by Harini Subramani and Ongmu Tshering
The timing has been impeccable this time around. The Maternity Benefit Amendment Bill, 2016 has been passed in the Lok Sabha a day after International Women’s Day.
Just as a recap, the Bill amending certain provisions of the Maternity Benefit Act of 2016 was introduced in the Rajya Sabha in August last year, while it was finally passed in the Lok Sabha yesterday. While it awaits the Presidential nod, presuming that the Lok Sabha version is not any different from the Rajya Sabha version, it is worth discussing certain facets and implications of the existing law along with the proposed amendments.
The principal amendments include the introduction of the definition of a “commission mother”, along with a corresponding maternity benefit for such mothers, a provision relating to crèche facilities that can be set-up by certain establishments, and an increase in the maternity benefit period (calculated in weeks).
Much has been said on the provisions relating to the increase in the maternity benefit period from twelve weeks to twenty six weeks. So this article shall not delve into this, except for acknowledging that this is a positive step.
Just to add, the Tamil Nadu Government had also last year increased the maternity leave from ninety days to one hundred and eighty days for married government servants. Maybe the Centre could take a leaf out of this progressive state’s book.
While many of the other amendments in this Bill appear well-intentioned, they raise practical questions. Case in point: no statutory recognition to workers whose services are not regularized.
To this extent, it would be pertinent to discuss the Municipal Corporation of Delhi case that was decided by the Supreme Court over a decade and a half ago. In this landmark judgement, by taking cognizance of the constitutional principles on gender, the Apex Court had upheld the right of female construction workers whose services were not regularized, to maternity benefits. The amendment gives this a miss.
The next grey area is the definition of certain terms. Two primary concepts, i.e., “pre-natal” and “post-natal” are not defined terms. Yet, the amendment has not sought to address this. The National Health Portal of India, an information portal started by Ministry of Health and Family Welfare offers a basic definition of “pre-natal” care but does not define the other term.
Lawyers, if not the law, are obsessed with definitions and if not provided for, take to interpretation. It is important to define these terms so as to be able to determine the duration for the accruing benefits (read medical bonus). An open-ended time period could lead to much subjectivity, lending either a narrow or liberal interpretation.
It is also surprising that despite the tremendous uproar around the latest “Surrogacy Bill”, the underlying concept reflects neither in the amendments nor the original Act. Surrogacy as a term has enjoyed a definition as per the law. But there is no statutory provision providing maternity benefit to a surrogate mother.
If the aim of this law is to help women recuperate, then there is no reasonable cause to exclude surrogate mothers. Again, this finds solace only via a judicial precedent. Last year, the Bombay High Court in one of its cases ruled that a mother having a child through surrogacy was also entitled to maternity leave.
Another provision in the Act posits a commercial faux pas. The current law, in Section 8, provides that the employer shall pay the woman, subject to certain conditions, a sum of rupees two hundred and fifty. We can all agree that this amount does not cover a doctor’s consultation fee. Neither is the figure reflective of the geographical cost of living index/parameter. Did this not therefore merit an amendment?
In its own way however, the Bill also appears to incentivize “population control”. As by way of a new provision, the Bill also provides for a specific exclusion of the increase in maternity benefit to mothers who already have two or more children. In other words, such mothers would be able to enjoy a maternity benefit of twelve weeks, as was the case for all mothers prior to this amendment. Were we to adopt a policy similar to China’s restrictive child norms, India may face demographic problems like China in the long term.
To sum up, the amendments may be headed in the right direction, but there is a large scope for improvement.
Here is a copy of the Bill taken from PRS
Harini Subramani is a Consultant and Ongmu Tshering is a Partner, with J. Sagar Associates, Advocates and Solicitors. The views expressed here are their own.
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