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Social Security In India During COVID-19

Kunal Chatterji
27 May 2020 6:18 AM GMT
Social Security In India During COVID-19
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Social security is a kind of natural right recognised by legal right which recognises certain basic human right for the socially underprivileged persons which aims to ameliorate distress of those individuals and give them a sense of belongingness in the society.

The ILO definition is as under:

"The notion of social security adopted here covers all measures providing benefits, whether in cash or in kind, to secure protection, inter alia, from

(a) lack of work-related income (or insufficient income) caused by sickness, disability, maternity, employment injury, unemployment, old age, or death of a family member;

(b) lack of access or unaffordable access to health care;

(c) insufficient family support, particularly for children and adult dependants;

(d) general poverty and social exclusion.

Social security thus has two main (functional) dimensions, namely "income security" and "availability of medical care", which are specifically identified in the ILO Income Security Recommendation, 1944 (No. 67), and the Medical Care Recommendation, 1944 (No. 69), respectively, as "essential elements of social security". [1]

Thus, what distinguishes social security from other social arrangements is that:

(1) benefits are provided to beneficiaries without any simultaneous reciprocal obligation (thus it does not, for example, represent remuneration for work or other services delivered); and

(2) that it is not based on an individual agreement between the protected person and provider (as, for example, a life insurance contract) but that the agreement applies to a wider group of people and so has a collective character.

The International Covenant on Economic, Social and Cultural Rights (Hereinafter referred to as "ICESCR") on right to social security and health through Article 9 and Article 12 of the covenant mandates as under,

Article 9:

The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.

Article 12:

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) the prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions, which would assure to all medical service and medical attention in the event of sickness.

Articles 7 and 11 include health provisions: "The States Parties ... recognize the right of everyone to ... just and favourable conditions of work which ensure ... safe and healthy working conditions; ... the right to ... an adequate standard of living."

India ratified ICESCR convention on 10.04.1979, making it thus, obligatory on the part of India duly honour the said International Convention in its letter and spirit but even today I feel our social security legislation is far from target set internationally and also from our Constitutional Goal.

The concept of social security was first introduced in Germany in 1883.According to original scheme therein each member of a particular trade (blacksmiths, painters, weavers etc.) was required to contribute at regular intervals; Money from this fund was used for food, lodging, hospital and funeral expenses of aged and disabled members.[2] In 1935 a federal law came to be enacted in response to the Great Depression, creating a system of benefits, including old-age and survivors' benefits, and establish a Social Security Administration.[3]

Indian Constitution postulates itself to be a welfare state. Being the largest democracy in the world it is truly challenging for the Executive to ensure that the Social Security is provided to everyone it is meant for. The concept of "Social Welfare" exists as part of our policy making from the time of independence itself. Several schemes have been launched related to social welfare issues as like agriculture and rural development, employment and labour welfare, healthcare, education, etc. Indeed in the initial 20-25 years in spite of scarcity of economic means the government was focussed on the welfare policies and inclusive development. But of late there is a shift in Governmental policy.

Indian Constitution provides for wider Social Security Scheme wherein over and above income security and medical security, there exists superior and humane condition of working. It requires the State should raise the level of nutrition and the standard of living of its people and improvement of public health as among its primary duties. The obligations cast on the State in the above to constitute Social Security.

In fact, under Article 23 of Constitution trafficking and similar forms of forced labour is prohibited under Part III of the Constitution. Article 24 prohibits child labour in factory and the same is also guaranteed under Part III.

The Preamble of the Indian Constitution is the sole-repository of Social Security measures and provides for establishment of Socialist State. According to the Supreme Court of India, the principle aim of socialism is to eliminate inequality of income, status and standard of the life and to provide a decent standard of life to the working people. Further, it is designed to secure social, economic and political justice to all its citizens.

These objectives can be achieved through various Directive Principle of State Policy enumerated in Part-IV of the Constitution. Article 38 mandates to the state to secure a social order for the promotion of welfare of the people, Article 39 seeks to provide for equal rights to adequate means of livelihood to all citizens and distribution of wealth and material resources to sub serve common good and prevention of concentration of wealth and means of production etc., Article 41 provides for right to work, education and public assistance in certain cases such as unemployment, old age, sickness and disablement. Article 42 aims for providing just and human conditions of work and maternity relief. Article 43 deals with living wage for workers and Article 43-A intend to secure workers participation in management of industries. Besides these, Entries, 21, 22, 23, 24 and 26 of Schedule VII i.e. Concurrent list (List-III) authorizes the State Government to take necessary steps for regulations and control of Commercial and Industrial monopolies, Trade Unions, Industrial and labour disputes, Social Security and Social Insurance, employment and unemployment, welfare of labour etc., respectively with an intention to ensure protection of interest of all the citizens of India.

Thus, concept of social security which is covered under both Part III and IV of the Constitution gives citizen a Civil and Political right somewhere different from Human Right. In Orissa and in some other States the system of employment of Inter-State migrant labour known as Dadan Labour is in vogue. In Orissa Dadan Labour is recruited from various parts of the State through contractors or agents called Sardars or Khatadars for work outside the State in large construction projects. At the time of recruitment Sardars or Khatadars promise that wages calculated in piece-rate basis would be settled every month but usually this promise is never kept. Once the worker comes under the clutches of the contractor, he takes him to a far-off place on payment of railway fare only. No working hours are fixed for these workers and they have to work on all the days in a week under extremely bad working conditions. The provisions of the various labour laws are not being observed in their case and they are subjected to various mal practices. The question of protection and welfare of Dadan Labour was considered by the Twenty-eighth Session of the Labour Ministers' Conference held on 26th October 1976 at New Delhi. It was recommended to set up a Compact Committee to go into the whole question and to suggest measures for eliminating the abuses prevalent in the system. Accordingly in February, 1977 the Compact Committee was constituted and it recommended, inter alia, that a separate Central legislation may be enacted to regulate the employment of inter-State migrant workmen as it was felt that the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, even after necessary amendments, would not adequately take care of the variety of mal practices indulged in by the contractors, Sardars or Khatadars. The recommendations of the Compact Committee were examined in consultation with the State Government the and the Ministries in the Government of India. Accordingly the Inter-State. Migrant Workmen (Regulation of Employment and Conditions of Service) Bill, 1979 was introduced in the Parliament and thereafter the same was passed and the Act of 1979 in this regard came in force on and from 11.06.1979. This Act of 1979 requires licensing of these migrant labours at the time of joining the employment. It prohibits engagement of migrant worker in their job without registration and ensures Minimum Wages be paid to them with certain amenities.[4] The Act of 1979 specifically came under consideration before Hon'ble Supreme Court of India and consistently Hon'ble Supreme Court directed Central Government for enforcement of the Act strictly[5] and in fact permitted the originating states to inquire about them from recipient state.[6]

In 2008 Central Government came out with a major enactment dealing with people belonging to unorganised sectors which forms the majority of workers. Unorganised Workers' Social Security Act 2008 came to be enacted by Government of India with an objective to provide for the social security and welfare of unorganised workers and for other matters connected therewith or incidental thereto. In Section 2(m) of the Act of 2008, the term "unorganised worker" defined a home based worker, self-employed worker or a wage worker in the unorganised sector and includes workers from organised sector who is not covered by any of the Act mentioned in Schedule II of the Act of 2008. Under Section 3 of the said Act Central Government is under an obligation to provide for Life and Disability cover to unorganised workers. This Act ought to have been considered as one of the major welfare legislation in India. Unlike the Bill of 2004, registration under the Act is voluntary. Resulting that even after 12 years of enactment of the Act of 2008 the same is far from being implemented in its letter and spirit both by Central Government and State Governments. Even though the Act prescribes registration, the entire process is delegated to the district administration. Often termed as a mirage, these Boards do not seem to possess any substantive power to bring about a positive change.[7] Hon'ble Supreme Court through Shramjivi Mahila Samiti Vs. NCT [SLP(Crl) No. 150 of 2012 order dated 04.08.2017] has started monitoring enforcement of the Act of 2008 qua Domestic Workers in collaboration with Local Legal Services Authority. Further, recognising the pragmatic difficulties arising out of the Act, which covers schemes under different ministries, the Central Government has launched a pilot scheme to create a single point of contact for all schemes.[8] However, given the number of persons employed as domestic workers, the lack of awareness, and the lack of incentive on the part of employers, these measures will not result in registration of the entire workforce.

One of the schemes under the Act of 2008 is the Rashtriya Swasthya Bima Yojna ('RSBY'). It is a state-sponsored insurance scheme, modelled as an alternative to universal healthcare.[9] In June 2011, the RSBY scheme was extended to bring domestic workers within its ambit.[10] Certainly a welcome step, the scheme provided some much-needed medical benefits to domestic workers. The criterion for identification of domestic workers is also relatively simple.[11] The implementation of the registration mechanism is left to the State Government. The scheme has by and large been praised globally and has led to some medical benefits being enjoyed by its beneficiaries.[12] There has been some legitimate criticism of the scheme, citing lack of information regarding benefits, lack of professionals to manage technologies, lack of coverage in rural areas and lack of quality in associated hospitals. Additionally, the scheme has also suffered several setbacks due to frauds and,[13] more importantly, the lack of allocation of Government funds.[14] Nevertheless, the scheme has provided some semblance of medical benefits to the domestic worker in urban areas.

Similar problem exists for implementation of Building and Other Construction Workers' (Regulation of Employment and Condition of Service) Act 1996 wherein recently Hon'ble Supreme Court had to intervene and deliver a judgement issuing specific direction with regard to registration of both establishment and construction workers so that benefits can reach vulnerable sections.[15] While dealing with the case Hon'ble Supreme Court felt that there is urgent need for rolling out of one Composite Model Scheme and directed the same be framed addressing education, health, Social Security, old age and disability pension and other benefits that are necessary for living with dignity. Said judgement expressed serious displeasure of collecting cess [16]from every employer and using it for purchase of laptops, washing machines and also payments of Value Added Tax purportedly for the employees.

But still it appears that implementation of all such Welfare Legislation is far from reality more so during the time workforce has come under attack of COVID-19 pendamic.

Instead of implementing these welfare legislations, for these marginalised persons of this Country, different State Governments e.g. Rajasthan, Gujarat, Punjab, Himachal Pradesh, Uttarakhand, Haryana, Madhya Pradesh, Uttar Pradesh, Goa and Assam in the name of attracting industrial investment have done away with many of the welfare provision of many labour legislations in States, depriving the Citizens from Welfare Legislation violating their Fundamental Rights and leaving them at the mercy of employers when entire country is under the endemic attack of COVID-19. These workmen who are actually creating wealth for the country, suffered brutal exploitation and loot by the capitalists and big-business have actually now been denied their Constitutional Rights and Statutory Rights implemented through various laws. According to some researcher on the subject such reckless waiver of labour laws will be counter productive for the India Country[17]and is certainly not going to help in employment generation which has been said to be the reason for such dilution of laws.

Legally speaking in case of conflict arising out of Statutes from concurrent list,[18] Central Law will prevail over the state law unless the State law has received assent from President of India. Thus, whenever, there is a Parliamentary Legislation occupying the field if State wants to have some State amendment, the same requires Presidential Assent. Without such assent the State law will be unconstitutional.[19] In case of dilution of labour law in absence of such assent by President before publishing in the Gazette, such promulgation of ordinances by the State is a gross illegal action and need be ignored by persons obeying law. According to me such abuse of power by State Governments are nothing short of undermining the authority given in our Constitution and if such practice is allowed Federal Structure of this Country will crumble without a skeleton being left on the floor.

As such, it is expected that the State Governments and Central Governments will come together with concrete plan without any further delay providing "income security" and "medical security" to these persons. It is true that Governments will require huge amount to be given directly to these persons but under Disaster Management Act, 2005, that is what Central Government is under an obligation to do that too when they are actually in distress.

The fact of abuse of legislative power through ordinance relaxing labour laws become clear when U.P Government withdrew its notifications dated 8th May 2020 relaxing certain labour welfare legislation. Before Hon'ble Allahabad High Court a Public Interest Litigation came to be filed by Uttar Pradesh Worker Front Vs. Union of India and Another (Public Interest Litigation (PIL) No. 579 of 2020 and Hon'ble Allahabad High Court issued notice in the matter initially. On 19.05.2020 when the same came to be listed before Hon'ble High Court an order came to be passed dismissing the petition as under:

"This petition for writ is preferred to question correctness of the notification dated 8th May, 2020 issued on behalf of the State of Uttar Pradesh invoking the powers under Section 5 of the Factories Act, 1958.

It is submitted by learned Additional Advocate General, learned Chief Standing Counsel and Sri S.K. Rai, learned Standing Counsel for Union of India-respondent no.1 that the notification impugned has already been withdrawn by the State and as such this petition for writ has become infructuous.

In view of the fact mentioned above, this petition for writ is dismissed as becoming infructuous."

First time judicial notice was taken by Hon'ble Bombay High Court on 08th April 2020 while hearing a Public Interest Litigation filed by Sarva Hara Jan Andolan, after death of 16 tired migrant labourers on Railway track, directed the State Government to provide the migrant workers and underprivileged persons. [20] On 15th April 2020 Hon'ble High Court at Bombay, Aurangabad Bench took suo motu cognizance of various reports on the problem faced by migrant labourers and directed Collector from Marathwada region to file a report within two weeks as to what steps have been taken for psychological counselling of migrant labourers along with details of workers and shelter homes.[21] But, on 16th April 2020 Hon'ble High Court while refusing to entertain another PIL asked the state to consider whether migrant labourer can move to their home within the state as Hon'ble Bombay High Court felt that without conducting health survey by the State Government no mandamus could be passed.[22]

It is not only Hon'ble Allahabad High Court and Bombay High Court have given the lost voice to the migrant workers in this testing time some but other High Courts e.g. a) Karnataka High Court on 12th May 2020 while acknowledging the contribution of migrant workers' in our Development directed the Government to pay transportation cost of migrant labourers from the state, b) On the same day Gujrat High Court took cognizance of the empathy of these migrant workers suo motu, c) On 15th May 2020 Madras High Court noted "One cannot control his/her tears after seeing the pathetic condition of migrant labourers shown in the media for the past one month. It is nothing but a human tragedy." In the said case, High Court at Madras asked the Government to produce 400 Tamil workers stuck in Maharashtra and asked the Central Government 12 questions about the measures taken to ameliorate hardship of workers and file status report on 22nd May 2020, d) On 15th May 2020 Hon'ble High Court at Andhra Pradesh passed an order recording, "…court notices that the labour who have left their ancestral homes and villages and moved to the cities for better livelihood to ensure that all of us live in comfort are on the roads today." "If at this stage this court does not react and pass these orders, this court would be failing in its role as a protector and alleviator of suffering."

But the issue is a national issue and thus requires to be dealt in favour of the migrant labourers and underprivileged uniformly. This requirement of uniform dealing of the issue creates a serious expectation from Hon'ble Supreme Court of India, the Supreme Protector of Fundamental Rights in this Country. I am hopeful that Hon'ble Supreme Court now will deal this issue in the same manner it did in early '80s while dealing with "Asian Games" case, "Bandhua Mukti Morcha" case and continued thereafter enriching jurisprudential value of Indian Legal System.

Views Are Personal Only.
(Author is AOR at The Supreme Court)

[1] ILO 2010: World Social Security Report 2010-2011 - Providing coverage in times of crisis and beyond, International Labour Organization, Geneva

[2] See Right To Social Security by Shri Ranjani. M published in www.legaserviceindia.com/legal/author-168-sri-ranjani-m.html

[3] 42 USCA $$ 401-433 (Cases: Social Security and Public Welfare-5, 121)

[4] See People Union for Democratic Rights and Others Vs. Union of India, (1982) 3 SCC 235. See also PUCL Vs. State of Tamil Nadu, (2013) 1 SCC 585, See also Bandhua Mukti Morcha Vs. Union of India (1984) 3 SCC 161 affirmed in K Puttuswamy Vs. Union of India (2019)1 SCC 1

[5] See Labourers, SalalHydro Projects Vs. State of J& K (Reported in (1983) 2 SCC 181)

[6] See Dr. Damodar Panda Vs. State of Orissa, (1990) 4 SCC 11

[7] V. Shankar & B. Sivaraman, Unorganised Workers' Social Security Act, 2008: A Beginning for Bigger Struggles!, Communist Party of India (Marxist-Leninist) Liberation, http://archive.cpiml.org/liberation/year_2009/feb_09/commentary_3.html.

[8] See Ministry of Labour and Employment, Guidelines for the Pilot for Convergence in Implementation of Major Social Security Schemes for Unorganised Workers in India on a Single Platform, June 20, 2014.

[9] See generally An Uncertain Glory, supra note 51, at 152: This book heavily criticises an insurance-based model as a replacement for universal healthcare due to increasing cost of healthcare and consequent reduction in beneficiaries due to budget cuts.

[10] Domestic Workers Now Covered Under Health Insurance Scheme, The Hindu (June 24, 2016), http://www.thehindu.com/news/national/domestic-workers-now-covered-under-health-insurance-scheme/article2129083.ece.

[11] Rashtiya Swasthya Bima Yojana, Government of India, Guidelines for Extension of RSBY to Domestic Workers, available at http://rsby.gov.in/docs/RSBY%20Guidelines%20for%20Domestic%20Workers%2026.6.11.pdf, Any two of the four may be used for identification: employer certificate, certificate by resident welfare association, certificate from registered trade union, police verification certificate; The identification criteria also incentivise domestic workers to affiliate with unions.

[12] Sujatha, Rashtriya Swasthya Bima Yojana (RSBY), Mapsofindia (Aug. 28, 2016), http://www.mapsofindia.com/my-india/government/rashtriya-swasthya-bima-yojana-rsby

.

[13] See Samar Halarnkar, Thought for Food, Hindustan Times (July 23, 2011), http://www.hindustantimes.com/india/thought-for-food/story-83uqZ6Zlyapf85xTQFgD9O.html.

[14] David M. Dror & Sukumar Vellakkal, Is RSBY India's Platform to Implementing Universal Hospital Insurance?, 135 Indian J. Med. Res. 56, 61 (2012).

[15] See National Compaign Committee for Central Legislation on Construction Labour (NCC-CL) Vs. Union of India and Others (2018) 5 SCC 607

[16] See also Dewan Chand Builders and Contractors Vs. Union of India and Others (2012) 1 SCC 101

[17] See https://qz.com/india/1855914/waiver-of-labour-laws-wont-revive-covid-19-hit-indian-economy/

[18] See Article 254 of Constitution of India

[19] See New Horizon Sugar Mills Ltd. Vs. Govt of Pondicherry (2012) 10 SCC 575, See also A Subhash Babu Vs. State of AP, (2011) 7 SCC 616, K A Annamma Vs. Cochin Cooperative Hospital Society Limited (2018) 2 SCC 729

[20] See The New Indian Express, "Ensure basic necessities to migrant workers: Bombay High Court to Maharashtra Government" Published on 08th April 2020 by PTI

[21] See The Indian Express, "Bomay HC seeks details on Counselling of stranded migrants in Maharashtra" published on 16th April 2020 by Omkar Gokhle.

[22] See The Hindu, "Not Possible to Issue Direction unless Govt. decides on migrant labourers: High Court" by Sonam Singhal on 16th April 2020

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