This Article is written by Subhendu Sanyalj, a Law Graduate of Calcutta University

Introduction

In man-dominated societies throughout history, women have been subjected to all types of constraints, objects of hatred and pity, and compulsions – be it religion, education, or social or cultural scenarios. It appears that sex discrimination was a contributing factor to women’s disadvantageous status. Since the world became industrialized, this discrimination has been obvious in the field of industrial employees. However, as time passed and women’s knowledge soared, the situation gradually improved and numerous constitutions, including the Indian Constitution, made special provisions for women's protection and development.

Indian Labour Organisation (ILO) made some unique steps in this way by adopting many Conventions and Recommendations for the protection of working women, especially during pregnancy. In India, the Maternity Benefit Act, 1961 is wider and defines “Woman” and “Child” in a broader sense. The latest amendment of the Act in 2017 brought significant positive changes to accommodate the evolving needs of women in the workplace, reflecting India’s gradual transition towards gender-sensitive labour laws.

This article focuses on the salient features, recent amendments, and implications of the Maternity Benefit Act and its broader perspectives.

Main Provisions of the Maternity Benefit Act, 1961

The primary Act mandated 12 weeks of paid maternity leave to women, working for at least 80 days in an establishment (Specified) in the 12 months preceding the expected date of delivery. Maternity benefit policy in India is more than just employment benefits; such policies are tools for social change, empowering women and contributing to a more equitable society. Key provisions of the act are as below:

Applicability: This Act applies to every establishment, covering the public and private sectors, with ten or more employees.

Maternity Leave: The Act amended in 2017 entitles women to 26 employees to 26 weeks of paid maternity leave. This can be availed for up to two children, with the leave for the third child being 12 weeks. Adoptive mothers are eligible for 12 weeks of leave for a child below three months of age. Surrogate mothers are also eligible for 12 weeks of leave.

Exceptional Circumstances: For a tubectomy operation a woman is eligible for 2 weeks of leave. In case of illness arising out of pregnancy, delivery, premature birth, etc a woman is entitled to an additional month of leave.

Payment during leave: During the maternity leave, the woman will receive her daily average wage or salary. [1]

Non-termination: An employer can not voluntarily terminate a woman’s employment during maternity leave.

Creche Facility: Establishments with 50 or more employees must provide a creche facility within a prescribed distance for female working mothers who can visit the creche four times a day.

Protection against discrimination: The act prohibits an employer from discriminating against pregnant women in any way, including promotion, increments, and other relevant benefits.

Additional benefits: It includes provisions for a work-from-home option (there is an option after 26 weeks of maternity leave, subject to discussion and agreement with the employer), a maternity benefit bonus as per the National Food Security Act, 2013, and healthcare incentives.

The Convention on the Rights of Child specifically states that “to secure to the utmost degree possible child survival and development, render appropriate assistance to parents and legal guardians in the fulfilment of their child-rearing obligations, and ensure the development of institutions, facilities, and services for the care of children” [2]

Several legislations in the labour and industrial policy discuss and provide maternity benefits for women. The Employees State Insurance Act, 1948 makes maternity benefits one of its primary objectives, establishing a 12-week leave structure for the mother as well as a regulatory framework for proper execution.[3]

Scope of the Act: As per Sections 2 and 3( e ) of the Act, all establishments such as factories, mines, plantations, and any government and private organisations have ten or more employees. Also, it covers all “establishments” and “commercial establishments” covered under sections 2(9) and 2(5) of the Delhi Shops and Establishment Act,1954. Further, the state government upon approval of the central government may declare any establishment or class of establishments, involved in any activity industrial, commercial, and agricultural, to be covered under the ambit of the Maternity Benefit Act.[4]

Also subject to the exceptions provided in Sections 5A and 5B, no factory or other establishment to which the provisions of the Employees State Insurance Act, 1948 apply will be covered by Section 2(2) of this Act[5]. Moreover, by Section 26 of the Act, the relevant government may, upon notification, exempt an establishment from the Act’s provisions, subject to the restrictions outlined in this Act.

Importance of maternity leave in India[6] [6]

In the following way, the Indian working women stand to benefit society:

1. Addressing Gender inequality: In India, there is a huge gender gap in workforce participation. World Bank points out “India ranks 120th among 131 nations in female labour force participation, with only 37% of the women participating in the workforce. This leave policy can help bridge the gap by supporting working women who want to balance motherhood with a career, encouraging more women to enter and remain in the workforce.

2. Legal and economic empowerment: This Act empowers and guards working women from unfair dismissal from employment during pregnancy and childbirth. Thus, this Act empowers working women by safeguarding their income and job security during the crucial phase of their lives.

3. Social Impact: By recognizing and supporting women’s dual role as professionals and mothers, these policies help shift social attitudes and promote gender equality.

4. Health and Wellbeing: In a country where women’s health often takes a backseat, especially in the lower income groups, such policies are vital for improving maternal and child care.

5. Creating Inclusive workplaces: This Policy provides for benefits like nursing breaks, and creche facilities, forcing establishments to create more inclusive and family-friendly workplaces. Thus, it creates a better equitable workplace for the mother women.

What about Unorganised Sectors

The majority of women in India work as contractual/ waged workers under severely exploitative working conditions. Maternity Benefit is calculated at the average daily salary/wage for the period of the female worker’s leave, which is insufficient to cover childcare costs. People without financial aid will face most difficulties in returning to work. Even though the Social Security Code, 2020 allows the application of maternity benefits to unorganized sectors, the lack of duration, timeline, systematic provisions, etc make this a shaky possibility. So casual workers, housewives, farmers, apprentices, and self-employed women remain unorganized under Indian Labor laws. A woman is judged still as a liability to the sectors when she is pregnant. There is nothing in the new law to change the mindset.[7]

Conclusion

The maternity Benefit Act, 1961 was a boon for the organized sectors (Especially large-scale organisations) and Central and State governments. But these are a meager percentage of the actual women workers in India. In Unorganised sectors, women workers are forced into huge exploitations due to lack of surveillance from the government as well as non-awareness among this vital workforce. So due to these situations, women's health, economic conditions, and child care are at stake.

Despite the progressive nature of the amendments, the Act faces several challenges in terms of implementation, particularly in the unorganized sector where most Indian women are employed. A lack of proper enforcement mechanisms and awareness about maternity rights among women further hinders the effective realization of the benefits envisaged under the Act. Studies have shown that many women in the informal sector either do not receive maternity benefits or are forced to quit their jobs during pregnancy[8] [8].

Also, while the Act provides substantial maternity leave and other related benefits, the lack of paternity leave (in the case of single parents), the financial burden on employers, and challenges in enforcement in the unorganized sector remain key concerns. Going forward, further reforms, such as introducing shared parental leave and better enforcement of provisions in all sectors, could enhance the Act’s impact and contribute to a more gender-equitable workplace.

While there is a progressive outlook for maternity benefits, it lacks provisions for paternity leave or shared parental leave. This omission perpetuates the stereotype that childcare is primarily a woman’s responsibility, thus failing to address the deeper issues of gender inequality in caregiving roles[9] [9]

References

[1]Forbes India, ‘Maternity leave policy in India: Understanding rules, benefits, eligibility’(2024)<https://www.forbesindia.com/article/explainers/maternity-leave-policy/92921/1 >accessed on 20.10.24

[2] Shivam, ‘Analysis & implementation of the Maternity Benefit (Amendment) Act, 2017’(2021)<

https://blog.ipleaders.in/analysis-implementation-maternity-benefit-amendment-act-2017 >accessed on 20.10.24

[3] Ibid

[4] https://www.mondaq.com/india/employee-rights-labour-relations/1402854/rights-of-working-mothers-under-maternity-benefits-act-1961 accessed on 20.10.24.

[5] Ibid

[6] Forbes India, ‘Maternity leave policy in India: Understanding rules, benefits, eligibility’(2024)<https://www.forbesindia.com/article/explainers/maternity-leave-policy/92921/1 >accessed on 20.10.24

[7] Madhurima Mukherjee, ‘Critical Analysis Of Maternity Benefits In India Under The Social Security Code, 2020

‘< https://www.legalserviceindia.com/legal/article-11739-critical-analysis-of-maternity-benefits-in-india-under-the-social-security-code-2020.html >accessed on 20.10.24

[8] Nirmala Banerjee and Devaki Jain, Tyranny of the Household: Investigative Essays on Women's Work (Shakti Books 2018). Accessed on 20.10.24

[9] Amrita Nanda, 'The Missing Discourse of Paternity Leave in India' (2020) 8(2) Indian Journal of Gender Studies 112. Accessed on 20.10.24