A Project Of

Labour Law On

UNORGANISED WORKERS' SOCIAL SECURITY ACT, 2008

Submitted to:

Mrs. Balwinder Kaur

Submitted by:

Ankita Agrawal

B.A.LL.B.(Hons.)

Semester V, Section A

Roll No. 29

Submitted on:

24th August 2015

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

DECLARATION

I hereby declare that the project work entitled “Unorganised Workers' Social Security Act, 2008 ”

submitted to HNLU, Raipur, is record of an original work done by me under the able guidance of

Mrs. Balwinder Kaur, Faculty (Labour Law), HNLU, Raipur.

ANKITA AGRAWAL

ROLL NO. 29

SEM-V

2

ACKNOWLEDGEMENTS

With a deep sense of gratitude, I acknowledge the help of all those people who have made the

completion of this project possible. I would like to thank my teacher Mrs. Balwinder Kaur for

her help and guidance and also for putting her faith on me by giving me such a topic to work on.

Mam, thanks for the opportunity which helped me grow.

My gratitude also goes out to the staff and administration of HNLU for the infrastructure in the

form of our library and IT Lab that was a source of great help for the completion of this project.

Last but not least, I would like to thank my family and all my friends who helped me do this

project by sharing their ideas when we discussed together.

Ankita Agrawal

Semester V

Section A

Roll No. 29

3

CONTENTS

DECLARATION

ACKNOWLEDGEMENTS

1. INTRODUCTION……………………………………………………………...………...….5

1.1. A CONTEXTUAL OUTLINE…………………………………………………………5

1.2. OBJECTIVES OF THE STUDY………………………………………………………6

1.3. METHODOLOGY AND DATABASE…………………………….………………….6

1.4. ORGANISATION OF THE STUDY………………………………………………….6

2. PURPOSE OF THE ACT …………...……………..…………………………………….....7

3. AN OVERVIEW OF THE ACT …………………………………………………………..7

4. KEY FEATURES OF THE ACT ………………………………………………...………10

5. MAJOR LIMITATIONS OF THE ACT …………………………………...…………….12

6. IMPLEMENTATION ISSUES: THE FAILURE FRONT……………………………....15

7. PROPOSED AMENDMENTS IN THE ACT…………………………………………….16

8. CONCLUSION……………………………………………………………………..………21

9. REFERENCES…………………………………………………………………………..…22

[1] INTRODUCTION

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[1.1] A CONTEXTUAL OUTLINE

Profit in a business is perceived to be directly proportional to the extent of exploitation of labour.

Labour is classified into different segments as unorganised and organised, wage earners and self-

employed, skilled, semi-skilled and unskilled and so on, depending upon the nature, period, and

place of work. Stunningly, the labour laws of the country only covered workers of organised

sector, who form only 8 % of the total labour force. Informal sector or unorganised sector in

India is broadly characterized as consisting of units engaged in the production of goods and

services with the primary objectives of generating employment and incomes to the persons

concern. In India, almost 92% of the labour comes under unorganised sector. Dearth of

regulations and absence of Legislation purports the connivance of the government towards

barbarous and roughshod (of course even Inhuman, at times) treatment of these labourers by the

employees. They are not provided with any security against working conditions including safety,

maximum hour of work and job security.

To protect the rights of this segment of workers, the first of its type; Unorganized Workers’

Social Security Act, 2008 was passed by the parliament. The preamble of the Act reads as: “An

Act to provide for the social security and welfare of unorganised workers and for other matters

connected therewith or incidental thereto.”

Unorganized Workers’ Social Security Act, 2008 is the beginning in the direction of protecting

the rights of unorganised workers in India but numerous implementation issues, inherent in the

very structure of the Act, barricades in its well functioning. Being among ratifying countries of

UDHR and International Covenant on Civil and Political Rights, the social security of

unorganised workers should be considered as their basic human right in India and the country

must adhere to protect such rights.

The Act is claimed to cover six crore unorganized workers, and in turn their family members of

30 crore people.6 The expectations are high but the objective still seems to be far-flung. This

paper analyses the provisions of the Act and also proposes amendments, wherever it is felt

necessary.

[1.2] OBJECTIVES OF THE STUDY

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To understand the nature and purpose of the Unorganised Workers' Social Security Act,

2008.

To study the different provisions of the Act.

To focus on the major limitations of the Act.

To suggest certain amendments in the Act to make it more relevant and meaningful.

[1.3] METHODOLOGY AND DATABASE

The present study is a doctrinal and descriptive study based on the critical review of both

primary & secondary sources. Secondary & Electronic resources have been largely used to

gather information & data about the topic. Books & other references have been primarily helpful

in giving this project a firm structure. Websites, dictionaries & articles have also been referred.

Footnotes have been provided wherever needed, to acknowledge the sources.

[1.4] ORGANISATION OF THE STUDY

The project is divided into 6 major sections. They are:

1. Purpose of the Act: This section explains the purpose and object of enacting the

Unorganised Workers' Social Security Act, 2008.

2. An overview of the act: This section deals with the different provisions of the Act.

3. Key Features of the Act: this sections deals with the framework for Social Security

Schemes, Creation of State and National Social Security Advisory Boards, and

Registration and Smart Cards for Unorganised Sector Workers.

4. Major limitations of the act: This section highlights the major loopholes in the Act.

5. Implementation issues - the failure front: This sections deals with the problems in the

implementation of the Act in particular.

6. Proposed Amendments in the Act: This section deals with the amendments proposed by

the National Convention on Social Security for Unorganised Workers in the Act.

7. Conclusion: This section concludes the project work.

8. References: This section underlines the different references used to complete this project.

[2] PURPOSE OF THE ACT

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The Unorganised Workers' Social Security Act 2008 of the Parliament of India is enacted to

provide for the social security and welfare of the unorganised workers (meaning home-based

workers, self-employed workers or daily-wage workers) and for other matters connected

therewith or incidental thereto.1

[3] AN OVERVIEW OF THE ACT

An Act of 33 of the year 2008 was enacted by the Parliament of India with the short title as ‘the

Unorganised Sector Workers’ Social Security Act, 2008’. This Central Government Act is

provided with the purpose and object of providing social security and welfare of the unorganized

workers. The legislation was assented by the President of India on 30th day of December 2008

and the provisions of this Act were extended to the whole of Indian territories.

The provisions of the Act are divided into six chapters containing several provisions, and the first

Chapter therein makes preliminary provisions including short titling, extension and

commencement of the Act. And also the same Chapter also provides for certain important

definitions of various terms used under the provisions of the Act, including the one important

term ‘Unorganised worker’2 which is being used under the long title also, which here means a

worker working home based, as self employed or wage worker in the unorganized sector and

also the term including the workers from the organised sector, who are taken away from being

covered under the provisions of any of the enactments enumerated under the Second Schedule

annexed to this Act.

The Chapter II of the Act makes provisions for social security benefits which can be seen as the

main purpose of the Act. Section 3 of the Act provides for making of welfare scheme by the

Central Government for the unorganized worker which should deal with the matters provided

under the several clauses of this provision, such as covering life and disability, matter of

providing benefits such as maternity and health benefits, old age protection and all other benefit

so determined by the Central Government and all other matter provided over there. Under the

same chapter, the provisions of section 4 of the Act provides for issuing funds by the Central

Government for the Scheme which is being notified by it under the previous provision. Entire

1 Unorganized Workers’ Social Security Act, 2008.2 Section 2(m), Unorganized Workers’ Social Security Act, 2008.

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funding is required to be made by the Central Government or in case of partly funding by the

State Government then remaining part to be funded by the Central Government or even in case it

is partly funded through collected contributions from the beneficiaries of the Scheme or

employers thereof then remaining part to be funded by the State and also by the Central

Government.3 The Central Government is also required to notify the scheme and while doing so,

under the same notification, the Central Government is required to necessarily provide for

matters significant for proper and efficient implementation of the said Scheme. And certain

matters regarding such implementation are given as includes, scope of the Scheme, beneficiaries

and resources thereof, implementing agency(s) and also for relevant matter including grievances

redressal.

The next Chapter being third one, dealing with the provisions for constitution of Board for the

unrecognised workers. The chapter contains only one section i.e. Section 5 of the Act, making

provisions as to constitution of the aforesaid Board. The Central Government is empowered to

constitute such Board with the name and title as ‘National Social Security Board’ by notifying

the same.4 Such Board is required to deal with the powers and functions provided under this

Act.5 So far as the composition of the said Board is concerned, the Union Minister for Labour

and Employment should be the Chairperson, ex officio, the Director General (Labour Welfare)

should be Member-Secretary, ex officio and besides both of them there should be other 34

Members being nominated by the Central Government from respective provided sectors.6 All

such members including Chairperson must be from the persons having eminence in the labour

welfare, management, etc. fields of labour.7 And the Board is empowered to provide for matters

like number of nominated Members, their term of office, other conditions as to their services,

etc. Such Board’s term is given as of 3 years8 and for its meetings the Board is required to meet

at least 3 times in the year at the prescribed place.9 As to allowances of the Members for

attending meetings also the Board can fix the same. And the said section 5 itself provides for

several functions of the Board including making of recommendations to the Central Government

3 Section 4, Unorganized Workers’ Social Security Act, 2008.4 Section 5(1), Unorganized Workers’ Social Security Act, 2008.5 Ibid.6 Section 5(2), Unorganized Workers’ Social Security Act, 2008.7 Section 5(3), Unorganized Workers’ Social Security Act, 2008.8 Section 5(5), Unorganized Workers’ Social Security Act, 2008.9 Section 5(6), Unorganized Workers’ Social Security Act, 2008.

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for framing suitable schemes for different sections of unorganised workers and also other

provided functions.10

Further, the Act makes provisions for constitution of similar security Board for the States, as per

its Chapter IV, where in section 6 of the Act empowers the State Government of every State to

constitute such Boards with the name and title as for say, Maharashtra State Social Security

Board. For composition, the Minister of Labour and Employment of the concerned State will be

Chairperson, ex officio, the Principal Secretary or Secretary (Labour) will be Member-Secretary,

ex officio; and other 28 members whose nomination to be made by the State Government from

different sectors.11 Other provisions under the said section provides for more or less similar

issues as are involve in case of the National Board as aforesaid. Moreover, the State Government

issued scheme for such unorganised worker, is required to be funded in the manner as aforesaid

in case of the Central Government’s Scheme, only funding from the Central Government is not

required in this case, however, the States can seek financial assistance from the Centre, in respect

thereto.12 Moreover, the Act requires to keep the records under this Act by the District

Administration.13 Also, the State Governments are required to setup the Workers’ facilitation

centres for informing workers about the social security schemes available for unorganised

workers, assisting them to have registered with District Administration and facilitating their

enrolments in the Schemes.14

The Next chapter of the Act dealing with the provisions effecting registration of the unorganised

worker, wherein section 10, provides for eligibility conditions for such registration.  The

provisions further speaks of making an application to the District Administration for registration

and on such application the registration should be effected and such registered worker should be

issued an identity card which is also treated as ‘smart card’ carrying a unique identification

number.15

And finally, the Act makes miscellaneous provisions, including the Central Government’s

powers as to issuing directions under this Act, and making rules for the purpose of this Act and

10 Section 5(8), Unorganized Workers’ Social Security Act, 2008.11 Section 6(2), Unorganized Workers’ Social Security Act, 2008.12 Section 7, Unorganized Workers’ Social Security Act, 2008.13 Section 8, Unorganized Workers’ Social Security Act, 2008.14 Section 9, Unorganized Workers’ Social Security Act, 2008.15 Section 10(3), Unorganized Workers’ Social Security Act, 2008.

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on matters enlisted under section 12. Similarly, the State Government is also empowered to make

rules under this Act.16 Besides other provisions under this chapter, the Section 16 provides for

saving clause, wherein the provisions of any corresponding law of the States, if having more

beneficial effect, then the provisions of this Act should not affect them.

[4] KEY FEATURES OF THE ACT

[4.1] ENABLING FRAMEWORK FOR SOCIAL SECURITY SCHEMES

[4.1.1] The Act enables the central government to formulate welfare schemes for unorganised

sector workers regarding (i) life and disability cover; (ii) health and maternity benefits; (iii) old

age protection; and (iv) any other benefit decided by the government. Eleven existing social

security schemes for the unorganised sector workers are listed in this Bill.17 The central

government may modify this list by notification. The Bill also enables state governments to

formulate welfare schemes related to (i) the provident fund; (ii) employment injury benefits; (iii)

housing; (iv) educational schemes for children; (v) skill upgradation of workers; (vi) funeral

assistance; and (vii) old age homes.

[4.1.2] Any notified scheme may be wholly funded by the central or state government or both,

and could require contributions by the beneficiaries of the schemes or their employers.

[4.1.3] Welfare schemes introduced under this Bill will not affect existing welfare schemes of

any state that may be more beneficial to unorganized sector workers.

[4.2] CREATION OF STATE AND NATIONAL SOCIAL SECURITY ADVISORY BOARDS

[4.2.1] The Act establishes a national level Social Security Advisory Board to: (a) recommend

‘suitable’ welfare schemes for different sections of unorganised sector workers; (b) advise the

central government on the implementation of this Bill; (c) monitor relevant centrally

administered welfare schemes; and (d) review state level record keeping functions and

16 Section 14, Unorganized Workers’ Social Security Act, 2008.17 (a) National Old Age Pension Scheme; (b) National Family Benefit Scheme; (c) National Maternity Benefit Scheme; (d) Mahatma Gandhi Bunkar Bima Yojana; (e) Health Insurance Scheme for Handloom Weaver; (f) Scheme for pension to Master Crafts persons; (g) Group Accident Insurance Scheme for Active fishermen; (h) Saving-cum-Relief for the fishermen; (i) Janshree Bima Yojana; (j) Aaam Admi Bima Yojana; (k) Swasthya Bima Yojana.

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expenditures under various schemes. The national board will consist of an appointed chairperson,

a member secretary, and 31 nominated members.18

[4.2.2] The Act also establishes state level Social Security Advisory Boards. The state boards

will have similar functions as the central board at the relevant state and district levels. Each state

board will consist of an appointed chairperson, a member secretary, and 26 nominated

members.19

[4.3] REGISTRATION AND SMART CARDS FOR UNORGANISED SECTOR WORKERS

[4.3.1] Unorganized workers must apply for registration with the district administration. An

individual must be 14 years or older and should declare that he is an unorganised sector worker.

Upon registration, the district administration will issue a portable smart card carrying a unique

identification number.20

[4.3.2] If a scheme requires contribution from the registered unorganised worker, he will be

eligible for social security benefits under that scheme only if he has made the required

contribution.

[5] MAJOR LIMITATIONS OF THE ACT

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. 

[5.1] NO SOCIAL SECURITY

The name itself is a misnomer because the Act does not provide any social security (except mere

registration) to any section of workers. 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 unorganised workers,

who not only constitute one third of the entire population but contribute two third of our national

income.

[5.2] AMBIGUITY IN DEFINITION

18 Section 5, Unorganized Workers’ Social Security Act, 2008.19 Section 6, Unorganized Workers’ Social Security Act, 2008.20 Section 10, Unorganized Workers’ Social Security Act, 2008.

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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.

[5.3] NEITHER REGULATION NOR SOCIAL SECURITY

The Act 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 categorical promise of generating

resources. 

[5.4] SOCIAL SECURITY: A MIRAGE

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

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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. 

[5.5] 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.

The Act is too vague on the point from where will one get the requisite funds for the operation of

those ‘notional’ schemes. 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 ‘employers’, an unknown quantity. 

[5.6] THE HOAX OF BOARDS

There is a lot of hue and cry over the formation of social security boards. 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

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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.

[5.7] 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 bill

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

Bill. So, nearly 50 million workers already stand excluded from social security by this

“inclusive” government.

[6] IMPLEMENTATION ISSUES: THE FAILURE FRONT

The prime issue in implementation of the Act is that there is no Justiciable Social Security given

to unorganised workers. To make a right justiciable, it must be defined, although the stated

objective of the Act is to provide social security and welfare to the unorganised workers, the Act

does not confer any defined right to social security for them. In the Act, social security schemes

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are not included as part of the body of the Act and are given in a schedule. This essentially

means that schemes can be changed at any point of time by a notification, and not after

discussion in the Parliament, thereby denying the workers the benefit of consistency and

justiciability. Also, the Act does not provide any additional and new welfare scheme rather just

mentions 10 existing welfare legislations as the applicable schemes under the Act.21

The fairness and effectiveness of the implementation of the Act greatly depends on the

availability of a functional institution of grievance redressal mechanism, through which workers

have recourse to a method for registering their complaints about violations. Thus, a new Chapter

needs to be added on Dispute Settlement requiring the government to formulate a model Dispute

Settlement Mechanism for unorganised workers of each occupations involving local

administration, employers, police and other authorities for resolving disputes and grievances.

The mechanism should be empowered for arbitrating and also for punishing faulty employers.

The district administration, the state boards established under the Act22 and the National Board

should also be empowered to entertain and enforce complaints from aggrieved workers.

[7] PROPOSED AMENDMENTS IN THE ACT

The National Convention on Social Security for Unorganised Workers have proposed a number

of amendments to overcome the deficiencies in the Unorganised Workers Social Security Act,

2008 and to make it relevant and meaningful to about 40 crore unorganised workers in India.23

[7.1] DEFINITIONS NOT INCLUSIVE

Section 2(l) needs to be amended deleting coverage of enterprises employing less than 10

workers.

PROPOSED AMENDMENT

21 Section 3 (2).22 Section 6, Unorganized Workers’ Social Security Act, 2008.23 Suggested amendments to the unorganised workers’ social security Act, 2008, National Convention on social security for unorganised sector, January 8-10, 2010.

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Section 2 (l)- “ unorganized 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 does not fall under the definition of factories in Factories

Act, 1948.24

[7.2] SOCIAL SECURITY NOT DEFINED

The Act does not give any clarity on what the State means by 'Social Security'. Chapter II

explains the possible schemes of social security. Social security cannot be reduced to schemes

but should be articulated from the perspective of rights derived from constitutional rights and

principles.

PROPOSED AMENDMENT

An additional sub section may be added as section 2(i) unless otherwise provided in this Act or

schemes made there under “social security” means measures by the government in collaboration

with employer, worker or otherwise, designed to meet the contingencies in life of a worker,

namely old age pension, unemployment benefits, maternity benefits, livelihood loss

compensation, accident and medical care, provident fund etc.25

[7.3] DEFINITION EXCLUDES WORKERS DEPENDENT ON LIVELIHOOD SYSTEMS

The definitions exclude workers dependent on livelihood systems - like forest workers and

fishworkers, who could not be brought within the ambit of 'home-based worker', 'self-employed

worker', and 'wage worker'. For instance, most of the traditional fishworkers in India follows a

sharing system, in which the catch is shared among the boat owner and the crew.

PROPOSED AMENDMENT: SECTION 2 (M)

Section 2 (m) reads as “unorganised worker” means a home based worker, self employed worker

or a wage worker in the unorganized sector and included a worker in the organized sector who is

not covered by any of the Acts mentioned in Schedule II to this Act; and

24 Ibid.25 Suggested amendments to the unorganised workers’ social security Act, 2008, National Convention on social security for unorganised sector, January 8-10, 2010.

16

In section 2(m) following words should be added after the words, who is not covered… and

includes workers dependent on traditional livelihood systems as specified in the schedule.

[7.4] DEFINITION EXCLUDES UNPAID WOMEN WORKERS AND UNPAID FAMILY MEMBERS

In this Act, the unpaid women workers are not covered as they do not fall within the definitions

of ‘home-based worker’, ‘self-employed worker’, or ‘wage worker’. In all these definitions,

wage or monthly earnings are a precondition for being considered as ‘unorganised worker’. The

definition of ‘self-employed worker’ should include unpaid women workers, unpaid family

members engaged in the work done by the family for livelihood, and workers paid in kind.

PROPOSED AMENDMENT: SECTION 2 (K)

Section 2 (k) read as “Self-employed worker’ means any person who is not employed by an

employer, but engages himself or herself in any occupation in the unorganised sector subject to a

monthly earning of an amount as may be notified by the central government or the state

government from time to time or holds cultivable land subject to such ceiling as may be notified

by the state government (following words should be added here) and also includes unpaid

women worker and unpaid family member engaged in household or other family occupations.

[7.5] NO JUSTICIABLE SOCIAL SECURITY TO UNORGANISED WORKERS

A justiciable right is one in which the aggrieved individual can seek remedy in a court of law. To

make a right justiciable, it should be defined and be available for the individual for a sufficiently

long period of time. Although the stated objective of the Act is to provide social security and

welfare to the unorganised workers, the Act does not confer any defined right to social security

for them. In the Act, social security schemes are not included as part of the body of the Act and

are given in a schedule. This essentially means that schemes can be changed at any point of time

by a notification, and not after discussion in the Parliament, thereby denying the workers the

benefit of consistency and justiciability.26

PROPOSED AMENDMENT

Section 3.(1) be modified to begin with

26 Ibid.

17

The Central Government may, by notification in the Official Gazette, frame schemes to be called

the Unorganised Workers Social Security Fund Schemes for the establishment of Social Security

fund under this Act for unorganized workers as defined in this Act, to whom the said Schemes

shall apply and there shall be established, as soon as may be after the framing of the Schemes, a

Fund in accordance with the provisions of this Act and the Schemes on matters relating to-

Section 3(2) may be modified as follows:

The schemes included in the Schedule I to this Act be suitably amended to include all

unorganized workers as defined in the Act and by notification in the Official Gazette, be made

social security schemes under this Act.

[7.6] SOCIAL SECURITY NOT UNIVERSAL AND, THEREFORE, CONSTITUTIONALLY INVALID

Most of the schemes are available only for BPL workers. A person earning more than Rs.12 per

day in a village is not considered BPL as per the current BPL norms, which leave a large

proportion of the deserving poor outside the safety net. The Central Vigilance Commissioner

(CVC) has, therefore, recommended enhancing the number of BPL families. By this restrictive

clause in the schemes, more than 90 per cent of the unorganised workers, the contingencies of

whose lives have pushed them into poverty and increased vulnerabilities, are, in effect, denied

the benefits of the schemes mentioned in the schedule of the Act.

In the Schemes given in the Schedule I of the Act, unorganised workers, except the BPL

workers, have been generally excluded from enjoying the benefits of the schemes, and, therefore,

from the benefits of the Act. This generalised exclusion is constitutionally invalid. It is in

violation of Article 14 of the Constitution, which does not permit generalised discrimination.

PROPOSED AMENDMENT

The act should specifically provide:

18

Section 3(2) may be modified as follows: The schemes included in the Schedule I to this Act be

suitably amended to include all unorganised workers as defined in the Act and by notification in

the Official Gazette, be made social security schemes under this Act.27

[7.7] NO SOCIAL SECURITY FUND

The absence of a financial memorandum to the 2008 Act as well as the non-allocation of funds

for social security for unorganised workers in 2008–09 and 2009–10 budgets casts doubts on the

genuineness of government’s intentions in delivering social security rights to the unorganised

workers in India. The Act should have provided for the creation of a Social Security Fund, and a

financial memorandum for budgetary allocation for the Fund.

PROPOSED AMENDMENT

We suggest for adding a clause under Section 4(1) of the Act as under.

Section 4(1)A: There shall be created a ‘National Social Security Fund’ and all contributions,

grants, donations and other proceeds shall be deposited with the ‘National Social Security Fund’.

The Government of India shall make budgetary provisions for transferring budget allocation for

social security for unorganised workers to this Fund subject to minimum of five percent of the

total budget.

[7.8] ABSENCE OF GRIEVANCE REDRESSAL MACHINERY

The fairness and effectiveness of the implementation of the Act greatly depends on the

availability of a functional institution of grievance redressal mechanism, through which workers

have recourse to a method for voicing their complaints about violations.

PROPOSED AMENDMENT

A new Chapter be added on Dispute Settlement:

Chapter VII(1): The government should formulate a model Dispute Settlement Mechanism for

unorganised workers of each occupations involving local administration, employers, police and

other authorities for resolving disputes and grievances relating to employment, livelihood,

27 Suggested amendments to the unorganised workers’ social security Act, 2008, National Convention on social security for unorganised sector, January 8-10, 2010.

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encroachment, displacement, land rights, discrimination, state actions etc with powers to

grievance redressal authority to enforce attendance, take evidence, inspections and

investigations, seize records and such other powers as necessary to resolve dispute or differences

amicably between parties and if necessary to refer the dispute for arbitration.

[7.9] INCONSISTENCIES IN THE CONSTITUTION AND POWERS OF THE BOARD

The Act is for unorganized workers, but the representation of workers is from unorganized

sector.

The Social Security Boards have only advisory role according to the Act. The Board will be

effective only if they are given powers to administer and enforce.

PROPOSED AMENDMENTS

The word, ‘sector’ to be deleted from Section 5(2)(c)(i) and Section 5(2)(c)(ii).

Replace the word, ‘monitor’ in Section 5(8)(c) by the words ‘administer and enforce’ to read

Section 5(8)(c): administer and enforce such social security schemes for unorganized workers as

are as administered by the Central Government.

Section 6(8)(c): administer and enforce such social security schemes for unorganized workers as

are as administered by the State Government.

[7.10] REGISTRATION OF EMPLOYER

The Act does not bestow any responsibility on the employer, wherever, an employer-employee

relationship exists. The Act should provide for the registration of an employer of an unorganised

worker, as the case may be.28

[8] CONCLUSION

28 Suggested amendments to the unorganised workers’ social security Act, 2008, National Convention on social security for unorganised sector, January 8-10, 2010.

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The Act as enacted is totally inadequate. Government ignored recommendations of all the

workers’ organisations and its own commissions. The law has failed to indicate clearly the extent

of funds that must be earmarked for providing social security and welfare. In all, the Act suffers

from a serious lack of legislative policy and intent.

The Unorganised sector being so diverse; the major challenge is to extend social security to 300

million workers covering all States and all groups of workers. As India has not implemented

protective social security schemes on a large scale, more debate and discussions are needed for

better implementation. The Unorganized Workers’ Social Security Act, 2008 can be considered

as a welcome legislation from the government where the function of registration of workers, the

‘biggest’ advantage of the entire Act. But, the Act fails measurably on the implementation front

and requires reconsideration in this regard.

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[9] REFERENCES

BOOKS

MISHRA S.N., AN INTRODUCTION TO LABOUR & INDUSTRIAL LAWS (7th

Edition, Allahabad Law Agency, 2010).

PILLAI K.M., LABOUR AND INDUSTRIAL LAWS (14th Edition, Allahabad Law

Agency, 2012).

SINGH AVTAR, INTRODUCTION TO LABOUR AND INDUSTRIAL LAW (2nd

Edition, Lexis Nexis, 2008).

DR. V.G.GOSWAMI, LABOUR AND INDUSTRIAL LAWS (9th Edition, Central Law

Agency, 2011).

MALIK P.L., HANDBOOK OF LABOUR AND INDUSTRIAL LAWS (14th Edition,

Eastern Book Co., 2013).

SHARMA A.M., ASPECTS OF LABOUR WELFARE AND SOCIAL SECURITY, (7TH

Edition, Himalaya Publishing House, New Delhi, 2009).

BHATNAGAR DEEPAK, LABOUR WELFARE AND SOCIAL SECURITY

LEGISLATION IN INDIA (24th Edition, Deep & Deep Publication, New Delhi, 2012)

GUPTA N.H., SOCIAL SECURITY LEGISLATION FOR LABOUR IN INDIA (12 th

Edition, Deep & Deep Publication, 2010).

PURI S.K., INTRODUCTION TO THE LABOUR AND INDUSTRIAL LAWS, (15th

Edition, Allahabad Law Agency, 2011).

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WEBSITES

http://www.ilo.org/dyn/travail/docs/686/Unorganised%20Workers%20Social

%20Security%20Act%202008.pdf.

http://labour.gov.in/upload/uploadfiles/files/ActsandRules/SocitySecurity/

TheUnorganisedWoekersSocialSecurityAct2008.pdf.

http://www.epw.in/commentary/critique-unorganised-workers-social-security-act.html.

http://www.prsindia.org/billtrack/the-unorganised-sector-workers-social-security-bill-

2007-434/

http://www.advocatekhoj.com/library/bareacts/unorganised/index.php?

Title=Unorganised%20Workers%20Social%20Security%20Act,%202008.

http://www.thealternative.in/society/review-of-social-security-for-unorganized-workers-

in-india/.

http://www.sacw.net/article658.html.

http://www.cec-india.org/archs/SSN-2010--Suggested-Amendments-to-the-USSW-Act-

2008.pdf

http://articles.economictimes.indiatimes.com/2012-12-19/news/35912487_1_age-

protection-social-security-health-and-maternity-benefits.

http://india.gov.in/topics/labour-employment/unorganized-sector-workers.

http://foundation.ifmr.co.in/wp-content/uploads/2014/05/CSS-Report.pdf

http://164.100.47.132/LssNew/psearch/QResult16.aspx?qref=5621

http://www.wunrn.com/news/2010/02_10/02_22_10/022210_india2.htm.

http://planningcommission.gov.in/aboutus/committee/wrkgrp12/wg_social_security.pdf.

http://www.lawzonline.com/bareacts/unorganised-workers-social-security-act/

unorganised-workers-social-security-act.html.

http://lawyerslaw.org/the-unorganised-sector-workers-social-security-act-2008/

http://www.businessnonstop.in/sme-buzz/unorganised-workers-social-security-act-2008-

supporting-workers-in-unorganised-enterprises.html

http://www.academia.edu/11955096/Unorganised_Workers_Social_Security_Schemes

http://www.comply4hr.com/showact.asp?act=UWSCA

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