Women form a major part of our current workforce, and the need to balance work and child bearing responsibilities is more than ever. The Constitution promotes equality for women in all areas of life. The Maternity Benefit Act, aligned with International Labour Organization standards, provides maternity protection to support this goal. The 1961 Act, updated in 2017, helps women stay active in the workforce after childbirth. It ensures job security during pregnancy, protecting women’s health, productivity, and economic contribution.
Scope and need for the legislation: National and International perspective
The fundamental aim of the act is remove the impediments that women encounter when they entail on the journey of motherhood. The primary aim of the act is to regulate the employment of women in certain establishments during pregnancy and childbirth, providing maternity benefits and other related advantages, ensuring job security and supporting women's health and well-being. Germany was one of the first nations to lead the race by introducing maternity allowance by the end of the 19th century. ILO followed the footsteps and introduced the Maternity Protection Convention.
The historical development of maternity benefit legislation in India can be seen below:
Year | Event |
1920 | Women’s Association India demanded maternity rights in Jamshedpur steel industry |
1929 | N.M. Joshi introduced the Maternity Benefit Bill (No. 31 of 1924) in the Central Legislature. |
1941 | Mines Maternity Benefit Act introduced. |
1948 | Employees’ State Insurance Act enacted, providing maternity benefits. |
1951 | The Plantations Labour Act included provisions for maternity benefits. |
1961 | Maternity Benefit Act enacted, consolidating earlier efforts. |
The act was enacted by the Parliament with the sole objective to regulate the employment of women before and after child-birth. The reasons that compelled the codification could be seen in the discrepancies with respect to the different periods of maternity leave as well as qualifying period of service of eligibility for maternity benefit.
International Scenario
Country | Benefit |
UK | 52 weeks of maternity leave with 6 weeks paid at 90% of the average weekly earnings |
Australia | 52 weeks of paid maternity leave |
South Africa | 17 weeks paid with 60 percent of the wages which is shared by the employer, employee and the government. |
Singapore | 16 weeks of full payment that is shared by the employer and the government via public funds. |
Views of the National Commission
First Labour Commission
The First Labour Commission of 1969 laid down the basic labour safety and security code and also elaborated the need to have welfare provisions for the working class. There was a proposal to reduce the requirement of having at least 50 women workers for setting up a crèche. Employers were also encouraged to support family planning and work with the government to improve employee welfare. Additionally, a central fund was suggested to help implement the goals of the Maternity Benefit Act, 1961.
Second Labour Commission
The Second Labour Commission, constituted in the year 2002, called for a broad classification of labour laws, and emphasised on the need of greater social security for the workers, including those in the unorganised sector. It also delineated from the notion of ‘workman’ to ‘worker’ acknowledging female workforce. The report stressed banning unfair dismissal and highlighted the need for crèche facilities to ensure the safety of women and their children.
2017 Amendment
The 2017 Amendment was brought in after 259th Law Commission Report which stated as follows:
“The Maternity Benefit Act be amended in accordance with the forward looking provisions in the CCS Rules, whereby maternity benefits should be increased from twelve weeks to 180 days. Provision of maternity benefits should be made obligatory on the State and not left to the will of the employers and should cover all women, including women working in the unorganized sector. It is suggested that the government formulates policy or guidelines laying down minimum specifications of paid maternity leave to women employed in the private sector.”
The Amendment Bill was introduced in the Rajya Sabha by the Minister for Labour and Employment, Mr. Bandaru Dattatreya. The Bill was introduced after the 44th Session of the Indian Labour Conference (ILC) recommended enhancement of maternity leave period, which was reiterated in the 45th and 46th Session. This was coupled with the suggestions of the Ministry of Women and Child Development that aimed at improving the ambit of maternity benefits to women. As per World Health Organization Recommendations, there was a need to increase the duration of Maternity Leave in order to protect maternal and child health. Especially since a child needs to be breastfed for the first 24 months in order to improve the survival rate. Through this Amendment Act, following provisions have been added to the Maternity Benefit Act, 1961:-
Increase in the maternity leave from existing 12 to 26 weeks for working women with less than two surviving children.
Provisions for work from home for nursing mothers.
Mandatory provisions for establishments having fifty or more employees to have the facility of creche.
Extension of twelve weeks of maternity benefit to the 'commissioning mother' and the 'adopting mother' from the date the child is handed over.
Analysis of important provisions of the legislation
(i) Duration of maternity leave [S. 5(3)]
All pregnant women are eligible for 26 weeks of maternity leave for the first and second child, out of which they can take a maximum of 8 weeks’ leave before their expected delivery date.
For the third and subsequent child, mothers are eligible for 12 weeks of maternity leave.
A woman can take 6 weeks maternity leave in the case of miscarriage or medical termination of pregnancy.
(ii) Maternity leave for adoptive and commissioning mothers: [S.5(4)]
Adopting or commissioning mothers can take up to 12 weeks of maternity leave starting from the day a child below 3 months is handed over to the mother.
A commissioning mother is defined as a biological mother who uses her egg to create an embryo implanted in another woman.
(iii) Option to work from home: [S.5 (5)]
The Amendment brings in a novel provision that permits women to work from home, depending upon the nature of the work that is to be carried out by her. By a mutual agreement, the work can be decided upon by the employer and the employee. This option does not get exhausted after delivery but can continue even post-delivery for a period mutually decided by the employer and the woman.
(iv) Crèche Facilities: [S.11A-(1)]
(v) Informing women employees of the right to maternity leave: [S.11-A (2)]
The provision calls for spreading awareness amongst women employees at the time of their employment vis-à-vis maternity benefits available to her.
Every establishment shall intimate in writing and electronically to every woman at the time of her initial appointment.
(vi) Leave for Miscarriage [S.9]
(vii) Leave with wages for tubectomy operation [S.9-A]
(viii) Prohibition of Dismissal during absence or pregnancy [S.12]
An employer cannot dismiss, discharge, or alter service conditions to a woman's disadvantage while she is on maternity leave under the Act. If the employer has dismissed or discharged the employee, he will have to pay her maternity benefit or bonus as specified in the Act unless the dismissal is due to prescribed gross misconduct, in which case the employer must issue a written order.
A woman can appeal such deprivation or dismissal within 60 days, and the authority's decision will be final.
Further, a woman entitled to maternity benefits cannot have her daily wages reduced solely because she was assigned lighter duties during pregnancy or took nursing breaks as permitted under the Act.
(ix) Appointment of inspectors [S.14]
For administration and enforcement of the Act, the government has appointed Inspectors.
According to S.16, these Inspectors shall be Public Servants as defined in S.21 of the Indian Penal Code.
(x) Power of Inspector to direct payments to be made [S.17]
An Inspector can make an enquiry on his own or by complaint given by the aggrieved employee.
If after investigation the complaint is found to be correct then the Inspector can direct the employer to pay the employee.
If the employee is not satisfied with the decision of the Inspector then an appeal can be made to the prescribed authority.
(xi) Penalty for contravention of Act by employer [S.21]
Employers who unlawfully terminate or deny maternity benefits to women employees may face severe penalties under Sections 21 and 22 of the Act:
For Failure to Pay Maternity Benefits or Unlawful Dismissal:
Imprisonment: Minimum 3 months, up to 1 year.
Fine: Between ₹2,000 and ₹5,000.
The aforementioned provisions are an exhibit of a progressive approach of the legislature regarding women rights and the need to provide women equal opportunity and space for growth.
Suggestions/Recommendations
The 2017 amendment has been a great step to acclimatize to the changing global conditions pertaining to this particular issue. Even then there are certain shortcomings that can be seen in Indian jurisprudence. The pressing issues that need to be addressed through this legislation are suggested as follows:
Making the provisions gender neutral
In today’s world where gender equality is in the forefront of every aspect, it is essential that India’s legislative provisions address these issues. Although the amendment of 2017 has addressed key important issues, it has failed to take into consideration the importance of gender neutrality. The act has focused on the fact that a child needs its mother during the formative years but has not taken into consideration the need of a father during this time. Hence it is of utmost importance that the act should take into consideration Paternity Benefits and Leave as well.
Dividing the payment of maternity benefits
In India the employer has to pay maternity benefit to the employee. After the amendment the duration of leave has changed from 12 weeks to 26 weeks, which has increased the burden on the employer significantly. This could lead to discouragement from hiring women employees. In Singapore, a 16 week leave is given but the payment of benefits is divided equally between the employer and the state via public funds. India should also implement a similar policy so that the employer does not get discouraged from hiring women employees.
Conclusion
The Maternity Benefit Act has several positive features for working women. However, it overlooks some key issues. While it aligns with international standards and follows recommendations from the 259th Law Commission and the 2nd Labour Commission, it misses important points seen in other countries. For example, in Singapore, the government helps employers share the cost of maternity benefits. In India, placing the full burden on employers may discourage them from hiring women. The amendment also lacks future-ready measures like paternity benefits, even though it allows work-from-home options.
Disclaimer
The information provided herein is intended solely for general knowledge and informational purposes. It does not constitute legal advice or a substitute for professional consultation. While efforts have been made to ensure the accuracy of the content, users are advised to refer to the original Acts, rules, notifications, or consult with a qualified legal professional for interpretation or application. This content should not be relied upon for any legal or financial decisions.