This article is written by Millia Dasgupta from Jindal Global Law School. This article covers the need for maternity leave, the various laws under which maternity leave is governed and a critical analysis of the new amendment.
Table of Contents
Introduction
Women are usually associated with domestic work or work inside the house and men are associated with work outside the house. It is due to this assumption that men are usually associated with being the sole breadwinner of the house or with economic production. This outlook has shaped the work environment and rules and has even been reflected in the established law, for example, the Indian Factory Act, 1948 by defining the term ‘work’ and ‘man’. It is because of this outlook that many overlook the fact that women provide a lot of free work and labour inside their households and communities. A woman’s contribution to society is not new. Their contribution has been overlooked as such labour is expected from them. For example, manual labour in their own household. They work as cooks and domestic help but their work is overlooked due to the fact they are not being paid and are thus not contributing to the economy.
The reality of working women
While this is still a reality in a majority of households, due to rising economic pressure we are now seeing more women moving into the workforce so that households can have dual income. Women in the past and since the very beginning have been an invisible force in the workforce but nowadays it is becoming more popular, But despite joining the workforce, women are still seen as having the primary responsibility of household work and child care. This situation becomes even more stressful during the time of pregnancy or when they have children to look after. Few employees are sympathetic towards this situation and are not flexible with childcare, flexible with hours so that they can look after the children and are not keen on giving paid maternity leave. It is because of many firms and factories insensitivity to the unique needs of women during pregnancy, that it has become important that there should be an established law in order to enforce certain ethics to help women. These various laws were passed in order to ensure maternity rights to all workers. In this article, we shall be discussing the various laws and their critiques.
Need for maternity leave
The need for women to take maternity leave has been treated as a disability for women. This is because they have to take leave a few weeks before and after the birth of their child. In the past, employees would fire women if they saw that the need for maternity leave or the fact that the worker was pregnant interfered with the said worker’s ability to perform. Thus, in order to avoid being fired, they would take leave without pay. For labour intensive or general work-intensive fields, women workers would have to sometimes compensate and overwork if they were pregnant or had taken maternity leave which was extremely mentally and physically stressful and also injurious to the health of the mother and the child. Thus in order to remove any sort of hardship on the women, such laws were enacted.
Laws
Indian Constitution
Article 42 of the Directive Principles of State Policy states that “the State shall make provision for securing just and humane conditions of work and for maternity relief”.
Maternity Benefit Act, 1961
Working women under the Maternity Benefit Act, 1961 are allowed to take maternity leave for up to three months. This law also makes sure that maternity leave is payable and that working women are entitled to payment. The amount payable to her is equal to the rate of average daily wage for the period of her actual absence. The act states that in order to be entitled to benefits, she must have worked for a period of 80 days during the 12 months preceding the expected date of her delivery. Under this act, no employer is also allowed to employ a woman, 6 weeks after giving birth, miscarriage or medical termination of the baby. If a woman worker fulfils all the given criteria under this act, it would be unlawful for any employee to dismiss or fire her for taking maternity leave. This law was later amended.
Employees’ State Insurance Act, 1948 (ESIA) and the Central Civil Services Rules, 1972
All non-season factories that run on power, employing 10 or more people or non-seasonal factors running without power that employ 20 or more people are liable to follow the Employees’ State Insurance Act, 1948 (ESIA). The act was made in order to ensure a social insurance scheme to protect workers in the organised sector during an emergency, including maternity. According to this act, if any sickness, miscarriage or unavailability arises due to pregnancy or premature birth, then the employers must provide periodic payment to the insured woman. The duration for maternity leave is 12 weeks, which can be extended by a month if any sickness or complications arise due to the pregnancy.
According to the Central Civil Service (Leave) Rules, women in the government sector get up to 6 months worth of maternity leave. They are also allowed to take leave of up to two years for child care in different phases until the child turns 18.
International Conventions
The aforementioned laws did not meet various international conventions. For example the International Covenant on Economic, Social and Cultural Rights, 1996. Members of the International Labour Organisation adopted the Declaration on Equality of Opportunity for Women Workers in a conference in 2004. In this resolution, the recommended minimum duration for maternity leave was 14 weeks. The ILO Maternity Protection Convention, 2000 stated that the protection of women workers during pregnancy was the job of the government as well as society. India being a member of ILO recognized that it’s maternity leave laws were lacking and thus added various amendments. The Maternity (Amendment) Bill 2017 was passed in the Rajya Sabha in 2016.
The Maternity (Amendment) Bill 2017
Under The Maternity (Amendment) Bill 2017, maternity leave has been raised from 12 weeks to 26 weeks. Prenatal leave is extended to 8 weeks. However, if a woman already has 2 or more children, she is liable to only 12 weeks of maternity leave and 6 weeks pre-natal leave. By extending maternity leave over 18 weeks, India has become one of the 42 countries which have maternity leave for so long. Below are the other factors of the maternity amendment bill.
- This amendment act also provides for adoption leave. This is available for women who adopt a child under 3 months. They are allowed 12-weeks of leave. This Act also allows for a 12 week leave for commissioning mothers. Commissioning mothers are those mothers who fertilize their eggs to create an embryo, and implant it into another woman for incubation. They basically conceive through a surrogate.
- The Act requires women to be informed about their rights under this Act at the time of hiring.
- Female civil servants are allowed 180 days of leave for their first two born children.
- The woman worker who has taken maternity leave shall be given their full pay of at least 80 days in the 12 months prior to her expected date. The amount payable shall be calculated by the average rate of the workers daily wage. Apart from this 12-week salary, she is also entitled to a bonus of Rs 3,500.
- A pregnant woman is also entitled to a medical bonus of up to rs 1000 if no free medical care has been assigned by the employer.
- It also allows nursing mothers to stay at home even after the expiry of 26 weeks, if the nature of their work allows them to do so.
- It has also become mandatory for firms under this Act to have individual creches. A few common firms can also set up creches within a prescribed distance.
Critical analysis of the Amendment Bill
It is very odd that the Act makes a distinction between a woman and a woman who already has 2 children. A woman who has not had her first two children can take up to 26 weeks of leave but a mother who already has two children can not. Below we discuss the other factors of the amendment bill.
No provision for the surrogate mother
The Act is similar to laws in the UK, France, Canada and Sweden which provides leave for women who adopt children younger than three months and commissioning mothers. The amendment is unclear on what is to happen to a mother who adopts a child older than three months and whether she is allowed a leave. The Act also does not mention surrogate mothers whose womb is being used by commissioning mothers. When surrogate mothers rent out their womb and give birth, they also must face various medical procedures such as a C section. They also go through the emotional pain that comes with being separated from a baby that you carried. Surrogate mothers thus deserve some sort of leave, at least enough to recover from medical procedures.
Caution About The Increase In Flexibility Of Leave and Work
The new Act also allows women to work from home, thus giving women flexible hours and time to work from home. This move has been praised by many people. Women are usually asked to leave their work due to the rising demands at home after a child. Having such flexible hours could make sure that women do not leave their job. But there is also the worry that such an amendment would discourage employers from hiring women. There is also the fact that a large majority of work can not be done from home (for example manual labour) and thus such a clause would only aid a small percentage of people.
Roadblocks with the implementation of this act.
There are also roadblocks in implementing the Act. Despite firms consciously trying to become more gender-friendly, there are still numerous cases where female workers are harassed for revealing that they are pregnant. Also, while the Act states that a woman can not be sacked or prejudiced against due maternity leave and her compensation should be the average of her daily salary, companies usually record the period of maternity as average or no performance. This is a problem because companies provide promotions on performance. Thus, it is common for companies to reject women from promotions when they come back from maternity leave. There is also the worry, as mentioned before, that employers would not want to employ expecting mothers or women in general due to the long duration of maternity leave.
There is also criticism against this Act in general. It seems to fulfil the needs of corporate working women who are a small percentage of working women and does not cater to the needs of women who are working in the informal sector. Around 90% of women work in the unorganised sector. There are gross violations of human rights that go on. These violations are not given due diligence by this Act. For example, there are cases of contractors forcing hysterectomy (surgery to remove your uterus) on sugar cane workers in order to avoid complications that come with mensuration and pregnancy.
Conclusion
In today’s age, it is extremely important that women are given proper maternity leave in order to ensure not only their health but the health of their children. It is due to this inherent nature of maternity leave that it becomes a very pressing issue that the government has taken very seriously. In a very progressive move, they increased the duration of maternity leave from 12 weeks to 26 weeks. While this is a welcoming change, there are still criticisms for the amendment and it seems that India still has many other issues in the maternity leave debate that it needs to address.
References
- https://paycheck.in/labour-law-india/maternity-and-work#:~:text=According%20to%20the%20Maternity%20Benefit,weeks%20of%20paid%20maternity%20leave.
- https://spaceandculture.in/index.php/spaceandculture/article/view/210
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