Above: Domestic workers are among the most marginalised workers/Photo: stockpicturesforeveryone.com

The Delhi HC has issued notices to the Delhi government and the Department of Labour to give Domestic workers the right to form trade unions, thereby affirming their constitutional hopes

 

By Upendra Baxi

All eyes these days are on the Supreme Court. Although an in-house inquiry has not found any substance in the allegations of sexual harassment against the chief justice of India (CJI), the allied question of whether there was any attempt afoot to “de-activate” him and erode the independence of the judiciary is now to be followed by a separate inquiry (by Justice AK Patnaik, a former judge of the Supreme Court). These developments will be long debated till a constitutionally valid route to the integrity of the institution and pursuit of gender justice normativity is fully discovered and put firmly in place. But we must not lose sight of an equally momentous, quiet normative revolution now on its way in the Delhi High Court concerning how best to protect the precious fundamental human right to association. That right is subject to reasonable restrictions by a law but it cannot be abrogated in the name of such restriction.

Justice JR Midha of the Delhi HC has issued notices to the Delhi government and the Department of Labour on a petition filed to give recognition to the Delhi Domestic Workers’ Union under the Trade Unions Act, 1926. Justice Midha has thus affirmed constitutional hope for domestic workers by expressing support for their right to form trade unions and for collective bargaining. While issuing a notice to the concerned authorities, he said: “There is need for the government to provide safeguards to workers of the unorganised sector and recognise the right of the vulnerable for organising and collective bargaining.”

This germinal observation was made when the Delhi Domestic Workers’ Union (DDWU), which had sought trade union status by various petitions since 2016, all of which were rejected, finally moved the Delhi HC in April 2019. Their claim was as simple as it was stark. In Bangalore Water Supply & Sewage Board & others vs R Rajappa & others, a constitution bench of the SC had held that the work of domestic workers fell well within the definition of industry, which deployed a “triple test” to define it. Private placement agencies “are involved in a systematic activity of providing domestic workers, there is co-operation between private placement agencies and domestic workers, and there is delivery of services that are domestic in nature to satisfy human wants and wishes,” argued the DDWU.

But the Deputy Registrar of Trade Unions, South District, Delhi, ruled (by the order dated January 24, 2019) that “a trade union can only be registered if it is formed for regulating the relations between workmen and employer or between workmen and workmen or between employer and employee but in the present case, the persons working as domestic help are neither workmen nor domestic in an industry as defined in the Act”. Further, it was said, “The Industrial Disputes Act, 1947, is also not applicable in respect of home/ residence and a trade union cannot raise disputes regarding employment of domestic helps under ID Act, 1947”. This ruling is in clear violation of the above mentioned SC ruling. Besides, as argued by the petitioners, it ignores a well-known social reality—that Resident Welfare Associations and numerous housing societies “control the employment of the domestic workers through laying down rules and regulations of employment in these societies and RWAs”, fix the wages and exercise “control over entry and exit of the domestic workers”. Clearly, employment supervision exists in abundant measure.

The general conference of the ILO produced Convention No 189 in pursuit of the principles of “decent work” and “social justice for fair globalisation”. It accepted the global social fact that “domestic workers constitute a significant proportion of the national workforce and remain among the most marginalised”. It recognised that “domestic work continues to be undervalued and invisible” and is “mainly carried out by women and girls, many of whom are migrants or members of disadvantaged communities and who are particularly vulnerable to discrimination in respect of conditions of employment and work, and to other abuses of human rights”.

Article 3(2) of the Convention prescribes that each “member shall, in relation to domestic workers, take the measures set out in this Convention to respect, promote and realise the fundamental principles and rights at work, namely: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation”. Article 3(3) additionally provides that the convention obligations extend to “taking measures to ensure that domestic workers and employers of domestic workers enjoy freedom of association and the effective recognition of the right to collective bargaining” and the protection of “the right of domestic workers and employers of domestic workers to establish and, subject to the rules of the organisation concerned, to join organisations, federations and confederations of their own choosing”.

India has signed this Convention and the Ministry of Labour and Employment had on October 10, 2017, published the draft of the national policy for domestic workers that recognised their right to form unions and associations. The draft policy thus shows the well-formed, though embryonic, executive intention and recognises the well-established universal and inalienable right of collective bargaining of domestic labour.

It is, therefore, a matter of great surprise that the deputy registrar passed an unspeaking order (giving no grounds for the decision) and gave reasons only when the HC directed it to do so on November 19, 2018. The speaking order came, as noted, only in the last week of January 2019. And when it came, it is astonishing that it should proceed to give reasons in blithe disregard of binding SC decisions and a globally declared policy of distributive justice and labour rights as human rights. Surely, as to the latter, the deputy registrar of labour should have adverted to Article 50, Part IV of the Constitution.

It is true that in 2005 in State of Uttar Pradesh vs Jai Bir Singh, a five-judge bench of Justices N Santosh Hegde, KG Balakrishnan, DM Dharmadhikari, Arun Kumar and BN Srikrishna favoured a review of the 1978 judgment partly because Justices Krishna Iyer, MH Beg, PN Bhagwati and DA Desai did not have the benefit of the dissenting opinion of the other two justices (Justices Jaswant Singh and VD Tulzapurkar) and the partial dissenting opinion of Justice Yashwant Chandrachud. This was because those opinions were delivered subsequent to the delivery of the majority judgment. Also to be considered was the fact that the legislature amended the Industrial Disputes (Amendment) Act in 1982 due to which certain specified types of activities were excluded from the purview of the word “industry”. But the amendment lies yet unenforced for nearly four decades.

The ideological critique by some justices was that the decision contains an “overemphasis on the rights of workers”, particularly in situations of payment of “huge amounts as back wages” to workers illegally terminated or retrenched and that these awards sometimes “take away the very substratum of industry”. Given industrial growth statistics since then, the indictment of any deterrent effect on the industry seems overestimated. In any event, a nine-judge bench (as per the orders on January 2, 2017) has not yet been constituted. But as concerns Article 141, the law declared by the SC is binding on all courts and tribunals in India. It is strange that the deputy registrar should feel free to act as if there was no controlling precedent.

One does not know what arguments one can make consistent with the case law and global social change policy against Justice Midha’s initial wise observations? And it would be very surprising if the State were to foreswear the international law commitments in making a national policy. The best course of action for the State will be to follow Justice Midha’s exhortation and grant the status of a trade union to domestic labour rather than imperil the collective right to association.

—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer