Laws in India are made by stealth, under cover of darkness. The Protection of Women against Sexual Harassment at the Workplace Bill, 2010, made news recently when the Cabinet cleared it. It's now apparently waiting in the wings to enter Parliament. Media reports state that domestic workers aren't covered by the Bill. National Sample Survey Organisation 2004-05 counts over 4.7 million domestic workers in India. But given the size of the burgeoning middle class, estimates put the numbers as at least thrice that number.
They are among the most vulnerable and unprotected women in the unorganised sector. The nature of their work — being holed up in isolated spaces of millions of private homes with demeaning work conditions, no guarantees of minimum wages or social security — makes it imperative that social protection legislation embraces them first, not last. There is also a provision to penalise women who make 'false' complaints, we learn. This would kill the Bill. Imagine a sexually harassed woman having to not only prove harassment against a male 'superior' but also to protect herself when she fails to do so. Such provisions are absurd and unacceptable. But it seems more absurd to march the streets on the basis of dubious facts.
The website of the Ministry of Women & Child Development, which has steered the Bill, flashes 'New' next to a link that reads 'The Protection of Women Against Sexual Harassment at the Workplace Bill, 2007… Comments invited.' By March 31, 2007, there was nothing 'new'. Next stop: the website of the National Commission for Women (NCW). The Bill here is dated January 28, 2010. The NCW version has Section 16 — penalising women for 'false' or 'malicious' complaints. But it also has a schedule containing 'list of employments in the unorganised sector'. Here, domestic work, gardening, baby-sitting, cooking, cleaning, et al, is listed. So is this the Bill that the Cabinet cleared? A phone call to the NCW yields a blank — “We know nothing about the Bill that the Cabinet has cleared. Please look at our website.” Meanwhile, a feminist e-group has circulated what they think might be the 'real' Bill — put out by the law ministry in July 2010. But this doesn't have any schedule appended to it. So can domestic workers really seek protection? Civil society consultations on this bill — such as they were — concluded over two years ago.
Is this how laws are to be made in our country? Keep them on the back burner after a few token consultations and one day, when no one is looking, sneak them out, modify and bamboozle them through Parliament. This law can affect thousands of women, it can change equity in our workplaces, it's something that the women's movement has fought long and hard for. Yet, in this last mile they are the last to know about it. Far more crucial legislations to fulfil the UPA's promise to end gender discrimination and promise inclusivity are in the pipeline. Would they all be treated like State secrets until their debut in Parliament?
Jurisdictions around the world have mechanisms to involve citizens in law-making. The US has some direct democracy provisions like referendums. Our very own Right To Information Act has established principles of transparency in governance. We need to extend it to law-making. I am personally wary of direct democracy methods (referendums, plebiscites, legislative veto) which can easily turn into crude majoritarianism. But we can think of representative democracy mechanisms and processes that include citizens groups and mandate broad civic participation in law-making. Democratic governance demands that we do so. Without participation and transparency in our legislative process, we dishonour our democracy. And we end up with lousy laws.
Farah Naqvi is a writer and activist working on gender and minority rights. The views expressed by the author are personal.