An Ode to Altruism: How Indian Courts Value Unpaid Domestic Work

Abstract

Unpaid domestic and care work (UDCW) have long captured the imagination of feminist theorists. Marxist, socialist and autonomous feminists have debated domestic labor and wages for housework in the 1970s, chronicled the international sexual division of labour and housewifisation in the global south in the 1980s and studied global care chains with the advent of globalization in the 1990s. Poststructuralist feminists have rendered visible ‘life’s work’ while liberal feminists have grappled with workplace equality and the intractable messiness of the ‘work-life balance.’ Indian feminist economists have meanwhile recast the debates on women’s falling labour force participation rates in terms of a crisis in social reproduction while also demonstrating the need for better measurement of the high levels of both paid and unpaid work (including economic activity and domestic duties) that women are in fact doing. The original focus on UDCW performed at home has now received a new lease of life with the adoption of the Sustainable Development Goals, particularly SDG 5.4. In these discussions on social reproduction however, little attention has been paid to the role of the law in the recognition and redistribution of UDCW. Discussions of the law, where evident, are confined to the recognition of UDCW within family law through a community property regime at divorce. I examine the recognition of UDCW at another point of rupture, namely the death of a housewife through the lens of the laws of personal injury (or tort law). In particular, I focus on the amount of compensation awarded to the dependents of housewives in around 200 cases under the Motor Vehicles Act, 1988 between 1968 and 2019, tracing the growing recognition of women’s UDCW by Indian appellate courts culminating in an influential Supreme Court decision in 2010 which has been widely followed by Indian High Courts, underlining judicial willingness to recognise the range of UDCW performed by women within the home. I ask how the unpaid labour of housewives, homeworkers and mothers is recognised by tort law? What is the architecture of private law that allows for this? How can we understand the role of tort law in particular, in redistributing resources between men and women and amongst women themselves? Does tort law hold the potential for effecting egalitarian outcomes and if so, under what circumstances? Ultimately, can legal analysis inform the larger debate amongst feminists on social reproduction or does the law simply mirror, even produce iniquitous social realities? Engaging in the minutiae of how damages are valued and monetised I argue, also has normative and methodological pay-offs for feminists. Quantification goes to the very heart of feminist debates on UDCW, making visible the feasibility of recognition by the state, a task that the legal system already manages to do in the realm of tort law. Examining the archive of the law thus throws light on key concepts that feminists and social theorists have long worked with in attempting to have women’s UDCW recognized, to examine how recognition is made possible and at what cost.