Domestic work: A bleak reality of missing laws and inadequate rights

The recent shocking incident of abuse of a domestic worker by her employer in Noida has raised concerns about domestic worker rights in India and the need for a legislative framework to protect workers of the unorganised sector.

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REPORTS of members of rich Indian households violently assaulting and mistreating domestic workers in urban areas are rampantly growing. A recent viral case that sparked controversy was of a woman who was seen thrashing and yanking a domestic worker out of an elevator at the posh Cleo County Society in Sector 120 of Noida.

Anita, a 20-year-old woman, was employed as a domestic worker by the accused Shaifali Kaul, a resident of the Cleo County Society. According to reports, six months into her employment with Kaul, Anita had been regularly subjected to physical abuse. Whenever, the domestic help attempted to go back to her own house after being subjected to physical assault at the employer's residence, Kaul would further brutally attack her. The assault footage has now become public, and a first information report has been filed against the employer.

Kaul, a lawyer, has been accused of violating the Indian Penal Code by imprisoning Anita for longer than 10 days, hurting her voluntarily, and insulting her. Reports suggest that Kaul was taken into custody after Anita's father filed a police complaint. The father alleged that his daughter was working for Kaul even after her contract had expired on October 31 of last year. However, Kaul continued to make her do all the household chores. She would also regularly hit her if she refused to work.

Kaul, in her defence, said that the claims were made up, and that the domestic help recruited from a private agency "resorted to drama" because she owed her Rs. 50,000. The Cleo County resident said the worker had drugged her to steal money.

This case has raised concerns about domestic worker rights in India and the need for a legislative framework to protect workers of the unorganised sector. Numerous underprivileged Indian women switched to domestic work for a reliable source of money. Data for this disorganised and unrewarding profession remains sketchy.

Despite offering necessary services, domestic workers lack access to rights and protection. They are also susceptible to harassment, assault, and restrictions on their freedom of movement. The informality in this sector is due to implementation issues and loopholes in national labour and social security laws.

Who are domestic workers?

According to the International Labour Organization ('ILO'), "Domestic work refers to housework such as sweeping, cleaning utensils, washing clothes, cooking, caring for children and such other work which is carried out for an employer for remuneration."

In India, there are primarily two categories of domestic employees – part-time domestic workers and live-in workers. Domestic work is a wide concept that incorporates all tasks performed at home. Despite the fact that it is a low-skilled profession, it necessitates a wide range of skills and administrative abilities.

Some definitions of domestic work are wider and include jobs like gardeners, drivers, and watchmen. Domestic work also involves caring for the elderly, and providing childcare and housekeeping. There is another hierarchy among these jobs that correspond to caste-based views on impurity and untouchability.

Domestic workers play a crucial role in the economy and the labour market. Women across India, primarily impoverished women, undertake the majority of the household work. Even if the concept of domestic helpers is easy enough to grasp, there are a number of issues such as working conditions, wage standards, pay for overtime work, retirement and health care benefits, and workers' compensation that should be highlighted. The sharp drop in agrarian yield and rural livelihood security has resulted in rural people migrating to cities and switching to domestic labour.

Also read: Displacement and livelihood of industrial workers on the periphery of Delhi: Case study of workers in Narela Industrial Estate

What is the condition of domestic workers in India?

Domestic employees are not even recognised as 'workers' in society; their contributions are not recognized as 'productive labour' that contributes to the nation's economic prosperity. Women employees are particularly harmed by this notion since it essentially makes their job an inherent responsibility toward society. They have been referred to as 'domestic helpers' for a long time instead of 'workers'.

A study by Women in Informal Employment: Globalizing and Organizing, a global research-policy network, claims that domestic work is the lowest-paid of all the informal trades in India. India's official estimates put the number of domestic workers at 4.75 million. Additionally, vulnerable groups like women and minors in India make up 80 per cent of the domestic work industry.

Many workers also face the humiliation of having no or limited access to proper sanitation facilities. The significant disparity in socioeconomic reality between domestic employees and their employers creates a lopsided power asymmetry. The specifications for this job remain rooted in caste and class, and affect the relationship with their employers.

A study found out that 75 per cent of respondent domestic workers in Bangalore belonged to Scheduled Castes, while only two per cent were from forward castes. With the lack of a detailed job description, the workers are forced to show obedience to an extent that renders them powerless to negotiate their work boundaries.

Also read: Situation of Domestic Workers in India : What needs to change?

What are the laws safeguarding the rights of domestic workers in India?

The lack of legal or regulatory frameworks to safeguard this unregulated sector of employment is the key factor contributing to the abuse and exploitation of domestic workers. Torture, beatings and sexual assault of domestic workers frequently make headlines, yet there are only a few laws safeguarding their rights.

The National Platform for Domestic Workers, social activist Aruna Roy, and the non-government organisation Common Cause petitioned the Supreme Court to establish rules to protect the rights of domestic workers. The petition asked for domestic work to be recognised. It also demanded the workers' working hours be limited to eight a day, and they should be obligated to take an off in a week, in line with the fundamental right guaranteed by Article 21 of the Constitution.

The petition led to the recognition of such work under the Minimum Wages Act of 1948. The Act addresses the need for workers to receive a minimum wage. The law is subject to change by the state governments, and as a result, some state governments revised the Act to expand the definition of "worker" to include domestic employees.

The Unorganised Workers' Social Security Act of 2008 seeks to ensure the well-being and social security of informal workers. This Act requires the formation of a national and state social security board to suggest social security plans that provide workers with different health, service, and pension benefits. Domestic care workers come under the scope of this act.

The Domestic Workers (Registration Social Security and Welfare) Act, 2008 provides, through its Section 22, that a domestic worker who resides at the employee's home is entitled to yearly leave with pay for a minimum of 15 days per year. According to Section 23 of the Act, anybody found guilty of sexually harassing a domestic worker or child faces a sentence of up to seven years in jail, a fine of Rs. 50,000, or both.

There was an attempt to create a law within the country in the form of the Domestic Workers Welfare and Social Security Bill, 2010, drafted by the National Commission for Women, which aimed to bring the vulnerable workforce of domestic workers into the mainstream, and help address complaints about unpaid wages, starvation, barbaric work hours, and verbal physical, and sexual abuse. The proposed law was intended for domestic workers above the age of 18 years and specified that no minor shall be engaged as a domestic worker. However, it was never enacted into law.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, was passed by the Parliament pursuant to the Supreme Court's guidelines in its landmark Vishakha judgment of 1997 to take preventive action against sexual harassment in the workplace. To address the complaints of female employees, this legislation ensures the creation of complaint panels, and establishes a local complaint body for domestic care providers.

Domestic workers and the organisations that represent them have made modest but significant progress toward securing their rights despite unfavourable circumstances. Domestic workers are now covered by the Unorganised Workers' Social Security Act, the Sexual Harassment at Workplace Act, and the Pradhan Mantri Jan Aarogya Yojana on a countrywide basis. Additionally, six state governments have announced domestic workers' minimum salaries, and Maharashtra has established a Welfare Board for such workers.

Domestic servants in India are being exploited since there is no adequate legal framework. The law is still ill-equipped to meet the specific problems that arise in this field of work, raising questions over their right to a free and dignified life. Efforts are needed for better sector integration into the economy, and ensuring that this set of employees will obtain justice with the new legal framework.

Why domestic work still remains informal?

Homes are typically seen as 'private' spaces beyond State regulation, making it challenging to enact legislation regarding domestic employees who operate in these settings. Additionally, private residences do not meet the legal criteria for a 'workplace', excluding domestic workers from the protection of all significant labour laws. Domestic workers as a result receive inadequate pay and are not viewed as professionals offering a particular service.

Regardless of how skilfully they cook or how thoroughly they clean, domestic servants are still viewed as useless labour. There have been several attempts to legislate for the domestic care sector, but most of them have failed.

In the past, the Domestic Workers (Conditions of Employment) Bill, 1959 and the Housemaids and Domestic Employees (Conditions of Service and Welfare Bill), 2004 have been introduced in the Parliament. These mandated that state governments register all domestic care workers and offer them job possibilities. Once more, due to uncertainty over execution, neither was passed into law.

In order to provide a legislative framework for domestic workers, the Lok Sabha presented the Domestic Workers Welfare Bill, 2016. The proposal's goal was to lay parameters for the conditions of employment and the work environment for domestic workers. In order to qualify for benefits, such employees must also register. Regrettably, this has not been passed either.

Since many domestic workers are migrants who reside at their employers' homes, they are outside the purview of trade unions and community-based organisations that help them in knowing their rights. Unions and collective action are the routes that are most advantageous for domestic workers for voicing their opinions.

The Paschimbanga Griha Paricharika Samit (West Bengal Domestic Workers Society) only recently got a certificate from the state government, recognising domestic workers as a labour union. The fact that even these unions have had difficulty becoming recognised as trade unions imply how many demands of the domestic work sector remain ineffective.

Also read: Delhi High Court issues notice on petition to recognise Domestic Workers Union

Why do we need a better legislative framework?

Domestic work is not governed by any legal framework in India. Despite many attempts by federal and state governments, it has not been possible to establish a legal framework for these workers. Separate laws are necessary to protect all aspects of employment situations since domestic care providers work in closed spaces, which makes them prone to abuse.

An efficient enforcement mechanism and a legislative framework for domestic care workers are essential in India for laws meant for them to be successful. A dispute redress mechanism is also required for the regulation of the informal sector. The gaps in these existing laws should be examined thoroughly.

The Minimum Wages Act is ambiguous in its intent to support domestic employees facing financial difficulties. As the nature of household work has not been clearly identified and defined, there is room for ambiguity. Furthermore, governments haven't set the working hours for them, which makes figuring out the minimum pay a challenge. It is insufficient for state governments to simply include domestic care employees in the definition of a worker if they want to formally recognise domestic care workers.

The Supreme Court monitored the execution of the Unorganised Workers' Social Security Act and voiced dissatisfaction that all state governments had not constituted state boards under the Act. Furthermore, the Supreme Court stated that all state governments must register all domestic care workers under this Act in order to receive benefits, and if the state government fails to do so, the Union Government would not make any awards to those state governments.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act did not do enough to safeguard the human rights of domestic care workers. Since the majority of domestic care workers reside in the homes where they work, they are often reluctant to report sexual harassment that occurs within domestic boundaries. In some cases, they may also form a bond with the residents of the house they are employed in, which discourages them from filing a harassment complaint or seeking solutions.

Although it is crucial to address these policy gaps, a focused legislation would be the best way to address the special vulnerabilities and working conditions of domestic workers. This would provide them with consistent rights and lessen their reliance on the generosity of particular employers. The ILO's Convention 189, which has been approved by more than 29 other nations, is the best model for such a regulation.

Proactive initiatives to protect domestic workers from abuse is the need of the hour. Domestic workers have generally been disregarded when it comes to getting social security benefits, unlike in the organised sector. It is high time considerations like maternity benefits, health insurance, and compensation for work injuries be offered to domestic workers.