Justice within the new factory gates: how to hold RWAs responsible for workers’ welfare

Abstract

The gated community is a unique site of social reproduction which has proliferated across India. Elite families are reproduced at the individual, household level but also at the communal level in service-rich private enclaves. These households rely heavily on specialised reproductive labourers who are deprived of worker status because they work in the private domain. Homeowners’ associations or resident welfare associations (RWAs) meanwhile regulate reproductive labour through surveillance and wage fixing and by regulating entry and exit. Despite their public function, RWAs claim no responsibility for worker welfare due to privity of contract and the exclusion of ‘domestic service’ from labour laws. We examine India’s new labour codes, establishment laws and constitutional law to pin responsibility on RWAs as public bodies for ensuring the fundamental rights and welfare of these workers.

1 Introduction

In 2017, a household in a gated complex in Noida, India, unlawfully confined Zohra Bibi, their domestic worker, claiming that she had stolen from them (Dey 2017). The worker, found in a basement of one of the buildings, was physically assaulted by a resident who also locked her in. When workers came to the housing complex in search of Bibi, a local Member of the Legislative Assembly (MLA) supported the residents, claiming an ‘armed mob came with an intent to attack the family’, and that he would ensure the accused ‘never get bail’.

Protesting workers were lathi-charged by police officers, about eighty-one workers were blacklisted and prohibited from entering the apartment complex, and finally the New Okhla Industrial Development Authority (NOIDA), Uttar Pradesh, razed more than thirty shanties around the apartment complex, where the protestors lived (Kanojia 2024; Gupta 2017). ¹ Thirteen workers were charged with attempted murder. Counter-First Information Reports (FIRs) were filed against migrant domestic worker Bibi, alleging that she stole the residents’ property, although the FIR lodged by her was closed for lack of evidence. At the time of filing the closure report, her statement had not even been taken by the police officials (Kanojia 2024).

Since 2017, several such cases of abuse and exploitation of domestic workers, typically migrant adolescent girls who perform live-in domestic work within highly regulated gated communities, have emerged. Juxtaposed against these reports, however, are glossy multi-page advertisements of building projects in large metropolitan cities presented as green havens offering freedom to harried residents from the ills of city life – pollution, traffic, long commutes and congested neighbourhoods. This article aims to unpack the paradoxes of life within such gated communities, which comprise new sites of social reproduction that are rapidly transforming the urban landscape not just in large metropolitan cities but also in the smaller second and third tier cities of India. Tracking the spatial turn in social reproduction theory, we examine the unique site of the gated community as occupying the liminal space between the public and the private, and elaborate on the layers of reproductive labour invested in maintaining the lifestyle of its residents. We query the role of labour law in shaping and invisibilising reproductive labour within the gated community and, finding it wholly inadequate, turn to the promises of constitutional law to explore if and how its horizontal application to private parties like resident welfare associations (RWAs), which manage gated communities, can be mobilised for worker welfare.

1.1 The gated community as a unique site of social reproduction

Social reproduction is defined as the labour required to reproduce humans and sustain life – biologically, socially, culturally and economically. Specifically, it refers to

‘biological reproduction; unpaid production in the home (both goods and services); social provisioning (voluntary work directed at meeting needs in the community); the reproduction of culture and ideology; and the provision of sexual, emotional and affective services (such as are required to maintain family and intimate relationships)’ (Hoskyns and Rai 2007, 300).

As women are disproportionately burdened in performing this labour, feminists have long advocated for its recognition. Early social reproduction theory centred around the institutional site of the family and the household where women performed unpaid domestic and care work as they reproduced the labour power of men as well as that of a newer generation of workers by birthing and caring for children. Social reproduction theory thus assumed as its unit of analysis the nuclear ‘family’ consisting of a heterosexual couple and their two children. Over time, as feminists in various disciplines theorised social reproduction to track major shifts in the political economy, they cast their eye on different forms of reproductive labour performed by women both within and outside the household as well as across international boundaries. Feminist geographers in particular highlighted the spatial dimensions of reproductive labour accounting for ‘space, place, and scale’ (Strauss and Meehan 2015, 15). As global relations of production were restructured, so were relations of reproduction (Miraftab and Huq 2024). Feminist accounting for the spaces in which women performed reproductive labour showed how the structuring of these spaces obscured patterns of capitalist accumulation enabled by processes of dispossession, displacement, bantustanisation, gentrification and informalisation (Miraftab and Huq 2024). In mapping resistance to these processes, scholars also documented practices of radical care whereby women mobilised against the state to extend public goods like roads, water, sanitation and electricity to working-class neighbourhoods, thus engaging in ‘collective social reproduction’ or ‘municipal care work’ (Miraftab and Huq 2024, 243). We take a quite different instance of ‘collective social reproduction’ occurring within the gated community as a unique site of social reproduction to elaborate on the layered processes of social reproduction within it through a socio-legal lens.

1.2 The emergence of the gated community in India

India has a high population density, hence the phenomenon of group housing is hardly new. A minority live in formally organised group housing arrangements such as apartment building complexes, housing co-operative societies and gated communities. The majority, typically the poor, live in informal group housing arrangements such as slums, tenements, chawls, wadas and bastis. Formal group housing arrangements are recognised by colonial-era laws which have been amended over time. There are thus at least three key federal-level legislations: the Societies Registration Act 1860, the Cooperative Societies Act 1912 and the Apartment Ownership Act 1989. Each of these laws is a product of its times and it is common to map these shifts in housing patterns and laws in terms of a transition from industrial to post-industrial capitalism. The closure of factories and disinvestment of public sector companies operating in city centres has led to the redevelopment of these lands into centres of consumption for the urban elite.

Particularly since the early 1990s and the liberalisation of the Indian economy, there has been a boom in the real estate sector which has led to the reduction in affordable housing and the emergence of a special form of group housing, namely gated communities, catering to India’s large and upwardly mobile professional classes. This fuelled the aspirations of the Indian middle classes to live like their global counterparts. However, the infrastructure has lagged, leading to a poor quality of life in terms of transport, air quality and access to electricity and water supply. Globally, the proliferation of homeowners’ associations or RWAs is possibly an effect of the increased assumption of erstwhile public sector responsibilities (Schuermans 2016; Silva de Araujo and Pereira de Queiroz 2018). In South America (Schuermans 2016) and North America (Morgan 2013), as well as in Europe and Asia (Rafiemanzelat 2016), there has been an increase in such associations, although research on gated communities themselves focuses largely on the residents within them. Unlike gated communities in North and South America where the middle classes escape to the suburbs to avoid crime and insecurity, in India, as urban ethnographer Sanjay Srivastava notes:

‘[G]ated communities manifest a politics of space that simultaneously as it is facilitated by the state, signifies a lack of confidence in the state’s ability to provide security and everyday infrastructure, there is a strong sense that the middle class is under threat from urban “under-classes”, and there is an overwhelming perception that such threats can only be countered through creating highly regulated spaces.’ (Srivastava 2015, 25)

In other words, the fear of crime is not what drives these developments; it is rather the avoidance of poverty and poor infrastructure. With municipal governments failing to address residents’ concerns regarding infrastructure, services and security, RWAs (Bose 2021) work with the state in the form of ‘institutionalised co-production’ (Joshi and Moore 2004, 31) to perform these public-body functions as semi-private governments (Joshi and Moore 2004) or residential private governments (Reichman 1976). Through their public functions, the claims RWAs make on the state and on society are premised on a politics of exclusion, especially of the informal working class (Srivastava 2015).

RWAs already exercise considerable control over their members’ lifestyles, ranging from deciding whether residents can leave their footwear in the corridors and preventing them from air-drying their clothes on balconies to preserve the chosen aesthetic culture of the RWA to prescribing how festivals might be celebrated in the community (Dubey 2007; Samervel 2016). RWAs’ surveillance powers reached their zenith during the COVID-19 pandemic when central and state governments enlisted their help to contain the pandemic through intense scrutiny and regulation of residents’ lives. ² They were labelled ‘tin-pot dictators’ and ‘little Hitlers’ (Pandey 2020) by the media. It is against the backdrop of the emergence of the gated community as a new form of group housing and the unbridled power of RWAs that we are keen to study how social reproduction takes place in this space at the level of the individual household but also within the collective space of the gated community. Who makes this social reproduction happen by cleaning, cooking, driving, laundering, caring, gardening and providing security? What are the laws that govern the labour of millions of workers who cross the gates of housing societies on a daily basis to perform the necessary tasks of social reproduction? Can law in fact enable the social reproduction of those who perform paid reproductive labour for others?

In examining these laws, we adopt a legal realist approach. We acknowledge the importance of the most obvious and visible set of legal rules in a social context but probe the background legal rules that in fact shape the bargaining power of the parties concerned (Kennedy 1995a). Thus labour law may seem to govern the legal relationship between an employer and paid domestic worker but the ability of the employer or the gated community to threaten the paid domestic worker with a theft charge through the use of criminal law fundamentally shapes the employment relationship. We further adopt a legal pluralist lens to capture the salience of not just legal rules but also informal norms, customs and practices. Thus, while RWAs may claim the absence of a formal employment relationship with a paid domestic worker, the wage rates that RWAs prescribe and which form one form of social ordering determine the worker’s pay, leaving little room for negotiation.

We begin by mapping the working arrangements of various groups of workers in a typical gated community. This typology is based on fieldwork conducted by the authors in a large gated community in Bangalore comprising 1,300 apartments in 2021. We then examine the applicability of labour and commercial laws to these groups of workers. We find that the passage in 2019 and 2020 of the four labour codes, which were meant to consolidate Indian labour laws, entrench a conventional model of labour law geared towards an industrial setting for the manufacture of goods, wherein employer-employee relationships are clearly established. Such a model fails to consider the myriad economic transactions which are often not based on a clear employment relationship such as for workers in the informal sector, independent contractors and service providers like gig workers. Consequently, the patchy application of labour laws to various groups of workers within gated communities is deeply insufficient, since it results in few hooks on which to pin employers’ liability, leading to a legal vacuum within which the precarity of workers is generated and maintained. To illustrate, despite a robust domestic workers’ movement that has for decades demanded a separate law for paid domestic work, such a law has not materialised. Hence there is a need to turn to constitutional law to enquire how else RWAs can be held accountable for protecting the rights of workers in these communities to decent work and against discrimination, especially given RWAs’ increased powers which they exercise like public authorities. In other words, we argue for improved labour laws but also for the direct and indirect horizontal application of Part III of the Indian Constitution to protect workers at these ‘new factory gates’ (Joseph et al. 2019, 101). Thus we endeavour to reimagine labour laws for the newly emergent site of social reproduction, namely the gated community.

2 The gated community as workplace; RWAs as super employers

In any given gated community, there are typically at least four groups of workers performing reproductive labour. We typologise these workers based on whether there exists a formal employment relationship or not. The first group consists of workers employed directly by RWAs. The second group consists of workers who are employed by facilities management companies to perform a range of duties within a gated community including landscaping, gardening, security, waste management, housekeeping and lift maintenance. RWAs and residents alike benefit from these services but are not direct employers of the workers since such work is contracted out to the facilities management company.

The third group comprises independent contractors who deliver milk, newspapers and flowers, as well as packages from online vendors like Amazon. They do not have an employment relationship with residents of individual households; they would be employed by the online retailer or be paid a commission by the newspaper company. Alternatively, they may be paid by residents for their services, but the payment level varies. The fourth category comprises workers (domestic workers, cooks, car cleaners, drivers) hired directly by an individual household. Verbal contracts for such services are usually for live-out, part-time work and the same worker might be employed by more than one household. Live-in, full-time workers on the other hand work exclusively for a household but this is not the norm. ³ Drivers tend to be hired on a full-time basis by one household only.

Whether there is an underlying contract of employment between the workers and the residents or the RWAs or not, residents of the gated community are the ultimate beneficiaries of such labour. Workers are indispensable to sustaining the daily routines of the residents. They support the unpaid work of women in socially reproducing these households while ensuring that both men and women are able to undertake paid work for the market. Workers also collectively reproduce the space of the gated community spanning several acres and including residential buildings, a club with recreational facilities, small gardens, roads within the complex, lifts, water and sewage treatment facilities and other common areas. Further, the RWA does not merely control the lives of residents and levy charges and fees in order to maintain the physical infrastructure of the residential complex. It also sets the base norms for the relationship between itself, the residents and the workers. RWAs often set the default rules for the terms of entry into this workplace, working conditions at the workplace and the terms of exit from the workplace as elaborated below. Thus, RWAs are literally gatekeepers to livelihoods and the gated community is a workplace.

2.1 Access to the employment market of the gated community

RWAs exercise control over residents, workers and visitors to the gated community in several ways. For instance, in the USA, such residents’ associations can restrict activities conducted even within one’s home, such as banning some equipment, or regulating the keeping of pets and regulating occupational activities (Reichman 1976). In India, in any given gated community, the RWA has a say in allowing access to even independent contractors hired by residents within the complex. This is also the case for employees hired by individual households. RWAs issue identity cards without which workers cannot enter the premises of the gated community. Many apartments require workers to submit identity proof such as Aadhar (unique identification) cards. This makes it particularly difficult for domestic workers from minority communities, such as Muslim workers, to find jobs (Mantri 2020), since prior to the issuance of Aadhar cards they had the flexibility of adopting Hindu names to counter discrimination based on religion. Caste too, becomes apparent with the card which clearly specifies last names or family names of workers, with possibilities of further discrimination. Suitability for tasks (such as cooking) is often determined based on workers’ caste profiles.

2.2 Pay, leave and working conditions

Caste-based governance also ensures that domestic workers do not ‘loiter’ after work in the common spaces, and that workers are prohibited from using common amenities like elevators ⁴ and touching the buttons in an elevator (Dayal 2020). Some RWAs prohibit workers from working in other localities or societies, and confine workers to some blocks within the apartment complexes.

With the pandemic, RWAs have continued to make deep inroads into workers’ livelihoods by regulating entry into gated communities and access to public spaces such as elevators, parks and lounge areas, ⁵ justifying untouchability on the pretext of COVID-19 – measures which were significantly stricter for domestic workers as compared to delivery executives or the residents themselves. ⁶ The caste dimension in the leadership and governance of RWAs was thus exacerbated during the pandemic (Baviskar and Ray 2020). Where workers are not subject to heavy-handed forms of control and surveillance, their demands for basic protections at work such as paid leave or a monthly day of leave materialise through hard-won struggles that take several years. ⁷ Some RWAs also publish wage rate cards which often depress wages. When workers object, employers retaliate. In 2017, residents of a gated community in Mumbai fired around 200 domestic workers without notice, after they protested the standardisation of wages (Arora 2024; Chari 2017). Such protests have led to RWAs in other apartment complexes to come together against workers, claiming that such protests question the ‘self-respect’ of residents (Arora 2024; Chari 2017).

2.3 Surveillance of workers

Further, RWAs’ actions also violate workers’ privacy in several ways. Through community-based applications such as Adda, MyGate and Lockated, residents can gain access to workers’ health including body temperatures, vaccine certificates and details of which houses they work in, and add workers’ addresses to check if they are coming from a containment zone. However, details of the employers’ relevant health status are rarely revealed to workers (Kakodkar 2020). This absence of a reciprocal arrangement to share health information pertaining to COVID-19 resulted in Mumbai’s domestic workers catching the virus from their employers. This also possibly contributed to a massive contagion in the cramped slum, Dharavi, where many workers reside (Kakodkar 2020). These applications also allow residents to track the entry and exit of workers and their duration of stay in the society premises. Although the failure to download Aarogya Setu (a government public health app) cannot be a reason to deny public services, in many instances RWAs mandate that workers have Aarogya Setu, requiring workers to have smartphones with sufficient internet packages and be familiar with their usage (Mukhopadhyay 2020). This overbroad surveillance, even when claiming to be compliant with GDPR Guidelines, ⁸ goes unregulated for the lack of effective enforcement. The privacy of individual workers is routinely violated as their free, informed, clear and specific consent is not obtained.

2.4 Using state power against workers

The weaponisation of criminal laws against domestic workers is also quite common. Accusations of theft are rampant. Domestic workers’ bags are regularly checked when they leave the complexes (Tewari 2018). As in the case of Zohra Bibi, mentioned earlier, in these apartment complexes the ‘mask of civility’ (Sennett 1975, 264) between employers and workers is merely a perfunctory device which allows co-operation, even as class divides are simmering beneath the surface. These clashes between employers and the labouring class have led to many instances of violence, including, in some brutal cases, death (Baviskar 2020). Further, in many apartments and societies within Delhi and Mumbai, domestic workers must mandatorily be ‘verified’ by the police, which often involves bribing the police to ensure a smooth process. Employers are encouraged to get their domestic workers ‘verified’ online, through perpetuation of fear by popular media via coverage of crimes committed by domestic workers who had not been ‘verified’ (Vaktania and Khan 2022).

For all practical purposes, life in a gated community implicates a complex set of contractual arrangements criss-crossing between various actors which are shaped by a range of background legal rules, social norms and customs, and mobilised by employers and the RWAs in their favour to increase their bargaining power vis-à-vis workers in the community. Workers belonging to all four categories listed earlier have little bargaining power vis-à-vis the RWA. The RWA is de facto a super employer and the gated community is a highly regulated workplace. However, when it comes to ensuring decent working conditions and countering discrimination on the grounds of sex, class, caste and religion (roughly tracking claims for redistribution and recognition, in Nancy Fraser’s terms, respectively) (Fraser and Honneth 2003), RWAs have a ready response. On the demand for decent working conditions, they claim the lack of an employment relationship with the relevant worker. ⁹ Either the workers maintaining facilities are employed by a facilities maintenance company (and not the RWA) or domestic workers are said to be employed by individual households, not the RWA. In other words, there is no privity of contract between the RWA and the worker. When it comes to discrimination, RWAs, being private entities, are not accountable under public law. They consolidate their middle-class identity through exclusion of the working class ‘other’ either by justifying it through logics of paternalist benevolence or by demonstrating outright hostility, neither of which may face sufficient challenge even from within the gated community (Saluja 2022). In these circumstances, how can we hold RWAs responsible under Indian law for workers’ welfare? The next section addresses the law as it stands in relation to the different categories of workers.

3 Invisibilising social reproduction: labour laws and workers in RWAs

3.1 Employees hired directly by the RWA

Whether employees of RWAs are eligible for the protections of labour laws or not turns on whether the RWA is an industry or an establishment. While this category of worker might have the best chance of being legally recognised as workers, and therefore be entitled to labour protections, it is apparent that the test to determine what is an industry or an establishment is not applied equally to RWAs, given the RWA’s amorphous status and judicial refusal to treat an apartment complex as an industry.

3.1.1 Are RWAs an industry for the purposes of labour laws?

Indian courts have had several occasions to determine whether housekeeping and maintenance staff engaged by housing societies and RWAs are entitled to protections under labour laws, such as minimum wages, provident funds and paid vacations. ¹⁰ The jurisprudence for what is an ‘industry’ has been developed under the Industrial Disputes Act 1947 (‘ID Act’).

In Bangalore Water Supply & Ors v. R. Rajappa in 1978, ¹¹ the Supreme Court exhaustively considered its scope and by a majority of 5:2 decided in favour of an expansive definition using a functional approach. The court formulated a triple test: systematic activity; organised by co-operation between employer and employee; for the production and/or distribution of goods and services prima facie calculated to satisfy human wants and wishes. If all these conditions were fulfilled, then the enterprise would be an industry under the ID Act. With regard to domestic workers, the court noted:

‘The whole purpose of the Industrial Disputes Act is to focus on resolution of industrial disputes and regulation of industrial relations and not to meddle with every little carpenter in a village or blacksmith in a town who sits with his son or assistant to work for the customers who trek in […] For this reason, which applies all along the line, to small professions, petty handicraftsmen, domestic servants and the like, the solicitor or doctor or rural engineer, even like the butcher, the baker and the candlestick maker, with an assistant or without, does not fall within the definition of industry.’ ¹²

It noted that a single lawyer or rural engineer will not be considered industry – not because these are too elite to be classified so, ¹³ but rather that the element of organised activity is missing. Therefore, the Supreme Court clarified that isolated domestic workers employed by one household cannot be considered industry given the absence of the element of ‘organisation’.

Although the Supreme Court had held that domestic workers would not be covered within the term ‘industry’, it did not specifically address maintenance personnel employed by housing societies and associations to maintain public or common areas within the residential buildings. It noted that even quasi-businesses or semi-trades would come within the purview of this term ‘industry’ (paras 63, 110). The ratio of Bangalore Water Supply was followed in other decisions to hold that service personnel employed by housing societies or a trust would be covered by the ID Act. ¹⁴

However, in 2002, the Supreme Court directly addressed the question of labour entitlements for workers employed by the management of a society for the maintenance and service of common areas in a residential complex in Management of Som Vihar Apartment Owner v. Workmen, Indian Engineering, & General Management. ¹⁵ The Supreme Court held that it was made clear in Bangalore Water Supply that domestic servants – even those employed by the management of a society – would not be covered under the ID Act. The court took a purposive approach and held that the ID Act was to focus on the resolution of industrial disputes and not to meddle with ‘every little carpenter’; therefore, when it came to other ‘small professions’ such as domestic work, even if domestic workers were engaged by a group of flat owners for rendering personal services, they would not come within the purview of the ID Act. While this decision has been followed by various High Courts, ¹⁶ one of these decisions has been challenged in the Supreme Court (SLP 6404 of 2020). We believe that the Supreme Court in Management of Som Vihar misinterpreted the decision in Bangalore Water Supply, by confusing domestic workers employed by individual households with maintenance staff employed by housing societies. Unfortunately, the Industrial Relations Code 2020 carries this confusion forward, thereby not considering workers employed directly by an RWA as workers entitled to benefits under it.

3.1.2 Are RWAs shops and establishments?

We now consider the liability of RWAs towards workers under commercial laws such as the state-specific Shops and Establishments Acts, which were enacted to regulate these establishments and ensure the payment of wages, hours of work, paid leave and other terms of service of people employed in the informal sector across the country. RWAs are likely to come under the term ‘commercial establishments’. ¹⁷ Despite its broad definition in state-specific statutes which includes societies registered under the Societies Registration Act 1860, including housing societies, in several cases courts have held that maintenance staff employed by a residents’ association merely render ‘personal services’ and thus do not come within the purview of the state-specific Shops and Establishments statute. ¹⁸ The taint of the household thus detracts from recognising the employment relationship between the RWA and the worker.

The Shops and Establishments laws also cover ‘establishments’, which are defined quite broadly. ¹⁹ Under such a definition, a housing society or co-operative or apartment owner’s association would qualify as an establishment. ²⁰ However, there is no case law confirming this and its implications for the employment relationship of a worker hired by an RWA. We would therefore need to look to creative interpretations of the term ‘establishment’ in labour law cases. One such case is Maniben Maganbhai Bhariya v. District Development Officer Dahod & Ors, where in 2022 the Supreme Court held that an anganwadi (childcare) centre would qualify as an establishment under the Payment of Gratuity Act 1972. Here, even though the anganwadi centre did not meet the ten-person threshold under the Act, anganwadis as a whole were considered to be an establishment of the state. ²¹ Based on this, we can argue that the definition of ‘establishment’ is broader than that of ‘industry’ ²² and that an RWA is an establishment. Therefore, labour law protections must be available to workers employed by an RWA.

3.2 Employees of facilities management companies to whom RWAs outsource functions

In gated communities, RWAs hire facilities management companies (FMCs) for the maintenance of various facilities, and often for the full range of design, building, finance and management services such as payroll and human resources-related services. This outsourcing is increasingly necessary given that technology, administrative and regulatory capacities have raised the demand for professional facilities management. Further, given the emergence of large apartment complexes, now even mid-segment residential buildings are able to engage such services. ²³ This has also been encouraged by government initiatives for smart cities and the Atal Mission for Rejuvenation and Urban Transformation, and the ‘Housing For All by 2022’ programme of the central government. ²⁴ As the four labour codes, namely the Code on Wages 2019, the Code on Social Security 2020, the Industrial Relations Code 2020 and the Occupational Health and Safety Code 2020, come into force, these workers employed by FMCs would be covered by these codes. To illustrate, under Section 2(h) of the Occupational Safety, Health and Working Conditions Code 2020 (OSH Code), building or other construction work includes the maintenance of buildings, and thus may include maintenance or repair staff employed to keep public spaces in housing societies clean. Hence, a housing society engaging a contractor for the maintenance of public spaces within the society may be considered to be a principal employer of the maintenance staff, as defined under sub-clause (iv) of Section 2(1)(zv) of the Code; ²⁵ these workers would be considered to be working in an establishment which as defined in Section 2(1)(u)(ii) would include a building in which ten or more workers are employed. According to the OSH Code, then, such a principal employer is liable to ensure a clean and hygienic working environment, potable drinking water, sufficient arrangements for restrooms, canteens if more than 100 workers are employed and sitting arrangements if the workers are obliged to work in standing positions (such as security guards). ²⁶ Further, a principal employer is also liable to pay wages to the workers if the contractor fails to make the payment. ²⁷

FMCs also must comply with state government legislations, byelaws and rules framed under such statutes, and additional contractual conditions required by RWAs in relation to the provision of uniforms, identity cards and equipment to workers, and specified working hours. However, the extent of compliance by these companies with labour laws is questionable. In several RWAs, depending on the city, these employees are often migrants. Unionisation levels appear to be low if not non-existent. In fact, there is little research on labour market dynamics and workers’ rights in this sector. Therefore, this category of workers, that is, workers employed by FMCs for RWAs, may be protected by labour laws. Yet, the enforcement of such laws, including the obligation of the RWA to supervise the implementation as the principal employer, is lacking.

3.3 Independent contractors hired by RWA households

Independent contractors such as laundry workers and delivery personnel working in gated communities are not eligible for the entitlements under most labour law statutes, including the labour codes. This is because they are not employees of the residents that they work for, yet many of them (e.g. delivery personnel for Amazon or Dunzo) often work only in a specific gated community. Despite some state-specific legislations protecting this category of worker, workers falling under this category face challenges in being considered as workers in the first place, since unfortunately the labour codes are geared towards protecting ‘employees’ as conventionally defined, namely as workers on a factory floor rather than as independent contractors.

Only the Social Security Code 2020 defines self-employed workers to include any person who is not employed by an employer but engages himself in any occupation in the unorganised sector subject to a monthly salary as may be notified by the government. However, most of the entitlements guaranteed to self-employed workers are dependent on the government’s actions through delegated legislation but no timeline is provided for the framing or implementation of beneficial schemes. The Code on Social Security also provides a broad enough definition of ‘gig work’ to include workers who provide services such as AC repair/cleaning and plumbing (say from Urban Company). However, it is unclear if they qualify as ‘gig workers’ or ‘platform workers’ (Sarkar 2020). Further, although the Code mentions some entitlements, these are discretionary unlike social security benefits for other categories of workers.

3.4 Employees hired by RWA households

Finally, there are employees hired by individual households, such as cooks, paid domestic workers, car cleaners and drivers. A major challenge for these workers is that they are generally not recognised as workers by the national labour codes, nor are they covered by most state-specific legislations which generally govern workers, including minimum wage legislation. We illustrate using the example of paid domestic workers. For more than fifty years now, there has been a robust mobilisation of domestic workers’ groups with demands for a separate statute for domestic work. Several bills have been introduced in Parliament, but they have not seen the light of day. Neither has the Indian government ratified the 2011 UN Domestic Workers’ Convention. The government discussed producing a National Domestic Workers’ Policy in 2019, but this has also not materialised.

Some states have introduced minimum wages for domestic workers but have provided few other benefits or protections at work. Further, the enforcement of minimum wages within the privacy of the domestic space has been questioned. Finally, despite the inclusion of domestic workers in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, internal complaint committees are not common within gated communities. The absence of a sector-specific law for domestic workers heightened their precarity during the pandemic when they were unable to work and lost pay during the lockdown and their jobs when they returned. Some states dispensed a one-time COVID relief grant, but the amount was insufficient to replace employment and accessing it was far from smooth (Kotiswaran and Chanchani 2021a).

When it comes to the labour codes, although some of them acknowledge domestic work, they continue to envisage work as done in a clearly demarcated establishment outside the home and by workers employed by one identifiable employer. Such a paradigm fails to take note of how paid domestic work operates in reality, given that it is mostly performed within the confines of the home and in multiple homes on a part-time basis. We discuss the codes in turn. The Industrial Relations Code 2020 defines the term ‘industry’ using the triple test laid down in Bangalore Water Supply, and explicitly excludes domestic workers. Domestic workers therefore cannot access the grievance redressal mechanisms in the code, or the safeguards against layoffs and dismissal, or even the model standing orders on the terms and conditions of work, such as holidays and wage rates. ²⁸

Under the Code on Social Security 2020, Section 2(90) defines wage workers to include domestic workers. ²⁹ However, access to a provident fund scheme is not available to workers in establishments registered under the Cooperative Societies Act, 1912 and employing less than fifty persons. ³⁰ It would be available in case the RWA is registered under apartment ownership laws. Further, provisions regarding maternity benefits, provident fund, employees state insurance schemes and employment injury do not apply to domestic workers, who are only entitled to a few central schemes. ³¹ Domestic workers are thus exceptions to the idea of who counts as a worker, and their entitlements are discretionary. ³² Hence scholars have argued that such a regulatory framework confers charity on workers rather than secure their rights. ³³

The Code on Wages 2019 defines the term ‘employee’ to include any person employed on wages by an establishment and therefore does not include home-based workers, outworkers or workers employed in households (except under Section 50(4), where individual households which employ more than five workers for domestic purposes shall be covered by the requirements of this section and must maintain proof of wages) (Mazumdar and Neetha 2020). Therefore workers in feminised sectors are largely excluded from the guarantees under this code, despite mobilisation by domestic workers in several states, to be included in the state-specific minimum wage schedules. ³⁴ There is confusion about whether this code will apply to households, since although domestic workers appeared to be included in the code based on the text of the Parliamentary debates, the Ministry of Labour and Employment in response to a question clarified that ‘establishment’ does not cover agricultural holdings or households. ³⁵

Finally, under the OSH Code 2020, domestic service is excluded from the term ‘industry’ under Section 2(p)(ii)(iii). Domestic workers hired by individual households would be included if the household has ten or more workers. Because the definition of the term ‘establishment’ (save where contract labour and interstate migrants are concerned) is wide, it would cover individual households. However, the threshold of ten or more workers is high, and therefore most households would not be covered by the OSH Code 2020. Thus, the safeguards for ventilation, drinking water, overtime wages etc. are not available to domestic workers. ³⁶ The OSH Code also proposes to take away existing entitlements such as maximum working hours. ³⁷ Even the chapter on Special Provisions Relating to Employment of Women does not obligate the employer to provide safe transport to women, nor is protection from sexual harassment mentioned in the OSH Code (Mazumdar and Neetha 2020).

Paradoxically, the only worker-specific regulations aimed at RWAs are with respect to trafficked women and children. In February 2016, the Government of Karnataka issued ‘Guidelines for Protection of Women and Children against Trafficking’, which require that RWAs do not engage children as domestic workers and ensure that workers are not made to work against their wishes. The Karnataka High Court ³⁸ has similarly imposed obligations on RWAs in the context of trafficked women. Assam has roped in RWAs for the prevention of child labour. ³⁹ The Delhi High Court ⁴⁰ and the Delhi Commission for Protection of Child Rights ⁴¹ require RWAs to track child labour, and finally, the Home Ministry enlists these associations to trace and recover trafficked persons (Joy 2020). Beyond addressing these situations of forced labour, there are few or no obligations on RWAs to ensure the welfare of workers employed in gated communities.

To conclude, existing labour and commercial laws are not fit for the purpose of protecting workers’ rights in gated communities irrespective of their employment status as an independent contractor or as employees of RWAs, facilities management companies or individual households. Labour laws have historically used the factory floor as a prototype for all work, thereby excluding a vast number of smaller employers and places of work (Sankaran 2006). They have refused to view service-based work, especially involving reproductive labour, or service-based work performed by self-employed workers as work deserving of protection. Unsurprisingly, only 7 per cent of the Indian working population has the protection of labour laws (Mathew 2021). The rest make do with a patchwork of labour laws that fail to protect wages, offer social security or ensure decent working conditions; the labour codes of 2019 and 2020 only reinforce these exclusions, causing a leading labour law scholar to note that the codes have resulted in ‘a lot of cut and paste with critical anti-labour amendments’. ⁴²

The emergence of the gated community as a unique workplace has exacerbated these invisibilities. First, all workers in this workplace irrespective of their employment relationship are service providers rather than factory workers producing tangible goods. Second, they are engaged in reproductive labour which is taken for granted because it is usually performed for free by female relatives within the household and is therefore invisible. The workplace of the gated community is unusual because as a residential space it is fundamentally a space of social reproduction but also a conglomeration of individual households which contains common spaces of social reproduction. At the individual level, RWAs determine the terms on which social reproduction (cooking, cleaning, caring, cultural reproduction) is possible. RWAs further back employers in resolving disputes between employers and employees (Gazal-Ayal and Perry 2014; Fiss 1984). At the collective level, RWAs play a key role in building and maintaining the physical infrastructure (waste management, access to water and electricity, lift maintenance, gardening) and social infrastructure (meeting groups for the young and the elderly, cultural celebrations and marking public holidays such as Independence Day) of reproductive labour. Finally, although it is tempting to view this workplace of the gated community as informal, it is anything but informal. Gated communities are legally dense spaces with overlapping layers of formal legal rules, social norms and market practices that enable and structure social reproduction.

Despite the key role of RWAs in shaping working conditions of workers who perform reproductive tasks, they escape obligations because the labour law model defaults to addressing the production of goods in a factory setting with a standard form of employment governing the relationship between employers and employees and ignores the myriad forms and varied relations of social reproduction which are often intertwined with relations of production (e.g. home-based work or paid work related to maintaining the household). It is no surprise, then, that RWAs can easily escape liability by claiming privity of contract. Courts also regulate housing societies less as an industry or establishment and more as a home where ‘personal’ services are rendered; services are not considered work at all. Thus, the reproductive nature of the tasks ties in with the vulnerability of the informalised workers performing them, relegating such work to a legal vacuum. Although residents and the RWAs benefit directly from the services of workers who engage in social reproduction, their obligations for wages, working conditions, social security and dispute resolution are minimal if not non-existent. Hence, we now assess whether obligations under constitutional law can be imposed on RWAs given the gaps in the labour law framework.

4 Public bodies, direct horizontality and indirect horizontality: an argument for treating RWAs as public bodies

In this section, we develop an argument for treating RWAs as public bodies who can be subject to obligations under Part III of the Constitution dealing with fundamental rights, with the twin goals of securing decent working conditions and countering multi-pronged forms of discrimination (on the basis of sex, caste and religion) that workers in gated communities are routinely subject to. The inherently political nature of labour laws, institutions and the economic functions they perform have already been recognised in the call for the creation of a labour constitution (Dukes 2014). Here, we call for the better integration of labour laws with the broader constitutional framework, leaving open the possibility of the creation of a labour constitution for India. There are three possibilities for such integration, which we address in turn. The first pertains to treating RWAs as the state or a local authority; the second calls for the direct horizontal application of Part III to RWAs; and the third calls for the indirect horizontal application of Part III to RWAs.

4.1 RWAs as the state

The question that arises based on a plain reading of Article 12 of the Constitution is whether RWAs could be considered as ‘other authorities’. There is a sizeable number of cases on the tests for qualification as an ‘other authority’ under Article 12. The assessment is typically made on the basis of the authority’s function, and the nature and extent of the state’s financial and administrative control. In the 1981 case of Ajay Hasia v. Khalid Mujib ⁴³ the Supreme Court suggested a multi-factor test for a body to be classified as a state.

However, in the 2002 case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, ⁴⁴ the apex court held that for characterising a body as an instrumentality of the state, it was important to determine whether the body was financially, functionally and administratively controlled by the state. The court observed that such control must be particular to the body in question, must be pervasive and must not merely be regulatory under the statute. This is a more onerous standard than the one used in previous cases, as the body is now required to fulfil governmental domination on all three levels.

The decision in Pradeep Kumar Biswas was followed in Zoroastrian Cooperative Housing Society Ltd. v. District Registrar, Cooperative Societies (Urban), ⁴⁵ a 2005 case where the Supreme Court declared that a housing society could not be ‘state’ under Article 12. Recent cases have largely continued this trend of interpreting Article 12 narrowly. In the 2005 case of Zee Telefilms Ltd. & Anr v. Union of India, ⁴⁶ the Supreme Court held by way of a majority opinion (3:2) that the Board of Control for Cricket in India (BCCI) was not ‘state’ for purposes of Article 12, attracting the writ jurisdiction of the Supreme Court under Article 32 of the Constitution. In this it followed the decision in Pradeep Kumar Biswas, noting, however, that the writ jurisdiction of the High Courts under Article 226 would still be available for anyone aggrieved by the BCCI’s activities that ‘are akin to public duties or state functions’. ⁴⁷ The majority and minority opinions turned on their conflicting views of the role of the state in regulating economic activity. Where the Supreme Court in previous decisions justified an expanded interpretation of the term ‘state’ under Article 12 to cover its growing intervention in socio-economic activity as a welfare state, in Zee Telefilms, the Supreme Court justified its narrow reading of the term since the ‘State is today distancing itself from commercial activities and concentrating on governance rather than on business’. Predictably, the minority opinion penned by Justice S.B. Sinha drew extensively on the American jurisprudence on the ‘public functions’ test to theorise the hybrid nature of the BCCI in a context where ‘with the opening up of economy and globalization, more and more governmental functions are being performed and allowed to be performed by private bodies.’ ⁴⁸

Some exceptions to this Article 12 jurisprudence, particularly in the education sector, do exist. Most recently, in Jugya Yadav (Minor) Through Guardian v. CBSE & Ors, ⁴⁹ the Supreme Court held that private bodies or charitable institutions performing public functions could also be regulated in the same manner as a public authority. Large RWAs with thousands of apartments and occupants meet their residents’ basic needs and wield significant control over residents that is otherwise exercised by government. Hence the state delegates its authority over residents to these RWAs. In cities like Delhi, RWAs’ role in delivering public functions (e.g. maintaining local parks) is formalised by the state in the form of the bhagidari and the Mohalla Sabha schemes. ⁵⁰ This was also evident during the pandemic when municipal corporations would issue circulars to RWAs to manage the spread of COVID-19 among their residents. Furthermore, even in ordinary times, RWAs facilitate social reproduction at the level of the community and the household which amounts to a crucial public function in the absence of which paid work outside the household for the market economy would be impossible.

For similar reasons, we can argue that an RWA can qualify as a ‘local authority’ for purposes of Article 12. In Union of India v. R.C. Jain, ⁵¹ the Supreme Court interpreted the term ‘local authority’ in the General Clauses Act 1897 and held that the authorities must have separate legal existence; function in a defined area and be elected by the area’s inhabitants; enjoy autonomy with freedom over policy decisions; be entrusted with governmental functions which are ordinarily entrusted to municipal bodies; and finally have the power to raise funds. The court also noted that there was no difference between a tax and a fee, and taxation should not be understood in a narrow sense but in a broad generic sense to also include fees levied essentially for services rendered. RWAs satisfy many of these criteria. In the USA, it has been argued that neighbourhood associations must be treated as state actors, as first, such treatment will establish their liability under law in a manner consistent with the powers they enjoy, and second, it reflects the nature of the problems that residential associations address (Kennedy 1995b). In the Indian context, we argue that both these considerations hold true, and RWAs fall within the ambit of ‘other authorities’ and ‘local authorities’ ⁵² under Article 12.

4.2 Direct horizontal effect of the constitution

If RWAs are not held to qualify as state under Article 12 in the absence of the state’s deep and pervasive control of the association, we can still argue for the direct horizontal effect of Part III provisions of the Constitution. Here we draw on Stephen Gardbaum’s influential essay where he argues that although the ‘Supreme Court has consistently adhered to the general position that the fundamental rights contained in Part III of the Constitution apply only against the government and not against private individuals’ (Gardbaum 2016, 265), the Court has made an exception when it comes to Articles 14, 15, 17, 21, 23 and 24. Notably, several of these articles deal with labour exploitation (Articles 23, 24), prohibition of discrimination (Articles 14, 15, 17) and the right to life (Article 21).

Now, certain provisions of Part III already apply to private actors. This includes, for example, Article 15(2), which prohibits discrimination in access to public spaces such as shops, restaurants, wells, roads, etc. The Supreme Court in Indian Medical Association ⁵³ held a private unaided college accountable under Article 15 of the Constitution (Raj 2021). The court offered a broad interpretation of the term ‘shops’ to include an educational institution. This decision has been justified on varied grounds including that the entity is a ‘public actor’ and provides ‘economic goods’ and ‘public services’. ⁵⁴

Arguably, although an RWA may not be viewed as offering a service to the public, it is a public actor so constitutional mandates against discrimination can be applicable to RWAs where they discriminate against workers based on sex, class, caste or religion by preventing access to jobs in the gated community or promulgating rules that require use of separate facilities for workers (toilets, lifts, stairs, common areas). Indeed, in countries like Hong Kong, owners’ corporations (which closely resemble RWAs in India) are liable for payment of minimum allowable wages, providing paid leave and ensuring medical insurance to maintenance staff. These echo Sophia Moreau’s argument that individuals who occupy the public sphere to do the institutional work reminiscent of the state are bound by anti-discrimination provisions (Moreau 2020). These institutions are characterised by significant control and power over the substances or goods of anti-discrimination – negative freedom, valuable opportunities and self-respect. In the context of housing societies’ regulation of workers, the societies wield immense powers to deprive workers of the second and third elements (Khaitan 2016). Further, Article 23 prohibits forced labour; in PUDR v. Union of India, ⁵⁵ Justice Bhagwati reflected on the low relevance of the freedom of contract in a country like India before elaborating that the compulsion of economic circumstances constituted ‘force’. He noted that any labour remunerated at a level less than the minimum wage would be considered forced labour under Article 23. An RWA which permits workers to work for less than the minimum wage would therefore run afoul of Article 23.

In terms of Article 21, Gardbaum notes that the right to health of employees has been invoked against private employers in the context of the occupational health hazards caused by the asbestos industry. ⁵⁶ The right to life would similarly cover the right to livelihood and decent work and would militate against poor working conditions, lack of spaces for rest, changing clothes and sanitation, lack of access to social security and lack of protection against sexual harassment. These rights could be enforced against RWAs in gated communities, especially in light of the Supreme Court’s observation in PUDR v. Union of India (as Gardbaum reminds us).

In a significant decision of the Supreme Court delivered on 3 January 2023, ⁵⁷ a four-judge bench acknowledged that the assumption that these rights can be enforced only against the state has changed from ‘State’ to include ‘Authorities’ and can include entities based on the ‘nature of duties/functions’ performed. Thus, the bench categorically held that ‘a fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities’ (Para 78). The court further held that the ‘State is under a duty to affirmatively protect the rights of a person under Article 21, whenever there is a threat to personal liberty, even by a non-State actor’ (para 103). It is therefore clear that RWAs which perform public functions and duties can be made liable for violations of Articles 19 and 21 listed above. ⁵⁸

4.3 Indirect horizontal effect of the Constitution

The third route to liability is to test the indirect horizontal effect of Part III. Relying on Gardbaum and his reading of Vishaka, ⁵⁹ a landmark case on sexual harassment, there is a strong case for making the state enforce existing laws against private employers. Where the RWA does not meet its obligations towards its employees or where private employers such as facilities management companies (already subject to labour laws) fail to meet their obligations towards security and housekeeping personnel, the state is under a duty to ensure that these laws are implemented. The failure to do so would violate Article 21. This argument would also apply to employers of domestic workers, who must comply with relevant state-level legislations pertaining to minimum wages (e.g. in Karnataka, Andhra Pradesh and Bihar), sexual harassment and social security. However, in the absence of a comprehensive law on domestic work, one could argue that judiciary is the state for purposes of Article 12, ⁶⁰ and is obliged to frame legislation much like the sexual harassment guidelines in Vishaka for the benefit of domestic workers, in the absence of which, the state is in violation of its duties under Articles 14, 15(1), 19(1)(g) and 21. Given the numerous legislative proposals put forth by domestic workers’ groups, courts could easily synthesise guidelines reflecting non-negotiable duties of employers and RWAs towards workers in gated communities.

Objections from RWA members could include that it contravenes Art 19(1)(c) which gives citizens the right to form associations, unions and co-operative societies. Article 19(4), however, permits the state to impose reasonable restrictions on this right in the interests of the sovereignty and integrity of India, public order and morality. The right is therefore not an unfettered right. The Supreme Court in BCCI v. Cricket Association of Bihar & Ors held that the right to association under Article 19(1)(c) is available only to citizens and that if citizens can form associations to begin with, ‘the right under Article 19(1)(c) does not extend to guaranting [sic] to the citizens the concomitant right to pursue their goals and objects uninhibited by any regulatory or other control’ (Para 54). Further, imposing obligations on RWAs relate to a corresponding fundamental right of workers to life under Article 21. Any horizontal application of Part III would secure obligations under the law to match the growing public nature of what was earlier a purely private body that now manages the affairs of a collective of individual property owners.

5 Conclusion

RWAs have long outgrown the role of acting as a vehicle for affordable housing. Residents experience RWAs as an intermediate form of governmental power while the state relies heavily on RWAs for the performance of key public functions. Where pre-pandemic the state exercised basic regulatory oversight over RWAs, the pandemic has rendered RWAs a necessary extension of state power with them playing a vital public function in curtailing the spread of the COVID-19 virus. Despite substantial shifts in RWAs’ role, laws regulating them have not kept pace, revealing vast regulatory gaps that produce a level of arbitrariness that can leave residents disgruntled.

Gated communities which are also governed by RWAs are a relatively new phenomenon in India. They are also a novel site of social reproduction. RWAs in such communities play a crucial role in managing the collective enjoyment of individual property rights, but also determine the background conditions against which contracts for social reproduction of individual households but also of the elite classes performed by multiple categories of workers at the individual and community levels are negotiated. For the workforce in gated communities, the outsized role of the RWAs is particularly oppressive. Both before and during the pandemic, the RWAs have operated as an invisible super employer against whom workers have little power. We have outlined typical patterns of employment in a gated community and the patchwork of laws that govern categories of workers. The path-dependent evolution of Indian labour law has led to the exclusion of these workers from its protections on paper and in practice. These laws ignore the unpaid reproductive labour as well as paid reproductive labour performed by men and women.

Against this backdrop and the rapid withdrawal of state protection for workers in the name of labour market flexibility, we argue for the implementation of existing laws while also resorting to the Constitution to ensure more robust protection of workers’ rights. Undoubtedly, when turning to public law in the context of RWAs, it might be difficult to determine its implementation, and filters such as the size of an association or apartment complex, or the nature of functions performed, will be needed (Reichman 1976). However, given the extent of labour law violations tolerated and often facilitated by RWAs, as well as the public functions performed by these bodies, individual employers and RWAs which possess considerable economic, legal and political powers must comply with their labour law obligations by paying minimum wages, ensuring occupational and health safety, providing social security benefits and constituting local complaints committees against sexual harassment. RWAs can also be mandated not to enact discriminatory rules or practices against workers on the basis of sex, caste or religion. It is only by drawing on transformative traditions of constitutionalism that we can respond to new configurations of social reproduction in order to enhance the bargaining power of reproductive labourers.