FROM SHADOWS TO SPOTLIGHT: NEED FOR LEGAL FRAMEWORK FOR THE PROTECTION OF DOMESTIC WORKERS IN INDIA BY - ABHIRAMI R.ANIL, ASWATHY V.C & LASNA LATHEEF
FROM SHADOWS TO SPOTLIGHT: NEED FOR
LEGAL FRAMEWORK FOR THE PROTECTION OF DOMESTIC WORKERS IN INDIA[1]
AUTHORED
BY - ABHIRAMI R.ANIL,
ASWATHY V.C & LASNA LATHEEF
One
of the reasons that most of the upper and middle class household is capable of
functioning smoothly and engage in their professional activities is that households are taken care of by their
domestic workers. Eventhough they help to run the residential community in a
stress free manner, no society is taking time to address the problems faced by
them. “Domestic workers often belong to marginalised communities, such as
Scheduled Castes, Scheduled Tribes, Other Backward Classes, and Economically
Weaker Sections. They are compelled to undertake domestic work due to financial
hardship or displacement, further reinforcing their vulnerability”.[2]A
Bench of Supreme Court Justices Surya Kant and Ujjal Bhuyan quoted in the
recent petition while dealing with the anguish raised by a impoverished tribal
women from Chhattisgarh who suffered as a domestic worker in the national
capital and neighbouring cities. There are laws for punishing
the acts of these workers but not a single law is enforced to protect their rights .It is the society which includes
the policy makers, legislators, NGOs’, and each and every privileged one here
responsible for the miserable plight of these marginalised communities. Can the
enactment of a legal framework addressing the issues and provide protection and
redressal be a solution to such a problem? The paper tries to analyse the
challenges faced by the domestic workers, the need for a centralised legal
framework for protection of their rights, and put forward suggestions to be
included in the legislation.
WHO ARE ‘DOMESTIC WORKERS’?
Domestic workers are those vulnerable
part of the workforce who are unorganised by nature. Through the definitions
given by various norms and organisations, it is evident that domestic worker is
a term which can be interpreted in a very wide manner. Domestic worker is
defined as “a person who is employed for remuneration whether in cash or kind ,
in any household ‘or similar establishments’ through any agency or directly, either on a
temporary or contract basis or permanent, part time or full time to do the household
or allied work.”[3]Later, a
broad definition was given by ILO (2011)[4],
that any person can be called a domestic worker when he engages in an
employment relationship on an occupational basis. This definition is capable of
encompassing a wide range of domestic helps who are working not on an
occasional basis. Viewing through the lens of legislation, it can be identified
that the bill[5] presented
in Lok Sabha in 2015 addressed them as “a person employed directly or through
an agency to do domestic work for remuneration, for one or more employers, by
staying at the house premises or otherwise and includes casual and temporary
domestic workers and home nurses”. This definition has tried to include home
nurses also under the umbrella term ‘domestic worker’. It also tried to define
the workers in a very comprehensive manner including the concept of place they
reside.
Dr. Jayanti Ghosh, in the UN Public
Lecture on ‘The Invisible Workers: Rights, Justice and Dignity for Domestic
Workers’ expressed that, “No society can survive without the massive contribution
that domestic work makes to national income.”[6]A
study conducted by the Catholic Bishops Conference of India (CBCI) in 1980
shows that in Kerala and Tamil Nadu 90 per cent of the domestic helps were
females; and in Delhi it was 45 per cent.[7]
Later, the Self-Employed Women’s Association in (2014) declared that about 4.75
million people in India can be put under the category of domestic workers.[8]Hence it is
clear that there is an increase from 33.2 million in 1995 to 52.6 million in
2010 in the number of domestic workers. In last few decades there has been a
tremendous growth in the demand for domestic workers which has led to their
exploitation irrespective of their age and gender especially in metro towns of
different states.
The ILO estimates that equivalent
domestic workers make about 3.6% of all wage employment worldwide.[9] In some
nations, this figure exceeds the number of employed individuals.[10] A
significant portion of employment, approximately 2% of all employment globally,
comes from domestic work. Domestic workers make up about 11.9% of all paid
employees in underdeveloped nations like Latin America.[11]
83 % of these are female domestic workers.[12]
Because of this, domestic work is a significant source of income for women.[13] Even
though this amounts to a major part of the population, they are being excluded
from all the crucial labour laws and in a nation upholding constitutional
values of equality, the problems of women domestic workers are not even
addressed.
CHALLENGES FACED BY DOMESTIC WORKERS
Despite the critical contribution of
the domestic workers towards maintaining households and supporting the various
families across the globe, they were facing challenges that are frequently
ignored by the general population. From inadequate wages and long working hours
and lack of legal protections and vulnerability to various forms of abuse, domestic
workers are facing a bunch of difficulties on a daily basis. Some of the
notable issues faced by them across the country are discussed below.
First and foremost issue is that the
domestic workers are excluded from the labour laws. As the domestic workers are
excluded from the basic labour laws of many countries, which provide basic
protection like the minimum wages, overtime pay etc make them excluded to get
the same rights and benefits as other workers. This denies them access or
having limited access to the redressal mechanism for unfair treatment.[14]
Secondly, the domestic workers are
hired informally or the lack of formal agreement or contract in this sector makes
the domestic workers difficult to prove their employment status and it also
challenges their ability for claiming any rights or benefits that they are
entitled to.
Thirdly, they were always the victims
of suspicions, as the domestic workers are in immediate vicinity to the
personal belongings of the household, they easily become the blame bearers for
the missing items and other incidents. They often get suspected even without
having a substantial evidence against them. Because of this suspicion some of them
will experience physical violence, mental torturing and even without a prior
notice or without a legal proceedings, they will be fired from their jobs.[15]This
expulsion can make them financially vulnerable to support themselves or their
family members because in certain cases they will be the only bread winner in
their family.
Fourthly, the lack of negotiation
between the employer and the employee in the unorganised sector affects them
drastically. Most of them are paid very low when compared to their long working
hours.[16]They are
depending on their employer not only for the monetary benefits, but also for
the non-monetary benefits like the food, accommodation etc especially the
live-in workers. So, due to the lack of collective bargaining in this sector
affects all the domestic workers.
Another challenge faced by the
domestic workers is that a social taboo exists in society where domestic work is
often seen as an undervalued labour which typically takes place within a
confidential environment which is a household, making them less available to
the limelight. This makes a feeling of not to respect the domestic workers even
though the work is a vital part of our daily lives. This way of treating the
household workers can be traced back from ancient times especially when
performed by women or marginalised groups.
Lastly, they are excluded from the
benefits enjoyed by others, as the domestic workers are the part of the
informal sector, where the work is unregulated and the workers do not have a
formal contract, it makes them difficult to get access to the benefits
available to other workers in the formal sector. In addition to this, the
employer’s reluctance to provide additional benefits to the workers due to the
additional cost and the administrative burden to the employer is a major
concern to this issue.
Even though these are the analysed challenges
faced by the domestic workers, the list can be extended further. By
understanding and addressing these issues in an effective manner can bring in
appropriate legal and social framework.
NEED FOR SEPARATE LEGISLATION
The unique nature of working environment
and the vulnerabilities they face makes the domestic workers in need of a
separate legislation. There might be reasons for not regulating the laws for
the domestic workers. It can be the complexity in their employment structure
like they include part-time, full-time, live-in, live-out etc which makes the
authority to develop a law which fit for all. Even so, there are various
initiatives made for the formulation of separate legislation but no independent
Act exists since. Various States in India have taken initiative to incorporate
domestic workers into the domain of protection and to recognise their rights
foresay, Kerala, Maharashtra and Tamil Nadu but the result is in vain. On
looking into the nature of person who fall under the ambit of domestic workers,
it is clear that irrespective of caste or gender, people are forced to be a
part of domestic workers. And it is to be noted that, inclusion to be the part
of domestic workers is not because of a compulsion from anyone but for their
existence in our society. ‘Only the fittest will survive’[17]
is a well suited quotation to understand the life of those workers. As to make
the two ends meet in our society, people of all ages are compelled to do odd
jobs. Article 19[18] of the
Constitution guarantees certain rights to the citizen. As the Constitution
grants these rights, their protection must also be equally ensured. While analysing
the conditions of the workers in the organised sector, they have separate laws
to address their concerns, various regulating bodies to act for them but the
domestic workers have been neglected from protection of their rights as they
are not being part of the labour laws. In recent years, numerous reports have
been published relating to the issues of domestic workers like the injuries
caused by their masters, death of the domestic workers in their workplace etc. While
the domestic workers are somewhat covered under existing legislation, their
unique needs and rights are not extensively covered or addressed which
leaves gaps in their legal protection. Therefore
the need to formulate a separate legislation for the domestic workers has
exceeded its time. Although there are no enforced laws yet, there have been
bills proposed in order to protect the needs and rights of the domestic
workers. One such bill is from Kerala.[19]
While analysing the bill[20], it is
identified that irrespective of the gender,
it gives a definition for ‘domestic workers’ , their rights have been
mentioned which includes earning for the livelihood which is free from all
forms of bonded or forced labourers, if they work for more than the stipulated
time, they are entitled to pay for that
extra work done. Domestic workers can approach authorities for resolving their
issues or concerns which arises. The bill also mentioned about the benefits
provided to the workers, which includes medical assistance, financial
assistance for the education of their children etc. The bill has clearly
mentioned about formulating redressal council, domestic welfare board and
welfare schemes. Based on the analysis of the proposed bill of Kerala, it is
clear that it is indeed possible to frame a centralized law for the domestic
workers. Many of the domestic workers are employed across state lines or work
in regions which are different from their hometown, providing another reason
for the importance of centralised law than domestic law. Even with this
possibility of framing a centralized law, actual implementation is delayed due
to various reasons, which may be because of the absence of strong political
support, many social and economic factors and the various stakeholders consent
for the implementation of such laws. If the law comes into force then there
will be a visible change in the society because when rights are recognised then
the corresponding duty will also be performed without any fault.
In short as the Division Bench at
Supreme Court on Jan 28 2025 opined, “The simple reason for this harassment and
rampant abuse, which seems to be prevalent throughout the country, is the legal
vacuum which exists via-a’-vis the rights and protection of domestic workers. As
a result, they frequently endure low wages, unsafe environments, and extended
hours without effective recourse”. Therefore it is the need of the hour of the
shadowed guardians of our home to be protected through law.
WAY FORWARD: SUGGESTIONS TO BE INCORPORATED UNDER LEGISLATIVE FRAMEWORK
This paper analysed that, domestic
workers are forced to the wall to survive and therefore it is the
responsibility of the law to protect them through a centralised legal
framework. Access to the social security systems should be the gateway of the
domestic workers. It will help in lessening their social and economic
vulnerabilities to a large extent.
Taking into account all the
definitions analysed, the paper tries to propose a definition for ‘domestic
worker’ which shall include the concept of differentiating full time domestic
worker and part-time domestic worker.[21]
And it shall include an exhaustive list of domestic workers in order to avoid
further snag, clearly depicting the nature of work, place of residing irrespective
of their gender.
While implementing legislation for
domestic workers, the state should have a duty to provide legal awareness to
those workers informing them about their rights and liabilities. Also, the
house owner shall also be given awareness about their legal duties to fulfill
while employing a domestic helper. They can take the assistance of District
legal service authorities, Panchayat and other NGOs to organise awareness
programmes as well as house to house surveys can be also done to spread the
awareness to a larger population. During these process, awareness shall be
based upon the type of domestic worker (full time, part-time and live in
workers).
The actual foundation of the central
legislation for the protection of domestic workers should start from the
establishment of a welfare board which is capable of acting as the access point
for domestic workers in every municipality or corporation. A welfare board
should function hand in hand coordinating with the legal service authorities
and panchayat/municipal corporation. It should be solely catering to domestic
workers. They should encourage the registration of the domestic workers in each
area. And after being hired to any house, the Board shall ensure that all the details are furnished by the worker such
as the name and address of the employer and of the worker, the address of the
usual workplace or workplaces, the starting date and where the contract is for
a specified period of time, its duration, the type of work to be performed, the
remuneration, method of calculation and periodicity of payments, the normal
hours of work, paid annual leave, and daily and weekly rest periods, the
provision of food and accommodation, if applicable, the period of probation or
trial period, if applicable and terms and conditions relating to the termination of employment,
including any period of notice by either the domestic worker or the employer if
required.[22]
The exemplification of functioning of the Board can be taken from States of
Kerala[23],
Tamil Nadu[24]
and Maharashtra.[25]
Agencies can be also set up under the
Welfare Board for recruitment purposes and for referrals to employers. At the
same time, it should be taken care of to provide protection to those who get
hired for work via their personal connections, community networks and alike if
they approach the Board for registration.
The legislation should be capable of
providing redressal mechanisms to the domestic workers in case of disputes
between the employer and employee, employee and employee in case if more than
one employee is hired and if any instances of physical or mental abuse occurs. As
a speedy redressal is required in such cases, Alternative Dispute Resolutions
can be opted, out of which conciliation will be a better option (similar to
labour disputes).At the same time, the Board must also be responsible for
helping domestic workers in getting connected with the Legal Services
Authorities in order to help them approach the courts in cases of severe abuse
if conciliation seems ineffective or insufficient. Appointment of a lawyer
through free legal aid scheme will be also necessary. For that the inclusion of
‘domestic workers’ under Section 12 of Legal Service Authority Act, 1987[26] will be
effective.
House-premises inspection can be also
conducted by the ‘inspectors’ established under the Act to ensure the working
conditions of the domestic worker as well to enquire on whether the working
requirements are being met by the worker on a monthly basis provided that this
activity does not interfere with the private life or privacy of the family.[27]
It is to also be taken into account
that, implementation of these steps should not cause disproportionate harm to
the family who employed the domestic worker or the residential area where
he/she works, for eg. unrestricted bargaining power, initiating a strike etc…
Also, India can adopt mechanisms from
other Asean countries such as Thailand[28],
Malaysia[29], Hong
Kong[30] that have
enacted laws to protect the rights of domestic workers. Most of these countries
have migrant domestic workers from countries such as Nepal, Sri Lanka,
Pakistan, Indonesia and the Philippines. In these countries, things like weekly
off, rest days, pensions, minimum wages, sick leave and social security are
provided to workers. For example, in Hong Kong, minimum wage, rest days, paid
annual leave and holidays are ensured through laws. In Thailand, the provision
of minimum wage, break time and leave have to be followed as per the law.
Singapore has also ensured minimum wage, accommodation, insurance, medical and
rest days for domestic workers. It also mandates pension fund contributions
from employers.[31]
CONCLUSION
The paper has identified that there
is a strong need for a comprehensive centralised legal framework to protect the
domestic workers. The existing labour laws are designed with the formal sectors
in mind and completely undervalues the unorganised sector and thereby neglects
them. This vacuum in the laws creates the widespread exploitation of the
domestic workers. The multitude of the challenges faced by the domestic workers
cannot be compiled in a single list. Creation of a separate centralised legal
framework for the domestic workers can address their issues and concerns. Also
it will create a value for them and serve as an acknowledging stamp. The paper
also tries to propose certain legal mechanisms to be included under the
legislation for its smooth enforcement. As the way we unlock the doors to our
homes, let us unbar the gates to justice and protection for the domestic
workers who tirelessly serve us.
[1] Abhirami
R.Anil, Aswathy V.C, Lasna Latheef (2nd Year LLM students at Inter University
Centre for IPR Studies, CUSAT)
[2]Krishnadas Rajagopal, ‘Lack of a protective law
exposes domestic workers to abuse, torture: SC’ The Hindu (India, 29 January
2025) 12
[3] Domestic workers Welfare and Social Security Act
2010, Bill
[4]International Labour Organization, Domestic Workers
Convention C-189, Geneva, 100th ILC session [2011] Article 1:
(b)
the term “domestic worker” means any person engaged in domestic work within an
employment relationship;
(c) a person who performs domestic work only
occasionally or sporadically and not on an occupational basis is not a domestic
worker.
[5] The Domestic Workers (Welfare and Regulation of Employment) Bill 2015, s 2(a)
[6] Reghunathan K.R, ‘Domestic Workers in India: Need for
A Comprehensive Law’(2019) 10 (2) Research Journal of Humanities and Social
Sciences accessed 20 February 2025
[7] Ibid
[8]Self-Employed Women’s Association, Domestic Workers’ Laws
and Legal Issues in India Issues-India.pdf.
[9] International Labour Organization, Domestic Workers
Across the World: Global and Regional Statistics (2013)
[10] LF Vosko, ‘Decent Work: The Shifting Role of the ILO
and the Struggle for Global Social Justice’(2002) 2(1) Global Social Policy
[11] N. Smit, ‘Decent Work and the Promotion of Access to
Social Protection For Workers in the Informal Economy – An International and
Regional Perspective’(2007) 700 Journal of South African Law
[12] D. Lucera and N. Roncolato, ‘Informal Employment: Two
Contested Policy Issues’(2008) 147(4), International Labour Review
[13]International Labour Organization, Domestic Workers
Across the World: Global and Regional Statistics (2013)
[15] T Shashikala, ‘ Issues and Challenges of Women
Domestic Workers A Sociological Study’ (2023) 11 International Journal of
Creative Research Thoughts < https://ijcrt.org/papers/IJCRT2306943.pdf>
[17]Survival
of the fittest, a term made famous in the fifth edition (published in 1869) of On the Origin of
Species by British naturalist Charles Darwin, which suggested
that organisms best adjusted to their environment are the most successful in surviving.
[18] Constitution of India, 1950 Article 19. Protection of
certain rights regarding freedom of speech, etc.
(1)
All citizens shall have the right- (g) to practise any
profession, or to carry on any occupation, trade or business.
[19] Pawan Kumar, ‘It’s Time India Brought Laws To Protect
Rights Of Domestic Workers, Provide Them Social Security’ (The Secretariat, 19
January 2024) accessed 20 February 2025
[20] The Kerala Domestic Workers (Regulation and Welfare)
Bill, 2021
[21]Director General
Labour Welfare, Ministry of Labour and Employment, Final Report of the
TaskForce on Domestic Workers (2011) <http://wiego.org/sites/wiego.org/files/resources/files/dw_task-force_report.pdf>
[22] ILO,Domestic Workers Convention (2011) Art 7
[23]The Kerala Domestic Workers(Regulation and Welfare)
Bill 2021, s (13)- Constitution of Domestic Workers Welfare Board
[24] Tamil Nadu Domestic Workers Social Security and
Welfare Scheme 2007
[25] The Maharashtra Domestic Workers Welfare Board Act,
2008
[26]The Legal Services Authorities Act 1987, s 12(f)
states an industrial
workman;, but in this particular section domestic workers should be
incorporated.
[27]International Labour Organisation No. 189. Art. 17 ,
France
has tackled these privacy concerns by allowing the householder the discretion
to let the Labour Inspector enter his home.Spain, on the other hand, takes away
the discretion from the householder and places the same into the hands of the
judiciary, provided the Labour Inspector is able to discharge the burden that
such inspection is intended to enable monitoring related to potential
proceedings before social courts.South Africa also allows for an alternate
process of distributing requests in the householders’ mailboxes for granting
access to their households.
[28] Ministerial Regulation (No.14) B.E. 2555 [2012]
issued under the Labour Protection Act.
[29] The
Employment Act 1955 and the Employees' Social Security Act 1969
[30] FDHs are admitted into Hong Kong for full-time,
live-in employment with a specific employer under a Standard Employment
Contract
[31] Pawan Kumar, ‘It’s Time India Brought Laws To Protect
Rights Of Domestic Workers, Provide Them Social Security’ (The Secretariat, 19
January 2024) accessed 20 February 2025