Between Welfare and Criminalisation: Were Domestic Servants Always Informal?

Will the welfarian protective legal regime elevate their condition from the ‘help’ to the ‘worker’?

High rise apartments, eight-lane expressways, and smart cities are the new ‘temples’ of modern India. The sprawling bastis, chawls, and slums, which we attempt to hide from the gaze of the outside world, are the living realities for millions of working people – men, women, and children.

In fact, we don’t even know how many people’s labour and skill we depend to run our households. They intrinsically appear in our elitist and sexist jokes – as the tagline of bookmybai.com shows, ‘Diamonds are useless! Gift your wife a maid’ – but hardly feature in the nation’s collective and legal imagination to secure better working conditions for them. The idea of rights for them tweaks our idea of comfort. The lesser it is said about treating them as ‘human equals’ possessing dignity, the better.

The invisible and uncountable workforce

In 2010, Harish Rawat, the minister of state for labour and employment, accepted that there was no authentic data available on the number of domestic workers in India. According to the National Sample Survey (NSSO, 61st round 2004−05), the approximate figure of domestic workers in India was of 4.2 million. Before that, according to the 2001 census, it was around 6.7 million. The most recent government press release from January 2019 estimated (based upon NSSO 68th round 2011−12) the total number of domestic servants at 3.9 million.

These numbers are contentious. In all likelihood, they conceal the extent of the workforce. First of all, these are based on survey estimates and are not exact enumeration. It will be pertinent to go back to Rawat’s interview to remain sceptical of this downward trend. Being a minister in the central government, he maintained that in his own conservative estimate, the total number of domestic servants in India would be around 15 million. He based his estimate on the fact that there were 30 million white-collared middle-class people in India and it’s a rarity that such a household would run without a maid. The media reports put the figure much higher – around 90 million. The ILO found the Indian case particularly ‘striking’ and ‘outstanding’ because of the vagueness of the number ranging from 2.5 to 90 million.

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Domestic servants are one unique group of workers in modern India which is ubiquitous but remains invisible. Their labour is sought after, but their personhood is ignored. Just a change in our language will suffice to show our tricks to invisibilise them: they were servants – naukar and naukrani – until a few decades ago. Now, they are domestic ‘help’ and ‘aid’. Is this the elevation of status through the use of an English term or a cover over our collective guilt?

The missing legal structures

The explosion in urbanisation, migration, and the changes that have occurred in the nature of the household has created a great demand for this labour pool. But this is also the irony of this change: for them, the home of the employer is the site of their work. They leave their homes to work at others’ homes. Historically, the home has been not seen as a site of work and labour as has been the factory and the office. The gendered notion of work has made some work appear ‘unproductive’. Domestic workers are still seen as unproductive labour, no matter how well they cook, how meticulously they clean. Thus, they are not only invisible but also informal.

There are only two laws in the country that grant domestic workers ‘labour’ status. Representative image. Credit: Reuters

Photo: Reuters

The current state of their existence is blamed on the lack of adequate laws and policies. The government’s intention to regulate and regularise domestic work has been sluggish. It is to the credit of domestic servants, who have started to unionise themselves, and to the work done by some well-meaning NGOs and individuals, that of late, things have been put in motion. The ILO’s (C189) intervention in defining domestic work through protective regulation has been globally very crucial, which the Indian state still has not ratified.

The National Commission for Women drafted the Domestic Workers (Registration Social Security and welfare) Act in 2008, which has not been notified by the central government. Some state governments did indeed take the lead in framing laws on this subject. In 2018, it was said the central government was working on bringing out a national policy to protect the interests of domestic workers ‘which has been pending for almost three years now’. Bill no. 92 of 2017 was introduced in the Lok Sabha (the lower house of the Indian parliament), which was titled The Domestic Workers (Regulation of Work and Social Security) Bill 2017 but going by the recent communique of the labour and employment ministry, the process of formulating a national policy is still in ‘draft stage’. While domestic servants populate the waiting room of legal mechanism, incidents like that of Zohra Bibi in Noida continues to reveal the class antagonism and social stigma with which they are seen.

In recent years as well as in the past, attempts have been made to pass an all-India Act to regulate domestic workers. But they all have failed. Very revealing are the voices of women parliamentarians, particularly from the first attempt made in 1948: they categorically told their male counterpart that such an Act would make their presence in the parliament unlikely.

Also read: How Can We Ensure Social Security for Domestic Workers?

The contemporary situation of women joining the workforce in the organised sector is premised on the labour of domestic servants who inhabit the place of the unorganised and informal sector. The market that promises the emancipation of the likes of Sapna Jalan (as seen in the image below) is based upon the labour of young girls and women, a sizeable portion of whom have to suffer sexual abuse, exploitation, trafficking, and forced labour to enter into this workforce. It is also about time that good-intentioned employers think beyond the immediate services they procure. The role of agencies in procuring young girls from socially deprived communities, castes, and regions through coercion and abuse has been consistently reported.

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The historical lineages of legal thought

In lack of the formal structures of protection, it is pertinent to ask two fundamental questions: are domestic servants really ‘informal’ and had they been always informal? What does informal mean and how has it evolved? While the demand grows for making them formal, what would possibly be its nature in practical terms? What does history tell us in this regard?

If informality means the lack of legal protection, cover of social security measures, and existence of well-defined contours of work and rest, then it is absolutely right to see them currently as ‘informal’. It is equally desirable to bring them into the fold of the formal workforce if that ensures legal protection. But one would be grossly mistaken if by informality the meaning is deduced that they are entirely outside the purview of the state apparatus of control. The formalisation of workforce entails registration of workers, which is both desirable by the state as well as the workers. But for the state, it would also mean control and verification, which unsurprisingly, is already practised widely.

The presence of the state in the everyday life of the servants is felt through the institution of police. What is widely prevalent, in fact, encouraged, is the police verification of domestic servants on forms such as these, which require the servants to put in information such as names, addresses, local contacts, employment history, bodily personal description, and finger prints. The ‘petwords of speech’ and ‘favourite ditty’ are also part of the profiling exercise. Employers, on the other hand, do not need to submit such personal information.

The absence of social security on the one hand and the heavy presence of policing on the other are two sides of the servants’ lives. The informal condition of work to enhance the control of the employers goes together with the formal ways of control established through verification. It is striking to see that none of the Cills (2008 and 2017) had any provision for the police stepping into any kind of regulative mechanism designed to protect work conditions of domestic workers but in reality, the police become the arbitrator of work conditions, usually siding with the employers.

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This present core structure of imbalance has deep lineages from the past. This is the legacy of colonial rule layered with postcolonial state’s disinterest. The legal provisions designed under colonialism had attempted to contain the breach of ‘contract’ between masters or employers and servants. No wonder, as early as the 1750s and the 1760s, measures were put in place to tackle the ‘servant problem’ in the ever-increasing mega-cities of Calcutta and Madras. J. Z. Holwell, the lone survivor, not only wrote on the Black Hole tragedy of 1756 but was also one of the members who penned down the specific measures to regulate domestic/menial servants in Calcutta in 1759. Much before securing the diwani (revenue) rights, the English East India Company had attempted to secure the servants’ labour in a very formal way.

A recent incident has opened up a can of worms in Pune. Representative image credit: Jyotsna Sonawane/Flickr CC BY-NC-ND 2.0

Representative image Photo: Jyotsna Sonawane/Flickr CC BY-NC-ND 2.0

In subsequent orders passed in 1760, 1766, and 1774 the colonial state primarily did two things: first, it published wage lists for different categories of servants because members of the European community believed that the exorbitant wages demanded by the domestic servants made their own living in Calcutta expensive. This was not the minimum wage list but the opposite of it. Employers found hiring servants above the prescribed rates would forfeit their right to complain if their servants had run away or quit work without prior stipulated notice.

Second, and more importantly, these rules redesigned the classic British master-servant laws for the colony of which the core essence was that the masters and mistresses on default would be given a pecuniary fine but servants would be criminally punished. Broadly, this still seems to be the case as noticed in the un-notified Act of 2008 in which an employer failing to comply with the provisions of the Act will be punishable with a fine but service providers (agencies) are liable to imprisonment. The actual workers can’t even file a complaint. The court will take cognisance of any offence only through the sanction of the state and district welfare boards (to be constituted under the provisions of the Act) or through a registered voluntary organisation. Although the eco-system of labour relations has drastically changed in more than three hundred years, the shadow of the colonial-era law and practices prevails.

Becoming informal

Unorganised Workers Social Security Act 2008 envisages to register domestic workers but once again the attempt has been tardy because of which the Supreme Court directed the Centre not to disburse funds to those states who have failed to do so. Registration is also an important part of the bills introduced recently in the parliament. The drafts, of course, suggest registration with district and state welfare boards but the parallel process of police verification in practical terms reminds us of the past practices.

In 1766, in Calcutta, a Register Office was opened to register all ‘menial servants’ working in Christian households (British, European, Armenian, and Portuguese). The office closed within a year. But the intention prevailed all through the nineteenth and twentieth century without being properly materialised.

The way the mechanism of registration was conceptualised, particularly in the 1770s and the 1780s, tells us about the long legacy of the presence of policing. In the 1774 order, the colonial state reiterated to maintain a register of servants under the superintendent of the police of Calcutta. The scheme involved one anna (pice) payment from the master for every servant so enrolled. Preference in dealing with complaints were to be given to those who had enrolled their servants. The police would do their utmost to apprehend the servants who fled from their duty.

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The active role of police in monitoring the master-servant relationship equated servants as thieves, which has left an indelible mark on the relationship up till today. Thomas Motte, the Calcutta superintendent of police, had categorically stated in 1785 that the registration of servants was required because, ‘it is universally acknowledged that almost all robberies are perpetuated by the aid and connivance of servants.’

Such a view is not only an echo from the past but also thrives in the minds of the majority of present employers. In 1819, the master-servant law, with the criminalisation of the breach of contract, was implemented all across the Bengal presidency. It remained in force until 1862 when the Indian Penal Code was implemented. The IPC dropped the criminalisation of the breach of contract for domestic servants, but the lingering effect of the 1819 Regulation continued. This was followed by the failure to come up with any master-servant law that would regulate the relationship in the civil domain. This paved the way for the ‘privatisation’ of this relationship. Hence, domestic servants slowly started becoming legally a part of the ‘informal’. The protective labour legislations from the early twentieth century kept domestic servants outside their purview, and in doing so consolidated this trend.

Photo: Reuters

But the ‘servant class’ continued to be seen as the prime agents of crime, as discussions from the early twentieth century for registering servants of the hill station of Simla shows. It was important to keep Simla safe as European ladies and children resided when the capital moved there from Calcutta in the summers. The military department had earlier (in the 1890s) asked for a similar law that would allow European officers and residents in cantonment towns to ‘secure better control’ over domestic servants. Once again, the method proposed to achieve this was of registration and licensing. While these measures were not put in place, the constant anxiety for registration, the ideas of control, and the belief in their participation in crime always kept the servants under the surveillance of policing. It has continued to be so in the present times.

Open future

Amidst the forces of historical continuity, something has drastically reversed. From being a legally recognised category of domestic servant in the past, the contemporary domestic worker has become the inhabitant of the unrecognised, unorganised, and informal sector. From being regulated, s/he has become unregulated, thus driving the demand for better regulation.

It is the changing notion of ‘regulation’ itself that explains this shift from ‘formal’ to ‘informal’. In the past, regulation for the colonial state was a means to establish a better control over the servants. From the late nineteenth century and into the postcolonial period, the lack of formal regulation was seen as a better way to maintain control over them because home was thought to be an arena that ought to be kept outside the purview of labour laws. In this long history of ‘control’, earlier the law was seen as an active instrument; later, its absence became the most suitable means.

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In the past, the long debates on registration had the core idea of executing better control over servants. In the present times, registration is meant to afford social security to the servants. The presence of recruiting agencies is breaking down the ‘privatised’ mode of organising domestic work and bringing it under some form of bureaucratic process of hiring and registration but the abuses involved at each of the steps – from hiring to that of placement – is very rampant.

However, the way the police has been deeply involved in controlling servants puts the welfarian logic of registration somehow in direct conflict with the verificatory process of the police. After all, the Delhi police form of registration works under ‘Neighbourhood Watch Scheme’, thus betraying a deep-seated and long-nurtured belief that cooks, maids, servants, drivers, and other types of ‘help’ need to be watched. The easy access which the class privilege of the employers allows to use the institutions of the state is not just a product of the ‘cultural’ setting in which the postcolonial state has evolved. It is also the making of the legal culture which the state has promoted.

In this legal culture, the home remains the site of paid work for many as well as a set of relationships based upon invoked registers of emotion such as loyalty, trust, and terms of fictive kinship. The domestic worker is forced to navigate these two ends at the everyday level. While doing this, they remain ever incomplete as ‘workers’. Very rarely do they also become ‘part of the family’ in any true sense. The future will tell if the welfarian protective legal regime will manage to bridge this gap. Will it elevate the condition from the ‘help’ to the ‘worker’ or will it again become a new gloss over the old practices?

Nitin Sinha is a senior research fellow at Leibniz-Zentrum Moderner Orient, Berlin. He has recently concluded a research project on the history of domestic servants.