Hindu Minority and Guardianship Act
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This article is written by Shloka Rao.

Introduction

Laws are dynamic in nature and they are to change with time in order to adapt to the evolving needs of the society. For a law to be socially just, it must be able to cater to all the factions of people in the society. Since time immemorial, the women have been subjected to various inequalities and with time, as the women got the opportunity to be part of the workforce and employment sector, the entire landscape of women’s role and contribution in the society has changed. This element of social justice has been manifested in present day legislations and judicial precedents as well. With several laws in place ensuring equality for women and protecting them from diverse unfair practices, culture, traditions, etc. that obstructs social fairness towards women. The Maternity Benefits Act of 1961 is one such piece of legislation that seeks to provide working women with an equitable level playing ground and secured environment in their workplace.

The process of mothering is a natural phenomenon and the employer must be considerate and sympathize towards the women undergoing such a sensitive phase. Statistics at national and international level is evidence of the fact of women’s contribution to the economy but statistics of the International Labour Organization also displays a dicey truth, i.e., though most countries are seen to provide women with maternity benefits, there is a huge gap and failure in terms of its implementation. This highlights how even though India and even other countries are putting substantial efforts towards gender parity and social security of the women workforce, they are lagging in terms of its effective execution despite it being a right of every working woman. 

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The Maternity Benefits Act of 1961 had provisions empowering women to take paid maternity leaves, crèche facilities, work from home, etc. However, this legislation fell short in various aspects. The Maternity Benefits (Amendment) Act which was enacted in 2017 brought about several sweeping changes with an attempt to fill the loopholes that existed in the Act of 1961. 

Benefits under the Act

There are various fundamental changes that the Amendment of 2017 has incorporated into the Maternity Benefits Act. They expanded the scope of the definition of the term “establishment” and now extends to factories, plantations, mines, shops, governmental establishments, establishments under applicable legislations and establishments notified by the Central Government. Thus, it can be inferred that seemingly all sorts of uncovered areas are now brought under the ambit of “establishments” who have to provide the women working there with maternity benefits. For the women to avail these benefits, she must have been working there as an employee for at least 80 days within the past 12 months.

The next crucial change added into the legislation was the extension of leave availability duration from 12 to 26 weeks for the pregnant woman. This was based on the World Health Organization’s recommendations that a child must exclusively be breastfed by the mother for a period of first 24 weeks as this is required for the healthy growth of the child. One such landmark case with regard to maternity leaves is Anshu Rani v. State of Uttar Pradesh & Orswhere the Court placed reliance on Article 14, 15(3) and 42 and held it to be a part of a women’s right to maternity benefits. Thus, it is clarified how a women’s right to maternity benefits is also included in the constitutional rights under the aforementioned articles. Even the case of U. Ishwarya v. Director of Medical Education, Directorate of Medical Education & Orsit was reiterated that maternity leaves cannot be denied at any cost. 

One more significant and progressive aspect added to this is that as per Section 5(4) there is recognition of mother of adoptive child’s right also to maternity leave in instances where the child is below 3 months. The Act provides for 12 weeks of paid maternity leave even for such a mother which is much-appreciated step. 

Another important area of amend was under Section 5(5) which gave the option given to mothers, to work from home, in cases where the mother is unhealthy post-delivery. Along with this, mothers are also given a choice under Section 11 and 11A, to visit their child’s nursery/crèche, up to 4 times a day, at intervals to look after their child whereas in the 1961 Act, only 2 times a day was permitted.

The Act also acknowledges the agony of a woman who has suffered a miscarriage or has terminated her pregnancy and offers a paid leave for the same which can extend up to 6 weeks from the date of such an incident. Under the 1961 Act, only 1 month of leave was given in such instances. Even as consequence of a tubectomy operation, the woman is entitled to get 2 weeks of leave with maternity benefits under Section 9 and 10 respectively. Lastly, as per Section 11A(2) of the Amendment of 2017 at the time of employment itself, the employers have to mandatorily inform and alert women regarding the varied maternity benefits that they are entitled to.

This would help women be more aware of their rights and chances of evading the same by the employer are lesser. These changes will not only reduce the number of women dropping out of labour force due to the inadequate maternity leave but also falls at par with international best practices like the Maternity Protection Convention, 2000. There have been various cases that have upheld the rights to maternity benefits. One such case is that of Dr. Mandeep Kaur v. Union of India where the petitioner was a medical officer employed via a contract in a clinic. She applied for maternity benefits and was denied the same. The Court upheld that the benefits are applicable to every establishment that has 10 or more employees thereby making her entitled to receive maternity benefits. In another case of Municipal Corporation of Delhi v. Female Workers & Anr, the Supreme Court laid down a significant precedent and said that a women is entitled to maternity benefits even if she is employed on a contract basis and one more important precedent is held was that right to maternity benefits also comes under the ambit of right to life under Article 21 of the Constitution.

Analysis

Despite these positive changes that the Amendment of 2017 incorporated, there are quite a few gaps that even the Amendment has failed to address and fix. Several provisions of the Amendment remain ambiguous like the time period up to which the crèche facility benefit could be extended and even with respect to the frequency, availability and scope of nursing breaks.

Another drawback that can be observed is how the employer would prefer male employees in order to reduce the cost of providing maternity benefits. Not only this, but the provisions might seem to distress the competitiveness of industries that is primarily occupied by women workers.

Moreover, even though the Act includes organized and unorganized sector within the purview of “establishment”, the Unorganized Social Security Act, 2008 defines unorganized sector to only contain only self-employed, home-based workers or wage workers working in entities with less than 10 employees. Thus, 2017 Amendment doesn’t clarify whether women working in entities with less than 10 employees are entitled to the benefit under the Act or not. This clarity is necessary because most working women in India are employed in the unorganized sector itself. 

Furthermore, the Amendment of 2017 is also silent on the aspect of paternity leaves. This is one area that is of contemporary discussion but even the Amendment of 2017 is silent on this aspect. At present, only government jobs provide for paternity benefits as a part of their leave rules itself whereas, in private entities, it is a matter of their internal policy. This is a matter that has to be taken into consideration in current times and even the ILO has rightly recognized the right to parenthood because men as well are active co-parents and a gender-balanced approach towards parenting is a must. Despite all the changes that the Amendment has tried to bring it, it falls short in these facets.

Even though the leave periods have been extended under the 2017 Act, the Act falls short of provisions to meet the breastfeeding guidelines. Studies prove that breastfeeding accrues benefits to the child as well as the mother and India lacks compliance with the breastfeeding guidelines because of which child mortality rates are seen to increase and not only that, even the death rate among women is seen to rise as a result of cancer, type II diabetes and these are directly associated to insufficient breastfeeding. This is alarming and yet, no action is taken to combat this issue.

It becomes imperative to establish some strong provisions to address these issues but in the present case, there are no provisions in the Act that comply with the breastfeeding guidelines and despite the adverse effects of this, there are no efforts or attempt by the Government to bring about positive changes to change this. The role and contribution of women in the labour force is being disregarded when such concerns are being blatantly ignored. The responsibility of the government does not end at providing the benefits but they are also accountable to bring about necessary changes from time to time, in furtherance of such unsettling concerns.

Conclusion

A way forward to more development in the field of maternity benefits could be by way of creation of a sort of corpus fund by the government which could be used to partially support and sponsor the costs borne by the employer rather than imposing the complete burden on the employers who tend to get demotivated by the same. Furthermore, maternity benefits could be provided either by way of public funds or by way of compulsory social insurance.

Currently, the entire burden of providing maternity benefits lies with the employer and this has quite a few adverse effects which is why an alternative approach like funding would be better. In this regard, a step has been taken which is the Pan-India expansion of Maternity Benefits Program which is an initiative by the Ministry of Women & Child Development. Apart from this, the employers could make available a private and hygienic room for the women to breastfeed. This way, the chance and risk of discontinuing breastfeeding will also reduce. 

Another essential area that requires adjustment is the lack of uniformity among the different laws regarding maternity benefits which seems to generate a sort of ambiguity like the Unorganized Workers Social Security Act, 2008, Central Civil Services (Leave) Rules, 1972, the Employees State Insurance Act, 1948, All India Services (Leave) Rules, 1955, and the Factories Act, 1948. Amalgamation of the relevant provisions from these legislations is the need of the hour. 

Finally, the government should make satisfactory arrangements to accommodate paternity benefits considering how the world is moving towards gender parity. The father has equal responsibility as a co-parent and parenthood is a phase for both the parents to be a part of. 

Thus, despite the affirmative and optimistic changes that the 2017 Amendment has sought to achieve, there are some shortcomings that need to be addressed in order to successfully achieve its objective. 

References

[1] Manvendra Singh Jadon and Ankit Bhandari, Analysis of the Maternity Benefits Amendment Act, 2017 and its Implications on the Modern Industrial Discourse, Christ University Law Journal 2019, Vol. 8, No.2, 63-84, ISSN 2278-4332. https://poseidon01.ssrn.com/delivery.php?ID=535088111116103127003012090116080122000020077035034062072085114067099087127119110098056017035063031005018100099078122094088083121026023010011087122120106026024122023017048009090116106091064028026097076101005115019092031070087103085090101096018000097087&EXT=pdf&INDEX=TRUE 

[2] ILO, Women at Work Trends 2016, INTERNATIONAL LABOUR OFFICE, INTERNATIONAL LABOR ORGANIZATION, GENEVA, (2016). https://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/—publ/documents/publication/wcms_457317.pdf 

[3] Gayathri Devi M, Dr. K Logasakthi, A Comparative Analysis on  Maternity Benefits In India With Other Countries, European Journal of Molecular & Clinical Medicine ISSN 2515-8260 Volume 07, Issue 3, 2020. https://ejmcm.com/article_5361_e319b4c516dc42685db4b2a4ab5eb5e8.pdf 

[4] Santhosh Kumar, Maternity Benefits (Amendment) Act 2017- Pros and Cons, June 3, 2019. https://www.iasexpress.net/maternity-benefit-amendment-act-2017/ 

[5] WRIT – A No. – 3486 of 2019.

[6] W.A.No.374 of 2018.

[7] CWP No. 1400 of 2018.

[8] 2000 (3) (SCC) 224.

[9] Dr. Rajeshri Randive Admane, A Study on Effectiveness and Impact of Maternity Benefit (Amendment) Act, 2017 on Employment in Unorganized Sector, International Journal of Advanced Science and Technology, Volume 29 No.3, 6298 – 6311. http://sersc.org/journals/index.php/IJAST/article/view/7080/4220 


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