Domestic workers come from unprotected communities and rural regions and they provide important services to the society. Most of them are poverty-stricken, unlettered, untrained and unacquainted with the urban labour market. Their work is under-appreciated, underpaid and poorly regulated. Absence of reasonable payment, quality working environment, cruelty, maltreatment, sexual harassment are the major problems. The progress of labour laws has involved long, strenuous struggles by the working class. However, a greater question arises on the implementation of these laws. Despite several laws having been enacted to protect domestic workers, there is still a systemic denial of their rights and tend to target domestic workers rather than uplift them, as such legislation discharges employers of any responsibility over their employee’s social welfare, and instead puts the onus to deliver on the state.
In India, 95% of women work in the informal sector. According to a Human Rights study conducted by the UN, the female domestic workers face a tenacious onslaught of sexual abuse and harassment in their workplaces. This is mainly due to their isolation in private households, their lack of privacy and also due to the insufficient protections available to them under the numerous labor laws. The extremely invisible and privatized nature of domestic work makes these workers very vulnerable to sexual harassment. Women working in these informal sectors don’t carry as loud a voice as people in the formal sectors, who joined the global Me Too movement. 1A social movement against sexual abuse and sexual harassment where people publicize allegations of sex crimes committed by powerful and/or prominent men.
Majority of them are uneducated, uninformed and ignorant. Numerous victims have stated that sexual harassment in their workplace has become so normalized that women are simply expected to accept it. From vulgar comments to demands for sex, these women rarely report sexual harassment for fear of losing their jobs. Indigence is a major reason why sexual abuse in informal sector workplaces goes unconsidered. Women who are financially vulnerable are forced to prioritize their income over their well-being. Moreover, employers who abuse their domestic workers often enjoy impunity.
There is a serious power imbalance between these employers and the workers. The stigma surrounding sexual abuse and harassment, combined with a fear of retribution from their employers and families, and a completely dismaying, mind-numbing procedure of legal resort additionally aggravate the issue of communicating and dealing with the repercussions of the abuse. The trouble of collecting proofs of abuses that were committed in private households also poses challenges to effective prosecution.
Protection under International Law
International human rights law denotes the right to life, security of person, and the right to be free from torture and other forms of cruel, inhuman, and degrading treatment. The Universal Declaration of Human Rights states that “Everyone has the right to life, liberty and security of person” 2Art 3 (A/RES/3/217, 10 December 1948). This right was reaffirmed in by the International Covenant on Civil and Political Rights. 3Hereinafter ICCPR The ICCPR also upholds the right of both men and women to enjoy the civil and political rights in the covenant and equal protection under the law.
Though these articles do not explicitly refer to violence against women, in recent years, the Human Rights Committee has interpreted them to include obligations to protect women from violence. Moreover, sexual abuse is a type of gender-based violence and inequity forbidden under the Convention on the Elimination of All Forms of Discrimination against Women. 4Hereinafter CEDAW The CEDAW Committee has mentioned that sexual harassment or abuse comprises uninvited sexually directed conduct such as bodily contact and approaches, sexually explicit comments, showing obscene movies or pictures and also sexual demand, whether by words or gestures.
Such behaviour can be embarrassing and may create a health and safety issue. It is unfair when the woman has sensible reasons to hold that her remonstrance would handicap her in relation to her employment or might build a hostile working condition. In the Declaration on the Elimination of Violence Against Women which complements and strengthens the CEDAW, the United Nations expressed that governments have a duty to “prevent, investigate, and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by states or by private persons.” A state’s consistent non-fulfilment to do so contributes to dissimilar and unfair treatment, and a breach of the state’s duty to provide women equal protection of the law.
Inadequate Legal and Policy Framework in India
The Constitution of India under Article 21 mandates everyone right to life and right to live with dignity. The Constitution also guarantees the right to practice any profession, carry on any occupation, trade or business which also includes the right to a safe environment free from sexual harassment. India has systematized workplace safety for working women, both in the formal and informal divisions, under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. 5Hereinafter POSH Act
The Act requires all employers with 10 or more employees to set up internal committees to address sexual harassment claims, in a process that is created to be faster than the normal lengthy legal course. Districts are also mandated to establish local committees, to make sure women, mainly in the informal section, have an alternate path to redressal. According to the Act, a domestic worker refers to a woman who is working:
- To discharge the household labour in any household for reward whether in cash or kind
- Either directly or indirectly via any agency
- On a temporary, permanent, part-time or full-time basis.
The POSH Act is therefore, broadly observed a key legislative achievement in India’s history that sought to guide in women employed in the informal sector. But it has sadly landed up as a meaningless promise for majority of the women employed in the informal sector. Similarly, the Domestic Workers Act of 2008 which was introduced to regulate the payment and working conditions of household workers also addressed the issues of trafficking of women and the exploitation of workers.
Section 23 of the Act explicitly states penalty provisions in instances where any person deliberately sends, leads or takes a domestic worker to any place for unethical motives or to a place where she is expected to be sexually abused in any way. Such a person shall be incarcerated for duration of no less than 6 months, which may be expanded up to 7 years and fine up to INR 50000 or both. Nevertheless, it is the individual states in India that rule its implementation, leading to absence of consistency in the regulations across the whole country.
Good legislations become significant when escorted with public awareness movements, teaching of law enforcement, labor and immigration officers, the existence of approachable complaint redressal mechanisms, and effectual enforcement. In India, the Governments’ response to abuses against domestic workers has largely been piecemeal and reactive. The main cause for why the harassment and exploitation of domestic workers stays uncontrolled is because of the absence of proper legal or regulatory regimes to protect the worker in this informal sector of work.
The absence of recognition of local committees and the non-successfulness of the central government to give sufficient resources and finance to the states to increase awareness has contributed largely to the present situation of these women. Domestic workers are not regarded as notable enough constituents of the labour force and therefore, there is neither a proper redress mechanism nor a formal authority for conducting investigations and reprisals.
In spite of an expanding national and global movement to acknowledge domestic workers and build up protections for their welfare, India has not ratified the International Labour Organization’s Domestic Workers Convention, which requires governments to expand equal labour protections to domestic workers as other workers and to take effectual measures to make sure that domestic workers are protected against abuse, cruelty, and harassment. There is also a lack of regular awareness or training from the government regarding the sexual abuse law, for example, if something occurs how one should complain.
The Road Ahead – Conclusion
The National Domestic Workers’ Movement is demanding for a far-reaching, equally pertinent national law that promises just terms of employment and satisfactory working environment. With the problem so prevalent and uncontrolled, the need of the hour is to invest resources for ensuring that the POSH and the other labour welfare Acts are implemented universally. Data regarding employers’ and districts’ non-conformity with the Act should be made public to force accountability.
Awareness about domestic workers should be increased by collecting data on domestic workers, comprising data regarding labor complaints and also criminal cases involving these workers. Preventive measures such as mass public information campaigns and education programs should be developed to train domestic workers, recruiters, and employers about workers’ rights and the punishment for abusing or harassing them. It should be ensured that this information is disseminated in the language known and understood by the domestic workers. Police officers should be properly trained on how to answer fittingly to domestic workers’ complaints, how to probe into the matter and gather proof in such cases, and to give referrals for health care, counselling, refuge, legal help, and in the case of migrant domestic workers, referrals to their embassies.
Offenders of physical brutality, sexual violence, and those who illegally imprison women domestic workers should be held liable and prosecuted. Approachable complaint redressal mechanisms for domestic workers, who encounter issues such as cruelty, unsettled remuneration, or substandard working environments, as well as hotlines, aid for support groups that help domestic workers and helpdesks at locations frequented by domestic workers should be established. Labour inspectors should be authorized to enter private houses to investigate conditions of employment for domestic workers. Last but not the least, women who are the victims of violence or who are at risk of violence should be provided with adequate help including refuges, counselling, and rehabilitation and other support services Sexual harassment and abuse at the workplace is a major problem that damages 19.5 crore women in India and therefore its remedy cannot be a law abandoned to perish on paper.