CHAPTER IX

THE UNORGANISED WORKERS’ SOCIAL

SECURITY ACT, 2008

9.1 Introduction

The waves of liberalization, privatization and globalization have

changed the structure of business processes and nature of employment and

economic activities. This has resulted in high incidents of contracting, sub

contracting, out sourcing and casualisation of labour services. These changes

have further created many critical issues for the social security sector.

Addressing these issues is vital to the socio-economic and human

development of the country. Globalization makes social safety nets more

necessary, as they cushion the blow for those most severely affected, help to

maintain the legitimacy of reform, and help to avoid a backlash against the

social and distributional consequences of globalization.1

In this context the issue of provision of social security to the growing

segment of unorganised sector workers gained enhanced significance in the

development discourse in India. Various efforts of the Government of India,

in recent years, such as designing of new social security schemes, recasting

of earlier schemes, introduction of innovative methods towards effective

1 Rodrik, D.(1998): "Globalization, Social Conflict, and Economic Growth" (Prebisch Lecture),The World
Economy 21(2), at. 143-158
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identification and enrolment of beneficiaries, contemplation of

comprehensive legislations to ensure social protection for unorganised sector

workers and so on testify a paradigm shift in the social security front. Also,

in the recent past, there has been an increased emphasis on creating enabling

frameworks and promotional measures towards ensuring effective social

protection to the poor (especially for those in the unorganised segments of

the workforce) and enhancing their reservation income in the labour market.

When the United Progressive Alliance (UPA) Government came into

power in 2004, in line with the commitment made by it in the National

Common Minimum Programme,23 the National Commission for Enterprises

in the Unorganised Sector (NCEUS) was set up in September 2004, under

the Chairmanship of Late Dr. Aijun Sengupta. The Commission has the

mandate to examine the problems of the unorganized sector and suggest

measures to overcome them.4

The Commission after thorough investigation on the subject and after

elaborate discussions with trade unions and other stake holders found that

2 Babu Ramesh, “Rethinking Social Protection for India’s Working Poor in the Unorganised Sector"
www.welfareacademy.org/pubs/intemational/policy.
3 National Common Minimum Programme provided that “The UPA Government is firmly committed to
ensure the welfare and well-being of all workers, particularly those in the unorganised sector who
constitute 93 per cent of our workforce. Social security, health insurance and other schemes for such
workers like weavers, handloom workers, fishermen and fisherwomen, toddy tappers, leather workers,
plantation labour, beedi workers, etc. will be expanded.”
4 One of the terms of reference was to review the social security system available for labour in the informal
sector, and make recommendations for expanding their coverage.
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there is a need for separate laws to protect agricultural workers and non-

agricultural workers within the unorganized sector. In this regard the

Commission proposed two draft Bills “Unorganised Non-agricultural Sector

Workers (Conditions of Work and Livelihood Promotion) Bill, 2007” and

the “Unorganised Agricultural Sector Workers (Conditions of Work and

Livelihood Promotion) Bill, 2007” to cover unorganised agricultural workers

and non-agricultural workers respectively.

In 2005, the National Advisory Council [NAC] also submitted a

draft Bill based on the recommendations of the Second National Labour

Commission (2002). Still, all of them were thrown into the dustbin and the

Ministry of Labour and Employment brought out its own Bill, the

Unorganised Sector Workers' Social Security Bill, 2007 before the Rajya

Sabha during the zero hour. The Bill was referred to the Parliamentary

Standing Committee on Labour, (2007-08). The Committee in its report

extensively discussed various aspects pertaining to the unorganized workers

in the Country and the question of feasibility of ensuring practicable social

security coverage for these workers. The Committee afforded an opportunity

of being heard to the trade union organizations, employers' organizations,

NGOs. The Committee also invited suggestions and comments from various

Ministries and Departments of Government of India, States and Union

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Territories. After considering the views expressed by several representatives

of Trade Unions/NGOs/Empoloyers' Groups/Associations, etc., and after

going through the memoranda received, the Committee was convinced that

‘The Unorganized Sector Workers' Social Security Bill, 2007 in its present

form will not be able to meet the aspirations of millions of workers in the

unorganized sector. The Committee, therefore, proposed necessary

amendments to be carried out in the title of the Bill, definition of various

significant terms contained in the Bill, various clauses of the Bill relating to

provision of a statutory right for national minimum benefits for all

unorganized workers, their coverage within specified time frame,

composition of the National and State Social Security Advisory Boards,

functions to be assigned to these Boards, creation of separate National Fund

including method of funding, provision of staff for servicing these Boards

and constitution of Grievance Redressal Machinery, etc. As these

amendments have altogether changed the very nature and structure of the

Bill, the Committee felt that it was prudent to enclose a copy of the Bill

itself in the amended form as an Annexure II to the Report.5

But the Government ignored crucial recommendations of the Second

National Labour Commission, the Report of the Petitions Committee of Lok

5 Dr. I. Sharath Babu, “Social Security Protection for the Unorganised Workers in India - a myth or
reality? ” published in Labour Law Journal, June 2010 at. 50-51
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Sabha, and the Report of the Parliamentary Standing Committee for Labour

along with draft laws prepared by the National Commission for Enterprises

in the Unorganised Sector (2006). Finally the Parliament passed the

Unorganized Workers’ Social Security Act, 2008 which was basically

original Bill with minor changes. This clearly demonstrates the attitude and

lack of pragmatic approach on the part Government despite the fact that

millions of exploited population in India has been demanding for this

Constitutional Right from decades. But after a long wait what the

Government announced was legislation with few Schemes rather than a

definite plan of action with firm resource commitments to make social

security a reality for 369 million unorganised sector workers.

The UPA Government has brought the Act into effect, in the last six

months of its tenure with a hope to pull votes of unorganised sector workers

in the elections. In the words of Labour Minister Shri Oscar Fernandes,

“When the income of our people is only Rs. 20 per day, 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
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to get the declared wages of Rs. 80 even in the much trumpeted the

Mahatma Gandhi National Rural Employment Guarantee Act, 2005. 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.6

9.2 Key Definitions under the Act

Originally the Bill was named as the Unorganised Sector Workers

Social Security Bill 2007 which is changed to the Unorganised Workers

Social Security Act, 2008 (herein after referred to as ‘the Act’). This may

give an impression that the Act will cover unorganised workers in the

organised sector as well. But, the change in title does not made much effect

on application of the Act to the unorganised workers in the organised sector.

6 Pritam Ghosh “Unorganized Workers’ Social Security Act, 2008-A Critical Analysis" in jurisonline.in
on 28* August, 2009 .
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Section 2(m) of the Act defines ‘unorganised worker’ as a 'home-based

worker7, self employed worker8 or wage worker9 in the unorganised sector

and includes a worker in the organised sector who is not covered by any of

the Acts mentioned in Schedule II to this Act.10 This will imply that casual

and contract workers in the organized sector are excluded from the purview

of the present legislation as they are covered under some of the Acts

specified under the Schedule of the Act. Further, the Section 2(c) of the Act

defines “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. This implies that any

entity which is carried on by employing ten or more workers is not

7Sec. 2(b) of the Act defines home-based worker as 'a person engaged in the production of goods and
services for an employer in his or her home or other premises of his or her choice other than the
workplace of the employer, for remuneration, irrespective of whether or not the employer provides the
equipment, materials or other inputs.
8Sec. 2(k) of the Act defines The 'self-employed’ worker as 'any person, who is not employed by an
employer, but engages himself or herself in an occupation in the unorganized sector subject to a monthly
earning of an amount notified by the Central or State Government from time to time or holds cultivable
land subject to such ceiling as may be notified by the State Government.
9Sec. 2(n) of the Act defines 'wage worker' as a person engaged for remuneration in the unorganized
sector, directly by an employer or through any contractor, irrespective or place of work, whether
exclusively for one employer or one or more employers, whether in cash or in kind, 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 of an amount as may be notified by the
Central Government and State Government, as the case may be.
10. The Schedule II of the Act consists of The Employees’ Compensation Act, 1923; The Employees’
State Insurance Act, 1948; The Industrial Disputes Act, 1947; The Employees' Provident Fund and
Miscellaneous Provisions Act 1952; The Maternity Benefit Act, 1961 and The Payment of Gratuity Act,
1972.
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‘unorganised sector’ and workers employed in such an entity are not entitled

to benefits available under this Act.

The definitions also excludes workers dependent on livelihood

systems such as forest workers and fish workers, who cannot be brought

within the ambit of home-based workers, self-employed workers and wage

workers. The Act does not even cover unorganised cross-border temporary

migrant workers, who have gone to other countries to be engaged in dirty,

difficult and dangerous jobs such as construction, cleaning, domestic work,

paramedical work and such other occupations in manufacture and service

sectors. When on work, they contribute to the national income by their

remittances. These workers are a vulnerable group exposed to violently

offensive situations and require social security protection.11 Further, unpaid

family workers and care workers (such as Anganwadi workers) are also not

included under the definitional ambit of the Act.12

11 John, J. “Social Security Act: The Great Indian Tamasha on Unorganised Sector Workers, ” Cover
Story, Labour File, Vol.6, No.6. December 2008.
12 Saxena, K.B., “The Unorganised Sector Workers' Social Security Act, 2008: A Commentary” Article
published in ‘Social Change ’, Vol.39, No.2. (2009).
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9.3 Social Security Benefits under the Act

The long title of the Act provides that the Act is passed to “provide for

the social security and welfare of unorganised workers and for other matters

connected to therewith or incidental thereto.” 13 Further the Section 3 (1) of

the Act provides that the Central and the State Government shall formulate

and notify schemes from time to time covering life and disability, health

and maternity benefits, old age protection and any other benefit as may be

determined by the Central Government. This inter alia underscores the fact

that entitlement has to wait for an opportune time.14

To claim social security benefits under the Act, the unorganised

worker need to register him self after fulfilling certain conditions specified

in the section.15 But the Act does not define the term ‘social security

13 See The Gazette of India, Extraordinary, Part II, Section I, dated the 31st December, 2008.
14 Babu Pottaveettil Remesh, "Extending social protection for unorganized sector workers in India: One
step forward, two steps backward? " Paper presented at 6th International Policy and Research Conference
on Social Security Luxembourg.
15 Section 10 of the Act provides that
(1) Every unorganised worker shall be eligible for registration subject to the fulfillment of the following
conditions, namely:—
(a) he or she shall have completed fourteen years of age; and
(b) a self-declaration by him or her confirming that he or she is an unorganised worker.
(2) Every eligible unorganised worker shall make an application in the prescribed form to the District
Administration for registration.
(3) Every unorganised worker shall be registered and issued an identity card by the District Administration
which shall be a smart card carrying a unique identification number and shall be portable.
(4) If a scheme requires a registered unorganised worker to make a contribution, he or she shall be eligible
for social security benefits under the scheme only upon payment of such contribution.
(5) Where a scheme requires the Central or State Government to make a contribution, the Central or State
Government, as the case may be, shall make the contribution regularly in terms of the scheme.
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benefits’, instead provides for following social security schemes in the

schedule I of the Act.16

1. Indira Gandhi National Old Age Pension Scheme.

2. National Family Benefit Scheme.

3. Janani Suraksha Yojana.

4. Handloom Weavers’ Comprehensive Welfare Scheme.

5. Handicraft Artisans’ Comprehensive Welfare Scheme.

6. Pension to Master craft persons.

7. National Scheme for Welfare of Fishermen

8. Janshree Bima Yojana.

9. Aam Admi Bima Yojana.

10. Rashtriya Swasthya Bima Yojana.

9. 3.1 Indira Gandhi National Old Age Pension Scheme

Under this scheme any person of 60 years17 old and belonging below

poverty line family is entitled for monthly pension. From November, 2007

onwards, at a revised rate pension of Rs. 200 with equal contribution from

16 As all these Schemes are discussed in detail in the Chapter VI, a brief details of these Schemes is given
in this Chapter.
17 With effect from 1st April, 2011 onwards age limit is lowered from 65 years to 60 years.
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the States is provided. So, this scheme provides a monthly pension of Rs.

400 to the beneficiaries.

9.3.2 National Family Benefit Scheme

This Scheme aims at providing a lump-sum amount of money to the

households below the poverty line in the event of the death of primary bread

winner (age between 18 to 64 years) irrespective of the cause of death. The

financial assistance provided under this scheme to the bereaved household is

Rs. 10,000.

9.3.3 Janani Suraksha Yojana

This Scheme aims at providing benefits to the pregnant women of

‘below poverty line’ families and to encourage antenatal care, institutional

deliveries and provision for post-partum care. Under this scheme, cash

benefit is given to the poor pregnant women aged 19 years and above for

institutional delivery.

9.3. 4 Handloom Weavers’ Comprehensive Welfare Scheme

This Scheme came into being during the 11th plan with an

amalgamation of two separate schemes, viz. the ‘Health Insurance Scheme’

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and the ‘Mahatma Gandhi Bunker Bima Yojana’. The former scheme was

providing health care facilities to the handloom weavers and the latter one

aimed at providing life insurance cover to the handloom weavers at times of

natural or accidental death, total or partial disability due to accident.

9.3.5 Handicraft Artisans’ Comprehensive Welfare Scheme

This Scheme has two main constituents, viz. Raiv Gandhi Shilpi

Swasthya Bima Yojana and Bima Yojana for Handicrafts Artisans. The

former provides life insurance protection to the handicrafts artisans and their

family members, and later provides life insurance protection to the

handicrafts artisans.

9.3.6 Pension to Master Craft Persons

Under this Scheme, the senior master craft persons (above 60 years of

age), who are the recipients of National/State Awards in handicrafts, are

provided with pension benefits so as to enable them fbr disseminating their

knowledge to the younger generation.

9. 3. 7 National Schemes for Welfare of Fishermen and Training and

Extension

This Scheme was launched in 1991-92 under the title, “National

Scheme of Welfare of Fishermen” with the sole objective of providing basic

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civic amenities and socio-economic security to the fishermen. The Scheme

has four major components like (i) Development of Model Fishermen

Villages (ii) Group Accident Insurance for Active Fi&ermen (iii) Saving

cum Relief Scheme (iv) Training Scheme.

9.3. 8 Janashree Bima Yojana

This Scheme is introduced with an objective of providing life

insurance cover to the rural and urban poor of age-group of 18 to 60 years

and who live in below poverty line family or on the margin. Scheme

provides for payment of Rs. 30,000/- in the event of death due to natural

causes. In the case of accidental death or permanent disability, the benefit

will be Rs.75,000 and Rs.37,500 in the case of partial disability.18

9.3.9 Aam Admi Bima Yojana

With a view to provide death and disability cover to rural landless

households, 'Aam Admi Bima Yojana' was launched. The benefits under this

scheme are limited to Rs.30,000 in case of natural death, Rs.75,000 for death

or disability due to accident. Scholarship as a free add-on benefit is also

provided to a maximum of two children of the beneficiary.

18 website: http://india.gov.in/sectors/commerce/insurance.php. Visited on 22nd September 2010.

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9.3.10 Rashtriya Swasthaya Bima Yojana

It provides support to the BPL families, in case of hospitalisation. As

per scheme, the enrolled BPL families are eligible to get medical benefits

from various empanelled hospitals. The benefits are limited to Rs. 30,000 to

a family unit of five members. In order to encourage institutional delivery

maternity benefits are also provided under this scheme. The building and

other construction workers are also covered under this scheme.

An analysis of these schemes shows that nothing new is offered in the

Act. These Schemes are already existing target oriented social security

programmes initiated by the Central Government. The Act only provides for

integration of various existing schemes of the Central Government in to the

Act. These are not universally applicable to all unorganised workers.

Application of these schemes is subject to the condition that the family must

be a below poverty line. Most of the urban unorganized workers may not fall

under the BPL category which ultimately excludes them from the benefits of

the schemes.

The Act does not even provide any assured minimum social security.

The ILO convention No. 102 on Social Security (Minimum Standards)

adopted in 1952 provides that any social security benefit scheme need to
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make provision for at least certain minimum benefits providing medical

care, benefit for sickness, unemployment, old age, employment injury,

maternity and survivor's benefits. The Act which is passed after sixty years

of independence and projected as major step of millennium in full filling

aspirations of millions of unorganised workers, is not even providing

minimum social security benefits to these workers.

Moreover, even though the Act was passed with the objective of

providing social security and welfare to the unorganized workers, it does not

confer any defined right to social security for them. The social security

schemes are not included as part of the body of the Act but are given in a

Schedule which means Government can change or withdraw these schemes

by mere giving a notification.

9.4 Mechanism under the Act

The Act provides for a three tier structure mechanism for the purpose

of the implementation of the law.

9.4.1 National Social Security Board

The Central Government constitutes the National Social Security

Board with Union Minister for Labour and Employment as Chairperson, and
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members nominated by the Central Government consisting of seven each

representing workers and employers from unorganised sector, eminent

persons from civil society, two members from Lok Sabha and one member

from Rajya Sabha, and also five each members representing Ministries from

the Central and the State Governments.19 This is a multi partite composition.

The National Social Security Board performs following functions, namely.-

(i) recommend to the Central Government suitable schemes for

unorganised workers;

(ii) advise the Central Government on matters arising out of the

administration of Act;

(iii) monitor such social welfare schemes for unorganised workers;

(iv) review registration and issue of identity cards to unorganised

workers;

(v) review the record keeping functions performed at the State level;

(vi) review the expenditure from the funds under various schemes; and

(vii) undertake other functions as assigned to it by the Central

Government.

19
See Section 5(1) read with Section 5 (2) of the Act.
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9. 4.2 The State Social Security Board.

At the State level, the State Government is empowered to constitute

State Social Security Board for the purpose of implementation of the Act.

Composition and functions of State Social Security Board are similar to that

of National Social Security Board.20 An analysis of composition of these

two institutions both at National and State level which are constituted with

the task of implementation of the Act has very meager representation from

unorganised sector workers which comprises of gigantic 369 million

workers. The National Social Security Board has provision to have only

‘seven’ members representing unorganized sector workers and the State

Social Security Boards have ‘seven’ members representing unorganized

sector. Moreover, there is no role given to trade unions or any other

organisations of the unorganised workers.

Further, the Social Security Boards which are entrusted with the

responsibility of implementation of the Act, are just advisory in nature and

are not empowered to perform any function except that of monitoring and

20 See Sec. 6(2) to be read with Sec. 6( 8) of the Act.

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review.21 They are not empowered to take decisions on their own. It is up to

the Government to accept or not to accept the recommendation of the Board.

For effective implementation of any Act and consistent delivery of social

security rights to the workers, a well-defined administrative mechanism is

very much essential, which is missing in the Act.

The Act also provides for constitution of ‘Workers Facilitation

Centers’ by the State Governments to disseminate information social

security schemes, assist unorganised workers for registration and facilitate

the enrollment of the registered unorganised workers for social security

schemes. But the Act is silent about at which level these Workers

Facilitation Centers are to be created.

9.5 Funding of Schemes

The Act does not provide for the creation of a structured Social

Security Fund. Even though Parliamentary Standing Committee strongly

recommended that social security schemes cannot just work without any

statutory backing and assured resource allocation, which was not taken into

consideration by the Government and the Act was brought into force without

21Jhabvala Renana,‘Wo/e on Implementation Mechanism under the Unorganised Workers Social

Security Act” Paper presented at the workshop on the Unorganised Sector Social Security Act, at Vigyan
Bhawan, New Delhi, July 11th, 2009.
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making provision for funds. The absence of Social Security Fund in the Act,

casts doubts on the genuineness of Government's intentions in delivering

social security rights to the unorganised workers in India. The Act should

have contained a definite provision for the creation of a Social Security

Fund, and a financial memorandum for budgetary allocation for the Fund.

Most of the Schemes are available only for below poverty line family.

A person earning more than Rs.26 per day in village and Rs. 32 per day in

urban area is not considered below poverty line population as per the

current below poverty line norms.22 This estimation is made by the 11th

Planning Commission on the basis of 2011 prices. Economic experts have

criticised this estimation because spending below this will lead to starvation.

By this restrictive clause in the schemes, most of the unorganized workers,

denied the benefits of the schemes provided under the Act. Moreover,

section 10 (4) of the Act, provides that nonpayment of the contribution

disentitles the worker from getting any benefits. At the same time the Act

does not contain any provisions with regard to security of employment. In

case of unorganised workers, because of non availability of regular

22 As per the affidavit filed before the Supreme Court by 11th Planning Commission, on 28th September
2011, a person spending more than 26/day in village and Rs. 32 /day in urban area cannot be termed as
poor and would not be entitled for social security benefits and subsidized food given by the Center to BPL
Families.; Also see Utsa patnaik “How little can a person live on? ” Published in ‘The Hindu’ dated 30th
September 2011.
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employment, making regular contribution is difficult. Work and employment

are the starting point for any scheme for the benefit of workers. Therefore,

any law which does not deal with the issue of employment, its regulation,

wages, conditions of work, and so on will be not merely incomplete but

dysfunctional if it proceeds to deal with social security on a stand alone

basis.23

As the Act is only for BPL workers, identification of beneficiary is a

challenge and there are also issues relating to ‘leakage’. Another aspect is

that if BPL estimates by the State government exceeds that of Planning

Commission estimate of number of poor (as is the case in many States at

present), then State Government and other agencies (and not the Central

Government) have to fund the differences of excess beneficiaries under any

particular scheme. Taking in to account the financial positions of the State

Governments, it will be very difficult for them to finance the excess

beneficiaries leading to exclusion of some of the deserving beneficiaries

from getting benefits from various schemes.24

23T.S. Sankaran, “The Unorganised Workers’ Social Security Act, 2008- A Critique” published in Lawyers
Magazine on Monday 16 February 2009.
24Babu Pottaveettil Remesh, “Extending social protection for unorganized sector workers in India: One
step forward, two steps backward?” Paper presented at 6th International Policy and Research Conference
on Social Security Luxembourg.
 310

Moreover, the very implementation of welfare and social security

schemes for the millions of exploited working class would depend upon the

sweet will of the Central and State Governments. There is no time bound

frame work for die Central and State Governments to formulate various

social security schemes as specified in the Act. The mechanism pertaining to

the registration of a worker and entitlement to the benefits would depend

upon the formulation of a specific social security scheme which is a

contingent aspect under the legislation. Even the basic issue of delivery of

the social security benefits to the deserving worker is vaguely designed.

The Act does not provide for a grievance redressal mechanism. The

fairness and effectiveness of the implementation of the Act greatly depends

on the availability of a well-designed and functional grievance redressal

mechanism through which workers have recourse to a method for voicing

their complaints about violations. This inherent structural gap and

inadequacy make the Act ineffective in providing social security benefits.26

Notwithstanding the perceived shortcomings of the Act, it is widely

acknowledged that the enactment of such an Act can be seen as one of the

25 Supra note 5 at 54-55.

26John, J. “Social Security Act: The Great Indian Tamasha on Unorganised Sector Workers, ” Cover
Story, Labour File, Vol.6, No.6. December 2008.
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pioneering initiatives from the Government in the direction of providing

social security benefits to the unorganised sector workers. It is hoped that the

Act will also enable the unorganised workers to organise around the Act,

which will give them voice and will help them enhancing their bargaining

power.

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

that can cover not only social security but also wages, rights, job security

and the conditions of employment.27

27V Shankar with inputs from B Sivaraman, “Unorganised Workers ’ Social Security Act 2008- A Beginning
for Bigger Struggles!" article published in “Liberation” Feb 2009.