Home-Based Workers in India: Addressing their Legal Invisibility

Written by Harsh Dhiraj Singh [i] and Arpit Saini [ii]

[i][ii] Fourth Year students, BBA. LL.B. Student at National Law University, Jodhpur


Source: Scroll.In


Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.



Introduction


a. Meaning of ‘Home Workers’


Generically, the term ‘home-based workers’ is defined in two broader aspects: (a) own accounts workers and; (b) sub-contracted workers.[1] As the term denotes, these workers are those types of workers that produce goods or services in their home premises for all sorts of market avenues – local or global. The primary differences between these two categories of workers are based on the factors of acquisition of raw materials, machinery and costs related to transport and storage etc. Own-account workers acquire raw materials, tools for production on their own and bear all the costs incidental to such production themselves.


Their target market is usually identified as local or regional. They are also sometimes assisted by their own family members without remuneration. On the other hand, sub-contracted workers are those workers to whom big industries and production houses outsource their work through intermediaries for cost cutting purposes. Their target market is generally identified as international or national. The work outsourced is usually with respect to semi-finished goods which these workers, sometimes, are supposed to carry out on industry-assisted technology.


b. The state of ‘home-based workers’: Historical and Contemporary times


Home-based workers are majorly found in East and South-Eastern Asia, Southern Asia and Africa and differ depending upon the geography and income levels of these regions. These workers constitute 3-18% of the total workforce in these regions.[2] COVID-19 pandemic also inflated and deflated certain categories of workers depending upon these factors. IT Professionals and clericals saw a rise in number whereas; the workers not dependent on Information Communication Technology saw a dip in their numbers.[3]

Few studies by WIEGO showed that the loss of work to home-based workers led to loss of income and food and impacted them on a larger scale. It also deprived them of their employment status, thus rendering them an obscure character in the market supply chain.

In India, independent self-employed home-based workers represent a larger share of home based workers mainly constituted by sectors of animal production, agriculture and related activities.


Legally speaking, the first nominal recognition received by such home-based workers was in the year 1966 when the National Commission on Labour mentioned Bidi and Handloom workers as two such categories where home-based work was quite prevalent. Consequently, the Shram Shakti Report re-emphasised according recognition to home-based working groups who performed manual skilled work including both traditional and modern occupational domains.[4] The Kathmandu Declaration followed in the year 2000 required each member signatory to have a National Policy for Home-based workers in place.

India thereafter, started a discussion on the subject but in vain, as did the 2002 recommendations of the National Labour Commission to accord legal protection to home-based workers.


These dismal state of affairs reflect the orientation of the labour department dominated by inclination towards the organised sector. Unorganised sector and moreover, home-based workers are subtly ignored. The only ray of hope amidst the canopy of failed attempts is the legislation on bidi workers. The case of Mangalore Ganesh Bidi v. Union of India[5] in 1974 is a living testament to its success story. However, these legislations have also failed when it comes to covering the social security aspect of the law with respect to home-based workers. This, however, is a living testament of failure of the law enforcement agencies in determining the scope of home-based workers.


As of date, no comprehensive policy exists in India which protects home-based workers and this becomes alarming in the extraordinary times of an ongoing pandemic.


Legal Protection Available to Home-Based Workers in India


Home-based workers in India suffer from a lack of bargaining power against the systemic presence of corporate giants and supply-chain mammoths, which is exacerbated by the absence of social protection.[6] The piece rate workers fail to secure contracts, earn low wages and are often also required to pay the non-wage costs of production such as transportation and equipment.[7]

The Ministry of Labour, Government of India undertook the task of elucidating the basic parameters of defining home-based workers in 2006, to assist in the formulation of a National Policy Framework for such types of workers.[8]

This exercise by the Ministry was seen as a monumental step towards legal recognition and offering protection to home-based workers.


For any legal regime to recognise and protect the home-based workers, it has to necessarily demarcate the terms worker, place of work and form of payment in unequivocal terms. Indian legal regime has adopted a skewed approach in doing the same. In India, protection is accorded only at a sectoral level through the Beedi & Cigar (Conditions of employment) Act, 1966, which regulates the working conditions of home workers. In the absence of any other unique mechanism for home workers in other sectors such as the footwear, textile, food processing, agarbatti making, garments and textile supply chains, the courts have taken up the questions, on a case-to-case basis.


However, the laws and the courts have been silent on the recognition and protection aspect of the home-based workers in India. The judicial precedents defining the scope of ‘establishments’, ‘wages’ etc. have restricted and eliminated home-based workers from their ambit. Government schemes for availing food and medicinal benefits have also left these workers out of their ambit.


Critical Evaluation of the Protections accorded to Home-Based Workers under the Present Labour Law Regime


Recently in January 2021, the International Labour Organization in its report Working from home: From invisibility to decent work[9] outlined the importance of effective national policies and their implementation for the home-based workers. The report focused on ILO’s Home Work Convention which consists of Convention No. 177,[10] 1996 and Recommendation[11] No. 184, 1996. India has, however, not yet ratified the Convention No. 177.


a. National Policy for home workers


Despite the significant emphasis which has been laid on its importance, there still exists no separate national policy for the home workers.[12] The Kathmandu Declaration for the rights of South Asian home-based workers (to which India was a signatory) highlighted the need for the formation of a National Policy on home-based workers in October 2000. It underlined the home workers’ necessary requirements of the right to organize, occupational health and safety, minimum remuneration and statutory social protection etc. A draft national policy was also proposed for this purpose by the Ministry of Labour in 1999-2000. However, these initiatives failed to yield any results.[13]


Article 3 of the convention lays down that “each Member which has ratified this Convention shall adopt, implement and periodically review a national policy on home work aimed at improving the situation of homeworkers”.

The non-ratification by India has been a part of the reason that a comprehensive policy to address home workers has been missing.

b. The definition of employment relationship and workplace?


Labour laws in India, generally, have been designed to address the workers where a clearly defined employer-employee relationship exists in a traditional workplace. It has been emphasized that these laws do not attend to the informal sector of employment relationships. For home-workers, it may often be difficult to identify the existence of employer-employee relationships as defined under these laws. For example, in the case of sub-contracted piece rate workers, it is often difficult to identify whether the organization, intermediary, or the sub-contractor is the employer of these homeworkers.[14] Furthermore, home or other premises where operations are carried out by homeworkers are also not encapsulated by the traditional definition of workplace, which usually encompasses factory premises and the office of the employer.


Generally, lack of fixed hours, flexible work boundaries and minimal supervision have led to a presumption against the establishment of employer-employee relationships. Therefore, in many cases the home workers are left deprived of the same benefits which are given to the workers in the formal/organized sector.


The 2021 report highlights that Article 4(1) of the Convention no. 177 provides that every nation shall promote “equality of treatment between homeworkers and other wage earners, taking into account the special characteristics of home work and, where appropriate, conditions applicable to the same or a similar type of work carried out in an enterprise.


Article 4(2) further lists down that right to establish or join organizations, protection against discrimination, occupational safety and health, remuneration, statutory social security protection, maternity protection etc. are activities where equality must be promoted. Moreover, Recommendation[15] No. 198, 2006 accentuates the regulation of the employment relationship of home workers. It is specifically important for countries like India which do not have a specific legislation for homeworkers.


c. Invisibility of home workers


Due to the unconventional nature of their workplace, it becomes arduous to trace home-workers.[16] They fail to become visible and become vulnerable to unfair pay, poor working conditions and human rights abuse. In India, Women in Informal Employment: Globalizing and Organizing (WIEGO) and HomeNet South Asia (HNSA) have argued that the NSSO estimate, under-represents the number of home workers in India.[17] WIEGO has also pointed out that the 2004-05 and 2011-12 Employment and Unemployment Surveys did not even identify sub-contracted homeworkers for data collection.[18]


Additionally, the home workers are isolated from each other at their own workplaces. They do not have a common ground and there is not enough co-ordination among their stakeholders to unite and achieve recognition. Resultantly, they have not become capable of advocating for their rights.


The 2021 report directs that the labour statistics compile and publish detailed information on the extent and character of the home workers. It draws attention to Article 6 of the Convention which articulates that “appropriate measures shall be taken so that labour statistics include, to the extent possible, home work”. In this regard, HNSA claims that they need support and assistance to develop a common identity which enables them to achieve recognition and assert their rights[19]. Conventions 87 & 98[20] mandate that home-based workers should enjoy freedom of association and para 12 of Recommendation 184 further suggest that states must take measures to encourage collective bargaining which can help home workers in the determination of their terms & conditions.


d. New Labour codes and home workers


To bring about a reform to the Labour laws in India, the Ministry of Labour and Employment recently rationalized 44 central laws to introduce four broad codes. They are codes on occupational safety, health & working conditions (OSH), industrial relations, social security and wages. The objective of these codes is to adapt and protect the workers in the changing business environment. The reforms have also taken a step towards recognition and accessibility of their rights.

The Code on Social security, in particular, has been welcoming for these workers.

It recognized them as a distinct category of worker and entitles them to social security benefits.[21] It defines "home-based worker" as “a person engaged in, the production of goods or services for an employer in his home or other premises of his choice other than the workplace of the employer, for remuneration, irrespective of whether or not the employer provides the equipment, materials or other inputs”.[22] Similarly, the Code on wages has also extended the protection for minimum wages and timely payment of wages to include these workers.[23] However, in absence of a comprehensive scheme or policy, there is still some apprehension about their adequate protection.


Conclusion and Suggestions


The state of home-based workers in India calls for a legal framework for recognition of their rights and proper enforcement mechanisms. The paper, if summarised, focuses and calls upon two aspects of reforms- Recognition of Rights and Social Security reforms.


a. Recognizing and Operationalising Rights


The tiniest steps towards empowering home-based workers is to accord them legal and thereupon judicial recognition of rights. The two aspects of work and income take precedence when discussion comes to ‘rights’.


The aspect of work is strictly construed as something taking place outside home. Legally recognizing the work inside home would go a long way in determining the state of home-based workers. Transcending the barrier of a ‘hobby’ or an ‘every-day’ task and recognizing home-based work as ‘work’ is the first step towards ensuring human rights of home-based workers.


The other aspect of Income deserves attention too. If at all the status of ‘work’ is embedded over home-based work, it has to be seen that it generates a stable and continuous income for the worker. This becomes important because of the weaker bargaining power of the home-based workers. A home-based worker is seldom faced with unjustified penalties and meagre piece rate income, which makes it all the more essential for recognition of the Right to stable and minimum income. The lack of social security measures makes this need more pressing as these workers need an income on an everyday basis to sustain themselves.


Therefore, the Right to Work and Right to Stable and Minimum Income are two such legislative steps that can allow, if implemented, home-based workers to lead at least a life equipped with basic amenities.

These two rights are more central to the overall theme of protecting and recognizing this class of workers under the Social Security Code, 2020 as it would feed a narrative of recognition to the entire labour system of India.


b. Social Security Reforms


For a class of workers whose work is erratic and security in terms of health, insurance and old age seem like a distant dream, social security reforms are much called for and needed. One aspect of the entire unemployment issue prevailing in India is that the workers in the informal sector have not been given this social security. More than most of the issues of unemployment can be stemmed out if the already ‘employed’ people are sustained and maintained via a sound social security scheme.


The social security scheme shall encompass the domains of health, insurance, pension and housing.[24] These four domains should be the core focus areas initially which would allow these workers to have a sense of protection and freedom of their daily chores. The ILO has also propounded that social protection and social dialogue can assist towards realizing the larger goals of labour organization and elimination of discrimination.[25] The rights discussed in the earlier section are in a sense a sub-part of these social security measures. They represent the economic security aspect of the scheme and are one of the most integral and necessary parts of it.


Therefore, the protection and regularization of home-based workers can only begin once the legislature takes positive strides in the direction. The state of these workers as of today, as aptly covered in Chapter III of the paper, is dismal and requires immediate legislative and thereafter executive attention. Recognition of Rights and ensuring Social Security are the first two steps for helping the issue at hand. With the proper policy framework and will of the government, a better future for the home-based workers is not far. However, both seem to be far away today with the slow rate of progress as on date.



[1] WIEGO, Home-Based Workers, https://www.wiego.org/informal-economy/occupational-groups/home-based-workers.

[2] Id. [3] Florence Bonnet, Francoise Carre, Joann Vanek, Marty Chen, Home based workers in India: A Statistical Profile (February 2021), https://www.wiego.org/publications/home-based-workers-world-statistical-profile. [4] National Commission on Self-Employed Women and Women in Informal Sector, Shramshakt Report (1998) https://indianlabourarchives.org/xmlui/handle/123456789/169. [5] Mangalore Ganesh Bidi v Union of India, AIR 2005 SC 1308. [6] Siddharth Kara, Tainted Garments: The Exploitation of Women and Girls in India’s Home-Based Garment Sector, Blum Center for Developing Economies, University of California, Berkeley, (January 2019) https://media.business-humanrights.org/media/documents/files/documents/tainted-garments.pdf. [7] Home-Based Workers in India: Need for Protection under Law, WIEGO Law & Informality Project, SEWA (November 2014) http://www.wiego.org/sites/default/files/resources/files/Home-Based-Workers-India-Law-Protection.pdf. [8] Shalini Sinha, Rights of Home-Based Workers, National Human Rights Commission (2006), https://www.ihrc.in/wp-content/uploads/2018/06/Home-based.pdf. [9] International Labour Organization, Working from home: From invisibility to decent work, (2021) https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---travail/documents/publication/wcms_765806.pdf. [10] International Labour Organization, C177 - Home Work Convention, 1996 (No. 177)https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C177. [11] International Labour Organization, R184 - Home Work Recommendation, 1996 (No. 184) https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:::NO:12100:P12100_ILO_CODE:R184:NO. [12] Firoza Mehrotra, Need for a National Policy to Safeguard the Rights of India's Home-Based Workers, The Wire, (October 2017). https://thewire.in/economy/need-national-policy-safeguard-rights-home-based-workers. [13] Shalini Sinha, Government Policies for Home-based Workers, Vol. 4, Issue No. 2, Labour File (March - April 2006). [14] Shalini Sinha, With Supreme Court order on pensions, 4 crore invisible home-base workers move closer to recognition, Scroll, (August 2019). https://scroll.in/article/932355/with-supreme-court-order-on-pensions-4-crore-invisible-home-base-workers-move-closer-to-recognition. [15] International Labour Organization, R198 - Employment Relationship Recommendation, 2006 (No. 198). https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312535. [16] Firoza Mehrotra, Invisible, Unrecognised And Exploited: The Case For A Policy For Home-Based Workers, HNSA, June 2018. https://hnsa.org.in/blog/invisible-unrecognised-and-exploited-case-policy-home-based-workers. [17] Supra Note 1. [18] Govindan Raveendran, Ratna M. Sudarshan and Joann Vanek, Home-Based Workers in India: Statistics and Trends, WIEGO Statistical Brief, (December 2013). https://www.wiego.org/sites/default/files/publications/files/Raveendran-HBW-India-WIEGO-SB10.pdf. [19] Hidden Homeworkers: Working Towards Improving Transparency And Traceability Of Homeworkers In Garment And Footwear Supply Chains In India, Nepal and Pakistan, HNSA, (March 2020). https://www.hnsa.org.in/blog/hidden-homeworkers-working-towards-improving-transparency-and-traceability-homeworkers-garment. [20] International Labour Organisation, Freedom of Association and Protection of the Right to Organise Convention, 1948, https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C087 (1948). [21] Sonakshi Agarwal, India’s new social security code is progressive, but definition loopholes may deprive 4.2 cr home-based workers of benefits, FirstPost, (November 2020). https://www.firstpost.com/india/indias-new-social-security-code-is-progressive-but-definition-loopholes-may-deprive-4-2-cr-home-based-workers-of-benefits-9010811.html#:~:text=For%204.2%20crore%20home%2Dbased,is%20not%20a%20comprehensive%20one. [22] Code on Social Security, Act No. 36 of 2020, Section 2(36). [23] Gautam Chikermane & Rishi Agrawal, Labour reforms: Future-ready but devils of detail lie in states, Observer Research Foundation, (October 2020). https://www.orfonline.org/expert-speak/labour-reforms-future-ready-but-devils-of-detail-lie-in-states-74490/. [24] Supra Note 5 at 22. [25] International Labour Organization, Decent Work, https://www.ilo.org/global/topics/decent-work/lang--en/index.htm.

BIBLIOGRAPHY


Cases

  1. Mangalore Ganesh Bidi v. Union of India, AIR 2005 SC 1308.


Statutes


  1. Code on Social Security, Act No. 36 of 2020, Section 2(36).


Reports

  1. Florence Bonnet, Francoise Carre, Joann Vanek, Marty Chen, Home based workers in India: A Statistical Profile (February 2021), https://www.wiego.org/publications/home-based-workers-world-statistical-profile

  2. Govindan Raveendran, Ratna M. Sudarshan and Joann Vanek, Home-Based Workers in India: Statistics and Trends, WIEGO Statistical Brief, (December 2013). https://www.wiego.org/sites/default/files/publications/files/Raveendran-HBW-India-WIEGO-SB10.pdf

  3. Hidden Homeworkers: Working Towards Improving Transparency And Traceability Of Homeworkers In Garment And Footwear Supply Chains In India, Nepal and Pakistan, HNSA, (March 2020). https://www.hnsa.org.in/blog/hidden-homeworkers-working-towards-improving-transparency-and-traceability-homeworkers-garment

  4. Home-Based Workers in India: Need for Protection under Law, WIEGO Law & Informality Project, SEWA (November 2014) http://www.wiego.org/sites/default/files/resources/files/Home-Based-Workers-India-Law-Protection.pdf

  5. International Labour Organization, Decent Work, https://www.ilo.org/global/topics/decent-work/lang--en/index.htm

  6. International Labour Organization, Working from home: From invisibility to decent work, (2021) https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---travail/documents/publication/wcms_765806.pdf

  7. National Commission on Self-Employed Women and Women in Informal Sector, Shramshakt Report (1998) https://indianlabourarchives.org/xmlui/handle/123456789/169

  8. Shalini Sinha, Rights of Home-Based Workers, National Human Rights Commission (2006), https://www.ihrc.in/wp-content/uploads/2018/06/Home-based.pdf

  9. WIEGO, Home-Based Workers, https://www.wiego.org/informal-economy/occupational-groups/home-based-workers

Online Sources


  1. Firoza Mehrotra, Invisible, Unrecognised And Exploited: The Case For A Policy For Home-Based Workers, HNSA, June 2018. https://hnsa.org.in/blog/invisible-unrecognised-and-exploited-case-policy-home-based-workers

  2. Firoza Mehrotra, Need for a National Policy to Safeguard the Rights of India's Home-Based Workers, The Wire, (October 2017). https://thewire.in/economy/need-national-policy-safeguard-rights-home-based-workers

  3. Gautam Chikermane & Rishi Agrawal, Labour reforms: Future-ready but devils of detail lie in states, Observer Research Foundation, (October 2020). https://www.orfonline.org/expert-speak/labour-reforms-future-ready-but-devils-of-detail-lie-in-states-74490/

  4. Shalini Sinha, With Supreme Court order on pensions, 4 crore invisible home-base workers move closer to recognition, Scroll, (August 2019). https://scroll.in/article/932355/with-supreme-court-order-on-pensions-4-crore-invisible-home-base-workers-move-closer-to-recognition

  5. Siddharth Kara, Tainted Garments: The Exploitation of Women and Girls in India’s Home-Based Garment Sector, Blum Center for Developing Economies, University of California, Berkeley, (January 2019) https://media.business-humanrights.org/media/documents/files/documents/tainted-garments.pdf

  6. Sonakshi Agarwal, India’s new social security code is progressive, but definition loopholes may deprive 4.2 cr home-based workers of benefits, FirstPost, (November 2020). https://www.firstpost.com/india/indias-new-social-security-code-is-progressive-but-definition-loopholes-may-deprive-4-2-cr-home-based-workers-of-benefits-9010811.html#:~:text=For%204.2%20crore%20home%2Dbased,is%20not%20a%20comprehensive%20one


Conventions


  1. International Labour Organization, C177 - Home Work Convention, 1996 (No. 177) https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312322

  2. International Labour Organization, R184 - Home Work Recommendation, 1996 (No. 184) https://www.ilo.org/dyn/normlex/en/f? p=NORMLEXPUB:12100:::NO:12100:P12100_ILO_CODE:R184:NO

  3. International Labour Organization, R198 - Employment Relationship Recommendation, 2006 (No. 198). https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312535


Articles


  1. Shalini Sinha, Government Policies for Home-based Workers, Vol. 4, Issue No. 2, Labour File (March - April 2006)

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