History bears testimony to the fact that maternity has been viewed as a disability. Since the times of the Industrial Revolution, pregnant women have been treated as a liability. Employers have expressed no qualms with regards to dismissing pregnant women from service without granting them pay for the maternity period.
Most countries have taken time to acknowledge and internalize the concept of women’s rights. While the Indian Constitution does embody the French idea of equality through Part III, this legal acceptance has not translated into reality. The intention of the legislators can be inferred from the fact that under the Indian Factories Act, the term ‘workman’ has only been defined. For that matter, the General Clauses Act also solely employed the term ‘man’ and subsequently generalized it to include females.
The Maternity Benefit Act is one of the first legislations that were enacted exclusively to secure the interests and rights of women. Enacted in 1961, it permits women to avail of 12 weeks (either before or after the date of delivery) of maternity benefit and the average pay for the period of absence. Before the amendment of 1989, the woman was entitled to maternity benefit only after the delivery. However, after the 1989 amendment, , the woman employee can claim maternity benefit ,under Section 5, for a period not exceeding six weeks preceding the date of delivery. The Act also entitles women who’ve had miscarriages to 6 weeks leave with average pay. It provides medical bonuses ranging from Rs. 1000 to Rs 10,000, subsequent to the 2008 amendment.
The Maternity Benefits Act applies to establishments and factories other than those covered under the Employees’ State Insurance Act. Women who have served the establishment for a minimum period of 80 days in 12 months preceding the date of delivery are eligible for the benefits under the Act. Interestingly, the first Maternity Act was passed by the Bombay Legislature way back in 1929 based on the Recommendations of the Royal Commission on Labor in India. This reflects the growing pressure on the Central Government to create a protective regime for women workers ((Shashi Bala, Implementation of the Maternity Benefit Act, V.V.Giri National Labor Institute, 2012)).
As per the Act, no employer can dismiss or discharge a woman from services during the maternity benefit or give a notice to that effect. For failure to pay maternity benefit or dismissal and discharge of a woman as under the provisions of the Act), the employer is liable to imprisonment up to one year and Rs.5000.
Constitutionally, Article 15 (3) permits the government to indulge in ‘protective discrimination’ and enact legislations to compensate for the subsistence lost by women due to their disadvantaged physical structure. Article 42, of the Directive Principles of State Policy requires that the State shall make provisions to ensure humane work conditions and provide maternity relief. This Article lays down the standard of legal efficacy that any service rule made by establishments should be judged by ((Judicial View on Shortage of Attendance,http://legalperspectives.blogspot.in/2010/09/judicial-view-on-shortage-of-attendence.html,09/08/2014)). The right to health and safe working environment that is available to pregnant women is enshrined in the umbrella Article 21 also.
The International Labor Conference, in its first conference in 1919, adopted the Convention on Maternity Protection and the Convention concerning the employment of women before and after childbirth (Convention 3). The first convention stated that no woman shall be permitted to work in any industrial or commercial undertaking for a period of six weeks after delivery and will be entitled to maintenance benefits for herself and her child. This Convention was revised in 1952 to allow women to be absent from work for a period for six weeks preceding her confinement. The maintenance amount was to be determined by the competent authority in each country ((W.B Creightan, Working Women and Law, London: Mansell (1979).)).
The issue of termination of services of pregnant women was considered by the Court in the case of Air India v Nargesh Mirza ((AIR 1981 SC 1829)). In this case, under the Air India Corporation Act, an air hostess was to retire upon (i) attaining 35 years of age; (ii) Upon marriage within four years of service; (iii) on her first pregnancy.
The Court undertook an adjudication of the constitutionality of each of the three conditions with respect to Articles 14, 15 and 16. The age limit prescribed was subject to the discretion of the Managing Director who could retain some air hostesses up to the age of 45. The Court held that this unfettered authority vested in the Managing Director contravened the Wednesbury principles and were founded on arbitrariness. The Court went on to hold that terminating the services of a woman employee upon pregnancy was a curtailment of her individual choice to have children and both of these conditions were struck down as unconstitutional. However, it maintained the fine distinction in the subject-matter of Articles 15 and 16 and enunciated that the said provisions prohibited discrimination solely on grounds of gender excluding all other considerations.
The right to employment of pregnant women was discussed in the celebrated case of NeenaMathur v Life Insurance of Corporation ((AIR 1992 SC 392)). The petitioner, Ms. Mathur was put on probation for six months subject to a satisfactory work performance report. However, she was dismissed from service during her probation period when she applied for maternity leave. The Supreme Court directed LIC to reinstate her. The Court also discovered that the application form required women to divulge details of their menstrual cycles and past pregnancies. The Court held such conduct to be violative of the right to privacy (Article 21) and ordered LIC to delete such questions from future questionnaires.
The provisions of the Maternity Benefit Act were questioned before the Courts in the case of Municipal Corporation of Delhi v Female workers ((AIR 2000 SC 1274)). In this case, the Union of Female workers claimed that they should be treated as regular workers under the Maternity Benefits Act despite the fact they had been employed under Muster roll and were temporary workers. The Court held that their claims were constitutionally sound and in consonance with Articles 39 and 42 of theConstitution.
The Act, nevertheless, is is not free of flaws. It re-enforces the parochial notions of burdening the woman with the responsibility of nurturing the child. Furthermore, the prescribed maternity leave is not sufficient for the woman to recuperate after the delivery and does not take post-natal risks into account. During the 44th Indian Labor Conference in 2012, it was proposed that the period of maternity leave should be increased to 24 weeks from 12 weeks. However, the Minister for Labor and Employment put these doubts to rest stating there the government had no plans of amending the existing provisions of the Act ((Available at http://loksabha.nic.in/)).
It needs to be noted that the Indian social milieu is gradually becoming more progressive. It has come to accept the fact that maternity benefits are a form of social security that guarantees remuneration for women despite the fact that their productivity might decrease and they may be absent from work during the child bearing process. Such legislations embody the State’s commitment to provide a gender-friendly and accommodative work environment for women employees.