Written by Devansh Awasthi is pursuing B.A. LL.B. (Hons.) at Dr. Ram Manohar Lohiya National Law University, Lucknow.
Many people envision a workplace as an office, factory, shop or mine. Workplaces typically include gates, record-keeping systems, supervisors, wages and rules governing employees. Domestic workers change that picture. Domestic workers work in their employer’s home and are typically a woman or girl who has migrated from Jharkhand to somewhere else in India. The way they work is personal and private, continuing without being seen in public. When abuse occurs, many times the law is hesitant to protect the worker because the home is viewed as private before being viewed as a workplace.
The Jharkhand Pipeline: From Recruitment to Rescue
This distinction is incredibly important for the state of Jharkhand. The movement of young women and girls from Jharkhand to metropolitan areas for the purpose of working in the home is very often not merely a story of migration. In many cases, it is the first step in a system of recruiting young women and girls, placing them in a domestic work environment, withholding their wages, confinement and abuse. Recently, in Delhi, police have successfully rescued girls from Jharkhand who were forcibly placed into domestic work by a recruitment agency.
Therefore, domestic work cannot simply be treated as informal employment. Domestic work falls at the intersection of labour law, gender justice, migration, trafficking and sexual harassment. The overarching problem is that different legal systems perceive the same worker in different ways. A legal perspective may only see the worker as an unorganised worker, while a criminal perspective may view the worker as a victim of trafficking or assault. The POSH framework may see her as an aggrieved woman in a place she resides (dwelling/residence). Welfare law considers domestic workers to be beneficiaries of welfare.
What the POSH Act Offers the Domestic Worker
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is unique because it does not exclude domestic work. The Act states specifically that places of work may include a dwelling (home) of another person. Since a private household is unlikely to have a formal Internal Committee, the Local Committee is the primary venue through which domestic workers can seek justice/statutory remedy. This essentially allows for a domestic worker who encounters sexual harassment to still have access to a workplace redressal forum, even though the domestic worker is physically located in a home (dwelling).
The Distance Between the Law and the Worker
Although the existence of a statutory forum may allow for the domestic worker to pursue justice, that may not mean the domestic worker can access it. A domestic worker may not know that POSH applies to her. A domestic worker may not have a written contract, payslip, ID, or access to a phone. If the domestic worker is an agency worker who has migrated to work for the agency, she may not be able to read, write, or speak the local language and she may not understand how to use the district-level complaint system. If the domestic worker is being denied payment of wages, she may fear that filing a complaint will result in termination or being sent away from an unfamiliar place. A minor domestic worker would enter the realm of child protection and criminal law and therefore the labour aspect will likely be under-addressed.
In summary, POSH is both strong and limited for domestic workers: it is strong because it acknowledges that the home can be a place of work/occupation for the purpose of regulating sexual harassment. The limitation of handling the complaints of domestic workers through Local Committees is that domestic workers’ complaints often involve much more than what the Act defines as sexual harassment and could also include wage theft or unpaid wages, excessive hours of work, restriction on freedom of movement, verbal/physical violence, caste or tribal discrimination, placement agents’ threats, and sexual harassment as defined under the Act. If the Local Committees only view the domestic worker’s complaint as a sexual harassment issue, they may not understand the coercive arrangement under which the domestic worker was harassed.
Why Criminal Law Alone Is Not Enough
Criminal law may apply in situations of trafficking, child labour, wrongful confinement, assault, or sexual violence; however, it only penalises the perpetrator. There is no mechanism within criminal law that restores the labour rights of the victim. Who pays for unpaid wages owed to domestic workers? How do we know if a placement agency is registered or not? Who ensures safe return? Who prevents a placement agency from recruiting again? Who tracks all of a worker’s complaints regarding a placement agency as part of a systematic pattern of exploitation? Issues such as these are not simply policing issues; they fall within the context of labour governance.
Regulating Placement Agencies at the Source
In response to these issues, Jharkhand has taken the initiative to identify placement agencies as a major source of exploitation in the labour force. The Jharkhand Private Placement Agencies and Domestic Workers (Regulation) Act, 2016, was introduced for the regulation of placement agencies and to protect domestic workers by requiring that placement agencies be registered and to submit information regarding the numbers, names, ages, addresses, salaries, and placement details of the domestic workers they place in either Jharkhand or other states. These provisions are vital given the direct association of trafficking with domestic work; this issue should not be addressed only as a crime committed in destination cities. The recruitment and placement issue needs to be addressed at the source. However, enforcement must be in place to effectively register domestic workers. When placement agencies do not follow a legal chain of custody, keep false documentation, or move workers between states without documentation, the worker has become invisible, and the home is the most sensitive place to conduct an inspection.
The domestic worker’s relationship to her employer makes it even more difficult to ensure compliance with employment laws. As such, we must ensure our home/workplace privacy does not become an umbrella to hide ourselves from accountability to labour laws.
A Reform Agenda
A suggested method for best practice is to have three separate organisations work together. Currently, the Labour Department, the Local Committee under the Prevention of Sexual Harassment (POSH) Act, and the Anti-Human Trafficking Unit operate independently and do not work together. The goal of prevention is to stop a domestic worker from needing rescue after a harmful event has already happened. Therefore, instead of waiting for the domestic worker to be rescued after a harmful event has occurred, we must create a connection between the registration of workers, audits of placement agencies, tracking of missing persons, recovering unpaid wages, and raising awareness about POSH.
The proposed best practice is:
1. A District Domestic Worker/Placement Agency Registration System: Jharkhand should create a registration system at the district level, which would serve as a live accountability system for domestic work/placement agencies and workers. All domestic workers would be registered with the district, indicating the worker’s age, home district, destination, employer, wage terms, emergency contacts, and date of placement. If the worker is a minor, an automatic referral to Child Protection Services would occur. If the worker is an adult, the domestic worker could access their written work agreement with the confirmation of the terms of work.
2. The Local Committees will need a specific domestic worker POSH policy for all domestic workers, which would establish a POSH protocol to receive complaints about events of harassment, violence, and exploitation and provide workers access to the Local Committee via helplines, worker collectives, NGOs, police links, district officials or family members without being restricted by lack of documentation.
3. The Labour Department, Controlled by the Local Committee, needs to have a link to protect domestic workers from all three types of abuse, regardless of whether they are associated with POSH or Labour Laws. The Local Committee should file all harassment claims with the Labour Department and initiate their cases; however, in cases where a domestic worker has experienced wage theft, sexual harassment, was jailed/held captive, required physical abuse/harassment, or was coerced into a placement, the Local Committee should be the first line of defence for filing the Labour Law and POSH complaint.
4. The Recovery of Unpaid Wages Needs to Be a Part of Rehabilitation: many trafficking victims come into domestic work because they have been trafficked by placing agencies and/or do not know what wages are owed. Therefore, if they are freed from their trafficker and rescued from a domestic work situation, the wages that are owed to them are often the core of their exploitation. When the government rescues a trafficked domestic worker and does not help that worker recover her unpaid wages, the government is telling the worker that the government can remove her from her abusive situation, but cannot restore what was taken from her.
The primary premise is clear: work does not end at the home, and domestic work is work that takes place behind a closed door. If POSH is to benefit domestic workers, it must serve as a bridge between the resolution of sexual harassment cases, labour law enforcement, and protection from trafficking. While there are legal considerations for private residences, the use of labour within a private residence does create a public responsibility for the employer. Therefore, the private door does not block the law.
Caveat: The views, analyses, and information presented in this article are provided in good faith and for general informational purposes only. No representation or warranty, express or implied, is made regarding the accuracy, adequacy, validity, reliability, or completeness of the information. Readers should conduct their own research and seek professional guidance where appropriate. Neither the author nor the publisher shall be held responsible for any loss, liability, or consequence arising from reliance on this content.
Leave a Reply