INDEX

 Introduction……………………………………………………………………………....4
 The Indian Scenario……………………………………………………………………....4
 Changes introduced by the Amendment of 2017…………………………………………5
 Critiques and Concerns…………………………………………………………………...6
 Supreme Court stand on Maternity Relief………………………………………………..7
 Maternity Benefit and The Constitution of India………………………………………...9
 Conclusion……………………………………………………………………………….10
  Introduction
In the post-industrial revolution era, the discourse revolving around the gendered construct of
organizations is replete with the issue of maternity benefits, corporate interests and workforce
efficiency, shifts in the social roles of both sexes and government’s commitment towards
creating a gender egalitarian society. While maternity benefits have gained a recognizance as
women’s rights in most of the developed countries, India is still lagging behind in formulating a
policy structure that aims to encourage women participation in the workforce and reconstruct the
sexual division of Labour.

Post Maternity, women work participation rate is negatively affected in labour market. It is
important to recognize that women participation in labour market has significantly increased in
recent years, particularly in urban areas. Further, most of the increase in women participation in
labour market is contributed by young women in urban areas. Since India is committed to
creating a gender friendly labour market environment, there is increasing realization to provide a
conducive working environment. Looking at the large number of women employment in broad
occupational categories, it was but natural to protect and safeguard their health in relation to
Maternity and the children.1

 The Indian Prospective

Gap in workforce participation: In the India Development Report by the World Bank(2022),
India has been ranked 115th among 131 countries in the female labour force participation rate. In
India, the participation of women was just 33% compared to China and Brazil where it was
between 65-70%. Only 6.5% of Indian women are in the formal sector.2

Gender Inequality: In the “Global Gender Gap Report” (2022) released recently by the World
Economic Forum (WEF), India has been ranked a low 135 out of 146 countries on the gender
equality scale, slipping from 87 last year.3

Exclusion of domestic labour: The household work done by women is not only unpaid but is also
‘invisible’ from national statistics and GDP. Also, the assistance extended by women to their
male producers in agriculture or small business goes uncalculated.

Apart from this, women in India face issues like workplace harassment and subordination,
undervaluation, additional baggage of household responsibilities and dismal working conditions.
The situation is even more precarious for women working in the informal sector.

1
The Need for Maternity Benefits for Women Employee(2014)
2
The World Bank Report on Female Laboure Lorce Participation (2022)
3
The Global Gender Gap Report (2022)

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Changes Introduced By The Amendment Of 2017
The Maternity Benefit (Amendment) Bill, 2017 was passed by both Houses of Parliament, and
has received presidential assent on 27 March 2017. The Amendment will come into force on the
date appointed by the Central Government, by notification in the official gazette.

(a) Increase in duration of paid maternity leave: Duration of paid maternity leave for a
woman having less than two surviving children has been increased from 12 weeks (with not
more than 6 weeks preceding the expected date of delivery) to 26 weeks (with not more than
8 weeks preceding the expected date of delivery)

(b) Introduction of surrogacy leave and adoption leave: Paid adoption leave (if the adopted
child is less than three months old) and paid surrogacy leave of 12 weeks from the date when
the child is handed over, has been introduced;

(c) Work from home: The Amendment also introduces the option to work from home after
exhausting the period of maternity leave, on such terms as the employer and the woman may
mutually agree;

(d) Crèche facility: The Amendment makes it mandatory for each establishment with 50 or
more employees to have a crèche facility;

(e) Obligation to notify employees: Employers are also required to inform women of benefits
available under the Maternity Benefit Act, 1961 (MB Act)4. This needs to be done in writing
and electronically, at the time of the woman's initial appointment.

Other provisions of the MB Act, including the eligibility criteria for maternity benefit,
remain unchanged. Under the MB Act, a woman is eligible to receive maternity benefit
if she has worked for at least 80 days in the 12 months immediately preceding her
expected date of delivery. Further, the prohibition on employing a woman for six weeks
following delivery, miscarriage or medical termination of pregnancy, continues to apply.
Unfortunately, no change has been made to include statutory paternity leave, even
though there were discussions in the Rajya Sabha to introduce child care leave for
fathers.

4
Maternity Benefit Act, 1961

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  Critiques and Concerns
There has been a lot of discussion about the impact of the Amendment, and there are divergent
views on whether the Amendment will be beneficial in the long run. In most countries with
extensive child care benefits, the government shoulders at least some part of the financial
responsibility. In India, however, except for the fraction of employees covered under the
Employee State Insurance Act (ESI Act)5 (i.e. employees earning not more than INR 21,000 per
month), maternity benefits have to be financed by the employer. Therefore, there is an
apprehension that the requirement of providing increased benefits under the Amendment could
have a negative impact on diversity ratios at the workplace.

(a) Who would be eligible for the increased maternity leave: Currently, it is not clear
whether women who are in the midst of their 12-week maternity leave (under the un-
amended law), will be entitled to extend their leave to 26 weeks. In the absence of any
clarity on this aspect, one may look at the clarifications issued by the Employees State
Insurance Corporation (ESIC)6 for guidance since the ESI Act was also recently amended
from 20 January 2017 to provide benefits similar to the Amendment.
(b) Who will be eligible for adoption and surrogacy leave: Similar questions would
arise for adoption and surrogacy leave. Would an adopting/commissioning mother be
eligible to avail adoption/surrogacy leave if the child is handed over to her before the
Amendment is notified, but if the 12 weeks leave entitlement period has not run out
since the notification? Clarifications from the government on this aspect would also
be helpful.
(c) Ambiguity regarding provision of crèche facilities: The Amendment does not
expressly clarify if the crèche facilities must be provided free of cost. Most
organizations that have set up crèche's voluntarily, presently pass on the cost to the
employee (sometimes at subsidized rates). Since most of these companies operate
in densely populated urban areas, the cost of extending such facilities can be
significant.
(d) Are visits to the crèche in addition to the nursing breaks: The Amendment specifies
that a woman should be allowed four visits to the crèche each day, which includes the
interval for rest allowed to her. However, no duration has been specified for each break.
A separate provision under the MB Act (Section 11) already permits women to take two
nursing breaks (in addition to their interval for rest) till the child is 15 months old. A
plain reading therefore suggests that a woman may be entitled to 6 breaks a day, which
may cause operational strain to the organization.

5
The Employee State Insurance Act (ESI Act)
6
The State Insurance Corporation Guidelines(2017)

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  The Supreme Court stand on the Maternity Relief
There has been considerable amount of cases wherein the supreme court dealt with
the issue of maternity relief in different aspects. They have been discussed as
follows-
1-AIR INDIA V. NARGESH MIRZA,7

The court stated that it is settled law that article 14 strikes at arbitrariness in state
action and that the principle of reasonableness “pervades Article 14 like a brooding
omnipresence and what article 15 (1) and 16 (2) prohibit is that the discrimination
should not be made only and only on the ground of gender.

2-POOJA JIGNESH DOSHI V. STATE OF MAHARASTRA AND

OTHERS8(2015),

The High Court explored the idea of motherhood and pregnancy in this decision.
Maternity is regarded to constitute a period of pregnancy and the period immediately
following the birth of a child, according to the High Court in this case. The purpose
of maternity leave is to maintain the dignity of motherhood and to offer care for the
child’s and mother’s well-being, as well as for the mother-child relationship. The
Court ruled that even if a child is born through surrogacy, the parents who provided
the ova and sperm are right to depart. Maternity leave is available to the mother,
while paternity leave is available to the father.

3-ANSHU RANI VS STATE OF UTTAR PRADESH AND ORS,9(2018)

The Court opined, “Maternity leave is social insurance. The maternity leave is given for
maternal and child health and family support.” Allahabad High Court also stated “in
consonance with the provisions of Article 42, Parliament has made the Maternity Benefit
Act, 1961. Since Article 42 specifically speaks of “just and humane conditions of work”
and “maternity relief, the validity of an executive or administrative action in denying
maternity benefit has to be examined on the anvil of Article 42.”

4-RASITHA C.H. VS STATE OF KERALA & ANR,10(2018)

Women employees, regardless of whether their job is contractual or not, are entitled to
maternity leave, according to the Kerala High Court. “The maternity benefit is not merely
a statutory benefit or a benefit flowing out of an agreement,” Justice A Muhamed Mustaq
wrote in allowing a petition filed by Rasitha, 35, who was denied maternity leave by the
Calicut University on the grounds that the terms of her contract did not envision the grant
of such leave. “The maternity benefit is neither only a statutory benefit nor a benefit

7
(1981) 4 SCC 33
8
2015
9
2018
10
No. 5507 of 2018

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 growing out of an agreement,” Justice A Muhamed Mustaq wrote. This court has
consistently found that it is associated with a woman’s dignity…. it was held that a
woman employee cannot be refused maternity benefits only because her employment
status is contractual. As a result, despite anything in the contract agreement, the
University is obligated to provide such benefits.”

5- MUNICIPAL CORPORATION OF DELHI V. FEMALE WORKERS,11

The court in this case held that the provisions of the Act would indicate that they are
wholly in consonance with the Directive Principles of State Policy, as set out in
Article 39 and in other Articles, especially Article 42. A woman employee, at the
time of advanced pregnancy cannot be compelled to undertake hard labour as it
would be detrimental to her health and also to the health of the fetus. It is for this
reason that it is provided in the Act that she would be entitled to maternity leave for
certain periods prior to and after delivery.

6- SHAH V. PRESIDING OFFICER, LABOUR COURT, COIMBATORE

AND OTHERS,12

The question before the Supreme Court was whether in calculating the maternity benefit
for the period covered by Section 5 Sundays being wage less holiday should be excluded.
The Apex Court in holding that Sundays must also be included, applied the beneficial rule
of construction in favor of the woman worker and observed that the benefit conferred by
the Act read in the light of the Article 42 of the Constitution was intended to enable the
woman worker not only to subsist but also to make up her dissipated energy, nurse her
child, preserve her efficiency as a worker and maintain the level of her previous efficiency
and output.

7-MRS. NEERA MATHUR V. LIFE INSURANCE CORPORATION OF INDIA,13

The Court held that the questionnaire was an invasion of privacy and directed the LIC to
reinstate the petitioner and delete the offending columns from its future questionnaires.

8-RAM BAHADUR THAKUR (P) LTD. V CHIEF INSPECTOR OF

PLANTATIONS14

The Supreme Court, however, held that for the purposes of computing maternity benefits,
all days including Sundays and unpaid holidays must be taken into consideration.

9-MUNICIPAL CORPORATION OF DELHI V. FEMALE WORKERS’ (MUSTER

ROLLS) AND ANOTHER,15

11
(2000) SCC 224
12
(1977) 4 SCC 384
13
1992 AIR 392
14
(1989) IILLJ 20 Ker
15
Special Leave Petition (civil) 12797 of 1998

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 The Municipal Corporation of Delhi stated that it granted maternity leave to its regular
female workers but not to the daily wage ones, that is, the ones on the muster rolls. The
respondents argued that the practice was unfair as there was hardly any difference in the
work allotted to female workers who were regular and those who were on daily wage.
Accepting the contention, the Supreme Court upheld the right of female construction
workers to be granted maternity leave by extending the scope of the Maternity Benefits
Act, 1961 to daily wage workers.

 Maternity Benefits And The Constitution of India

The rights and privileges for the betterment of women are: right to equality in law [Article 14] 16,
right to social equality [Article 15], right to social equality in employment [Article 16] right to
adequate means of livelihood [Article 39 (a)] 17, right to equal pay for equal work [Article 39 (d)],
right that the health and strength of workers both men and women are not abused [Article 39 (e)],
right to just and humane conditions of work and maternity relief [Article 42] 18 , and right to
improvement in employment opportunities and conditions of the working women [Article 46] 19.

Article 15(3) of the Indian Constitution empowers the State to make special provisions for
women. The main object of Article 15 (3) is based on “protective discrimination” keeping in
view the weak physical position of women. The reason is that “women’s physical structure and
the performance of maternal functions places her at a disadvantaged position in the struggle for
subsistence, and her physical well-being becomes an object of public interest and care in order to
preserve the strength and vigor of the race.”

10- MULLER VS OREGON,20

This provision has enabled the State to make special statutory provisions exclusively for the
welfare of women.

Article 2121, Right to Life and Personal Liberty is not merely a right to protect one’s body but the
guarantee under this provision contemplates a larger scope. Right to Life means the right to lead
meaningful, complete and dignified life. It does not have restricted meaning. It is something
more than surviving or animal existenceThe meaning of the word life cannot be narrowed down
and it will be available not only to every citizen of the country. Therefore, the State must
guarantee to a pregnant working woman all the facilities and assistance that she requires while
protecting her employment as well as her own and her child’s health.

16
Article 14, 15, 16 of the Constitution of India,1950
17
Article 39(a) of the Constitution of India,1950
18
Article 42 of the Constitution of India,1950
19
Article 46 of the Constitution of India,1950
20
52 L.Ed. 551.
21
Article 21 of the Constitution of India,1950

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The Directive Principles of State Policy contained in Part IV of the Constitution of India, under
Article 41 requires the State to make effective provision for securing the right to work and to
education and Article 42 requires that the State shall make provision for securing just and
humane conditions of work and for maternity relief. “Since Article 42 specifically speaks of “just
and humane conditions of work” and “maternity relief”, the validity of any service rule and of an
executive or administrative action in denying maternity benefit has to be examined on the anvil
of Article 42 which, though not enforceable at law, is nevertheless available for determining the
legal efficacy of the service rule and of the action complained of.”

 Conclusion & Way Forword

The law will also facilitate ‘work from home’ options for nursing mothers once the leave
period ends and has made creche facilities mandatory in establishments with 50 or more
employees. The amendment takes India up to the third position in terms of maternity leave
duration after Norway (44 weeks) and Canada (50).

Child Care should not be treated solely as women’s responsibility and the difference in
maternity and paternity leaves should be minimized. This will not disincentivize the
recruitment of women and will create a level playing field for men and women in both
work and social areas.

According to a World Bank report titled Women, Business and the Law (2016), over 80-
odd countries provide for paternity leave including Iceland, Finland and Sweden. The
salary during this period, in Nordic countries, is typically partly paid and generally funded
by the government. Among India’s neighbours, Afghanistan, China, Hong Kong and
Singapore mandate a few days of paternity leave.

The 2017 Act does not cover women working in the informal sector which is 93.5% of
total women. It is important that the government pays attention to them and comes up with
legislation that protects the rights of women working in the informal sector.

However, while the law has brought some cheers on grounds that it at least acknowledges
that women are entitled to maternity benefits – crucial in a country notorious for its
entrenched discrimination against women and one that routinely features at the bottom of
the gender equity index – many are dismissing it as a flawed piece of legislation.

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