Labour Justice for India’s Community Care Workers (Part I)

by | May 8, 2024

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About Arunima Das

Arunima Das is a practising lawyer at the High Court of Madras and an alumnus of O.P. Jindal Global University. In her current role, she deals with various arbitration and civil law matters. Her research and academic interests lie in labour law, disability law, and human rights. She has previously interned at the Office of Hon'ble Justice (then) D.Y. Chandrachud and at the Centre for Justice, Law and Society.

Under India’s National Health Mission and the Integrated Child Development Scheme, a group of workers, referred to here as ‘scheme workers’, are employed by the government as part of a welfare policy aimed at improving healthcare access in rural areas. Despite being indispensable to the rural healthcare system, scheme workers are denied recognition, employment regularisation, and minimum wages. This denial was affirmed in the judgement of State of Karnataka v Ameerbi. In this blog series, the Ameerbi judgement is critically examined. Part I argues that the decision of Ameerbi wrongly excludes scheme workers from minimum wage protections. Part II shows how denying scheme workers recognition as employees is a misapplication of labour law principles and judicial precedent. Further, it also demonstrates that denial of employment equality to scheme workers carries the stench of a sexist ideology that devalues care work.

‘Scheme workers’ include Accredited Social Health Activists (ASHAs), Anganwadi (literally translates to “community shelter” in Indian languages) workers, Auxiliary Nurse Midwives (ANMs), and Urban Social Health Activists (USHAs). Across India, these scheme workers are employed to provide care related services such as universal immunisation, antenatal/postnatal care, and supplementary nutrition to women, children, the ill, elderly and malnourished individuals. Additionally, they undertake tasks such as data collection, surveying, and teaching. Often seen as community leaders, they act as the primary link between rural families and the public health system.

Scheme workers are unfairly categorised as ‘honorary volunteers’, not regular government employees. They are paid honorariums that are often below the floor minimum wage and are not revised to accommodate inflation. This categorisation also deprives scheme workers of labour protections that come with regularisation of their employment, such as contributions to provident funds, provisions for maternity leave, paid leave, gratuity, and so on. In a previous blog, the failure of the legislative regime in granting ASHA workers minimum wages and employment equality has already been explained. Apart from being poorly compensated, they also work long hours, travel long distances, are poorly paid, and carry out their work in unsafe working conditions. Due to these reasons, ASHA and Anganwadi workers have been persistently mobilising for employment regularisation and minimum wages.

The Court in Ameerbi held that Scheme workers – a) are not entitled to minimum wages, b) do not work in an ‘industry,’ under the Industrial Disputes Act, 1947 (IDA) and c) do not fall under the definition of ‘workmen’ under the IDA. The decision merely stated that scheme workers ‘cannot be called’ industrial workmen or considered to be working within an industry. The Ameerbi decision is poorly reasoned and skips the necessary legal analysis to support its conclusion.

The term ‘workmen’ is defined in the IDA. Those recognised as workmen are eligible for protections given under the IDA. However, the Court’s conclusion is misguided in so far as the right to minimum wages is guaranteed under the Minimum Wages Act, 1948 (MWA), not the IDA.  In the case of People’s Union of Democratic Rights, the Supreme Court elevated the right to minimum wages to a universal fundamental right of all ‘employees’, irrespective of whether they fall under the definition of ‘industrial workmen’. An employee is a broader term, as opposed to a ‘workman’ who must meet the qualifications mentioned in the IDA. Denying minimum wages was held to be akin to forced labour and a violation of Article 23 of the Constitution of India (right against bonded labour). Therefore, under Indian law, every worker is guaranteed a minimum subsistence wage, irrespective of whether they fall under the definition of an ‘industry’ or ‘workmen’ under the IDA. In fact, the new Code on Wages, 2019, which will soon replace the MWA, uses the broader term ‘employee’ as opposed to the  term ‘worker’, codifying existing precedent. Furthermore, India has ratified ILO Convention No. 131 on Minimum Wage Fixing, which mandates that all workers must receive wages that are sufficient to provide them with a decent standard of living for themselves and their families. It must therefore ensure that scheme workers are paid minimum wages.

Regardless, as elaborated in Part II of this blog series, scheme workers can be classified as ‘workmen’ and deemed to be working in an ‘industry’, thereby granting them all the protections provided in the IDA.

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