Maternity Benefits refer to the distinct protection granted to women during the time of their pregnancy and maternity. Such protection ensures that women are not deprived of their jobs, rather, they are entitled to certain monetary and non-monetary benefits. The rationale behind providing these benefits is that women are particularly vulnerable (physically as well as mentally) during their pregnancy. Hence, instead of forcing them to work in such critical situations, they should be given sufficient time to recover and take care of the newborn’s health. Accordingly, these benefits play a vital role in allowing women to take up jobs without the fear of being fired. Thereby, promoting and supporting women empowerment.
Being a beneficial provision, maternity benefits must be available to all women unconditionally. Such benefits must not be qualified by the nature of the work, the sector of employment, or any other factor. In this light, it is pertinent to analyse the laws governing maternity benefits in India. This article argues that despite having a legal framework, these benefits are not available to a majority of women workers in India. The reason being that the Indian demographics are characterised by a huge population coupled with a large informal sector. Furthermore, it argues that the Social Security Code, 2020 (“SSC”) can be considered as a missed opportunity as it has not been able to overcome the lacunas of the erstwhile regime.
Legal Framework Governing Maternity Benefits
Prior to the enactment of the SSC, the legal framework governing maternity benefits in India was at the intersection of various laws viz. The Maternity Benefits Act 1961 (“MBA”), the Employees State Insurance Act 1948 (“ESIA”), and the Guidelines under the MGNREGA Act, 2012. These legislations primarily aimed to increase the participation of women workers by providing certain incentives.
Considering the applicability of the MBA, the women workers must be employed in an establishment (Section 2), and they must be working for the employer for at least 165 days in the 12 months that immediately precede the expected delivery date (Section 5(2)). In essence, if these conditions were not fulfilled, then a worker would not be eligible for availing maternity benefits. To reduce the plight of women workers by ensuring better working conditions, the MBA was amended in 2017. This amendment led to the following changes: firstly, the duration of maternity leave was increased from 12 weeks to 26 weeks; secondly, it provided for a maternity leave of 12 weeks for commissioning mothers or those who adopt a child; thirdly, it provided for a work from home facility after 26 weeks of maternity leave; fourthly, it made it mandatory for establishments employing 50 persons or more to have a creche, which the women workers can visit four times a day; and lastly, it provided that at the time of employment, the women workers must be informed about the benefits under the MBA.
Although the introduction of the amendment was a positive step for the women workers, it only catered to the women employed in organised sectors. In essence, its applicability did not extend to the informal women workers, who constitute a majority (approximately 95%) of the women workforce. This is because the MBA applies only to women workers employed in establishments. From a practical perspective, women workers are majorly employed in various activities in the informal sectors viz. agriculture, home work, and so on. Accordingly, such employment does not categorise as having been employed in an establishment. Moreover, the fact that such women workers are employed by a layer of intermediaries further distorts the employer-employee relationships. Thereby, leaving these women workers without maternity benefits.
Similar to the MBA, the ESIA also catered only to the women workers employed in organised sectors (factories or other establishments). Thus, excluding women employed in the informal sectors. Furthermore, even the maternity benefits under various schemes introduced by the Governments were not in the form of enforceable labour rights, rather they were merely in the form of a budgetary allocation under the National Food Security Act, 2013 and hence, ineffective.
Additionally, certain government schemes like the Pradhan Mantri Matru Vandana Yojana, the Janani Suraksha Yojana, the Indira Gandhi Matritva Sahyog Yojana, etc. provide monetary benefits to women. However, such benefits are not unconditional; institutional delivery, immunisation, and antenatal checkups act as pre-conditions. Apart from these pre-conditions coupled with administrative hiccups, the quantum of monetary benefits is very low (approximately equal to one month’s salary). Moreover, the benefits are restricted only to the first birth.
In essence, to be eligible for availing maternity benefits, women workers should have been permanent employees and full time workers that having an identifiable place of work. Otherwise, the erstwhile labour laws would not have been applicable to them. Thereby, precluding them from availing maternity benefits.
Limitations under the Social Security Code, 2020
The SSC was deemed to be an opportunity to fill the lacunas in the erstwhile labour law regime by improving the position of women workers. However, in contrast, the SSC has merely subsumed the various erstwhile laws by bringing all laws relating to social security within its ambit, without considering the specific legal issues and difficulties. Considering maternity benefits, the SSC addresses them in the following ways:
Firstly, certain provisions are identical to the 2017 Amendment of the MBA viz. a 26 week maternity leave for women working in establishments. Thereby, merely aping the substantive provisions and not remedying the problems arising out of classifying establishments.
Secondly, the SSC introduces different categories of workers viz. unorganised worker, gig worker, platform worker, and so on depending upon their economic and social status. This essentially leads to a problem in categorising workers under a particular category. This is because the category of an unorganised worker represents a larger subset and includes gig workers or platform workers within it. Thereby, creating confusion concerning the categories due to an overlap in the definitions, especially due to the multifarious nature of work in India.
Thirdly, the SSC provides that maternity benefits w.r.t. unorganised workers would be provided under welfare schemes to be introduced by the Central Government. However, as regards maternity benefits w.r.t. gig or platform workers, the SSC provides that the welfare schemes would be introduced by State Governments. This again leads to a complex situation as it may be difficult to categorise workers under one particular category. Moreover, in India, the majority of informal workers have a tendency to migrate frequently, which means that they work in different states. Thereby, leading to confusion regarding the applicability of schemes introduced by the State governments. Notably, the SSC does not provide for any inter-state arrangements or methods of cooperation in this regard.
Fourthly, the SSC provides that the women workers would have to register themselves with the Central Government through their Aadhar cards. This position is contradictory to the erstwhile regime, which warranted that workers had to register with respective State Governments. This would again lead to procedural difficulties and conflicts with existing schemes.
Fifthly, the SSC provides that the workers must register for contributory social security entitlements. Furthermore, if any worker does not earn the minimum wages, then the contribution would be made by the State. However, the SSC does not provide for the entitlements that are guaranteed to informal workers once they make a contribution.
Conclusion
In conclusion, instead of simplifying the social security regime in India, the SSC has created a complex framework characterised by multiple authorities, which leads to unnecessary complications and difficulties in availing benefits. This puts the women workers engaged in informal sectors in a precarious position. The reason being that they will not be able to avail maternity benefits. Moreover, due to the abundance of labour in India, they would not be able to retain their jobs. This could not have been the intention of the legislature while enacting a beneficial legislation such as the SSC.
On the contrary, such a situation adversely affects the growth and social security objectives of a democracy like India. Hence, the need of the hour is to ensure that such benefits are available and accessible to all women workers without any reservations and procedural hindrances. Furthermore, an effort must be made to supervise and monitor as to how many women are able to effectively exercise their right to maternity benefits.
Rakshit Assudani, a 5th year law student at O.P. Jindal Global University.
Picture Credits: Economic Times.
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