Abstract
Domestic workers, constitute a large population of workforce in India, has been absent from legal landscape of labour laws of the country. The nature of employment, employer-employee relationship and indeterminate work environment are amongst several factors to deny the statutory benefits to domestic workers. The absence of statutory safeguards makes the workers vulnerable and reasons to exploit them from the hand market forces. The labour market refuses to acknowledge the domestic workers as ‘worker’ under employment related laws. The government has enunciated policies with an aim to ameliorate the livelihood conditions of domestic workers. The policies, broadly, treat the domestic workers at par with marginalized and poor sections of the society. Though the policies aim to improve the conditions of the workers, they fall short of conferring claimable interest upon domestic workers. The absence of a legal right on domestic worker absolve the state from committing to quality of life to them. The welfare-oriented policies have created choice-based implementation mechanism whereas the right-based would obligate the state to commit to the legal rights independent of conditionalities such as resources, political will or bargaining capacity of the workers. The chapter unravels the definitional content of ‘domestic workers’ as elucidated in different international and national literature. It elaborates the applicability of existing laws and policies on labour laws in relation to domestic workers. It helps in building the argument that there is a need to make paradigm shift in legal approach from welfare-based to right-based in order to ensure adequate protection to a large constituents of the workforce who are making significant contribution in economic growth of the country.
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Notes
- 1.
Black’s Law Dictionary.
- 2.
See, Lutz (2002).
- 3.
Chang and Abramovitz (2000).
- 4.
Mahanta and Gupta (2015).
- 5.
Report of the Second Indian National Labour Commission (2002, p. 90).
- 6.
ILO (1951).
- 7.
Government of India has not ratified the Convention No. 189 on Decent Work for Domestic Workers.
- 8.
In 2009, the Union Ministry of Labour and Employment constituted a Task Force on domestic workers. The Task Force submitted a Draft National Policy for consideration. In the report, the Task Force defined domestic worker. http://pib.nic.in/newsite/erelcontent.aspx?relid=73345. Accessed 30 June 2017.
- 9.
Labour Code on Social Security 2017 A Bill, 2.40.
- 10.
WIEGO is a global network focused on securing livelihoods for the working poor, especially women, in the informal economy. http://wiego.org/. Accessed 1 July 2017.
- 11.
Ibid.
- 12.
Chigateri et al. (2016).
- 13.
International Labour Organization (2017).
- 14.
D’Souza (2010).
- 15.
Chigateri et al. (2016).
- 16.
National Skill Development Corporation. Report on Human Resource and Skill Requirement in the Domestic Help Sector, p. 8.
- 17.
The National Sample Survey Organization (NSSO) classifies the following occupations as domestic labour: housemaid/servant, cook, gardener, gatekeeper/chowkidar/watchman, governess/baby-sitter, tutor, driver and ‘others’.
- 18.
SEWA (2014, p. 2).
- 19.
Vasanthi (2011, p. 91).
- 20.
Chigateri et al. (2016).
- 21.
The Domestic Workers (Conditions of Employment) Bill, 1959.
- 22.
Right to Dignified Labour: A Case for Notifying the National Policy on Domestic Workers in India. https://www.researchgate.net/publication/301326435_Right_to_Dignified_Labour_A_Case_for_Notifying_the_National_Policy_on_Domestic_Workers_in_India. Accessed 5 July 2017.
- 23.
Rao (2017).
- 24.
For reference, Section 10 of The Maharashtra Domestic Workers Welfare Board Act, 2008.
- 25.
The Times of India (2016).
- 26.
Section 2(k) of the Act.
- 27.
Section 5 of the Act.
- 28.
Section 3: The Act stipulates formulation of suitable welfare schemes for unorganized workers on the matters relating to: (i) life and disability cover, (ii) health and maternity benefits, (iii) old age protection and (iv) any other benefits as may be determined by the central government through the National Social Security Board.
- 29.
i. Indira Gandhi National Old Age Pension Scheme. (Ministry of Rural Development)
ii. National Family Benefit Scheme. (Ministry of Rural Development)
iii. Janani Suraksha Yojana. (Ministry of Health and Family Welfare)
iv. Handloom Weavers Comprehensive Welfare Scheme. (Ministry of Textiles)
v. Handicraft Artisans Comprehensive Welfare Scheme. (Ministry of Textiles)
vi. Pension to Master Craft Persons. (Ministry of Textiles)
vii. National Scheme for Welfare of Fishermen and Training and Extension. (Department of Animal Husbandry, Dairying & Fisheries)
viii. Aam Admi Bima Yojana. (Department of Financial Services)
ix. Rashtriya Swasthya Bima Yojana. (Ministry of Health and Family Welfare)
Three more schemes are added in the year 2016, Atal Pension Yojna and Pradhan Mantri Jeevan Jyoti Bima Yojna and Pradhan Mantri Suraksha Bima Yojana.
- 30.
Government readies domestic workers policy, proposes Rs. 9,000 minimum pay with benefit. http://www.firstpost.com/india/govt-readies-domestic-workers-policy-proposes-rs-9000-minimum-pay-benefits-2395116.html. Accessed 5 July 2017.
- 31.
Rashtriya Swasthya Bima Yojana. http://www.rsby.gov.in/about_rsby.aspx. Accessed 5 July 2017.
- 32.
Heitlinger (1979).
- 33.
Routh (2016).
- 34.
Pawar (2012).
- 35.
Ibid.
- 36.
Kirkemann Boesen and Martin (2007).
- 37.
Kirkemann Boesen and Martin (2007, p. 10).
- 38.
Articles 15 and 16 of the Constitution of India.
- 39.
Article 39(d) of the Constitution of India.
- 40.
Article 19(1)(c) of the Constitution of India.
- 41.
Article 42 of the Constitution of India.
- 42.
Article 41 of the Constitution of India.
- 43.
Article 23 of the Constitution of India.
- 44.
Article 24 of the Constitution of India.
- 45.
Article 43A of the Constitution of India.
- 46.
Consumer Education and Research Centre v. Union of India, AIR 1995 SC 923.
- 47.
Bandhua Mukti Morcha v. Union of India (1997) 10 SCC 549.
- 48.
People’s Union for Democratic Rights v. Union of India, AIR1982SC1473.
- 49.
See Vishaka v. Union of India, AIR1997SC3011; Air India v. Nargesh Mirza, AIR 1981 SC 1829; Randhir Singh v. Union of India, AIR1982SC879.
- 50.
Article 19(1)(g) states: ‘to practise any profession, or to carry on any occupation, trade or business’.
- 51.
Green (2013).
- 52.
See Cooper and Wood (1962).
- 53.
Supra note 14, p. 3.
- 54.
Domestic Workers Convention 2011(No. 189). http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C189. Accessed 3 July 2017.
- 55.
Article 7 of ILO Convention No. 189.
- 56.
The Domestic Workers’ Welfare Bill, 2016, Bill No. 204 of 2016.
- 57.
The Domestic Workers (Welfare and Regulation of Employment) Bill, 2015, Bill No. 21 of 2015.
- 58.
See Oelz (2011, p. 8).
- 59.
SEWA (2014).
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Shankar, U. (2019). Entitlements of Domestic Workers in India: Welfare or Right. In: Mahanta, U., Gupta, I. (eds) Recognition of the Rights of Domestic Workers in India. Springer, Singapore. https://doi.org/10.1007/978-981-13-5764-0_2
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