Open Access Research Article
LEGISLATIVE ANALYSIS OF THE MATERNITY BENEFIT ACT, 1961 (By: Sanya Kanchan Gupta)
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Article Details
Legislative Analysis of
THE MATERNITY BENEFIT ACT,
1961
Authored By: Sanya Kanchan Gupta
Division: A
Course: BBA LL.B. (H)
Batch: 2020-2025
College- Symbiosis Law School, Pune
The Maternity Benefit Act, 1961[1]
Abstract
This act was introduced for
the working women population so that they are able to get paid maternity leave
during their pregnancy so that they don’t face financial crisis and are able to
take proper care of the child and their own selves. The women employee who have
been employed directly or indirectly by any contractor and has worked for
atleast 80 days in the time frame of 12 months immediately preceding the date
of her expected date of delivery. The restrictions under it includes that no
pregnant woman should be engaged in activities which require hard labour or
long-standing hours. The job should not lead to stressful conditions which
might interfere with the pregnancy of the woman. No employer should employ
women during the period of six weeks from the day of her delivery or medical
termination of the pregnancy.
Background
Ø
Bombay Maternity Benefit Bill, 1929
The first legislation ‘Bombay
Maternity Benefit Bill, 1929’ was introduced after the study conducted
on infant mortality rate and the women health by Lady Doctor Banes who
was appointed by the British Government. Several other legislations like
Mines Maternity Benefit Act (1941), Working Journalists (Conditions of
service), Plantations Labour Act (1951) and other similar legislations were
brought by the government before the introduction of ‘The Maternity Benefit
Act, 1961’.
Ø
International Labour Organisation (ILO) Maternity Protection
Convention, 1952
It was introduced to
classify the maternity benefit, protection and leave for the pregnant women. It
was in regards to the adoption of certain set standards and proposals regarding
the health and safety of the mother. In 2000, it was revised and the minimum
condition of maternity leave was increased from 12 weeks to 14 weeks along with
several other benefits.
Ø
The Maternity Benefit Act, 1961
The act was introduced in
accordance with the Article-42 of the Indian Constitution which
mentioned about ‘a humane working condition for the pregnant women’ and the
previous constitutional legislations.
Ø
Rights enshrined under the Constitution
v Article 15 (3)- It mentions about the powers
of the State under which they can make provisions for protecting the interests
of the women so that the strength of the race is promoted as well as preserved.
v Article 21- It specifies right to life
and liberty which includes protection of employment so that she is able to live
with dignity.
v Article 42- It talks about ‘just and
humane’ conditions of working for women which includes maternity benefits.
v Article 46- It mentions about the
improvement of conditions of working women and granting enhanced employment
opportunities.
Timeline of Amendments over
the years
·
In 1972, Section 5a was introduced which stated that
when the Employee State Insurance Act, 1948 was applied the Maternity Benefit
Act would continue until they become eligible to claim the benefit.
·
In 1973, the circus industry was included in its
ambit, where the Section 1(IIIA) was substituted.
·
In 1976, Section- 5b was inserted which talked about
the receipt of wages and the ambit of the act was increased to the women
working in various establishments under the ESI Act or other factories.
·
In 1988, it started including shops and working places
which employed 10 or more than 10 workers.
·
In 1995, it included leave for six weeks along with
wages in case of the medical termination of the pregnancy and also ‘leave’ for
a month in case illness arose due to medical termination or tubectomy
operation.
·
In 2008, it entitled the woman to receive Rs 2500 as a
medical bonus.
·
In 2011, the medical bonus was increased to Rs 3500.
·
In 2017, several major changes were brought into place
in accordance with the International Labour Organization’s (ILO) Maternity
Protection Recommendation, 2000.
Ø Other Maternity Schemes
1. The Indira Gandhi Matritva
Sahyog Yojna (IGMSY)
The aim of this scheme is to
uplift the health and nutrition status of infants, pregnant and lactating
women. It aims at improving the overall health so that the infant mortality
rate in India gets reduced by implementing safe methods. It supports breast
feeding and encourages to adopt safe and careful delivery practices.
2. Rajiv Gandhi National creche
Scheme for the Children of Working Mothers
It provides for setting up
of creche for working mothers so that they are able to continue their work
post-delivery. The creche takes care of the child till the mother works. It is
implemented by Indian Council for Child Welfare, Central social Welfare board
and Bhartiya Adim Jati Sevak Sangh.
Amendment
Of 2017
1- It increased the maternity leave
from 12 weeks to 26 weeks.
2- Commissioning mother and a
woman who becomes mother by adopting a child below the age of three years would
be provided a leave of twelve weeks from the date the child is handed to the
adopting or commissioning mother.
3- In accordance to the
Section-11 of the Maternity Benefit Act, it is mandatory to establish a
‘creche’ where there are fifty or more than fifty employees.
4- There is a provision to
allow for an interval for rest and allow atleast four visits to the creche.
5- The employer is liable to
inform the female employees regarding the benefits under Maternity Benefit Act
and also provide medical assistance at the time of pregnancy in case they do
not cover health facilities.
Analysis
The motherhood is one of the
most crucial phases of a woman’s life. It comes with a lot of changes in her
own body and then even post the birth of the baby there comes an issue of
taking proper care of the baby and the mother, especially when there was a
drastic change in the number of women who started working. This act was
introduced for the working mothers to upheld the dignity of motherhood as there
were incidents being reported where they were not able to get sufficient leave
during pregnancy, or even if they got leave, they used to become financially
unstable due to unpaid leave or else they were terminated from the job. The
problem related to it was first solved through the ‘Bombay Maternity Benefit
Bill, 1929’ which was introduced in the textile hub of India (Bombay) where
the female working population was more, this legislation was introduced after
various studies by the Britishers where they found lack of proper care,
nursing, poor sanitation, unhygienic environment and a huge number of women
leaving the jobs post maternity. This legislation played a key role in the
formulation of other legislations related to women and even helped to draft the
Maternity Benefit Act, 1961.
BENEFITS-
a) Leave with average pay for
six weeks before or after the delivery.
b) Medical bonus incase, free
medical care is not provided by the employer.
c) Pregnant Women who are
terminated or dismissed can still claim maternity benefits.
d) In case the woman wants, she
is entitled to light work for 10 weeks before the date of expected delivery.
e) The woman is entitled to two
nursing breaks until the child turns 15 months old.
In case of medical
termination of the pregnancy, there is a provision of six weeks leave with
average pay from the date of miscarriage.
Judicial
Response-
·
Municipal Corporation of Delhi v. Female Workers[2]
In this case the court held
on the basis of Article 39 and Article 42 of the Indian Constitution that at
the time of pregnancy in an advanced stage cannot be forced to take up extreme
labour and she would be granted leave during delivery.
·
Air India v. Nergesh Meerza[3]
In this case the court held
that if a woman is compelled to terminate from her job then it would be
amounting to forbid her from getting pregnant which is ‘grossly unethical’ and
‘unreasonable’ for a natural outcome like pregnancy.
·
Shah v. Presiding Officer and ors[4]
The court in this case the
court held that the maternity act aimed to provide for the energy lost and to
help the woman and child to be in good health and in a better condition.
·
Chandrika v. Red Cross Society[5]
The pregnant woman was
terminated wrongfully and the maternity benefits were also not given to her.
The court held that the job and the maternity benefits should be reinstated as
the employer had no valid grounds to do the same.
Point Of
Contentions
·
The amendments which have been brought earlier (except the
amendment of 2017) did not clearly mention whether they will be applied to the
women who were under maternity leave at that time.
·
It also did not provide provisions regarding ‘work from home’
for pregnant women who would wish to continue from the ease of their homes and
left it to the discretion of the employer and the employee.
·
It also did not specify the work through statutes, which are
prohibited for pregnant women, and left the decision on the woman to undertake
a particular task in the workplace or not. The problem is that the woman would
be deciding under influence of the employer.
·
The government is not providing assistance for the creche and
other facilities and so the burden falls entirely on the employers who would
try to employ less women so that their expenditure cost does not increase due
to paid leave, creche facilities etc. It would lead to be detrimental for the
employment opportunities of women.
Conclusion
Hence, the Maternity Benefit
Act, 1961 was a key legislation that helped to increase the number of working
mothers in the workplace by protecting their employment at the time of
maternity. It not only protects their health interest but also made provisions
for paid leave and medical assistance so that they do not suffer from financial
stress and are able to take proper care of themselves and their child. The
amendments which have been brought over time are praiseworthy as they have
enhanced the effectiveness of the act over time. The amendment of 2017 was
really crucial as it added various important aspects related to the
International Labour Organization’s (ILO) Maternity Protection Recommendation,
2000. It also introduced provisions like creche facilities and an increase in
maternity leave. There are few improvements needed in regards to the ‘work from
home’ and specification of the prohibited activities which cannot be undertaken
by the pregnant woman in the workplace.
References-
1. Chief Labour Commissioner
(Central). 2022. [online] Available at:
[Accessed 28
June 2022].
2. Blog | Risk Management |
Governance | HR | Compliance. 2022. The Maternity Benefit Act, 1961 -
Overview. [online] Available at:
3. Indiacode.nic.in.
2022. Maternity Benefit Act, 1961. [online] Available at:
[Accessed 27 June 2022].
4. Pib.gov.in. 2022. Amendments
to the Maternity Benefit Act, 1961. [online] Available at:
[Accessed 28
June 2022].
5. Wb.gov.in. 2022. [online]
Available at:
[Accessed 27 June 2022].
Article Information
LEGISLATIVE ANALYSIS OF THE MATERNITY BENEFIT ACT, 1961 (By: Sanya Kanchan Gupta)
Authors: Sanya Kanchan Gupta
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/09/07
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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