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Where are the Laws to Protect the Rights of Domestic Workers in India?

So long as there's a mindset that the home is a private space even when it's a workplace, and domestic work is just house work and not ‘proper' work, the apathy of the State towards the plight of Domestic Workers will continue.

The issue of exploitation of women and children domestic workers is frequent and regularly reported. The domestic service is now accepted as an important category of livelihood. The steep decline in agrarian produce and livelihood security in rural areas has caused migration of rural people to urban areas. The number of 'Women Domestic Workers' is constantly growing in the informal sector of urban India. Domestic work has remained unorganized, unrecognized and unrewarding for the domestic workers.

The 'Domestic Workers' are denied of minimum wages, healthy work period, safe working conditions and other benefits in the absence of trade unions and State's intervention. The 'Women Domestic Workers' do not have support networks and civil society support under the existing circumstances. They experience exploitative situations and multi-faceted abuses. The newly imposed role for 'Women Domestic Workers' in the informal economy of India throws up several questions. The strong preference for nuclear families has resulted in a demand for 'Domestic Workers' in the country.

The 'Women Domestic Workers' are not adequately educated and organized through meaningful unionization. With no rights and rules to fall back on, most of the domestic helps have become contemporary slaves. It is also a known fact that many women and children are trafficked and exploited by the placement agencies, which operate openly without any form of restrictions and regulations.

In last few decades there has been a tremendous growth in the demand for domestic workers which has led to the trafficking and other forms of exploitation of millions of Women and children of the both sexes and to meet this growing demand there has been a spurt of thousands of placement agencies providing domestic workers in metro-towns of many States who are exploited in various ways as well as trafficked and remain outside the purview of any legislative control.

Absence of any legal protection, has led to severe exploitation women and children which include depriving domestic workers from their entire salary average more than 16-18 hours of work per day, absence of proper food and living/sleeping condition, forced and total cut off from their family members, bounded labour, sexual exploitation by agent during transit, at the Office of agency and at the work place in houses of employers, The list of exploitation is endless and frequently reported upon by the media.

Traditionally, household work is considered a woman's responsibility. However, in the last few decades, growing participation of women in Office jobs has boosted the income level of  India's middle class. With the changing scenario, the need for 'Women Domestic Workers' has also increased. Talking of big cities, young couples and single working professionals are dependent on maids or ‘didis' as they are often referred to.

The legislations such the recent Notification on prohibition of child labour in domestic work under Child Labour (Prohibitions & Regulation ) Act, 1986 cannot be implemented in the absence of any implementation mechanism in this Act.

Concept Of Women Domestic Workers

'Women Domestic Workers' provide essential services (e. g cleaning, cooking, child-care, gardening etc.) in other peoples' homes - which allows others to work outside the home. Thus 'Women Domestic Workers' are an essential part of the labour market and the economy. The majority of the world's domestic work is performed by women, predominantly poor women. Domestic work is one of the oldest and most important informal occupations for millions of women around the world. Women have limited options and enter the domain of domestic work in the absence of education, economic resources and other opportunities.

The term ‘domestic service' is practically difficult to define since the duties of 'Domestic Workers' are not well defined. Domestic service is now accepted as an important category of livelihood across the globe. Domestic service remains a highly personalized and informal service delivered in the homes of employers. In domestic service, work cannot be subjected to any comparative tests, since it has the character almost unique in wage paid industry.

Of being carried on for use, not for profit, and the settlement of wages remains an individual bargain between employer and employed. The implications of domestic labour on women's emancipation as well as transformation of gender roles, however, have been differently read by different schools of feminism. 'Domestic Worker' is a person who is engaged on a part time or full time basis in domestic service. The 'Domestic Worker' receives remuneration periodically in cash or kind for a fixed period from the employer.

Women Domestic Workers' In India

The steep decline in agrarian produce and livelihood security in rural areas has caused migration of rural people to urban areas. The number of 'Women Domestic Workers' is constantly growing in the informal sector of urban India. The family financial crisis has also compelled the women to become 'Domestic Workers' and protect the interest of the family.

The employers extract maximum work from the 'Women Domestic Workers' without extending minimum hospitality. Domestic work is looked upon as unskilled because most women have traditionally been considered capable of doing the work and the skills they are taught by other women in the home are perceived to be innate. When paid, therefore, the work remains undervalued and poorly regulated.

A substantial number of women in the rural areas migrate to the urban areas for the sake of employment due to lack of education and job skills. The numbers of 'Domestic Workers' are increasing but their living conditions are precarious in the urban slums. Generally, 'Domestic Workers' are engaged in child care and house work in modern times. The 'Domestic Workers' are expected to be compliant, unassertive and helpless with their employers. 'Domestic Workers' come from vulnerable communities and backward areas. They are illiterate, poor, unskilled and downtrodden sections of society.

'Domestic Workers' remain socially and economically marginalized sections of society. Paid domestic work is an important source of employment for the vulnerable sections of society. Domestic work is largely unregulated and unpaid. 'Domestic Workers' are the most neglected class of labour as they are rarely seen and seldom heard by legal scholars. Yet, domestics are amongst a group of workers which are the most exploited by their employers or the least protected by the law.

The system of domestic labour shows a prevalence of low wages, long hours and difficult working conditions. There is a need for granting legal protection to 'Domestic Workers'. The child domestic labour force is also increasing in the country despite the Child Labour (Prohibition and Regulation) Act, 1986. The increase in the number of 'Domestic Workers' is often viewed as ‘feminization of labour'. 'Domestic Workers' have increased in India mainly due to increased female labour force participation, increased income and purchasing power amongst urban populations and emergence of nuclear family units in urban areas.

Working Conditions

The 'Domestic Workers' are denied of minimum wages, healthy work period, safe working conditions and other benefits. The wage levels of 'Domestic Workers' are much less than their male counterparts. 'Domestic Workers' are highly exploited and denied just wages and humane working conditions.

They are paid well below the minimum wages for unskilled or semi-skilled workers. The 'Women Domestic Workers' face the major problems such as – low wages, extra work, long working hours, lack of holidays, harassment, sexual exploitation, physical torture, ill treatment, lack of welfare facilities, absence of social security measures, lack of rest, development of fatigue, lack of freedom, low level of job skills, absence of bargaining power, work-life imbalance, poor working conditions, migration, social invisibility, economic backwardness, forced labour, discrimination, inadequate legal protection, physical exertion, ill health, malnutrition and other problems according to empirical evidence in India and abroad.

They find it very difficult to report sexual harassment at workplaces and are forced to remain silent due to power dynamics and fear of discrimination or dismissal. The employer-employee relationship is a complex one and is viewed as one of domination, dependency and inequality.

The 'Women Domestic Workers' often continue accepting whatever, the employers pay them and are under constant fear that asking for a raise may lead to termination from work as there would be many more workers who are available to do the same work by accepting whatever the employer pays them. The employers also provide them stale food or leftover food which is not good for their health and nutrition. The employers also refuse to give them paid leave even though they work hard beyond their capacity.

Living Conditions

'Women Domestic Workers' do not have good socio-economic condition. They face problems both at home and at work place. They have a heavy workload with less recognition and remuneration. They spend a large part of their time accessing essential services such as water and toilets.

They do not have access to institutional care facilities that provide quality care at affordable rates in their neighborhoods. 'Domestic Workers' live and work in appalling conditions and are vulnerable to abuse. Their self-esteem suffers considerable damage after prolonged periods of maltreatment, abuse and humiliation. They feel inadequate, powerless and worthless. They do not have the opportunity to raise their voice and avenue of redress before the competent organs.

The 'Women Domestic Workers' are more likely to resort to unfavorable coping strategies, such as leaving children alone at home, enlisting the help of an older sibling or young relative, or taking children to work, if allowed, with adverse consequences on children's health and education as well as worker's productivity. The 'Women Domestic Workers' live in different types of slum settlements and work in the informal sector.

The migrant 'Women Domestic Workers are among the world's most vulnerable and discriminated workers. Domestic Workers' are also discharging socially reproductive labour, which otherwise is meant to be done by the women of the family as a given responsibility. The rights of domestic helps are also deeply impinged by the general characterization of the private sphere as one of the rationales rather than autonomy, and sacrifice, obligation and emotion. A majority of workers with a history of domestic work do not consider domestic work as disgraceful or undignified.

Poor Bargaining Power

The 'Domestic Workers' seldom have an organized mechanism for collective bargaining since they work in the informal sector. There are very few advocates of the rights of 'Domestic Workers'. They have limited employment opportunities. The family history of the 'Women Domestic Workers' also matters from their employability point of view. The wages are not based on ‘need-based formula'. They do not have organized social network and find several hardships in challenging the authority of the employer. They do not have the right to free movement.

Social Insecurity

The 'Women Domestic Workers' are not entitled to any old-age pensions, gratuity or bonus. They have no medical insurance and all expenses of illness, hospitalization of self and family are borne by the worker. The caste and social stratification have increased the probability of individuals to enter domestic work. Organizing 'Domestic Workers' is fundamental to finding solutions to the various problems faced by 'Domestic Workers'.

Paid domestic work continues to be excluded from the central list of scheduled employments under the Minimum Wages Act of 1948. It is not covered under either the Payment of Wages Act (1936) or the Workmen's Compensation Act (1923) or the Contract Labour (Regulation and Abolition) Act (1970) or the Maternity Benefit Act (1961). The other two Central Government interventions in recent times, bringing domestic workers under the Unorganised Workers Social Security Act, 2008; Domestic Workers Welfare & Social Security Act 2010 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 look good on paper but inspire little hope of making a difference in the real world in the absence of mechanisms for inspection and enforcement—and not surprisingly, they haven't.

'Domestic Workers' are explicitly included in the Unorganized Workers (Social Security) Act, 2008 and Domestic Workers Welfare & Social Security Act 2010. The record of implementation and enforcement of legal and welfare provisions for 'domestic workers' has been patchy and leaves much to desire. There is concomitant need for providing minimum legal protection and social security for workers generating important household and care services. Domestic Work is a predominately female-dominated sector that is poorly regulated and often unprotected by labour law.

Their isolation and vulnerability as workers is made more complex by their invisibility in private homes and their dependence on the goodwill of their employers. There is a need to create public awareness, especially of the household employers' obligations and to that end, a Code of Practice should be drafted which should serve as a practical tool to protect the rights of the 'domestic workers' at the workplace.

'Domestic Workers' are largely absent from the State Policy which is tied to the social and economic devaluation of care and its gendered, class and caste characteristics. The incorporation of women into paid labour at its lowest rung does not necessarily emancipate women from traditional gendered roles. 'Domestic Workers' are victims of torture, violence and exploitation in the homes of their employers. They are the invisible workers with poor levels of union organization and with weak bargaining power. The employment and living conditions of 'Women Domestic Workers' are dismal by nature. They are subjected to multi-faceted inconveniences even though they perform multiple activities.

The Trade Unions, Worker Organizations and NGOs find a lot of difficulty in reaching each and every 'Domestic Worker'. The implementation of the law is a challenge because of the informal and decentralized nature of the domestic labour market. The domestic service has become a major informal sector activity in the urban areas. The modern system of domestic growth is an outgrowth of the system of slavery, though its nature, functions and relations have undergone considerable changes over time.

The 'Women Domestic Workers' should be enabled to work with dignity, to engage in a meaningful work opportunity, to get remunerated with decent wages for the work performed, to have a voice and recognition of that voice, being able to balance work and family life, get opportunities and avenues for self development and training leading to wage enhancement and career progression need to be promoted through appropriate policies, legislations and programs.

They need to have social protection and social security, get fairness in treatment with no discrimination on the basis of caste, religion, colour, domicile or sex at work and society at large. The effective implementation of the various Acts for the welfare and progress of 'domestic workers' primarily depends on the various State Governments and the involvement of civil society.

The Supreme Court has noted that 'Domestic Workers' should be remunerated regardless of the type of establishment, potential to pay and accessibility of 'domestic workers' at reduced wages. The availability of employment is not based in the level of pays and that reducing pays does not necessarily result in increased employment rate. The 'Women Domestic Workers' are not considered as professionals by anyone in the absence of systematic skill development and capacity development opportunities in India.

The 'Women Domestic Workers' are subjected to series of injustices, deprivations and indignities in modern society due to the absence of meaningful legal safeguards, welfare measures and other provisions for the empowerment of women. They are also socially weak, economically vulnerable and politically disadvantaged section of Indian society. They deserve proper care, protection and measures for empowerment in modern society on the basis of humanitarian considerations.

The 'Women Domestic Workers' do not have support networks and civil society support under the existing circumstances. They experience exploitative situations and multi-faceted abuses. The national and international legal instruments are largely ineffective under the existing circumstances.

'Domestic Workers' constitute a large population of workforce, have been absent from the legal landscape of labour laws of the country. The nature of employment, employer-employee relationship and indeterminate work environment are amongst several factors to deny the statutory benefits to 'Domestic Workers'.

The absence of statutory safeguards makes the workers vulnerable and reasons to exploit them from the hand market forces. 'Domestic Workers' are not considered significant enough components of  the labour force and hence, adequate redressal mechanisms in law or policy are absent. This flows from the idea that the home is not and cannot be a work place.

The labour market refuses to acknowledge the 'Domestic Workers' as 'worker' under employment related laws. The Government has framed "The Unorganised Sector Workers' Act, 2008 (Act 33 of 2008) with an aim to ameliorate the livelihood conditions of 'Domestic Workers'.

The Unorganised Sector Workers' Act, 2008 treats the 'Domestic Workers' at par with marginalized and poor sections of the society and aims to improve the conditions of the workers but it falls short of conferring claimable interest upon 'Domestic Workers'. The absence of a legal right on 'Domestic Workers' absolves the State from committing to quality of life to them. The (Act 33 of 2008) has created choice-based implementation mechanism, whereas, the right-based would obligate the State to commit to legal rights independent of conditionality such s resources, political will or bargaining capacity of the workers.

It elaborates the applicability of existing laws and policies on labour laws in relation to domestic workers. Domestic Workers (Registration, Social Security and Welfare) Act, 2008 was introduced to regulate payment and working conditions and check exploitation and trafficking of women and other young household workers.

There is general dissatisfaction bordering on serious discontent among the vast masses of unorganised labour about the contents of the recently enacted. In all, the Act suffers from a serious lack of legislative policy and intent. Anything that can be done by way of change will, it appears, be an improvement!. There is need to make paradigm shift in legal approach from welfare-based to right-based in order to ensure adequate protection to a large constituents of the workforce who are making significant contribution in economic growth of the country.

Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, Jammu.
Email: [email protected], [email protected] 

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