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INDIA’S LEGAL STRUCTURE FOR MATERNITY BENEFITS: ITS EFFECTS AND ADVANTAGES

Publications, Research paper

ABSTRACT

The Maternity Benefit Act, 1961, has been amended partly and on certain occasions to provide maternity benefits for women employed in various establishments. The Act had its commencement as the Bombay Maternity Benefit Act of 1929 and was subsequently re-enacted in the different provinces in India. Section 5 of the Act, as amended in 2017, provides for maternity leave for up to twelve weeks and raises the duration for maternity leave to be 26 weeks. This is consistent with the ILO’s recommendation of 18 weeks or more. The amendment also makes provisions for childcare facilities for firms hiring fifty or more employees. The Indian Maternity Benefits (Amendment) Act, 2017, was passed by the Rajya Sabha and Lok Sabha in 2016 and it was made to be effective from April 1, 2017. This amendment has a lot of challenges for the employer, like inadequate resources, decreased productivity, and increased rate of employee dropout, making them feel less appreciated and neglected by the organization. “The amended Act still remains unclear and leaves the provisions without a mention of the time limit for availing the child care facilities or the extent of a break of a nurse.” Another factor is the absence of institutional support for women workers from the unorganized sector. The management needs to unify all labor laws, which need to take maternity benefits, again revisiting the financial burden of the employer, and introduce paternity benefits. The purpose of this article is to improve knowledge about maternity benefits in India. It also covered the difficulties and effects of the Act on both employers and employees. Suggestions are included at the conclusion of the article.

KEYWORDS

  • Maternity
  • Maternity Benefit Act, 1961
  • Section 5
  • Women
  • Child care

INTRODUCTION

The Maternity Benefit Act, 1961, was enacted in India for the protection of the rights and interests of women workers during maternity leave. It protects expectant mothers and new mothers in the workforce. The act safeguards female employees from any injustice or discrimination against them because of their pregnant condition. Maternity benefits under the Act are a legal entitlement and cannot be denied to a single woman. It is what any female employee gets from provisions under the Act concerning maternity benefits. The act only concerns women employees in so far as maternity benefits go, which clearly means that it is a gender-specific act recognizing the special biological role that women play in procreation and to help women financially at this important phase of life.

RESEARCH METHODOLOGY

The methodology used here is descriptive, fundamental and conceptual legal research.

Descriptive legal research indicates the phenomena or situation under study and its page characteristics as to’ what has happened’ is the main focus of the system search it doesn’t attempt to answer the question ‘why it has happened’ the study steaks to describe the research as it is at the present.  Fundamental legal research is concerned with the generalization and formalization of the theory. This research is done merely to increase the knowledge in the field of inquiry.  Conceptual legal research is related to an abstract theory on idea this type is generally used by philosophers and thinkers either to develop or interpret the existing concept here reinterpretation of the existing concept has taken place. 

This study and research have been conducted using primary legislative texts from the Maternity Benefit Act and other government websites and databases search as Manupatra, SSC etcetera. Secondary Sources such as journal articles from recognized sources have also been included as a source of this paper 

LITERATURE REVIEW

Legislation like the Maternity Benefit Act allows women to get paid maternity leave and other connected benefits at the time of childbirth. Maternity Benefit Act has a long history of evolution, as related by Dr. Ramesha. Several studies have said that this type of legislation will prove very important in yielding good maternal health and achieving gender equality in the workplace. For instance, Bhattacharyya et al. conducted a qualitative study in 2015 that elaborated on maternity care in public health facilities across Uttar Pradesh, bringing out gross inconsistencies between user experiences and provider offerings. Indeed, the results further underscored that it is time for better policies and implementation strategies to enhance the quality of care in terms of maternity care services in India. 

Notwithstanding all that the Act provided for, the implementation had a lot of hurdles. Dr.Shashi Bala relates to the challenges and impact of the Maternity Benefit Act on employers and employees. Including the analysis impact of the act on employment.

EVOLUTION OF MATERNITY BENEFIT ACT

In 1919, when the ILO adopted the Maternity Protection Convention, recommendations were made that participating nations conduct investigations into the issue of maternity benefits for female employees. For this reason, a special resolution was passed at the conference requesting the Indian government to research the issue of maternity benefits and present a report to the text conference.

Afterward, the Indian government consulted employers, provincial governments, and other parties of interest before it presented a report at the International Labour Conference in 1921. The Indian government announced that it could not ratify the Convention.

The state governments in India, however, studied the prospects of maternity benefit laws in spite of the unsympathetic attitude of the Central Government. It was, therefore, the Bombay Maternity Benefit Act of 1929 that led to the movement of subsequent maternity benefit Acts. Provided that a medical certificate is produced, every woman worker who has been working in a factory for nine months is entitled to maternity benefit provided by the Act. She is entitled to an absentee benefit for a period of four weeks. She was entitled to 8 annas per day as maternity benefit; eight annas are equivalent to 50 paisa in today’s currency. It was the first maternity benefit legislation in India. A similar enactment was afterwards made in 1930 by Berar and the Central Provinces.

Another important milestone in the field of maternity benefits was the Royal Commission on Labour in 1929. The Commission recommended, among other things, that the other provinces adopt the maternity benefit laws based upon the Bombay Maternity Benefit Act, 1929. Based upon the recommendations made by the Commission, some provinces legislated the laws regarding maternity benefits. The benefit should be non-contributory, the commission further opined.

It was enacted in 1934 in Madras and Ajmer; in 1937 in Delhi; in 1938 in U.P. and in 1939 in Bengal and Sind. In 1942, it saw the light of the day in Hyderabad; in 1943 in Punjab and in 1944 in Assam. The state of Bihar enacted this law in 1945. The Maternity Benefit Act was re-enacted in Bihar in 1947 but with some modifications. The Central Government moved with the times. It enacted the maternity benefit laws taking cue from the governments of the provinces. The Mines Maternity Benefit Act of 1941 was the first important law in the field. As it applied only in mines, the scope of application of this Act was very narrow.

This constitution was adopted in 1950 after India had attained its independence. There are provisions in the constitution that grant women their rights and privileges. It is the backbone and main doctrine for any legislation in the future. There are provisions, both in the directive principles of the state and fundamental rights, which refer to these rights and privileges.

PROVISIONS OF THE MATERNITY BENEFIT ACT

PURPOSE OF THE ACT

“An Act to regulate the employment of women in certain establishment for certain period before and after child-birth and to provide for maternity benefit and certain other benefits.”

OBJECTIVE

  • To govern women’s employment during specific times prior to and following childbirth and to offer maternity benefits such as paid time off, bonuses, and nursing breaks. 
  • To safeguard the woman’s and her child’s complete and healthy maintenance during this crucial period when she is not working, thereby upholding the dignity of motherhood and the dignity of a newly arrived person.

APPLICABILITY

It encompasses all of India. Firstly, to all factories, mines, and plantations where ten or more people were employed on any given day in the preceding year. Including any such government-owned facility as well as any facility where employees are employed to perform acrobatic, equestrian, and other acts. The Ministry of Labor’s Central Industrial Relations Machinery is responsible for enforcing this Act.

PRIMARY BENEFITS OF MATERNITY BENEFIT

Under Section 5 of the Maternity Benefit Act, 1961: 

  • According to Section 5 of the Act Maternity benefit is granted to women for a maximum period of twelve weeks, including six weeks up to and including delivery and six weeks immediately following delivery. This Provision was amended to 26 weeks of maternity benefit with a maximum of 8 weeks before the expected delivery date. Maternity benefits are payable to women for the period of absence, including delivery day and six weeks after. Employers must pay the average daily wage for this benefit. Women cannot claim maternity benefits unless they worked for at least one hundred and sixty days in the twelve months before delivery.
  • Maternity benefit is granted to women for a maximum period of twelve weeks, including six weeks up to and including delivery and six weeks immediately following delivery (Amended to 26 weeks).
  • If a woman dies during this period, the benefit is payable for the days up to and including her death. provides that shall be entitled to a woman with two or more surviving children to a maternity benefit of a total of not more than twelve weeks, of which not more than six weeks shall precede the expected date of confinement.
  • Stated that the employer is responsible for paying the maternity benefit for the whole period in which a woman dies giving birth or during the puerperal period immediately after the date of delivery for which she is eligible, leaving behind the child in either case; additionally, if the child dies during that period, the employer is also responsible for paying the maternity benefit for the days leading up to and including the child’s date of death.

Section 4 of the Maternity Benefit Act, 1961:

  • The period following a pregnant woman’s delivery or miscarriage is prohibited from employment or work. Employers are not allowed to knowingly employ or work during this time. Pregnant women are not required to perform arduous work that may interfere with their pregnancy or the foetus’ development, or cause miscarriage. This period is also extended to one month before the expected delivery date and without leave of absence under section 6.
  • The pregnant woman must not avail of leave of absence during the period immediately preceding the six-week period before her expected delivery.

Notice Given to the Employee:

  • • A woman who is eligible for maternity benefits may notify her employer that she will not be working during the benefit period. The anticipated delivery date, no earlier than six weeks, must be stated in the notice. In the event that the woman is pregnant, she may give notice as soon as the baby is delivered. Her absence is permitted by her employer for a maximum of six weeks following the delivery. Maternity benefits will be paid out in two parts: the first part will be paid ahead of time for the period before the anticipated delivery, and the second part will be paid within 48 hours of the delivery.

Dismissal or Discharge during Maternity Leave:

  • No employer shall dismiss a woman or give her notice of discharge or dismissal or alter any of her service conditions during her absence, discharge her during pregnancy, if she would have been entitled to maternity benefit or medical bonus, she shall not be deprived of these. However the employer may deprive her of these if the dismissal is for gross misconduct.

ADDITIONAL BENEFITS GIVEN

  • Medical bonus: In case prenatal and postnatal care are not provided free of charge by the employer, then a medical bonus of rupees twenty-five shall be paid to such woman who qualifies for maternity benefits under this Act.
  • Miscarriage: In the case of miscarriage or medical termination of pregnancy, a woman shall be entitled to 6 weeks leave with wages on the same rate of maternity benefit as she enjoys on the date of such miscarriage based on a certificate of such illness and certified by a registered medical practitioner. 
  • Tubectomy: Two weeks wages at the rate of maternity benefit shall be payable to a woman undergoing tubectomy operation.
  •  Illness arising out of pregnancy: A woman suffering from an illness, the cause of which is directly attributable to the pregnancy, for affording to the woman treatment for the same, for a maximum of one month. During this period, the woman shall be entitled to leave with wages at the rate of maternity benefit. Of course, the employer can ask for necessary proof, if any. 
  • Nursing Breaks and Creche: Nursing breaks are allowed for women delivered of a child, with a prescribed interval for rest. Establishments must also provide a crèche facility in an establishment if the employee has fifty or more employees, allowing four daily visits/ rest-intervals. Establishments must communicate to women- benefits available under the Act at the time of their initial appointment.

ADDITIONAL PROVISIONS

  • Abstract of Act and rules: In every part of the establishment where women are employed, the abstract of the provisions of this Act and the rules made thereunder shall be prominently displayed in the language or languages of the locality.
  • Records Management: Every employer shall prepare and maintain registers, records and muster rolls, as may be prescribed by any rules made under the Act pertaining to maternity.

PENALTY

Refusal to grant maternity benefit or dismissal during absence: Any employer who disapproves maternity benefit to a woman or dismisses her from service on account of her availing maternity leave is punishable with a fine ranging from Rs.2,000–5,000 and imprisonment for a term which shall not be less than three months but may extend to one year. The court may, for sufficient reasons, impose a fine instead of imprisonment alone.

Subsequent offenses: Any other contravention of the provisions of the Act or rules by an employer shall be punishable with imprisonment which may extend to twelve months or with fine which may extend to Rs. 5,000 or with both provided another penalty is not provided elsewhere.

Recovered benefits: The court shall direct the payment by the employer to the woman employee of the amount due to her, besides imposing the fine if the offence relates to maternity benefit or other payments.

AMENDMENT

On August 11, 2016, the Maternity Benefits (Amendment) Bill, 2017, was passed by the Rajya Sabha and Lok Sabha; on March 29/30, the President of India gave his assent. The provisions of the Maternity Benefits (Amendment) Act 2017 came to effect on the 1st day of April in India. However, on July 1, 2017, the provisions of the daycare center under Section 11 came into effect. After the amendment, the Act remains close to its fundamental principles and at the same, in the better benefits and promotion of good daycare. The following are the changes that we found in four levels in the amending of this law:

  • The amendment provides 26 weeks of maternity leave if one has two or more surviving children; the maximum is eight weeks before the expected date of delivery. The statistics show that there is a 117% rise in overall maternity leave length from the previous Act. It also is in accordance with the recommendation of 18 weeks or more of the ILO. The justification of this clause was to reduce the infant mortality rate by providing mothers with sufficient time for self-healing and by enhancing child care. This does not include adoption. A woman adopting a child who is below three months of age, or who gets the child through commissioning a mother, is entitled to twelve weeks of paid maternity leave.
  • Retention of the discharge and dismissal clause of the original Act.
  • No implementation of any direct financial gains. However, the amendment dictates that a woman is allowed to work from home provided that her employer and she agree to it in writing. A childcare facility should be provided to any company that hires fifty or more employees either separately or part of the general areas. This is also another bonus. The woman shall be allowed four visits to the child carer by her employer.
  • The most prominent among them is enhancing maternity leave from 12 to 26 weeks. The World Health Organization specifies that breastfeeding a child for a complete 24-week duration can reduce the probability of death. It should also reduce the number of women exiting their jobs for the purpose of lack of satisfactory maternity leave. Furthermore, the extended leave also fulfills recommendation no. 183, the Maternity Benefits Convention. Maternity leave is an essential complement for women who are commissioning or adopting as it enables them to honor their parenthood and recover in order to care properly for themselves and their children. Following these measures, India is currently placed third in the world—after Canada and Norway—in terms of the quantum of maternity entitlements extended to women.

LANDMARK CASES

The Indian Supreme Court has held in the case of Delhi Municipal Corporation v. Female Workers (Muster Roll) & Ors. (2000) that the Maternity Benefit Act also applied to female workers on the muster rolls. It has held that the women working as daily wagers are entitled to the benefits of maternity leave on the same footing as the regular women employees and that the principle of equal pay for equal work applies to them.

Hindustan Lever Ltd. v. Hindustan Lever Employees’ Union, In the year 1995, the case was cleared regarding the need for businesses to have care facilities for children so that the businesses can help working mothers. The Supreme Court has ruled that every employer shall be liable to provide the childcare facility as provided in the Maternity Benefit Act, 1961.

Nargesh Meerza vs. Air India (1981), This historic judgment had a discriminatory clause by way of age bracketing in the act, and this set a maximum age at which women could receive maternity benefits from the company. It was decided that no age limit should restrict the availability of maternity benefits to all eligible women.

CRITICISMS OF THE ACT

  1. Gender discrimination against women of childbearing age: Policy design is therefore an important factor, so making it compulsory for employers to offer such leaves, as in the case of India, would ensure that employers treat women of childbearing age unfairly. More capital and operation costs are required for additional needs like crèche facilities. It comes as little surprise that some Indian companies may be somewhat averse to employing young women. When they do so, the women may face a drop in wages as companies compensate for higher lifetime costs.
  1. This act was enacted for the benefit of mothers and their children. It is indeed a commendable scheme that every eligible employer in the country is expected to carry out. Granting maternity leave to a pregnant woman working employee, however, poses various problems for the employer.
  1. Insufficient Resources: Probably the greatest challenge that employers face while offering maternity leaves to many employees together is insufficient resources. This particularly holds true for small-scale employers and new entrepreneurs who have just started operations.
  2. Reduced Productivity: The absence of a full-time worker normally means reduced efficiency and productivity at work, which generally affects most employers. Again, multiple absences of employees due to maternity leave at the same time can result in reduced productivity.
  3. Higher Rate of Employee Dropout: If the organization does not provide the facility of maternity leave to its female employees, then they are less likely to retain existing and recruit new employees.
  4. They start feeling less appreciated or neglected by the organization. This leads to an unpleasant and unproductive work environment.
  1. What do the above problems or challenges faced by the firms mean to the women workforce?

From the arguments presented above, it can be summed up that with the extra cost of employing a female employee, firms would avoid employing women within their childbearing age group. As the firms have to fully face all the wage costs regarding Maternity Leave, it would make sense for the companies to hire fewer numbers of women within that age group. It’s also conceivable that the employers pay the women less. As it became more costly to hire women in this age group, employers may cut the “average” wages they paid these workers, which probably caused the decline in income.

Adverse effect on women’s work opportunities: A number of private companies may shun recruiting pregnant women since they would be obligated to provide up to 26 weeks paid maternity leaves. The work opportunity for women may be affected negatively due to the extended maternity leave period. Making it compulsory for employers to pay the full amount for maternity leave can be expensive. There will be a disincentance to hire women instead of men. Even the competitiveness of sectors of the economy where the bulk are women will be tempered by this clause.

  1. Vagueness: Many provisions of the amended Act are vague. For instance, it does not specify the time limit for availing a child care facility by an employee, or how frequent and for what period a break to nurse shall be granted. Also, it is not clear which part of the Act covers the unorganized sector of nursing. On the one hand, the Act claims to protect all women employed in factories, mines, plantations, and stores and other establishments of both the organized and unorganized sectors. On the other hand, workers working from home, self-employed, or wage workers for an organization with less than ten employees are classified as unorganized sector workers under the Unorganised Workers’ Social Security Act, 2008. Therefore, there was no clarity regarding whether the women working for business with less than ten employees are covered under the Act. This is concerning because more than 90 percent of the working women in India work in the unorganized sector.
  2. Lack of institutional support: Whereas women workers in the unorganised sector are entitled to benefits under schemes like the Indira Gandhi Matritva Sahyog Yojana and Janani Suraksha Yojana, they only get cash assistance. Under the Maternity Benefit scheme, there is additional institutional support.

SUGGESTIONS

Labor laws relating to maternity benefits should be unified: The government should initiate a move towards unifying labor laws relating to maternity benefits. The 2008 Unorganized Workers Social Security Act, the 1948 Employees State benefits Insurance Act, the Factories Act of 1948, the All India Services Leave Rules of 1955, and the Central Civil Services Leave Rules of 1972 have many differences in coverage, benefits, and financing. All these Acts need to be amalgamated so that the benefits are appropriately distributed among the diverse sectors of India.

It is time for a rethink of the employer’s financial burden: With this present amendment, employers will be afraid to employ women so that they will not have to bear expenses for maternity benefits. Hence, the government should accept the advice from the ILO to do away with this. The ILO has announced that employers cannot afford maternity benefits in their entirety. In this regard, the government has to take a lead role in streamlining financial issues in the grant of maternity benefits. Indeed, the government, on advice by ILO, should opt for financing benefits either from public funds or by compulsory social insurance. Thus, the expansion of the MBP of the Ministry of Women & Child Development is done on the right track across India. All expecting and nursing mothers are entitled to avail the benefits of the program; however, those working regularly in the federal government, state governments, and public sector enterprises are excluded from it.

It should provide for paternity benefits: Another flaw in the amendments is that it does not provide for provisions for paternity benefits. Paternity benefits are currently available under leave rules in government employment and under inward rules in private organizations. The ILO has acknowledged the parental rights of men in this regard. It wants men to be a co-parent on par with the other parent. Gender-neutral parenting is expected in a country steeped in gender stereotypes. To make this happen, the government should work out some incentive-based schemes related to paternity benefits.

CONCLUSION

Under the Act, a woman can take up to a maximum of 26 weeks of paid maternity leave, out of which she can take up to a maximum period of 8 weeks prior to the expected date of delivery. The provisions under the 1961 Act also indicate that an employer cannot discharge or terminate the services of a woman altogether during her leave of absence from work. That having been said, an employer is not precluded from giving written notice to that effect, should the termination or dismissal from service be on the basis of serious misconduct. Maternity benefits to the extent of the average daily salary shall be provided to a woman who is entitled to maternity leave under this Code for the period for which she is lawfully absent from work. Under said law, it interlaces through all women who are supposed to be given a birth benefit in addition to an amount of money as a medical bonus granted to women if a woman’s employer fails to offer her free pre-natal and post-natal care. The employer is by law supposed to pay the total debt due to a woman within one month of the woman’s death to the legal representative of the woman or the beneficiary of the woman aside from the birth benefit to the dead woman in case of a woman’s death.

While the available literature offers a wide range of valuable insights, there exist a number of knowledge gaps regarding the Maternity Benefit Act. There are very few studies conducted in the existing literature that relate to the long-term effects of the Act on women’s work and career advancement, especially vis-à-vis industries where the maternity benefit is not applied uniformly. Some of the areas that can be taken forward in future research include exploring the interplay between maternity benefits and employment policy to understand how they affect women’s economic empowerment.

There is also the need for comparative studies across states and sectors in India on the implementation of the Maternity Benefit Act. Understanding variation in implementation may provide useful information for policymakers in terms of best practices and problem areas that require intervention measures. Exploring how women in the informal sector and other marginalised groups experience this law will give a greater understanding of its effectiveness and be necessary for reforming its weaknesses.

Name: Sakshi Kasala

College: Ramaiah College of Law.