Open Access Research Article
ADAPTING SOCIAL SECURITY TO 21ST CENTURY INDIAN ECONOMY: A CASE FOR UNIVERSALISATION
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Article Details
ADAPTING SOCIAL SECURITY TO 21ST
CENTURY INDIAN ECONOMY: A CASE FOR UNIVERSALISATION
AUTHORED BY - ASHISH
VERMA, (ASSISTANT PROF.)
Government Law College, Ajmer
(Rajasthan)–305001
ABSTRACT
Proliferation
of social security has been one of the integral features of the modern
industrialised world. In India too, social security has not only been enshrined
as a constitutional mandate, but has also been embodied in a wide variety of
legislation. Yet, multiplicity of legislation has created errors of
harmonisation and engendered a regime riddled with variance in legal standards
and rights of workers. Along with these inconsistencies and gaps, the
centrality of the status of employment in extant regimes has excluded a large
number of workers who fall through the crack. Such exclusion has been
exacerbated by the occupation-centricity of these schemes that is ill-suited to
the ongoing transformation in the labour economy and demographic changes. In view
of these shortcomings, a shift to universal citizenship-based social security
schemes is advocated. Delinking social security from occupation and predicating
it on citizenship would extend these schemes to informal atypical workers and
persons out of work and thereby make the constitutional right of social
security a substantive entitlement for our citizenry.
Keywords: Labour Laws, International Labour
Organisation, Social Justice, Social Security
Introduction
“The State is an association of citizens
which exists for the sake of their general well-being, it is a proper function
of the State to promote social security.”[1]
Proliferation and
institutionalisation of social security has been one of the integral features
of the modern industrialised world. Dislocation and large-scale migration
associated with industrial capitalism and consequent breakdown of kinship,
communities and traditional networks of protection against catastrophic risks
necessitated the creation of public assistance programmes to fill this void.[2] There had
been public assistance schemes and reference to social security in
pre-industrial era too. Elizabethan Poor Law of United Kingdom was a prominent
example of pre-industrial state-sanctioned system of relief for the poor.[3] Similarly,
the first time the nomenclature of ‘social security’ was prominently used was
in 1819 by Simon Bolivar in his speech to mark the independence of Venezuela
when he remarked that “The most perfect system of government is one that
produces the greatest amount of happiness possible, greatest amount of social
security and greater amount of political stability.”[4]
Yet, it took the catastrophic risks of early industrial capitalism that led
several European states to introduce organised state-led welfare systems in the
late 19th century and the early 20th centuries, most
notably with Germany introducing welfare payments in 1883.[5]These
social security schemes were also a part of the wider spectrum of policy that
accompanied the emergence of modern welfare states.[6]
With the introduction and
entrenchment of such public welfare schemes across the industrialised world,
‘social security’ acquired a certain nomenclatural and conceptual coherence.
The concept of social security was referred to in the proclamations of the
Italian Labour Party and the Soviet decrees.
It found legislative recognition through the Social Security Act of 1935
in the United States. But beyond the nomenclature, the concept acquired concrete
content through the Lord Beveridge Report on Social Insurance in the United
Kingdom[7]. It
defined social security to denote:
“the securing of an income to take
the place of earnings when they are interrupted by unemployment, sickness or
accident, to provide for retirement through age, to provide against loss of
support by the death of another person, and to meet exceptional expenditures,
such as those connected with birth, death and marriage.”[8]
The Beveridge Report was followed by
the International Labour Organisation (ILO) Report on Approaches to Social
Security which provided substantive definitions of the concept wherein it
stated:
“Social security is the security that
society furnishes, through appropriate organisation, against certain risks to
which its members are exposed. These risks are essentially contingencies
against which the individual of small means cannot effectively provide by his
ownability or foresight alone or even in private combination with his fellows.
It is characteristic of these contingencies that they imperil the ability of
the working man to support himself and his dependants in health and decency.”[9]
Thus, in its core sense, as defined
by these two World-War-era documents, social security refers to public welfare
programmes that aim to provide security to persons against risks such as unemployment,
sickness, accident, etc., which inhibit a person’s ability to ensure
subsistence for himself and his dependents. But as the journey from the
Beveridge Report to the ILO Report indicates, social security evolved from its
narrow conceptual origin of income protection to a more comprehensive security.
Indeed, this is reflected in a variety of instruments ranging from social
insurance to social allowances that have been introduced across jurisdictions.
Indeed, the ILO Conve India has been no exception to the global proliferation
of legislative regimes on social security. Social security has been
enshrined as a constitutional mandate through its inclusion as one of the
Directive Principles of State Policies.[10]
A wide variety of social security schemes have been introduced through
different legislations at both central and state levels. Some of these
legislations are sector-specific whereas others are aimed at providing
comprehensive social security protection across sectors. The most prominent
social security legislation at the central level include the Employees’ State
Insurance Act, 1948, a law on social insurance, the Employees’ Provident Funds
and Miscellaneous Provisions Act, 1952, a law on contributory savings, the
Employees’ Compensation, 1923, a law on employment injury compensation, and
Payment of Gratuity Act, 1972, a law on gratuitous payment by the employer as a
form of a retirement benefit. In addition, there are sector-specific
instruments like the Unorganised Workers Social Security Act, 2008 and the
Beedi Workers Welfare Fund Act, 1976 that seek to create schemes and mechanisms
for workers of particular sectors or industries. These central laws have been
supplemented by an array of social welfare legislations for workers at the
state level.[11] These
legislations have together set up an impressive regime of employment-based
social security schemes for a vast number of Indian workers.
Yet, as this paper would argue, the
existing legislative and administrative regime has evolved with certain
fundamental flaws that undermine the core constitutional mandate of ensuring
social security for workers. Through a review of the key legislative
provisions, the paper argues that multiplicity of legislation has created
errors of harmonisation and engendered a regime riddled with variance in legal
standards and rights of workers, thus ensuring that a large number of workers
fall through the crack and are left without meaningful social security
protection.
Further, the paper critiques the
centrality of status of employment in the existing social security regimes and
makes a case for universal social security based on citizenship. The paper
seeks to present a normative argument in favour of a universal social security
based on constitutional and international human rights law. However, in
addition, the paper shall essay a policy-critique of employment-based social
security on the basis of the changing character of the labour economy and
demography.
Plurality of Legislation and the Crisis of
Harmonisation
As indicated in the
preceding section, a
diverse number of social security schemes have been introduced through
different legislations both at the central and state levels in India. This
plurality of social security schemes has undoubtedly enabled more extensive
coverage for workers. For example, state-level schemes of the Kerala Government
for fishermen and agricultural worker have extended social security beyond the
ambit of the central social security legislation.[12]
Even at the central level, sector-specific laws like the Beedi Workers Welfare
Fund Act, 1976 have sought to particularise social security protection to the
specificity of the industry.
However, such plurality of
legislation has created a regime riddled with variance in legal standards,
thereby creating conflicts between different statutory schemes. Different
threshold norms on applicability, different definitions on fundamental terms
such as employee and wages, have raised confusion about the scope of the rights
under these statutes and increased the costs of compliance for workers as well.
Such harmonisation errors are
illustrated by the differences in threshold norms for the Employees’ State
Insurance Act, 1948 (hereinafter, ESIA) and Employees’ Provident Funds and
Miscellaneous Provisions Act, 1952 [EPFMPA]. Section 1(4) of the ESIA states
that the Act shall apply, in the first instance, to all factories and the
Appropriate Government [which could be the Central or the State Government
depending on the nature of the establishment] could extend it to any other
class of establishment. Section 1(3) of
EPFMPA, on the other hand, does not make the Act applicable to all factories
but only to those factories that are engaged in any industry specified in
Schedule I of the Act. Similarly, the numerical thresholds vary between the two
statutes. Section 1(4), read with section 2(12) of the ESIA, suggests that a
factory must have at least ten employees before it can be brought within the
ambit of the Act. In contrast, Section 1(3) of EPFMPA sets a numerical threshold
of twenty or more persons. Further, the power of extending the application of
statutes to other classes of establishments has been left to different
authorities under the two statutes. While the EPFMPA vests this power in the
Central Government, under the ESIA, this power is enjoyed by the State
Governments too. As a result of these incongruities, the same establishment may
be covered under one of these two statutes and not the other. For example, a
factory with fifteen workers may be covered under the ESIA and not under the
EPFMPA. Similarly, in many states, an educational establishment may be covered
under EPFMPA since it has been notified by the Central Government and not
covered by the ESIA due to absence of any notification by the State Government.
These incongruities result in confusion and ambiguity for workers and employees
about the scope of their entitlements and raise the cost of compliance with
social security laws. Further, they also result in the enjoyment of uneven set
of rights by different groups of workers. While these flaws do impose
significant limitations on the utility of the extant schemes, they have been
compounded by the impact of employment-centricity and the changing character of
the labour economy.
The Crisis of Employment-Centricity
The vast number of social security
legislation that operate in India in the field of social security have
primarily been predicated around the status of employment. This has ensured
that a substantial slice of the financing of such security schemes have been
raised through employers’ contributions. For example, both the ESIA and EPFMPA
prescribe contribution by both the employer and the employee as a matter of
general rule. Similarly, the Payment of Gratuity Act, 1972 vests the obligation
to pay gratuity in the employer.[13]However,
the creation of employment-centric schemes has also resulted in many serious
flaws that can potentially undermine the efficacy and viability of social
security in India.
Firstly, centrality of status of employment
for the application of social security schemes such as sickness benefits,
medical benefits as is the case for ESIA in a political economy with a
chronically high unemployment,[14] precludes
a sizeable chunk of the citizenry from the ambit of social security protection.
It must be kept in mind that even a sustained period of high economic growth in
the last two decades has been paralleled by a limited dent in unemployment.16
In fact, the Census data suggests that India’s overall unemployment rate grew
from 6.8 per cent in 2001 to 9.6 per cent in 2011.17 With an
increasing backlog of overall unemployment, the pitfalls of excluding a large
swath of unemployed people from social security are particularly acute as they
impede the realisation of universal social protection of all. Thus, limiting
social security to only employees institutionalises the absence of universal
minimum standards of social protection for all citizens.
The absence of social protection for
all citizens as a result of employment centricity is compounded by the changing
nature of the labour economy and the contractualisation of work which is
increasingly taking workers outside the scope of definition of employment. The
Indian labour market has seen a sharp increase in informalisation of the
workforce in the last few decades. The India Labour and Employment Report 2014
found that the share of contract workers in the organised manufacturing sector
has increased from 13 per cent in 1995 to 34 per cent in 2011.18
Another striking illustration of the growing informalisation of work is found
in the Reports of the National Commission for Enterprises in the Unorganised
Sector, which stated that the entire increase in employment between two rounds
of National Sample Survey in 1999-2000 and 2004-2005 took place in the informal
sector.19 Juxtaposing this growing casualisation of work with the
legal definition of employment lays bare the limits of an employment-centric
model.
Employment has acquired a technical
legal meaning through centuries of evolution in common law and not every worker
fits the requirement.20 Admittedly, the courts have moved away from
the traditional control and supervision test as endorsed in Dharangadhara part of the test of
relationship of employment as indicated in Balwant
Rai Saluja v Air India Ltd.[15] The Apex
Court applied the test of complete administrative control to determine the
existence of a relationship of control. Earlier, the Supreme Court had distinguished
between primary and secondary control in International
Airport Authority v International Air Cargo Workers’ Union[16] and
asserted that primary control is necessary for employment.
If complete administrative control or
primary control is to be seen as an essential feature of employment, a large
section of the informal workers would fall outside the ambit of relationship of
employment. The principal employer exercises very superficial control, if any
at all, over most contract labour and home-based workers. As a result, most
such contract labour, home-based workers and other dependent entrepreneurs may
not fulfil the requirement of complete administrative control. This is one of
the factors that has contributed to only less than 10 per cent of Indian
workforce having social security protection.[17]
Admittedly, both ESIA[18] and
EPFMPA[19] use a
very liberal definition and move away from the common-law test of relationship
of employment. However, judicial emphasis on control as a marker of employment
has often limited the scope of these definitions. This is illustrated by the
recent Supreme Court’s decision in Managing
Director, Hassan Cooperative Milk Producer’s Society Union Limited v Assistant
Regional Director, Employees’ State Insurance Corporation[20] where
workers were held outside the purview of employees as defined by ESIA on
account of lack of supervisory control and ‘consistency of vigil’. Thus, the
shadow of common-law test of supervision and control continues to hang over
these social security statutes as well, excluding a large number of informal
sector workers in the process.
Another consequence of increased
informalisation of work is that most existing schemes, even where applicable,
may be in danger of being rendered ill-suited to workers.[21]Most
extant social security schemes emerged to respond to the challenges of
industrial economy and the quintessential worker, around whom such schemes were
designed, was a wage worker who worked for the same employer over their working
lives.[22] The
current models of contributory social insurance and provident fund schemes
would be ill-suited in a post-industrial economy with labour flexibility,
massive flux in employment and large number of self-employed entrepreneurs
taking the place of wage workers.[23] Frequent
changes in employers, intermittent bouts of unemployment and low wages would
raise the administrative cost of compliance with and minimise the benefits
available under such schemes.[24] These
changes in the labour economy also make continuance of the contributory
principle that informs most social security schemes. The ability to pay
contributions is seriously challenged in an economy characterised with high
unemployment, insecure jobs and low wages.[25]
Further, the centrality of employers’ contribution in extant models needs a
revision in an economy where a self-employed worker is becoming the typical
worker.[26] It is
pertinent to note in this context that the Unorganised Workers Social Security
Act, 2008 does seek to extend social protection to atypical workers,
particularly self-employed workers.[27]
However, the Act does not spell out
any concrete benefit and leaves the scope of entitlement to the executive.[28] As a
result, it fails to guarantee national minimum social security for informal
workers.[29] Not
surprisingly, it remains poorly implemented in most states.30
Employment-based
Social Security, Changes in Labour Economy and Demographic Changes
The preceding section referred to the changes in labour economy and the
challenges posed by them to the continuing effectiveness of social security
programmes. However, such transformation in labour economy, when combined with
demographic changes, can potentially wreck the financial viability of social
security as we know now. As indicated in the previous section, these schemes
were developed in an industrial economy with mass wage employment and single
breadwinner model.[30] But these fundamental assumptions are coming under tremendous strain due
to transformational demographic changes. Reduction in mortality and fertility
and consequent increase in longevity and decrease in growth rates in population
has resulted in fast ageing of the average population in the industrialised
world. According to a United Nations Report, globally the population of older
persons has grown at a rate that is double that of the rate of growth of the
world population.[31] Even among the seniors, the percentage of those above the age of 80
would increase faster than those below the age of 80.[32] Such ageing of the populace creates more burden on social welfare
programmes due to higher spending on pension, healthcare and associated risks
while also reducing the size of working-age persons to fund and support social
security programmes. As a result, the very financial sustenance of many extant
schemes is being threatened by these demographic changes.[33] While India is indeed on the right side of the demographic curve at this
moment and the crisis may not immediately confront it, the same transition is
underway in this country too. Therefore, social security design must anticipate
the likely transformation and cater to it in advance.
The current models of social security schemes are also challenged by
increased female labour participation. At one level, greater participation of
women in the labour market means that social security must extend to personal
support services to cater to the care work earlier done by women in our
patriarchal structure, such as socialised child care and care for the elderly.[34]
At another level, it also implies
that current schemes must recognise the combination of paid work and unpaid
household labour that women have to balance.[35]Consequently,
these schemes must move away from models of continuous service and contribution
as essential features of entitlement to social security since a large number of
working women also spend substantial amount of time out of paid work due to their
care work. An associated phenomenon that calls for the revision of the
single-breadwinner model which informs most of the current schemes is the
increased rate of divorce.[36] With rise
in the number of single-parent families, enhanced protection for child-care and
other familial responsibilities is also required. The European Commission’s
Report on Social Protection found that a divorced woman who took time out for
child-rearing was comparably worseplaced in terms of pension entitlements.[37] This illustrates the need for enhanced
protection for women in cases of divorce in particular and the limitations of
current models in face of feminisation of labour and changes in family
patterns.
Occupation-centric schemes of social
security, with their focus on continuous service and regular contribution by
beneficiaries, do not have the capacity for such innovation and are, therefore,
inherently limited by their design in adapting to the new demographic and
economic realities. Therefore, it is argued that economic sustainability,
efficacy and equity would require that social security programmes transcend
employment-centricity and embrace universalisation, thereby delinking
themselves from occupational status. As such, universalisation would allow
informal sector workers, atypical workers, self-employed and persons who are
unemployed to register and claim benefits. Further, it would also expand the
pool of contributors for social insurance and other contributory programmes.
The case for universalisation is, however, not just economic; on the contrary,
as would be argued in the next section, it is a constitutional and
international human rights mandate.
Universal Social Security: A Legal Mandate
This paper proposes several policy
and economic justification for moving away from occupational status-based
social security schemes to universal citizenship-based programmes in the long
run. But the core thrust of this paper extends to the claim that social
security is a universal human and constitutional right and by implication,
universalisation must be seen as a legal mandate.
As indicated earlier, social security
has been enshrined in the Directive Principles of State Policies.[38] While the
Directive Principles are not justiceable on their own, they are seen as
valuable aids for interpreting the scope and ambit of the fundamental rights.[39] Very
significantly though, the Supreme Court of India has recognised social security
as a part of the judicially enforceable right to life under Art. 21. In Calcutta Electricity Supply Corporation
(India) Ltd. v Subhash Chandra Bose,[40]
the Court held that the right to social security was an integral part of right
to life. This was reiterated in Regional
Director, ESIC v Francis D’Costa[41]
where the Court held that security against sickness and disablement was a part
of the right to life under Article 21 of the Constitution. Social protection,
as a part of the fundamental rights, was acknowledged again by the Supreme
Court in Consumer Education Research
Centre (CERC) v Union of India.[42]
Critically, apart from the CERC verdict where social protection was alluded to
in the context of workers, assertion of social security as a fundamental right
was not made contingent upon the status of employment. Even if these
observations are to be seen as mere obiter dicta, they still constitute
persuasive authorities on the status of social security under the matrix of
fundamental rights within the Indian constitutional framework.
A universal entitlement to social
security as a fundamental right is also firmly entrenched in international
human rights law. The Universal Declaration of Human Rights recognises social
security as a human right in its Article 22, which states that “Everyone, as a
member of society, has the right to social security” and in Article 25(1),
which postulates that everyone has the “right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control.”[43]
This normative recognition was
buttressed by the inclusion of social security into treaty law through Article 9 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) under which State
Parties ‘recognise the right of everyone to social security, including social
insurance.’[44] The scope
of this right was clarified by the Committee on Economic, Social and Cultural
Rights (CESCR) in its General Comment No. 19 where it stated that “the right to
social security is of central importance in guaranteeing human dignity for all
persons when they are faced with circumstances that deprive them of their
capacity to fully realise their Covenant rights.”[45]
It also emphasised that “all persons should be covered by the social security
system.” It must be further noted that the CESCR enjoined State Parties “to
ensure access to a social security scheme that provides a minimum essential
level of benefits to all individuals and families” and included this obligation
within the minimum core obligations that every state must immediately enforce
up to the minimum essential level.56 Therefore, even though many of
the obligations under ICESCR can only be progressively implemented, states are
required to ensure a minimum level of social security to all individuals
without any delay.
It is pertinent in this context to
note that the CESCR’s endorsement of social security is not occupation-centric
and it recognises that social security must extend to all persons. Article 9 of
ICESCR does not limit the right of social security to workers but speaks of
“right of everyone to social security.”[46]
This is reiterated in General Comment No. 19 where the CESCR asserts that all
persons must enjoy coverage of social security schemes. While recognising that
special needs of workers and other vulnerable groups must be addressed, it does
not limit the right to occupational status.[47] Therefore, it would appear that international
human rights law makes universal social security a categorical mandate for
states. Since India has signed and ratified the ICESCR and none of its
declarations and reservations pertain to Article 9, universalisation must be
construed as a legal mandate for India.
The need for universal social
security which goes beyond occupation-based models is also grounded in the
ideal of social citizenship. T. H. Marshall, the renowned British sociologist,
wrote in his seminal work, ‘Citizenship and Social class,’ that social rights
are as much an integral constituent of citizenship as civil and political
rights.[48] In other
words, social rights were essential for social integration of each individual -
an essential ideal of citizenship.[49]
Universal social security, like the right to vote and other civil-political
rights, would facilitate the nurturing of a sense of equal citizenship shared
by everyone.[50] Thus,
universalisation of social security must also be seen as a necessary instrument
for strengthening the democratic fabric of the country and assertion of
citizenship.
Conclusion
This paper has argued that in spite
of an impressive plurality of legislation-backed social security schemes that
India has evolved, the effectiveness and coverage of current regimes are
affected by variance in threshold norms on applicability, definitions of
foundational concepts and consequent ambiguities about the scope of the rights
and manner of compliance. Along with these inconsistencies and gaps, the
centrality of the status of employment in extant regimes has excluded a large
number of workers who fall through the crack and are left without meaningful
social security protection. It has been argued that such exclusion of a
sizeable chunk of workers from social protection negates the constitutional
mandate and India’s obligations under international human rights on providing
social security to all persons.
In addition, the paper has proposed
that the occupation-centricity of these schemes are ill-suited to the ongoing
transformation in the labour economy and demographic changes taking place in
the industrialised and industrialising world. Informalisation of work, rise of
atypical work and increase in average age of the population are likely to
render occupationcentric social security schemes inadequate or inaccessible.
Therefore, the paper calls for a
shift to universal social security schemes that are based on citizenship and
not occupational status. Delinking
social security from occupation and predicating it on citizenship would extend
these schemes to informal atypical workers and persons out of work. As a
result, the constitutional right of social security would become meaningful for
our citizenry. Universal social security would also strengthen the compact
between citizenry and state by strengthening a shared sense of citizenship
among the populace.
The paper concedes that the adoption
of universal social security would stretch existing financial resources at this
juncture. Yet, it is an option that must be pursued for continued
sustainability of the existing occupation-centric schemes would be under
imminent threat due to new economic and demographic conditions. Further, it is
arguable that universalisation may also expand the range of contributors to
programmes thus adding to the existing resource base. Similarly, self-selection
of beneficiaries combined with reduction in the administrative costs associated
with targeting of beneficiaries may limit the increase in expenditure to
manageable proportions.[51] Finally,
it must be pointed out that universal social security is a constitutional
entitlement and financial considerations cannot trump over this claim to
emasculate social security protection into an illusory rope of sand.
[1] INTERNATIONAL LABOUR ORGANISATION (ILO), APPROACHES TO
SOCIAL SECURITY: AN INTERNATIONAL SURVEY
[2] VICKI PASKALIA, FREE MOVEMENT, SOCIAL SECURITY AND GENDER
IN THE EU 24 (Oxford: 2007)
[3] Mark Blaug, The
Myth of the Old Poor Law and the Making of the New 23 Journal of Economic
History 151, 162 (1963)
[4] JC VROOMAN, RULES OF RELIEF: INSTITUTIONS OF SOCIAL SECURITY
AND THEIR IMPACT 111 (The Netherlands Institution for Social Research: 2009)
[5] VICKI PASKALIA, supra
n. 2, 25-26
[6] VICKI PASKALIA, supra
n. 2, 18
[7] VROOMAN, supra
n. 4, 112
[8] W.H. BEVERIDGE, SOCIAL INSURANCE AND ALLIED SERVICES
120 (HM Stationary Office, 1942) cited in VROOMAN, supra n.4, 112
[9] INTERNATIONAL LABOUR ORGANISATION (ILO), supra n.1,
80 cited in Vrooman, supra n.4, 112
[10] Article 41 requires the state to make effective
provision for “public assistance in cases of unemployment, old age, sickness
and disablement, and in other cases of undeserved want.”
[11] See the Kerala Agricultural Workers’ Act 1974, the
Kerala Labour Welfare Funds Act 1975, the Kerala
Fishermen’s Welfare Fund Act, 1985, The Kerala
Fishermen’s and Allied Worker’s Welfare Cess Act, 2007
[12] See the Kerala Agricultural Workers’ Act 1974, the
Kerala Labour Welfare Funds Act 1975, the Kerala Fishermen’s Welfare Fund Act,
1985
[13] See Section 4, Payment of Gratuity Act 1972.
[14] For a discussion on unemployment in India, see Satya
Paul, Unemployment in India: Temporal and
Regional Variations, 28 (44) Economic and Political Weekly 2407 (October
30, 1993), Deepak Lal, Determinants of
Urban Unemployment in India 23 (1) Indian Economic Review 61-81 (1988).
[15] (2014) 9 SCC 407
[16] (2009) 13 SCC 374
[17] Ramgopa lAgarwala, Nagesh Kumar and Michelle Riboud, Reforms, Labour Markets and Social
Security Policy in India: An Introduction in REFORMS, LABOUR MARKETS AND SOCIAL
SECURITY IN INDIA (Ramgopal Agarwala, Nagesh Kumar and Michelle Riboud eds.
Oxford: 2004) 2. See generally, KP Kannan and J. Brennan eds, THE LONG ROAD TO
SOCIAL SECURITY (Oxford: 2013)
[18] Section 2 (9) of the Act includes persons employed
through an intermediate employer within the definition of employee. The broad scope of ESIA was exemplified in
the case of Royal Talkies. Hyderabad v ESIC [(1978) 4 SCC 204] where the Apex
Court explained that the clause ‘in connection with the work of the
establishment under s. 2 (9) implies a loose connection and it merely requires
that “some nexus must exist between the establishment and the work of the
employee.” In words of the Court, he “may not do anything directly for the establishment;
he may not do anything statutorily obligatory in the establishment; he may not
even do anything which is primary or necessary for the survival or smooth
running of the establishment or integral to the adventure.”
[19] Section 2 (f) of the Act includes within the
definition of employee a person engaged by or through a contractor.
[20] (2010) 11 SCC 537
[21] Ramgopal Agarwala, Nagesh Kumar and Michelle Riboud, supra n.26, 5
[22] Kwong Leung Tang and James Midgley, supra n.10, 40-41
[23] See generally, Kim Van Eyck, Flexibilizing Employment: An Overview, Seed Working Paper No. 41,
International Labour
Office,2003
[24] See A Euzeby, Social
Security and Part Time Employment 127 International Labour Review 545
(1988)
[25] VICKI PASKALIA, supra
n. 2, 40.
[26] See D Pieters (ed), CHANGING WORK PATTERNS AND SOCIAL
SECURITY EISS YEARBOOK (The Hague, Kluwer Law International, 2000)
[27] Section 2, Unorganised Worker Social Security Act
2008.
[28] Section 3, Unorganised Worker Social Security Act
2008.
[29] NATIONAL COMMISSION FOR ENTERPRISES IN THE UNORGANISED
SECTOR (NCEUS), THE CHALLENGE OF EMPLOYMENT IN INDIA: AN INFORMAL ECONOMY PERSPECTIVE
(Academic Foundation: 2009). 39
See generally, KP Kannan and J. Brennan, supra
n.26
[30] M. Sherraden, Conclusion:
Social Security in the Twenty-First Century in ALTERNATIVES TO SOCIAL SECURITY:
AN INTERNATIONAL INQUIRY (J. Midgley and M.
Sherradeneds, Auburn House Greenwood Press: 1997), 121-140
[31] United
Nations ,World Population Ageing: 1950-2050 (2002), available
at http://www.un.org/esa/population/publications/worldageing19502050/
[32] H SADHAK, PENSION REFORM IN INDIA: THE UNFINISHED AGENDA
5-7 [Sage 2013]
[33] Kwong Leung Tang and James Midgley, supra n.10, 42-43; For more on impact
of demographic changed on social security, see DE Bloom, Social Security and the Challenge of Demographic Change, 63 (3-4)
International Social Security Review 3-21 (2010); and William A Halter and
Richard Hemming, The Impact of
Demographic
Change on Social Security Financing
34 (3) Staff Papers (International Monetary Fund) 471 (1987)
[34] VICKI PASKALIA, supra
n. 2, 40. See also Thakur, Arnold and Johnson, Gender and Social Protection in
Promoting Pro-Poor Growth
(OECD 2009) available at https://www.oecd.org/dac/povertyreduction/43280899.pdf
[35] See JAMES, COX AND WONG, THE GENDER IMPACT OF SOCIAL
SECURITY REFORM (2008: University of Chicago Press), Martha Macdonald, Gender and Social Security Policy:
Pitfalls and Possibilities 4(1) Feminist Economics 1, 22 (1998).
[36] VICKI PASKALIA, supra
n. 2, 40.
[37] VICKI PASKALIA, supra
n. 2, 41.
[38] Article 41 requires the state to make effective
provision for “public assistance in cases of unemployment, old age, sickness
and disablement, and in other cases of undeserved want.”
[39] See Olga Tellis v Bombay Municipal Corporation AIR
1986 SC 180, Delhi Transport Corporation v DTC Mazdoor Congress AIR 1991 SC 101
[40] AIR 1992 SC 573
[41] AIR 1995 SC 1811
[42] AIR 1995 SC 922
[43] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A
(III), available at: http://www.refworld.org/docid/3ae6b3712c.html [accessed 15
May 2016]
[44] Article 9, UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16
December 1966, United Nations, Treaty Series, vol.
993, p. 3, available at: http://www.refworld.org/docid/3ae6b36c0.html [accessed
15 May 2016]
[45] UN Committee on Economic, Social and Cultural Rights
(CESCR), General Comment No. 19: The
right to social security (Art. 9 of the Covenant), 4 February 2008,
E/C.12/GC/19, available at:
http://www.refworld.org/docid/47b17b5b39c.html
[accessed 15 May 2016] 56 UN Committee on
Economic, Social and Cultural Rights (CESCR),ibid.
[46] Supra n. 50
[47] UN Committee on Economic, Social and Cultural Rights
(CESCR),supra n.51
[48] T.H. Marshall, Citizenship
and Social Class in INEQUALITY AND SOCIETY (Manza and Sander eds, Norton
and Co.: 2009) 149
[49] VICKI PASKALIA, supra
n. 2, 47.
[50] Sunil Khilnani,
An Idea for India, Livemint, November
19, 2010, available at http://www.livemint.com/Leisure/gTnUezEaP7Izd7USQBI3TO/An-idea-for-India.html
[51] For a detailed discussion of universalisation,
targeting and self-selection in welfare, see Thandika Mkandawire, Targeting and Universalism in Poverty
Reduction, Social Policy and Development Programme Paper No. 23, UNRISD,
2005; Amartya Sen, The Political Economy
of Targeting, Annual Bank Conference on
Development Economics, World Bank; 1992; Lant
Pritchett, A Lecture on Political Economy
of Targeted Safety
Nets, Social Protection Discussion Paper Series No. 0501,
World Bank; 2005
Article Information
ADAPTING SOCIAL SECURITY TO 21ST CENTURY INDIAN ECONOMY: A CASE FOR UNIVERSALISATION
Authors: ASHISH VERMA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/10
- Issue 7
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