Workers worldwide are at a disadvantageous position compared to the men. This occurs due to the biological differences between the two. A woman has to give birth to a child and take care of it. In a patriarchal society like ours, the responsibility of the child is solely on women, adding further problems for a working person. Therefore, to bring the women at par with men certain legislations were introduced by the government. The Article deals with the various such legislations and tries to understand the problems in them and provide solutions for the same.
With the involvement of women in the jobs and out of the home works, society has developed socially as well as economically. However, the majorities of women leaves their jobs or are dismissed from their jobs at the time of childbirth. This is because once a woman gives birth to a child; she needs proper rest and care to improve her health. In addition, she needs to put effort into raising her child, as it is a critical age of a child’s development.
Employers are always willing to dismiss a female employee at the time of her pregnancy as they consider her a financial liability on the business. Due to this reason, a woman has to choose between having a child and having a job. Nevertheless, a woman should not be pushed in a situation where she has to choose between her child and her job.
Therefore, the legislature has created several laws in this regard that provide for maternity benefits and leaves. These legislations find their base in Article 42 of the Constitution of India, which states that provisions should be made to provide for maternity reliefs to women. The government has always aimed at ensuring protection and upliftment of women in the society and in line with the same aim it has taken several steps and implemented several policies to introduce maternity benefits to women at the time, before and after her pregnancy.
Several laws have been created in this regard, the most important among which is the Maternity Benefits Act, 1961.
Maternity Benefit Legislations
The Maternity Benefits Act
The Maternity Benefits Act, 1961 was introduced to regulate the conditions of female workers and employees and provide them with maternity and other alike benefits. As per Section 2 of the Act, it applies to factories, mines, circus, plantations, establishments, and shops that employ at least 10 workers. Though there is no specific limit on wages for its coverage those covered under the Employee’s State Insurance Act of 1948 are not covered under it.
The act has been amended about eight times since it’s enactment. About five times in the 1970s and recently in 2017. The recent amendment has changed the effect of the Act thoroughly but making major changes to the Act. Before the said amendment a woman was entitled to a leave of only twelve weeks in total but now she is entitled to a leave period of twenty-six weeks with the felicity of using this leave from eight weeks before the expected date of childbirth.
The Act now provides for maternity benefits to commissioning and adopted mothers as well for twelve weeks subject to the fact that the child adopted is less than the age of three months. It also has provisions for six weeks’ leave in case of abortion and miscarriage, and an extra one-month sickness leaves in case it arises due to pregnancy, abortion, or miscarriage.
These leaves are to be paid leaves and the rate of payment should be the average daily wages of the female employee. The Act now also provides for Work from home facility, which can be availed after the maternity leave ends but it is subject to the approval by the employee. One of the reasons, for the improper and inadequate implementation of Act, is the lack of awareness and knowledge among the woman affected by it. So, to tackle this issue, the amendment introduced recently has enforced a provision as per which, the employer is under a mandatory obligation to inform the woman employee at the time of her joining about the rights she has under the said Act, in writing or electronically.
The problem we discussed above of the employer willing to dismiss the female employee in case of her pregnancy has also been tackled in the act precisely by mentioning that a female employee cannot be dismissed due to her pregnancy or asking for maternity leave. The employer can also not change the terms and conditions of the job of the female employee till the time she avails the benefits of her maternity leave.
Another important provision of the Act provides that the employer should set up a Creche facility near the workplace or the residence of such workers in case the establishment has 50 or more employees. Different opinions regarding this provision have been brought forward. The provision states that setting up a creche facility is mandatory in a place where 50 or more employee works, it does not state women employees. Some consider it to be merely an error while others consider it to be the intent of the legislature to facilitate even the male employees in taking care of their child. However, whether the provision was made gender-neutral knowingly or not is unsure. But unless the legislature clarifies its intent on the same, the court should consider it applicable in the case of male employees as well.
Other legislations containing provisions for maternity benefits include the Employees’ State Insurance Act, 1948, the Factories Act, 1948, Working Journalist and Miscellaneous Provisions Rules, 1957, Central Civil Services Rules, 1972, etc.
The ESI Act applies to all the factories and the maternity benefits under it can be availed by those female employees who have less than Rs. 21,000 monthly income. To avail of these benefits, the female must have worked for 70 days in the last two consecutive periods. Under this Act, paid leave of twenty-six weeks is provided in case of miscarriage and abortion and a paid leave of twelve weeks in case of confinement.
The Factories Act also provides for a paid leave of twelve weeks and requires the setting up of creche facility by the employer in case of 30 or more female employees working in the Factory. As per the Working Journalist and Miscellaneous Provisions Rules, a woman working in a newspaper is entitled to a paid leave of six weeks from confinement or three months from the commencement of the maternity leave whichever is earlier. It also provides for a six-week leave in case of miscarriage or medical termination of pregnancy.
The All India Services (Leave) Rules, 1955, and the Central Civil Services (Leave) Rules, 1957 also provide for maternity benefits to the female members in service. The AIS Rules apply to IAS, IPS, and Forest Services among others whereas the CCS rules apply to a government servant in civil services except those provided under the rules. Both the rules provide for maternity leaves in cases of pregnancy, abortion, miscarriage, and adoption. The promising feature in both these rules is the provision of parental leave as per which the male employee is entitled to fifteen days paid leave. Both the rules provide for a child care leave for the female employee of 730 days until the child grows major.
The government from time to time has also introduced various schemes to provide these benefits to the unorganized sector. Such as the National Policy for Women, Rajiv Gandhi National Creche Scheme for Children, Indira Gandhi Matritva Sahyog Yojna, etc.
Problems and Solutions
If one goes through various Rules, Acts, and Schemes introduced by the Government certain loopholes are visible in them. One such loophole is the lack of paternity leave. Though Central Government rules provide for the same the private sector lacks it. One might argue there is no need to introduce paternity leave but it is worth understanding that these leaves will help in changing the stereotypical notion that the child is the responsibility of only women. Further, it will also facilitate male spending time with his child and providing him proper care and affection.
Another such problem is access, reach, and implementation of these legislations. No fruitful results can be achieved by such legislation unless there is awareness about these legislations in the public domain. Most of the women consider that they are not entitled to the benefit or they are only entitled to leaves. The introduction of mandatory informing of rights by the employer is a promising and welcome step in this regard. However, various other legislations lack this. The government should implement similar provisions for all establishments, shops, factories, etc. So, as to increase the reach of the benefits.
Other problems include issues that may arise in negotiating the terms and conditions for Work from Home and financial burden on the employer. To tackle the problem arising in deciding the terms and conditions of the work, a committee should be set up for determining the same. In addition, to reduce the financial burden of the employer, the government should share the financial burden appropriately.
India since its inception has focused on women empowerment and upliftment. And on the same line has introduced several legislations to provide maternity leaves and benefits to the working women. These legislations aim at enhancing the working conditions and status of women. However, some problems in these legislations do exist. The suggestions given above may not help in making faultless legislation but will surely be a step towards it.
Frequently Asked Questions
- Has the Maternity Benefit Act, been amended ever before?
- What are some notable provisions of the Maternity Benefit Act?
- Can a woman be dismissed on the ground of her pregnancy?
- Name the legislation containing a provision for maternity benefits other than the Maternity Benefit Act?
- What are the common problems in the existing maternity benefit legislations in India.
-  Manisha Priyadarshini v. Aurobindo College Evening and Ors., LPA 595/2019 & C.M. Applns.49913-14/2019.
-  Article 42 of the Constitution of India,1949.
-  –, ‘Maternity Benefit Act’, Ministry of Labour and Employment, available at https://clc.gov.in/clc/acts-rules/maternity-benefit-act
-  Sections 9, 9A, 10 of the Maternity Benefits Act, 1961
-  Section 11A (2) of the Maternity Benefits Act, 1961
-  Section 11A (1) of the Maternity Benefits Act, 1961
-  –, ‘Maternity Benefits’, Employees’ State Insurance Corporation, available at https://www.esic.nic.in/maternitybenefits#:~:text=Confinement%2Dpayable%20for%20a%20period,of%20Form%2020%20and%2023.&text=Maternity%20benefit%20rate%20is%20100%25%20of%20average%20daily%20wages.
-  Rule 29 of the Working Journalist and Miscellaneous Provisions Rules, 1955.