This blog is authored by Muskan Deora, 3rd - year law student at Institute of Law, Nirma University.
The Social Security laws are not a very recent development in the field on labour laws. They traces their existence since from the time of ancient India under the aegis of “Dharma”. But very often the women were able to reap the fruits of such social security provisions. The women, since time immemorial, were subjected to the laws made by men, and for men. Although the Indian Philosophy provides a dual imagery of women, one as being benevolent and other as Shakti but the laws and social arena are not in consonance to these fascinating imagery. There are various National and International documents, covenants and Treaties in place to safeguard the rights of women to social security. The Constitution of India provides a solid and elaborative structure to safeguard the rights and status of women in Indian society, emanating as fundamental rights, DPSPs and various other constitutional rights. But the practical and legal arena displays an altogether different aspect to the situation.. The legal framework shows that the social security laws are still entrenched with the patronizing approach and paternalistic views. They are based on various discriminatory assumptions giving rise to indirect gender inequality treating women as weaker, inefficient, and dependent. The Romantic Paternalism of society finds its way to rule the “rule of law” and creating unnecessary hurdles for the women to enjoy the benefits of Social security. The laws are based on unequal and discriminatory premises and posing a question that how can there be Equal protection of law when the law itself is unequal.
“Social Security is the dance between personal dignity & development in economic terms.”
- Dr. S. Srinivasan
Until very recent, the laws were primarily focused on men and it is only after the Universal Declaration of Human Rights, the legal field has recognised women as being the equal stakeholders. According to Martha Thomas, “..it was a man’s world, the laws were man’s laws and the government a man’s government..” There were different perceptions and perspectives that exist for women since inception. The ancient Indian history also has a varied imagery for women where they considered women as divine force. The philosophy claims dual character of women, where, on one hand she is portrayed as being patient, calm and benevolent, on the other hand, she is considered aggressor and represent power in the image of “Shakti” . But the position has changed with time and the patriarchal social structure took hold of the situation in which women were considered as Husband’s property. Although the modern legal framework emanating from the Constitution of India as a grundnorm assigned a special position to women. The Constitution recognize equal protection to all its citizens but still gender equality is not wholly recognized in the Indian Society.
The Constitution focuses on social, economic and political justice to all its citizens, irrespective of their gender and this specific mandate give rise to various social security legislations. Although the concept of Social Security is not a new one and has been developed in ancient India even before the British Colonization and Industrialization. This was a facet of the idea of “Dharma” aiming to eradicate the miseries of people. The concept focused more on social rights and individual duties rather than individual rights. It is based on the ideals of social justice and human dignity. But at present the definition, and parameters of Social Security has different connotations and are guided by national constraints and priorities set up in light of the International Standards. Article 22 and 25 of the Universal Declaration of Human Rights. 1948 along with various other International and Regional treaties enshrined the Right to social security in case of circumstances beyond the control of a person.
Section 2(78) of the Social Security Code 2020 defines Social Security as, “measures of protection affordable to… …ensure access to health and provide income security….” The definition covers employees, unorganized workers, gig workers and platform workers, and focuses on income security particularly in case of old age, unemployment, sickness, invalidity, work injury, maternity or loss of a breadwinner.
On one hand, this legislation has recognised women as being vulnerable and deprived, but the social security provisions under the Code, covering a gamut of needs are entrenched in notions of family where women are the dependent ones. They failed to recognize the distinction and nuances of women’s paid work outside and unpaid work within the household. As argued by the Feminist author Harriet Taylor that the change in the status of women can only be possible when the viewpoint towards them will change from being servant to partners. Batty Friedman termed it as being “feminine mystique” and “A problem that has no name” as everyone knows what the problem is but nobody is talking about it. She argued that romanticizing women as being happy housewife and idealizing womanhood is the root of the problem.
It is known that India is an agricultural country where more than half of the labour force is working in the agriculture sector earning very low wages. This massive “scale of need” cumulated with the deprivations in areas of social provisions mean that only social assistance cannot be a panacea, but it requires a broader rights based and socially transformative approach.
Religion has always been, an ineffaceable part of our lives since time immemorial and Indians are inherently religious. This Social context of religion and caste system intersect with gender to create a hierarchical structure to generate compounded forms of disadvantage for women. Despite the increasing gender parity, as per the World Bank, the Female labour force participation rate has declined to mere 20.5 percent in 2019 from 30.3 percent in 1990. This shows that how all the promises, efforts, legal national and international documents fails impact the ground level and reach the vulnerable. It is to be mentioned here that the women from marginalised groups, scheduled tribes and castes have the highest rate of participation in this workforce because of their extreme poverty and being free from social taboos related to work of women and Muslim women has the least participation because of their religious and cultural connotations. The new Codes has come up with certain changes entitling women to be employed in all establishments for all types of work and even during night but that is not enough. The Social Security cover has also been revisited in terms of maternity benefits to women, such as making it illegal to knowingly employ women within six weeks from delivery of child, miscarriage or medical termination, compulsory bonus, creche facility and nursing breaks.
It is to mention here that while analysing the normative content of Social Security, it must be noted that it also includes “right not to be subjected to arbitrary and unreasonable restrictions of existing social security.” The state shall ensure that the right is without any discrimination, whether in law or in fact, direct or indirect. This right is also recognised in principle under Article 14 and 15 of the Constitution of India and was reiterated in the case of Rani Raj Rajeshwari vs State of Uttar Pradesh wherein the Court held that under the garb of Article 15(3), the state cannot make assumptions that will lead to discrimination against women.
If we look at Section 8 of the Employees Compensation Act, 1923 or the equivalent Section 81 of the Code on Social Security then it is based on the same paternalistic and discriminatory approach towards women, which considered her as being economic dependent. There has be a Reason based vs Effect based Test analysis to conclude that why the provision is required and what are its effects on the status of women.
The Section reads as follows, “….and no payment of a lump sum as compensation to a woman or a person under a legal disability, shall be made otherwise than by deposit with the competent authority…”
This provision, in effect, reflects the approach of “Romantic Paternalism ” which expressly violates the principles of Gender Equality and social justice. The thing that must be kept in mind is that while making a welfare legislation under the ambit of Constitution, we have to provide special status to women based on their motherhood and different capabilities, but this certainly does not mean that we can assume that they are weaker in proving their potentialities in any sphere of work. This is also violative of the normative content of the Social Security being arbitrary and unreasonable, whereby inflicting indirect discrimination.
Further, if we look at the most celebrated Scheme under Mahatma Gandhi National Rural Employment Act (MNREGA), the aim of the Act was to provide rural employment but it is one of the prominent social security legislation as well because it guarantees unemployment allowance if work is not provided within 15 days. But it is also shackled under the same patronizing approach of state and family institutions. The basic Unit for this Act or Scheme is not the individual but family which is defined as, “members of a family related to each other by blood, marriage or adoption and normally residing together and sharing meals or holding a common ration card.” The definition focuses on relations of blood, marriage or adoption thereby excluding all other relationships such as same-sex partners and non-marital domestic partners. This reinforces the single form of family and it is problematic for the Indian context because here the intra-household inequalities would shape the access to work which is not in favour of women in India, as already been mentioned. The basis of the entitlement schemes must be individuals and not this discriminatory approach. There is an inclusion of child care in the Act acknowledging the house-chores responsibility of women but it again failed to provide the gender parity as it assumes that only women has the responsibility towards the children.
It is now high time that we must work on the conceptual approach focusing on the principles for substantive and normative content of social security so that we can implement a proper international and constitutional framework which extends to all, irrespective or their genders, castes, religion or otherwise. The abovementioned analysis aptly highlights that there is a need that we must approach the issue with conceptual clarity and then move towards the normative content to make the social security laws available to the vulnerable masses.
-Muskan Deora
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