Maternity Benefits in India

    Maternity Benefits are essential in protecting the health of the women and child. In India, pregnant working women are protected under the Maternity Benefit Act, 1961. This Act is enacted in accordance with Article 42 of the Constitution, which specifies that the State shall provide for the safeguarding of equal and humane working conditions and maternity benefits. According to this article, the Parliament has enacted this Act purely for working pregnant women. There are many other legislations present like the Factories Act, 1948, Unorganized Workers Social Security Act, 2008 and the Employees State Insurance Act, 1948 provides maternity benefits for women, however, the scope of the applications of these Acts is mainly limited only to government establishments which are directed against the decision of the Supreme Court in Govt. Of Andhra Pradesh v. P.B. Vijayakumar & Anr[1] which clearly states that “the benefits under the Act would squarely apply to every woman irrespective of the fact that in what manner she is employed, ranging from situations involving employment as daily wagers, casual employees and contractual employees.” Hence, the Maternity Benefit Act, 1961 was passed so as to create a uniform maternity benefit to all the pregnant working women in the country.

    The main aim of the Maternity Benefit Act, 1961 is to provide for the maintenance of the women and her child when she is not working and to provide a comfortable environment for the women to be able to work. For a certain period pre and post-childbirth, the Act governs the employment of women. According to Section 2 of the Maternity Benefit Act, 1961, it is applicable only to those women working in mines, factories shops, establishments and so on, who employ ten or more people.[2]

    One of the most important cases in relation to Maternity Benefits was the B. Shah v. Presiding Officer[3], in this case, the main issue was whether working women on maternity leave should be even paid on weekends in particular on Sundays. The Supreme Court after a lot of deliberations held that the women on maternity leave were entitled to be paid maternity benefits all through the week including Sundays. But this case did not only deal with the computation of holidays but took into consideration the whole scope of the social welfare of the working women. It laid down that while interpreting legislations like the Maternity Benefits Act, major consideration must be given to objectives behind the enactment and that in this case providing social justice to the women workers.

    Municipal Corporation of Delhi v. Female Workers[4]: In this case, the Union of Female Workers, who were not on daily payroll but were treated as temporary workers, argued that maternity benefits such as regular workers should also be obtained. The Court held that the provisions of the Act must suggest that they are entirely compatible with the State Policy Principles of the Directive, as provided for in Article 39 and in other Documents, in particular Article 42. At the time of advanced pregnancy, a female employee should not be required to do hard labour as it would be hazardous to her health and even to the fetus’ health. For this reason, the Act specifies that she is entitled to maternity leave for certain periods before and after childbirth.

    https://legalreadings.com/judicial-review-in-need-of-reform/

    Conventions on Maternity

    The first Convention on the Protection of Pregnancy, the 1919 Convention on the Work of Women Before and After Childbirth (Convention No. 3), was adopted at the first International Labour Conference (ILC) in 1919. This Convention was accompanied by two other conventions: the Convention on the Protection of Maternity (Revised), 1952 (Convention No. 103) and the Convention on the Revision of the Convention on the Protection of Maternity (Convention No. 183) in 2000, which gradually extended their scope of application.[5]

    Major Changes to the Maternity Benefits Act,1961

    There were some major amendments to the Maternity Benefits Act, brought forth by the 2017 amendment to the Act. The ‘Six Months Paid Leave Scheme’ was one of the most significant clauses.[6] The International Labour Organization (ILO) along with the help of experts like World Health Organization (WHO) had formulated the Maternity Protection Convention, in which Article 4 deemed it necessary that no less than 14 weeks is to be granted to women as maternity leave.[7]Article 25 of the Universal Declaration of Human Rights (UDHR) states that, based on this principle, motherhood and childhood should be entitled to be given special treatment and assistance.[8] The International instruments so mentioned and many more were instrumental in developing the Maternity Benefit (Amendment) Act, 2017 during the Indian Labour Conference.[9]

    Accordingly, some of the major changes brought forth by the amendment of 2017, now the duration of the paid maternity leave is extended to 26 weeks from the previous duration of 12 weeks. The Act now extends to adoptive mothers as well. Any woman who has adopted a child will get 12 weeks of maternity leave from the date of adoption.[10] The Maternity Benefit (Amendment) Act, 2017 also introduces work from home option after the expiry of 26 weeks but it is up to the discretion of the conditions laid by the employer.[11] Every establishment employing 50 or more women should have a crèche facility and the women can visit the facility 4 times a day.[12] The Act also emphasizes that women should be made aware of the maternity benefits at the time of employment which should be made in writing as well as electronically.[13]

    Conclusion

    Maternity Benefit is integral to all the working women in any part of the world. Therefore, the amendments brought forth are beneficial and a positive move by the government. But at the same time, there is still a lot more the government can do to improve the benefits provided for instance in removing the minimum requirement of 10 employees would be beneficial to those working in the unorganised sector like in domestic help, farms and so on. Removing the gender disparity by providing paternity benefits so as the onus does not only fall on the women and also for the government to provide financial schemes for the employers because of the Act as it is now placing all the financial burden on the employers which would dissuade them from employing women workers. Then there are many other recommendations which can be provided in terms of Alternative Dispute Resolution (ADR) and to provide schemes to support women in the unorganised sector,  not in terms of monetary assistance but other institutional support. Although there are quite a few setbacks, India is third worldwide in the amount of maternity benefits given to women employees by the amended provisions made by the government. Leading companies like Zomato and Novartis (Major Pharmaceutical Company) in India are already taking the initiative in removing gender-disparity by providing its male employees with a 26-week paid paternity leave.[14] Therefore, in the coming years, we can see the above shortcomings rectified by the government and work towards ensuring a better workplace for women workers.

    References

    [1] Govt. Of Andhra Pradesh v. P.B. Vijayakumar & Anr, AIR 1995 SC 1648.

    [2] Maternity Benefit Act 1961, India, available at: https://www.indiacode.nic.in/show-data?actid=AC_CEN_6_6_00024_196153_1517807324059&sectionId=42071&sectionno=2&orderno=2 (last visited on 4th October, 2020).

    [3] B. Shah v. Presiding Officer, AIR 1978 SC 12.

    [4] Municipal Corporation of Delhi v. Female Workers, (2000) SCC 224.

    [5] Richa Jhanwar, HNLU, “The Need for Maternity Benefits for Women Employee”, available at: https://www.lawctopus.com/academike/the-need-for-maternity-benefits-for-women-employee/ (last visited on 4th October, 2020).

    [6] Preetha S, Nishanth Ravindran, Ajay Solanki & Vikram Shroff, “MATERNITY LEAVE IN INDIA INCREASED TO SIX MONTHS”, available at: http://nishithdesai.com/information/news-storage/news-details/article/maternity-leave-in-india-increased-to-six-months.html (last visited on 4th October, 2020).

    [7] Maternity Protection Convention, 2000 (No. 183), ILO, available at:  https://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_ILO_CODE:C183#:~:text=4.,5. (last visited on 4th October, 2020).

    [8] Universal Declaration of Human Rights, United Nations, available at:  https://www.un.org/en/universal-declaration-human-rights/ (last visited on 4th October, 2020).

    [9] Maternity Benefit Act 1961, India, available at:  https://www.indiacode.nic.in/show-data?actid=AC_CEN_6_6_00024_196153_1517807324059&sectionId=42071&sectionno=2&orderno=2 (last visited on 4th October, 2020).

    [10] Clarifications Issued By the Ministry of Labour & Employment In Relation To Maternity Benefit (Amendment) Act, 2017, Section 5 (4), available at: https://labour.gov.in/sites/default/files/Maternity%20Benefit%20Amendment%20Act%2C2017%20.pdf (last visited on 4th October, 2020).

    [11] Clarifications Issued By the Ministry of Labour & Employment In Relation To Maternity Benefit (Amendment) Act, 2017, Section 5 (5), available at: https://labour.gov.in/sites/default/files/Maternity%20Benefit%20Amendment%20Act%2C2017%20.pdf (last visited on 4th October, 2020).

    [12] Clarifications Issued By the Ministry of Labour & Employment In Relation To Maternity Benefit (Amendment) Act, 2017, Section 11 A (1), available at: https://labour.gov.in/sites/default/files/Maternity%20Benefit%20Amendment%20Act%2C2017%20.pdf (last visited on 4th October, 2020).

    [13] Clarifications Issued By the Ministry of Labour & Employment In Relation To Maternity Benefit (Amendment) Act, 2017, Section 11 A (2), available at: https://labour.gov.in/sites/default/files/Maternity%20Benefit%20Amendment%20Act%2C2017%20.pdf (last visited on 4th October, 2020).

    [14] Rhea Arora, “Here’s why the Indian government is amending Maternity Benefits Act”, available at: https://qrius.com/heres-why-the-indian-government-is-amending-maternity-benefits-act/ (last visited on 4th October, 2020). 


    BY JATIN JOHNS PALY | NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES, KOCHI

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