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Letter From The Editor: LEGAL HURDLES FOR DOMESTIC WORKERS

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Slavery was among the greatest of social evils that afflicted the march of civilization. By and large, it stands universally abolished. On paper. But the practice continues in mutant shapes and forms. In India—a constitutional republic in which rights are continually expanding under Article 21—the untrammeled exploitation of domestic workers is a matter of national shame. They slog, they suffer. Through an ongoing process of social churning, organized labor, sex workers, child laborers, gays, have given birth to influential lobbies. But there is no really powerful voice for this huge army of informal workers. After six decades of independence for India, there is really no legal independence for India’s domestic sloggers.

Better late than never, a Law and Policy Brief Report from OP Jindal University spotlights this injustice. Written by Upasana Mahanta, Assistant Professor and Assistant Director, Centre for Women, Law and Social Change, Jindal Law School, the well-researched document analyzes what all has been done and needs to be done for domestic workers in India, and the difficulties encountered while framing policies for them.

Here are some highlights of the report:

At a time when castes and communities are fighting for social recognition and achieving it, there is no benchmark definition of domestic workers in India. They are persona non grata. Secondly, evaluating or weighing domestic service is an onerous task.

Another area of significant concern that the report highlights is that there is no exact data to arrive at the number of domestic workers in India. Unofficial estimates on domestic work in India vary from 2.5 million to 100 million, while the National Sample Survey Organization estimates of 2004-05 pegs the number of domestic workers employed in private households as 4.75 million. Why? Because they are named differently by entities employing them, the categorization is as diverse as one can imagine and the definition ambiguous.

https://commons.wikimedia.org/wiki/File:Child_Maid_Servant.JPG
Thousands of children are illegally employed in India

This is despite the fact that India had arrived at a definition of a “wage worker” in 2008, says the Law and Policy Brief Report. The Unorganized Workers Social Security Act passed in that year offered a semblance of legal recognition to domestic workers. The “wage worker” was defined as “a person employed for remuneration in the unorganized sector, directly by an employer or through any contractor, irrespective of place of work, whether exclusively for one employer or for one or more employers, whether in cash or in kind, whether as a home-based worker or as a temporary or casual worker, or as a migrant worker, or workers employed by households including domestic workers, with a monthly wage of an amount as may be notified by the Central Government and State Government, as the case may be”.

The need to recognize domestic workers was expressed at the international level in 2011. The Law and Policy Brief analysis tells us that the International Labour Organization (ILO) Domestic Workers Convention 2011(No. 189) had defined the term “domestic worker”. According to the Convention, “domestic work is work performed in or for a household or households” and a domestic worker is “any person engaged in domestic work within an employment relationship”. The Convention also addressed the oppression faced by this community and evolved guidelines for their welfare, which include working hours, protection against abuse, harassment and violence, salary, occupational hazards and social security. It also extended its ambit to include child domestic workers, live-in domestic workers, migrant domestic workers and private employment agencies.

Admittedly, baby steps have been taken by the government over the years. The Law and Policy Brief analysis refers to the draft Domestic Workers Welfare and Social Security Bill of 2010 that focused on the exploitation of women and children as domestic workers. It pointed out that rampant exploitation and oppression were flourishing in the absence of any legal protection. But the effort was in vain as the Bill is yet to be passed by parliament.

Following this, a task force was set up which submitted its final report to the Ministry of Labour and Employment on September 12, 2011. In its recommendations, it proposed adoption of a national policy on domestic workers so that they could reap the benefits of a labor rights’ framework. The policy is nowhere in sight.

The task force also pushed for a code of practice which was nothing but a clutch of regulatory guidelines which were to take care of pressing issues till a proper and separate law on domestic workers was in place.

It is heartening to know from the report that the national policy, touted as a landmark document to serve the interests of domestic workers, was drafted. It recognizes significant contributions made by domestic workers for India’s economy and lays the responsibility on states and the center to protect the labor rights of domestic workers. It also breaks down the concept of domestic workers into part-time workers, full-time workers and live-in workers. It recommends a minimum wage, normal hours of work, overtime compensation, paid annual leave, sick leave, maternity benefits, pension benefits, the right to form unions, guidelines for placement agencies handling employment of domestic workers and grievance redressal, among others.

Domestics demand legislation to safeguard their rights
Domestics demand legislation to safeguard their rights

Women domestic workers in India received their share of attention in 2013. The report says that “domestic work” was included within the ambit of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. While defining the woman domestic worker, the Act notified “sexual harassment” as physical contact and advances; a demand or request for sexual favors; sexually colored remarks; showing pornography; any other unwelcome physical, verbal or non-verbal conduct of sexual nature. The law was notable because for the first time, domestic space was included as part of the workspace for women.

Actually, the government has tried to implement a few of the recommendations made by the task force. But we also learn that the delivery has not been as effective as it should be. For example, domestic workers are clueless about the insurance scheme and benefits unrolled for them. The criteria for availing of the insurance scheme is shrouded in confusion. Then, the states need to get cracking on extending minimum wages to domestic workers.

The challenges remain. The report zeroes in on the three major challenges that need to be overcome to bring about a radical shift in the way domestic workers function in India. They are: classifying the type of work performed by a domestic worker; identifying an employer-employee relationship in a domestic household; recognizing domestic environment as a workplace.

The Modi government would win plaudits and accolades from progressive-minded people from all across the world if it enacts effective legislation to protect the interests of domestic workers. The resistance would be stiff. The task is difficult, not insurmountable.

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