Maternal and Child health care seems to have been on this Government’s agenda for quite some. Hence post promulgation of Child labour (prohibition and regulation) amendment act 2016, the government has finally decided to amend the long awaited Maternal Benefit Act, 1961. The decades old Maternity Benefit Act 1961 catered to a different class of women altogether, primarily those actively involved in agriculture. As the provisions of that act have become redundant over a period of time, this Bill seeks to regulate the employment of women during the period of child birth, and provide maternity benefits. International Labour Organization has prescribed a standard 14 weeks for maternity benefit. Due to this amendment, India becomes only the third country to provide more than 25 weeks maternity leave and much higher than ILO’s standards. Though it is an Effective action in the direction of quality human resources, lessening malnutrition and other common fatal child diseases, there are certain shortcomings in act which require immediate attention.
The Maternity Leave Bill, 2016 was introduced in Rajya Sabha and was passed by RS on August 11, 2016. The passage of landmark Maternity Leave Bill shall pave way for a mandatory 26 weeks of paid leave for mothers as against the existing 12 (under the principal act).
This act has extended scope of maternity benefit to adoptive & commissioning mother as whereby she would be entitled to a maternity leave of 12 weeks (3 months). A commissioning mother is defined as a biological mother who uses her egg to create an embryo implanted in another woman. With proposed legislation to ban commercial surrogacy in pipeline, yet the bill has failed to extend the maternity benefits to surrogate mothers (non-commercial surrogacy). The bill is regressive as it entitles maternity benefits to adoptive mothers only if she adopts a child less than three months of age. Thus Bill can hinder adoption of infants/children over 3 months. This disparity in the treatment of Mothers across board that is a surrogate mother being treated unequally as against a commissioning or adoptive mother clearly highlights ambiguity in provisions.
It is now mandatory for all establishments with 30 women workers or 50 total workers to provide creche facilities for their employees, either at the premises or within half a kilometer. The argument arises in case a woman is working in a small establishment which has less than 30 women employees. Hence such ambiguity in provisions would defeat its purpose. One of salient feature of this Bill is that women employees would have an option of working from home after the maternity leave is over if mutually agreed by both employee and employer.
The Supreme Court in Municipal Corporation of Delhi v. Female Workers’ (Muster Rolls) and another came across question, whether only employees registered on muster roll are entitled to maternity benefit leave. The Delhi Municipal Corporation contended that it granted maternity leave to regular female workers i.e. those on their muster rolls. In response it was contended that the nature of work performed by those women on regular basis was hardly different from that of those working on daily wages. The court observed 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.Thus 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.
Article 42 specifically provides that the State shall make provision for securing just and humane conditions of work and for maternity relief, yet the Maternity Leave Bill 2016 bears no mention of maternity benefit being extended to unorganized labour (women employed as daily wagers or in construction sites)
This Bill bears a hard-line characteristic which shall deter the new businesses and flourishing companies from hiring married women as its employees as compliance of these norms shall be seen as burden upon resources of the company/business. Otherwise the employers can consider the work of the working mother not equal to that of males, thus causing gender disparity in payment of wages. This will be in contradiction to article 39(d) which aims for “equal pay for equal for equal work”.As the Maternity leave Bill is severely going to affect the Medium and Small Enterprises in terms of cost and logistics, the government must take responsibility to bear additional costs after the 12th week of paid maternity leaves.
At the cost of sounding a chauvinist to some, paternal care is equally important for overall development of an infant. This concept of Paternity leave shall serve two purposes- remove the social stigma prevalent that it is the mother’s duty to look after the infants/children and secondly it shall be beneficial for those sections of women who could resume their professional duties at workplace. Paternity leave may just help defeat the prevailing social problem of women quitting employment post marriage/child birth. The new bill must provide parental benefits to both the parents on a rationing basis like first 3 months to mother and the next 3 months both can share the leave, only then would we be able to deal away with gender stereo type.
To sum up, the bill is a progressive step towards fulfilling the directive principle of state policy as it ensures basic right of both the baby and mother to have a healthy life. But it would be a Job Half Done considering India has waited for 4 long decades for such an amendment which ensures maternity benefit to India’s present generation.The Lok Sabha shall have the prerogative to implement/ incorporate the necessary changes as discussed by us. A reasonable solution