This article was written by Shivam Saxena a student of Tamil Nadu National Law School.
In the ancient time, the employer thought that maternity was a state of disability for woman workers from doing any work during the few weeks immediately before and after child birth.
The employer tended that this period is wastage of both time and money, so simply they terminated the services of woman workers when they inferred any maternity situation. They didn’t provide any type of wages or benefits to their woman workers. Therefore, many woman workers had to go on leave without any payment of their salary during this period in case if they didn’t want to lose their job. Many others had to bear a heavy depression to keep their efficiency during the periods of pregnancy, which was very harmful to the health of both, the child and the mother.
To remove this concept of the woman workers, the concept of maternity benefit came about in order to enable the woman workers to carry on the social function of child; bearing and rearing without undue strain on their health and loss of wages.
THE INDIAN LAWS OF MATERNITY BENEFITS
The principle of gender equality is laid down in the Indian constitution in its preamble, Directive Principles, Fundamental Rights and Fundamental Duties. The Constitution not only grants the rights to equality for women, but also explains that the state or any other person will not discriminate the women. India has also ratified various international conventions and human rights instruments committing to secure equal rights of women. Within the framework of our laws, democratic polity, development policies, Plans and programmes have aimed at women’s advancement in different spheres.
- CONSTITUTIONAL PRIVILEGES
(i) Article 14:- Equality before law for women.
- Article 15 (i):- The State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(iii) Article 15 (3):- The State to make any special provision in favour of women and children.
- Article 16:- Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
- ACTS RELATED TO MATERNITY BENEFITS
(i) National Food Security Act, 2013
NFSA provides various types of benefits to pregnant women. These benefits are explained in the different sections of the Act. For the fulfilling these benefits it is the duty of central government to provide such things.
- Section 4 (a):- free meal during pregnancy and also six months after the child birth through
- Section 4 (b):- six thousand rupees in installments.
- Section 5(1):- every child up to the age of fourteen shall have the following entitlements for his nutritional needs:-
- Age 6 months to 3 years :- appropriate food
- Age 3 years to 14 years or till class VIII :- 1 mid-day meal everyday (except holidays)
(ii) The Maternity benefit Act, 1961
The Maternity Benefit Act, 1961, is a social legislation which says that every woman employed is entitled to the payment of maternity benefits at the rate of the average daily wage with without any inequality
The Act follows the employer’s liability approach, which means that the employer solely bears the full amount of liability for providing maternity protection and the employees are not required to make any contribution for availing of the maternity benefits.
The Act covers the mines, factories, plantations, shops and establishments. The Employees of State Insurance Act also provides for maternity benefits to specific employment sectors. Exception of this Act is the employees of Factories and establishments which are covered by the Employees State Insurance Act, 1948. They do not cover under this Act, since the maternity benefits of the ESI Act will apply to those factories and establishments. The Working Journalist (Conditions of Service) and Miscellaneous Provisions Rules, 1957 also provides for maternity protection.
There is no wage limit for coverage under the Act. The Act covers all type of workers whether they are permanent, full-time, workers with identifiable employers and/or designated places of work, who form a tiny segment of the workforce especially in rural India. The unorganized sector i.e. temporary and casual workers and those employed through sub-contracting, outsourcing and so on. The itinerant nature of these workers poses a problem. Also, the use of the term “maternity benefit” itself is often misunderstood.
The Act provides for “maternity benefit” in two ways. Both these components are essential to support a woman. These are –
- Maternity leave ; and
- Medical bonus for delivery and postnatal care.
Benefits under the Act:
- Leave with average pay for six weeks before the delivery
- Leave with average pay for six weeks after the delivery
- A medical bonus if the employer does not provide free medical care to the woman
- An additional leave with pay up to one month if the woman shows proof of illness due to the pregnancy, delivery, miscarriage or premature birth
- In case of miscarriage, six weeks leave with average pay from the date of miscarriage.
Non Cash Benefits/Privilege
- Light work for ten weeks (six weeks plus one month) before the date of her expected delivery, if she asks for it
- Two nursing breaks in the course of her daily work until the child is 15 months old
- No discharge or dismissal while she is on maternity leave
- No change to her disadvantage in any of the conditions of her employment while on maternity leave
- Pregnant women discharged or dismissed may still claim maternity benefit from the employer.
A woman who goes through a miscarriage or medical termination of her pregnancy is entitled to 6 weeks maternity leave with pay following the day of her miscarriage or medical termination of her pregnancy. A woman going through a tubectomy operation is entitled to two weeks maternity leave with pay, immediately following the day of her operation, on producing proof of the same. If a woman suffers from an illness related to the pregnancy, delivery, premature birth of the child, miscarriage, medical termination of her pregnancy or tubectomy she is entitled to leave with wages for a maximum period of one month. There is very little awareness of these provisions.
- SCHEMES RELATED TO MATERNITY BENEFITS BY CENTRAL GOVERNMENT
- Indira Gandhi Matritva Sahyog Yojana (IGMSY)
The Ministry has formulated a centrally sponsored scheme – “Indira Gandhi Matritva Sahyog Yojana (IGMSY)”- it is also called a Conditional Maternity Benefit (CMB) scheme. The scheme seeks to address the issues regarding the woman’s compulsions to work right up to the last stage of pregnancy and resumption of work soon after child birth. Therefore, it is a mitigating measure to provide part compensation of wage loss as maternity benefit to women during pregnancy and lactation period. The basic objective of the proposed scheme IGMSY is to improve the health and nutrition status of pregnant and lactating women and infants by:
- Encouraging the women to follow (optimal) IYCF practices including early and exclusive breast feeding for the first six months;
- Contributing to better enabling environment by providing cash incentives for improving the health of pregnant and nursing mothers;
- Promoting appropriate practices, care and service utilisation and safe delivery and lactation.
- Rajiv Gandhi National Crèche Scheme for the Children of Working Mothers
Rajiv Gandhi National Crèche Scheme was implemented on 1st January 2006 for children of working women from families earning up to Rs. 12000 per month. This scheme is implemented by three governmental bodies i.e. the Central Social Welfare Board, Indian Council for Child Welfare and Bhartiya Adim Jati Sevak Sangh. There is a provision for collecting user charges of Rs. 20/- per month from BPL families and Rs. 60/- from other families.
To meet the growing need for more crèches, the National Crèche Fund, set up in 1993–94, made assistance available to voluntary organisations/mahila mandals (women’s groups) through interest earned from the corpus fund to convert existing AWCs (preschool centres) into AWC-cum-crèche centres. Thus the scheme still requires substantial expansion if it is to serve its purpose. State governments/Union Territory administrations do not play a role in the existing crèche and day-care schemes run by the MWCD. As a result, there is no possibility of involving local community-based organisations and self-help groups, other large national NGOs, trade unions or workers’ boards such as the Building Workers’ Association.
CASE LAWS RELATED TO MATERNITY BENEFITS
- Municipal Corporation of Delhi v. Female Workers:
In this case 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, as set out in Article 39 and in other Articles, especially Article 42. A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the fates. It is for this reason that it is provided in the Act that she would be entitled to maternity leave for certain periods prior to and after delivery.
- Shah vs. Presiding Officer, Labour Court, Coimbatore and others:
The question before the Supreme Court was whether in calculating the maternity benefit for the period covered by Section 5 Sundays being wage less holiday should be excluded. Issues Raised before the Courts with Reference to Maternity Benefit Act, 1961.
The Apex Court in holding that Sundays must also be included, applied the beneficial rule of construction in favour of the woman worker and observed that the benefit conferred by the Act read in the light of the Article 42 of the Constitution 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. During this period she not only cannot work for her living but needs extra income for her medical expenses. In order to enable the woman worker to subsist during this period and to preserve her health, the law makes a provision for maternity benefit so that the woman can play her productive and reproductive roles efficiently.
- Municipal Corporation of Delhi v. Female Workers AIR 2000 SC 1274
The Supreme Court declared that there is nothing in the Maternity Benefit Act, 1961 which entitles only regular women employees to the benefit of maternity leave and should be extended to women engaged in work on casual basis or on muster roll on daily-wage basis. The provision for maternity benefit is also granted to women employees who are covered under the Building and Other Construction Workers (Regulation of Employment and Condition of Service) Act 1996, from the welfare fund.
- Chandrika vs Indian Red Cross Society 131(2006) DLT 585
Services of the petitioner were terminated while she was on maternity leave. There was no evidence to show that the petitioner had received the communication. The Industrial adjudicator concluded that the workman had no intention of joining duty with the management and the relief of reinstatement and consequential benefits was denied to her.
The court held that the petitioner’s services were terminated illegally and unjustifiably.
The court ordered that the Petitioner be reinstated in service with continuity of service for the purposes of computation of service benefits. Back wages at the rate equivalent to 50 per cent of the basic pay was also granted. In normal circumstances, full wages would have been granted as back pay but as the organization was not for profit, this would have been onerous
Finally, Writ petition allowed.
Countries like Germany, Japan and New Zealand offer 14 weeks of paid leave. Most of Europe, especially Scandinavia, offers great benefits ranging from nine months of leave to even a year. On the basis of this The Union Ministry of Women and Child Development has recently proposed that the 12-week maternity leave granted to working women under the Maternity Benefit Act, 1961, should be increased to eight months.