“ INTRODUCTION ”

Social security is primarily a social insurance program providing social

protection, or protection against socially recognized conditions, including
poverty, old age, disability, unemployment and others. Social security
may refer to:

Social insurance, where people receive benefits or services in recognition of contributions to

an insurance scheme. These services typically include provision for retirement , pension ,
disability insurance, survivor benefits and unemployment insurance .

Income maintenance—mainly the distribution of cash in the event of interruption of

employment, including retirement, disability and unemployment

Services provided by administrations responsible for social security. In different countries this
may include medical care, aspects of social work and even industrial relations.

More rarely, the term is also used to refer to basic security, a term roughly equivalent to
access to basic necessities—things such as food, clothing , shelter , education , money and
medical care .

Social Insurance : Actuaries define social insurance as a government-sponsored insurance

program that is defined by statute, serves a defined population, and is funded through
premiums or taxes paid by or on behalf of participants. Participation is either compulsory or
the program is subsidized heavily enough that most eligible individuals choose to
participate.

Income maintenance : This policy is usually applied through various programs designed to
provide a population with income at times when they are unable to care for themselves.
Income maintenance is based in a combination of five main types of program:
Social insurance : It will cary the same the points as above stated .

Means-tested Benefits :- This is financial assistance provided for those who are unable to
cover basic needs, such as food, clothing and housing, due to poverty or lack of income
because of unemployment, sickness, disability, or caring for children. While assistance is
often in the form of financial payments, those eligible for social welfare can usually access
health and educational services free of charge. The amount of support is enough to cover
basic needs and eligibility is often subject to a comprehensive and complex assessment of an
applicant's social and financial situation.

Non-contributory Benefits : Several countries have special schemes, administered with no

requirement for contributions and no means test, for people in certain categories of need -
for example, veterans of armed forces, people with disabilities and very old people.

Discretionary benefits. Some schemes are based on the discretion of an official, such as a
social worker.

Universal or categorical benefits, also known as demogrants . These are non-contributory

benefits given for whole sections of the population without a test of means or need, such as
family allowances or the public pension in New Zealand (known as New Zealand
Superannuation).
Social Protection : Social protection refers to a set of benefits available (or not available) from the
state, market, civil society and households, or through a combination of these agencies, to the
individual/households to reduce multi-dimensional deprivation . This multi-dimensional
deprivation could be affecting less active poor persons (e.g. the elderly, disabled) and active poor
persons (e.g. unemployed). This broad framework makes this concept more acceptable in
developing countries than the concept of social security. Social security is more applicable in the
conditions, where large numbers of citizens depend on the formal economy for their livelihood.
Through a defined contribution, this social security may be managed. But, in the context of wide
spread informal economy, formal social security arrangements are almost absent for the vast
majority of the working population. Besides, in developing countries, the state's capacity to reach
the vast majority of the poor people may be limited because of its limited resources. In such a
context, multiple agencies that could provide for social protection is important for policy
consideration. The framework of social protection is thus capable of holding the state responsible
to provide for the poorest sections by regulating non-state agencies.
 The mechanics of social security therefore consists in counteracting the
blind injustice of nature and economic activities by rational planned justice
with a touch of benevolence to temper it." This definition of ILO clears and
centers on provision of support to an individual or to his/her family to
protecting them falling into contingent poverty which is that the individual
is not otherwise poor but for the contingency. These contingencies as per
ILO are sickness, medical care for the worker, maternity, unemployment,
work injury, death of worker, invalidity and widowhood.

The contingencies however are the work related contingencies and the
individual and his family will be protected only in the case the individual is
working before becoming a subject of the contingency. Thus being
employed is a precondition for becoming eligible for social security
benefits. Ironically, this definition does not cover the protection that has to
be provided for the people who are already poor and therefore the Social
Assistance program cover them.
 “Evolution of Social Security”

The concept of social security is as old as the history of man. Stories of Bible tell us how,
during the years of famine, Joseph tried to tide over the situation by making use of surplus stocks of
grain which he had stocked during the earlier years of plenty. The oldest institution of social
security is family that includes the extended family. Industrial revolution in the Europe has seen the
growth of urban and industrial centers that affected the rural joint families thereby disturbing the
institution of social security in the joint family system.
When individual was unable to take care of his own needs, the society realized the importance of
protecting the individual and his family. In great Britain the
poor laws were enacted to provide minimal food and shelter in a workhouse to the poor. Private
savings, compensation by employers medieval guilds, mutual aid or mutual benefit societies,
private insurance and life insurance are some of the evolutionary forms of social security efforts.
 “Need for Social Security”

Modernization and urbanization have resulted in radical socio-economic

changes and give rise to new conflicts and tensions consequent upon the erosion of age old family
and fraternal security. The transition from agricultural economy to an industrial economy brought in
special accompanied problems that called for social security.

“Purpose and Contingencies of Social Security”

The purpose of any social security measure is to give individuals and families the confidence that
their level of living and quality of life will not erode by social or economic eventuality; provide
medical care and income security against the consequences of defined contingencies; facilitate the
victims physical and vocational rehabilitation; prevent or reduce ill health and accidents in the
occupations; protect against unemployment by maintenance and promotion of job creation and
provide benefit for the maintenance of any children.
The contingencies of social security as delineated by ILO are medical care, sickness benefit,
unemployment benefit, old age benefit, employment injury benefit, family benefit, maternity
benefit, invalidity benefit and survivors benefit.

“Social Security Strategy in India”

The social security strategies include the following:

• Social insurance with the participation of the beneficiary pooling risks and resources .
• Social assistance financed from general revenues and granting benefits on the basis of
means test .
• Employers liability schemes where there is an identifiable employer and within the
economic capacity of the employer.
• National Provident Funds
• Universal schemes for social security.
“ RELEVANCE AND USEFULNESS OF THE LAW IN INDIAN SCENARIO”

Social Security in India

Article 43 of the Constitution speaks of state's responsibility to provide social security to the
citizens of this country. In India, we find all the above strategies in practice. For the purpose of
discussion, we may categorize the social security schemes available in India as Preventive Schemes,
Promotional Schemes, and Protective Schemes.

Preventive Schemes
Preventive Schemes are the Schemes aimed at risk prevention. In the strategy of social management
of risks, preventive approach tries to prevent poverty and helps people under below poverty line to
come above poverty line. Preventive health care, vaccinations against diseases forms part of he
preventive strategies. Majority of the schemes are of social assistance in nature.

Promotional Schemes
Promotional social security schemes are mainly of Means tested Social Assistance type, where to
guarantee minimum standards of living to vulnerable groups of population, the Governments at the
State and Center draft schemes financed from the general revenues of the Government. These are
the strategies of risk mitigation. These guarantee:

Food and Nutritional Security by ensuring per capita availability of food

grains, access to food, developing agriculture sector, targeted Public
Distribution system etc.

Employment security by ensuring employment by generating employment, redeploying the

surplus manpower in any sector, creating rural employment opportunities, encouraging
technological up gradation.
Health Security by ensuring availability of medical facilities, maintaining standards of
sanitation and drinking water, eradication and control of communicable diseases, timely
vaccination of children and child bearing women, health insurance, old age homes and
social insurance for the elderly.
 Education Security by ensuring opening of schools, Encouraging children to attend classes,
making education compulsory upto certain age, opening adult learning centers or formulating
schemes like Sakshara, running schemes like mid day meals etc.

Women Security: by empowering women, encouraging women literacy, banning dowry,

designing widow pension schemes.

Assistance to the disabled by undertaking programmes to promote health and education among
the disabled persons, providing rehabilitation services and reservations in services so as to enable
them to participate in social and economic activity.

All the above form part of promotional social security schemes where State Governments are
more involved than the Central Government. Examples of schemes in the promotional social
security area include:

Food for work

Jawahar Rojgar Yojana
Antyodaya
Rural Landless Labourers Employment Guarantee Schemes
programmes of Integrated Rural Development Project
Drought prone area Programmes
Sakshara
Integrated Child Development Scheme (ICDS)
Public Distribution System
reservations for the disabled in services
special educational institutions for the disabled persons etc.
Protective Social Security Programmes

The protective social security programmes help the poor in removing/reducing contingent poverty.
In India, the protective social security programmes have been designed to address the contingent
poverty or the contingencies defined by the ILO. These programmes take care of old-age income
needs (Old age pension), survival benefits (Provident Funds), medical need of insured families
(Medical Insurance), widow and children/dependant economic needs (Widow/Children/orphan, and
dependent pension), maternity benefits, compensation for loss of employment and work injury
benefits.
The benefits are extended only to working population majority of whom are in the organized sector
through legislations like:
Employees State Insurance Act 1948
Workmen's Compensation Act 1923
Employees Provident Fund and Miscellaneous Provisions Act 1952
Payment of Gratuity Act 1972
Maternity Benefits Act 1976

Social Security for Disabled Persons in India

Having discussed the social security concepts and strategies and programmes available for the
vulnerable groups, the need for the Social Security programmes for the persons with disabilities can
hardly be overemphasized. However, we need to understand that the family has been the primary
producer of welfare even before the birth of a welfare state on the lines of modern welfare
approach. Later community, membership institutions, markets, and finally States provided welfare
facilities.

Particularly in democratic states, it has been the political necessity to produce and distribute
welfare for the vulnerable groups in the society. The magnitude of the woes of the persons
with disabilities is vast and its impact on the individual, family and community is severe.
The most vulnerable groups among the persons with disabilities include very young
children, women and the aged with disabilities.
Their existence and livelihood requirements have to be taken care of by some agency in the society-
that agency could be the state in the absence of benevolent markets and communities and more so
when the families of the persons with disabilities cannot do so. Further it is apart of social justice
that a State may assure to its subjects.
In the United States the Social Security Administration, United States (SSA) considers one as
disabled under Social Security Rules, if on cannot do work that he did before and SSA decides that
he cannot adjust to other work because of his medical condition(s). a person's disability must also
last or be expected to last for at least one year or to result in death.
Social security program rules assume that working families have access to other resources to
provide support during periods of short-term disabilities, including workers' compensation,
insurance, savings and investments. "The Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995, inter-alia and strives to promote
empowerment of persons with disabilities. The right to received support and assistance,
although essential to improving the quality of life of people with disabilities, is not enough.

“ Data “

NSSO 58th Round, undertaken in 2002, estimates that about 1.85 percent of population suffer from
some kind of disability or other. However, detail data are available now for designing a
comprehensive social security system for persons with disabilities. In contrast, detailed statistics on
the disabled population in Europe is available on the basis of which social security is planned and
implemented.

Some of the fundamental rights contained in the European Convention on human Rights and its
Protocols, and the Revised European Social Charter include the right to education; the right to
work; the right to private and family life; the right to protection of health and social security; the
right to protection against poverty and social exclusion; the right to adequate housing etc.
Based on these statistics the European countries are working hard to make their disabled people
enjoy the fruit of the policies. Therefore, availability of detailed data on the disabled population in
India is a pre-requisite for better planning and implementation of social security schemes. Data on
the following aspects as regards the disabled population in the country will be useful in this regard:
Parents with disabled children below poverty line: This is required to design some additional
social assistance schemes.

Unemployed disabled persons who can be gainfully employed: This is required to design special
employment schemes and employment drives and to evolve income generation strategies for the
disabled persons and ultimately make them eligible for protective type of Social Security Schemes.

Non-employable disabled persons who always require support of the Family/Community or

the State: This is required to design State assisted/funded schemes as well as to rehabilitate
them in the homes for disabled persons.

Disabled persons above 60 years of Age: This is required to help mitigate the hardships of the
disabled senior citizens through Old Age Pension Schemes in the form of Social Assistance
and State assisted health care.

Disabled women: This is required to understand whether the disabled women are dependent on
their parents or on their husbands and the poverty status of their family/parents and to design
schemes of Assistance or Insurance Accordingly. This will also help us to understand the
requirements of the disabled women in the child bearing age and making provisions for their
maternity care.

Disabled widows: This will help planners to understand the dependency levels of the widows, if
they are pensioners, their economic status etc.

Disabled persons engaged in agriculture and informal sector: This data will enable the
Government to design programmes of skill upgradation for the workers in the informal
employment and self employment and create backward and forward linkages for their
economic activities. It is also possible to specially brand the products produced by the
disabled and grant export concessions and subsidies.

Disabled persons retired from armed forces and capable of being reemployed: This data will
enable planners to assess the assistance required for this category of people.
Required Social Security Program for the Disabled Persons in India

Assistance and benefits both in the form of cash and kind will help ameliorate the condition of the
disabled persons who have to bear additional economic and social cost due to their disability.
Granting benefits for the persons with disabilities is a necessary condition but not a sufficient one
for their empowerment and overall development. People with disabilities, like all people, require
love and affection that is most often best provided by their families.
Specific measures and assistance are therefore essential to help these families overcome the threat
of many possible sources of deprivation and provide and caring home as a much better and more
natural alternative to life in large institutions/homes for disabled for disabled. If the family itself is
poor, it may not be able to extend any kind of support to the disabled members but rather treat him
as an extra burden. Before designing the programmes suggested hereunder, this fundamental social
understanding should not be overlooked.

The cash benefits by way of assistance could be in the form of the following:
Scholarships to the disabled children
Old age pension to the aged and widows
Unemployment assistance to the education disabled
Cash subsidies for self employed
Disablement pension
Retirement pension
The benefits in the form of kind could be in the form of:
Concessions and support in various activities and concessions in transport
Medical assistance
Medical insurance where employer liability schemes are possible
Compensation in the case of work injury resulting in disability
Maternity care for the disabled mother
Compulsory provision of crèches in all the work places for the children of disabled mothers
Reservations and Concessions in services
Special skill upgradation program .
Special schools and Teacher Training centers
Tax rebates for the disabled persons as well as the parents of the disabled children .
Available Program for the Disabled

Currently reservations in services, concessions in employment, disability pension under the

Employees' provident Funds and Miscellaneous Provisions Act 1952, medical and maternity
benefits under Employees' State Insurance Act 1948, benefits under the Workmen's Compensation
Act 1923, special schools for the disabled children, disability specific assistance programmes are
available in the country, through the coverage is not comprehensive.
Ironically three major Social Security Acts listed above are the employer liability and employment
related benefit schemes. They are operative only in the case of disability during the course of
employment. There are no programmes for old age and survivor benefits in the case of the disabled
who cannot be employed or the disabled person who are not employed even after crossing the
employable age. There are no programmes for the disabled, dependent and aged widows excepting
some very meager assistance given by some State Governments such as old age pension of Rs. 75
per month. In addition we find that multiplicity of agencies and duplicity of benefits are very
common to all the social security programmes available in India, and the plight of the persons with
disabilities has no exception to this rule. Annexure II gives the status of pension/unemployment
allowances for the persons with disabilities, State/union Territory wise-source: Chief Commissioner
Disabilities

Programmes/Schemes required to be designed for the Disabled Persons

Currently available schemes or programmes do not comprehensively address the problems of the
disabled persons. The major Social Security Acts available in India aim only at employment related
disability. N fact a large number of the disabled persons are outside employment or in informal
economic activities or simply dependent on their parents, children and/or spouses.
In some of the Rural Development and other programmes there are some disabled beneficiaries.
However, keeping in view the statutory provision of 3% reservation for persons with disabilities I
all poverty alleviation schemes, the coverage is negligible.
This provision needs to be effectively implemented.
In the United States the Social Security and Supplemental Security Income disability programmes
are the largest of several Federal Programmes that provide assistance to people with disabilities.
While these two programmes are different in many ways. Both are administered by the Social
Security Administration and only individuals who have a disability and meet medical criteria may
qualify for benefits under either programme. Supplemented Security Income (SSI) is a Federal
income supplement programme funded by general tax revenues (not Social Security taxes) it is
designed to help aged, blind and disabled people, who have little or no income; and it provides cash
to meet basic needs for food, clothing, and shelter. Based on the international best practices and the
India specific requirements th urgent need is to formulate the following types of benefits and
programmes:

Universal old age defined benefit Pension Scheme for the disabled without any means test (As
Social Assistance) should be thought of based on national average wage that guarantees
poverty alleviation among the persons with disabilities;

Universal medical benefits (possibility of establishing opening separate out patient windows
for the disabled should be seen to lessen the hardships of the disabled patients who stand in
the general queues in the public hospitals), free treatment to the disabled persons by
corporate hospitals could be thought of a precondition for grant of license to the corporate
hospitals;

Universal Unemployment Assistance to the disabled persons with means test will definitely
alleviate poverty among the persons with disabilities and employable. However, a scheme of
discontinuance of the benefit in the event of non-acceptance of employment may be thought
of to protect them from falling into unemployment trap;
Trying up with corporate hospitals to extend medical care at a confessional rate to the disabled,
where the disabled have a capacity to pay, and subsidizing cost of surgical treatments in the
hospitals;
Social assistance to the disabled children and scholarship schemes for them if they are school going.
Pre-examination training to enable them to sit of competitive examinations along with other
candidates;
Special Employment and Skill upgradation programees
Bank credit at subsidized rate of interest for the self-employment projects taken up by the disabled
persons (NHFDC activities needs to be expanded)
Reservations in services ad other concessions provided needs to be effective implemented
Incentives to be given to employers encouraging employment of the disabled persons in consonance
the provisions in the PWD Act, 1995.

Financing of the Schemes

The approach to financing the schemes designed for the disabled persons as also launching of new
social security schemes for persons with disabilities should be broadened and the following options
including the traditional budget allocations out of the Government funds need to be explored:
Finance from the general revenues or tax financed as a major source;
Collection of cess from the industries, employment in which leads to occupational diseases and
work hazards;
Special tax on luxury items and those items consumption of which are injurious to health
Contribution from employed parents of the disabled to establish a separate fund for Disability
welfare;
Donations from charitable organizations;
Donations from international donors and agencies;
Employer share of contribution at enhanced rates for the programmes designed to address
contingent poverty;
Administrative Arrangements

The current Administrative arrangements for delivery of support and benefits to the persons with
disabilities are scattered. There is neither a uniform benefit formula nor is there any single agency
that administers or guides the programme. It is suggested that multiplicity of agencies or
departments currently looking after disability benefits need to be integrated together to have
comprehensive programme design and implementation policy under one umbrella wit a Chief
Executive officer.
However disability specific branches under that agency may be designed to continue the
professional approach. As per the Act, one of the jobs of the office of Chief Commissioner for
persons with disabilities is to monitor utilization of funds disbursed by Central Government. This
needs to be ensured. A National Commission has also been set up recently to aid and advice the
Government regarding disability and rehabilitation matters and to recommend action. Date may be
collected through census as also NSSO surveys at regular intervals.
A National Unique Identification Number on the lines of National Social Security Number may be
thought of to avoid duplicity in benefit delivery. The State Governments may start, in right earnest
issue of identify cards, preferably, SMART cards with assigning such numbers.
All the States may appoint independent State Commissioners, who, as per the Act., may perform
their quasi-judicial function in supervising and implementation of various provisions of the Act.,
and redressing grievances. Administration arrangements may be made for collection and recording
of contributions and donations for developing a fund for social security program for disabled.

The current system of collection of contributions under protective Social Security schemes
need not be disturbed; investment of funds and budgetary allocations made for the purpose
need to be enhanced and designing effective income generating schemes may be given
attention. Suitable schemes along with administrative arrangements may be made for
delivery of benefits including medical benefits, old age pension and benefits in cash or
kind .
 Unorganized Workers’ Social Security Act, 2008-A Critical
Analysis

This concerns the Unorganized Sector Workers’ Social Security Act, 2008 (Bill No. LXVII of
2008) [“the Act”] that was introduced in the Rajya Sabha on 10th September 2007 by the Union
Minister of State for Labour, Shri Oscar Fernandes. This is but a brief note on the proposed
legislation. The Act seeks to apply itself to around 93 per cent of India’s working population to
introduce a broad social security protection through various government schemes. This is a complex
exercise, both legally and logistically, to oblige an exacting analysis of the Act and related
legislation. This note offers preliminary comments on the Act, but is not in lieu of a more detailed
comment that will follow.

Background

On 15 October 1999, the then BJP-led government resolved the appointment of the Second National
Labour Commission [“Second NLC”] headed by Ravindra Varma, a former Minister of Labour.
According to its terms of reference, the Commission was asked, “…to suggest an Umbrella
Legislation for ensuring a minimum level of protection to the workers in the unorganized sector.” In
2002, the Second National Commission on Labour submitted its Final Report with relatively
detailed proposals for an “umbrella legislation” to cover workers not already protected by the labour
laws of the ‘organized sector’. But, these recommendations were not implemented by the then
government. In its National Common Minimum Programme [“NCMP”] of May 2004, the United
Progressive Alliance [“UPA”] declared its commitment to “…ensure the welfare and well-being of
all workers, particularly those in the unorganized sector who constitute 93% of our workforce.”

However, the UPA did not reveal the manner in which they would achieve this objective. After
taking over power at the Centre, the UPA government appointed a new commission to look into
how its NCMP commitment could be brought to life. The National Commission for Enterprises in
the in the Unorganised Sector [“NCEUS”], headed by Professor Arjun Sengupta, was appointed in
September 2004.
In August 2005 and May 2006, the NCEUS submitted two reports to the Prime Minister containing
a draft legislation on securing the conditions of work and creating a social security scheme for
unorganized sector workers. The various draft legislative proposals were consolidated by the
NCEUS in July 2007. In its deliberations, the NCEUS found the need for separate laws to
differently protect agricultural workers and non-agricultural workers within the unorganized sector.

In 2005, the National Advisory Council [“NAC”], formerly chaired by Sonia Gandhi, also
submitted a draft Bill based on the recommendations of the Second National Labour Commission
and the ongoing deliberations of the NCEUS. This draft Bill which was titled “The Unorganized
Sector Workers’ Social Security Bill” was tabled in the Rajya Sabha in September, 2007.

This draft Bill received the Assent of the President of India on 23rd December, 2008 and has now
become an Act. This Act titled “The Unorganized Workers’ Social Security Act, 2008” has not been
brought into force yet. This paper will attempt to review the Act as a whole, thereby making a
detailed analysis of its main provisions as well as the positive and negative aspects. A need is also
felt to discuss the operation and implementation measures surrounding the Act.

Positive Features Of The Act

At last, the Parliament has passed the Unorganized Workers’ Social Security Act,2008. The UPA
Government has brought into effect an Act which does not have any binding on the government,
and yet which it hopes to cash in the coming election. The Labour Minister said, “when the income
of our people is only Rs. 20, our Parliament, through this Bill, has given an income of two dollars a
day to our people in the rural areas. Anybody can stand up and say that I want a job. You get a job
of two dollars a day. What a jump it is from Rs.20 to Rs.80, and to Rs.135 in states like Delhi,
Haryana and Punjab!” Perhaps, the minister wanted to conceal the fact that the workers had to fight
a major battle even to get the declared wages of Rs.80 even in the much trumpeted NREGA.
In the government’s own reply to the debates, the Minister has clarified that the scheme will be
implemented in a phased manner to cover six crore unorganized workers, and in turn their family
members of 30 crore people, over a period of five years, extending benefits to 1 crore 20 lakh
workers per year. This makes it amply clear that the Act is only an eyewash and intends to cover
just 6 crore workers out of the total workforce of more than 42 crore. Any legislation is meant for
guaranteeing certain legal commitments on the part of the state; this Act, instead, leaves the
implementation entirely to the whims of governments of the day.

Creation of Advisory Boards

As if to compensate for its lack of substance, the Bill creates multiple ‘Social Security Advisory
Boards’ with powers of recommendation, advice, review and monitoring. Needless to say, these are
ornamental powers and cannot achieve the implementation of any welfare scheme. The real power
is retained by the Central Government which may give directions to these Boards or to the State
Governments in matters relating to the implementation of the legislation. The Boards, thus, at both
Central and State levels are powerless. In addition, they are also very large. The Central Board must
consist of at least 31 members and the State Boards 28 members. Along with the support and
administrative staff needed to run these Boards, to no apparent gain since they do not have
substantive powers, what the Bill actually does is ensure that a lot of financial resources are used
with minimal effort.

Registration of Beneficiaries

Clause 9 of the Bill creates the only legal entitlement in the entire Bill – that of all unorganized
sector workers above 14 years to register themselves and receive a ‘smart’ identity card. There are
no immediate dangers that registration might pose to unorganized sector workers. Certainly, there
are no gains since the Act is insubstantial and purely symbolic.
 The use of ‘smart’ cards – with each holder’s biometric information such as fingerprints – may go
some way in preventing fraud. But, again, since the legislation is itself weak, this will just mean
that the government will spend a lot of money making and distributing ‘smart’ cards to no apparent
gain. Certainly, in situations where there is political will to implement welfare schemes,
unorganised sector workers will benefit with ‘smart’ cards.

Social Security Schemes under the Act

The Act has mentioned that the government would periodically notify schemes related to life and
disability cover, health and maternity benefits, old age protection and any other benefit as may be
determined by the central government. It has also mentioned ten schemes in the schedule which
includes Aam Admi Bima Yojana, Rashtriya Swasthya Bima Yojana, Janshree Bima Yojana, Janani
Suraksha Yojana, Old Age Pension, Family Benefit and schemes related to weavers, artisans and
master crafts persons. None of these schemes are new and are mostly applicable only for BPL
families. Most of the urban unorganized workers may not fall under the BPL category. The BPL
income of Rs 500 is too less even for bare existence in urban areas. Moreover, most of these
schemes are insurance schemes which are to be sourced from workers and operated by insurance
companies. The only possibility is that the central and state governments may subsidise
contributions from BPL workers at a ratio of 75:25. Beyond this, there appears to be no plan for the
government to fund the entire social security schemes.
The state governments have been given a free hand to design their own schemes related to
provident fund, employment injury benefit, housing, education, skill upgradation, funeral assistance
and old age homes. It can be noted that none of them are mandatory on any government.
‘Smart’ Registration

The function of registration of workers, the ‘biggest’ advantage of the entire Act, is left to the state
governments to be performed through the bureaucracy at district level. Any unorganized worker of
above 14 years of age can register himself/herself with the worker facilitation centre by giving a
self-declaration. By getting a unique identification number and smart card that are portable, the
worker will be eligible for suitable social security schemes if he/she would pay the prescribed
contribution.

Floor Level Schemes

What is really good about this legislation, as recommended by the NCEUS and NAC, is an
enforceable ‘floor scheme’ that creates in each unorganized sector worker beneficiary a legal
entitlement of governmental protection within a specified time frame. For instance, the National
Rural Employment Guarantee Act, 2004 [“NREG Act”], that was enacted under the auspices of the
present UPA government, creates a legal entitlement of 100 days of work for a specified minimum
wage with penalties accruing to its denial. The NREG Act is both successful and unsuccessful,
depending equally on the political will behind its implementation as the legal content of its
provisions.

A Beginning
The much awaited Unorganized Workers’ Social Security Act, 2008 has become a major force of
the millennium. The new legislation can be taken as a beginning – an opportunity to raise working
class struggles to newer heights by involving crores of unorganized workers. It is for the working
class and trade union movement to take up the challenge to create waves of bigger and bigger
struggles for a really meaningful and comprehensive legislation for unorganized workers and
agricultural labourers that can cover not only social security but also wages, rights, job security and
the conditions of employment.
Negative Features Of The Act ‘Unorganized Workers’ National Advisory Board Act’
The name itself is a misnomer because the Act does not provide any social security (except mere
registration) to any section of workers. It would have been more appropriate to call it an
‘Unorganized Workers’ National Advisory Board Act’. The Act does not guarantee anything other
than the formation of an advisory board at central- and state-level and making the respective Labour
Ministers the chairpersons of the same. This is the highest ever fraud on unorganized workers, who
not only constitute one third of the entire population but contribute two third of our national
income.

Neither Regulation nor Social Security!

It has been a decade since the Second National Commission on Labour proposed umbrella
legislation for unorganized workers in 1999 in order to restructure the labour market conditions to
match liberalization and globalisation. The Congress-led UPA government claims that the National
Commission on Enterprises in Unorganised Sector (NCEUS) led by Arjun Sengupta was formed in
2004 as part of the implementation its National Common Minimum Programme that promised
welfare legislation for unorganized workers.
The National Advisory Committee (NAC) headed by Sonia Gandhi came up with a draft bill in
2005, which was followed by two bills prepared by NCEUS after elaborate discussions with trade
union leaders. Still, all of them were thrown into the dustbin and the Labour Ministry brought out
its own Bill that was a much- watered-down version of NAC draft. Again, the Finance Ministry
struck down the proposals of any scheme in the Bill that might require financial commitment on the
part of the government. Then, the Bill was again redrafted and introduced in the Rajya Sabha in
2007 and in turn, referred to the Parliamentary Standing Committee on Labour. Crucial
recommendations of the standing committee were discarded and the bill was further referred to a
Group of Ministers. Finally, the Act has been passed that neither provides for regulation of
conditions of employment nor any social security schemes; neither encompasses agrarian labourers
nor extends to all unorganized workers; neither makes a categorical definition of unorganized
workers nor binds the government to any commitment; neither provides a mechanism for
implementation nor suggests penalty for non-implementation; neither creates a corpus fund nor
makes a categorization for generating resources.
Ambiguity in Definition

The original name of the Bill was changed. The word “Sector” was dropped and the Unorganised
Sector Workers Social Security Bill 2007 was changed to Unorganised Workers Social Security Bill
2008. At first sight, this might be misleading as a move to extend the coverage of the Bill to the
informal workers in the organised sector as well. But, the change in title does not have any
concurrent implication for the definition of unorganized workers. The Act says, “unorganised
worker” also includes a worker in the organised sector, who is not covered by any of the Acts
mentioned in Schedule II of this Act”. At the surface level, it might appear that unorganized
workers of organized sector are also covered by the act. But, it says that the workers covered under
the purview of ESI Act (and also PF Act, ID Act, Workmen Compensation Act, Maternity Benefits
Act and Gratuity Act) will not come under the ambit of the present legislation, which implies that
2.92 crore casual and contract workers in the organized sector will be completely left out of the
purview of the present legislation. Furthermore, it has defined unorganized sector as enterprises
employing less than 10 workers.
The Act says that unorganized worker means a home-based worker, self-employed worker or a
wage worker in the unorganized sector but it is also subjected to the condition of a ceiling on
monthly earnings which is not defined. It could be the ceiling for determining BPL (Rs.300 in rural
areas and Rs.500 in urban areas) or could be the extent of landholding or could be anything which is
unknown and yet to be notified by the government.
It is also becoming clear that agricultural labourers will also be excluded. The Parliament rejected
the amendments for clarification while the Labour Minister claims to have included agricultural
labourers as well. Replying to the debates, Oscar Fernandes said, “I would like to clarify that
‘unorganised worker’ means every worker in this country who is not in the organized sector. I have
referred to 94 per cent of our people and this includes every agriculturist. Specifically, I would like
to say that the migrant worker is one who does 150 days of agricultural work and then goes to the
cities and works there as a mason or unorganized worker. So, the Bill covers totally the unorganized
sector workers. Agricultural workers are also getting the benefit.” If this is what the government
means to be the coverage of agricultural labourers, it is obvious that all those who are engaged in
agricultural work have been effectively excluded. Hence, the claim that the Act covered rural
agricultural labour is an utter lie.
Unknown Resources and Notional Schemes
Nowhere in the Act can one find explanation of the scope of the Act, targeted beneficiaries,
implementation and grievance redressal mechanisms, penalties for violation or any other common
features expected in any act worth the name. But, it says that all these will be taken care of by the
(notional) schemes that would be notified by the central government from time to time.
From where will one get the requisite funds for the operation of those ‘notional’ schemes? The Act
is too vague on this score as well but for indicating possible sources. Schemes may be funded partly
by the central and state governments, partly by the contributions from workers and from employers.
Not only are the workers but also are the so called ‘employers’, an unknown quantity.

The Hoax of Boards

There is a lot of hue and cry over the formation of social security boards. Oscar Fernandes’ main
achievement is that he managed to get rid of the ‘National Advisory Boards’ and replaced it with the
formation of National and State Social Security Boards. But, it is again a misleading change only, as
the fundamental nature of those boards is only recommendatory and advisory in nature. They are
toothless and they cannot take any decision on their own but for recommending possible schemes
and advising on issues of administration to the government. They may also review issues related to
the registration of workers and monitor schemes notified by the government. The board has no
power, no authority over anything. If forming such advisory boards is the intention of the
government it does not require any legislation, just a government order would have sufficed.
 Excluded Sections

The NSSO 61st Round report put the number of non-regular workers in the organised sector at 2.92
crore and they include contract, casual workers probationers and “trainees”, para workers and temps
etc. [According to 61st Round of National Sample Survey in 2004-05, the number of unorganised
workers in the Indian economy stood at 42.26 crore, of which 39.35 crore are in the unorganised
sector of economy and 2.92 crore are unprotected workers in the organised sector of economy.
According to the same sample survey 6.26 crore of workers are employed in the organised sector of
economy. This means one-third of workers in the organised sector who enjoy no job security or
social security or wage security have been left out from the purview of the Act for the sole “fault”
of working in the organised sector. Unorganised workers in the cooperative sectors have been
totally excluded. India has 1.38 crore workers in the cooperative sector including self-employed
workers like weavers. All of them have been left out. There are 6.5 lakh anganwadi workers and an
equal number of helpers under the ICDS programme alone covering 6.49 lakh anganwadi centres in
the country. Besides these workers, there are mid-day meal workers in many States covering
primary school children. All over the country, around 17 lakh workers are involved in this scheme.
There are about 2.4 million para workers including para health workers and para teachers and non-
regularised employees of local bodies including municipal workers. Neither the governmental or
quasi governmental bodies employing them provide comprehensive social security to them nor have
they been brought under the ambit of the Act. So, nearly 50 million workers already stand excluded
from social security by this “inclusive” government.

Major Limitations of the Act

(1) Neither agricultural labourers have been brought under the purview of the Act nor a separate bill
for agricultural labourers tabled. But, the minister claims that they are also covered.
(2) NCEUS had prepared two Bills, one on social security and the other on working conditions. The
latter has been dumped and the Act passed confines itself only to social security in its most
diluted/truncated form.
(3) The 2008 Act appears to have excluded vast sections of unorganized workers like agricultural
labourers, the unorganized labourers in the organised sector including contract labourers and the
informal labourers in the formal sector, the anganwadi workers, para workers like ASHAs and
parateachers, and those the cooperative sector. This exclusion reveals the true colours of the
“Politics of Inclusiveness” of the UPA.
(4) The Act is applicable only to a small section of unorganized labourers whose income limit is
expected to be notified by the government. There is every possibility that the subsequent
notification will include parameters to exclude good number of unorganised workers from the
applicability of the law and the schemes.
(5) The workers in the construction sector are exempted from making any payment because a cess
was collected from the sector for providing health insurance and other facilities. But there is no
provision to collect a mandatory cess from the employers in other sectors. Only the BPL
unorganized workers have been exempted from paying any premium only in the case of one scheme
– ‘Rashtriya Swasthya Bima Yojana – providing for a paltry health insurance cover of up to a
maximum of Rs.30,000 for a family of five. As a result, workers in other sectors would have to pay
the premium amount.
(6) The passage of the Act is not accompanied by any legally stipulated guarantee for the
establishment of a Central Welfare fund.
(7) There is no provision for penalties in the Act to punish those employers who violate it.
(8) “Social Security” to the unorganized workers has been narrowed down to ten paltry social
security schemes. Most of these schemes like old age pension or maternity benefit (or even the
meagre Bima Yojana, for that matter) are already existing/ongoing schemes and there is nothing
new in them.
(9) As a result of dropping the Bill on conditions of work prepared by the Arjun Sengupta
Commission, working conditions of unorganised workers including hours of work, mandatory
holidays, industrial safety, job security, industrial relations and trade union rights, guaranteeing
minimum wages, bonus etc., would remain unregulated and unenforced.
(10) The government has not acknowledged the principle of unemployment allowance in the case of
job losses for unorganised workers or any form of employment and wage/income guarantee. It was
recognized in the case of NREGA and the State governments in West Bengal and Tamil Nadu
introduced a meagre payment of Rs.500 per month for organized industrial workers in case of loss
of jobs but a comprehensive unemployment/job-loss allowance is yet to take shape in India as in the
West. What is social security in the absence of unemployment allowance?
(11) The national and state boards for unorganized workers provided for in the Act are advisory
bodies and like the National Labour Commission they are toothless bodies. While implementation is
left to the district bureaucracy, there is no independent enforcement or watchdog/oversight body
with representation from unions and there is no appellate authority even.
(12) Not only there is no penalty against the defaulting employers, there would be no action against
the bureaucrats who refuse to register any unorganized worker under any of the twin scheduled
schemes.
(13) The special problems of migrant workers, especially inter-State migrants, among unorganized
workers, especially the problem of security, has been totally ignored by the Act.
(14) The special problem of women unorganized workers do not figure in the Bill. The problems of
security, sexual harassment, proper accommodation for migrant women workers, issues relating to
nature of work and industrial safety, gender wage gap, non-payment of wages, childcare facilities at
work spot etc., have been totally neglected.
Overall Assessment Of The Act

An overall assessment of the positive and negative features of the Act, reveals that many positive
features like Registration and issuance of Smart Cards for the Unorganized Workers have been
included in the Act. But, this Act has not yet come into force. Therefore, the proper assessment of
this Act can be made after a certain period of time, keeping in mind, the enforcement of the
legislation as well as the litigations that may be contested under the Act.

At this point in time, from an analysis and overall reading of all the positive and negative aspects
underlined in the Act, it seems that this Legislation will be able to fill the void that has been there,
ever since the Country gained Independence. The implementation mechanisms laid down in the Act
seem to be fool-proof and can be successfully implemented at all levels, if there is co-ordination
between the Centre and States.

Irrespective of the hurdles that this legislation may encounter in future, the Legislative efforts to
draw up a Comprehensive Legislation for the benefit of the Unorganized Workers needs to be
applauded. The Government has tried its best to cater to the needs of the people who constitute 93%
of the workforce in India.