Abstract
Women are the heart of an economy. The nation must make serious efforts to protect women’s rights and promote equality so that they can stand on par with their male counterparts on every front. Childbirth is the most important aspect of a woman’s life, but this should not become the basis of discrimination in the workplace. In India, maternity laws were enacted to protect pregnant and new mothers. Gender equality and inclusivity are two major factors that cannot be missed at workplaces or organizations.
Maternity laws are extremely important as they promote social equality and protects the basic rights of women. These laws hold relevance as it is not fair for the women to lose their source of income because of pregnancy. Today, maternity laws are more than paid leaves, the acts, statutes, instruments, and policies designed around this consists of more detailed provisions to allow the mothers to have financial independence, emotional stability and physical strength while taking care of their newborn.
In the 21st century, it will be just to state that ‘change’ is the only constant. In the present times, new dynamics are coming up in the blink of an eye. It is the need of the hour to look at things from a fresh perspective. This will lead to advancements and modifications in the law as well to suit the needs of people. This article takes into consideration amendments, judicial pronouncements, national practices as well as international standards related to maternity protection. It is important to consider the international policies as it helps to decipher the solutions of the problems faced by women while availing maternity benefit.The study aims to paint a true picture regarding India’s position in safeguarding women and their rights.
Keywords: workplace, discrimination, social equality, maternity protection, paid leaves, national practices, international standards
Introduction
Childbirth is a natural phenomenon and most of the women embrace pregnancy and motherhood at some point in their lives. At this stage necessary support must be given to the mothers to ensure their well-being. An organization need to retain the talent and the number of employees. It can do so by framing policies that significantly focus on motherhood at workplace. Maternity leave refers to paid leave from work. In addition to this, it also includes other benefits that the expecting women may require. There are numerous governmental initiatives and laws which are aimed to achieve gender parity and protect the rights of working mothers.
It is not the sole responsibility of the women to raise the child and they need adequate support during this phase so that they do not have to compromise on their careers. In India, some positive changes have been witnessed in the recent times, like increase in the duration of the maternity leave but that is not enough for women. There are maternity laws but at the same time there are certain challenges associated to the implementation of these laws.
Research Methodology
This paper is of descriptive nature and comprises of thorough analysis of the maternity laws in India. In this paper, a qualitative approach has been adopted to get a better understanding of opinions, facts, circumstances and experiences. The research is based on various secondary sources like case studies, literature, articles, websites, and research reports.
Review of Literature
A few relevant studies were referred to do in order to understand and analyse the need for maternity legislation. The article titled “Maternity Protection During Covid: An inquiry into India’s Compliance with International Standards” raises relevant questions as per to the current methods adopted by the Indian government for maternity relief. It also stresses on the challenges in the implementation of these laws. In addition to this the ambiguity of the laws and the need for making provisions for the husband for equal participation in childcare is highlighted in the article titled “Breast-Feeding and Working Mothers: Laws and Policies on Maternity and Childcare.”
The article titled, “India: maternity benefits curtailed” has dealt with the aspects related to the maternity laws which have turned out to be unsuccessful and unjust in different countries. A law related to social justice has to be carefully drafted as it directly impacts the values, beliefs and the prevalent culture. These articles consist of a rationale outlook and helps to identify the gaps and loopholes in the present maternity legislations.
Maternity Protection Policy in India
A human being is believed to have personal as well as professional goals. In this article, ‘Women’ is the main character as the matter of their rights and welfare is brought into the picture. Women at a point in their lives land into the roles of the mother while being a responsible worker and citizens of the nation. It is a fact that striking a work-life balance is a tough nut to crack. This is why it is necessary to frame adequate policies and laws that do not deprive women of career progression. Maternity laws in India are one of the indispensable tools for promoting social justice and equality in the country. In India, the Maternity Benefit Act, 1961 is the major legal framework for this matter. In addition to this, there are other laws also which partially cover maternity benefits, like, The Employees State Insurance Act, 1948 (hereafter called ESI) and the Central Civil Services Rules, 1972 (hereafter called CCL).
In the case of the “Municipal Corporation of Delhi v. Female Workers”, the Supreme Court brought into consideration an international instrument by the title, “Convention on Elimination of all Forms of Discrimination against Women” which particularly stresses on discrimination against women in employment. The court stated that all the workers are equal, and all the eligible female workers are entitled to maternity leave. It does not matter whether they are on muster rolls or regular employees. In the case of “Shalini Pathak v. State of Uttarakhand”, the court again made it clear that no distinction should be made between temporary, permanent, or contractual female workers for the purpose of providing them maternity protection. The only criteria that the employer should consider is the number of days the employee has worked in the organization.
The concept of maternity leave was introduced keeping at centre the welfare of both the mother and the child. Numerous studies and research materials demonstrate that sufficient number of paid maternity leaves result in decrease in the rate of rehospitalization (of both mother and child), reduction in stress levels etc. Adequate maternity relief policy gives women job security and enables them to resume work and not face any sort of discrimination. Over the years, some relevant amendments have been made but there is still room for improvisation. At present, maternity laws are governed under the Maternity Benefit Amendment Act, of 2017. The maternity benefits as per this pertains to women employed in establishment with the minimum 10 employees. “The changes brought by judicial precedents have turned out to be beneficial as it has widened the spectrum. In the case of “Air India v. Nargesh Mirza”, the Supreme Court removed the age bar and stated that any eligible woman irrespective of her age can avail the maternity benefits under this act.
Mothers need proper care and rest especially during pregnancy and after delivery to prevent low levels of nutrition. The policies and laws in India concerning the social welfare of the child should complement each other taking into point women’s dual role as working professionals and mothers. One of the major drawbacks is that the act does not apply to all women across the country uniformly. The act specifies that the workplace should have a minimum number of employees and staff. The women who are freelancers or employed in a relatively small institution or unorganized sector stand at a disadvantage. A larger proportion of women work in the unorganized sector. The women here are in good numbers but are forced to work in less favourable environment pre and post pregnancy.
The Maternity Benefit Act is quite detailed but does not properly include women from all arenas. In India, a large percentage of women belong to the low-income groups. Inclusivity at organizations is important as it will be beneficial for any woman who can earn some money to sustain herself. It is going to be a challenge to extend these acts to small enterprises because they operate on small profits and cannot bear the cost of providing continuous paid leave and other services to mothers.
Maternity leave is not absence from work, it is engagement in another type of work that is equally economical and productive. The new mothers are nurturing the children who will be regarded as the human capital of the nation. Maternity leave is a global concern, and different economies deal with it differently. The implementation and structure of maternity laws may vary from country to country depending on the population and work culture. The Indian Judiciary has time and again tried to interpret the provisions of the Maternity Benefit Act in a liberal way. The Supreme Court of India has also acknowledged maternity rights in the case of pre-marital pregnancies and live in relationships. This indicates that the views of the Judiciary in India are in progressive direction.
It is commendable to have a gender-specific act and place women at the heart of it. However, the interests of the employer and industry needs cannot be neglected at the same time. It is reasonable to assert that employers’ workload will increase, and accommodation of facilities and schemes will lead to additional costs. There should be rules where a small portion of the salary of employees can be dedicated to shaping these facilities and making the workplace flexible and more comfortable for pregnant and new mothers.
The concept of maternity relief is ingrained in the Constitution of India under Article 42as part of Directive Principles of State Policy. It puts this responsibility on the state to overlook just and humane conditions in the work environment alongside the arrangement of maternity relief by the organizations. The society shares the responsibility to provide a conducive environment to pregnant women everywhere.
There are some welcome changes brought through the amendment in Maternity Benefit Act,1961. The period of leave has been extended to twenty-six weeks and work from home has been allowed to women after childbirth. The act is quite detailed, but the ambiguity persists. The act fails to mention provisions for a few relevant situations. The act has extended relief to adoptive and commissioning women but at the same time has left out the surrogate mothers who are also at the risk of facing health issues and violation of basic human rights. The act does not lay out clear rules regarding mandatory creche facility at workplace and the nursing duration. The Indian laws make both male and female members of the society eligible to adopt a child. In the act, only consideration for mothers has been made. The participation of men should not be excluded and the laws should aim at gender neutrality.
International Viewpoint
There are specific sets of international standards that act as a benchmark and countries across the world are expected to take into notice these basic guidelines. It is a fact that India is one of the leading countries to bring in a legislation targeting maternity benefits. However, these laws need to be further updated and new provisions should be inserted in the current act. There are many countries where the maternity laws are bit more refined, and the practices and methods of implementation adopted by these countries can act as a source of inspiration.
A considerable number of countries in the world have tried to match the standards described in the report published by the International Labour Office targeting maternity benefits at workplace. The nations try to provide a legal assurance that the women employees will not be terminated during the period of pregnancy and childbirth. There are various international instruments and statutes that recognize maternity benefits for the female workers. A few of them include Universal Declaration of Human Rights (UDHR), International Labour Organization (ILO), International Covenant on Civil and Political Rights (ICCPR), World Health Organization (WHO), Maternity Protection Convention, 2000, International Covenant on Economic, Social and Cultural Rights (ICESR) etc. India has successfully ratified a few of these instruments and is willing to accord with the international standards.
Maternity leave is a subject matter of international importance. Any country cannot disregard the basic human values. A direct connection cane be established between maternity protection and Sustainable Development Goals. If we mention the developed countries then Netherlands is a good example where the couple is provided with maternity care package, essentials, and hygienic and safe day care centres for children up to the age of seven years. In Sweden also new parents are offered lot of assistance from the state and the employer. It gives leave to each parent for childbirth and childcare. The government pushes men to shoulder the responsibility of raising a child. Countries like Czech Republic, Italy, Hungary etc. are also taking initiatives to breaks the gender norms. These countries are providing substantial leaves which can be taken by either parent One more example of a developed country can be Canada where the maternity benefits are sponsored primarily by the State. In the United Kingdom, fifty-two weeks of maternity leave is provided to the women. The country does not impose minimum length of services on employees. The laws in the developing countries have also taken up a comprehensive form. For example, In Malaysia, 90 days of paid maternity leave is provided to the women in both public and private sector. A comparison can be drawn among the maternity laws of India with the other countries. One issue that can be identified is that the burden of extending maternity benefits and other related benefits in India is solely on the employer. The question here is whether state can take the responsibility of providing financial aid and extending efficient services to the eligible women employees.
Suggestions and Conclusion
Every woman deserves to experience motherhood. However, she does not have to compromise on her dreams and career and stick to one role. The maternity laws aim to support women and provide them the required assistance in their journey as a mother. The competence and skills of women do not reduce after they get pregnant and this why a consideration should be made and after a certain period they should be allowed to resume their work. In addition to this, rules related to the eligibility criteria for women to avail maternity leave should be made a little simpler and some of the restrictions should be relaxed.
The workers in the organized and unorganized sector should not be discriminated against. A proper mechanism should be made for women working in the latter and the scope of the act should be broadened. In addition to this, paternity leave is as important as maternity leave, and the law should include provisions to involve both the parents. It will be helpful to have supervisor bodies which can monitor issues and address the grievances related to the violation of the act. The recent pandemic has had an adverse impact on employment, because which women’s employment has also been inordinately affected. Maternity protection should not have an adverse impact on the recruitment and promotion of women. The employers should plan and allow room for required facilities.
The lawmakers need to be careful as it is important that other laws in India should not stand in conflict in the provisions laid down in the Maternity Benefits Act as it is the primary instrument to protect the interests of the working women. The facilities given to the women are essential and fair. However, to put the entire burden of bearing all the costs on the employer is unfair and unreasonable. The State must participate as well so the financial responsibility can be proportionately divided. A small cut from the profits of the organizations can be made in the o and directed towards creating a conducive atmosphere at work where everyone’s need is considered.
Maternity laws come under the ambit of social welfare legislation. In the upcoming years, several new concepts and practices will develop globally and to be at par with the new ideas, the judiciary will have to give a wider interpretation to the laws. It has already been a difficult task to bring women out of the household and provide them equal opportunities. They have been the suppressed class in India even before the colonial rule. India needs more laws, policies and regulations like maternity law which can empower and push women to shape themselves towards a better future and be financially independent.
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Unravelling Maternity Legislation in India
Name – Mimansa Roy
College – Symbiosis Law School, Hyderabad