The wombs of mothers, one of the most resplendent and celebrated endeavors of nature and nature’s God are indisputably the begetter of all the mightiest civilizations in the world. No civilization passed without venerating the power of a mother and often figuratively delineated her as a Goddess. The oldest available cultural artifacts from the pre-Aryan settlements in Mohenjo-Daro and Harappa bear testimony to the mother cult within the Indian culture in the most magnificent fashion. The role of a mother in nurturing her child has therefore been acclaimed as an honor as she relished this status because of her position in respect of the child. It would be a downright exasperation of this motherhood if a woman is snubbed or discriminated against by anyone because of her compelling medical conditions during giving birth and taking care of her new-born child.
The Proposition, Maternity Leave
The Preamble to the Constitution of India dispenses social and economic justice, while the Fundamental rights are enshrined in Part III of the Constitution. Article 14 of the Constitution enunciates that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India whereas Article 15(3) entitles the State to make special provisions for the amelioration of women and children in the country. Article 42 in Part IV of the Constitution i.e. the Directive Principles of State Policy reads as under:
“Provision for just and humane conditions of work and maternity relief- The State shall make provisions for securing just and humane conditions of work and for maternity relief.”
In congruence with all the above provisions, the Maternity Benefit Act was legally pioneered in India for the very first time in the Bombay Legislative council on 28th July 1928 wherein it had been championed and defended by Dr.B.R.Ambedkar himself. The act was enacted by the Parliament in the 12th year of the Republic of India on 12th December 1961 as Act no.53 of 1961.
Section 5 of the Maternity Benefit Act, 1961 provides for the Right to payment of maternity benefit. Subsection (1) mentions that every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day.
In India, the maternity protection or benefit is also envisaged by The Employees’ State Insurance Act, 1948 and the Central Civil Services Rules, 1972 that solicit certain maternity prerogatives for the welfare of the women and their new-born child.
The Hallmarks of the Legislation
The legislation seeks to essentially regulate the employment of women for a certain period of time before and after the child-birth and to expedite them with maternity leave and certain other benefits thus engendering a conducive, gender-friendly labor market environment in the country. In addition to this, the Medical Bonus to be paid by the employer to the expecting mother, “Leave with Pay” facility and the nursing breaks in the course of her daily work are some of the notable Maternity safeguards enlisted within the Act.
Every woman is entitled to these maternity benefits as child-bearing is an intensely painful process that may even cause some bodily injury to the woman or severely reduce her productivity and efficiency. Failure to provide the maternity benefits or unemployment or discharge of a woman due to her maternity would result in the imprisonment of the employer for not less than three months which may even extend to one year and a fine of rupees two thousand which may be extended to rupees five thousand.
The underlying purpose of such maternity benefits is to preserve the dignity of “Motherhood” by providing complete health care to the woman & her child, when she is unable to perform her duties because of the compelling medical conditions, without having to really distress about losing the job or her source of income. The Act thus promotes economic independence and self-reliance of a female employee by protecting her from any possible subjugation and discrimination while she relishes the most splendid natural phenomenon of being a mother. The Act serves as a protective umbrella as it impedes the termination of service of a pregnant woman employee except on grounds of misconduct.
Amendments to the Maternity Benefit Act, 1961
In the year 2017, the Government of India approved the bill of an amendment to the Maternity Benefit act, 1961, placing India amongst the league of progressive, developed countries with respect to maternity benefits as India now qualifies among the 16 countries having the longest paid leave for new mothers.
Following were the Amendments approved:
- Maternity benefit leave duration has been increased from twelve weeks to twenty-six for two surviving children while it remains at 12 weeks for more than two children.
- A commissioning mother shall be entitled to maternity benefit for twelve weeks from the day she handed the baby under commissioning or adoption.
- Crèche facility should be provided if the establishment has more than fifty employees. Mothers are allowed to crèche four times a day and the period of a visit is considered as an interval of break or rest.
- Based on the constraints in the organization, women have to be provided with the facility to “Work from home” after maternity leave, based on mutual understanding between employee and employer.
- The new amendment shall be applicable to all contractual and consultant women employees and the benefits of this new act can be extended to the unorganized sector.
- The amendment seeks to provide protection to a woman in case she gets fired by the employer after learning about her pregnancy.
Nearly 1.8 million women who are working in the unorganized sectors would be assuaged by this bill, thus fostering a more positive working environment for all the women in the country.
Conclusion and Recommendations
Apparently, the legislation is a manoeuvre towards the empowerment of women in labour laws. This has been a clear move towards making equal pay, equal access to opportunity, deterrence and redressal of sexual harassment and provisions of maternity benefit, a reality in contemporary India. Though the country is consistently moving towards more flexible environments and more generous policies there is still a sense of disquietude over many aspects.
Increasing maternity benefit is a welcome step but the government should incorporate some mechanism to ensure that the competitiveness of the private sector is not abated by the same. The new amendment still leaves an ambiguity regarding the applicability of the Act to the unorganised sector and there has been absolutely no mention of the paternity leave within the Act which constitutes a major component of the leave policies in the west. This puts the onus of the new-born’s rearing entirely upon the mother, which is inconsistent with the principles of gender equality and equal parenting.
There needs to be a convergence of Ministries of Women and Child, Health, Rural Development and Labour on the entitlement and allocation of benefits as enumerated under the Act to improve the implementation of the Act with regard to access to medical bonus and nursing breaks.
Awareness about the law has to be raised through government-funded campaigns and advertisements so that the real purpose of the act is served and women can yield the true benefit of the legislations that have been incorporated for their welfare.
Edited by Ojaswi Gupta
Approved & Published – Sakshi Raje
References:
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