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Caste as a Framework to Study Domestic Labour: A Comparative Law Perspective

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Recognition of the Rights of Domestic Workers in India
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Abstract

I was at a friend’s wedding in Hyderabad. Amidst the food and frolic, sarees and jewelry, I noticed a teenage girl loitering on the periphery of the celebrations. She was neatly dressed, yet looked poor. She was not a child- as she did not run around with other kids. She was not a guest- she did not chat or eat sweets. She was not a family member, nor a servant of the family- she did not seem busy. Who is this girl? I asked. I was told she has come to ‘help’ in the wedding. “It is a tradition in our village that the Golla (Shepherd) community send one person to assist in celebrations in the homes of Reddy landlords. Since no adult was available or could be off work, this girl was sent. She goes to school, to 7th standard.” An archaic caste practice had turned a school going girl into a domestic servant for the weekend. What was this girl’s legal status? She was not labour as she has no labour contract, terms of work, modes of payment. She was hoisted into an alien environment as ‘something that has no name’. It is this obscure location in which caste connects to domestic labour. The ambiguity of status and location makes it impossible to position it within the legal system. This paper will find the connection between caste and domestic labour: not only do they both exist in the sphere of social normativity and are underrepresented in law but also caste normativity, entitlements, labour relations inform and influence the domestic laour situation in India. The theoretical framework will expound on the concept of ‘caste as extraction of labour’, use of free labour as an upper caste entitlement that has continued into the market and urban sphere. The last section will review how this reality gets reflected in law. I shall visit the Indian case law to analyze how law has dealt with domestic labour and compared them with the UK Employment Tribunal Judgement in 2014 that decreed caste as ‘ethnicity’ under the Equality Act 2010.

Thanks to Raadhika Gupta, my Research Assistant for her valuable help.

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Notes

  1. 1.

    The girl was, in fact, treated kindly and was offered sweets to take home. Yet, the sudden change of her circumstances—pulling her away from her habitat and hoisting her into an unfamiliar zone—tells her this is your lot, thus far your aspirations can run, even if you return to school on Monday.

  2. 2.

    See Wankhede (2014).

  3. 3.

    In each new phase of progress and achievements of Indian women, there has been corresponding catching up of patriarchal value system—the terminology employed is of culture and nation, as the Indian national and cultural history is articulated in deeply gendered terms. See Partha Chatterjee on how early Nationalism saw spiritual essence of the Nation as rooted in the domestic sphere and the women thereof Chatterjee (1997) or Rajagopal (2001).

    Or Smitha Radhakrishan’s ethnography of IT professionals that shows how new brand of ‘global Indians’ follow and stress upon the domestic gender roles wherein professional women prioritize being housewives in the name of Indian culture. Radhakrishnan (2008).

  4. 4.

    Beasts of Burden by Imayam is a Tamil fiction that narrates the story of a washerwoman, Arokkyam and of the struggles of a Dalit community; Omprakash Valmiki’s autobiography in Hindi titled Jhoothan, tells an incident where the author was physically dragged to work in the fields by an upper-caste landlord despite having the tenth standard final exams next day.

  5. 5.

    Caste system is a pre-ordained occupational ladder, in which each caste group follows their hereditary occupation. The labouring castes are those whose job is to provide manual labour, skilled jobs, crafts.

  6. 6.

    Phule (1873).

  7. 7.

    This is title of the work's English translation. Original is Phule (1881).

  8. 8.

    Bezwada Wilson, the National Convenor of the Safai Karmachari Andolan (SKA) stated how caste and gender hierarchy has perpetuated the atrocity on Bhangi women who are forced into manual scavenging even after it was legally banned in 1993, in his speech at Jindal Global University in September 2016.

  9. 9.

    State of Madhya Pradesh vs Sumitrabai and others, 2006(2) MPLJ408.

  10. 10.

    The ancient Hindu Law makes it son’s pious obligation to discharge the debts of his father—an obligation irrespective of the fact whether the son inherited any property from the father. With the Hindu Succession Act, 1956, this pious obligation of the son to pay debts was converted into his legal obligation—to the proportion of property inherited by him upon the father’s death. The Hindu Succession Act, 2005 abolished the doctrine of son’s pious obligation and now the son cannot be made to discharge the debts of his father solely on the basis of his religious obligation. Children are liable to pay the pending debts only to the extent they inherit from the deceased and since in case of an insolvent they either do not inherit any property or only get the surplus after the discharge of all debts (Section 67 of Provincial Insolvency Act, 1920), they are not obliged to pay the pending debts out of their personal assets.

  11. 11.

    Section 11 of the Indian Contract Act expressly forbids a minor from entering a contract. Any contract entered by a minor is considered worthless by the law. The Indian Apprentice Act provides for contracts for service which are binding on minors. Section 9 of the Act requires such contracts to be made by a guardian on behalf of a minor. However, this applies to training and apprentice opportunities, not to full blown domestic labour and this act does not apply to domestic labour.

  12. 12.

    This case had three writ petitions and was treated together as a Public Interest Litigation: Bachpan Bachao and Ors. Vs. Union of India (UOI) and Ors WP (Crl.) No. 82 of 2009; Kalpana Pandit Vs State, WP (Crl.) No. 619 of 2002; Shramjeevi Mahila Samiti Vs State and Ors, WP (Crl.) No. 879 of 2007 and was decided on 24.12.2010.

  13. 13.

    Upendra Baxi writes how Supreme Court decided to take suffering of Indian masses seriously in its new Avatar as a people’s court in its PIL jurisdiction after the Emergency. See Baxi (1985).

  14. 14.

    Eedi Ganiraju vs State of Andhra Pradesh, rep. by Secretary, Social Welfare Department and Ors. W.P. No. 16827 of 1997, decided on 28.04.2006.

  15. 15.

    Urmila Pawar in her autobiography, The weave of my life: a Dalit woman’s memoirs’, narrates how the teacher expected her to mop and clean the school. Stalin K’s film Lessor Humans shows interviews of little Dalit school girls who are expected to provide physical labour in the school—making tea, cleaning—owing to their caste and gender positionality.

  16. 16.

    State vs Rajeev Luthra, Session Case No. 148/11. Delhi District Court, decided on 6 January, 2012.

  17. 17.

    For instance, the Atrocity Act is applied to violence—murders, rapes—but not to economic oppression of Dalits. Though the Act provides for many remedies, the police hardly charge upper-caste offenders with those sections and Courts overlook this omission. See Irudayam et al. (2014).

  18. 18.

    Feminist legal thinkers have pointed out similar problems with legal perspectives on sex work, where the agency of the sex worker and the choice of sex work as an earning possibility are submerged in the discourses that assume all sex work to be exploitation, violence and trafficking. See Ratna Kapur, Prabha Kotiswaran and Sameena Dalwai (name of the work has not been mentioned).

  19. 19.

    An Anti-Discrimination Bill which will make civil remedy possible—in terms of adequate fines and fair compensations—has been in the pipeline for a decade now. If passed, this law will redress discrimination on the basis of caste, religion, sexuality, disability possible.

  20. 20.

    In a survey of domestic labour, workers emphasized that their fight is not merely for better salaries or for decent conditions of work, but also for their dignity and a dignified life for their families. See Prasad (2017).

  21. 21.

    The Janvadi Mahila Samiti (JMS), an affiliate of the AIDWA, conducted a survey jointly with the Domestic Workers Union. It shows that most of the women doing domestic work belong to Dalit and backward classes. Of the 288 women surveyed, 148 were Dalits and 112 belonged to other backward classes whereas 10 women were Muslims. See https://peoplesdemocracy.in/2014/0615_pd/domestic-worker%E2%80%99s-struggle-recognition. Accessed 24 December 2018.

  22. 22.

    Pay Commissions are salary increment plans proposed by the Government of India for its employees.

  23. 23.

    In a survey conducted of law students in 2015, very few upper-caste students were able to emphatically say that Bhangis can enter their homes or kitchens or drink water from the same utensils as the others. Discussed in detail in author’s paper titled, ‘Caste in legal education: a survey of law schools in Delhi’ (Currently under review with the Asian Journal of Legal Education).

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Dalwai, S. (2019). Caste as a Framework to Study Domestic Labour: A Comparative Law Perspective. In: Mahanta, U., Gupta, I. (eds) Recognition of the Rights of Domestic Workers in India. Springer, Singapore. https://doi.org/10.1007/978-981-13-5764-0_6

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