By Richa Jhanwar, HNLU
Editor’s Note: A maternity benefit is one that every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit, which is the amount payable to her at the rate of the average daily wage for the period of her actual absence. There is need for maternity benefits so that a woman is to be able to give quality time to her child without having to worry about whether she will lose her job and her source of income. This paper discusses the landmark Air India judgment, provisions in the Indian Constitution, Maternity Benefits Act and certain International Conventions. It also delves into certain case laws dealing with the subject.
A maternity benefit is one that every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit, which is the amount payable to her at the rate of the average daily wage for the period of her actual absence. Maternity Benefits should aim to regulate employment of women employees in certain establishments for certain periods before and after childbirth and provides for maternity and certain other benefits.
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.
The fundamental purpose for providing maternity benefits is to preserve the self-respect for motherliness, protect the health of women, complete safety of the child etc. Due to the increasing number of women employees in the government and private sector, it became necessary to grant maternity leave and other maternity allowances to working women.
The objective of maternity benefits is to protect the dignity of “Motherhood” by providing the complete & health care to the women & her child when she is not able to perform her duty due to her health condition. There is need for maternity benefits so that a woman is to be able to give quality time to her child without having to worry about whether she will lose her job and her source of income.
REASONS FOR NEED OF MATERNITY BENEFITS
Economic dependence of women is what gives rise to their subordination in society today. Hence to remove such subordination and to lay the foundation of equality women too must be made economically independent and must take an active role in all sectors of business today. To support such initiative the Government must provide some conditions which are suitable for the needs of women.
Among the problems faced by women in the economic sphere of life discrimination resulting from their biological role in nature of childbearing is one. To curb such problem and protect the economic rights of women there is need for maternity benefits for a female employee. Women are entitled to these benefits as the child bearing process is intensely painful and can cause bodily damage. This may severely affect the future work of the woman as an employee and decrease her productivity so there is a need for maternity benefits for the women worker.
To safeguard working women and their rights to remain self-reliant and economically independent, maternity benefits are required. A just social order can be achieved only when inequalities are obliterated and everyone is provided what, is legally due. When who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work; they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomena in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realize the physical difficulties which a working woman would face in performing her duties at the work place while carrying a baby in the womb or while rearing up the child after birth.
Historically, maternity has been treated as a state of disability in women workers from undertaking any work during the few weeks immediately preceding and following child birth. With the emergence of the system of wage labour in the industrial undertakings, many employers tended to terminate the services of the women workers when they found that maternity interfered with the performance of normal duties by women workers. Many women workers, therefore, had to go on leave without pay during this period in order to retain their employment.
Many others had to bear a heavy strain to keep their efficiency during the periods of pregnancy, which was injurious to the health of both, the mother and the child. To remove this hardship of the women workers, the concept of maternity benefit is needed in order to enable the women workers to carry on the social function of child; bearing and rearing without undue strain on their health and loss of wages.
The vast majority of women want to have children at some time in their lives. The economic arrangements which were there earlier required them to compromise their career and family goals. Hence, although women have taken enormous strides toward gender equity at work, as long as traditional gender ideologies and assumptions (i.e., sex-typed stereotypes, roles, and status beliefs) linger, they won’t have been able to continue in the business unless there is maternity benefits provision.
CASE STUDY: AIR INDIA V. NERGESH MEERZA 
Facts: Under the relevant regulation of Air India Corporation (AIC) Act and Indian Airlines Corporation (IAC) Act, there was a discrimination made between the conditions of retirement and termination of service pertaining to air hostesses (AH) and those of male pursers (MP) forming part of the same cabin crew and performing similar duties. These conditions were that an AH under AIC retired from service:
(1) On attaining the age of 35 years, or
(2) On marriage, if it took place within four years of service, or
(3) On first pregnancy.
Fact in Issue: Whether this amounts to violation of Article 14 (right to equality) and Article 15 and 16 (no discrimination on basis of gender) of the Constitution?
Held: Stating 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”, the court examined all the three conditions separately.
- In respect of condition (1) the court held that the age of retirement is to be fixed by the management after taking into account various factors such as the nature of work, prevailing conditions, practice prevailing in other establishment, etc. Without deciding whether 35 years is the correct age for retirement, the court went on to strike at regulation 47. Under this regulation the managing director (MD) had an uncontrolled and unguided discretionary power to grant yearly extensions to the Air Hostesses till the age of 45. This unguided discretion vested with the MD could easily result in his treating similarly placed Air Hostesses differently and was therefore struck down. The result was that unless the management amended the provision, all Air Hostesses would continue to retire at 45 years of age and the MD would be bound to grant yearly extension as a matter of course, if the Air Hostesses was medically fit.
- So far as condition (2) was concerned, this condition was held to be constitutionally valid. Having regard to the difficulties faced by both the parties, the court could not find any constitutional infirmity in the provision requiring the Air Hostesses to serve the corporation with complete dedication for the first 4 years.
- So far as condition (3) was concerned the court took strong exception to it and held it to be “grossly unethical” and as smacking of “deep rooted sense of utter selfishness at the cost of all human values”. Having taken the Air Hostesses in service and after utilizing her services for 4 years, to terminate her services if she becomes pregnant would amount to compelling her not to have any children. The ability / capacity to continue to work after having children is an individual matter and whether she would find it difficult to look after the children or not is her personal matter which affects the Air Hostesses concerned and not the airline. Pregnancy is not a disability; it is a “natural consequence of marriage” and any distinction made on the ground of pregnancy is extremely unreasonable and manifestly arbitrary. This condition was held to be unconstitutional as violative of article 14 and was struck down.
- Whether there was violation of article 15 (1) and 16 (2)?
Held: what article 15 (1) and 16 (2) prohibit is that the discrimination should not be made only and only on the ground of gender. Discrimination on the basis of gender coupled with other considerations is not prohibited.
MATERNITY BENEFITS AND INDIAN CONSTITUTION
The rights and privileges for the betterment of women are: right to equality in law [Article 14], right to social equality [Article 15], right to social equality in employment [Article 16] right to adequate means of livelihood [Article 39 (a)], 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], and right to improvement in employment opportunities and conditions of the working women [Article 46].
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.” This provision has enabled the State to make special statutory provisions exclusively for the welfare of women.
Article 21, 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 existence. The 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.
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.”
INTERNATIONAL LABOUR ORGANIZATION STANDARDS ON MATERNITY PROTECTION
International recognition for maternity benefit was achieved by the efforts of the International Labour Organization (“ILO”). The core concerns of ILO have been to ensure that women’s work does not pose risk to the health of the women and her children and to ensure that women’s reproductive roles do not come in the way of their economic and employment security.
Conventions on Maternity
It was during the first International Labour Conference (ILC) in 1919 that the first Convention on Maternity protection, Convention concerning the Employment of Women before and after Childbirth, 1919 (Convention No. 3) was adopted. This Convention was followed by two other conventions: Convention concerning Maternity Protection (Revised), 1952 (Convention No. 103) and Convention concerning the revision of the Maternity Protection Convention (Convention No.183) in 2000, which progressively expanded the scope and entitlements of Maternity protection at work.
Convention No. 3
The 1919 Convention provided that no woman should be permitted to work in any industrial or commercial undertaking for a period of six weeks after in any confinement, and that she should be entitled to leave work during the six weeks before her confinement, on production of a suitable medical certificate. During any such period of absence the employee was to be paid benefits sufficient for the full and healthy maintenance of herself and her child, and is, in addition, to receive free attendance by a doctor or certified midwife. The income security is also provided during this period. It also guaranteed nursing facilities and reinstatement in employment after leave. The amount of benefit is to be determined by the competent authority in each country, and the cost of the scheme is to be defrayed out of public funds unless otherwise provided under a scheme of insurance.
Convention No. 103
The ILO Maternity Protection Convention, 1919 was revised in 1952. According to the revised convention every woman irrespective of age, nationality and status in public or private, industrial or commercial undertaking was required to be absent for a period of six weeks after the child birth and allowed to be absent for a period of six weeks prior to child birth. For such absence she was to be paid full benefits sufficient for the full and healthy maintenance of herself and her child. These benefits were to be paid either out of public funds or be means of a system of insurance but the exact amount was to be determined by the competent authority in each country. Additional benefits like free attendance by doctors and midwives, and two nursing breaks of half an hour’s per day were provided, and no employer could dismiss a woman for such absence.
Convention No. 183
Convention No. 183 is divided into a number of different aspects of Maternity protection such as: Scope; Health protection; Maternity leave; Leave in case of illness or complications; Cash and medical benefits; Employment protection and non-discrimination etc.
This Convention should normally be implemented through laws or regulations, although different means are used in the national practice of the member states, by following protection, such as collective agreements and arbitration awards, etc.
MATERNITY BENEFIT ACT, 1961
The Object of the Act is to protect the dignity of motherhood and the dignity of a new person’s birth by providing for the full and healthy maintenance of the woman and her child at this important time when she is not working.
Benefits under the Act:
- Leave with average pay for six weeks before the delivery
- Leave with average pay for six weeks after the delivery
- A medical bonus if the employer does not provide free medical care to the woman
- An additional leave with pay up to one month if the woman shows proof of illness due to the pregnancy, delivery, miscarriage or premature birth
- In case of miscarriage, six weeks leave with average pay from the date of miscarriage.
Non Cash Benefits/Privilege
- Light work for ten weeks (six weeks plus one month) before the date of her expected delivery, if she asks for it
- Two nursing breaks in the course of her daily work until the child is 15 months old
- No discharge or dismissal while she is on maternity leave
- No change to her disadvantage in any of the conditions of her employment while on maternity leave
- Pregnant women discharged or dismissed may still claim maternity benefit from the employer.
Under the Maternity Benefits Act, 1961 the condition levied is that the female employee should have served the institution for a minimum period of 80 days in 12 months preceding the date of expected delivery. Also, the Act has undergone regular amendments with the recent one being in 2008. Here, the minimum medical bonus in case of inability of employer to provide free medical care to pregnant women employee was raised from Rs 25 to Rs.1000 extending to Rs. 20000.
The Act provides for 12 weeks of paid leave as maternity leave and 6 weeks in case of miscarriage or termination of pregnancy. In addition to the provisions for leave and cash benefits, the Act also makes provisions for matters like light work for pregnant women 10 weeks prior to her delivery, nursing breaks during daily work till the child attends age of 15 months, etc.
The Act serves as a protective umbrella as it restricts termination of service of a pregnant woman employee except on grounds of misconduct. Moreover, it imposes punishment for a period of minimum three months or fine extending to Rs. 5000 on the employer, in the event of any failure to provide maternity benefits to female employees.
ISSUES RAISED BEFORE THE SUPREME COURT WITH REFERENCE TO THE MATERNITY BENEFIT ACT, 1961 AND JUDICIAL RESPONSE
Municipal Corporation of Delhi v. Female Workers: In this case Union of Female Workers who were not on regular rolls, but were treated as temporary workers and employed on Muster roll, claimed that they should also get maternity benefit like regular workers. The court 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.
Shah vs. Presiding Officer, Labour Court, Coimbatore and others: 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. Issues Raised before the Courts with Reference to Maternity Benefit Act, 1961.
- 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.
- During this period she not only cannot work for her living but needs extra income for her medical expenses. In order to enable the woman worker to subsist during this period and to preserve her health, the law makes a provision for maternity benefit so that the woman can play her productive and reproductive roles efficiently.
- Performance of the biological role of child bearing necessarily involves withdrawal of a woman from the workforce for some period.
After analyzing various provisions of the 1961 Act and related cases it can be concluded that Maternity Benefit Act, 1961 is a boon for the working women in the sense that they don’t have job insecurity during their maternity period. But there are certain shortcomings of the Act which needs to be looked upon. Firstly, the duration of leave must be extended in order to allow a mother to fully recover and recuperate as well as efficiently nurse her new born child. Within this, the duration of post natal period must be extended keeping in mind factors like rise in number of late marriages, cesarean births, nuclear families and increasing urbanization. In the 44th Indian Labour Conference, held in February, 2012, it has been recommended that Maternity Leave under the Maternity Benefit Act be increased from the present level of 12 Weeks to 24 Weeks.
Secondly, The MBA does not comply with international standards and there are huge gaps in its implementation as the entire responsibility of the Act rests with the employer. Placing the entire burden of providing maternity benefit on the employer is akin to giving him an incentive to not provide any benefit at all. Thus, the cost of maternity protection should be shared amongst different agencies through some form of social insurance scheme or general taxation.
Thirdly, the responsibility of child care is often singularly put upon women. This reinforces patriarchal notions and stereotypes and also enhances the discrimination they face from employers. In order to reduce these factors, the Act should also make a provision for paternity leave and follow a more egalitarian approach. Also, protection should be available to persons who adopt children.
Edited by Hariharan Kumar
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