THIS ARTICLE WAS WRITTEN BY VIDHATRI BHARTI, A STUDENT OF ARMY INSTITUTE OF LAW MOHALI.
Rights of women and issues like gender equality and justice are not nascent to the current human rights situation but the development of young children has also started gaining recognition as a development to human rights issue of national and international importance.
The Lok Sabha on 9th March 2017 passed the Maternity Benefit Amendment Act, 2016. This bill seeks to amend the Maternity Benefit Act of 1961 for increasing the maternity leave available to working women to 26 weeks from a previous leave of 12 weeks for the first two children.
This development has made India climb to the third position in terms of countries with the highest maternity leave after Canada and Norway.It has achieved the title of most progressive maternity leave policy among International Labour Organisation’s (ILO’s) 186 member states.
The original act of 1961 was an act to regulate the employment of women in certain establishments for certain periods before and after child-birth and to provide for maternity and certain other benefits. The current amendment has been piloted in the same rhythm and aims to protect the interest of women in specific and society in general.
The genesis of this act lie under Articles 39(f),42,45 and 38 of part IV that is Directive Principles of State Policy under the Indian Constitution which deal with maternity benefits to women.
Article 39(f) provides that children should be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
Article 42 makes provision for securing just and humane conditions of work and for maternity relief by the state.
The need for the act had arised after the recommendation of the International Labor Organisation (ILO). The General Conference of the International Labour Organisation adopted the Maternity Protection Convention, 2000 in order to promote equality of all women in the workforce and the health and safety of the mother and child. Taking into account the circumstances of women workers and the need to provide protection for pregnancy, it recognizes the shared responsibility of government and society. It direct States to adopt appropriate measures to ensure that pregnant or breastfeeding women are not obliged to perform work which is prejudicial to the health of the mother or the child. Maternity leave is to include a period of six weeks’ compulsory leave after childbirth having regard to the protection of the health of the mother and that of the child and a woman has to be provided with the right to one or more daily breaks or a daily reduction of hours of work to breastfeed her child.
The Global Gender Gap report of 2016 said that prospects for workplace gender equality in terms of health and survival India was placed at rank 142 and as per Human Development Report 2016 said that women clock 297 minutes of unpaid work daily compared to 31 minutes of unpaid work by men in India.
Thus, this bill is a step towards improving India’s dismal record in achieving Millennium Development Goals in terms of MMR and IMR and also the above mentioned reports.
Provisions Of The Act:
This Act seeks to provide for the following:
- This maternity benefit is available only for the first two children and thus, for the third child the benefit reducing to a leave of 12 weeks and further for the fourth child a paid leave for 6 weeks. It is pertinent to note here, that this provision is not only in women interest but also in the interest of overall society and is indirectly discouraging the menace of overpopulation and promoting family planning.
- This law will be applicable to all establishments employing over 10 persons and other notified establishments, thus this benefit is majorly for the organised sector. After its launch it will be able to benefit 1.8 million women across India.
- Not only does it provide benefit to natural mothers but also provides a leave for 12 weeks to women who have adopted children below the age of three years.
- The benefit of 2 week paid leave is also extended to commissioning mothers in cases of surrogacy.
- According to the passed bill it is mandatory for every establishment with more than 50 employees to provide for creche facilities within a prescribed distance with the woman being allowed four visits a day.
- The bill requires such establishments to inform women employees of all benefits made available under the law, at the time of her appointment. Such information must be given in writing and electronically.
In general circumstances domestic laws are not applicable in Special Economic Zones (SeZs), however, this maternity benefit is also provided to women working in this sector.
Lacunae In The Act:
This law is a milestone in relation to women and child rights but has its own lacunae and disadvantages, some of them have been discussed below:
- The act does not extend to unorganised and fragmented sectors and organisations thereby depriving 90% of women workers who are working under the unorganised sector including agriculturists, domestic helps and daily wagers from this privilege.
- This bill will create burden on the employers which may lead to skewed labour force participation rate which is already a minimal 22.5% as per the National Commission of Women survey.
In the case of Municipal Corporation of Delhi v. Female Workers the supreme court identified that female construction workers whose work was not regularised were eligible to receive maternity benefits by virtue of gendered constitutional provisions and basic human rights.
- The bill also does not include any provision for paternal leave or benefit.
Though this bill in itself is a great step ahead towards gender neutrality, the following aspects if added will make the step more practically successful.
- Just like the Nirbhaya Fund after the 2012 incident, there can be a provision made for such a fund for the maternity benefit so as to reduce to burden on the employer and share responsibilities
- There could also have been a provision for paternal leave and responsibility in this act and thereby reduce non-uniformity in employment and labour laws as is also provided for central civil and other services.
- This act can be associated with employment generation schemes so as to increase the beneficiaries of both employment programmes and maternity leave benefits.
 Municipal Corporation of Delhi v. Female Workers, 2000 (3) SCC 224