Supreme Court refuses to entertain plea seeking minimum wages for domestic workers as fundamental right

The Supreme Court on Thursday declined to entertain a petition seeking a declaration that domestic workers have a fundamental right to be paid a minimum wage [Penn Thozhilalargal Sangam and ors v. Union of India and ors].

The Court opined that matters such as implementing minimum wages for domestic workers are best left to the concerned State authorities.

A Bench of Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi also expressed concerns that mandatory minimum wage fixation could backfire over fears that trade unions may drag "every household" into litigation and this could lead to a reluctance in hiring domestic workers.

"Every household will be in litigation ... Once minimum wages are fixed, people will refuse to hire. Tell me how many industries have been able to hire successfully using the trade unions. See all sugarcane unions closed ... When a minimum wage is enforced, these unions will ensure that every household is dragged into litigation," remarked CJI Kant.

He observed that it may appear attractive to argue that the domestic workers' rights to equality, non-discrimination and fair employment under Articles 14, 15, 16 could be violated without a mandatory minimum wage. However, overzealous trade unions could leave such workers high and dry, the CJI added.

"Please examine the consequences. Trade unions will leave these people and they have nowhere to go," he said.

The Bench also expressed concerns about how a large cut of such minimum wages could be misappropriated by employment agencies. The Bench referred to what transpired at the Supreme Court itself as an example.

"These employment agencies exploit these people. The Supreme Court was paying agencies for skilled people, and we paid ₹40,000 per worker. The poor girls got ₹19,000. This is how the trust is broken. Millions engage domestic help. When you hire them through agencies, what will happen? All these heinous offences by domestic workers happen when they are engaged by agencies and not through a human connect," CJI Kant said.

The Bench eventually suggested that the petitioners approach the concerned State authorities for a solution, after noting that the Court had limited powers to intervene in a matter that involved changes in the law.

"We find that on a combined reading of the prayers, no enforceable decree or order can be passed unless the legislature is asked to enact a suitable law. Such a direction, we are afraid, ought not to be issued by this court. We observe that petitioners should continue to highlight the plight of the domestic helps and impress upon the stakeholders to take a final call in relation thereto ... Correspondence shows it is under active consideration by States and we are hopeful that a suitable mechanism shall be deployed for their help and to prevent exploitation. Writ is disposed of with a request to the States to look into the grievances highlighted by the petitioner organisation," the Court's order said.

The plea before the Court had sought the declaration that domestic workers have a fundamental right to a minimum wage which is protected and guaranteed by Articles 21 and 23 of the Constitution.

It also challenged the exclusion of domestic workers from the Minimum Wages Act and/or the Code of Wages, 2019.

Representing the non-government organisations and associations that filed the petition, Senior Advocate Raju Ramachandran today highlighted the welfare measures that have been implemented in other countries.

"In Asia, Singapore, you cannot hire a domestic worker without giving leaves, etc.," he said.

The Court, however, expressed that it may not be right to say that domestic workers do not have any welfare laws.

"It is not that there is no safety net. To say that they are left in lurch - you are itself saying that the Unorganised Workers Social Welfare Act is itself taking care of it ... Courts are very careful when it comes to economic policies," Justice Bagchi said.

Ramachandran argued that the petitioners now seek the concrete recognition of rights when it comes to minimum wages for domestic workers.

"We are asking for a declaration that the non-payment of minimum wages is a violation of fundamental rights," Ramachandran submitted.

"Such a declaration is only lip service if not implemented," CJI Kant replied.

He added that the Court may not be the right forum to resolve the concerns flagged by the petitioners.

"All your prayers are legislative in nature. You want a decree which can be enforced and not just an empty one. Inclusion of domestic workers in the schedule will require amendment, but you have spoken about exclusion. How can that be?" CJI Kant said.

"We are seeking a notice to the States that have not enforced the minimum wages, while some States have done it already. The character of domestic employment does not change from State to State. Union says it is for the States to take a call," Ramachandran replied.

The Court, however, declined to interfere in the matter, indicating that this issue is best left to the concerned State governments.

"If you think some States have taken a decision, then you can approach some of the High Courts and see," CJI Kant added.

The petition was filed through advocate Shreya Munoth.

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