I Year BBA LL. B. (Hons.

)– Semester-II
(2020-21)

Constitutional Law: Internal

Assignment- II

“Policy/Legislative Analysis”

NAME: Sanjana S Shrivastav

DIVISION: A
PRN: 20010126041
COURSE: BBA LL.B. (Hons).
BATCH: 2020-2025

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 The Maternity Benefits Act, 1961
IMPORTANCE/RELEVANCE OF THE ANALYSIS

Maternity Benefits have been recognized as a fundamental human right by the International
Labour Organisation (ILO). Moreover, they are of great significance as they facilitate an
environment where women can continue to contribute to the economy, during and after
pregnancy. Maternity benefits ensure women are not compelled to leave their jobs or salaries
and stare down the face of unemployment, poverty or malnutrition for the mother or the
child. Hence, it is also a matter of upholding gender equality as well as the decent work
agenda. These are also some of the Millenium Development Goals1 as declared by UN
leaders in a summit in September, 2000.
The Maternity Benefits Act, 1961 (“The Act”) went under significant amendments in the
Maternity Benefit (Amendment) Act, 2017, moreover the Pradhan Mantri Matru Vandana
Yojana (PMMVY) was introduced in 2017. However, the Jaccha Baccha Survey (JABS), a
survey of pregnant and nursing women in rural India conducted in June 20192 showed that
only 31% women had been eating more nutritional food than usual. 95% of women employed
in the informal sector do not have access to maternity benefits 3 . COVID-19 has aggravated
this crisis and for all these reasons, it is crucial to reflect on the maternity benefit policies of
India.

1
Maternity Protection at Work: Why is it Important? Module by International Labour Organisation
https://mprp.itcilo.org/allegati/en/m3.pdf
2
Jean Drèze et al., Maternity Entitlements in India: Women's Rights Derailed, SocArXiv (Apr.7, 2021),
osf.io/preprints/socarxiv/v5mc6
3
95% women workforce in India is employed in the informal sector; has no access to maternity benefits -
Gaonconnection | Your Connection with Rural India
https://en.gaonconnection.com/95-per-cent-women-workforce-in-india-is-employed-in-the-informal-sector-
and-does-not-have-access-to-maternity-benefits/

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 Table of Contents
HISTORICAL EVOLUTION AND OBJECTIVE OF THE MATERNITY BENEFIT ACT, 1961 4
SUMMARY OF PROVISIONS OF THE MATERNITY BENEFITS ACT, 1961 5
ANALYSIS AND CRITICAL APPRAISAL OF THE MATERNITY BENEFITS ACT, 1961………………………..…………………….8

AMENDMENTS TO THE MATERNITY BENEFITS ACT, 1961……………………………………………………………..……………..10

JUDICIAL RESPONSE TO THE MATERNITY BENEFITS ACT, 1961…………………………………………………..…………………11

CONCLUSION…………………………………………………………………………………………………………………………………….…………12

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 1.HISTORICAL EVOLUTION AND OBJECTIVE OF THE
MATERNITY BENEFIT ACT, 1961

1. The origins of the act lie in the Bombay Maternity Benefit Act, first introduced in the
Bombay legislative council in 1929 to protect the interests of the large female
population employed in the textile industry of Bombay, who were reported to endure
lack of medical care and nursing, defective sanitation, industrial employment of
married women, delivery at the work premise in a poor unhygienic environment
during pregnancy.
2. It, however, led to discouragement among employers in employing women as their
competitors (Britain and Japan) did not have any such social legislations, which
meant they were paying much higher costs by employing women, and hence chose
not to do so.
3. Objective: Therefore, post-independence in 1961, the Maternity Benefit Act, 1961
was enacted to:
a) Ensure the welfare (nutrition and safeguards from poverty) to the pregnant
woman and her child;
b) Protection of the rights of women to lead a life with dignity and to live in a
safe and healthy environment;
c) Regulate the economic situation as well as job security of pregnant women by
offering paid maternity leave and disallowing termination of their jobs during
the period of leave.
4. The Act further underwent significant changes (increase in paid maternity leave being
the most important one) in the Maternity Benefit (Amendment) Act, 2017 to comply
with the Maternity Protection Recommendation, 2000 of the International Labour
Organisation.

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II. SUMMARY OF
PROVISIONS OF
1. Extent and Applicability of the Act: The Act
THE MATERNITY
extends to the whole of India and applies to every
establishment, factory, mine or plantation, including any such establishment
belonging to the government and to every establishment wherein persons are
employed for the exhibition of equestrian, acrobatic and other performances, and any
establishment in a State, in relation to the State Government.
i. The State governments may extend the application of all or any provisions of
the Act to any other industry, whether industrial, commercial, agricultural or
otherwise, but only after receiving approval from the Central Government
after giving no less than two months’ notice.
ii. The Central Government has the power to exempt an establishment from the
operation of all or any of the provisions of the Act if it is satisfied that the
benefits granted by the establishment are not less favorable than those
provided in the Act.

2. Period of Leave: Under the Act, a maximum leave period of 12 weeks could be
availed (six weeks prior and six weeks post the date of delivery). Furthermore,
employers are prohibited from knowingly employing a woman within a period of six
weeks after her delivery or miscarriage, and likewise, women are prohibited from
working in any establishment during this period. Even on the female employee’s
request, no employer may engage her in work that may be arduous, involve long
periods of standing or interfere with the growth and health of the foetus or the woman.

i. A woman must have worked at the establishment for a minimum period of 80

days (weekly holidays and all days of paid or unpaid leave not counted) over
the last 12 months to avail of maternity leave under the Act.

ii. For leave six weeks before the date of delivery, a written notice must be given
to the employer with certificate of pregnancy, for the procurement of which
the employer will pay maternity benefits in advance.

iii. For leave six weeks from the date of delivery, the employer must be sent a
written notice along with certificate of delivery/birth of the child, on receiving
of which the employer would pay the maternity benefits to the employee or

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 her nominees within 48 hours. The failure to give notice for the subsequent six
weeks does not, however, disentitle a woman from maternity benefit.

iv. In the case of miscarriage, a woman is entitled to six weeks leave with pay
from the day of miscarriage, for which she must give notice together with a
certificate of miscarriage.

v. For illness arising-out of pregnancy, delivery, premature birth or miscarriage,

a woman employee can take extra leave up to a maximum period of one
month, after producing a prescription certificate from a doctor. This leave can
be taken at any time during the pregnancy, or can be attached to the six weeks
prior to or after the delivery or miscarriage.

vi. A female employee can ask for light work for one month preceding the six
weeks prior to her delivery or during these six weeks if, for any reason, she
does not avail of her leave.

vii. Aiming to encourage planned parenthood, the Act grants six weeks leave with
wages in case of Medical Termination of Pregnancy (MTP) and a maximum
period of one month of leave with wages in cases of illness arising from the
same, and two weeks’ leave with wages for women who undergo an operation
of tubectomy.

viii. A female employee resuming duties after delivery is to be given two nursing
breaks of prescribed duration, in addition to her regular rest intervals, to nurse
the child until her child attains the age of fifteen months. Each State has its
own rules as to the length of this break. (In Maharashtra, it is fifteen minutes).

ix. A female employee cannot be discharged or dismissed on grounds of

absence arising out of pregnancy, miscarriage, delivery or premature
birth. Nor can her service conditions be altered to her disadvantage
during this period.

3. Maternity Benefits: The payment due to a woman during maternity leave is

calculated by calculating average wages of a period of three calendar months exactly
before she went on leave, or one rupee a day, whichever was higher.
i. The maximum period for which any woman shall be entitled to maternity
benefit wastwelve weeks, as in the case of maternity leave.
ii. No woman’s salary could be reduced on the grounds of being assigned lighter
work due to pregnancy.

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 iii. In case of the death of the woman, the employer must still pay the maternity
benefit she was entitled to, to her nominee or legal representative. However, if
she dies before the birth of the child, the maternity benefit needs to be paid
only up to the date of her death.

4. Forfeiture of Benefits: No employer is allowed to forfeit the benefits available to a

woman under the Act except in the case of gross misconduct (willful destruction,
assault, theft, criminal offences, non-observance of safety measures at the place of
work), or if she works in another establishment during the period of maternity leave.

The aggrieved woman may, within sixty days from the date, on which the order of
such deprivation is communicated to her, appeal to the prescribed authority, and the
decision of the authority on such appeal shall be final.

5. Inspection and Penalties: The government may appoint public servants they deem fit
as ‘inspectors’ to investigate an establishment and any woman who has a claim that
the maternity benefits she is entitled to have been withheld may complain to the
inspector, post which the inspector would make an enquiry and if the complaint is
found to have merit, direct the payment of dues or any actions necessary to ensure
maternity benefits are granted to the aggrieved woman.
Any employer who fails to abide by the provisions of the Act or obstructs the
inspector would be liable for imprisonment up to three months and/or a fine of five
hundred rupees; and where the contravention is of any provision regarding maternity
benefit or regarding payment of any other amount and such maternity benefit or
amount has not already been recovered, the court shall in addition recover such
maternity benefit or amount as if it were a fine, and pay the same to the entitled
person.

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 III. ANALYSIS AND CRITICAL APPRAISAL OF THE MATERNITY
BENEFITS ACT, 1961

I. Positives:

1.The greatest positive to the Act, (especially after its 2017 amendment) is the fact that it
mandates one of the longest fully paid maternity leaves in the world.

2. It is appreciable that women who don’t eventually give birth (miscarriages) are also
provided for under the Act and the same is disallowed from being used as a reason to
withhold maternity benefits. The 2017 amendment including commissioning mothers in its
ambit is also a welcome change.

3. Inserting paid leave for women who undergo medical termination of pregnancy and
tubectomy processes balances the interests of the women (by granting them benefits) as well
as the nation (planned parenthood).

II. Negatives:

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1. The greatest negative is that the Act is applicable only in organized sectors, such that less
than 1% women actually receive the benefits of the Act. The existing arrangements for
maternity entitlements are inadequate as the Maternity Benefit Act (2017) addresses only
those women who work in establishments with 10 or more workers. The Periodic Labour
Force Surveys (2019) show that labour force participation rates among women aged 15 and
above is only 25% and among them only 12% work in such establishments. The other women
are only entitled to a grossly under budgeted 5000 rupees installment under the Pradhan
Mantri Matru Vandana Yojana scheme.

2. The 1961 Act, while providing a mechanism for aggrieved women to make their claims to
an inspector and appeal against the orders of the same (within a period of 30 days) does not
provide a deadline for resolution of these disputes by the inspector or the appellate authority.
This fault in itself is enough to water down the positives of the Act as maternity benefits are
time sensitive. An expecting/new mother needs them immediately before and after giving
birth/undergoing miscarriage/MTP/tubectomy however withholding the same during the time
of need renders the benefits as unable to achieve their purpose, even if granted at a later time.

3. The Act mentions these benefits for ‘women’, which means there are no clear provisions
for maternity benefits either for genders that do not identify as women, however chose to
have a child. Even paternity leave is not provided for.

4. During the times of COVID-19, while the Act imposes a duty upon employers to pay
maternity benefits, economic slowdown and the lockdown aggressively reducing profits has
made it significantly harder, especially for owners of small and medium enterprises to pay
such benefits.

Recommendation: Given such a situation, the state and central governments could generate
schemes where they account for a percentage (say, 50%) of the maternity benefits due to the
employees to balance the interests of the employers, as well as the entitled employees.

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 IV. AMENDMENTS TO THE MATERNITY BENEFITS ACT, 1961

Year of Amendment
Amendment
1972 Section 5(a) of the Maternity Benefit Act inserted:
If the Employee State Insurance Act, 1948 is applied to any factory
or establishment the Maternity Benefit Act would continue to be
applicable until they become qualified to claim the said benefit.
1973 Section 1(iii) (a) was substituted to cover the Circus Industry under
the Maternity benefit Act
1976 Scope of Act further extended to the women employed in factories
or establishments covered by the ESI Act and in receipt of wages
exceeding entitlement specified in the Act (Sec 5b of Maternity
Benefit Act inserted)
1988 Act was extended to shops or establishments employing 10 or more
persons, and the rate of maternity benefit enhanced
1995 Six weeks leave with wages in case of medical termination of
pregnancy, two weeks leave with wages in case of women
employees who undergo tubectomy operation and one month leaves
with wages in case of illness arising out of these two.
2008 Every woman entitled to maternity benefit shall also be entitled to
receive from her employer a medical bonus of Rs. 2500 (empowered
to increase the medical bonus from time to time subject to a
maximum of Rs.20000) if no prenatal confinement and post-natal
care are provided free of charge.
2011 The medical bonus was enhanced to Rs.3500

2017 The amendments were made in response to the Maternity Protection

Recommendation, 2000 of the ILO, which recommends a longer

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 period of 18 weeks for maternity leave.
1. The maternity leave was increased from 12 weeks to 26
weeks;
2. 12 weeks for women having more than two or more
surviving children;
3. Commissioning mother and a woman who legally adopts a
child below the age of three months shall be entitled for a
period of twelve weeks from the date the child is handed
Over to commissioning mother or adopting mother;
4. Work from home with mutual agreement between the
employer and woman;
5. Every establishment having fifty or more employees shall
have the facility of a crèche;
6. Four visits to crèche in a day which includes the interval for
rest allowed;
7. Intimation of maternity benefit in writing and electronically
to every woman at the time of appointment.

V. JUDICIAL
RESPONSE TO
1. The Supreme Court in Municipal Corporation of
THE MATERNITY
Delhi v/s Female Workers and another4 explicitly ordered that all women employees,
whether permanent, casual or contractual are entitled to maternity benefits under the
Act. In Anshu Rani vs State of U P(2019)5, the Allahabad High Court has held that
there cannot be any curtailment of maternity leave period as prescribed under the Act
and it is the woman's rights to get six months maternity leave.

2. In Tanuja Tolia v State of Uttarakhand (2020)6, however, an employee with a contract

of 1 year applied for child care leave (CCL) as granted to permanent employees of the
establishment (lasting 730 days). It was argued that in a contract of one year, it was
practically impossible to grant such a long leave. The Court, examining the purpose
and history of the Act observed that the rights of women and their children are
4
(2000) 3 SCC 224
5
2019 SCC Online UP 421
6
2020 SCC Online Utt 337

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 interdependent and maternity benefits are essentially an ask for the rights of and
protection of a child. It further stated that “Motherhood and childhood are entitled to
special care and assistance. All children, born in or out of wedlock, shall enjoy the
same social protection”. However, the Court was mindful of the practical difficulty
faced in giving a CCL of 730 days to a contractual employee whose term of
employment is only 365 days, and eventually granted a leave of 31 days.

3. Addressing issues arising due to the COVID-19 pandemic: In Manisha

Priyadarshini versus Aurobindo College-Evening & Ors (2020), while dealing with
an issue of non-renewal of contract of the Appellant who was on maternity leave and
whose contract expired during Covid-19, the Court quashed the termination of the
contract and directed the college to employ the appellant as an assistant professor.

VI. CONCLUSION
As observed by the Supreme Court, maternity benefit is more than mere payment and leave
granted to a new parent, it is an assertion of the rights of a child. Hence, granting of the same
ought to be immune to the circumstances of the parent or their employer, such as the contract
of employment or the gender of the parents. The greatest shortfall of the policy is that it fails
to reach the people it is intended for. It is imperative, therefore, that the Act is amended to be
‘inclusive’ of parents of all genders. To further reach women working in the unorganized
sectors, who arguably need maternity benefits more than women in urban and organized
sectors need to be reached and the same can be done sensitization operations by the
Government. The economic slowdown caused by the COVID-19 pandemic further amplifies
the necessity for more involvement from the government in the form of aid to the employers
and/or employees by accounting for a portion of the benefits to be paid.
REFERENCES
1. https://www.ilo.org/global/topics/decent-work/lang--en/index.htm
2. https://mprp.itcilo.org/allegati/en/m3.pdf
3. https://www.aparajitha.com/blog/lets-talk-compliance-maternity-benefit-act-tracing-
the-history/
4. http://www.cdfi.in/events/featured-events/pmmvy-scheme-formally-launched
5. osf.io/preprints/socarxiv/v5mc6
6. https://dspace.gipe.ac.in/xmlui/bitstream/handle/10973/27028/GIPE-034926.pdf?
sequence=3&isAllowed=y
7. https://labour.gov.in/sites/default/files/TheMaternityBenefitAct1961.pdf

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8. https://qz.com/india/1715618/indias-maternity-leave-policy-benefits-only-1-percent-
working-women/

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