Part I of this series discussed how in the Indian Supreme Court’s decision in Ameerbi, denial of minimum wages to ‘scheme workers’, is a violation of their fundamental right to minimum wages. In this part, it is argued that the Court, by ruling that scheme workers do not qualify as “industrial workmen” under Indian labour laws, has disregarded important labour law principles. This is not just a matter of semantics; it affects the range of rights and protections these workers can access under the labour law regime.  By denying them this status, the Court not only undermines their legal rights but also reinforces patriarchal biases about who qualifies as a “worker” and what activities constitute as “industry.”

First, scheme work should be deemed to be an industry. Section 2(j) of the IDA uses very broad terms to define an industry. In Bangalore Water Supply v R. Rajappa and Others, the constitutional bench of the Supreme Court affirmed this broad interpretation by laying down a “triple test” for determining if an establishment qualifies as an industry. Firstly, systemic activity must be present, excluding one-off transactions. Secondly, there must be organised cooperation. Thirdly, production must aim to satisfy human wants. Exceptions exist for religious, charitable establishments (among others), but apply only if the dominant nature of the work falls under any of the exceptions.

This triple test is a purposive test where profit-making motive or a factory set-up is not a pre-requisite. Even though scheme work may seem altruistic, its dominant nature aligns more with organised sectors like healthcare and can easily be likened to work done by nurses, caretakers at day care centres, and data collectors, all of whom are frequently employed in organised sectors and the healthcare ‘industry’. Ameerbi however, sharply rejects the notion that scheme work can be an industry. Notably, the new Industrial Relations Code, 2020 which is due to replace the IDA, entrenches the triple test into the new definition of an industry.

Second, the definition of ‘workman’ under Section 2(s) of the IDA is widely worded to include every employee earning below a specified wage, including manual, skilled, and technical labour. The ‘control and supervision’ test, as upheld in Dharandhara Chemical Works and Diwan Mohideen Sahib, is the only determining factor. Scheme workers, trained and supervised by the Government of India, should qualify as ‘workmen’. In the 1994 judgement of H.R. Adyanthaya v Sandoz, the division bench held that the nature of labour, whether manual or skilled, is immaterial to extending labour protections. However, there are inconsistent judgments passed by single-judge benches like Miss A. Sundarambal and Heavy Engineering that differentiated a ‘manual worker’ from a ‘skilled worker’, creating some ambiguity. In these judgments, a teacher and a low-level healthcare staff did not qualify as workers. Ameerbi, like the rulings in Miss A. Sundarambal and Heavy Engineering, seems to carve out exceptions rooted in preconceived and stereotypical notions of a ‘workman’ and ‘industry’, violating precedent set in H.R. Adyantaya.

Scheme work is a form of reproductive labour, that is, labour required to support (or reproduce) generations that become part of the productive workforce.  A majority of scheme work involves reproductive labour – like caregiving, household support, and child-rearing – for the village community. Feminist theorists have long argued that social, emotional, and reproductive labour provided by women within families and communities, seen as volunteerism, is often ignored, unpaid, and undervalued. In this backdrop, the International Labour Organization (‘ILO’) in their report on community healthcare workers in southeast Asia has gone as far as observing that “by the standards of the Indian state, the work of ASHAs could be described as slave labour.”

In February 2024, the Indian government announced that the Ayushman Bharat healthcare coverage, a healthcare coverage offered to workers of the informal economy, would also be extended to ASHA and Anganwadi workers. Such incentives, while encouraged, are paltry when scheme workers are denied minimum wage protection and recognition as employees.

The Ameerbi ruling’s exclusionary stance highlights how patriarchal ideologies harm women in caregiving roles and exposes how the systemic devaluation of care work is perpetuated in labour law. This seemingly neutral policy also results in indirect discrimination, forcing women in caregiving roles into economic dependence on male family members. The Ameerbi judgment must be reassessed, its restrictive understanding of ‘industry’ and ‘workmen’ should be rejected and broader, more inclusive definitions that recognize caregiving work should be adopted.