REVISITING MATERNITY BENEFIT LAW IN INDIA: MOVING TOWRADS A MORE EQUITABLE FUTURE
BY: SMRITI BERLIA , BBA LLB 4TH Year , Senior Executive
ABSTRACT
There has been much debate over the 2017 Amendment to the Maternity Benefit Act, 1961. The law has been hailed by numerous legal experts as one of the most progressive pieces of recent legislation introduced by the parliament to support women. Among the major improvements brought about by the Amendment are provisions like extended paid maternity leave, childcare facilities, and visiting privileges for mothers, among others. Four years have gone since the legislation was passed; it is necessary to discuss the extent to which it has succeeded in accomplishing its goal. Some claim that this legislation has proven to be unproductive because the employer bears the entire burden of economic obligation. If this is the case, how can the requirement for maternity benefits be met without negatively affecting women’s employment prospects?
In this essay, we examine how the 2017 Maternity Benefit Act has affected women and discuss potential changes that could be done to further boost the law’s effectiveness. This essay will examine the laws from the standpoints of history, law, economics, and the constitution. This is an attempt to interpret the well acclaimed statute, look beyond its written wording, and comprehend the broader effects it has had on the main players.
Keywords: Maternity benefit Act, 1961, Maternity benefit (Amendment) Act, 2017, Bombay Maternity Act, 1929, paid maternity leave, hiring discrimination.
Table of Contents:
1. Introduction 2
1.1 History of Legislation 3
1.2 Jurisprudential Understanding 5
1.3 Legislative Analysis 6
1.3.1 Constitutional Basis 6
1.3.2 Key Features Of Legislation 8
2. Unintended Consequences Of The Legislation On The Stakeholders 10
2.1 Impact Of The Maternity Benefit Act On Women In India 10
2.2 Analysing The Reality 10
2.3 Reinforcing Gender Notion 11
2.4 Economic Loss Of Not Having Enough Women In The Workforce 12
2.5 Exacerbating Informalization And Contractualization Of Labour Markets— Hurting Women The Most 12
3. Models Of Maternity Benefit Laws: Ideas From Across The World 12
3.1 No Harm Model 13
3.2 Market Forces Helping Women At The Top 13
3.3 An Option For Paternity Leave And Redefining Creche Mandates 14
3.4 Government Paying The Maternity Benefits And Creche Benefits 14
4. Conclusion 15
1. INTRODUCTION:
The 2017 Maternity Benefit Amendment Act is hailed as one of the most progressive pieces of recent legislation. The Indian Parliament passed the legislation in order to increase the benefits that women received under the 1961 Maternity Benefit Act. This was in line with the evolving global norms for maternity benefits, as demonstrated by the 2000 Maternity Benefit Convention of the International Labor Organizations. Unlike the Maternity Benefit Act, 1961 pre-amendment, which stipulated twelve weeks of paid maternity leave, this convention requires a minimum of fourteen weeks of leave. Additionally, the creation of childcare facilities and granting the mother visitation rights are mandated by this convention. India amended its own Maternity Benefit Act to incorporate the new ILO requirements, despite not being a party to the convention. The intention behind this was to meet international criteria for maternity benefit proofing while also offering women employees greater perks.
Four years after the law was put into effect, it is unclear how much the amendments have benefited India’s working women. Have these changes brought about any changes, or have they made their life easier or harder? How have women been affected by this legislation? We aim to provide answers to these questions in this study. The historical and jurisprudential foundations of this legislation are examined in the first section of the study, together with an analysis of the numerous new changes introduced by the 2017 amendment. This paper’s last section will examine models from around the globe and potential recommendations to enhance the current legal framework. The second section will examine the effects of this legislation on the lives of working women.
1.1 HISTORY OF LEGISLATION:
The Maternity Benefit Act of today was inspired by colonial law, as are the majority of laws in India. There were strong links between the advancements in this subject at the time and the prevailing national and global trends. The debates held at the Bombay Provincial Assembly are the most comprehensive sources of information regarding the early discussions on maternity benefits.1The startling infant mortality rate in the Bombay presidency and the poor health of female laborers and their newborn children prompted the first proposal to introduce legislation to give maternity benefits for women. The measure was first introduced in 1922 by Kanji Dwarkadas, but the government had it overturned on the grounds that it could only be tabled at the central level.2 This setback, meanwhile, did not deter subsequent attempts by others to introduce identical or comparable legislation. MM Joshi presented a bill in 1924 that gave women a six-week vacation period both before and after childbirth. Nevertheless, the mill owners and the colonial administration opposed this bill as well.3
Despite these futile attempts, the Bombay Maternity Act was passed by the legislative council in 1929 following protracted deliberations and discussions. In India, this law was regarded as a significant turning point for women’s rights. Despite the fact that the talks and disagreements around maternity benefits took place nearly a century ago, some of the topics covered are still relevant today.4The primary point of disagreement concerned who should foot the bill for the
1 Bombay Assembly Debates on Maternity Benefit Bill, 1929”(1998) 33 (22) Economic and Political Weekly, L21- L29.
2 Kanji Dwarkadas, “Forty-Five Years with Labour, Bombay” (1962) p 38; Report of the VIIIth Session, All India Women’s Conference, Calcutta, (1933) 98-100
3 “Central Legislative Assembly Debates”, February 3, 1925, August 26, 1925
4 Mridula Ramanna,“Maternal Health in Early Twentieth Century Bombay” (2007) 42(2) Economic and Political Weekly 138-144.
financial obligations associated with offering women maternity benefits. Is it the boss? The husband of the woman, or the government?5
It’s interesting to see that, just as they do now, everyone agrees that all women should be entitled to maternity benefits. On the other hand, disagreements arise when it comes to deciding who is financially responsible. This is not surprising because, similar to the Bombay Maternity Benefit Act debate, the case for maternity benefits was frequently made from a humanitarian standpoint. RS Asavle, the bill’s council presenter, emphasized this point a lot.6 Furthermore, many members, including Nariman, interpreted the colonial government’s hesitation to embrace the legislation as an extension of the colonists’ cruel and callous behavior, given the sociopolitical context of the period.7Under such circumstances it was very difficult to deny the principle of providing maternity benefit to women workers however, the issue of economic liability was open to discussion. On that note it is interesting to see how the Mill owners who were the primary employers of women workers at that time were also defending their position against the legislation from a nationalist perspective. They believed that the additional cost of providing maternity benefits would bring significant economic disadvantage to their industries and viewed this legislation as an attempt to sabotage the indigenous industries of India. Given that the British government had imposed a cotton cess on the mill owners at the time, the employers’ complaints are not entirely unfounded. During this period, they were also up against competition from Japan, Manchester, and Lancashire especially the latter, as women were permitted to labor here at night as well. companies contended that if the law was approved, companies would have to fire their female employees, which would put women in a worse position overall.8
At this point, it’s critical to highlight two starkly opposed points of view. Dr. Ambedkar’s and MK Dixit’s respective ones. Ambedkar believed that the state, not the employer, should be responsible for providing maternity benefits. While he was not opposed to the measure, the most of the burden should be on the state.9 Conversely, Mr. Dixit held a completely opposite perspective. He maintained that the employer should not bear the obligation for a woman’s care and upkeep because it is the husband’s job to do so However, if the lady is alone or impoverished, or if there is no spouse, the state may be held accountable. He disagreed with the notion that firms should be held accountable for giving their employees maternity benefits.
5 Chhachhi (n 1) L25.
6 “Bombay Legislative Council Debates” (1928) Vol. XXIII 337.
7 Ibid 356.
8 Ibid 353-54
9 Ibid 381-82
He draws a contrast between a pregnancy and an accident at work, saying that since the employer did not cause the woman’s illness, they should not be held accountable for its treatment.10
The measure was enacted in its original form, with the employer bearing the major obligation for providing maternity benefits, notwithstanding the following differences in opinion. The law passed with 50 votes in favor and 12 against.11Later, numerous other presidencies used this act as a model to introduce legislation of a similar nature.12 The discussion around this legislation is especially important since it touches on numerous topics and points of contention that are relevant to contemporary discourse and should be taken into account when examining how maternity benefit laws affect women.
1.2 JURISPRUDENTIAL UNDERSTANDING
One can discover that the rationales used in the past for maternity benefits were mostly focused on protection and humanitarian concerns. We discover that none of these methods examined maternity benefits from the standpoint of workers’ rights. Maternity benefits were viewed as essentially a means of enabling women to carry out the traditional gender roles that society has allocated to them, such as becoming mothers and raising the next generation of the country. Most of these conversations have neglected to mention her job as an employee.13
But the arguments for maternity benefits have changed significantly in the current period. Currently, a worker’s rights perspective is used instead of a protection or humanitarian one.14Given that the position of a working woman is being acknowledged, It is believed that maternity protection is a benefit or a right that a woman should be granted by her employer. It is the employer’s responsibility to provide these benefits in this case. Still, it begs the question of whether maternity protection is regarded as a benefit or a right. Isn’t becoming a parent a labor of love?15This is seen as a significant advancement for women’s rights. The worker’s rights are typically balanced against the employer’s rights in this rights-based approach. When we view maternity leave as a benefit or a right, we have to compromise on the protections offered to women while also taking the employer’s financial capacity into account. This may be seen in the previous discussions on the matter, where it was shown that some of the mill
10 Ibid 343.
11 Chhachhi (n 1) L26.
12 Ramanna (n 4) 137.
13 Kulmar, R (1989): ‘Family and factory: Women in the Bombay Cotton Textile Industry’ in K Krishnamnurty (ed), Women in Colonial India: Essays on Survival, Work and the State, Oxford University Press, New Delhi 14 BLC (n 6) 337.
15 Arnlaug Leira, “Caring as Social Right: Cash for Child Care and Daddy Leave” 5(3) Social Politics: International Studies in Gender State & Society 362-378
owners’ worries were valid. Furthermore, they suggest that the best way to address this is to stop recruiting women, which would be detrimental to women in the long run and have an impact on their employment in a setting that is already patriarchal and biased against women. However, if we consider childbirth as labor in and of itself, we may be able to solve the issue more effectively.16The question of who benefits from childrearing and giving birth emerges if we consider these tasks to be labors in and of themselves. The entire society would be the response. Therefore, if society as a whole benefits from the labor, shouldn’t society as a whole pay for this labor rather than just the employer? Furthermore, by approaching child care and childbirth from this angle, we can expand the framework to include more women than just those who are employed.17
Giving birth is conceptually seen in the present rights-benefit paradigm as being analogous to a medical emergency that an employee may encounter. Pregnancy is neither an illness nor a work-related risk for which the employer is solely accountable. It is important to consider pregnancy and childbirth as acts of labor performed by women for the good of society. As such, society, being the beneficiary of this labor, is expected to foot the bill. The bulk of the accountability must fall on the government, which speaks for society. 18
On the other hand, the rights-benefit approach was used in the adoption of the Maternity Benefit Act, 2017. For women, this has led to some serious issues in the workplace.
It is crucial to thoroughly review the Maternity Benefit Act, especially the 2017 update, before delving into that.
1.3 LEGISLATIVE ANALYSIS:
1.3.1 CONSTITUTIONAL BASIS
The Indian constitution is the source of the Maternity Benefit Act, 1961, as it is of all other laws. The Indian constitution’s preamble lists social and economic fairness as one of the goals that our country should strive for.19The state of women in Indian society at the time the constitution was written was not good; they fell behind men in terms of education and employment representation. For this reason, the drafters of the constitution did everything within their power to guarantee that women in the newly independent country would be afforded equal opportunities.
16 Ira Chadha-Sridhar and Geetika Myer, “Feminist Reflections on Labour: The ‘Ethics Of Care’ Within Maternity Laws In India” (2017) 13 Socio-Legal Review 3-7.
17 Ibid.
18 Leira (n 15) 376.
19 The Constitution of India, 1950.
It is often acknowledged that ensuring women’s financial independence is a crucial component of achieving women’s empowerment. The only way to accomplish this is to have more women participate in the workforce.20Offering benefits to female employees is one method to make sure of this and to encourage them to continue working. The Maternity Benefit Act of 1961 is formulated based on this principle.
Therefore, by ensuring that women and children receive care and financial security during the most vulnerable time in their lives, the Act seeks to support the larger constitutional goal of ensuring social and economic fairness to all of them.21
The concepts of equality are discussed in Articles 14 and 15 of the Indian Constitution. Article 14 of the Indian constitution ensures gender equality, while Article 15(3) establishes a unique provision for women’s empowerment. The purpose of this clause was established in the Government of Andhra Pradesh v. P.B. Vijayakumar & Anr22 case, when it was decided that: “On account of women being socially and economically handicapped for centuries and in order to eliminate their socio-economic backwardness, the State, under Art 15(3) improve the women’s participation in all activities under the supervision and control of the State and it can be in the form of either affirmative action or reservation.”
One such piece of law, the Maternity Benefit Act of 1961, was made with the goal of advancing women’s status in the workforce and guaranteeing their equality with men. It is crucial that we recognize the goals and foundation of this legislation, even though it is debatable to what extent it has been successful in achieving these goals.
In a number of situations, the courts have likewise held a very similar opinion. The case of Mrs. Bharti Gupta vs. Rail India Technical and Economical Services Ltd. [RITES] 23established the constitutional basis for the Act’s clauses ensuring women’s welfare during childbirth. The act was described as a “social and benevolent law” by the court.
In an attempt to broaden the Act’s purview, the court has also made reference to Part III of the constitution. In the case of Female Workers (Muster Roll) & Anr. v. Municipal Corporation of Delhi, 24The court declared that even workers who were not regularized but were on muster rolls had the same entitlement to maternity leave as other workers, citing Articles 14 and 15
20 Simone Beauvoir, The second sex. (1th ed, Vintage Books 1989).
21 Ibid
22 1995 4 SCC 520.
23 AIR 2000 SC 1274.
24 AIR 2000 SC 1274.
of the constitution. The court determined that the employers’ classification was unjustified and undermined the purpose of the Act.
1.3.2 KEY FEATURES OF LEGISLATION:
The Maternity Benefit Act of 1961 was significantly modified in 2017 by the Indian government. During the 44th, 45th, and 46th sessions of the Indian Labour Conference, these provisions were developed.25 The new Act, which goes into effect on April 1st, applies to all female employees, including in the organized and unorganized sectors. The Maternity Benefit Act’s Section 2 coverage for their organization is the sole prerequisite.26 Apart from the Maternity Act, several other laws that offer comparable benefits already exist within the framework of Indian labor law. The unorganized Workers Social Security Act of 2008, the Factories Act of 1948, and the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act of 1966. The Employees State Insurance Act of 1948 is another example of such legislation, with one of the primary benefits covered by the Act being maternity benefits. In addition to offering women a paid 12-week maternity leave, it also offers a regulatory framework for its execution.27
However, the Act’s application is restricted to government buildings. This goes against the ruling of the Supreme Court, which maintained that all women should be eligible for the benefits of the Act and that her employment status should not be taken into account.28 The government’s 2017 modification to the Maternity Benefit Act denotes a change in policy and expands the benefits that the business is required to offer to female employees under the Act.
The maternity statute has been amended to include a requirement for creche facilities for working women’s children. In situations when arrangements are feasible, it also enables women
25 5 ‘Clarifications’, Ministry of Labour and Employment, (India, 12th April 2017) http://labour.gov.in/ sites/ default/files/ The%20Maternity %20Benefit % 20%28 Amendment%29%20Act%2C2017%20-Clarifications.pdf. accessed on 7th Oct 2021.
26 ‘Clarifications Issued By the Ministry of Labour& Employment In Relation To Maternity Benefit (Amendment) Act, 2017’,Khaitan&co., (India, 13th, April 2017) accessed on 6th Oct 2021.
27 The Employees State Insurance (General) Regulations, 1950.
28 Dr. Parul Mishra v. State of U.P Service Bench No. 67 of 2010; Mrs. Priyanka Gujarkar v. Registrar General, W.P. No.17004/2015.
to work from home.29 It should be mentioned, nevertheless, that men are not permitted to use this facility.
Additionally, it is important to take into account the gendered wording employed in the regulation. It appears to support the notion that mothers have a main responsibility to care for their children. Moreover, women are the only ones with visitation rights—men are not. Furthermore, paternity leave is not mentioned at all in the Act.
However, India is currently one of the top 16 nations offering lengthy maternity vacations and the third largest after Norway and Canada with the passage of the Act and the increase of paid leave to 26 weeks.30 It should be highlighted, therefore, that India is one of the very few nations without a public benefit distribution system protected by the Act. The issue with this is that the employer will be responsible for paying for the entire program, which may negatively impact working women’s access to employment opportunities.31 Given that India is a developing country and a rising powerhouse,32 it should be highlighted that the advancement of women is crucial to the country’s social, political, and economic progress.33
Thus, it is imperative that laws that are intended to help, such as the Maternity Benefit Act, truly help rather than standing in the way of women’s progress. It is praiseworthy that our legal system is on par with those of nations like Canada and Norway. But how close is the work of Indian women to that of their counterparts in these other countries practically speaking?
To what extent are women’s conditions in India and these other nations similar in terms of socioeconomic status and culture? Prior to putting these concerns into practice or passing legislation akin to that of these sophisticated countries, it is critical that we consider these issues and thoroughly research this matter.
29 9 ‘Maternity Benefit (Amendment) Act, 2017 Is Effective from 1 April 2017, Khaitan & Co., ERGO, Newsflash, (India, 3 rd April 2017) https://www.khaitanco.com/PublicationsDocs/Khaitan%20&%20Co%20Ergo- Newsflash3April2017.pdf” accessed on 4th Oct 2021.
30 Jean D’Chuna, “India’s Bold Maternity Benefit Act Can Become a Game Changer if it Addresses Current Limitations” (2018) 53 (31) E. & P. WEEKLY L57.
31 Ajay Raghavan, ‘Maternity Benefit Amendments: Closer to Reality’, TRILEGAL, (India, 4th Sept 2017) acessed on 5th Oct 2021; Medhavi Arora, ‘India’s generous maternity leave may be bad for women’, CNN MONEY, (India, 30th March 2017) accessed on 7th Oct 2021.
32 ‘Think India- The rise of the world’s next superpower & what it means to every American’ Harvard University, (US 16 Aug, 2007) https://www.innovations.harvard.edu/ sites/ default/ files/53231.pdf accessed on 5th Oct 2021.
33 Kalpana Kochhar, Sonali Jain-Chandra & Monique Newiak, ‘Women, Work and Economic Growth: Levelling the Playing Field’, IMF (2016) accessed on 6th Oct 2021.
2. UNINTENDED CONSEQUENCES OF THE LEGISLATION ON THE STAKEHOLDERS.
“I ask no favour for my sex. All I ask of our brethren is that they take their feet off our necks.”
– Former US Supreme Court Justice Ruth Bader Ginsburg34 Unintended consequences might arise from any government policy, but it doesn’t mean the government should stop enacting reasonable employment regulations.35 The Maternity Benefits Act is one instance of a statute that has allowed for unanticipated yet detrimental outcomes. This law is thought to undermine the “perceived” or “stereotypical” competitive advantages that women employees have in the workplace, such as their propensity to call for strikes and organize unions. It is necessary to research the effects this law has had in order to address the existing shortcomings.
2.1 IMPACT OF THE MATERNITY BENEFIT ACT ON WOMEN IN INDIA
The Maternity Benefit Act of 2017 mandates that companies refrain from hiring women who are between the ages of twenty and thirty. In the organized sector, many women may lose out on opportunities as a result of this prejudice. The majority of formal sector jobs in India are created by MSMEs36, who make up the majority of the country’s unregistered workforce despite the fact that many of them are unregistered. These MSMEs struggle to make ends meet and rely heavily on wages from their workforce, in contrast to tech companies that can afford to provide luxuries benefits to a select few.
2.2 ANALYSING THE REALITY
The government of India has proposed the Maternity Benefits Scheme37, which reimburses employers for their maternity benefits. While this is a good start, the majority of the costs of benefits paid by employers are not covered by the scheme, which means that the same legal issues still exist.
34 Knight LW, “The 19th-Century Powerhouse Who Inspired RBG” (CNN September 1, 2018)
accessed October 8, 2021
35 Ibid (Chapter 1 & 2; Impact on Women)
36 6 Lewis V, “MSMEs as Large Employment Creators” (Indiaspend & IIHS Urban Informatics Lab August 7, 2021)
accessed October 13, 2021
37 “Current Stage of the Proposal:” (Clarification regarding Maternity Leave Incentive Scheme November 16, 2018) accessed October 15, 2021
Almost 50% of Indian startups have cut back on employing women who are ready to have children in order to save money on maternity benefits. There have already been knock-on consequences, and small employers have expressed similar sentiments in large-sample studies.38 The Act’s Child Creche provision doesn’t help in this situation; rather, it makes hiring and retaining women more expensive. According to a team leasing (HR Consultancy) study, the Maternity Benefit Act alone may cause up to 2 million women in the formal sector to lose their jobs annually39. According to estimates, this rule may result in a great deal more women losing their jobs since companies won’t hire them and there may be more widespread discrimination.
To support these assertions, an analysis of the effects of the 2011 Columbia Maternity Law Amendment, which increased benefits, might be examined. It revealed harms40 comparable to those in India. Women who could have children were not hired, and there was a rise in women’s unemployment and informalization. Columbia even increased its anti-discrimination enforcement, but to no avail.
The laws of Columbia and India are substantially similar in that: (a) almost all maternity leave expenses, including benefits, are the responsibility of the employer; (b) both are developing economies; (c) the length of paid leave is extended; (d) discrimination protections are provided, and enforcement is significantly more stringent. The legislation had unfavourable impacts.
2.3 REINFORCING GENDER NOTIONS
In addition to perpetuating gender stereotypes, the lack of matching paternity leave policies reduces women’s competitiveness in the labour market and widens the gender pay gap. The creche law41’s language, “having 50 or more employees,” is gender neutral, but another section of the legislation focuses only on women, reinforcing the idea that fathers are the providers and women are the natural caregivers. Only female employees must be informed of this benefit, as male employees are not entitled to it. Women are permitted to visit the creche four times a day.
38 Peermohammad A, “Small Firms Hire Fewer Women to Save Maternity Costs” (The Economic Times (ETech)
<> accessed October 14, 2021
39 “Team lease group- Maternity report 2019 Analysis ( India, June, 28th 2018)
http://bwpeople.businessworld.in/article/Maternity-Bill-amendment-can-lead-to-11-to-18-lakh-job- lossesTeamlease-Report-/28-06-2018-153330/ accessed Oct. 15th 2021
40 Uribe AM, Vargas CO and Bustamante NR, “Unintended Consequences of Maternity Leave Legislation: The Case of Colombia” (2019) 122 World Development 218.
41 Section 11A, Maternity Benefits Act, 2017
2.4. ECONOMIC LOSS OF NOT HAVING ENOUGH WOMEN IN THE WORKFORCE
India’s female labor force participation rate is incredibly low; it was 19% prior to the pandemic and 25% in 2005.42 and dropped to a pitiful 16% following COVID-19 and the country’s lockdowns. To put things in perspective, China had a pre-pandemic female workforce participation rate of 60%, which is roughly four times higher than India’s, while Bangladesh had a rate of 36.37%. Additionally, 96% of India’s female employment is employed in the unorganized or informal sector. The low participation rate has a negative impact on the Indian economy as a whole. A McKinsey study revealed that by 202543, an increase in the number of women in the workforce may boost the Indian economy by $770 billion. If labor laws are created, they should promote hiring women rather than discourage or penalize businesses for engaging in the practice. When businesses discriminate against women who are ready to have children, they lose out on qualified candidates, which lowers the country’s revenue because fewer women participate in the workforce.
2.5 EXACERBATING INFORMALIZATION AND CONTRACTUALISATION OF LABOUR MARKETS— HURTING WOMEN THE MOST
Maintaining the financial burden of offering full maternity benefits to employers who hire women will make the situation worse and raise the “Formalization Penalty”44, which disproportionately raises costs and compliances for a company that chooses to grow by adding thousands of extra requirements for compliance. For this reason, most Indian businesses attempt to operate informally. Instead of adding new industries to the range of informality, India’s labor law policy should encourage businesses to become formal.
3. MODELS OF MATERNITY BENEFIT LAWS: IDEAS FROM ACROSS THE WORLD
42 Person and Kumar M, “India’s Female Labour Participation Rate Falls to 16.1% as Pandemic Hits Jobs” (Reuters August 3, 2021) accessed September 25, 2021
43 Madgavkar A and others, “The Power of Parity: Advancing Women’s Equality in India, 2018” (McKinsey & Company March 10, 2020) accessed September 25, 2021
44 Gautam Chikermane and Rishi Agrawal and Rishi Agrawal, “8 Reforms to End India’s Regulatory Cholesterol” (ORF July 24, 2021) accessed October 1, 2021
A good maternity benefit law should lessen the possibility of any negative and unexpected effects on its beneficiaries. Ensuring women’s fundamental rights should be the main goal of these laws, without compromising their hiring or employability.45
3.1 NO HARM MODEL
In the US, libertarian models like this one are prevalent. Under this paradigm, women receive no benefits from the government or their employers. On the other hand, the employer makes sure that the women’s jobs are safe. This concept is predicated on the notion that the main goal of any legislation pertaining to maternity benefits ought to be to solely encourage women to resume their jobs following pregnancy. After her pregnancy, this model makes sure that her job is there.4647 This concept, proposed by the Federal Maternity Leave Act48, will encourage women to return to the workforce. This is not the best option, though, as the woman receives no assistance from the government or her employer during this time.
3.2 MARKET FORCES HELPING WOMEN AT THE TOP
Under this paradigm, one may make the case for giving employers the option to offer maternity benefits on a voluntary basis. The justification for this suggestion is that businesses in India49 and other developing nations already provide maternity leaves and childcare options—longer than what is necessary by law—in order to attract female talent, not out of altruism. Businesses fight with one another for the greatest talent, and they can’t afford to overlook half of the workforce for fear of losing out to competitors. The global great resignation and COVID- 19.50In an effort to win the talent wars51,has already forced larger corporations to provide greater parental leaves. The companies will pay the same to hire the top people even in the absence of paid maternity leave. Without being required to by law, a few of Indian companies, including Diageo & Meesho, have begun to offer paid parental leave that is gender neutral. The
45 Faundez Chacon LF, “Beyond the Good Intentions: Assessing Unintended Consequences of Labor and Health Policies” [2020] University of Illinois at Chicago – Doctoral Theses (Economics)
46 Thaler RH and Sunstein CR, “Part I, Chapter -5 (Choice Architecture) ,” Nudge – Improving Decisions About Health, Wealth, and Happiness (Penguin Books 2009)
47 Nudge Theory, Economics (Nobel Prize, 2017)
48 Family and Medical Leave Act, 1993 (USA)
49 Hewlett SA and Rashid R, Winning the War for Talent in Emerging Markets: Why Women Are the Solution (Harvard Business Review Press 2011)
50 “The ‘Great Resignation’ Is Coming. Why Millions of Employees Want to Switch Jobs” (mint August 19, 2021)
<https://www.livemint.com/news/india/the-great-resignation-is-coming-why-millions-of-employees-want-to 51 Bernard D, “Talent War Boosts Maternity and Parental Leave Packages” (HR Magazine) accessed October 7, 2021
adverse aspect of this model illustrates how difficult it is to trust market forces, particularly when it comes to giving women access to maternity benefits.
3.3 AN OPTION FOR PATERNITY LEAVE AND REDEFINING CRECHE MANDATES
Despite the fact that it takes a mother a longer period of time to recover from her pregnancy and nurse. A better model of parental leave is to offer paternity leave, which is leave granted to fathers upon the birth of a child. This option lessens the pressure placed on women and dispels gender stereotypes.52Additionally, males benefit from it since it allows them to spend more time with their children and build stronger bonds with them.53 Additionally, because it balances out54, it lessens the total disincentives that businesses face when hiring women.
In order to combat this imbalance, certain developed economies, like Norway, Sweden, Iceland, and Switzerland, have instituted required paternity leaves, often known as father's quotas.
3.4 . GOVERNMENT PAYING THE MATERNITY BENEFITS AND CRECHE BENEFITS
Under this paradigm, employers are required by law to provide maternity leave and to permit women to return to work following childbirth. Here, the government or a shared insurance pool pays all or part of the benefits in the form of salary; this has a long history dating back more than a century; even Dr. BR Ambedkar55 supported governments offering maternity benefits instead of the employers56. This has two benefits: first, it will lessen the likelihood that employers will discriminate against hiring and firing pregnant women. Secondly, it is an ethical policy, since raising a healthy generation is the state's duty, not a business'.
While there is financial strain associated with this, the government may choose to pay the benefit or reimburse the company for any costs related to paying the employee who is pregnant,
52 Duvander A-Z and Moss P, “Chapter 11, Gender Equality – Parental Leave Design and Evaluating It's Effects on Fathers Participation,” Parental leave and beyond: Recent international developments, current issues and
future directions (Policy Press- Bristol 2019)
53 “A Fresh Look at Paternity Leave: Why the Benefits Extend beyond the Personal” (McKinsey & Company April 20, 2021) accessed October 9, 20
54 “Paid Parental Leave, Including Mandatory Paternity Leave” (United Nations – Human Development
ReportsMarch 17, 2016) accessed October 8, 2021
55 Supra- Chapter 1
56 Harris HJ, Maternity Benefit Systems in Certain Foreign Countries (Govt Print Off US Departnment of Labour 1919)
contingent on the status of the economy. Indian rules now place all wage obligation on businesses, and the suggested incentive plan is woefully insufficient to bring about any real change. Governments, not employers, pay childcare benefits throughout the world; India may profit from this model as well.
4. CONCLUSION
This essay has examined a number of the 2017 Maternity Benefit Act’s provisions. We have examined the legal precedents, the historical context, and the modifications implemented by the 2017 Amendment. We examined how the Indian legislation has affected women. We also examined the effects on women of comparable laws from throughout the globe.
We have concluded that any strategy that lays the onus of providing maternity benefits to women entirely on the employer has not worked as intended. Even the Maternity Benefit Convention of 2000 does not give the employer exclusive obligation for this.
Therefore, it is crucial that the state remove any obstacles that would discourage firms from hiring women in order to guarantee that there is a greater representation of women in the workforce. The state bears the burden of providing for its inhabitants. Since India was created as a welfare state, it is only fitting that the state, as well as all tax payers, should bear the burden of caring for the country’s future generations and compensating women fairly for the labor they do when giving birth to children. This obligation should not fall solely on the shoulders of the employer.
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