Constitutional Framework of Social Security

Social security laws in India derive their foundation from the Directive Principles of State Policy
under Part IV of the Constitution of India. Social security and Labour Welfare is a matter falling
under the concurrent list, thus both, the Central and the State Governments are authorised to
make laws on social security. Under the Constitution, it is the duty of the State to make
provisions for securing just and humane conditions of work and for maternity relief.[9]Thus, the
Indian Constitution endeavours to provide social security, not only to organised, but also
unorganised workers.

Objectives of the Act

The Act has been enacted to provide for social security and welfare of unorganised workers. As
pointed out by the Jharkhand High Court in the case of National Domestic Workers Welf. v.
State of Jharkhand & Ors.,[10]the primary purpose for enacting the Unorganised Workers’ Social
Security Act is that most labour laws enacted by the Parliament, such as the Industrial Disputes
Act, the Workmen’s Compensation Act, Factories Act, etc. are applicable to a limited number of
workers, while a majority of the workers remain beyond the scope of these laws.

Definitions under the Act

The Act defines ‘unorganised worker’ as a home-based worker, self-employed worker or wage
worker in the unorganised sector, and includes a worker in the organised sector not covered by
the Workmen’s Compensation Act, 1923, the Industrial Disputes Act, 1947, the Employee’s
State Insurance Act, 1948, the Employees’ Provident Funds and Miscellaneous Provisions Act,
1952, the Maternity Benefit Act, 1961, and the Payment of Gratuity Act, 1972. Thus, casual and
contract workers in the organised sector are excluded from the Act, as they are covered by
certain Acts specified in the Schedule.

Further, ‘home-based worker’ means a person engaged in the production of goods and services
for an employer in his own home or other premises, other than the workplace of the employer,
for remuneration, irrespective of whether or not the employer provides the equipment, materials
or other inputs.

‘Self-employed worker’ means any person not employed by an employer, but engaged in an
occupation in the unorganised sector subject to a monthly earning of an amount notified by the
Central or the State Government from time to time, or holds cultivable land subject to a ceiling
notified by the State Government.

‘Wage worker’ means a person engaged in the unorganised sector for remuneration, directly by
an employer or through a contractor, irrespective of the place of work, whether exclusively for
one employer or one or more employers, whether as a home-based worker, or as a temporary or
casual worker, or as a migrant worker, or workers employed by households including domestic
workers, with a monthly wage.
‘Unorganised sector’ means an enterprise owned by individuals or self-employed workers and
engaged in the production or sale of goods or providing service of any kind whatsoever, and
where the enterprise employs workers, the number of such workers is less than ten, implying that
workers employed in an entity employing ten or more workers are not entitled to benefits
available under the Act.

Mechanisms under the Act

The Act provides for the establishment of various bodies at national, State and local levels in
order to implement the schemes established under the Act.

National Social Security Board

The Central Government constitutes the National Social Security Board, with the Union Minister
for Labour and Employment as Chairperson, and members nominated by the Central
Government consisting of workers and employers from the unorganised sector, eminent persons
from civil society, two members from the Lok Sabha, one member from the Rajya Sabha, and
five members representing Ministries from the Central and the State Government. The Board’s
functions are to recommend suitable schemes for unorganised workers, monitor the schemes,
review the registration, expenditure from funds under various schemes, and monitor record
keeping functions performed at State level, among other functions.

State Social Security Board

The State Governments are empowered to constitute State Social Security Boards at State-level,
consisting of composition and functions similar to that of the National Social Security Board.

In the case of Rajan Kudumbathil v. Union of India,[11]the Kerala High Court had explicitly
directed the Kerala Government to expeditiously constitute State Boards under the Act, where
the same had not been constituted even a year after the implementation of the Act.

District Administration

The District Administration is responsible for performing record-keeping functions under the
Act.

Workers’ Facilitation Centres

The Act empowers the State Government to set up Workers’ Facilitation Centres to disseminate
information on available social security schemes, facilitate filing, processing and forwarding
application forms for registration of unorganised workers, assistance in obtaining registration,
and facilitating the enrolment of registered unorganised workers in social security schemes.

Registration of Unorganised Sector Workers

Every unorganised worker is eligible for registration under the Act upon attaining the age of 14
years, and after making a self-declaration confirming that he or she is an unorganised worker.
The unorganised worker is required to make an application for registration to the District
Administration, which will then issue a portable identity (ID) card with a unique identification
number.

In the case of Bruhad v. State,[12]where the Gujarat High Court found that no State Board had
been constituted under the Act, it directed the Government to expeditiously provide for the
establishment of the State Board and register the unorganised workers in Gujarat.

Social Security Benefits under the Act

The Act has been passed with the purpose of providing for the social security and welfare of the
unorganised workers and for other connected and incident matters. It is the responsibility of the
Central and the State Governments to formulate and notify schemes, covering life and disability,
health and maternity benefits, old age protection, and any other benefit that the Central
Government may determine.

Though, the Act does not define the term ‘social security’, Schedule I provides for a list of social
security schemes, namely, the Indira Gandhi National Old Age Pension Scheme, National
Family Benefit Scheme, JananiSurakshaYojana, Handloom Weavers’ Comprehensive Welfare
Scheme, Handicraft Artisans’ Comprehensive Welfare Scheme, Pension to Master Craft Persons,
National Scheme for Welfare of Fishermen, Janshree Bima Yojana, Aam Admi Bima Yojana,
and Rashtriya Swasthya Bima Yojana.

Indira Gandhi National Old Age Pension Scheme

This scheme provides for monthly pension of Rs. 400 to any person who is over the age of 60
years, belonging to a family below poverty line.  The number of beneficiaries of the scheme are
2,08,33,637 people, as of March 31, 2015.

National Family Benefit Scheme

This scheme provides for a lump-sum amount of Rs. 10,000 to households below poverty line in
the event of death of the primary earning member of the family, aged between 18 to 64 years,
irrespective of the cause of death. The number of beneficiaries of the scheme are 1,75,592
people, as of March 31, 2015.

Janani Suraksha Yojana

This scheme provides for cash benefits to pregnant women above 19 years of age, for
institutional delivery, if such pregnant woman belongs to a family below poverty line. The
number of beneficiaries of the scheme are 1,04,16,164 people, as of March 31, 2016.

Handloom Weavers’ Comprehensive Welfare Scheme

This scheme aims at providing for health care facilities to handloom weavers and life insurance
to them, at times of natural or accidental death, or total or partial disability due to accident. The
numbers of beneficiaries of the scheme are 69,475 people, as of September 30, 2016.

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Handicraft Artisans’ Comprehensive Welfare Scheme

This scheme provides for life insurance protection to handicraft artisans and their family
members.

Pension to Master Craft Persons

This scheme provides for pension benefits to craftsmen above 60 years of age who are recipients
of national and State wards in handcrafts, in order to enable them for disseminating their
knowledge to younger generations.

National Scheme for Welfare of Fishermen and Training and Extension

The objective of the scheme is to provide basic civic amenities and socio-economic security to
fishermen, including development of village fishermen, group accident insurance, and savings
and training schemes. The number of beneficiaries of the scheme are 52,34,799 people, as of
March 31, 2015.

Janashree Bima Yojana

This scheme provides life insurance cover to rural and urban poor aged between 18 to 60 years
of age. It provides for a payment of Rs. 30,000 in the event of death due to natural causes, Rs.
75,000 in case of accidental death or permanent disability, and Rs. 37,500 in case of partial
disability.

Aam Admi Bima Yojana

The objective of this scheme is to provide death and disability cover to rural landless households.
In addition to a payment of Rs. 30,000 in the event of death due to natural causes, Rs. 75,000 in
case of accidental death or permanent disability, and Rs. 37,500 in case of partial disability, the
scheme also provides scholarship to up to two children of the household. The number of
beneficiaries of the scheme are 4,51,07,984 people, as of March 31, 2016.

Rashtriya Swasthya Bima Yojana

The aim of the scheme is to provide financial support to families below poverty line in case of
hospitalisation. Each family of five is provided benefits up to Rs. 30,000. The number of
beneficiaries of the scheme are 3,59,28,048 people, as of March 31, 2015.
Funding of Schemes

Schemes notified by the Central Government may be wholly funded by the Central Government,
partly funded by the Central Government and partly by the State Government, and partly funded
by the Central Government, partly by the State Government, and partly through contributions
collected from beneficiaries of the scheme or employers prescribed in the scheme by the Central
Government.

Schemes notified by the State Government may be wholly funded by the State Government, or
partly by the State Government and partly through contributions collected from the beneficiaries
of the scheme or the employers prescribed by the State Government. The State Government may
also seek financial assistance from the Central Government for the schemes formulated by it.

Critical Analysis

The Act is one of the pioneering initiatives of the Government in providing social security
benefits to workers in the unorganised sector. However, the purpose of the Act is rendered
ineffective due to numerous implementation issues and lacunae inherent under the text of the
Act. The same will be analysed by the researcher under separate headings.

Lacunae under the Act

Under the Act, there exist certain inherent defects that not only create issues in the
implementation of the Act, but also affect the substantive rights of the unorganised workers.

Exclusion of Numerous Unorganised Workers

It is pertinent to note that the definitions exclude workers dependent on livelihood systems such
as forest workers and fish workers as they cannot be brought within the ambit of home-based
workers, self-employed workers or wage workers. It does not even cover unorganised cross-
border temporary workers engaged in construction, cleaning, domestic work, paramedical work,
etc. unpaid family workers and care workers, such as anganwadi workers are also not included
under the definitions of the Act. These workers are a vulnerable group exposed to violently
offensive situations and require social security protection.

Moreover, the numerical limitation of ten workers is violative of Article 14 of the Constitution of
India as there cannot be a reasonable distinction between workers employed by an employer
having ten workers and workers employed by an employer having more than ten workers.

 Low Standards of ‘Below Poverty Line’

The application of the scheme is subject to the condition that the family must be below poverty
line, while most of the urban unorganised workers may not fall below poverty line, which
excludes them from the benefits of the scheme. However, a person earning a meagre amount of
Rs. 32 per day in rural areas and Rs. 47 per day in urban areas is considered to be above poverty
lines.
  No Definition of ‘Social Security’

In order to make a right justiciable, it is necessary that such right be defined. The Act itself does
not provide for social security, except registration, to workers, as the term ‘social security’ itself
has not been defined under the Act. The social security schemes are not included in the body of
the Act, and are appended in the Schedule, implying that the schemes can be altered by mere
notification, without amendment to the Act, thereby denying workers the right of consistency
and justifiability. This is the primary reason for implementation issues of the Act.

 No Provision for Assured Minimum Social Security

The Convention on Social Security (Minimum Standards) adopted by the ILO in 1952 provides
that any social security benefit scheme needs to make provisions for at least certain minimum
benefits, providing medical care, benefit for sickness, unemployment, old age, employment
injury, maternity and survivor’s benefit. However, the Act does not provide any minimum social
security to the workers.

 No Provision for Social Security Fund

The Act does not establish a structured Social Security Fund, the absence of which casts
scepticism about the Government’s implementation of creating social security rights for
unorganised workers in India.

 Disentitlement From Benefits

The Act provides that if a registered unorganised worker required to make contributions to the
scheme fails to do so, he shall not be entitled to the benefits under the schemes unless he makes
such contribution, thus placing unorganised workers at a disadvantageous position, without
taking into consideration, extrinsic factors rendering it challenging for them to make such
contribution.

 Lack of Provisions on Security of Employment

Though the Act requires the worker to make contributions, it does not provide for security of
employment, nor does it address issues relating to conditions of work. It is important to consider
that work and employment are the foundation of social security benefit schemes for workers. A
legislation proceeding to deal with social security alone, without dealing with issues of
employment, its regulation, wages and conditions of work would be incomplete and
dysfunctional.

 Lack of Time-Bound Framework

The mechanism under the law renders registration of workers and entitlement to benefits
contingent upon the formulation of a specific social security scheme; however, there is no time-
bound framework for the Central and State Governments to formulate the schemes.
  Lack of Grievance Redressal Mechanism

The Act fails to provide for a grievance redressal mechanism through which workers would be
enabled to voice their complaints and grievances regarding violation of the Act and other
concerns affecting them. This is a structural gap making the Act ineffective.

No Guarantee of Minimum Social Floor

ILO foresees the universal coverage of workers for social security as human right, and lists nine
benefits that constitute social security; namely, medical care, family benefits, sickness benefits,
unemployment benefits, old age benefits, employment injury benefits, maternity benefits and
death benefits. However, these aspects are not covered under the Act.

Issues Connected With Implementation of the Act

Due to the inherent defects under law, the lack of awareness and seriousness about protecting the
rights of unorganised workers, and the weak enforcement mechanisms, there are a number of
issues relating to the implementation of the Act.

1. Lack of Awareness about Schemes

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The issue most heinously plaguing the implementation of the Act, and causing a hindrance in
providing benefits under the Act to the workers is the lack of awareness among them about the
existence of the schemes. Most unorganised workers are uneducated and economically
backwards. They are unaware about their rights, and thus, are not able to utilise them, even to the
meagre extent provided for under the law.

 Inadequate Representation of Unorganised Workers

The National and State Social Security Boards provide meagre representation of seven
representatives of the unorganised workers, while the sector comprises over 400 million workers.
The Act fails to provide for any role to trade unions or other organisations of unorganised
workers.

 Lack of Uniformity in Registration Requirements

Though the only requirement under the Act, for registration with State Boards, is filing of a self-
affidavit, certain State Boards, such as the Karnataka State Board insist that NGO’s, trade
unions, etc. should certify that the worker is working in a specific sector, which is not required
under the Act.

 Lack of Uniformity in Schemes

The researcher has observed that each of the schemes provided for under the Act have varying
amounts of benefits for the same contingencies. For example, accidental death benefits under the
National Family Benefit Scheme amounts to Rs. 20,000, while under the JanashreeBimaYojana
it is Rs. 50,000 and is Rs. 75,000 under the AamAadmiBimaYojana. The law has made no
attempt to reconcile these schemes and establish uniformity.

 Multiplicity Of Registration

Registering with the State Board under the Act does not make the worker eligible to the benefits
under any scheme; he is required to individually register for each scheme, which is a time
consuming and uneconomical process.

 Inefficiency of State-Level Nodal Agencies

Most of the schemes under the Act rely on State-level nodal agencies for distribution of the
schemes. However, it has been found that most of the State Government departments suffer from
weak institutional and staff capacity, hindering the implementation of the programmes.[13] It has
often been found that the State Boards, entrusted with the responsibility of monitoring the
welfare schemes, are not monitoring the implementation of the schemes.[14]

Conclusion and Recommendations

Social security is an integral part of the process of development, having a powerful impact at all
levels of societies. It contributes to social cohesion and the overall growth and development of
the country, and provides a more positive approach towards globalisation.

At this juncture, the main question that arises is whether India, as a nation, has realised the
importance of its unorganised sector? The answer to this is, no. An endeavour has been made to
clear the concept of social security, implement social security schemes, create rights and
establish mechanisms for the same; however, most of this remains on paper. The figures through
which we can measure the effectiveness and implementation of the initiatives of the Government
to provide protection to the unorganised workers remains poor, with lack of strict standard
checks. The Unorganised Workers’ Social Security Act attempts to provide an opportunity to
reduce the struggles of the working class; however, the statistics on the achievements of the Act
are dissatisfactory.

In light of the above findings, the researcher concludes that the Government has been unable to
effectively implement the provisions of the Act. Moreover, the provisions of the Act do not
satisfy the objectives of the Act and India’s constitutional and international obligations.

Thus, the researcher would make the following recommendations in order to provide enhanced
security to workers in the unorganised sector.

Application of the Act to All Unorganised Workers

The current system of extending the application of the Act only to unorganised workers below
poverty line is not consistent with the purpose of the Act. The Act should remove the numerical
limits required in order to constitute unorganised sector. Thus, the provisions and the benefits of
the schemes implemented under the Act should be extended to all unorganised workers.

 Provisions for Assured Minimum Social Security

The Act needs to be amended to include provisions for assured minimum social security, i.e. the
minimum social security benefits that each unorganised worker would be entitled to.

 Definition of Social Security

It is essential that to make the right of social security enforceable, the same needs to be defined.
It should be defined as “the protection that a society provides to individuals and households to
ensure access to health care and to guarantee income security, particularly in cases of old age,
unemployment, sickness, invalidity, work injury, maternity or loss of a breadwinner”.

 Dispute Settlement Mechanism

The effect implementation of the law essentially depends on the availability of a functional
institution of a grievance redressal mechanism, through which workers would have a method for
registering their complaints about violations. Thus, a new Chapter regarding dispute settlement
needs to be added to the Act, which requires the Government to formulate a model Dispute
Settlement Mechanism for unorganised workers of each occupation involving local authorities,
employers, police and other administrative bodies for resolving disputes and grievances. The
mechanism should be empowered for arbitrating and also for punishing faulty employers. 

 Social Security Fund

The Act ought to be amended in order to provide for the creation and maintenance of a social
security fund, and a financial memorandum for the budgetary allocation for the fund.

 Role of Non-Government Entities

In order to provide adequate representation to the large mass of unorganised workers, the law
needs to start recognising the role and importance of their participation in the development of
social security schemes through individual as well as trade union recognition.

 Creation of Awareness

In order to enable unorganised workers to benefit from the schemes to the maximum extent
possible, it is essential that efforts be made to make them aware about their rights, at a
governmental as well as a private level. The Government should set up camps, and create
advertisements through mediums such as text messages, television and radio in order to enable
workers to be made aware of their rights under such schemes. The duty could also be cast upon
the employer of unorganised workers to render information about schemes under the Act.