Maternity Benefit Bill, 2016

The Maternity Benefits Act, 1961 requires the employer to provide its women workers with maternity leave of upto 12 weeks, with full wages. The Bill raises this period of maternity leave to 26 weeks. Several expert bodies including the Law Commission of India and the Indian Labour Conference have highlighted the need to provide maternity leave up to a period of 24 weeks. The World Health Organisation recommends that children must be exclusively breastfed by the mother for the first 24 weeks to improve their survival rates and for the healthy development of both mother and child. It has also been argued that the absence of adequate maternity leave and income security leads to women dropping out of the labour force. Women employees in the central government are currently entitled to maternity leave of 24 weeks and additional child care leave up to a period of two years.

On the other hand, it could be argued that increasing maternity leave from 12 to 26 weeks could have an adverse impact on the job opportunities available for women. Since the Bill requires the employer to pay full wages during maternity leave, it could increase costs for employers and result in a preference for hiring male workers. Also, the increase in costs could impact the competitiveness of industries that employ a higher proportion of women workers. Some countries have addressed this issue by creating different mechanisms for financing maternity leave.

Currently, women employed in certain sectors, like factories, mines, shops and establishments with 10 or more employees, and other establishments notified by the state government are eligible for paid maternity leave up to 12 weeks under the Maternity Benefits Act, 1961. Various other labour laws provide for maternity benefits. The Employees' State Insurance Act, 1948 provides for payment of wages to an insured woman, during her 12-week maternity leave. Women employed in newspapers or working as journalists are entitled to similar maternity leave under the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955.2 Further, women employed in the central government are provided about 24 weeks of paid maternity leave and additional child care leave up to a period of two years.

The Unorganised Sector Workers Act, 2008 defines unorganised sector workers as those who are home based, self-employed or wage workers in an enterprise with less than 10 employees.4 The 2008 Act mandates the central government to formulate health and maternity benefit schemes for women workers in the unorganised sector. The Janani Suraksha Yojana, which promotes child birth in an institution by providing financial assistance to women below poverty line, is being implemented under the 2008 Act.5,6 The Indira Gandhi Matritva Sahyog Yojana (IGMSY) was launched to compensate women for loss of wages and to ensure that a mother can afford rest after a delivery and take care of health requirements of the new born child.7 The IGMSY is a cash transfer scheme that provides Rs 6,000 to pregnant and lactating women above the age of 19 years with less than two children.

In 2015, the Law Commission of India recommended increasing the period of maternity leave under the 1961 Act to 24 weeks, and bringing the unorganised work force within its ambit.8 Over the years, including in 2016, the Indian Labour Conference also recommended that the period of maternity leave be increased from 12 to 24 weeks.

Under the 1961 Act, the employer is liable to pay women workers maternity benefits up to a period of 12 weeks. The Bill increases this period to 26 weeks. This implies that employers will have to pay their women workers full wages for this period. The question is whether employers should bear the cost of providing maternity benefits. It could be argued that since maternal and child health is a public good, it would be appropriate for the government to finance such social security measures.

The International Labour Organisation (ILO) Maternity Protection Conventions have stated that employers should not be exclusively liable for the cost of providing maternity benefits to their women employees.12 It has recommended that the benefits should be provided through compulsory social insurance or public funds.

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