Author: Hunar Student, Rajiv Gandhi National University of Law, Punjab
In times as today, women and men stand at par and women constitute a significant part of the workforce of the country. However, it is also crucial to note the low rates of female participation in the workforce due to various reasons like economic and social drawbacks which are found at both micro and macroeconomic levels. According to various estimates made by the World Bank, India has one of the lowest female labor force participation rates in the world.[1] Despite the rising trends in access to education and employment opportunities, there still exists a stark difference between the rate of participation by men and women in India’s workforce.
In India, 23.6% of women of the age 18 and above are a part of the workforce which also includes females with children in both informal and formal sectors of the economy.[2] Maternity benefits serve a crucial function, especially in the career of females, by supporting them to start a family. Maternity benefits along with family leave policies are an essential way of improving the infant mortality rate along with the wellbeing of the family. It is through such benefits a government can ensure the continuation of career along with the welfare of a family unit. According to the International Labor Organization, more than 120 countries provide paid maternity leave and health benefits by law including most industrialized nations.[3] India also has made concerted efforts through central policies in order to support and provide essential security to its female populace through maternity benefits and various health care policies.
Maternity Benefits in India
The initial approach of the Indian government aimed at providing maternity benefits only to women working in the formal sector of the economy. It overlooked the participation of women working in the informal sector thereby negating the hazards and essential needs of women undertaking unorganized jobs. Furthermore, the approach also lacked the crucial and extensive care needed during the initial days of childbirth and primarily focused on the health of the mother alone. The Maternity Benefits Act, 1961, was enacted to safeguard the health of both child and mother and make provisions for support during maternity or any complications resulting from childbirth. The act managed to cover the most intricate details and gave attention to various factors that may concern maternity or childbirth. The act was also made applicable to every establishment including a mine or plantation, government establishment, shops that had more than 10 employees, and other industrial, agricultural, and commercial establishments.[4] A woman was entitled to 12 weeks of leave of which not more than 6 weeks should precede the date of expected delivery. The females were also entitled to average daily wage during her absence along with a stipulated medical bonus from the employer in the absence of free pre-natal and post-natal care.
The Maternity Benefits (Amendment) Act Bill, 2016, was enacted in order to facilitate better provisions and vitalize child care in India. It provides 26 weeks of maternity leave of which not more than 8 weeks should precede the date of expected delivery unless there are two or more surviving children present. Females adopting children are also provided with 12 weeks of maternity leave. Establishments with 50 or more employees are supposed to provide a creche facility separately or within common facilities. With various amendments made to the 1961 act, India is placed at third position worldwide after Canada and Norway in the number of maternity benefits provided to females.[5] Furthermore, it also reduces the number of females dropping out of the workforce due to the lack of security or maternity benefit available.
Shortfalls of India’s Maternity Policy
One of the major concerns surrounding the new amendment is the burden of cost on the employer. It is the responsibility of the employer to provide the cost of maternity benefits, to make a provision of creche facilities along with the cost of hiring and training temporary employees due to the increased duration of maternity leave. Thus, due to the large monetary burden on the employer, there is a huge probability of evasion of implementing the provisions guaranteed to female employees by the law. Furthermore, the act increases the probability of discrimination against women of childbearing age. Due to increased benefits and longer maternity leave, the employer may refuse their employment in order to avoid future maternity costs.
A Comparative Analysis
The International Labor Organization created the first global standard of protecting working women and providing maternity leave in 1919. The Maternity Protection Convention aimed at encouraging increased benefits for pregnant women while also ensuring adequate benefits and security are provided to them. Most countries now have various legislations in place that deal with the aspect of maternity and call for certain benefits to be provided.
Singapore– Singapore follows a very stringent set of legislation that depends heavily on the status of the child as well as the marital status of the woman. For a mother to claim full 16 weeks of paid maternity leave her child must be a citizen of Singapore, the mother must be legally married to the father of the child, and the mother should be self-employed or working for the employer three months before the birth of the child. In case the child is not a citizen of the country, the mother is only liable to 12 weeks of paid leave. Furthermore, there are various exceptions such as complicated pregnancies, twin child policy as well as cases of abortion that are covered under the legislation pertaining to maternity benefits. In contrast with Singapore, India provides a larger period of leave time to female employees (India provides 12-26 weeks of leave as compared to the 16 weeks provided by Singapore).
China– Various laws govern the maternity benefits provided to female employees in various cities of China. Shanghai provides 98 days of leave to a pregnant female out of which 15 days leave can be availed before the delivery of the child. The Chinese legislation also takes into account additional leave periods in case of difficult pregnancies or due to the birth of twins. The legislation also covers maternity leave for cases of abortions and difficult pregnancies. The father is also provided with 15 days of leave time as part of the maternity benefits. In comparison with India, China only provides 90 days of leave whereas India provides for almost 182 days of paid maternity leave.
Belgium– Belgium provides maternity benefits to both unemployed and employed females. The legislation also provides a 10 day leave to the father that can be availed as paternity leave or birth leave. The number of wages paid during maternity leave may vary according to the type of work and basic earning of the individual. The government also provides specific relief packages from government funds for unemployed women. A female employee can avail up to 15 weeks of maternity leave in comparison to the 12-26 weeks provided by the Indian government.
Indonesia– Under the provisions of the Social Security Law, employers are required to pay cash benefits that are equivalent to the monthly wage of the female employee for a period of 12 weeks. The legislation also provides for maternity benefits even in the case of the death of the mother during delivery. One of the major drawbacks of the legislation is the burden of payment benefits is on the employer irrespective of the mother giving birth or not during the guaranteed period of 12 weeks.
In comparison with the above-mentioned countries, India surely provides a longer period of maternity leave with more benefits in the form of security and other tangible benefits. However, most countries are silent on the aspect of leave given to male employees. Furthermore, the biggest drawback of the Indian legislation is the huge amount of burden falling on the employer which allows for easy subversion of payment of maternity benefits to the female employees. However, India has taken big leaps and many transformative steps in order to provide better facilities to its female workforce. The provision of creche facility made compulsory by the Indian law is a major step taken in the direction of maternal upliftment.
Conclusion
Maternity leave is crucial and beneficial for new families and is one of the factors that encourage continued participation by women in the workforce of the country. Indian laws are quite synonymous with the international standards of maternity benefits however, there is still a major scope for inclusivity and government participation. The lack of government support and increased burden on the employer is an essential concern that needs to be addressed in order to strengthen the laws even more.
[1] Manoj Kumar, “India’s female labor participation rate falls to 16.1% as pandemic hits jobs”, REUTERS (Feb. 1, 2022, 12:04 PM), https://www.reuters.com/world/india/indias-female-labour-participation-rate-falls-161-pandemic-hits-jobs-2021-08-03/
[2] WORLDBANK.ORG, https://data.worldbank.org/indicator/SL.TLF.TOTL.FE.ZS?locations=IN, (Feb. 1, 2022)
[3] ILO.ORG, https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_008009/lang–en/index.htm, (Feb. 1, 2022)
[4] Maternity Benefit Act, 1961, § 2, No. 53, Acts of the Parliament, 1961 (India).
[5] Santosh Kumar, “Maternity Benefit (Amendment) Act, 2017- Pros and Cons”, IAS EXPRESS, (Feb. 1, 2022, 8:34 PM), https://www.iasexpress.net/maternity-benefit-amendment-act-2017/
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