Maternity Benefits In India: A Look At The Well-Intended But Misguided Law

The persisting global gender gap in the workforce has created a dire need to make inclusive policies to augment women's participation in the labor force and in lieu of this, several countries around the world have formulated liberal maternity benefit provisions so that motherhood does not become a reason for women to opt-out of the workforce. In India itself, the female workforce participation has fallen from 26% in 2005 to 20% in 2019, as per World Bank estimates, also pointing to the stark reality that India's female workforce participation is one of the lowest in the world. India's maternity benefit amendment act, 2017 was a step in this direction to make the workforce more inclusive and to amplify women's participation in the labour force. But, as established by several scholars over the years since the Act came in force, the legislation has proven to be largely inadequate in improving that gap, as per a teamlease report, indicating that India's female labour force participation remains much lower than Nepal's (at 80%), China's (at 60%), Bhutan's (at 58.86%), Bangladesh's (at 36%) and even Pakistan's (at 21.91%). And the Covid 19 pandemic has only made things worse for women because of unpaid care work that they do at home, which is six times more than that of men's and is still unaccounted for. Provisions on Maternity Benefits in the Act and the Code "An act to regulate the employment of women in certain establishments for a certain period before and after childbirth and to provide for maternity benefit and certain other benefits". Applicability As per S.2 of the Maternity Benefit Act, 1961, the Act applies to every factory, mine or plantation including factories, mines and plantations belonging to the government establishments where persons are employed for the exhibition of equestrian, acrobatic and other performances and every shop and establishment employing ten or employees on any day of preceding twelve months such other shops or establishments notified by the appropriate government. Note – State government can declare that the Act may apply to any other establishment or class of establishments (industrial/commercial/otherwise). This declaration shall be notified via the official gazette, after taking approval of the central government by giving a two months' notice. And the Act clarifies that nothing therein (except sections 5A and 5B) shall apply to establishments where provisions of the Employees State Insurance Act, 1984 apply. As per Schedule 1 of the Code, the maternity benefits laid therein only apply to points (a), (c) and (d) mentioned above and not to establishments where persons are employed for exhibition of equestrian, acrobatic and other performances. The Code also does not make any provision for the state government to declare maternity benefits to apply to any such establishment that it deems fit. Important Definitions Maternity Benefit Act, 1961 Code on Social Security, 2020 S.3(b) "Child" includes a 'still-born' child S.2(12) S.3(ba)"commissioning mother" means a biological mother who uses her egg to create an embryo implanted in any other woman S.2(13) S. 3(ha)"medical termination of pregnancy" means the termination of pregnancy permissible under provisions of Medical Termination of Pregnancy Act, 1971 S.2(45) S.3(j) "Miscarriage" means expulsion of contents of a pregnant uterus at any period before or during the twenty-sixth week of pregnancy but does not include any miscarriage punishable under the Indian Penal Code S.2(48) S. 3(o) "woman" means a woman employed directly or through an agency, for wages in any establishment S.2(91) Substitutes the word "agency" with "Contractor" Also includes an insured woman as a woman for whom contribution is or was payable under Chapter IV pertaining to maternity benefits and who is entitled to all such benefits and includes a commissioning mother and a woman who legally adopts a child of up to three months of age. Who can avail maternity benefits? As per Section 5(2) of the Maternity Benefit Act, 1961 and S.60(2) of the Code on Social Security 2020, every woman who has worked in an establishment for at least 80 days (including the days for which she was laid-off or public holidays) in the twelve months immediately preceding the date of her expected delivery. So, while the Maternity Benefits Act, 1961 (inclusive of 2017 amendment) excludes unorganized workers from its purview (leaving out 95% of India's female workforce) the Code includes them and states under Chapter IX that the Central Government shall frame and notify laws and welfare schemes pertaining to unorganized workers on matters...

Maternity Benefits In India: A Look At The Well-Intended But Misguided Law

Rashmi Bagri

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