By: Astha Joshi* |
"Childbirth is more admirable than conquest, more amazing than self-defense, and as courageous as either one."
Motherhood is a surreal experience in a woman’s life. She realises her ability to possess the power of bringing a new living creature to the world. A new mindset emerges along with the new life. However, with all the pleasure comes numerous responsibilities and challenges. The life of an Indian woman is imposed with hurdles due to the prevalence of patriarchy in several sections of the country.
As society had burdened her with its expectations, women had to struggle to make a career. The late Justice Leila Seth, who was the first female judge of the Delhi High Court and the first woman to become the Chief Justice of a State High Court, once said in an interview:
“When I had to work under a senior lawyer for a year, I went to Mr. Sachin Chaudhary who later became India’s finance minister. Looking at me, he asked, "why are you here, go and get married." I said, "I am married." He said, "it is important to have children." I said, "I have a child." Then he said, "Look it is unfair on the child not to have siblings, you should have two….," I said, "I have three children.”
However, with years, the judiciary and the legislature have collectively made efforts to give meaning to the life of women beyond maternity and bring them to par with men through revolutionizing the laws and introducing policies.
The Apex Court gave a landmark judgement in Air India v. Nargesh Meerza that the pregnancy clause of the Air India Corporation Act which stated the immediate termination of an air hostess on the grounds of pregnancy was violative of Articles 14 and 15 of the Indian Constitution. The court even considered that the choice to work after pregnancy was a personal one for the air hostess and no decisions can be coerced.
Many such milestones towards giving an equal opportunity of economic growth to both genders were achieved through cooperative efforts of the legislature and the judiciary. The Maternity Benefit Act, 1961 (hereafter referred to as the ‘Act’), is one such contribution that aimed to acknowledge pregnancy as a natural phenomenon and gave working mothers the required infrastructure to experience motherhood without worrying about employment.
The Act applies to all establishments where, as per law, ten or more people are working. Furthermore, the proviso mentions that with the approval of the central government, the state government can make either any of the provisions or the whole Act applicable to any establishment like agricultural or commercial nature.
The Act has incorporated provisions that are progressive in nature. As per the 2017 amendment, the duration was increased from 12 weeks to 26 weeks, out of which eight weeks can be claimed before the delivery. If the mother has two or more children, the duration of the leave is 12 weeks.
India was the first country to have a provision of paid leave for miscarriage. A paid leave of up to six weeks can be sought under the Act. The Act also provides a leave of up to six weeks in case of medical termination of pregnancy. It even gives commissioning and adoptive mothers a paid leave of 12 weeks from the day of receiving the child.
Besides, the Act has a provision related to providing leave of up to two weeks to mothers after tubectomy (a medical operation done to stop further pregnancies). Also, if the mother contracts illness after miscarriage, delivery, tubectomy, or medical termination of pregnancy, she can claim an extended leave with wages.
The employer can also allow the woman to work from home, depending upon the nature of work and comfort of the woman. Moreover, the Act prohibits the employer to dismiss a woman during or for taking maternity leave.
Additionally, the women are also allowed to visit the child care nursery at intervals in the establishment. As per the 2017 amendment, the Act made it mandatory for establishments employing more than 50 workers to provide creche facilities. It is pertinent to note that the Act merely specifies the number of workers i.e., 50, and does not mention any number of women working in the establishment.
Judicial interpretation:
Since the 19th century, let alone maternity benefits, even the rights concerning the existence of a woman had to be laid down – it becomes conspicuous that the concept of maternity leave had to be interpreted even on the minutest aspects.
This is depicted through several cases across the years. In Tata Tea Ltd. v. Inspector of Plantations, the Supreme Court had to clarify the basic rationale for leave by stating that an employer cannot call an employee, who is enjoying her leave under the Maternity Benefit Act, on holiday for work. The Apex Court clarified the intent of maternity leave in the light of Article 42 of the Constitution of India (B. B. Shah v. Presiding Officer, Labour Court, Coimbatore, and others). Furthermore, it took a step ahead towards the same direction by declaring the policy of a state government unconstitutional which denied ad hoc teachers benefits like maternity leave (Rattan Lal and Ors. v. State of Haryana and Ors.).
It is one of such instances where the colours of judicial activism subdued loopholes in policy implementation and guaranteed maternal rights. In Smt. Neetu Choudhary v. State of Rajasthan and Ors., the Apex Court discarded petty excuses given by the employers of the mode of payment of wages. The Court said that the mode of payment cannot be a ground to deny maternity benefits to a woman under the Act. Similarly, in a recent case of Dr. Swetha v Union of India and Ors. , the Karnataka High Court allowed maternity benefit to a senior resident doctor employed on a contract basis.
Such illustrations, on one hand, reflect the indifference of a chunk of mass towards motherhood and the basic rights of a woman. However, at the same time, the judgements given by the protectors of the constitutional rights have reinstated the ideals of a humanitarian society. It instils the faith of the minorities whose voice fades out in the majoritarian patriarchal mindset.
Challenges:
In reality, these provisions are applicable to a very small number of female workers as around 80 percent of the women work in the unorganized sector and the nature of work of other sections of working women is informal which the Act hardly touches.
Additionally, these benefits are still partially enjoyed even due to bureaucratic interference. For example, state governments like Uttarakhand and Punjab had restrained the enjoyment of maternity benefits in case of a third child to a female government servant who had two living healthy children. The courts have subsequently struck down such rules and declared them “unconstitutional.” However, such ifs and buts on the benefits do not support a gender-neutral workplace, rather showcase these benefits as an act of charity to a gender in specific. It still ensures that the leash on women’s freedom is held tight.
Despite having landmark judgements advocating for maternity leave, the administration, be it at any level, has created a reality in contrary to the Supreme Court’s decisions. In 2020, around 86% of the Delhi University’s ad hoc teachers were denied maternity leave. However, the Rattan Lal judgement has put forth a different view.
Due to the lack of awareness on the maternity benefit, women hardly use their benefits. As per Rajagopalan and Tabarrok in 2019, less than one percent of women in the labour force are benefitted from the Maternity Benefit Act.
In cases where the workers are employed on a contractual basis, due to the lack of awareness of their own rights, the female employees are fooled by the employers as they deceive them by saying that they are not entitled to the maternity benefits.
In some cases, the long period of leave of 26 weeks has backfired and made the employers more discriminatory towards hiring women. Why would one pay a woman for 26 weeks to sit at home and rest? Instead, opting for a person with no uterus is a better choice as employers don’t have to deal with the intricacies of the “additional benefits” given to women.
It is indeed surprising that the whole class of women is being subjected to discrimination for a legislation that is not even implemented among 10% of them. The apprehension of employers has led them to take “preventive” measures by reducing the inclusion of women in the workplace.
Coming to adoptive mothers, the logic behind giving leave only to the mothers whose child is less than three months does not make sense as a child of any age will need time to bond with their adoptive mother.
Complete ignorance of father’s rights and paternity benefits in the women-centric Act shows that the lawmakers still only want to burden women with multitasking. However, some companies like Facebook, Microsoft, Starbucks, Netflix, Zomato, etc. provide paternity leave at their own volition. The benefits of providing paternity leave to fathers are adding to a healthy family life and are helping to change the patriarchal mindset.
With specific highlight on the 2017 amendment, with the “work from home” condition for women, the employers had overlooked the rights of an expectant mother during the spread of COVID-19, which added more stress to the lives of the expecting ones.
The way forward:
All good laws need better implementation. At this stage, the state government can take initiatives at their end to engage more employers in the discussion of being gender-neutral and acknowledging the biological nature of a woman. Punishments for disobedience of the provisions of the Act could be introduced in order to make it mandatory for employers to comply with the law. Pecuniary benefits and rewards like waiver of license fees could be given to the employers for the encouragement of the implementation of the law. It can, through holding discussions with the stakeholders, sympathise with the decision-makers on maternal rights. However, in the longer run, representation of women at decision-making places will not just fix the problem but make the workplace more women-friendly.
But, prior to all, it is essential to make women aware of their own rights, because if one is clueless about their rights, they do not know what to stand for. After the key amendment made to the Maternity Benefit Act in 2017, the National Commission for Women (NCW) saw a rise in the number of complaints over denial of maternity benefits to women at the workplace. Governments must run awareness campaigns along with legal aid cells in the remote areas to create not just a voter, but a vigilant citizen.
Progressive steps are to be expected from the governments at centre and state level. Examination and thorough study of models of different countries and research on the same should be encouraged to come up with better solutions. For instance, Kerala, the state of many firsts, is even the first one which is set to bring employees in the private education sectors under the ambit of the Maternity Benefit Act.
It is even necessary to address the insecurities that the employers who own small industries might have. There is a need for debates and discussions among economists, jurists, and social activists on the same to create plans which amicably settle the conflict of interests. The situation even demands the education of the employers through schemes that a mere economic development does not define success for the long run - for one who fails to bother about the future-bearers is not a real visioner.
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*The author is a freelance journalist and a student at Kishinchand Chellaram Law College, Mumbai.