Women are entitled to every benefit during the pregnancy, as the child-bearing process is profoundly painful and can cause bodily damage. This may severely affect efficiency as an employee and decrease productivity. Maternity Benefit aims to regulate the employment of women employees in every establishment for a period before and after the childbirth and provides for maternity and other benefits.
Historically, maternity in India has been treated as a state of disability in women employees from undertaking any work during the pre and post weeks following childbirth. With the emergence of the Wage Labour system in the industrial undertakings, most employers intended to terminate the services of the women employees/workers, when they found that maternity interfered with the performance of the duties by women workers. Many women workers had been sent on leave without pay during this period to retain their employment. Many had to bear a heavy strain to keep their efficiency during the pregnancy which was injurious to the mental and physical health of both the mother and the child. Hence, the concept of maternity benefit was desperately needed to enable the women workers to carry on the social function of the child; bearing and rearing without danger on their health and loss of wages.
Before the enactment of the Maternity Benefit Act, 1961, there were in force several Central and State Maternity Benefit Acts in the country without any uniformity in their provisions. This objective was achieved by the enactment of the Employees’ State Insurance Act, 1948 suspending the provisions of several Maternity Benefit Acts. However, the act did not cover all women workers in the country. Therefore, the Maternity Benefit Act, 1961 was enacted to provide uniform maternity benefit for women workers in certain industries not covered by the Employees’ State Insurance Act, 1948. To protect the Rights of Women Employees during pregnancy and after childbirth, the act makes it mandatory for most establishments to offer maternity benefits to women employees. These are mainly governed by the Maternity Benefit Act, 1961 that applies to all shops and establishments with 10 or more employees. Those women who work in factories with 10 or more workers are given maternity benefits as available under the Employees’ State Insurance Act, 1948.
The primary objective of the act was to protect the dignity of ‘Motherhood’ when she is not able to perform her duty due to her maternal health situations.
The Need for Maternity Benefits
In post-independence India, the society where women were economically dependent, gave rise to their subordination and dependence upon men. It was a time when the foundations of Equality were being laid so that the women in society shall be treated equally in comparison to the benefits men enjoy while the women under the compass of narrow backward society were dependent on the men mentally, economically and socially. The idea was to remove such subordination and to uplift the women in the society making them economically independent, being an active role in every sector of business today. To support such initiatives, the Government decided to enact laws and policies to safeguard and provide better conditions that are suitable for the needs of women in the fast-moving world. Among the problems faced by women in society, their biological role in child-bearing is an important aspect to be safeguarded. To curb such socially drawn aspects and protect the economic rights of women there was a need for maternity benefits for female employees.
Women are empowered to these benefits as the child-bearing process is profoundly painful and can cause bodily damage. This may severely affect the efficiency as an employee and decrease productivity, hence there was the need for maternity benefits for the women employees, also to safeguard working women and their rights to remain self-reliant and economically independent. Whatever be the nature of their duties, their passion and the place where they work; they must be provided all the facilities to which they are entitled and profound. Being a mother is the most natural phenomenon in the life of a woman. The need to ease the birth of the child to a woman who is in service. The employer has to be solicitous and congenial towards her and must realize the physical difficulties which a working woman would face in performing her duties at the workplace while carrying a baby in the womb or while rearing up the child after birth.
Provisions of the Constitution of India
The Constitution of India provides that women shall be entitled to equal rights and privileges for their betterment and upliftment. These are Article 14: Right to equality in law, Article 15: Right to social equality, Article 16: Right to social equality in employment, Article 39 (a): Right to adequate means of livelihood, Article 39 (d): Right to equal pay for equal work, Article 39 (e): Right that the health and strength of workers both men and women are not abused, Article 42: Right to just and humane conditions of work and maternity relief and Article 46: Right to improvement in employment opportunities and conditions of the working women.
Article 15 (3) of the Constitution empowers the State to make special provisions for women. It is based on ‘protective discrimination’ keeping in view the weak physical position of women. Article 21 states Right to Life and Personal Liberty is not just a mere right to protect one’s body but the guarantee under this provision plays a larger scope. Right to Life means the right to lead a meaningful and dignified life. Hence, the State shall guarantee to every pregnant working woman all the facilities and assistance that she requires while protecting her employment as well as her own and her child’s body and health.
International Labour Organization made efforts to achieve Recognition of Maternity Benefits on the International scale. The major concerns of the organization have been to ensure that women’s work does not pose risk to the health and body of the women and her child and to ensure that women’s reproductive roles do not undermine their economic and employment security.
Benefits under Maternity Benefit Act, 1961:
- A medical bonus shall be provided if the employer does not provide free medical care to the woman.
- Leave with average pay for 6 weeks before the delivery.
- Leave with average pay for 6 weeks after the delivery.
- In the case of miscarriage, 6 weeks leave with an average pay from the date of miscarriage.
- An additional leave, with pay up to 1 month if the woman shows proof of illness due to the pregnancy, delivery, miscarriage or premature birth.
- Two nursing breaks in the course of her daily work until the child attains the age of 15 months.
- The employer cannot discharge or dismiss a pregnant working woman while she is on maternity leave.
- Light work for 10 weeks (6 weeks plus 1 month) before the date of expected delivery, if the woman asks for it.
- Pregnant women discharged or dismissed may still claim maternity benefit from the employer.
- No change to her disadvantage in any of the conditions of her employment while on maternity leave.
Judicial Review in the contentions raised before the Apex Court concerning the Maternity Benefit Act, 1961
In the case of Municipal Corporation of Delhi v. Female Workers, the Union of Female Workers who were not on regular rolls, but were treated as temporary workers and employed on Muster roll, claimed that they should also get maternity benefit like regular workers. The court held that the provisions of the Act would indicate that they are wholly in consonance with the Directive Principles of State Policy (D.P.S.P.), as set out in Article 39 and Article 42. A woman employee, at the time of advanced pregnancy, cannot be compelled to undertake any kind of hard labour as it would be detrimental to her body and the health of the infant. It is for this reason that it is provided in the Act that she would be entitled to maternity leave for 6 weeks before and after delivery.
In the case of B. Shah vs. Presiding Officer, Labour Court, Coimbatore and Ors., the question before the Supreme Court of India was whether in calculating the maternity benefit for the period covered by Section 5, Sundays being wage less holiday should be excluded or not. The court in holding that Sundays must also be included, applied the beneficial rule of construction in favour of the women workers and observed that the benefit conferred by the Act read in the light of the Article 42 of the Constitution of India was intended to enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output.
Maternity Benefit (Amendment) Act, 2017
Increased Paid Maternity Leave:
The amendment has increased the duration of paid maternity leave available for women employees from the existing 12 weeks to 26 weeks. Under the Maternity Benefit Amendment Act, this benefit could be availed by women for a period extending up to a maximum of 8 weeks before the expected delivery date and the remaining time can be availed post-childbirth.
Maternity leave for adoptive and commissioning mothers:
Maternity leave of 12 weeks to be available to mothers adopting a child below the age of three months from the date of adoption as well as to the ‘commissioning mothers’
Work from Home option:
The Maternity Benefit Amendment Act has also introduced an enabling provision relating to ‘work from home’ for women, which may be exercised after the expiry of the 26 weeks’ leave period.
The amendment makes creche facilities mandatory for every establishment employing 50 or more employees. Women employees would be permitted to visit the creche 4 times including rest intervals during the day.
The Maternity Benefit Amendment Act, 2017 makes it mandatory for employers to educate women about the maternity benefits available to them at the time of their appointment.
Hurdles relating to the Maternity Benefit (Amendment) Act, 2017
Gender discrimination against women having childbearing age:
Additional requirements like creche facilities require more capital and operating expenditure. It won’t come as a surprise that some companies in India might shy away from hiring young women. When they do, the women might face a reduction in compensation as establishments compensate for higher lifetime costs.
The burden on the employer:
Employers have to bear the entire cost of providing leave to employees in terms of both continued pay while on leave, as well as the indirect cost of having to get the work done by employing other workers to finish the work of the absent employee. Also, it increases the cost of temporary training provided to the employee which is employed on behalf of the absent employee.
The detailed analysis of various provisions of the Maternity Benefit Act, 1961 and case studies of related cases, it can be concluded that the Act, is a boon for the working women in the scenario that they don’t have insecurity while working in establishments during their maternity period. The Central Government, as well as the State Governments, should share the costs with the employers and other social activist organizations.
In most of the developed as well as developing nations, the cost of maternity leave is shared by the government, employer, insurance agency and other social security programs. In Singapore, the employer bears the cost for 8 weeks and public funds for 8 weeks. In Australia and Canada, public funds bear the full cost. A social insurance scheme bears the cost in France. In Brazil, the costs are shared by the employer, employee, and the government. Another popular regulatory model in this regard followed by many countries is to provide a proportion of the full salary of the employee during maternity leave, and/or paying salary for a certain portion of the maternity leave period. Either way, in the absence of support or incentives, our current maternity leave policy with their employer liability model will continue to push a lot of enterprises from hiring women. In a country with a 50% gender gap in its workforce where women face entry barriers such as discrimination, fear of sexual violence and lack of skills, the last thing we need is a misguided law that deters businesses from hiring women. Also, the entire responsibility of the Act rests with the employer. Placing the entire burden of providing maternity benefit on the employer is akin to giving him an incentive to not provide any benefit at all. Thus, the cost of maternity protection should be shared amongst different agencies through some form of a social insurance scheme or general taxation.
Edited by Ojaswi Gupta
Approved & Published – Sakshi Raje
- The Maternity Benefit Act, 1961, http://aiftponline.org/journal/2018/november-2018/the-maternity-benefit-act-1961/
- The Case against Maternity Benefit Act 2017, https://spontaneousorder.in/the-case-against-maternity-benefit-act-2017/
- Maternity Benefit (Amendment) Act, 2017, https://en.wikipedia.org/wiki/Maternity_Benefit_(Amendment)_Act,_2017
- Maternity Protection, https://www.ilo.org/global/topics/equality-and-discrimination/maternity-protection/lang–en/index.htm
- Shashi Bala, Implementation of Maternity Benefit Act, http://www.vvgnli.org/sites/default/files/publication_files/099-2012_Shashi_Bala.pdf
- Maternity benefits: A mode of dignifying motherhood, http://m.paycheck.in/main/career-tips/workandpay/maternity-benefits-2013-a-mode-of-dignifying-motherhood
- Municipal Corporation of Delhi v. Female Workers, AIR 2000 SC 1274
- Shah vs. Presiding Officer, Labour Court, Coimbatore and Ors., 1978 AIR 12, 1978 SCR (1) 701