This article has been written by Shivam.

Abstract

It is critical that governments move away from old laws and work for social justice, both in the organized and unorganized sectors, in recognition of the critical role played by women. The Maternity Benefits Act of 1961 and its subsequent amendments represent the concept of social justice. Any organization’s goal can only be achieved if all employees work together. Employee cooperation is only feasible if he or she is completely satisfied with his employer. Maternity leaves women out of work for an extended period of time, affecting their earning ability and it is also related to the health of their child.

As a result, providing maternity benefits to female employees becomes mandatory. Maternity Benefits should aim to control women’s work in specific institutions for specific times before and after childbirth, as well as provide for maternity and other benefits. This article seeks to analyze the implementation of the Maternity Benefit (Amendment) Act, 2017 and it also analyzes the maternity benefits framework. This study also analyzes the issues raised before the Courts with Reference to the Maternity Benefit Act with the help of different case laws.

Introduction

In man-dominated societies throughout history, women have been subjected to numerous restraints and compulsions. The problem of her repression is not limited to any one place, religion, or socio-cultural connection; it has surpassed all of these barriers. Basically, it appears that sex discrimination was a contributing factor to her disadvantaged status. Since the world became industrialized, this discrimination has been extremely obvious in the field of industrial employees. It is also a tyranny that almost half of the world’s population is crushed underneath the massive wheels of industrialization. However, as time passed and women’s knowledge grew, as did the creation of multiple women’s organizations and the creation of the concept of civilized society, the situation gradually improved, and numerous constitutions, including the Indian Constitution, made special provisions for women’s protection.

The International Labour Organization (I.L.O.) made some of the first steps in this direction by adopting many Conventions and Recommendations for the protection of working women, particularly during their pregnancy. While India’s Labour Legislation has also offered protection to women workers, as has the Maternity Benefit Act of 1961. The ILO has amazingly defined the terms “woman” and “child” with all required elaboration in order to include an unmarried woman in the definition of “woman,” and an illegitimate child in the definition of “child.” However, the Maternity Benefit Act of 1961 simply states that “child” includes a stillborn child,^[1] and “woman” is a woman employed for wages in any establishment, whether directly or through an agency.^[2] As a result, the Maternity Benefit Act makes no distinction between a woman who is married or unmarried, and a child who is legitimate or illegitimate.

This Act was passed to regulate women’s employment in particular establishments during specific periods before and after childbirth, as well as to offer maternity benefits and other advantages. Working women have gained a great deal of protection as a result of this Act. The Act covers any establishment that is a factory, mine, or plantation, including government institutions, as well as any establishments where people are engaged to do equestrian, acrobatic, or other activities. It also stipulates maternity leave and the payment of specific monetary benefits to female employees during this time.

Statement of problem

Maternity has traditionally been viewed as a condition of disability that prevents women from working during the weeks prior to and following childbirth. Many employers tended to terminate the services of women workers when they discovered that maternity interfered with the fulfilment of routine duties by women workers after the introduction of the wage Labour system in industrial operations. As a result, many female workers were forced to take unpaid leave during this time period in order to keep their jobs. To address this issue and defend women’s economic rights, maternity benefits for female employees is required. The key issue considered in this paper is whether the implementation of the Maternity Benefit Act in India has been effective or not. This article seeks to understand the concept and the laws related to maternity benefits in India and their benefits. This project seeks to understand the legislative intent of the same in the light of various case laws and judicial interpretations.

Major changes & key features of the Act

On April 1, 2017, the Maternity Benefit (Amendment) Act, 2017 came into force, amending major elements of the Maternity Benefit Act, 1961. The key provisions brought in by the Amended Act enhances the maternity leave period besides introducing several compliances for companies. I have mentioned the key aspects as follows:

• Enhancement of the maternity leave – Paid maternity leave has been expanded from 12 to 26 weeks for women working in any firm with 10 or more workers. Furthermore, not more than 8 weeks of leave to the women employee shall precede the date of her expected delivery.^[3] A mother with two or more children will not be eligible for the increased maternity leave, and such women will be entitled to only 12 weeks of paid maternity leave of which not more than 6 weeks shall precede the date of her expected delivery.^[4]
• Surrogacy/Adoption Leave – Working women adopting a baby under the age of three months will be entitled to 12 weeks of maternity leave under the Amended Act, and so will commissioning mothers^[5] who use a surrogate to have a child.
• Introduction of Work from Home option – Employers may consider a “work from home” option for nursing mothers after 26 weeks of maternity leave, depending on the job profile and parameters mutually agreed upon by the employer and the concerned women employee.^[6] 
• Mandatory crèche facility – All organizations with 50 or more employees are required to provide a facility, either separately or in collaboration with other services provided on the premises. During working hours, the concerned female employee must be allowed four visits to the crèche. These visits must incorporate the rest period of the female employee.^[7] From July 1, 2017, this provision alone took effect.
• Medical bonus – The medical bonus of Rs. 2,500–3,500 that eligible women employees are entitled to remains unchanged.
• Obligation of the Employer – The employer must provide written and electronic notice of maternity benefits and company policy to all female employees. Companies should consider including these clauses in their employee handbooks/HR manuals as a matter of policy.^[8]
• Protection from termination during the pregnancy – Any dismissal or discharge of a pregnant woman is illegal, and the employer can be held liable for the same.^[9] However, in circumstances of intentional misconduct, the employer has the authority to take appropriate disciplinary action in accordance with the Company’s disciplinary policy.

Analysis of the maternity benefits framework

The 2017 Amendment Act made several significant changes to the Maternity Benefits Act, 1961. The stipulations of the Sixth Central Pay Commission (For Maternity and Child Care Leave) and the Central Civil Services (Leave) Rules, 1972 were among the significant amendments made (CCSL Rules), which for the first time implemented a “Six Months Paid Leave Policy” for the Central Government Employees. In 2000, the International Labour Organization (ILO) drafted the Maternity Protection Convention,^[10] which stipulated that women should be given at least 14 weeks of maternity leave. Maternal Health is also one of the Sustainable Development Goals,^[11] according to the United Nations. Motherhood and childhood are entitled to special care and aid, according to Article 25 of the Universal Declaration of Human Rights.^[12] 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”^[13]

During the 44th, 45th, and 46th sessions of the Indian Labour Conference, the provisions of the aforementioned international instruments were synthesised in the formulation of the Maternity Benefits Act, 2017.^[14] The Act, which came into effect on April 1st, applies to all women workers in both the organised and unorganised sectors who work in establishments covered under Section 2 of the Act. Several legislations in the labour and industrial policy discuss and provide maternity benefits for women. The Employees State Insurance Act of 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 its proper execution.^[15]

The Amendment Act was essential in creating a policy for providing crèche facilities to working women’s children. Working women are also given the opportunity to work from home under the Act. On a contractual basis, however, this can be questioned with respect to the terms that have been agreed upon between the working women and the employer. With the increase to 26 weeks of paid maternity leave, India is now among the top sixteen countries offering the longest maternity leave, and the third largest after Norway and Canada. Strong legislations, such as the Maternity Benefits Act, must be followed with a strategic application of laws in their implementation by independent authorities in order to have the desired effect.

Maternity benefit & the Indian Constitution

The rights and privileges for the betterment of women are: the right to equality (Article 14), the right to social equality (Article 15), the right to social equality in the employment (Article 16), Article 39(a) guarantees a sufficient means of livelihood, Article 39(d) guarantees equal pay for equal work, Article 39(e) guarantees that workers’ health and strength are not exploited, right to just and humane working conditions and maternity leave (Article 42), and the right to improve working women’s employment opportunities and conditions (Article 46).

The Indian Constitution authorises the government to provide specific provisions for women under Article 15(3). Article 15 (3)’s principal goal is to prevent “protective discrimination” based on women’s weak physical position. The reason for this is that “women’s physical structure and performance of maternal functions placed her at a disadvantage in the struggle for survival, and her physical well-being became an object of public interest and care in order to preserve the race’s strength and vitality.” This provision has allowed the State to enact special legislation solely for the benefit of the women.

“The State shall make provision for providing reasonable and humane working conditions and for maternity relief,” according to Article 42, a directive principle of State Policy. Art. 21, Right to Life and Personal Liberty, guarantees not only the right to safeguard one’s body, but also a broader range of rights. The right to life refers to the ability to live a full, meaningful, and dignified life. It doesn’t have a specific meaning. It’s more than just living or existing as an animal. The meaning of the word life is inexhaustible, and it will be available to all citizens of the country. As a result, the state must provide all of the facilities and services that a pregnant working woman requires while also protecting her employment and both her and her child’s health.

The second five-year plan and the enactment of the Maternity Benefit Act

The Second Five-Year Plan^[16] resulted in the introduction of basic law on maternity benefits. In respect of women’s affairs, the plan retained its welfare approach. It acknowledged the necessity for women to be organised as workers, that they should be protected from hazardous employment, that they should get maternity benefits, and that crèches for children should be established in workplaces. It also urged that the principle of equal pay for equal work be quickly implemented, as well as the provision of training to enable women to compete for higher-paying jobs.

By far the most significant development was the enactment of the Maternity Benefit Act, 1961, a new Central legislation on maternity benefits. The Maternity Benefit Act of 1961 was enacted with all pre-constitutional laws in mind, as well as the amended ILO Maternity Protection Convention of 1952.

Issues raised before the courts

Some of the landmark cases have been briefly discussed in this chapter:

1. Rattan Lal and Ors. vs. State of Haryana and Ors.^[17]– The state of Haryana’s ad hoc teachers’ grievances about non-payment of salaries during the summer holidays and denial of other benefits such as casual leave, medical leave, maternity leave, and so on were taken into consideration. The Court observed that, Summer vacations, together with salary and allowances, as well as all other advantages offered to all government employees, including as casual leave, medical leave, maternity leave, and so on, are denied to ad hoc teachers unreasonably due to the State Government’s pernicious appointment system. The Apex court, strongly criticising the state government’s policy of denying ad hoc teachers’ salaries and allowances during the summer vacations, ordered the payment of the above-mentioned benefits, including maternity and medical leave, to those who are entitled to them.
2. AIR India vs. Nargesh Meerza and Ors^[18]– The provisions on Retiring Age implied that an Air Hostess’ normal retirement age is 35 years, or even when she marries within four years of service, or when she has her first child, whichever happens first. The provisions stating that the services of an Air Hostess would be terminated upon the first pregnancy were declared unreasonable and arbitrary by the Court. As a result, such a provision is not only manifestly unreasonable and arbitrary, but also unfair and exhibits naked despotism, and is thus obviously in violation of Article 14 of the Constitution.
3. Bombay Labour Union vs. International Franchises Pot. Ltd.^[19]– Unmarried women were forced to give up their service upon marriage, as per a rule. The court noted that there was no indication that married women were more likely than unmarried women or widows to miss work. If it were the presence of children which could be the reason for greater absenteeism among married women, then the case would be similar in the case of widows with children as well.
4. B. Shah vs. Presiding Officer, Labour Court, Coimbatore and others.^[20]– The Supreme Court was asked whether Sundays, which are wage-less holidays, could be excluded while calculating maternity benefits for the period covered by Section 5. 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. She is unable to work during this time and requires additional funds to cover her medical expenditures. The law provides for maternity benefits to enable the woman worker to survive and maintain her health throughout this time, enabling her to perform her productive and reproductive tasks effectively.
5. K Chandrika vs. Indian Red Cross Society^[21]– The petitioner’s employment was terminated while she was on maternity leave. The petitioner had not received the communication, according to the evidence. The Industrial adjudicator determined that the worker had no intention of joining the management team, and she was denied reinstatement and related benefits. The Court held that the petitioner’s services were terminated illegally and unjustifiably. For the purposes of calculating service benefits, the court ordered that the Petitioner be reinstated in service with continuity of service.
6. Vandana Kandari vs. University of Delhi^[22]– The court held that any Act on the part of any university or college which deprives or detains in any semester any female student, merely on the ground that she was unable to attend classes, being in the advanced stage of pregnancy, or due to the delivery of the child, is an act which completely negates not only the conscience of the Constitution but also women’s rights and the concept of gender equality.
7. Smt. Neetu Choudhary vs. State of Rajasthan and Ors^[23]– Maternity benefit cannot be denied to female employees merely on account of the mode of payment of wages.
8. Tata Tea Ltd. vs. Inspector of Plantations^[24]– If an employee is enjoying maternity benefit within the meaning of the Maternity Benefit Act, the employer cannot call upon her to come and work on holidays. It was also held that payments that have already been made by the employer towards the wages under the National and Festival Holidays Act should not be adjusted from the maternity benefit the employees are entitled to get under the Maternity Benefit Act.

Therefore, after analysing various provisions of the Act & other legislations related to maternity benefit, it can be observed that Maternity Benefit Act has been a boon for the working women in the sense that they don’t have job insecurity during their maternity period. Though it has some flaws which need clarity, it can be stated that implementation of the Maternity Benefit Act has been effective.

Conclusion

During her pregnancy, every working woman should have considered whether she should continue working or leave. The problem is that she must pick between her professional and personal lives. As a result, maternity schemes were created to assist mothers and their children during their pregnancy, reducing stress and negative thoughts in the mother and improving her health. An extended maternity leave of twelve weeks to twenty-six weeks has pushed India into the top ten countries in the world. India has become one of the best countries for women to work because of its flexible maternity leave system, which allows people to work from home, has a crèche, and is therefore more easily accessible to unorganised sectors. Therefore, it can be concluded that the Maternity Benefit Act has been a boon for the working women and this amendment Act brought a huge positive environment, protection, security to all the women in the country.

References

[1] Section 3 (b) of The Maternity Benefit Act, 1961