The coronavirus pandemic has acted to highlight and exacerbate the failures in access to justice for domestic workers in India. The spread of Covid-19 and the ensuing lockdown measures implemented by the Government of India to contain its spread has had a profound impact on work and workers. In India, women employed in paid domestic work have been amongst the most critically hit. As per the National Sample Survey Organization, there are as many as four million paid domestic workers in India, though unofficial data suggests that there might be close to 90 million.
After India descended into lockdown on 25th March 2020, several paid domestic workers lost their livelihood overnight owing to lockdown restrictions. Despite the precariousness of their living conditions, the Indian government has largely remained apathetic to their situation. Given that domestic workers are largely employed through informal channels, several of them did not qualify for any welfare benefits rolled out by the Government, leaving them worse off than other groups of workers.
The predicament faced by paid Domestic Workers the past few months is not new. Like other factors, the pandemic has only exposed the existing fault lines of our society and amplified them.
Domestic work has a long history of being undervalued and invisibilized in India. Domestic work forms a part of care work which has traditionally been cast as women’s work. This work has been popularly understood as work women do out of “love” and virtue” and has been kept out of the mainstream understanding of labour. Despite domestic work becoming commodified, the gendered connotation of the work has still stuck to it and has led it to be perceived as unproductive work that belongs to the private realm, and not the general market place.
Law and policy in India have largely mirrored the societal understanding of domestic work. The legislature has been reluctant to accept the home as a ‘workspace’, and recognise work performed at home as ‘productive labour’. This is why in the core labour laws of the country, the definitions of “workman”, “employer” and “establishment” have been designed in such a way that it applies only to workers in industries and establishments but not households.
Even progressive legislations like The Minimum Wages Act, 1948 (MWA) and The Equal Remuneration Act, 1976 (ERA) that were passed to prevent exploitation of workers and ensure gender equality in work do not embrace care work as legitimate work and have only reinforced the gendered notions of care work.
The MWA gives State Governments the discretion to notify minimum wages for any employment that employs 1000 or more workers. Despite this, only few States have brought domestic work within the fold of the MWA. The determination of wage rates under the MWA depends upon the distinction the work falls in i.e. highly skilled, skilled, semi-skilled or unskilled. Notably, this distinction has not been relied upon by the State to fix wages for domestic work, and instead, the wages have been determined by merely describing the tasks domestic work entails. This lack of distinction makes it difficult to compare wages set for other jobs and wages set for domestic work. As a result, State Governments have consistently set the minimum wage rate for domestic workers lower than that of unskilled workers in other employments. The lack of categorisation of domestic work in terms of skill, as opposed to other employment, is highly degrading to the work performed by domestic workers. It also devalues their work, which often is highly skilled.
Studies have shown that in the state of Kerala, the minimum wage rates notified for domestic work done by caretakers, who are predominantly women, have consistently been lower than what is notified for other domestic work performed by men like security guards and gardening workers.
This wage distinction, despite being discriminatory towards women, is not open to challenge under ERA. The ERA promises equal wages for “same work” or “similar work” not paying heed to the fact that several women are pushed to work in stereotypical or gendered jobs which despite being of equal value do not qualify them to seek benefit under the Act. The result of such a formulation noted labour academic Kamala Sankaran notes is occupational segregation by gender and a steep wage gap between men and women.
There have been strong calls from several sections of society to bring domestic work within the fold of the Indian labour law regime. While it is important to push for the legitimisation of domestic work by recognising it within the law, adequate care must be taken to ensure that a gendered understanding of housework and its consequent devaluation does not find subsequent reinforcement in the law. The need of the hour is sector-specific legislation for domestic workers that recognises their work as productive labour and bestows on them rights and benefits including a cap on work hours, maternity benefits and overtime pay amongst others.
Our guest writer is Madhulika is an advocate practicing at the Madras High Court. She is interested in the fields of labour law and anti-discrimination studies.