The Supreme Court agreed to hear a petition challenging the constitutional validity of Section 5(4) of the Maternity Benefit Act, 1961, which states that a woman who legally adopts a child below three months old will be entitled to 12 weeks of maternity leave.
GS II: Government Policies and Interventions
Dimensions of the Article:
- What is this provision?
- Maternity Benefit Act, 1961
- Key Changes in the 2017 Amendment
- Unequal Implementation of Maternity Benefit Act in India
What is this provision?
- The original 1961 Maternity Benefit Act did not have provisions for adoptive mothers
- The 2017 amendment introduced Section 5(4) for maternity benefits for women who adopt or act as commissioning mothers
- Adoptive mothers of children below three months are entitled to 12 weeks of maternity leave
- A woman adopting a child older than three months is not eligible for maternity benefits
- A PIL challenges the provision on the grounds of discrimination and arbitrariness towards adoptive mothers
- The PIL also contends that the provision arbitrarily discriminates against orphaned, abandoned, or surrendered children above three months
- The petition states that the 12 weeks’ benefit is insufficient when compared to the 26 weeks’ benefit for biological mothers
- The provision fails to stand the basic scrutiny of Part III of the Constitution, which is linked to the concept of non-arbitrariness.
Maternity Benefit Act, 1961:
- Passed on December 12, 1961, to regulate the employment of women in “certain establishments” for the period before and after childbirth.
- Originally applied to factories, mines, plantations and extended later in 1973 to government-owned establishments and establishments for exhibitions.
- Repealed the Mines Maternity Benefit Act, 1941 and Maternity Benefit Act, 1929.
- Section 4 of the Act prohibited the employment of or work by women during the six weeks immediately following delivery or miscarriage.
- Section 5 granted paid maternity leave for up to 12 weeks if the woman had worked for at least 160 days in the preceding 12 months.
- Violations could result in three months’ punishment, with or without a fine.
Key Changes in the 2017 Amendment:
- Amended Section 5 to allow for 26 weeks of paid leave after childbirth for biological mothers.
- Inserted Section 5(4) to allow adoptive or surrogate mothers to have a 12-week maternity benefit period from the date the child is handed over.
- Inserted Section 5(5) to allow for working from home if mutually agreed upon after availing of maternity benefits.
- Inserted Section 11 to mandate the availability of a creche facility for establishments with 50 or more employees, with four visits a day allowed for the mother and rest intervals provided.
- Does not apply to the unorganised sector, which has been a criticized aspect of the amendment.
Unequal Implementation of Maternity Benefit Act in India
Unorganised sector women do not receive benefits
- Women in the unorganised sector cannot avail the benefits of the Maternity Benefit(Amendment) Act 2017.
Implementation of the Act not equal across sectors
- A report by TeamLease in 2020 revealed that the Maternity Benefit Act has not delivered a positive impact on job opportunities for women, even three years after its implementation.
- More than five out of 10 sectors reviewed showed a drop in women’s participation since the implementation of the Act.
- 7 out of 10 sectors were expected to show positive momentum in women’s workforce participation in the medium term, while 5 of the 10 sectors showed a drop in the share of women in their workforce.
Challenges faced by women after maternity leave
- According to the same report, after maternity leave, women face several challenges such as wage cuts (30%), resistance or lack of support from family (25%), and access to childcare (20%).
-Source: Indian Express