Households as Workspaces: Towards the Safety of Women Domestic Workers in India

by Mouli Banerjee

On April 28, workplaces around the world commemorated workers who have suffered illness or injury and even death, due to workplace-related hazards and incidents. It is recognized as the “International Day of Mourning” for workers, or what International Labour Organisation has declared the ‘World Day for Safety and Health at Work’. Yet, on the occasion of days like this, one must keep in mind the workers who do not get sufficiently mourned, whose rights are not safe enough and whose workplaces are barely recognised. The elusive safety and security at purportedly “unconventional” spaces of work, like the household, thus deserve special scrutiny.

Paid domestic work, around the world, is not sufficiently recognised or regulated, consequently exposing such workers to vulnerabilities. These vulnerabilities are rooted in the unequal societal structures. One on hand, there is a sense of servitude attached to domestic work, derived from a historically feudal understanding of power relations.  On the other hand, there is an assumption that domestic work and the domestic space itself are mostly feminine, which results in it not being seen at par with other male-dominated work. The International Labour Organisation (ILO) data suggests that globally, as many as 53 million people are employed as domestic workers [1]. The economic vulnerability of the work opens up all domestic workers to risks of psychological and physical abuse.  Given that about 83% of all domestic workers around the world are women [2], these risks are magnified for them.

This reluctance to acknowledge the household as a workplace is misogynist and dangerous. It exposes women engaged in domestic work to slavery, sexual harassment of various degrees, and other human rights abuses. However, in context of the safety and health in workspaces, it is important to recognize that such women lack safety at work not only because of their gender. The vulnerability of women domestic workers in India, similar to global patterns, not just is rooted in the nature of the work itself but also directly related to the ways in which Indian societies view structures of caste, class and gender.  Women who work in other households, mainly engaged in menial labour, mostly belong to a lower economic group. Class and often caste hierarchies coincide, for women in domestic work, making them the marginalised “Other” women on multiple levels. Thus, they become the less important workers of the economy, and their workplace loses out in priority, to other conventional workspaces, when it comes to protecting the safety and security of workers.

The problem with the way the government has dealt with the rights of domestic workers in India lies precisely in this- that while the laws recognise such women as vulnerable to sexual abuse at their workplaces, it does a poor job of recognising domestic work as work in itself. By failing to recognise the fact that the economic insecurity suffered by such women contributes to the risks to personal security that such work entails, the laws in place in India fail to provide for the safety and health of these women at their workplaces.   

At the very outset, one must note that globally, almost 10.5 million domestic workers are actually children [3]. In India too, children are forced to work as domestic help, and feed into the vicious cycle of physical and sexual abuse. Yet, while such employment of children in India is criminalised, our national labour laws do not recognise adult domestic work at all. Domestic workers are excluded from the Factories Act 1948 (no. 63 of 1948) and the Minimum Wages Act, No. 11 of 1949, for example. It is up to state governments to issue notifications on minimum wages for domestic workers, but only a few states, like Karnataka, Kerala, Andhra Pradesh, Bihar, Meghalaya, Tamil Nadu and Rajasthan have issued such notifications [4].  Domestic workers, thus, fall within the category of unorganised labour, and this further lack of regulating mechanisms also means added difficulty in collating substantial nation-wide data on women engaged in such work. Locally concentrated studies by several non-governmental organisations suggest problems such as lack of specified work hours, irregular payment or even non-payment of wages, lack of holidays, added with verbal and often physical abuse. This economic insecurity also is a deterrent when it comes to speaking up against instances of physical and sexual abuse, for fear of being unemployed.

The lackadaisical approach of the legislature towards this is further evident in the fact that domestic workers have been included in the Unorganised Workers Social Security Act, 2008 (Act 33 of 2008) only after an intervention by the Supreme Court [5]. Again, their inclusion within the purview of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, was not without struggle and even within it, loopholes remain.

For the longest time, there were no laws at all to protect women from sexual harassment at workplaces in India. The Supreme Court’s Vishaka Guidelines (Vishakha vs State of Rajasthan, 1997) were the primary framework followed in case of such abuse. And yet, when finally in 2010 the National Commission for Women submitted a draft on Sexual Harassment at Workplace Bill to the Parliament of India, it too did not include domestic workers. The authorities purportedly argued that the lack of witnesses inside a household would make it difficult to prove instances of sexual harassment, and hence households were excluded from the definition of workplaces. It was only after severe criticism and protest from several quarters, that the Act included domestic workers [6].

However, while in case of other workplaces, the Act mandates the creation of an Internal Complaints Committee, which must take immediate action when a complaint of sexual harassment is made by an employee, in case of domestic workers, this is not possible. The law mandates that every district must have in place a Local Complaints Committee instead, which a woman domestic worker may approach, in case of sexual harassment. This makes their inclusion into the law ineffective in practice, because, added to economic vulnerability of their situation, mistrust in government authorities results in domestic workers’ reluctance in approaching such institutions.

One could argue that unionising domestic workers, in order to make them aware of their economic as well as personal rights can go a long way in redressing this.  There are indeed several workers’ unions that have been working towards this, like the National Domestic Workers Movement, for example, which has branches in 23 states across the country [7], a lot still remains to be done. Another regulating mechanism could be placement agencies. Yet, commentators like N. Neetha have shown how such recruitment agencies instead often add to the abuse, by withholding wages and providing inadequate training. They are also often unregistered themselves, and the lack of any concrete state mechanism to regulate and monitor such agencies allows them to evade legal supervision[8].

Thus, when talking of the safety and security of employees at a workplace, in the specific context of women domestic workers in India, one cannot separate the legal reforms required in labour laws and in laws protecting from personal assaults. The government, thus, not only needs to modify labour laws applicable within the country, but recognize its responsibility vis-à-vis international laws as well.

Global data from 2014, by the International Trade Union Confederation, estimates that millions of migrant workers from poor counties including India are employed as domestic workers in the Gulf countries, and of them, about 2.4 million women end up in slavery [9]. Yet, in spite of being a signatory to several international labour conventions, India is not among the mere 22 countries that have ratified the ILO Domestic Workers Convention of 2011 (C189) [10]. The convention recognises that not only are most domestic workers women, but many of them are “migrants or members of disadvantaged communities and who are particularly vulnerable to discrimination”, and puts specific focus on developing countries, where because of “historically scarce opportunities for formal employment, domestic workers constitute a significant proportion of the national workforce and remain among the most marginalized” [11]. In light of this, India’s reluctance to ratify this convention underscores the bias inherent in India’s legal mechanisms.

It is interesting that the International Labour Organisation itself recognises the need for safety in domestic work as a separate rubric, by celebrating International Domestic Workers’ Day on June 16,   to commemorate the adoption of the above mentioned convention [12]. The ILO commemoration in 2016 brings into focus the need for the participation of the employers, or owners of households, in a dialogue on the protection of the rights of domestic workers. This reluctance of the employers to participate towards the cause is evident in India as well, as surveys by NGOs like Jagori attest [13]. The household cannot truly be regulated as a workspace, then, if the employers do not come together and recognise their responsibilities towards their employees.

In conclusion, on the occasion of the ‘World Day for Safety and Health at Work’, in the specific context of women domestic workers in India, one cannot ensure safety or health for the women at risk without first recognising and regulating their workspaces, and this can be achieved only through multiple levels of collaboration between the government, the society and the household itself.

NOTES:

[1] ‘Who are Domestic Workers?’, http://www.ilo.org/global/topics/domestic-workers/WCMS_209773/lang–en/index.htm

[2] Ibid.

[3] ‘Ending Child Labour in Domestic Work’, ILO 2013, http://www.ilo.org/ipecinfo/product/download.do?type=document&id=21515

[4] Cf. ‘A Report on Domestic Workers: Conditions, Rights and Responsibilities A study of part-time domestic workers in Delhi’, Jagori, http://www.jagori.org/wp-content/uploads/2006/01/Final_DW_English_report_10-8-2011.pdf  , Page 9-10

[5] Ibid.

[6] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, http://www.iitbbs.ac.in/notice/sexual-harrassment-of-women-act-and-rules-2013.pdf

[7] Cf. ‘A Report on Domestic Workers: Conditions, Rights and Responsibilities A study of part-time domestic workers in Delhi’, Jagori, http://www.jagori.org/wp-content/uploads/2006/01/Final_DW_English_report_10-8-2011.pdf, Pages 8-11.

[8] Neetha, N. 2008.‘Regulating Domestic Work’. Economic and Political Weekly,Vol. 43, No. 37, September 13, 2008

[9] ‘Facilitating Exploitation: A Review of Labour Laws for Migrant Domestic Workers in GCC Countries’, ITUC Legal and Policy Brief, Pages 1, 7. http://www.ituc-csi.org/IMG/pdf/gcc_legal_and_policy_brief_domestic_workers_final_text_clean_282_29.pdf

[10] Ratifications of C189- (Convention Concerning Decent Work For Domestic Workers)  http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:2551460

[11] C189 – Domestic Workers Convention, 2011 (No. 189), http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:2551460

[12] ‘Decent Work for Domestic Workers begins at home’, http://www.ilo.org/global/topics/domestic-workers/events-and-training/WCMS_371983/lang–en/index.htm

[13] Cf. ‘A Report on Domestic Workers: Conditions, Rights and Responsibilities A study of part-time domestic workers in Delhi’, Jagori, http://www.jagori.org/wp-content/uploads/2006/01/Final_DW_English_report_10-8-2011.pdf, Page 20

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Gender Violence in India Report 2014: Workplace Sexual Harassment

Sexual harassment at the workplace, which India’s criminal laws often group with street harassment, is nevertheless a distinct category of gender violence. It is defined by its occurrence in a ‘workplace’, or any physical or virtual space where individuals are employed to work, either formally or informally, with or without remuneration. Under the newly passed Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the ‘workplace’ can include any public or private sector organisation; a ‘dwelling place or house’ where individuals may be employed as domestic workers; the unorganised sector; or any place that an employee may visit as part of her job, including the transportation that her employer may provide for this purpose.[1]

Workplace sexual harassment, as defined by the new law, refers to any unwelcome sexual behaviour, either directly or by implication, and includes physical contact and advances; a demand or request for sexual favours; making sexually coloured remarks; showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.[2] The law also address sexual harassment that creates a hostile work environment, interferes with the victim’s work, affects her health or safety, or is accompanied by any implicit or explicit preferential or detrimental treatment or threats to alter her employment status.[3] Moreover, except in the case of domestic workers, a woman who files a complaint of workplace harassment does not have to be employed at the workplace where the offence has occurred. Thus, even a customer at a store or a client at a company can make a complaint of workplace harassment.[4]

Know the law

The last year has been a landmark year for gender violence legislation in India; in April 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 came into force, legally obligating employers to address workplace harassment. This law is based on the Vishaka Guidelines, which were formulated by the Supreme Court in 1997 in response to the landmark case of Vishaka and others v. State of Rajasthan and others.[5]

The new law draws on the principles of equality and the right to life enshrined in the Indian Constitution, as well as on the right to a safe working environment while practising any profession, occupation, trade or business. In emphasising the right to work with dignity, without having to face sexual harassment, it also draws from international treaties such as the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which India ratified in 1993.

Under the new law, employers are expected to handle complaints of workplace harassment by setting up an Internal Complaints Committee, which should be led by a senior female employee.[6] Moreover, every district is expected to have a Local Complaints Committee to handle complaints from establishments with fewer than 10 employees, which may not have the human resources to constitute a fair and unbiased committee.[7] This law imbues Complaints Committees with the powers of a civil court.[8] If the committee finds the alleged harasser to be guilty, then it can make a recommendation to the employer (or the District Officer) to take action against that person, and can also recommend that the harasser monetarily compensate the victim. The Committee must complete its inquiry within 90 days, and the employer or District Officer must act upon the recommendations of the Committee within 60 days of receiving them.[9]

Employers are also expected to provide a safe working environment for all employees, to prominently display signs and notices detailing the consequences of workplace harassment, to organise workshops for employees on the new law, and to assist the complainant if she chooses to file a criminal case against her alleged harasser.[10] All Complaints Committees must also submit annual reports to the government. If an organisation fails to form a properly functioning Committee, it can be fined up to Rs. 50,000; if, after being fined, it has still not complied with its duties under this law, it could face the cancellation of its license or registration.[11]

The new law has attracted criticism for a number of reasons: the most troubling is the inclusion of a provision that encourages ‘conciliation’ before launching an inquiry.[12] Thus, the Committee’s first task when handling a complaint of workplace harassment may be to attempt some kind of settlement between the complainant and the alleged perpetrator, and a full inquiry will only be conducted if this is not successful.

Moreover, the new law includes a safeguard against ‘false’ complaints, giving the Complaints Committee the authority to recommend action against a woman making a malicious complaint. While it also states that the absence of proof alone is not enough reason to suspect a false complaint, and that the malicious intent of the complainant must be proved before action is taken against her, this condition may nevertheless deter victims from coming forward to report workplace harassment.[13]

In terms of criminal law, as with street sexual harassment, the newly-introduced Section 354A of the Indian Penal Code (under the Criminal Law (Amendment) Act, 2013) can be used in cases of workplace sexual harassment, with ‘physical contact and advances involving unwelcome and explicit sexual overtures’, ‘a demand or request for sexual favours’ and ‘showing pornography against the will of a woman’ being punishable with imprisonment up to three years, or a fine, or both[14]; and ‘making sexually coloured remarks’ being punishable with imprisonment for up to one year, or a fine, or both.[15]

In addition, assault or criminal force intended to ‘outrage [a woman’s] modesty’, under Section 354, is punishable with imprisonment of at least one year and up to five years, in addition to a fine[16]; offences under Section 509, including any ‘word, gesture or act intended to insult the modesty of any woman’, can be punished with imprisonment up to three years, in addition to a fine.[17]

Keeping count

There is no reliable data available as yet on the number of cases that are reported to Internal and Local Complaints Committees under the new workplace harassment law. The National Crimes Record Bureau (NCRB) has recorded the number of cases filed under Section 354 (‘assault on women with intent to outrage her modesty’, referred to in pre-2012 reports as ‘molestation’) and Section 509 (‘’insult to the modesty of women’ through words, gestures or acts, referred to in pre-2012 reports as ‘sexual harassment’). Both these sections extend beyond workplace sexual harassment to include other forms of gender violence as well, such as street harassment. Table 1, as well as Figures 1 and 2, summarize the past six years of NCRB data. These figures are also included in Prajnya’s report on street sexual harassment.

 

Table 1: Sexual Harassment and Assault Cases Filed, NCRB

Year 2008 2009 2010 2011 2012 2013
Section 354 cases filed 40413 38711 40613 38711 42968 70739
Section 509 cases filed 12214[18] 11009[19] 9961[20] 11009[21] 8570[22] 12589[23]

Figure 1                                                           

WSH I

Figure 2

WSH II

According to an opinion poll conducted by Oxfam India and the Social and Rural Research Institute, titled ‘Sexual Harassment at Workplaces in India 2011-2012’, 17% of working women in India say they have experienced workplace sexual harassment. The survey covered 400 women in Delhi, Mumbai, Bangalore, Chennai, Kolkata, Ahmedabad, Lucknow and Durgapur, across both the formal and the informal sectors. Of these, 66 respondents (17%) reported that they had faced a total of 121 incidents of workplace harassment. Of these, 102 incidents were non-physical, while the remaining 19 were cases of physical harassment.[24]

The survey was conducted prior to the passage of the new law requiring the establishment of Complaints Committees. It found that the majority of these victims did not take any formal action against their harassers, due to fear of losing their jobs, the absence of a formal complaints mechanism at their workplace, fear of stigmatization, and lack of awareness of their legal rights. The survey also found that the women most vulnerable to workplace harassment were those working as labourers (29%), followed by domestic workers (23%) and those working in small scale manufacturing (16%).[25]

Prominent cases

  1. Statesman Case

In a case going back to 2002, Rina Mukherji, a reporter at Kolkata-based newspaper The Statesman, fought to be reinstated after she was fired for alleging that the paper’s news coordinator, Ishan Joshi, had sexually harassed her. In February 2013, eleven years after the incident was reported, the Industrial Tribunal awarded her full back wages from the time of her termination, as well as reinstatement to her original position.[26]

  1. Prasar Bharati Case

In another case, two All India Radio (AIR) employees were fired and one suspended by public broadcaster Prasar Bharati in April 2013, following complaints of workplace harassment from over 25 radio jockeys (RJs). The complainants alleged that the harassment had been going on for two years, and Prasar Bharati initiated an internal inquiry into the matter.[27]

As of February 2014, in response to incidents of senior officials harassing junior female employees of the organization, Prasar Bharati has prepared a draft memorandum of understanding with the National Commission of Women. The memorandum proposes a joint action that will engage the organization’s women’s panel to train staff in acceptable behaviour, help staff distinguish between acceptable and non-acceptable behaviour and explain what sexual harassment constitutes to its 34,000-member workforce. If sealed, this will reportedly be the first attempt by a government body to sensitize its employees to sexual harassment at the workplace.[28]

  1. Sun TV Case

In March 2013, a newsreader at Sun TV in Chennai alleged that news editor V. Raja had maliciously assigned her to the early morning news slot, saying that he would only change her shift if she gave in to his sexual advances, and threatening to fire her if she tried to take action against him. She also said that Raja had tried to speak to her and text her late in the night, and that Raja’s aide, Vetrivendan, had also made advances towards her, offering her a pay raise in return. In the absence of a separate criminal law on workplace harassment, charges against Raja were filed under the Tamil Nadu Prohibition of Harassment of Women Act, which had been passed in response to the street harassment-related death of college student Sarika Shah in 1998. In March 2013, V. Raja was arrested, granted bail and reportedly permitted to return to work in spite of the police complaint against him. The complainant was reportedly suspended from work the very next day.[29] However, according to the Network of Women in Media, India, a professional network of women journalists and media persons in the country, the complainant’s ordeal did not end here; she allegedly received death threats and could not find employment for several months as media houses shunned her.[30]

In December 2013, the complainant was finally given a job at Polimer TV, a Tamil news channel, and on July 1st, 2014, a metropolitan court issued a non-bailable arrest warrant to V. Raja. The case continues to be sub-judice.[31]

[1] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, http://wcd.nic.in/wcdact/womenactsex.pdf, accessed 26th October 2013. Section 2(o) defines the ‘workplace’.

[2] See above note 1. Section 2(n) defines ‘sexual harassment’.

[3] See above note 1. Section 3(2).

[4] See above note 1. Section 2(f).

[5] Vishaka and others v. State of Rajasthan and others (JT 1997(7) SC 384). This case involved the gang-rape of Bhanwari Devi, a government-employed social worker who had attempted to prevent a mass child marriage in her village in Rajasthan, and was subsequently attacked by five men seeking revenge for her actions.

[6] See above note 1. Section 4(2)(a).

[7] See above note 1. Section 6-7.

[8] See above note 1. Section 11(3). There are some exceptions: for instance, in the case of domestic workers, the Local Complaints Committee can forward the complaint to the police, to be registered under Section 509 of the Indian Penal Code.

[9] See above note 1. Section 13(4).

[10] See above note 1. Section19.

[11] See above note 1. Section 21 outlines the reporting duties of Complaints Committiees; Section 26 lays out penalties for noncomplying employers.

[12] Vasant, K., ‘New Workplace Sexual Harassment Law “Already Out Of Date”’, India Real Time Wall Street Journal, 29th April 2013, http://blogs.wsj.com/indiarealtime/2013/04/29/new-workplace-sexual-harassment-law-already-out-of-date/, accessed 2nd September 2014. See also Sexual Harassment of Women at Workplace Act, 2013; Section 10 of the Act recommends conciliation ‘before initiating an inquiry’ (see above note 1).

[13] See above note 1. Section 14(1-2).

[14] Criminal Law (Amendment) Act, 2013, Ch. 2(7), http://indiacode.nic.in/acts-in-pdf/132013.pdf, accessed 8th October 2014. Section 7 of the Act inserts Section 354A into the Indian Penal Code. Section 354A(1)(i-ii) lists the offences, and Section 354A(2) lays out sentencing rules.

[15] See above note 14. Section 354A(I)(iv) lists the offence, and Section 354A(3) lays out sentencing rules.

[16] Indian Penal Code, Section 354, http://indiankanoon.org/doc/203036/, accessed 8th October 2014.

[17] Indian Penal Code, Section 509, http://indiankanoon.org/doc/68146/, accessed 8th October 2014.

[18] ‘Figures at a Glance – 2008’, Crime in India 2008, NCRB, http://ncrb.gov.in/, accessed 8th October 2014. Notes 17-22 refer to both Section 354 and Section 509 filings for the given year.

[19] ‘Figures at a Glance – 2009’, Crime in India 2009, NCRB, http://ncrb.gov.in/, accessed 8th October 2014.

[20] ‘Figures at a Glance – 2010’, Crime in India 2010, NCRB, http://ncrb.gov.in/, accessed 8th October 2014.

[21] ‘Figures at a Glance – 2011’, Crime in India 2011, NCRB, http://ncrb.gov.in/, accessed 8th October 2014.

[22] ‘Figures at a Glance – 2012’, Crime in India 2012, NCRB, http://ncrb.gov.in/, accessed 8th October 2014.

[23] ‘Figures at a Glance – 2013’, Crime in India 2013, NCRB, http://ncrb.gov.in/, accessed 8th October 2014.

[24] Perappadan, B.S., ‘Sexual harassment at work place high’, The Hindu, 29th November 2012, http://www.thehindu.com/todays-paper/tp-national/sexual-harassment-at-work-place-high/article4144874.ece, accessed 2nd September 2014.

[25] See above note 24.

[26] Navya P. K., ‘Industrial Tribunal verdict raises hope’, India Together, 5th April 2013, http://indiatogether.org/harassmen-women, accessed 26th October 2014. See also Mukherji, R., ‘The Cost of Justice’, posted on Kracktivist, 13th February 2014, http://kractivist.wordpress.com/, accessed 26th October 2014. In this blog post, Rina Mukherji details the case and 2013 judgment, her difficulties with obtaining legal and law enforcement assistance, and the adverse consequences of a protracted legal battle.

[27] Dhawan, H., ‘Two All India Radio officials sacked for sexually harassing radio jockeys’, The Times of India, 17th April 2014, http://timesofindia.indiatimes.com/india/Two-All-India-Radio-officials-sacked-for-sexually-harassing-radio-jockeys/articleshow/19586698.cms, accessed 27th October 2014.

[28] Sengupta, A., ‘Prasar puts best foot forward’, Telegraph India, 5th February, 2014, http://www.telegraphindia.com/1140206/jsp/nation/story_17905681.jsp#.VAWzOMWSxVM, accessed 2nd September 2014.

[29] Correspondent, ‘For months no one was ready to employ me says anchor who filed a case of sexual harassment on Sun TV Chief Editor”, The News Minute, 1st July 2014, http://www.thenewsminute.com/side_headlines/15, accessed 2nd September 2014.

[30] ‘NWMI’s statement, March 28, 2013’, Network of Women in Media, India, http://www.nwmindia.org/about-us/statements/61-nwmi-statements-on-sexual-harassment-at-sun-tv-2013, accessed 27th October 2014.

[31] See above note 29.

*****

This series of posts were researched, drafted and edited by Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.

December 2014