JUDICIAL RESPONCE TO THE “SOCIAL

SECURITY”

According to our Constitution, we live in a welfare state. Being the biggest democracy in the world, it is
quite difficult for the Executive to make sure that everyone receives the social security that is intended
for them. Social Welfare is a concept that is part of our decision-making ever since we gained freedom.
Many schemes have been tried and launched in relation to social welfare issues such as healthcare,
education, jobs, and rural and agricultural development. In fact, despite having little financial resources
in the first 20 to 25 years, the government prioritised welfare measures and inclusive growth. However,
recent times have seen a change in the Governmental policy1.

The Indian Constitution establishes a comprehensive social security system that includes better and
more humane working conditions in addition to medical and economic security. According to the
Constitution, the state has a responsibility to enhance the living conditions and nutritional status of all of
its residents. These constitutional requirements place a legal obligation on the State to create Social
Security in the manner described above.

In reality, under Part III of the Constitution's Article 23, trafficking and comparable kinds of forced labour
are forbidden. Child labour in factories is prohibited under Article 24 and is further guaranteed by Part
III.

Some of the most important judicial rulings that uphold and defend employees' "Right to Social
Security." The Hon'ble Supreme Court stated in the case Problems and Miseries of Migrant Labourers2
that registration of the employees is necessary in order to obtain any benefits flowing from any scheme
created by the Center or States for the benefit of unorganised workers or migrant workers. Although
numerous registration procedures exist under several statutory statutes, it has been noted that no State
has been able to provide information regarding whether registration overall under the Unorganized
Workers Social Security Act, 2008, is complete.

The Court also stated that "We are of the opinion that registration of unorganised workers should be
completed as soon as possible and that there should be a Common National Database for all organised
workers located in different States throughout the entire country. We are also of the opinion that the
Ministry of Labor and Employment's process for creating a National Database for Unorganized Workers
should be completed with the cooperation and coordination of the other relevant government

1
Live Law, Social Security in India During COVID-19, (Available at;https://www.livelaw.in/columns/social-
security-in-india-during-covid-19-157373, Last visited on 7th June 2021)
2
Suo Motu Writ Petition (Civil) No(s).6/2020
agencies."

In the aforementioned instance, the Court also noted that the Social Security Code, which was passed in
2020, had repealed the Unorganized Workers Social Security Act. The Court has additionally highlighted
that platforms, gig workers, and unorganised workers may be registered under Section 112 of the Code
of Social Security, 2020. As a result, the Order specifies that the Solicitor-General must seek guidance
regarding the actions to be taken in this regard.

A number of petitions challenging the constitutionality of the MHA Order were submitted to the Hon'ble
Supreme Court in Ficus Pax Private Limited vs. Union of India &Ors.,3 Ficus Pax Private Limited,
situated in Karnataka, filed a writ petition contesting the constitutional validity of the MHA Order as well
as an advisory dated March 20, 2020, on the grounds that they violated Articles 14 and 19(1)(g) of the
Constitution of India and were against the principles of "equal work, equal pay" and "no work, no pay"
by failing to differentiate between the workers so covered.

The petitioners said that many industries were unsustainable and already on the verge of going out of
business as a result of the pandemic and the following lockdown, and that paying their workers their full
wages would put them out of business.

While conducting a video conference hearing on numerous petitions concerning the issue on May 15,
2020, the Apex Court ordered the Central Government to refrain from taking any coercive action for a
week against businesses and employers who were unable to pay their workers' full wages during the
country-wide lockdown. The MHA Order was passed with the intention of preventing human suffering
during the national lock down, and the directives contained therein were a temporary measure to lessen
the financial hardship of the employees and workers, especially contractual and casual workers, during
the lock down period, according to the Attorney General's argument before the court.

The MHA asserted in its counter-affidavit that the corporations' allegation of financial incapacity is a
legally questionable basis for contesting the MHA Order7.

In a long-awaited decision, the Supreme Court decided that universally paid allowances would be
considered a part of "basic salaries" for the purposes of provident fund (PF) payments in an order dated
February 28, 2019. In connection with many appeals on this matter that were pending before the
Supreme Court in the cases of Surya Roshni Ltd., etc., this common order was made. Since it resolves a
long-running dispute over which compensation components are subject to PF payments, this decision
may have a considerable financial impact on some organisations.

Employers are required to contribute 12% of a worker's basic pay, dearness allowance, and retention
allowance to PF, while workers are obligated to match that payment through payroll deductions. In
essence, the Bridge and Roof Co. (India) Ltd. v. Union of India case case's guiding principles have been
supported by the Supreme Court. According to the Bridge and Roof case, all universal benefits should be
regarded as "basic salaries" and as such, be liable to PF contributions. However, there are certain gaps
that should be closed, such the few terms that are still unclear. There is neither a standardised concept
3
W.P. (C) Diary No. 10983/2020
of "social security" nor a centralised fund.

It is suggested that the corpus be divided up into multiple minor funds, which would lead to confusion
and a multitude of authority. There is a lack of definitions for key terms like "workers," "principal-agent"
in a contractual setting, and "organised-unorganised" sectors. Important social security benefits
including PF, gratuities, maternity benefits, and health care will continue to be hindered as a result. The
code omits the extensive descriptions of many schemes. Although it was suggested that provident fund
and ESI coverage be extended to temporary workers, it did not outline a complete plan that would
satisfy everyone's social security needs.Even while the Code is unambiguous about employee and
employer contributions, there is no obligation on the part of the government to pay into the designated
social security measures.

The Code on Social Security Act, 2020 welcomes "gigworkers," such as those employed by taxi
aggregator businesses like Uber and Ola, to the workforce. However, it is unclear exactly how the
government plans to make it easier for them to get PF or medical care. Additionally, in these situations,
the obligations are not outlined in the Code of 2020 due to the nature of the connection between the
business and the working personnel.