LABOUR LAW

(IST INTERNAL – ARTICLE WRITING)

SUBMITTED TO:
SYMBIOSIS LAW SCHOOL, PUNE

RESEARCH SCHOLAR:
JANAKI NAIR
DIVISION E
18010125428
B.A LL. B (H)
 TABLE OF CONTENTS
INTRODUCTION...............................................................................................................................3
WHAT IS INVISIBLE LABOUR?....................................................................................................3
ANALYSIS...........................................................................................................................................4
INDIA AND INVISIBLE LABOUR..............................................................................................4
WEST AND INVISIBLE LABOUR...............................................................................................4
CONCLUSION....................................................................................................................................5
HISTORY OF SOCIAL SECURITY LEGISLATION FOR INFORMAL WORKERS...........5
SOCIAL SECURITY CODE 2020.................................................................................................6
 INVISIBLE LABOUR AND GENDER INEQUALITY: HAS INDIA
LEARNED ITS LESSON?

INTRODUCTION
Labour laws and reforms of the modern world are said to be progressive in its thinking as
well as execution. In spite of that, gender inequality is a concept that the world has never
been able to shake off since time immemorial. It exists in concurrence with the labour
environment of today in the form of unequal remuneration, wage gaps, increased harassment,
etc. This is not to say that there are no legislations existing for lessening the abovementioned
issues. The current paper focuses on an issue where the laws have yet to glance at, even
though it has existed since the concept of labour has existed. The issue of invisible labour, or
more specifically, the issue of gender inequality in invisible labour, has been the centrepiece
of debates and discussions since the birth of the feminist movement in the 1800s.

WHAT IS INVISIBLE LABOUR?

Invisible labour/unpaid labour includes but is not restricted to, casual employment,
“domestic” work, self-employment, unpaid family workers, etc., most of which remains
unaccounted for as a legitimate source of labour and income to this day in the National
Accounting Statistics.

According to the 2019 report of the National Sample Survey Office (NSSO) of India 1, the
time spend by women in doing unpaid labour is 3 times more than the time spend by men.
Prabha Kotiswaran, a professor of Law & Justice at Kings College London, UK, defines
invisible labour carried out by women as reproductive labour, which is the work that is
necessary to develop the current visible forms of labour. It can be in any form – physical,
emotional, sexual, etc., as long as its end product is concerned with facilitating the
“economically seen” forms of labour, i.e., the work that contributes to the GDP of a country,
which is usually carried out by men. Therefore, it is acknowledged that it is important, but the

1
Samantroy, D. E. (2019, January 1). The invisible workers: Capturing home-based work in India.
ACADEMIA. Retrieved March 22, 2022, from
https://www.academia.edu/41249891/The_Invisible_Workers_Capturing_Home_based_Work_in_India?
from=cover_page .
current problem at hand is whether there are any (or sufficient) legal mechanisms to ensure
that unpaid labourers, which, statistically, have always consisted of more women than men,
are treated fairly.

ANALYSIS
INDIA AND INVISIBLE LABOUR
India has always been an area marked with extremely varied employment dynamic patterns
among the various genders employed. It would be completely true to state that the Indian
labour market is characterised by huge informality. The unorganised sector itself is the
dominating work sector in the country, and over the years, there has only been an increase in
the number and percentage of women workers in the unpaid or invisible category. There have
been some attempts in order to recognise this lacuna in the existing labour legislations,
however, none of them have actually seen the light of law to this day.

WEST AND INVISIBLE LABOUR

Taking into account the intensity of invisible labour and work in developing countries like
India, the type of invisible work predominantly found in the developed countries of the West
may differ in their forms. Other than the household work which forms a part of unpaid labour
in both India and the United States of America, most of the invisible work of women is
restricted to the organized sector, as the percentage of organized and unorganized labour is
vastly different than its Indian counterpart’s statistics. 2 United Kingdom, another developed
country like the US, is no different than the latter when it comes to the predominance of
invisible and unpaid work in the organized sector. In these regions, the term ‘invisibility’
refers to market devaluation or to some kind of social judgment that categorises certain tasks
as “not work.” These particular tasks are always associated with leisure, consumption and
are regarded as voluntary and not immediately important in the grant scheme of things, and
therefore, fall outside of the legal structure.

Whatever it is, it is still the women who suffer the most.3

2
Retrieved from https://www.dol.gov/agencies/wb/data/occupations .

3
Wezerek, G., & Ghodsee, K. R. (2020, March 5). Women's unpaid labor is worth $10,900,000,000,000.
The New York Times. Retrieved March 22, 2022, from
https://www.nytimes.com/interactive/2020/03/04/opinion/women-unpaid-labor.html .
Thus, it could be seen that even though all the countries mentioned above do suffer
through unpaid labour, out of which a good number of workers are women, there is still
a slight difference to the status of employment of such women that is a result of the
economic development of the countries. Unpaid labour, therefore, comes in different
shapes and sizes across different countries, depending on that country’s economy and
global status. In India, due to its economy, population as well as development, invisible
women workers mainly come from the unorganised sector.

There is a need to pin-point the focus areas as well as types of invisible work present in each
country so as to implement better – aware policies and laws for its eradication.

CONCLUSION
HISTORY OF SOCIAL SECURITY LEGISLATION FOR INFORMAL WORKERS
The latest Government – mandated legislation on the topic of invisible labour is the Social
Security Code of 2020. Before the advent of the 2020 Code, the Indian legislation had never
been able to properly voice out the struggles of its invisible workers at all.

The need for some form of social security for the informal workers had been raised by
various committees such as the NCEUS4 since the early 2000s. The year 2006 had seen the
birth of the Unorganised Workers’ Social Security Bill which even claimed to cover all types
of informal workers across the country. However, the Bill saw the concept of invisible
workers/unpaid labourers being excluded under the definition of who all constitutes ‘informal
workers’ under the Act, thereby excluding invisible workers from earning any benefits under
the legislation. Such an exclusion projected more implications on the gender disparity front.
It is no secret that a significant portion of the unpaid labourers in India are women. After the
proposal of the bill with its exclusion, legal scholars had come out criticising it based on the
fact that the exclusion simply serves to reinforce the already existing patriarchal notions of
the male breadwinner and the women dependent on the former, regardless of their actual
contribution in society which is being masked by such exclusions.5

4
NCEUS: Social Security for Unorganized Workers, Gol, May 2006.

5
Neetha N. (2006). “Invisibility” Continues? Social Security and Unpaid Women Workers. Economic and
Political Weekly, 41(32), 3497–3499. http://www.jstor.org/stable/4418562 .
To summarise the above, India has a large, growing segment known as the unorganised
economy, out of which the major category is that of self-employed women6, who do not do
nine – to – five office jobs (unlike their Western counterparts). A large category of such self-
employed women belongs in the box of invisible labour by being termed as ‘unpaid family
labourers.’ Unpaid domestic labourers had always been hard-hit by such exclusions.
However, there are judicial precedents that have stressed on the importance of domestic
women servants. In the case of Rajam v. Manikya Reddy7, it was held that on the case of the
death of a homemaker, the term ‘loss of services’ to any family was larger than just the cost
of replacement, as there is no substitute for a homemaker. Furthermore, in a recent 2020 case,
Bhivaneshwari v. Mani8 , the court appreciated and upheld the position of women as
‘household mothers’ as standing in a higher pedestal than the male income – earning
members of the family. But all these precedents do not mean that labour legislations for
invisible work are up to date in India. There is a need for the labour law administration to
create as well as amend the current protective labour legislations.

SOCIAL SECURITY CODE 2020

All in all, the idea of the Social Security Code of 2020 had been a welcome respite after the
abovementioned exclusionary behaviour of the earlier Bills and Acts. The 2020 Code is an
amalgamation of eight previously existing social security legislations in India. However, the
Code turned out to be a huge disappointment for invisible workers and the COVID pandemic
made the disappointment starkly ‘visible’ to the public.

 The provision of maternity benefit was not made universal under the Code.
Additionally, the term establishment has not included the unorganised sector in its
definitions at all. This means that the invisible women workers have not been elevated
from their sufferings.
 Benefits under the Code are only available to those informal workers who register
themselves on specific online portals. There is a huge lack of awareness 9 and
6
SWAMINATHAN, P. (2009). Outside the Realm of Protective Labour Legislation: Saga of Unpaid Labour in
India. Economic and Political Weekly, 44(44), 80–87. http://www.jstor.org/stable/25663737

7
MANU/AP/0303/1988.

8
Bhuvaneswari v. Mani, 2020 SCC OnLine Mad 2163.

9
Tiwari, S. (2020, June 21). No documents, no benefits: How India's invisible workforce is left to fend for
itself. Indiaspend. Retrieved March 23, 2022, from https://www.indiaspend.com/no-documents-no-
benefits-how-indias-invisible-workforce-is-left-to-fend-for-itself/ .
 understanding of such complicated portals, which again serve as a disadvantage to the
informal/invisible workers. These have been even more pronounced in the midst of
the pandemic.
 The definitions of the Code are extremely vague and overlapping. To illustrate,
platform and gig workers’ coverage is optional under the Code, but it is mandated for
traditional unorganised workers, which will apply to home-based workers also. So, an
online-based home – based worker would find it difficult to understand what rule it
operates under10. Home – based women workers constitute for about 16% of total
employment for women in India, compared to the 9% of their male counterparts.
Vague legislations that leave space open for interpretation only strive to further
jeopardise the unorganised women workers of India.

To conclude, India certainly has not learned its lesson, as can be seen by the SS Code of
2020. It is very vague and contains many overlapping provisions that need to be amended
in order to achieve its aim of actually protecting the informal sector of India. Invisible
labour is still not being taken seriously in India. Policies and regulations need to be
reformed again and again with the best interests of the poor women in mind. As long as
these valiant women workers are not given the benefits and recognition that they deserve,
India will not be able to climb out from the clutches of patriarchy still ruling over it.

10
Agarwal, S. (2020, November 13). India's new Social Security Code is progressive, but definition
loopholes may deprive 4.2 cr home-based workers of Benefits-India News, Firstpost. Firstpost. Retrieved
March 23, 2022, from 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 .