DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE
SOCIAL SECURITY CONVENTIONS AND IT’S IMPLEMENTATION IN INDIA

SUBJECT
LABOUR LAW - II

FACULTY NAME
D.r. C.H. Lakshmi

SUBMITTED BY
JAY NIRUPAM ( 2016044)

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ACKNOWLEDGEMENT

I would like to express my gratitude to my LABOUR LAW Professor Dr. C.H. Lakshmi ma’am
who gave me the golden opportunity to do this wonderful project on the topic “SOCIAL
SECURITY CONVENTIONS AND IT’S IMPLEMENTATION IN INDIA”. While doing a
lot of research I came to know many new things, I am really thankful to her.
Secondly I would also like to thank my seniors and friends who helped me a lot in finalizing this
project within the limited time frame.

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INTRODUCTION

International Labour Organization’s work in the field of social security

has been pioneering. From the date of its inception1, ILO2 has been constantly
engaged in formulating standards with a view to extending social security
benefit to larger section of people in greater number of contingencies. The
Philadelphia Declaration recognizes

1. In 1919 ILO was formed by Treaty of Versailles under League of Nations

with a unique membership. It was an intergovernmental institution with a
tripartite structure including Government representatives, labour
organizations and employer organizations. Its main agenda was maintenance
of social peace and improvement of the situation of the world’s workers.
See Lee Swepston, “The Future of ILO Standards”, 117 Monthly Lab. Rev.
16

2. ILO assists its 171 members by setting Code of International Labour

Standards consisting of conventions and recommendations. It also provides
for a range of technical assistance aimed at rapid economic and employment
growth. Michel Hansenne, “Promoting Social Justice in the New Global
Economy” 117 Monthly Lab. Rev. 3.

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the solemn obligation of the ILO to further among nations of the world
programmes which will have to achieve “the extension of social security
measures to provide a basic income to all in need of such protection and
comprehensive medical care3”. Co-ordination4 of social security legislations
among countries has been a major concern of ILO along with international and
intergovernmental organizations in the social security field. International
Labour Office serves as the secretariat of the International Social Security
Association5 which groups together government services as well as central
institutions and national unions for social security of different countries. ILO
sets ideal standards6 for their universal application to ameliorate the working
conditions of the workers and to ensure social justice to them7. These universal
standards are known as Conventions and

3. Philadelphia Declaration of 1944, ‘ILO DeclarationConcerning Aims and

Purposes of ILO’ International Labour Office, 26 Official Bulletin 1
(1944)

4. This is done by providing creative solutions to the social security

problems. See supra n.2 at p. 3

5. It was founded in 1927. It is “a privileged forum for social security

institutions throughout the world and an acknowledged partner with
everyone interested in the appropriate development of social protection
adapted to the genuine needs of populations, the ISSA has become a
universal institution whose essential role is inherent in the network
which it embodies” http://www.issa.int/engl/homef.htm, 3rd September,
2008

6. ILO Standards have formed the basis for much social and labour legislations
enacted in this century. See supra n.1 at p. 17

7. ILO is given a broad mandate to establish International Labour Standards

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under the Treaty of Versaills, 1919. Although the League of Nations
perished during interwar years the ILO continued its existence, surviving
the second world war and on creation of United Nations Organization of
which it became a part. See also, H. Bartolomei, dela Cruz et al., The
International Labour Organisation: The International Standard System
and Basic Human Rights Westview Press, Boulder CO(1996) p.45

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Recommendations8. In all, 22 conventions and 16 recommendations have been
adopted on social security and are classified under: A. General Instruments, B.
Medical Care and Sickness Benefit, C. Maternity Benefit, D. Invalidity, Old Age
and Survivor’s Benefit E. Employment Injury Benefit, and F. Unemployment
Benefits.

ILO Conventions and Recommendations

A. General Instruments

(a) Social Security (Minimum standards) Convention, 1952

The Convention9 consolidates the main provisions of the provisions ILO

instruments relating social security and establishes minimum standards for 9
fundamental branches of social security namely medical care,10 sickness,11
unemployment,12 old age,13

8. The principal means of action of ILO is the setting up the international

labour standards. Conventions are international treaties and creates
obligation on countries which ratify them. Recommendations are non-
binding in nature and set out policies for actions for states. The ILO has so
far adopted 182 conventions and 190 recommendations encompassing
subjects such as worker’s fundamental rights, worker’s protection, social
security, labour welfare, occupational safety and health, women and child
labour, migrant labour, indigenous and tribal population, etc.
http://www.cec- india.org/leftlinks/05/national/document.visited on 15-10-
07.Core Conventions of the ILO: - The eight Core Conventions of the ILO
(also called fundamental/human rights conventions) are: Forced Labour
Convention (No. 29) Abolition of Forced Labour Convention (No.105)
Equal Remuneration Convention (No.100) Discrimination (Employment
Occupation) Convention (No.111)(The above four have been ratified by
India). Freedom of Association and Protection of Right to Organised
Convention (No.87) Right to Organise and Collective Bargaining

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 Convention (No.98) Minimum Age Convention (No.138) Worst forms of
Child Labour Convention (No.182) (These four are yet to be ratified by
India) See, http://labour.nic.in/ilas/indiaandilo.htm visited on 15-10-07

9. Convention No.102.

10. Part II of the Convention

11. Part III.

12. Part IV.

13. Part V.

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employment injury,14 family,15 maternity,16 invalidity,17 and survivor’s benefit18.
The principles anchored in Convention No. 102 are: guarantee of defined
benefits; participation of employers and workers in the administration of the
schemes; general responsibility of the state for the due provision of the benefits
and the proper administration of the institutions; collective financing of the
benefits by way of insurance contributions or taxation.

The Member States are allowed to ratify the Convention partially. But the
partial ratification is subjected to certain conditions viz., ratifying states must secure
at least three benefits out of 9 benefits covered by the convention and at least one
from Part IV, V, VI, IX and X. The persons covered are prescribed classes of
employees, active population of residents and families of beneficiaries. The
instrument indicates the manner of calculation and applicable limits. Equality in
treatment of non-nationals and nationals is also ensured by this Convention, if
money is paid from public fund.

(b) Equality of Treatment (Social Security) Convention,1962

The Convention19 has been ratified by 38 member countries. This

Convention is designed to secure equal treatment of nationals and non- nationals
including refugees and stateless persons in case of social

14. Part VI.

15. Part VII.

16. Part VIII.

17. Part IX.

18. Part X.

19. Convention No.118.

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security except in special schemes for public servants, war victims and public
assistance by ratifying states. But the equality is assured to the non-nationals of
another ratifying state in case of medical care, sickness, maternity, invalidity, old
age, and survivor’s employment or family benefits. Equal treatment is
guaranteed regardless of residence, on condition of reciprocity. States accepting
obligation are bound to make payment on the basis of invalidity, old age,
survivor’s employment and family benefits. But the states can prescribe
minimum period of residence for granting benefits of maternity, unemployment
survivors and old age benefits.

(c) Convention on Maintenance of Social Security Rights, 1982

In effect this convention20 is considered as supplementary to the Social

Security (Minimum Standards) Convention 1952, Equality of Treatment (Social
Security) Convention, 1962.

Under this convention various branches of social security are offered. It

lays down that each member shall endeavour to participate with every other
member concerned in schemes for the maintenance of rights in the course of
acquisition, as regards each branch of social security and for which everyone of
these members has legislation in force, for the benefit of the persons who have
been subject to their legislation. Such schemes for maintenance of rights in case
of acquisition shall provide for periods of insurance, employment, occupational
activity or residence to be completed under the legislation of the concerned
members and it should provide for the participation

20. Ratified by 3 countries.

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involuntary insurance scheme acquisition, maintenance or recovery of rights,
periods completed currently under the legislation of two or more members shall
be reckoned only once.

The convention requires the members to provide schemes of maintenance

and to determine formula for awarding, invalidity, old age and survivor’s
benefits and pensioners benefit in respect of occupational diseases, and cost
involved.

The convention requires that each member shall guarantee the provision of
invalidity, old age and survivors cash benefits, pension in respect of employment
injuries and death grant and the conditions under which benefit can be given in case
of contributory benefits, by agreement between parties.

Each member is also required to promote the development of social

services to assist persons covered by this convention, particularly migrant
workers, in their dealings with the authorities and institutions as well as promote
the welfare of the person and his family.

Apart from these conventions, there are two recommendations also coming
under the general category:

i) Income Security Recommendation, 1944

This recommendation aims at formulating general principles to be followed

by states in making income security schemes for employed persons and their
dependants. It recommends that such schemes should be founded on compulsory
social insurance supplemented by assistance measures. The risks covered under
this recommendation are sickness,

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maternity, invalidity, old age, death of the wage earner, unemployment,
emergency expenses and employment injuries. Suggestions for application of
guiding principles21 detailed in other provision are also given in the annexure to
the recommendation.

ii) Social Security (Armed Forces) Recommendation 1944

The recommendation requires the member states to ensure that persons

discharged from the armed forces and assimilated services receive a special grant
proportionate to length of service on their discharge and treated under
employment insurance schemes. It is a recommendation that has been adopted in
the context of Second World War, but relevant for all cases of armed conflict.

iii) Maintenance of Social Security Rights Recommendation, 1983

It aimed at providing minimum guidelines to be followed by the members

who ratified the convention. The recommendation and its annexure contains
model provision for all those instruments scheme for various benefits, trilateral
or multilateral agreements that are required to be implemented or concluded
between the parties.

B. Medical Care and Sickness Benefit

(a) Sickness Insurance (Industry) Convention 192722

This convention adopted in its 19th session on 25th May 1927. This
convention is concerning sickness insurance for workers in industry and
commerce and domestic servants. It consists of 18 Articles and ratified by 28
member countries.

21. Guiding principles scope, administration, planning and types of benefits to be provided.

22. Ratified by 28 member nations.

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 The convention requires the member countries to set up compulsory Sickness
Insurance System23 which shall apply to manual and non-manual workers including
apprentices employed by industrial undertakings, commercial undertakings, out
workers and even domestic servants. However the convention allows exemption to
special schemes with more benefits and employees of special categories specified
as in national laws or regulations.

The sickness benefit shall be payable in cash to an insured person who is

rendered incapable of work by reason of his abnormal bodily or mental health. The
convention prescribes time periods and conditions under which the cash benefits can
be withheld.24 The convention also provided the service of doctor or medicine even
after period of sickness benefit and extending the benefits to the dependants. Other
articles of the convention make provision for the administration and financial
supervision of the administration machinery by a competent public authority. It is
again clarified that sickness benefit granted under this convention shall not affect the
obligations arising out of the convention relating to women and the maternity benefits.
The convention was revised by 1969 convention.

(b) Sickness Insurance (Agricultural) Convention, 1927

This Convention25 is simultaneously adopted along with convention No.24

relating to the same benefit in respect of workers working in

23. The insured and their employers shall share financial resources of Sickness Insurance
Scheme.

24. If the person receives compulsion from another source, social assistance if he
refuses to doctor’s orders, or sickness caused by willful conduct of the insured
etc. are grounds for referring cash benefits.

25. Convention No.25.

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industries, commercial undertakings and domestic servants. This convention has
been revised in 1928. The provisions of this convention are similar to that of
Sickness Insurance (Industrial) Convention, 1927 but mainly aim at manual and
non-manual workers, employed by agricultural undertakings.

(c) Medical Care and Sickness Benefits Convention, 1969

This Convention26 is concerning medical care and sickness benefit. It

revised two earlier 1927 convention relating to sickness insurance industry and
agricultural conventions. This document contains 45 articles. This convention
regulates the protection of worker in respect of entitlement to medical care of a
curative and preventive nature and compensation for loss of earning through
sickness.

Ratifying states are responsible to secure the provision of medical care and
sickness benefit to employees or prescribed classes of persons. Medical care can also
be extended to wives and children of persons covered and must include in particular
hospitalization, pharmaceutical and surgical supplies and dental treatment. Sickness
benefit must be periodical payment and be reckoned, as regards the wage of male
member of beneficiary’s previous earnings or at a sufficient rate to maintain the
beneficiary’s family in health and decency. Benefits must be available equally to
nationals and non-nationals. The rate of cash benefits payable to the standard
beneficiary27 should not be less than 60% of the earnings of the class of employees
to which the beneficiary belongs. Part IV deals

26. Ratified by 14 countries.

27. The standard is taken on ‘mean bar’ with wife and two children.

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with common provision and specific conditions under which a protected person
is not entitled to benefits.

(d) Recommendations

Social Insurance (Agricultural) Recommendation, 1921 and Sickness

Insurance Recommendation, 1927 are superceded by 1969 convention. The
persisting recommendation is:

Medical Care Recommendation, 1944

This Convention details the concept of medical care as a guarantee for all
members of the community whether gainfully occupied or not i.e., deriving from
every person’s right to health. It lays down general principles to be followed by
states in developing medical care services and organization and administration of
such services. It contains provision on a number of important aspects not dealt
within the 1969 convention on Medical Care and Sickness Benefit.

C. Maternity Benefit

(a) Convention on Women, 1919

ILO as early as 1919 itself in its first session adopted this convention.28 It
contains 12 articles to provide protection to the women workers who are in their
family-way, to stay at home with appropriate health care, away from work place.
They are also conferred with right to certain maternity benefits before and after
child birth.

According to Article 2 of the convention, women signify any female

person, irrespective of age or nationality, whether married or

28. 33 countries ratified this Convention.

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unmarried and the child means legitimate or illegitimate. Article 3 lays down that
in any private or public, industrial or commercial undertakings or in any branch
thereof a woman shall not be permitted during 6 weeks following her
confinement. She should be made entitle to leave up to 6 weeks before
confinement. During the period of absence from work she shall be paid benefits
sufficient for the full and healthy maintenance of her and her child from an
insurance system or from public funds as determined by a competent authority.

There are provisions in the convention dealing with illness arising out of
her pregnancy or confinement. This article prevents a notice of dismissal and
makes such a notice unlawful if her absence is due to illness during
pregnancy or resulted out of pregnancy or confinement.

This convention was revised in 1952 and adopted convention No.103

concerning maternity protection. However, the revision of this convention did
not affect the applicability and still it is open for ratification.

(b) Maternity Protection Convention, 1952

It covers industrial undertakings and non-industrial and agricultural

occupations, including home workers and domestic servants. It aim to secure to
women workers a substantial period of leave with subsistence and medical
benefits before and after confinement and safeguard their continued employment
i.e., more than what is provided for in the earlier convention.

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(c) Maternity Protection (Agricultural) Recommendation, 1921

It was superseded by 1952 revised Maternity Protection Convention.

Maternity Protection Recommendation 1952 is supplementary to 1952 Maternity
Protection Convention. It suggests possible improvements on the protection
provided under the Convention like extension of maternity leave to a total of 14
weeks, higher rate of cash benefits, more exclusive medical care. It also
recommends prohibition of the employment of pregnant women and young mothers
on specified type of work prejudicial to their health.

D. Invalidity Old Age and Survivor’s Benefit

Old Age Insurance (Industry etc.) Convention, 1933, Old Age (Insurance)
Agricultural Convention, 1933, Invalidity Insurance (Industry etc) Convention,
1933, Invalidity Insurance (Agricultural) Convention, 1933 and Survivors
Insurance (Industry etc.) Convention, 193329 have been revised by Invalidity Old
Age and Survivors Benefit Convention 1967 and the previously stated
Conventions are not now open for ratification.

(a) Invalidity Old Age and Survivor’s Benefit Convention, 1967

ILO adopted this convention30 in its 51st session. It is a comprehensive

document which has revised the earlier 6 conventions which were adopted by ILO in
1933. Any member country which has ratified the earlier Convention but does not
ratify this revised convention, shall continue to be bound by earlier convention till it
denounces any of them.

29. Convention No.35, 36, 37, 38, 39 and 40.

30. Ratified by 16 states.

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 This Convention specifically deals with invalidity benefits,31 old age
benefits,32 survivor’s benefit33 and general standards34 to be complied with
periodic payments etc. The member countries which ratify the convention can
comply with provisions of Part I and at least one of Part II, III or IV dealing with
Invalidity Benefits, Old Age Benefits and Survivor’s Benefit. It should also comply
with relevant parts of other provision. According to this Convention invalidity
benefit shall be periodical payments to the protected employees in accordance with
the requirements of the Convention. Old age benefit and survivor’s benefit also
shall be periodical payments calculated as prescribed in the Convention. The
rate of periodical payment shall be determined by competent public authority in
conformity with the prescribed rules. In the schedule to the Part V of the
Convention dealing with the periodical payments to standard beneficiaries is
tabulated.

The period during which the invalidity benefit is payable is specified in the
convention and it shall be granted throughout the contingency or until old age
benefit becomes payable. However the benefits, i.e., invalidity, old age and
survivors may be suspended under prescribed conditions where the beneficiary is
engaged in gainful activity.

(b) Recommendation Concerning Invalidity, Old Age and Survivor’s Benefit,

1967

It is supplementary to the Convention relating to Invalidity Old Age and

Survivor’s Benefit. It calls for the extension of protection to persons

31. Convention No.128.

32. Part II, Article 7 to 13.

33. Part III, Article 14 to 19.

34. Part IV, Article 20 to 25.

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whose employment is of casual nature and to all economically active persons. It
also covers invalid and dependant widower for survivor’s benefit.

E. Employment Injury Benefit

(a) Workmen’s Compensation (Agriculture) Convention, 1921

This Convention35 aims at providing compensation in occupational

accidents to agricultural workers arising out of and in the course of employment.

(b) Workmen Compensation (Accidents) Convention, 1925

This Convention36 aims at providing compensation to workers injured in

industrial accidents. The injured worker is entitled to medical, surgical and
pharmaceutical aid at the cost of employer or insurance institution including the
supply and renewal of surgical appliances. If the worker is permanently incapacitated
or dead, he or his dependants are entitled to compensation as periodical payments.
The periodical payment may be converted with lump sum in exceptional cases and
must be increased if the worker needs the constant help of another person. The states
are under obligation to frame legislation for safeguarding in all circumstance the
payment of compensation in the event of insolvency of the employer or insurer.
National legislation must provide for supervisory measures to prevent abuses. This
convention is revised by Employment Injury Benefit Convention, 1964 still open for
ratification.

35. Part V, Article 26 to 29.

36. Convention No.12.

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(c) Workmen’s Compensation (Occupational Disease)
Convention, 1925

This Convention37 provided details of such diseases, their nature and cause
which have to be considered as occupational diseases having arose out of the
respective employments. The Conventions contemplates that compensation shall
be payable to workman incapacitated by occupational diseases or in case of death
from such diseases to their dependants. This Convention provides a schedule of
occupational diseases and of substances which cause occupational diseases. It
was revised in 1934 which added some more to the list.38

(d) Convention on Equality of Treatment (Accident Compensation) 1925

This Convention39 contemplates equality of treatment for national and

foreign workers as regards workmen’s compensation for accidents. The member
country has to assure the foreign sufferer of personal injury due to industrial
accidents happening in its territory, or to their dependants, the same treatment as
to that of national in respect of compensation. The equality of treatment has to be
guaranteed to foreign workers and their dependents without any condition as to
residence, by the states ratified the Convention.

(e) Employment Injury Benefits Convention, 1964

This Convention40 contains 39 articles, one schedule and one annexure.

This regulates the compensation for injuries resulting from

37. Ratified by 66 countries.

38. Convention on Workmen’s Compensation (Occupational Diseases)

(Revised) 1934. Convention No.42.

39. Convention No.19. Ratified by 120 states.

40. Ratified by 23 members.

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industrial accidents and occupational diseases. The Convention lays down the
criteria of eligibility and dependence for availing the benefit of compensation. It
lays down standards in respect of contingencies to be covered, contents duration,
rates etc. of the benefits to be provided in case of employment injury caused by
accidents and occupational diseases.

Each member country which ratifies this Convention is required to

prescribe a definition of “industrial accident” including the conditions under
which a commuting accident is considered to be an industrial accident. Each
member country also has to describe the list of diseases which shall be regarded
as occupational diseases which shall be regarded as occupational diseases under
prescribed conditions.

The Convention prescribes the nature of medical care and allied benefits
which should be available to the injured workman. Medical benefits include not
only services of a medical practitioner and hospitals but also dental,
pharmaceutical and other surgical supplies. It also prescribes that the employer
should provide at the place of work facilities for emergency treatment of persons
sustaining a serious accident. The Convention also prescribes for cash benefits in
respect of loss of earning capacity, periodically or lump sum, for its proper
utilization by the injured workman. The compensation in case of the death of the
workman is prescribed in the nature of periodical payments to the widow or a
disabled and dependent widower and it also provides for funeral expenses.
Ratifying states also promote occupational safety and health, and provide
rehabilitation and placement services for disabled persons.

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 The Convention is appended with a schedule which enumerated the list of
occupational diseases and corresponding work involving exposure to risk.

(f) Recommendations

1. Workmen’s Compensation (Minimum Scale) Recommendation, 1925.

2. Workmen’s Compensation (Jurisdiction) Recommendation, 1925.

3. Workmen’s Compensation (Occupation Diseases).

Recommendations 1 and 2 are supplementary to Workmen’s Compensation

(Accidents) Convention, 1925 and it provides for minimum rates of compensation
and defines surviving dependents entitled to compensation. Recommendation 2
calls for the submission of disputes on workmen’s compensation to special courts or
boards of arbitration on which employers and workers are equally represented and
for recourse to expert advice on question involving degree of incapacity for work.

Recommendation 3 is supplementary convention, relating to occupational

diseases. It calls on member state to adopt a simple procedure for revising the list of
occupational diseases in their national legislation. All the three are superceded by
Employment Injury Benefits Convention, 1964 and Recommendation
Supplementary to this Convention.

(g) Employment Injury Benefit Recommendation, 1964

This recommendation is supplementary to the Convention 1964 and it

envisages the extension of coverage to members of co-operatives,

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self-employed persons, those engaged in small scale business or firms or those
undergoing training for future occupational employment or trade. It is also
recommended to other member of voluntary bodies engaged in combating
natural disasters, with saving lives and property or with maintaining law and
order. It calls for periodical adjustment of rates of cash benefits payable under
the Convention in case of total loss of earning capacity.

F. Unemployment Benefit

(a) Unemployment Provision Convention, 1934

This convention41 was adopted to ensure benefit or allowances to the

involuntary unemployed persons. This Convention was ratified by 14 countries
but later revised in 1988 and the former one is not open for ratification now.

The Convention consists of 23 articles dealing with various aspects of

providing unemployment benefit, condition for eligibility and the period for which
such employment benefit is payable and also the event on the happening of which
such unemployment benefit ceases to continue.

The Convention contemplates that each member state of the ILO which
ratifies this Convention shall undertake to maintain a scheme for the payment of
benefit to the persons who are involuntary unemployed. Such schemes can be
compulsory or voluntary or a combination of both. The national law of the
ratifying member-state may provide for the payment of benefit on allowance and
also the conditions under which a person passes from benefit to allowance.

41. Convention No.44.

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 This convention applies to all persons employed for wages or salary. It also
provides for the age-limit to be prescribed by the national law for the
unemployment benefit and also for qualifying period of eligibility for benefit or
allowance.

The document is disqualified to receive unemployment benefit if it refuses

to accept any suitable employment, to undergo training or if he has lost his
employment as a direct result of a stoppage of work due to trade dispute or has
left it voluntarily without just cause. If the claimant tried to receive any benefit
fraudulently or fails to comply with the instruction of a public employment
exchange, then also he is disqualified to receive any unemployment benefit.

(b) Convention on Employment Promotion and Protection against

Unemployment, 1988

This Convention42 came into force in 1991. It is a comprehensive

convention consisting of 39 articles which are divided into IX parts and provides
a detailed scheme suitable for any enactment. Part I deals with general provision
and calls upon every member to take appropriate steps to co-ordinate its system
of protection against unemployment and its policies relating to employment. It
contemplates that any system providing for protection against unemployment
shall contribute to the promotion of full productive and freely chosen
employment.

Part II deals with full productive and freely chosen employment. It

envisages that each member shall endeavor to establish special programmes to
promote additional job opportunities and employment

42. Convention No.168.Ratified by 6 members

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assistance and encourage freely chosen and productive employment for
identified categories of disadvantaged persons 43 having difficulties in finding
lasting employment. Part IV details the contingencies to be covered by such
schemes which include loss of earning due to partial unemployment,
suspension or reduction of earning, etc. Under Part IV the persons covered are
identified which include not less than 85% of all employees including public
employees and apprentices. Part V explains the methods of protection and such
methods may consist of contributory or non-contributory systems or a
combination of both. Part VI specifies various benefits to be provided. It deals
with the quantum of benefit, qualifying period, calculation of periodical
payments and other conditions that may be prescribed for availing the benefit.
It also provide for duration of any benefit including medical benefit and
conditions under which such benefits can be varied or suspended.

Part VIII consists of special provisions for new applicants for employment
such as young persons who have completed their vocational training or their
studies, divorced or separated persons, released prisoners, adults including
disabled persons or previously employed persons. Part VIII provides for legal
administrative and financial guarantees including any procedure for settlement of
any dispute or claim. Part IX, the last part, deals with final provisions dealing
with ratification, its binding effects, duration, denunciation etc.

43. Means women, young workers, disabled persons, older workers, migrant workers etc.

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(c) Recommendation

Employment Promotion and Protection against Unemployment

Recommendation, 1988

This recommendation is supplementary to the Convention 1988. It deals

with general provision and promotion of productive employment, protection of
unemployed persons and the development and improvement of systems of
protection. It calls upon member states to work out their national policy for the
promotion of full, productive and freely chosen employments.

The ILO offers its co-operation and technical advice for better
implementation of the social security schemes for unemployment benefits and
also to set up a national provident fund to provide periodical cash payments to
the holders of the account in the fund.

Normative Framework of Social Security Evolved from ILO

Documents

In 1944, ILO in its 26th Session convened Philadelphia Recommendation

relating to social security44 and evolved certain guidelines for the income security
in the event of certain contingencies like sickness, maternity, invalidity, old age etc.
This convention was actually adoption of Atlantic Charter45 of UN which declares
contemplates fullest collaboration between all nations in economic field for securing
improved labour standards, economic advancement and social security to all.

44. Income Security Recommendation, 1944.

45. Atlantic Charter 1941, “The fullest collaboration between all nations in the
economic field with the object of securing for all improved labour standards
economic advancement and social security”. Which later adopted by
www.un.org/ aboutun/ charter/history/atlantic.html.

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 In this recommendation, ILO declares that income security is an essential
element of social security and compensation has to be provide for accidents,
occupational diseases, sickness, maternity benefits, old age, invalidity and
widow’s and orphans’ pension and provision for unemployment.

The delegation of governing body adopted the declaration of Santiago de

Chile and established a permanent agency for ensuring co- operation between
social security administrations and institutions functioning in connection with
ILO46. Thus International Social Security Association47 works effectively in
framing and implementing solution48 for contemporary problems in social
security system.

Article 9 of the UN International Covenant on Economic Social & Cultural

Rights provides for everyone’s right to social security, including social insurance.
ICESCR’s preparatory works are silent about the history of this article. The basic
issue of establishing a normative content of right to social security has not been
addressed by human right literature. Since the adoption of ICESCR, the
implementation and promotion of the right to social security has been seen as the
unique task of ILO49 and ILO

46. www.ilo.org/public/english. 25th General Assembly 1995.

47. International Social Security Association was established in the year 1927.
This is world’s leading organization bringing together governments
departments, social security administrations and agencies. Its mandate is to
promote dynamic social security as the social dimensions in a globalizing
world through supporting excellence in social security administration

48. "Tracking workplace trends and problems through extensive research and
publications help ton shape workable solutions to the problem” See Supra N.
2

49. Andrey Chapnam and Sage Russel (Eds.), “Cove Obligations: Building a
Framework for Economic, Social and Cultural Rights”, Intersentia, Oxford,

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(2002), p.89.

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Conventions remain at the centre of process of defining the right to social security.

Hence it is highly necessary to examine what are the convention relating to

social security, what is the role of ILO and what is its impact in India.

The ILO’s work and the standards it has developed remain the most
important source of interpretation in defining social security as a right. As stated
earlier, ILO was born50out of the concern of states, unions and employers
representatives that peace could not be achieved without devoting sufficient
attention to creating the condition for social justice. The Legislative body of ILO
International Conference on Labour which is represented by state, employee and
employer51 is very much concerned about assuring the conditions of social
justice. Initially the conventions of ILO conference concerned about labour
conditions. This Conference adopted a group of conventions which aimed at
committing states to engage themselves in the creation and improvement of
national mechanisms protecting workers from industrial and social risks. These
are Convention on Workmen’s Compensation adopted in 1925,52 Convention on
Sickness Insurance adopted in 1927,53 Convention on Old Age, Invalidity and
Survivors Insurance adopted in 1933,54 Convention

50. Part III of the Treaty of Versailles Constitute the foundation of the ILO.

51. ICL consists of 4 representatives from each member state, two of them are
state delegates, the other two represent employers and workers.

52. Convention No.17 and 18. http/ilotex.ilo.cch:156/public, 24th September, 2007

53. Id., Convention No.24 and 25.

54. Id., Convention No.35 and 40.

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on Unemployment Provision adopted in 1934.55 The notion of social risk
involves sickness and medical care, unemployment, old age benefits, worker
compensation, family and maternity benefits disability and survivors benefit.

Social Security (Minimum Standards) Convention 1952 though does not

provide a single definition of social security; the definition can be construed from
various parts of the convention. To ratify this convention, ILO member state is
obliged to comply (at the time of ratification) with at least three of the following
parts of the convention; medical care, sickness benefits, unemployment benefits, old
age benefits, worker’s compensation, family disability, maternity and survivor’s
benefits and at least one among three must be a provision concerning
unemployment, old age, worker’s compensation, disability or survivors benefits.
Each part of the Convention provides specific standards aimed at guaranteeing the
benefit of social protection and in all cases, states must comply with certain general
parts of the Convention including provision for periodic payments of social
security.56 Social Security assured by this Convention through ratifying it by states
though it provides flexibility according to financial status of states. This
convention paved the way for adoption of several specific conventions
subsequently. Invalidity, Old Age and Survivors Benefits Convention, 1967 and
Medical Care and Sickness Benefits Convention, 1969 aimed at raising the
requirements for the categories of protected persons and the level of protection
provided by national social security schemes covering these risks.

55. Id., Convention No.44.

56. Part XI of the Social Security (Minimum Standard) Convention, 1952.

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 Protected Class of Persons

All social security conventions adopted by the ILO have a difficulty in

defining the protected class of people or persons. ILO has always tried to expand
the categories of persons covered while member states have tried to limit the
prescribed categories to a percentage of waged workers or residents. The Social
Security (Minimum Standard) Convention aims at providing social security
benefits.57 Ensuring a person’s right to live in a healthy and decent conditions and
hence the implementation requires the right to access to all. The level of benefits
depends on this category of persons covered depending on the wages and needs of
them.

Social exclusion i.e., member state may declare that its national scheme
protects an acceptable percentage of protected classes of workers, but this leaves
out many categories of the population, such as non-industrial workers, self
employed and workers in informal sector who often exercise several economic
activities. This poses as a drawback to the present system.

In 1995, International Society Security Association effectively summarized

contemporary problems confronting the model of social security.58 Cut back in
benefits, privatization systems, the need for efficient protection in transnational
countries and the impact of structural adjustments programmes in developing
countries were among them. In 1998, the study conducted by the Council of Europe
on Human Dignity and Social Exclusion in European countries emphasized that
social

57. In case of 9 identified social risks as stated in the Convention. See supra n. 3

58. Supra n.49 at p.96.

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exclusion is not the only result of exposure to a set of social and economic risks.
As against this, social protection has been the historical goal of social security
regime which is seen as specific mean of promoting social protection. The
increasing poverty over the world governs the quest for comprehensive approach to
both social protection and social security. Such an approach would facilitate social
cohesion and inclusion, and protect individuals from social risks.

Since beginning of 1990s, the ILO social security division has been given a
mandate by the International Labour Conference to search for solutions that can
include “other workers” in a social protection scheme. Naturally the ILO used
the principles of social security as a human right to govern its work.59The
Conference finds the essentials of social security to be provided to all are:

1. the provision of benefits to households and individuals.

2. through public or collective arrangements

3. aimed at protecting against low or declining living standard and

4. that arises from basic risks and needs.

Informal Workers and Social Security Needs

The social security needs of informal workers include (1) Health care
costs; (2) Survivors benefits; (3) Disability benefits; (4) Maternity and child care
benefits (all four addressed by 102 conventions).

59. See Wonter Van Ginnekan, “Social Security for the Informal Sector: Issues
Option and tasks Ahead”, ILO, Geneva 1996. Available on
ilo.org/public/english/110secsoc/ techmeet/ wonter2.htm., 24th September, 2007

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 The proposals60 by ILO for evaluating existing previously established
schemes are:

(i) improving the access to basic health services by means of government

financial supply of services in terms of types of service in an
equitable manner;

(ii) promoting self financial social insurance after having identified the
limits and the viability of public and private insurance schemes;

(iii) evaluating existing programmes in terms of administrative costs per

beneficiary;

(iv) analyzing the cost-effectiveness of social security programmes compared

with other anti-poverty programmes such as employment guarantee
schemes and food subsidies to consumers;

(v) analyzing the role of social assistance programmes and their

relationship to other anti-poverty means; and

(vi) extending formal sector social security schemes.

Minimum Content of Right to Social Security

The right to social security, as guaranteed in the ICESCR,61 makes no

reference to the ILO Conventions on social security. Although it is important not
to depart from its historic roots to understand this right, it is nevertheless possible
to offer a minimal definition that is more flexible than the one proposed in ILO

60. See also http/www.ilo.org/publicenglish/110secso/step/frame.htm. 24th September, 2007

61. Article IX.

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conventions. (This flexibility would respect the urgency of action as well as the
limited means of states with obligations to implement the right to social
security). The minimum and immediate content of right to social security with a
useful framework is made available to financial institutions, donors, human right
agencies and NGO (working in the field) as a guiding principle are:

(i) The model: Social security as a human right not as a commodity,

relies on collective funding. This can be of different types: public,
professional or community. In all these cases, it is a basic and minimal
requirement of the right that it be supervised by an independent,
participatory and regulated body.

(ii) Contribution and Benefits: The benefits must be defined in advance,

along with contributions that do not exceed a reasonable percentage
of available income (whatever its source) how small or minimal the
benefit it is.

(iii) Risks: According to the principle of inter-dependence of all human

rights, and in order to implement the right to social security as well as
the right to an adequate standard of living in Article II of ICESCR risks
related to health care, sickness benefits, survivor’s benefits and maternity
benefits must be given priority.

(iv) Coverage: States are to undertake negotiations with civil society

aimed at guaranteeing social security for all, including the self-
employed, rural workers and workers in the informal sector.
Provision must be made for periods of time when the

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 insured person, family or group is not able to contribute to the system.
In all cases social security programmes should be subject by law to
such requirement.

(v) Discrimination: In accordance with the comment62 adopted by the

ICESCR and in view of the fundamental nature of the right to be
protected from discrimination states will:

 Create an advisory body whose mandate is to identify direct and

indirect discriminatory effect of the social security system and to
suggest ways of implementing more inclusive patterns.

 Guarantee them that human rights codes will apply to all

dimensions of social security system. The right to benefit equally
from social security will include protection from discrimination
based on source of income.

ILO and India: An Appraisal

Among all these Conventions, India ratified only four Conventions:63 They are:

(i) Workmen’s Compensation (Occupational Diseases) Convention, 1925;

(ii) Equality Treatment (Accident Compensation), 1925;

62. See CESCR, General Comment No.9, the domestic application of the
Covenant (9th Session) 1988 UN Doc E/C.12/1998/24.

63. Johnwood, “International Labour Organization Convention: Labour Code or

Treaties?” 40 I.C.L.Q. pp.649-657(1991)

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 (iii) Workmen’s Compensation (Occupational Diseases) Revised
Convention, 1934; and

(iv) Equality of Treatment (Social Security) Convention, 1962.

ILO, an organization committed to the case of social justice, India a

welfare state committed to the same goal. The approach of India with regard to
international labour standards always has been positive. The ILO instruments
have provided “guidelines and useful framework for the evolution of legislative
and administrative measures for the protection and advancement of interest of
workers”64. But, India’s response to ratification of ILO Conventions relating to
social security has been poor65. But effective implementation of the ILO
Convention can be noticed though legislations and administrative actions66.

Conclusion

From the colonial era till independence and even after that almost all the
labour welfare legislations in India are preceded or supported by ILO documents
or publications. During the period 1942- 1951 many committees were appointed
for advancing social security of labour force and these decisions were influenced
by ILO publications67. The Commission on Social Security appointed in 1943
which was headed by

64. See, http://labour.nic.in/ilas/indiaandilo.htm, accessed on 21st May, 2009

65. India has not even ratified The Social Security Minimum Standard Convention (no.102),
1952

66. Minitsry of Labour explains that ratification imposes legally binding

obligations and hence India is careful in ratifying Conventions. India ratifies
a Convention only if all laws and practices are in conformity with the
relevant convention. India adopted a strategy to proceed with progassive
implementation of standards and ratification at a later stage. See,
http://labour.nic.in/ilas/indiaandilo.htm, 24th September, 2007

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67. ILO Documents, Approaches to Social Security –An International Survey,
published in 1942 and Social Security Principles and Problems Arising Out of
War, published in 1944.

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Professor Adarkar filed a Report and ILO appointed experts to review that report.
This report formed the basis of Employees’ State Insurance Act, 1948 which is
providing basic social security benefits such as sickness benefit, disablement
benefit, maternity benefit, dependant’s benefit and funeral expenses. Though
India has not ratified even the flagship ILO Convention on Social Security68 all
the nine areas identified in the convention and other related conventions are
made part of social security schemes in India. It is reasonable to conclude that
India has incorporated the obligation contemplated in the ratified and unratified
Conventions through the Constitution and legislations. However, the OECD
Report says that nine out ten employees in India are out of social security
coverage69.

….... …....

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68. Convention No.102

69. OECD, Policy Brief, Is informal Normal?Towards More and Better Jobs in
Developing Countries,(2009)

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