers as part of the extended family”.
The presumption that domestic workers are treated like extended kin smacks of an apologia, which basically lends credence to the existing policy framework that strategically denies crores of domestic workers the status of a worker in the legal apparatus. Denied this status, domestic workers are consciously excluded from protective features of the country’s labour laws – a measure that vastly benefits employers. By implying then that domestic workers are treated more like family, it is simply assumed that matters like wages and other working conditions are amicably resolved and best left to employing households. The Supreme Court’s reasoning outrightly privileges the sanctity of the employer’s home and household privacy to conveniently mask the huge exploitation of a workforce comprising largely women and children.
The presumption that domestic workers are treated like extended kin smacks of an apologia, which basically lends credence to the existing policy framework that strategically denies crores of domestic workers the status of a worker in the legal apparatus.
Further, the Court has also presumed that reforms like enforcement of statutory minimum wages will discourage the hiring of such labour. However, irrespective of the presence or lack of state regulation, well-to-do households in urban areas are hugely dependent on domestic workers, either due to compulsion or engrained habit. Indeed, there exists an inherent obligation for the growing number of nuclear families in urban areas to sublet their housework to a domestic worker since both adult male and female family members are in salaried employment.
Even when women from affluent families are not going out to explore the world of professional work, they are unaccustomed to undertaking the drudgery of day-to-day manual housework, with many now taking any such imbued responsibility as an affront. As a society we are confronted with the question of whether a workforce which has become indispensable for running the households of urban upper classes should get their due or not.
Legal conundrum, workers’ precarity
The PIL that was dismissed by the Supreme Court last month was filed in the context of woefully inadequate legislative interventions to regulate the booming sector of paid domestic work in the country. The persistent refusal for regulation by public authority and for legal coverage of domestic workers under key labour laws has been such that successive Indian governments have steered clear of ratifying the International Labour Organization’s Convention 189 of 2011. The said Convention speaks of minimum standards of work, effective complaint mechanisms and compliance with legislation, labour inspection, and so on. Indian authorities argue that although the government has not ratified Convention 189, there have been concerted efforts to include domestic workers within the ambit of existing labour laws. However, the mere inclusion in labour law is not an indicator per se of the actual legal coverage attained by domestic workers.
Take for instance the fact that states like Andhra Pradesh, Karnataka, Tamil Nadu and a few others have brought domestic workers under the purview of one of the general labour laws of the country, namely, the Minimum Wages Act. Unfortunately, poor enforcement is inbuilt in such measures since the employer–employee relation itself remains unregulated due to the prevailing inconsistencies of the labour law regime. The inconsistencies are reflected in the fact that domestic workers do not fall within the purview of several other crucial labour laws which formalize the existence of an employer–employee relationship and facilitate their regulation by the state.
These include legislations on trade unions, disputes redressal, unfair dismissal, payment of wages, and so on, which still do not recognize domestic workers as workers. Needless to say, the legal recognition of minimum wages for domestic workers implies that the workforce be logically included within other statutory laws; thereby, making expansive amendments to all crucial labour laws an imperative. However, the marked exclusion of domestic workers persists in the new Labour Codes.
Importantly, the growing call for a separate legislation for domestic workers has also proven a dead end. There are tangible problems with these separate legislations. For example, the majority of domestic workers have gained negligible relief under laws like the Domestic Workers’ Welfare Board Act (enacted in a few states), and the Unorganized Workers’ Social Security Act (a central act which now stands superseded by the Code on Social Security, 2020). More than poor implementation of such legislations, the problem actually lies in its foundational logic.
Welfarist laws strategically limit state intervention to the provision of welfare measures without touching the employer-employee relation. Denied of legal subject-hood as workers due to numerous inconsistencies within labour laws, domestic workers ultimately gain little by being made legal recipients of state welfare. To access welfare, the workers themselves need to be in a position to force administrative agencies to implement welfare provisions, and for this, workers’ self-organization is essential. However, the current labour law regime makes it exceedingly difficult for domestic workers to organize on the ground as they are neither included in the Trade Unions Act, 1926 nor in the Industrial Disputes Act, 1947; both of which are now superseded by the Industrial Relations Code, 2020, that continues to maintain the status quo. Denied a legal subjecthood in existing laws, welfare schemes and welfarist legislation have provided little respite as these measures tend to reduce labour to a mere beneficiary rather than a rights-holder.
Private work, public apathy
Given that the public authority refuses to regulate the employer-employee relationship in paid domestic work, a highly privatized workplace is incessantly reinforced. Employers enjoy an upper-hand in wage fixation and in fixing other terms of the work arrangement. Despite working in several households, earnings remain dismally low, which breeds immense vulnerability and the scope to compromise with oppressive working conditions.
This vicious circle is linked to the fact that employing households have no legal compulsion to calculate the wage for per hour of work performed in proportion to minimum wages routinely notified for unskilled and semi-skilled work. Ultimately, employers possess massive private authority to extract obligations from the workers, including tasks which often go beyond what is initially negotiated during the hiring process. Against this harsh reality, it is alarming that the CJI projected minimum wage protection as a measure that stands to harm domestic workers.
Minimum wage is the bare minimum for any worker’s basic subsistence. In fact, in modern society, minimum wage is crucial to differentiate a worker from earlier forms of labour servitude like slavery. It is based on quantifiable time, which is calculated on the basis of a clearly defined workday. However, despite fulfilling the workday of eight/nine hours, and often more, most part-time domestic workers earn less than minimum wages.
More disturbing are fulltime live-in domestic work arrangements wherein employers expect the worker to be available virtually around the clock. There is no start and end time to the work. Such domestic workers are at the beck and call of employers, even when they are not actively occupied with performing tasks. In this way, they are always on standby. Correspondingly, many live-in domestic workers are restricted by their employers as to when they can leave the household, and for how long. Even during their daily or weekly rest, if any, employers often do not allow domestic workers to leave the household. In real terms, when a full-time domestic worker enters into the home of her employer, she becomes isolated and invisible to the outside world.
With employers’ homes constituting literally a black-hole with precious little actually filtering out in terms of information, the nearly absolute invisibilization of the 24X7 domestic worker breeds intense vulnerability to varied forms of verbal and physical abuse, including sexual violence. State agencies often generate rather conservative estimates of the number of domestic workers, mostly because full-time domestic workers who live with their employers have no public presence, and thus, due to their ‘invisibility’ can easily not be counted. Due to this pervasive invisibilization of fulltime domestic workers, even the enactment of and the ability to avail relief under existing labour welfare schemes and laws like the Prevention of Sexual Harassment in the Workplace (Prevention, Prohibition and Redressal) Act are intrinsically almost always compromised.
Overall, the work regimen of the fulltime domestic worker is unpredictable, open-ended, and spread-out so as to be longer than what is considered a normal workday; in the world of work, the 24X7 domestic worker is perhaps the only kind of worker whose working hours have no limit. Needless to say, the applicability of wage for overtime does not arise if they are not included in minimum wage notifications. Such workers are perpetually victims of wage theft.
Despite fulfilling the workday of eight/nine hours, and often more, most part-time domestic workers earn less than minimum wages.
Invisible workers, justice awaited
It is essentially the compulsion to work despite a significant portion of labour going unpaid, or no payment for overtime, that brings part-time, and particularly, full-time live-in paid domestic work within the ambit of forced labour as prohibited under Article 23 of the Indian Constitution. Several landmark judicial interventions, like in PUDR v. Union of India (1982), Sanjit Roy v. State of Rajasthan (1983), or Bandhua Mukti Morcha v. Union of India (1984), have amply upheld that when workers are paid less than minimum wage, it constitutes forced labour, noting that Article 23 had a wide scope which encompassed a broad spectrum of exploitative work arrangements. The decisions emphasized that the word ‘forced’ must be construed to include not only physical or legal force, but also force arising from the compulsion of economic circumstances. In other words, dire economic circumstances breed no choice of alternatives, forcing those in distress to provide labour service despite wage theft and even when remuneration received is less than the minimum wage.
Unfortunately, there remains a marked unwillingness of the Indian state to regulate paid domestic work, especially to prohibit full-time paid domestic work arrangements where the concept of the normal workday is entirely missing and the cloistered existence of the worker makes employer-employee relations impossible to regulate.
If the Supreme Court had upheld the principle of parity in labour rights and recognized the right to a minimum wage for a domestic worker, the scope for prohibition of 24X7 domestic work arrangements could have increasingly emerged. Considering that minimum wages are calculated only on the basis of a quantifiable, legally stipulated work day, arrangements that tie down a domestic worker to unquantifiable hours of work for an employing household could steadily be brought under public scrutiny. In legal terms, the reform harbors the propensity to facilitate the replacement of over-exploitative fulltime domestic work arrangements with part-time or eight/nine-hour workday arrangements, with households requiring paid domestic work for more than the legally stipulated workday being legally compelled to hire domestic workers on shift basis.
A policy paralysis clearly prevails, and is complicated by the larger paradigmatic moment of growing deregulation. There is now an emerging consolidated consensus among the ruling elites that the state should withdraw altogether from regulation so as to facilitate the ‘ease of doing business’. Tragically, it appears that the Supreme Court too has joined the chorus.