The recent passage of the Maternity Benefits (Amendment) Act, 2017 has been hailed as a victory for the women’s rights movement in India. This long-overdue amendment to the Maternity Benefits Act, 1961 has arguably has been fruitful, having increased the maternity benefit period to 26 weeks from the previously provided period of 12 weeks.
This has brought India’s law in line with international best practices (The Maternity Protection Convention, 2000 (No. 183) which mandates at least 14 weeks of maternity benefit, and a WHO recommendation on children being breast-fed by mothers at least till 24 weeks for healthy development of the child). Another novel feature of the amendment is the introduction of 12 weeks of maternity benefits to an adopting mother (for a child younger than three months) and commissioned mothers.
Furthermore, the amendments have also mandated introduction of creche facilities for establishments covered under the Act having more than 50 employees.
They also mention compulsory work-from-home provisions with mutual consent between the employee and the employer.
The amendment has placed India third globally in the amount of maternity benefits being available (behind Canada and Norway), and in a better position compared to countries such as the United States, where the struggle for paid maternity leave continues. However, the implementation of the Act has faced several hurdles along the way.
The Ministry of Labour and Employment has, on occasion, issued clarifications relating to the amended provisions. For instance, it was clarified that Section 2 of the Act of 1961 has not been amended and remains in force verbatim, i.e. extends to every establishment being a factory, mine, or plantation, including any such establishment belonging to the Government, and to every establishment wherein persons are employed for exhibition of equestrian, acrobatic, and other performances, as well as every shop or establishment in a State where 10 or more persons are employed or were employed.
The second clarification pertains to the applicability of amended provisions to women who currently fall within the purview of the un-amended Act, and are availing maternity benefits under its provisions. This refers to women who have not already availed maternity benefit as per the previous provision and are availing maternity benefit when the Act comes into force (1st April, 2017).
The amendments mandate that they will be entitled to avail the extended benefit of 26 weeks as well as the other ancillary benefits brought into effect.
The Government’s clarification regarding the applicability of the Act to the unorganised sector, however, remains dubious. On 12th April, it clarified whether the Act applies to women in the unorganised sector. The clarification pointed to the un-amended Section 2 of the Maternity Benefit Act of 1961. This provision states that the Act is applicable to all women working in mines, plantations, shops, and establishments as well as factories, which can be in either sector.
However, the Unorganised Workers’ Social Security Act, 2008 defines unorganised sector workers as those who are home based, self-employed, or wage workers in an enterprise with less than 10 employees. The clarification, therefore, does not address women employed in enterprises with less than 10 employees. This excludes them from the Maternity Benefit Act, 1961 which applies to enterprises having 10 or more than 10 employees. This is inherently problematic, considering that 90 % of working women (see: p 26) are part of the unorganised sector.
There are health and maternity benefit schemes such as the Janani Suraksha Yojana and the Indira Gandhi Matritva Sahyog Yojana. These provide financial assistance and compensation for loss of wages. However, their benefit is primarily cash assistance and institutional support to women below poverty line during the process of deliveries. They do not address the issue of maternity leave, which leaves maternity benefits for women in the unorganised sector wanting.
These schemes exist under the auspices of the Unorganised Workers’ Social Security Act, 2008.
Further, there is a lack of uniformity across labour laws about maternity benefits. Acts such as the Employees State Insurance Act, 1948, All India Services (Leave) Rules, 1955, Central Civil Services (Leave) Rules, 1972, Factories Act, 1948, and the Unorganized Workers Social Security Act, 2008 differ in coverage, benefits, and financing. We must amalgamate them so as to effectively disseminate benefits across various sectors.
The amendment may dissuade employers from employing women as presently the financial burden of maternity benefits is entirely on them. The ILO has, in fact, stated that cost for providing maternity benefits must not be exclusively borne by the employer. In this regard, the government can formulate social security schemes, addressing the maternity benefit financing issues.
The Pan-India expansion of Maternity Benefit Programme (MBP) announced at the start of 2017 is a welcome step which is applicable to all pregnant women and lactating mothers. This excludes the pregnant women and lactating mothers in regular employment with the Central Government or State Governments. It also excludes those in Public Sector Undertakings or receiving similar benefits under any law for the time being.
But, the government must move towards payment of benefits through compulsory social insurance or public funds (see: Conclusions at p 117), in line with the ILO’s recommendations.
Another issue highlighted in the discourse is the lack of provisions for paternity benefits in India. Presently, paternity benefit is allowed in Government jobs as part of leave rules, or is a matter of internal policy – for example, Deutsche India and Microsoft India recently announced enhanced paternal leaves. In this regard as well, the ILO has recognised men’s right to parenthood, wherein men are active co-parents rather than helpers of their women partners.
Motherhood as a concept is a subject of debate in feminist discourse, which views women as the primary caregivers. A move from maternity benefits to ‘parental benefits’ will have enormous potential in achieving effective gender equality at work. It will also champion child rearing as a collective responsibility and a more equitable division of labour in the home. The government should formulate incentivised schemes regarding paternity benefits so as to achieve this aim.
Overall, the introduction of the amendment is a welcome and positive step, but authorities must address its shortcomings. Co-incidentally, the Government has another opportunity to do so. The draft Labour Code on Social Security & Welfare has been in circulation since 16th March 2017, wherein the Ministry of Labour and Employment has invited comments and suggestions from all the concerned stakeholders and general public.
The Code aims at amalgamating the existing labour laws relating to social security, including the Maternity Benefit Act. The Act appears (along with the amendments) in Part H of the Code. This opportunity to address the issues is welcome. We must utilise it effectively to ensure the law provides equal opportunities to women at the workplace.
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