Labour law has great significance for women in India. Women’s interest and gender equality go parallel under labour law. There are laws creating positive discrimination in favour of women such as maternity benefit to working women, complain about harassment at the workplace etc. The actual fact remains that a woman, whether working or not is expected to perform her domestic duties, take care of family and children. When they work they are expected to work equal to men but are not paid equal to men. The childbearing burden is entirely on women and the burden of payment of maternity benefits is entirely on the employer.
Since the Vedic period, the position of women in society has been changing. In ancient time, the studies show that Indian women had higher status compared to men but still patriarchal and patrilineal nature existed. With the passage of time the condition of women and the respect they got declined. The status of women drained during the Colonial Rule in India where they were considered as chattels and were exploited, paid fewer wages, upon it the omnipresence of social stigma such as the practice of ‘Sati’, rampant child labour, polygamy added misery to the condition of women. In the mid 19th and 20th-century boundless efforts were made to discontinue such practices and protect the dignity of women. After independence, The Constitution of India came into force in 1950. It provided constitutional privileges that protected women in all spheres in society.
The Maternity Benefit Act, 1961 was enacted to regulate the employment of women in an establishment for a period before, during and after the birth of the child. Every woman who is working in an organized sector is entitled to maternity benefit which is ‘payable by the employer at the rate of average daily wage for the period of her actual absence immediately before and including the day of her delivery and for six months immediately after the day of delivery‘. The need for providing such affirmative benefit is that it would allow women to spend quality time with their child. Women always have the burden of taking care of family and performing household chores, providing maternity benefit will be a security that she would take good care of her child without worrying about losing a source of income and job.
The present article discusses how the Maternity Benefit Act is not effective in protecting pregnant women, leaving such women without employment during or after delivery of the child. Before 2017 amendment to the Act, the period of 12 weeks was divided into per-natal and post-natal both for a period, not more than six months but after the amendment, the duration has been extended to 26 weeks.
In the case of Municipal Corporation of Delhi v. Female Workers and Another, the maternity benefit was extended to the females working in corporations, the casual wage earners and daily wage labours. The women employees were involved in construction projects, maintenance of roads including the work of digging trenches. Maternity benefits were not available to women employees engaged on the muster roll. They were denied benefits on the ground that they are not regular employees of the Corporation. The Court considered ‘corporation’ as ‘industry’ and the Actwas made applicable to it. Article 42 of the Indian Constitution expressly mentions providing maternity benefit. This judicial decision included a large number of women’s who were denied a benefit to date.
Due to illiteracy and poverty, women are forced to seek odd jobs to overcome financial constraints. They have to do the jobs that involve hard physical labour like working at construction sites, mines etc. In order to earn daily wages, they have to work even during the advance stage of pregnancy and soon after the delivery of child sacrificing the love, care and healthy environment they could provide in case if the mother would have been taking rest during such period. The deep concern is raised when women participation is negatively affected in the post-maternity period. Labour force participation rates (LFPR) states that women participation in the labour force is declining since 2004-05. The study found that “Participation rates of women are lower in urban areas and among educated women, and when women work they tend to end up doing marginal jobs, often in home-based work (as a contributing family worker/unpaid worker) and the domestic work sector”.
The women become very weak and are unable to do work before and after a few weeks of delivery. Certainly, The employer has the practice to terminate the services of women when maternity affects the performance of normal work. Women had to go on leave without pay to retain employment.
In Neetu Bala vs Union Of India And Others the court held denying appointment to the petitioner just due to her pregnancy is arbitrary and illegal and violates Article 14 and Article 16. The petitioner was MBBS, MD who applied for grant of Short Service Commission in the Army Medical Corps. She was medically fit and free from contagious disease but was seven months pregnant with no complications. Pregnancy was considered as deterioration of health (unfit to work) and her employment was cancelled.
In Air India vs Nergesh Meerza & Ors  the regulation of Act had a provision that an Air hostess would retire from service on first pregnancy. The court held it as “grossly unethical” as the service of air hostess was availed for 4 years and the act of terminating her if she becomes pregnant compels her not to have children. Court further held that “pregnancy is not a disability” The condition was considered as arbitrary and violates Article 14.
Section 12 of Maternity Benefit Act, 1961 states that ‘an employer cannot dismiss or discharge or give notice of dismissing due to absence during pregnancy except where the dismissal is due to ‘gross misconduct’ by employee’. Despite such clear provision in the Act, the women workers are dismissed during pregnancy violating section 12 of the Act.
In K. Chandrika vs Indian Red Cross Society And Another the petitioner was appointed in Indian Red Cross as a lower division clerk. The appointment letter had stated that the post is temporary and the service is terminable without notice and without specifying a reason. Service of the petitioner was terminated when she was on maternity leave. It was held that even if an employee is provided with maternity benefits, is does not take away the right to be reinstated.
In urban areas the Information Technology giant’s layoff pregnant women from service. Another company ‘Verizon’ dismissed 3 months pregnant lady despite her plea that it would affect her financially. Women are forced to resign if they ask for leave during the maternity period. It has become a deal in the corporate world. The Act puts the entire burden of the payment of Maternity Benefit upon the employer.
The 2017 amendment to the Act has been celebrated as it increased duration of paid leave to 26 weeks and not more than 8 weeks before delivery. It is possible for a large enterprise to provide benefits to women employee but small enterprises will find it difficult to pay benefits. There is an indirect cost on the employer to get work of absent employee done by employing other employees. Appointing other employees to work adds to the cost. The additional benefit that the employer is supposed to provide is a crèche facility. The crèche facility will have to be provided where there are 50 employees, which includes both male and female and the pregnant women would be lesser in it. The Small Medium Enterprise (SME) will have to bear a huge cost. This causes unintentional tendency of employers either not to employ women or to evade the payment of maternity benefit.
Maternity Benefit Act, 1961 is godsent for the working women in the sense that they don’t have job insecurity during their maternity period. But there are certain inadequacies of the Act which needs to be looked upon. Firstly, there is a need to make provisions for providing paternity leave and follow a more egalitarian approach. It will relieve women from being solely responsible for taking care of the child as children are a shared responsibility of parents.
Secondly, the cost of maternity protection should be borne by different agencies through social insurance scheme or general taxation. The government should bear the portion of the payment of benefit and reimburse it to the companies after they provide the benefits to the employee.