By - King Stubb & Kasiva on April 3, 2023
In India, the maternity leave policy is governed by the Maternity Benefit Act, 1961, which provides for up to 26 weeks of paid leave to women who have given birth. This period may be extended in certain cases, such as illness arising out of pregnancy, delivery, premature birth of the child, miscarriage, medical termination of pregnancy or tubectomy operation. In addition to the Maternity Benefit Act, many employers in India also offer additional benefits and policies to support working mothers, such as flexible work arrangements and child care support.
It is important for women in India to be aware of their rights and options when it comes to maternity leave policy and to communicate with their employers about their needs and expectations. This can help ensure that they can take the time they need to care for themselves and their new child while also maintaining their employment and income.
The Maternity Benefit Act of 1961 has a fundamental aim of removing obstacles that women encounter during the journey of motherhood by enabling them to combine work and fulfill their desire to have a child. The concept of providing maternity allowance was first introduced in Germany by the end of the 19th century, which was then followed by the International Labour Organization's Maternity Protection Convention. In India, the need for maternity benefit legislation was recognized by N.M. Joshi in 1929, and the Women's Association of India demanded maternity rights in the Jamshedpur steel industry in 1920.
The Central Government then introduced the Mines Maternity Benefit Act, 1941, the Employees' State Insurance Act, 1948, and the Plantations Labour Act 1951, which ultimately led to the enactment of the Maternity Benefit Act of 1961 by the Parliament. This Act was introduced with the sole purpose of regulating the employment of women before and after childbirth. The codification was necessary due to discrepancies in the duration of maternity leave and the qualifying period of service for eligibility for maternity benefits. The broader objective of the Act is to protect the dignity attached to motherhood by providing adequate maintenance for women and their children during the period when they are not working.
In 2017, the Maternity Benefit Act was amended following the 259th Law Commission Report, which recommended that the maternity leave policy be increased from 12 weeks to 180 days. The report also suggested that maternity policy should be mandatory for all women, including those working in the unorganized sector, and that the government should establish guidelines specifying the minimum paid maternity leave for women employed in the private sector.
The Amendment Bill was introduced in the Rajya Sabha by the Minister for Labour and Employment, Mr.Bandaru Dattatreya, after the Indian Labour Conference (ILC) recommended an extension of the maternity leave period in its 44th, 45th, and 46th sessions. Additionally, the Ministry of Women and Child Development recommended expanding the scope of maternity benefits for women. The World Health Organization also advocated for an increase in the duration of maternity leave to protect the health of mothers and their children, particularly since infants require breastfeeding for the first 24 months to improve their chances of survival.
According to the Act, all women were entitled to a 12-week maternity leave, which is increased to 26 weeks. Prior to the Amendment, a woman could not claim this benefit before 6 weeks from the expected delivery date. However, the Amendment extends this period to 8 weeks. If a woman has had two or more surviving children, she will be eligible for 12 weeks of maternity leave of which not more than 6 weeks shall precede the expected date of delivery.
The Amendment provides a maternity leave of 12 weeks to two categories of women: those who legally adopt a child below the age of three months, and commissioning mothers, defined as biological mothers who use their egg to create an embryo implanted in another woman. The duration of maternity benefit in both cases will be calculated from the date the child is handed over to the adoptive or commissioning mother.
The Amendment introduces a new provision that allows women to work from home based on the type of work they perform. The employer and employee can decide on the work arrangement through mutual agreement. This option is not limited to the duration of the maternity period but can also extend beyond delivery, for a period agreed upon by both parties.
The Amendment introduces a new provision that mandates the provision of creche facilities within a designated distance. A mother is entitled to make four visits to the creche in a day, which also includes her rest period.
The provision requires that women employees be made aware of their entitlements to maternity benefits at the time of their employment.
Upon submission of medical records, a woman who has experienced a miscarriage or medical termination of pregnancy shall receive a maternity benefit for a period of six weeks, as per the provision.
After providing the necessary medical documents, a woman shall get 2 weeks of maternity benefits immediately after the operation.
In accordance with the Act, it is illegal to terminate or dismiss a female employee who is absent from work while availing of maternity leave. If such an action is taken by the employer for any reason other than as a consequence of her absence, then the employer must pay the maternity benefit or bonus as stated in the Act. If the employer fails to comply, the affected woman may approach the authorities or court for recourse.
To enforce and administer the provisions of the Act, the government has designated Inspectors. As per Section 16 of the Act, these Inspectors are considered Public Servants as defined by Section 21 of the Indian Penal Code.
An inspector has the authority to initiate an inquiry based on a complaint from the aggrieved employee or on his own accord. If upon investigation, the complaint is found to be valid, the inspector can order the employer to compensate the employee accordingly. If the employee is not content with the inspector's decision, she can appeal to the designated authority.
In case an employer fails to pay the required amount as directed by the Inspector or the prescribed authority, then he shall be penalized according to the provisions of the Act. The punishment entails imprisonment for a period not less than three months, which may extend up to one year along with a fine ranging from Rs.2000 to Rs.5000. These provisions illustrate a progressive and proactive approach by the legislature towards protecting women's rights and providing them with ample opportunities and space for growth, which were previously denied to them. The legislature's action reflects the ethos of a welfare state that aims to promote the well-being of all its citizens.
The first Labour Commission of 1969 laid the groundwork for the establishment of basic labour safety and security regulations, while also emphasizing the need to provide welfare benefits for the working class. The Commission advocated for the provision of creche facilities and recommended that the requirement of a minimum of 50 women workers to have such facilities be effectively reduced. Employers were encouraged to offer incentives to promote family planning and to collaborate with the government to provide services that would improve the well-being of their employees. Additionally, the Commission recommended the adoption of a central fund scheme to help achieve the objectives of the Maternity Benefit Act, 1961 with respect to maternity benefits.
The Second Labour Commission was established in 2002 and aimed to classify labour laws broadly and provide social security to workers, including those in the unorganised sector. It sought to remove the discriminatory notion of 'workman' and replace it with 'worker,' acknowledging the rights of female workers. The Commission also called for an end to arbitrary dismissal and recognised the importance of creche facilities for the safety of women and their children.
The 2017 Amendment to the Maternity Benefit Act has been introduced to align with the changing global conditions concerning this matter. While it has made significant improvements, some shortcomings can still be observed in the Indian legal system. Therefore, there are several pressing issues that need to be addressed through this legislation, which are as follows:
In the present era where gender equality holds significant importance in various fields, it is crucial for Indian legislation to address related concerns. Despite the 2017 amendment addressing important issues, it falls short of promoting gender neutrality. The Act emphasizes the child's need for the mother during the developmental years but disregards the father's role during this time. Therefore, it is imperative for the Act to include provisions for Paternity Benefits and Leave as well.
In India, it is the employer's responsibility to provide maternity benefits to their female employees. The recent amendment to the law has increased the duration of maternity leave from 12 weeks to 26 weeks, which could increase the financial burden on employers, possibly leading to reluctance in hiring female employees. In Singapore, however, the government and employers share the burden of paying for maternity leave benefits, with the state contributing from public funds. India could consider adopting a similar policy to ensure that employers are not dissuaded from hiring women due to the increased cost of maternity benefits.
The Maternity Benefit Act, amended in 2017, provides maternity protection to women in India. It ensures women's equal protection in the workplace during pregnancy to prevent any negative impact on their productivity or economic growth. However, the act has shortcomings, including the burden on employers to pay maternity benefits and the lack of provisions for paternity benefits. These inadequacies may be addressed by studying provisions in other countries where the state shares the burden of paying maternity benefits with employers. Overall, while the amendment aligns with international standards and recommendations, further improvements are necessary.
Yes, it is mandatory to provide maternity leave after the birth of a child under the Maternity Benefit Act of 1961, which says that women are entitled to 26 weeks of paid maternity leave, out of which 8 weeks canprecede the birth of the child. In some cases, this leave can be extended by an additional month. This extension can be granted if the woman is unable to resume work due to a medical condition related to pregnancy or childbirth. However, the employer can extend the maternity leave beyond the period mandated by the said Act.
Any leave beyond the statutory leave entitlement depends on the policy of the company. However, in case of an extension of maternity leave after the birth of a child due to medical conditions stipulated under the Act, the employee will be required to provide her employer with a written notice of the extension as stipulated in the applicable rules framed under the Act. The employer may then grant an additional month of leave if the woman is unable to resume work due to a medical condition related to pregnancy or childbirth.
During the extended period of one month due to medical conditions as stipulated under the Act, the woman is entitled to the same benefits as during the original period of maternity leave. This means that she is entitled to receive the same amount of pay and other benefits that she received during the original 26 weeks of maternity leave.
[1]Maternity Benefit Act, 1961, S.5(3).
[2]Maternity Benefit Act, 1961, S.9- A.
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