Propagated by Dr. B.R. Ambedkar, India witnessed its first Maternity Benefits Act in the Province of Bombay back in 1929. Dr. Ambedkar opposed objections to the Act such as ‘pregnancy doesn’t come under the category of accidents and hence, cannot be compensated’. He debated for the Bill to be passed stating that the cost of the compensation should be borne by the Government as well as the employer and that it should be applicable only to factories since the hardships faced by women in factories is much higher than in any other sector that employed women in the era. All subsequent Acts have followed along the same lines albeit with many major developments resulting from the increase of women representatives in policy making and increase in understanding of women issues.
Maternity benefits are something that all women should be entitled to, both before and after childbirth. With the increase in participation of women in broad occupational categories, it is necessary that maternity benefits should be provided in both government and private sectors. The primary reason for providing maternity benefits is to preserve and protect the self-respect of motherhood and to ensure the health and safety of the mother as well as the child. Maternity benefits are also necessary to ensure the continued financial independence and self-reliance of women.
Certain provisions for maternity benefits can also be derived from the Indian Constitution. Article 15(3) empowers the State to frame such laws as may be necessary to provide “protective discrimination” to women and children, and maternity being an important aspect of a woman’s life, the Maternity Benefits Act, 2017 (and the Maternity Benefits Act, 1961 before that) is a measure of such protective discrimination.
The recent Maternity Benefits Act, 2017 amended the Maternity Benefits Act, 1961 and brought about certain necessary changes. Following are some of the major amendments that have been made to the Act:
- The most important provision of the amendment is the increase in the duration of paid maternity leave from 12 weeks to 26 weeks. However, where a woman has two or more surviving children, she may only be entitled to 12 weeks of paid leave.
- The amendment also acknowledges the struggles of surrogate mothers and adoptive mothers to a certain extent. They may claim paid leave for 12 weeks starting from the day the child is handed over to them. However, this may only be claimed if the child is below three months of age.
- The amendment also makes provision for a period of work from home after the maternity leave is over. This may be on terms mutually agreed upon by the woman and her employer.
- The amendment makes it mandatory for all employers to inform the women employees of the benefits available to them under the Maternity Benefits Act.
- The amendment also obligates all employers, with 50 or more employees, to make provisions for creche facilities. The mother may visit the creche facility four times a day.
Although the Amended Act addresses many issues regarding maternity benefits to be provided in both public and private sectors, there is still more necessary. There also seems to be a lack of clarity in many provisions of the Act. Following are a few factors that can be considered to be drawbacks of the Act:
- First and foremost is the non-inclusion of the unorganized sector as the beneficiaries of the Act. The unorganized sector is easily the most labour intensive sector in India and most prone to exploitation of employees. Not extending the Maternity Benefits Act to the unorganized sector leads to the possibility of employers laying off women employees. On the other hand, it could also mean that women employees continue to work even during and after pregnancy, leading to health and safety problems for the woman as well as the child.
- As India becomes more cosmopolitan, more and more fathers are keen on taking an interest in the upbringing of the child. Hence, there exists a need to make certain benefits of the act available to the male employees as well. One such provision is that for creche facilities.
- The Act also provides for mothers who commission surrogacy. While the Surrogacy (Regulation) Bill, 2016 makes it rather difficult for any woman to commission surrogacy, the Maternity Benefits Act, 2017 makes provision for the commissioning mother to be entitled to maternity benefits. There is, however, no provision for surrogate mothers.
The courts in India have been working overtime to deliver such judgments as can only describe their approach to be liberal and aware of the need for maternity benefits. Even after the amendment, the courts have further clarified and extended the position of law under the Maternity Benefit Act. The Central Administrative Tribunal, in the case of Anuradha Arya v. The Principal, Government Girls’ Senior Secondary School, stated that temporary, contract, as well as ad-hoc staff, are entitled to maternity leave and such other benefits as are provided to regular staff members. In the said case, a guest teacher at the Government Girls’ Senior Secondary School, West Patel Nagar was denied maternity leave and then terminated orally when she was forced to take unsanctioned leave. The CAT ruled in favour of the guest teacher further directing the school to reinstate her, stating that the school will also have to pay her back wages and all other consequential benefits.
Justice N. Kirubakaran in a Kerala High Court judgement for a writ filed before it stated that maternity leave must be included in the period of service of women employees and that any rule or law that excludes the same shall be deemed to be null and void. The petition before the Court was brought by a young medical student working at a Primary Care Centre during which she had taken a maternity leave. She then qualified to pursue further studies at a medical college. The Deputy Director of Health Services refused to discharge her from the Centre stating that she had not completed the requisite two years at the Centre owing to her absence during the maternity leave. The Court reiterated the need for maternity leaves for working women and stated that it shall be included in the period of service.
The Kerala High Court, in another recent judgement for Mini K.T. v. Life Insurance Corporation of India also upheld the right of a woman to take leave for an extended time for looking after her child suffering from autism. The Court held that motherhood is integral to the dignity of the woman and that she can’t be asked to choose between motherhood and employment.
Before the amendment to the Act, the courts have repeatedly upheld and extended the scope of Maternity Benefits provided to women in various sectors. In the case of Municipal Corporation of Delhi v. Female Workers (Muster Rolls), the Supreme Court held that maternity leave should also be provided to daily wage workers. It held that since there is no difference in the work allotted to the regular employees and the daily wage workers, maternity leave should also be extended to the women workers on the muster rolls.
Overall, the Maternity Benefits Act, 2017 is a major step in the right direction to the extent that women rights are concerned. However, such steps should be taken as may be necessary so as to ensure that these provisions do not dissuade employers from employing more women in both public and private sectors. Moreover, the lack of clarity on certain issues in the Act must be removed in the near future including the issue regarding the fate of women in the unorganized sector.