INTRODUCTION:
Domestic workers form an integral part of India's informal workforce, yet they remain one of the most vulnerable and marginalized groups in terms of legal protections and labor rights. Despite their crucial role in maintaining households across the country, domestic workers have historically lacked adequate recognition within India's legislative framework. Over time, various laws have attempted to address their concerns, but these efforts have often been fragmented and inconsistent. This article delves into the legislative framework surrounding domestic workers in India, providing a legal analysis of existing laws, their key provisions, and the gaps that continue to hinder their full protection. By exploring the impact of these labour laws and the ongoing challenges, we aim to highlight the need for stronger, more comprehensive reforms that ensure the rights and well-being of domestic workers.
MAIN BODY:
Domestic workers form an indispensable yet fragile labour force in every country worldwide. The International Labour Organization's Convention No. 189, adopted in 2011, is one of the landmark international instruments that has accorded comprehensive protection to domestic workers. These include fair wages, reasonable hours of work, adequate weekly rest, social security coverage, and protection against abuse, among others. It defines a domestic worker as a "person engaged in domestic chores within an employment relationship".1However, India hasn't ratified this convention, making domestic workers foreclose their door on all these protections.
There are some features common to domestic workers. This includes that these domestic workers belong to backward and impoverished areas often belonging to vulnerable communities. These workers are poor, illiterate and unskilled. Their lack of education makes them vulnerable to urban labour markets making their work undervalued, unpaid and largely outside the purview of domestic and national legislations. The overarching population of domestic workers especially in developing countries like India adds on to the problem, where they face multi-faceted challenges like lack of welfare measures to getting victimized at the hands of traffickers or placement agencies. As per recorded data, there are more than 4,75 million (NSS 2005) to over 90 million domestic workers in India.
Though the Universal Declaration of Human Rights2 and the Convention on the Elimination of All Forms of Discrimination Against Women3 do not directly protect domestic workers, they indirectly cover them by mentioning basic labour rights and the elimination of gender discrimination. The international frameworks done intentionally concentrated upon the protection of the rights of domestic workers, most of whom are women, but practical implementation in India is still missing. Major part of domestic work happens to be within the informal sector, even though some provisions are in place, they are far away from providing protection adequately.
Since Independence, the Indian government has passed more than 40 plus central legislations however the benefit of all these legislations have failed to reach the most marginalised domestic workers in India. Primarily, there is no central law in the country to bring into its preview domestic workers and all their concerns. However, there are many pieces of legislations which govern laws relating to domestic worker, herein a brief of all these legislations shall be discussed.
I. Minimum Wages Act, 1948:
The Minimum Wages Act, 1948 is a critical legislation which came into force with the objective of setting minimum wages across different sectors. Though "domestic workers" are not specifically mentioned in the Act, some state legislations did incorporate them within its scope.
The Act sets up bases for determining minimum wages in various types of employments. In states whose domestic workers are legislated, there is a minimum wage set by the government that must be paid by employers, normally on a monthly basis. It prohibits unauthorized deductions from an employee's earnings and only such as are authorized by law. To force compliance, the Act sets up labour inspectors who monitor work premises.
Despite its importance, the Act has loopholes in the form of unequal administration across the various states and weak implementation. Many labour inspectors face challenges regarding their ability to move around with the ease and effectiveness required to access remote locations where most of the domestic workers are employed; hence, wage regulatory measures cannot be enforced effectively. Many domestic workers earn below the minimum wage levels, mainly because they are ignorant about their rights and enjoy informal employment. Other norms further complicate the issue; they often create a situation that prolongs the exploitation of the domestic workers by under-acknowledging the real value of domestic work. Most of the workers are not knowledgeable about their rights under this Act; therefore, it gives little chance of getting wages on par and better conditions.
II. Maternity Benefit Act, 1961:
The Maternity Benefit Act, 1961, is, a very critical legislation on guaranteeing the rights of women in the workplace so far as benefits during maternity are concerned. Such benefits include paid leave, job security and medical care during and after pregnancy. Another beneficial feature is a paid maternity leave period up to 26 weeks for working women in the formal sector, so that they are not apprehensive about loss of employment or income during the period following delivery. The act further provides those certain facilities, such as crèche facilities, shall also be made available by the employer for working mothers. Hence, the objective should always be to safeguard the health and wellbeing of women, yet not forget the fact that delivery should not precipitate any kind of economic precariousness.
The benefits of the Maternity Benefit Act lie outside the reach of the majority of domestic workers in India, who comprise mostly women. This is because the working class, comprising most domestic workers, does not fall within the formal framework of the act due to the simple reason that their work falls mostly under the informal sector where legal forms of protection barely exist. Generally, domestic workers lack a formal employment contract and therefore tend to lose the formal rights that most employees in the corporate or industrial sectors receive, such as paid maternity leave, job security, or other benefits. For this reason, many have been left carrying their pregnancies and returning to work immediately after delivery without proper rest and medical care. Furthermore, without the provision of care through this act for domestic workers, there is an increased vulnerability of the people. This means that without formal recognition in law, they are deprived of employer-sponsored health insurance and maternity-related care which eventually draws very severe financial and health-related repercussions. Due to the fact that the benefits that these workers need the most during this crucial phase of life are not available to them, most domestic workers, who become critical caregivers for many families, are deprived of the very protection they would be needing for their families in return. Consequently, millions of women remain outside of the reach of the law.
III. Inter-State Migrant Workers Act, 1979:
The Inter-State Migrant Workers Act, 1979 protects the interest of inter-state migrant workers emigrating from one state to another in search of employment opportunities. The law ensures that the migrant workers get adequate remuneration, house and other amenities, such as traveling allowance and medical care, while they are working away from their home states. It also forces the employers to register the migrants and provide them with basic safety standards and welfare facilities. This law aimed at protecting workers against exploitation so that they can enjoy justice during working away from their home.
However, while the act provides many benefits to the workers, domestic workers, which comprise of a majority of migrant workers, are left out. The informalness of domestic work due to most of them not having formal employment contracts or well-defined employer-employee relations means that the relations are not registered under the provisions of the act. They are exposed through the system of law and, thereby, vulnerable to exploitation. There is the issue of wage withholding or evasion, dangerous accommodation and working conditions, and isolation-all with no practical means of redress in cases of abuse or exploitation across the board. The work setting is usually private homes, which makes it yet harder to apply legal protection in this context.
IV. Payment of Wages Act, 1936:
The Payment of Wages Act, 1936 has been put in place ensuring that workers are paid timely and regularly without any form of unauthorized deduction. This act makes it possible to make a full and on-time payment to employees in order to avoid exploitation of workers financially at the hands of their employers. The mechanisms for reporting cases of where wages have been withheld lawfully or arbitrary deductions have also been put in place.
In practice, though, domestic workers are more likely to face late, erratically reduced, or withheld wages. Their employment is frequently informal and with no written agreements in place and a tendency towards wage theft. Many report instances of arbitrary wage deductions for minor mistakes, not to mention cases in which the domestic workers received no wages for their work. The informal nature of contracts implies that workers who are domestic do not have much legal grounds to enforce the demand for unpaid wages; secondly, because the nature of this work is private, employers of the same discourage themselves from adhering to the law. These put the worker at risk of exploitation because, normally, he or she will depend on his or her employer for both income and housing, which creates a power imbalance to discourage demands for rights.
V. Equal Remuneration Act of 1976:
The Equal Remuneration Act of 1976 was enacted with the motive of ensuring that equal pay is received by men and women performing equal work with a view to bring about the elimination of wage disparities based upon sex in all fields. It directs the employer to pay a man and woman equal wages for equal or similar work. This act is one step closer to the attainment of gender equality at the workplace, especially in industries whose female members are paid less compared to their masculine counterparts. It also binds employers not to distinguish on account of gender while hiring or promoting them.
Domestic workers, who include women, are grossly underpaid compared to men performing similar work in other industries. This is sharply evident if one compares domestic work with male-intensive informal sector jobs, such as security guards or drivers, who typically earn a wage. The discretion provided for in domestic work, carried out within private homes, renders it often invisible and unregulated, and gender-based differences in wages are overlooked. The lack of regulation over this informal sector leaves domestic workers at the mercy of employers and has little recourse through which to challenge wage discrimination, even when their work is at times every bit as demanding and vital as that of their male counterparts in most other occupations. For most, therefore, the act's goal of equal pay for equal work is never achieved.
VI. State Insurance (ESI) Act, 1948:
The State Insurance (ESI) Act, 1948 was enacted to provide a comprehensive scheme of social security for workers, including medical care and sickness, maternity, employment injury, and pensions in case of work-related injury or death due to illness, disablement, or death. Workers are covered under the ESI scheme provided they are employed by establishments which qualify for coverage and employers are required to contribute a proportion of the worker's salary towards this social insurance fund. It, therefore, provides a safety net for the working people and their families regarding financial security in case of illness or injuries and access to health care facilities.
The ESI, unfortunately, does not cover domestic workers because they do not even work in registered establishments or have any formal employment contracts generally. Even in states like Maharashtra where domestic workers have been brought under ESI coverage, the benefits reached only a few of the workers. That is because of the fact that with very low awareness levels pertaining to the scheme, most of the domestic workers are not registering for the benefits. Most private households, which are employers of domestic workers, will not contribute under the ESI Act and therefore deny the benefit of health care, sickness benefits, and pension to the worker. Ongoing challenges of implementation and the nature of the employment characterize domestic work continue to mar the effectiveness of the ESI Act in protecting some of the most vulnerable members of the workforce.
VII. Payment of Gratuity Act, 1972:
The Payment of Gratuity Act, 1972 is a very important law that ensures financial benefits to the workers at the time of retirement. Under this act, the worker is paid gratuity by the employer after at least five years of continuous service with the same employer. Gratuity is a form of reward for long-term service, something that will be useful for workers in their retirement or change of employment. The act covers various industries and areas, which gives employees a kind of financial benefit for their loyalty and all the years they have allocated to the employer.
However, with regards to domestic workers, the provisions of the Payment of Gratuity Act are rarely offered. Since most domestic employees work for several households and such work may be on part-time or short-term bases, it is unusual to encounter an employee who has worked continuously in one employer's household for five years. Even when a domestic employee stays with a particular employer for more than five years, the lack of formal contracts of employment and the absence of formal record-keeping systems ordinarily makes it impracticable to prove entitlement to gratuity. In addition to the informal nature of the jobs, the lack of obligation on the part of employers to provide gratuity after a minimum number of years of service leaves domestic workers without these critical financial benefits and hence without any mechanism to protect their economic future. Domestic workers therefore remain excluded from protections under this act, further highlighting the more general problem of exclusion from formal labour law protections.
VIII. Draft Labour Code on Social Security and Welfare 2020:
The Draft Labour Code on Social Security and Welfare is one pioneering legislation put forward very recently regarding the rights of domestic workers, who have otherwise been neglected in other labour laws. Such legislations as the Minimum Wages Act or the Unorganized Workers' Social Security Act had exposure that was very limited in coverage. Most of these laws excluded domestic workers or inadequately enforced them, leaving this sector vulnerable to abuse and without adequate protection. The Labour Codes of 2020 is perhaps the major overhaul of labour law in India, while consolidating numerous enactments into a logical tool that protects all workers in sectors. However, the most special provision speaks about domestic workers, who have long been the victims of a segmented labour market. Provisions have therefore been made to enhance the rights and welfare of domestic workers, considering their role within a family and society and economy.
The Code on Wages, 2019 gives a basis for equitable wages for domestic workers. What is significant to it is the minimum wage enacted that domestic workers must be paid by state governments, which would give stop to wage exploitation of these employees and ensure them of a decent remuneration for their labour. In addition, the Code addresses timely wage payment by compelling the employer to pay wages on time. This directly addresses the most frequent causes of delay, that are usually due to informal employment.
The Code on Social Security, 2020, presents a historic step toward extending benefits of social security to domestic workers. This code guarantees most social security schemes include domestic workers, hence providing health benefits, maternity leave, and pension. This is critical for women domestics as the Code now spells out maternity benefits while taking into account their needs for care while with child, after delivery, and through her pregnancy. Apart from this, comprehensive insurance and pension schemes being proposed under the Code would ensure future financial security for domestics. This provision mandates that states register domestic workers and also provide accessibility to welfare schemes, thus allowing them to formalize their employment status, previously unchecked.
The Code on Occupational Safety, Health and Working Conditions, 2020 lays down fundamental standards relating to the workplace. Being the code for providing basic safety and health standards for domestic workers within private households, it should further provide a grievance redressal mechanism for reporting unsafe working conditions or incidents of abuse.
The Code on Industrial Relations, 2020 upholds the rights of all workers, including domestic workers. It upholds the formation of unions and associations of domestic workers so that they can collectively pursue better rights and conditions of service. This will empower domestic workers, bring about solidarity, facilitate collective bargaining, and these are necessary for them to advance their rights.
Despite such progressive provisions, several challenges remain that could hinder their effectiveness. Success will indeed depend on the states implementing the Labour Codes. Compliance in a highly informal sector like home-based work is imperative. Information and entitlements under the new regulations will not be widely known among most domestic workers. Such outreach and education programs will therefore have to be that much more forceful to ensure that their rights are enjoyed. Compliance by employers will also be a problem, as partly some will continue resisting adherence to the regulations. A robust system of enforcement will be necessary to safeguard the rights of domestic workers and prevent exploitation.
CONCLUSION:
In conclusion, the new codes seem to empower an otherwise-neglected workforce that amounts to millions of workers in India by setting legal protections related to minimum wages, social security, and safety standards. However, the extent to which it would actually influence matters would depend on whether the reforms were effectively implemented and widely adopted, and if there was a rigorous application of law such that these rights were honoured in full for domestic workers. It is perhaps important to create a more balanced labour platform with protection of vulnerability for domestic workers which constitute an important percentage of India's population.
Footnotes
1. ILO Convention No. 189.
2. Universal Declaration of Human Rights, 1948.
3. Convention on the Elimination of All Forms of Discrimination Against Women, 1979.
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