The Maternity Benefits Act 1961(ACT NO. 53 OF 1961) was enacted in the Parliament in the twelfth year of the Republic of India. The recent amendment passed in the Ministry of Labour and Employment, by Rajya Sabha, the Maternity Benefit (Amendment) Bill, 2016, came as a welcome change to the previous Act that, among others, provided only 12 weeks leave for maternity. However, in order to fully understand the implications of the new amendment, it is necessary to look at the salient features of the original bill, first.
Maternity Benefit Act 1961: Quick Overview
- Coverage of workers: The Act included not only women in private and corporate establishments, but also mine and factory workers; thus (ideally) catering to both privileged and underprivileged women
- Amount: The wage payable to the women in question was the rate of the average daily wage for the period of her absence
- Time period: The time allowed for leave was 12 weeks, i.e. 3 months
- Restriction: There was no restriction on the type of work that a woman did
- Employability: The employer cannot employ a woman in the 6 weeks before her delivery
- Dismissal: The employer cannot dismiss a woman from work when she is on maternity leave
- Work conditions: The employer cannot force a woman in maternity to work under arduous conditions which may cause harm to her health
- Illness arising from maternity: The Act also covers leave for when there occurs an illness due to maternity
- Penalty: An employer who does not follow the conditions of the Act is liable to be penalized under the same.
The Maternity Benefit (Amendment) Bill, 2016 introduced five main changes
- Time period: The amendment changed the original 12 weeks leave to 26 weeks, which is an extra 14 weeks; and almost 4 months; which makes the original 3 months to now 6 months and 2 weeks.
- Surrogacy: If a woman chooses to have a baby through surrogacy, then her leave of absence is covered as well, in the new amendment. However, her leave is limited to 12 weeks.
- Adoption: If a woman is to adopt a child less than 3 months old, her leave of absence is also covered in the new amendment; albeit, as with surrogacy, this leave too is limited to 12 weeks.
- Work from home option: Under the new amendment, a woman is to be allowed a work from home option by her employers as well.
- Crèche facility: Any organization employing more than 50 employees should now compulsorily have a crèche facility; and mothers should be allowed to visit their children.
Although exhibiting a remarkable sense of practicality, thanks to its leave from draconian ideas around the lines of the taboos against surrogacy and adoption, as well as a level of understanding that three months is simply not enough; the amendment does have its issues. For one, there is no mention of paternity leave, and for that matter; there exists no law in India which brings about regulations for the necessity of paternity leave. This again, puts the entire brunt of the child’s growth on the mother, as she is the one required to take leave in order to take care of the child. Again we are down to a system where thanks to the gendering of most forms of work, the father is seen as not requiring leave for paternity. Maneka Gandhi’s recent comment on the need for paternity leave itself, exhibits a surprising lack of sensitivity on the issue that men too need to bear responsibility of children, and not just be the bread-winners, in a sense.
In Sweden, almost 90% of fathers make use of paternity leave, and was also one of the first countries to ensure the same. Although at first fathers did not make use of this, slowly as policies changed and awareness increased, a complete overhaul occurred and paternity leave is now made of full use. Norway, Iceland and Sweden give 3 months’ pay as paternity leave. However, there should also be an effort to increase awareness, along with the policy provisions. There are countries like Japan whose policies include paternity leave, but the lack of awareness ensures that barely any men make use of the leave. A bill introduced for paternity leave will furthermore increase this awareness; especially because Indian citizens, living in a mostly patriarchal society, need to unlearn ideas of gender-specific roles.
Another problem is the reduced leave for adoption and surrogacy. While this, and the lack of paternity leave, may be attributed to the need for breast-feeding, it is important to note that the latter is not the only reason for which a woman requires leave during and after pregnancy. It is understandable that a woman’s body goes through changes during pregnancy and it is different from adoption; however the responsibilities that come with raising a child in their first few months are the same. Furthermore, the surrogacy and adoption process itself is a long one, and requires attention. Most countries with good and well-used maternity and paternity leave also stipulate that the same amount of leave is given in the case of adoption, which unfortunately is not the case in India.
Larger questions of reaching the benefits of labor legislation to the informal and unorganized sectors needs to be examined. Underprivileged population cannot afford to adopt, have a surrogate baby, or work in an organization which will eventually install, or already has, a crèche facility. Although the leave itself, from the original Act, covers workers from the informal and unskilled sectors; the amendment needs to bring the marginalized into the mainstream.
Finally, one of the most important aspects India needs to look at to improve its economic and GDP growth is the development of entrepreneurship. A start-up company, while employing women workers, may not have 50 or more employees or the resources to provide a crèche facility. It will be difficult for a woman to engage with or in entrepreneurial start-ups, as with the marriage age ratio in India; if she is married and has a child, and takes maternity leave but cannot afford home care or a crèche, she will end up quitting the job. In fact, this cycle occurs even with women working in non-entrepreneurial areas. In this case, there exists a cycle of women working for a while, giving birth, and then quitting their jobs; while men continue to work, thanks to the lack of paternity leave, as well as the fact that a man is ideally more employable than a woman because he does not need to be given paid leave. In this situation, rather than make a crèche facility compulsory only if there are 50 or more employees, a better solution would be for the company to compulsorily ensure that there exist nearby crèche facilities, and compulsory crèche facility if there are 50 or more employees. This would ensure that in any workspace, a crèche is available in the area or nearby, so the reason for even introducing the crèche- related amendment is truly fulfilled.
In certain countries in Europe, the policy changes and the awareness levels have turned in such a way that there is almost full use of maternity leave, a large number of women labour population as well as more than a year off work! It should be understood that a mere amendment cannot change the entire system; along with the amendment should come appropriate awareness, and changes in mind-set. Thus we understand that although the Act has been amended with good intentions, and will definitely benefit many women even further; it is more of a bird’s eye view of something that should be scrutinized with a microscope.