ISSN 2319-2593 IISUniv.J.S.Sc. Vol.
7 & 8(1), 35-41 (2018 & 2019)
Maternity Leave in India - Past Present and
Future
Sanchari Ghosh
Abstract
In India, with the changes in traditional family roles, democratic notions are
positively creeping into the social system. In the epoch of globalization, women
are found to be immensely active in their career, while motherhood retains a
special and deeply emotional place in their lives too. However, their path
towards achieving this binary objective is replete with obstacles. On one hand,
their ties with pregnancy and child rearing remains intact and on the other hand,
the failure of policymakers and employers to deal with it have both legal and
socio-cultural dimensions. To this effect, the Ministry of Labour has amended
the Maternity Benefit Act, 1961, thereby increasing the maternity leave for women
employed in private firms from the existing 12 weeks to 26 weeks. Such a change
however, should not be understood as a panacea. This paper looks to trace the
constitutional evolution of maternity benefits in India, and further highlighting
the possible roadblocks in its efficient implementation. It also aims to bring
forward an argument regarding the role of fathers and the need to emphasize on
paternity leave as well.
Keywords: employment, equality, maternity leave, workplace.
Introduction
Benito Mussolini once said, “War is to man, what maternity is to a woman.”
Though gender-sensitive lenses would certainly and necessarily contradict the
inherent sexism of this statement, the point in highlighting this is to exhibit the
struggle and bravery that are attached to the word “maternity”. Conventionally,
woman has always been associated with the home and man with the outside
world. As a result, this parameter led to a conventional thought of men having
the sole responsibility for economic production. Very often, the contribution of
women towards home and the community is overlooked. Women have always
been at work; but not according to the traditionally accepted definitions of
“work” and “workplace”. Consequently their contribution to the economy and
society have been neglected, (Bala, 2012). Since it is erroneously believed that
only men work, it is the need of the hour to pull up our socks and to initiate
much needed changes. The incompatibility created between child-rearing and
paid labour has led to sheer inequality for women. “The reality is that the upper
echelons of society are occupied by men, while women are disproportionately
concentrated into lower-paying part-time work. Consequently, women who do
the unpaid domestic work are rendered dependent on men for access to resources
in households, where, most of the ‘household income’ comes from the men’s
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paid work.” (Kymlicka: 2002) It is in this context that we must revisit the rules
and regulations regarding maternity benefit rules and regulations pertaining to
Indian workplace.
The Constitutional and Legal Evolution
The Indian Constitution provides that “the State shall make provision for
securing just and humane conditions of work and for maternity relief”
(Article 42, Directive Principles of State Policy). In this regard, according to the
Maternity Benefit Act, 1961, working women in India are allowed to take
maternity leave upto three months. It ensures that every woman shall be entitled
to the payment of maternity benefit, which is the amount payable to her at the
rate of average daily wage for the period of her actual absence. The Act also
stated that the woman must have actually worked in the establishment for a
period of at least 80 days during the 12 months immediately preceding the date
of her expected delivery in order to receive the maternity benefits. Moreover,
no employer is allowed to employ a woman during the period of 6 weeks
immediately following the day of her delivery or miscarriage or medical
termination of pregnancy. If a pregnant woman is absent from her work in
accordance with the provisions of this Act, it shall be unlawful for her employer
to dismiss her citing such absence (Maternity Benefit Act: 1961) Along with the
Maternity Benefit Act of 1961, there are other legislations as well, namely The
Employees’ State Insurance Act, 1948 (ESIA) and the Central Civil Services
Rules, 1972 that cover maternity benefits.
The ESI Act. (1948) envisions a need based social insurance scheme that would
protect the interest of workers in organized sector during any emergency
including inter alianl, maternity. All non-seasonal factories running on power
and employing 10 or more persons along with those running without power
and employing 20 or more persons come under the purview of this Act. In case
of any confinement, miscarriage, sickness arising out of pregnancy, or premature
birth of the child, the Act provides for periodical payment to the insured woman.
The duration of maternity benefit available to an insured woman in case of
confinement is 12 weeks - extendable upto an additional period of one month
in case of illness arising out of pregnancy, delivery, premature birth of a
child or miscarriage, (Bala, 2012) Women in the government sector get a six-
month maternity leave as per the Central Civil Service (Leave) Rules 1972.
Moreover, they are allowed to take childcare leave of up to two years in different
phases at any point till their child turns 18 years old. (Nair, 2015).
The concept of maternity benefit was introduced to enable the women workers
to carry on childbearing and rearing without any exertion on their health and
loss of wages. This essential need has been recognized in various international
human rights instruments such as the International Covenant on Economic,
Social and Cultural Rights, 1996 and various international labour conventions.
In 1975, the Declaration on Equality of Opportunity for Women Workers was
adopted by the International Labour Organization (ILO) and during its 92nd
conference in 2004, the ILO member states adopted resolutions relevant to
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extending maternity protection access and promoting work- life balance. (Bala,
2012) and recommends a minimum standard maternity leave of 14 weeks or
more. The ILO Maternity Protection Convention, 2000 considers protection
during pregnancy to be a shared responsibility of government and society.
The hitherto existing Indian laws on the subject clearly fell short of the ILO
recommendations. Recognizing this drawback, the Ministry of Labour, on advice
from the Ministry of Women and Child Development agreed to amend the
Maternity Benefit Act. (1961). The Maternity (Amendment) Bill 2017, an
amendment to the Maternity Benefit Act, 1961, was passed in Rajya Sabha on
August 11, 2016, in Lok Sabha on March 09, 2017 and received an assent from
President of India on March 27, 2017. The amendment increases the maternity
leave for women employed in private firms from the existing 12 weeks to 26
weeks. Thereby making India one of the 42 countries where maternity leave
exceeds 18 weeks. (Nair: 2015) The amendment includes few other measures as
well. For instance, nursing mothers may be allowed to work from home even
after 26 weeks of maternity leave if a mutual agreement is reached between the
employer and the employee regarding the terms and duration of such a ‘work
from home’ arrangement. Rather absurdly, women employees who have two or
more children will be allowed only 14 weeks of leave instead of 26 weeks. 12
weeks of maternity leave is also granted to commissioning mothers -i.e. who
use surrogates to bear a child as well as to working women adopting a baby
below the age of three months. A ‘commissioning mother’ is defined as “a
biological mother who uses her egg to create an embryo implanted in another
woman”. Creche facility has to be mandatorily set up by firms with at least 50
employees or a few firms can choose to set up a common facility within a
prescribed distance. In cases where creche facility is available, the women
employees will have to be allowed at least four visits to the creche, (Singh, 2016)
However, minor details such as the duration of each visit to the creche have not
been notified in this Amendment Act.
Impediments and Roadblocks
The move by Ministry of Labour, Govt. of India is undoubtedly progressive, and
long overdue. Several studies and surveys that triggered the government to
initiate this change, evidently point out that ambitious women put off marriage
and delay childbirth. Once they return to work, they have struggled to pick up
from where they left off, eventually affecting their performance at work. It has
also been pointed out that the reason for delaying their pregnancy is that they
receive only three months of postnatal leave. Through a number of studies of
high-level executives it has been found that while thirty three to fifty percent of
women are childless, virtually all the men have children. A report titled “Research
Initiative: Women in India’s IT Industry” by The Centre for Internet and Society,
found that among the IT companies in India, TCS had only one female non-
executive director out of a 14 member Board of Directors while Infosys Ltd.
fared even worse with no women among 15 board members. The probable
reason for this disparity is that the career paths leading to top-echelon positions
generally require long working hours.
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Notwithstanding the fact that a section of corporate India is consciously choosing
gender-sensitive policies such as flexible hours and creche services for working
mothers, there are innumerable cases of women at private companies having to
face discrimination and harassment after revealing their pregnancy. As has
already been mentioned, according to the rules of Maternity Benefit Act in private
firms, pregnant women cannot be sacked and they do have the right to ask for
light jobs avoiding any kind of hazardous task. However, in practice, the duration
of maternity leave enjoyed by a woman employee is often recorded as a time of
average or no performance. Now, since promotions are largely performance
based and not tenure-based, it’s not uncommon for companies to deny
promotions to women who have returned from maternity leave. This is an
indication that companies are completely insensitive to the needs of the employee
(Johari, 2017). This insensitivity is also evident from the apprehension expressed
by the Ministry of Labour, about increasing the maternity leave any further as
they perceive that doing so will adversely affect the employability of women in
the long run. As mentioned above, employers cannot terminate a woman
employee’s tenure on account of pregnancy. However, termination is more
common than we realize and is symptomatic of a more pervasive discrimination
against working mothers in Indian organizations.
Moreover, around 90 percent of women workforce is in the unorganized sector
and so, the bill impacts only 10 percent of the workforce, leaving out a large
percentage of women who are employed in the unorganized sector. (Madhok,
2014). The plight of women workers in the unorganized sector needs to be heard
for there are gross human rights violations prevalent in this sector. For instance,
hysterectomy (surgery to remove all or part of the uterus) is forced by the
contractors upon the women being employed for cane-cutting in the sugar belt
of Maharashtra. It is not difficult to guess that women without wombs are
preferred by the contractors to avoid disruptions due to menstruation and
pregnancy even though such operations carry the risk of complications arising
due to hormonal imbalances. (Jadhav, 2019).
Case for Paternity Leave
Loopholes relating to the amendment suggest that it is prudent to come up with
some alternatives rather than just increasing the duration of the leave period. In
this context, it is pertinent to bring in the role of paternity. Maternity is essentially
intertwined with paternity. The male breadwinner model continues to play a
decisive role as far as gender equality is concerned in this regard. In fact, the
amended Act hardly embraces a human rights approach in the ideal sense. It
continues to reinforce the stereotype about childcare being exclusively a woman’s
responsibility. It is infused with andocentric notion of family and workplace
which assumes that only the mother is the primary caregiver (Raha, 2016) A
strong relationship between the father and the child leads to strong emotional
bond that helps the child in its long term learning abilities. Though Indian
companies are increasingly waking up to the need to introduce paternity leave
policies, the question is, are they doing enough? This policy was introduced in
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India a decade ago by technology companies who wanted to attract talent.
However, since it is not a mandatory rule like maternity leave, it did not gain
much traction among employers.
Care is a key concern for feminist scholars because it is rigidly gendered and has
fashioned our notions regarding what men and women should or should not do.
How care is provided, therefore, also has consequences for the functioning of
economies and the wellbeing of societies. Despite the high profile that care and
gender equality have attained in the recent years, policy remains underdeveloped
and the importance of care is often inadequately reflected in mainstream debates
(Evans, 2014). Very few companies in India provide paternity leave because the
human resource experts say that they have not seen any demand for this.
Policymakers should recognise that raising a child is a social function and the
responsibility is commonly owned by both the parents and not just by biological
mothers.
While a limited form of paternity leave is authorized for government employees,
there is no such law that instructs the private sector to make it obligatory. In
1997, Central Services Leave Rules brought in 15 days paternity leave for men in
central government service and the provision was extended to adoptive fathers
in 2009. For the private sector, though, policy makers have failed to see the link
between division of labour at home and equality at the workplace. Post maternity
responsibility is one of the main reasons why women take a career break and it
is natural that women who receive support from their partners have a more
successful career trajectory. Therefore, Maternity Benefit Act alone can never
constitute an adequate effort in the struggle towards a gender-balanced approach
without effective formulation and implementation of similar Paternity leave
provisions.
Conclusion
At the heart of the debate lies the dichotomy between a ‘feminist’ ethic of care and
a ‘feminine’ ethic of self-sacrifice. The idea that women’s psyche and behaviour is
care oriented has been exploited to justify male dominance for centuries. Male
theorists across the political spectrum have accepted that the confinement of
women to the domestic sphere is justified. ‘Justice’ and ‘rights’ have been gendered
in a masculine sense, while ‘care’ and ‘responsiveness’ have been gendered in a
feminine sense. In “Seeing like a feminist”, (Menon, 2012) writes : “feminism is
not about individual ‘men’ and ‘women’ but about understanding the ways in
which ‘men’ and ‘women’ are produced and inserted into patriarchies that differ
according to time and place.” From a clear feminist perspective, it brings to light
the gender inequality that is inherent in society. When a woman is pregnant, it
is her biological right to be granted maternity leave, and is completely unfair to
be culturally discriminated.
Feminist writers such as Gilligan ( ) argue that we need to distinguish a ‘selfless’
conception of caring from a ‘self-inclusive’ conception of caring. The two
conceptions are mutually incompatible. In her studies of women’s moral
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development, Gilligan contends that self-less caring requires women to always
subordinate their interests to others, while self-inclusive caring encourages
women to learn to take care for themselves, and not just for others. (Kymlicka:
2002) Care theorists rightly stress that a ‘feminist ethic of care’ is geared towards
self-inclusive care rather than selfless care. In other words, the ‘feminist ethic of
care’ through its emphasis on self-inclusive caring, accentuates women’s
emancipation; whereas, the feminine ethic of self-sacrifice’ through its emphasis
on self-less caring, accentuates women’s entrapment in a stereotypical sexist
division of labour.
Extending this theoretical distinction between the two conceptions of care to the
frame of reference of maternity benefit seems to strengthen the claim of also
introducing comprehensive paternity benefits rules in the near future. It is not
befitting for a progressive society that its women have to face social stigma and
professional discrimination in their quest towards gaining parity in the job
market while being bound to the traditional duties of child rearing. The onus
therefore lays both with the government, which must proceed with a sustained
will to swiftly implement the present reforms, as well as the society at large,
which eventually needs to liberate their minds from orthodoxies. It must be
ensured that women’s caring activities do not compromise with their freedom
and equality. Rather, the responsibilities for care are shared more fairly with
men. Being care-givers must not prevent women from taking active part in the
public sphere, and it must not also come in the way of them realizing their
career goals. In the near future, efforts should also be made by the government
to include the huge number of women working in the unorganized sector under
the purview of this Act so that they can avail the benefits of maternity leave and
live their lives in the best way possible granting them the right justice that they
deserve.
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