By Tawishi Beria
The Maternity Benefits Act, 1961 was the primary legislation governing maternity benefits in India. By way of the 2017 Amendment, major positive changes were made to the said Act. Most recently, the Code on Social Security, 2020 brings maternity benefit provisions within its ambit. Some of the notable changes include an increased period of maternity leave, provision of work from home facilities, having a creche for certain establishments, and extension of benefits to adoptive and commissioning mothers. Despite such continuous evolvement, these provisions have failed to reflect an all-inclusive approach, and the current framework leaves out a substantial number of women from coverage. This paper looks at workers in the unorganised sector, specifically, women working in the construction sector in India. Various states have schemes that provide payment of maternity benefits to registered building and construction workers. However, the amount is extremely meagre, and is allowed only two times. In light of this, the paper demonstrates the added detriment caused to such mothers, considering the social and financial challenges they already face. It seeks to employ a social justice and equality lens advocating the need for extending maternity benefits to them.
Introduction
India’s Maternity Benefit Act, 1961[1] (“MBA”), along with the 2017 Amendment[2] that substantially overhauled the same, has been labelled as a possible ‘Game Changer’ by various authors.[3] This is owing to provisions like increased maternity leave from 12 to 26 weeks, having work from home facilities, mandating creche facilities for establishments with more than 50 employees, and extending maternity benefits to adoptive and commissioning mothers. With the enactment of the Code on Social Security, 2020[4] (“the Code”), the maternity benefit provisions have been brought within its ambit.
Notably, workers in the unorganised sector are not directly eligible to avail maternity benefits under Chapter VI of the Code. The Central Government is empowered to make welfare schemes for such unorganised workers on matters relating, inter alia, to maternity benefits.[5] This raises doubts about the alleged progressiveness of such provisions in India, given that over 90% of the workforce is part of the unorganised sector.[6] In a bid to highlight the inequities due to such exclusion, this paper particularly looks at the plight of building and other construction workers (“BOC workers”) from a social justice perspective in the absence of access to maternity benefits. It explores the intersection between gender discrimination and financial burdens faced by female workers in the unorganised sector that essentially serve as an added detriment.
This paper is divided into four main parts. In the first part, the applicability of maternity benefit provisions to the unorganised sector is assessed. Part two summarises and critically analyses the benefits available to BOC workers in 20 states, since the data pertaining to all the states in India is not available. Part three highlights the inadequacy of facilities provided in light of the social and financial challenges faced by such women. The last part concludes by emphasising the urgent need to bring unorganised workers under the ambit of Chapter VI of the Code for India to truly be a ‘Game Changer.’
Maternity Benefits to the Unorganised Sector
One of the major critiques of the maternity benefit framework in India has been its inherent non-inclusiveness. The provisions under the MBA were applicable only to women employed in an ‘establishment.’[7] This covers only the organised sector and leaves out about 90% of the female workforce.[8] Further, the Unorganised Workers Social Security Act, 2008, listed maternity benefits as one of the facilities for the unorganised sector. However, the Janani Suraksha Yojana, the only scheme notified by the government under this, merely incentivised institutional delivery and provided maximum financial assistance of Rs. 1,400.[9]
Another scheme, namely, the Pradhan Mantri Matru Vandana Yojana (“PMMVY”), is notified under the National Food Security Act, 2013 (“NFSA”). This scheme provides Rs. 5,000 in three instalments to all pregnant and lactating women but is limited to one child only. Notably, the Supreme Court of India recently sought a report from the Union Government regarding the status of the implementation of Section 4(b) of the NFSA.[10] This section mandates granting an annual sum of Rs. 6,000 to all pregnant and lactating women to enable them to get nutritious food. Such proactive steps and constant monitoring on the part of the Judiciary is highly encouraged. This would help ensure practical application of the provisions and schemes in a situation where the ground reality is even more problematic. According to surveys in Jharkhand, 155 out of 202 women did not receive maternity benefits[11] under the PMMVY. In Chhattisgarh, 97% of the applications under PMMVY were stuck at the registration stage itself, for up to 15 months, due to the complex forms and data entry process.[12] The Indira Gandhi Matritva Sahyog Yojana is another scheme that does little to help workers in the informal sector.[13]
In terms of the current framework, with the introduction of the Code, the provisions of the erstwhile Acts have merely been subsumed therein without any alteration. Essentially, the unorganised sector is still precluded from directly availing maternity benefits under Chapter VI of the Code. Instead, under Section 109 (1) (ii), the Central Government is empowered to make maternity benefit-related welfare schemes for the unorganised sector.[14] No such scheme has been notified yet, possibly owing to the fact that the Code itself has just been notified. However, the schemes formulated by the government under the erstwhile regime have largely failed to provide any meaningful assistance and are testimony to the efficacy of the same.
In terms of judicial developments, through various cases, including Municipal Corporation of Delhi v. Female Workers Muster Roll[15] and Anshu Rani v. State of U.P.,[16] it has been established that contractual women workers are entitled to a 26-week maternity leave. Along similar lines, extending such provisions to women working in the unorganised sector at large is required. Maternity benefits should be universally available, and discriminating between the two sectors in this regard falls foul of Articles 14, 15, and 21 of the Constitution of India. These provisions provide for the fundamental right to equality, non-discrimination, and the right to life and personal liberty. However, the mandate under these rights only applies to the ‘state,’ a term defined in Article 12 of the Constitution. While these provisions may only be enforceable against the State, labour legislations do extend the application of certain constitutional principles[17] to private enterprises as well.[18] Such extension implies that even private enterprises are required to adhere to these provisions and may be held in breach thereof.
Plight of BOC Workers
BOC workers are one category of workers in the unorganised sector who are particularly disadvantaged owing to their vulnerable position, discussed later in this paper. In terms of statutory provisions, Section 18 of the BOC Workers Act, 1996 provides for the constitution of State Welfare Boards.[19] Section 22(g) of the said Act makes it a function of these Boards to “make payment of maternity benefit to the female beneficiaries.”[20] Pursuant to this, various states have formulated schemes that provide different amounts of money as maternity benefits on fulfilment of certain conditions. The following table summarises these:
| S. No. | Name of State | Maternity Benefit Amount | Other details |
| 1. | Assam[21] | During maternity period: Rs. 20,000 | Allowed only twice |
| 2. | Uttar Pradesh[22] | For female registered construction workers: Rs. 3,000 | One time assistance, Limited to two children |
| 3. | Maharashtra[23] | Normal Delivery: Rs. 15,000 Surgical Delivery: Rs. 20,000 | Contraceptive surgery after the birth of the first girl child is required |
| 4. | Delhi[24] | For women members and wives of male members: Rs. 30,000 | Limited to two children |
| 5. | Andhra Pradesh[25] | For women workers: Rs. 20,000 | Limited to two children |
| 6. | Jammu & Kashmir[26] | For female workers: Rs. 5,000 | Limited to two children |
| 7. | Rajasthan[27] | If the worker gives birth to a male child: Rs. 21,000 and female child: Rs. 20,000 | |
| 8. | Madhya Pradesh[28] | To be paid in the last trimester of pregnancy: Amount not specified | Limited to two children; the beneficiary should be above 20 years of age at the time of delivery |
| 9. | Karnataka[29] | If the worker gives birth to a male child: Rs. 20,000 and female child: Rs. 30,000 | Limited to two children |
| 10. | Kerala[30] | For pregnant workers: Rs. 15,000 | Limited to two children |
| 11. | Punjab[31] | For female workers: Rs. 21,000 For male workers: Rs. 5,000 | Limited to two children |
| 12. | Haryana[32] | Total: Rs. 36,000 with Rs. 30,000 for maternity and Rs. 6,000 for the nutrition of the child | Limited to two children if they are male, limited to three children if they are female |
| 13. | Nagaland[33] | For wives of male beneficiaries and female beneficiaries: Rs. 6,000 | Allowed only twice |
| 14. | Meghalaya[34] | During maternity period: Rs. 1,000 | Allowed only twice |
| 15. | Manipur[35] | For female beneficiaries working as building workers: Rs. 6,000 | Allowed in case of miscarriage up to two times |
| 16. | Odisha[36] | Rs. 8,000 | On completion of 1 year |
| 17. | Andaman & Nicobar Islands[37] | For women employees: Rs. 20,000 and for male employees whose wife is 19 years or more: Rs. 10,000 | Employees must be registered beneficiary for at least 1 year |
| 18. | Telangana[38] | For women workers, wives of male workers, and two daughters of either male or female worker: Rs. 30,000 | Limited to two children |
| 19. | Tripura[39] | For registered female construction workers: Rs. 5,000 | |
| 20. | Mizoram[40] | Rs. 5,000 |
It is clear that the amount of financial assistance provided by different states in India varies vastly, ranging from Rs. 1,000 to Rs. 36,000 per delivery. Such meagre amounts are unlikely to cover even the pregnancy-related medical costs, let alone post-natal childcare. Moreover, two specific conditions that are common throughout most states are- (i) registration with the Welfare Board and (ii) limitation of the benefits to two children only. It has been observed that unless there are strong unions, registration is a very cumbersome process in most states and requires annual renewal as well as evidence of working in the sector for at least one year.[41] Consequently, the practical application of these schemes becomes questionable.
An Added Detriment?
Women workers in the construction sector face gender discrimination, not just in India but across the world.[42] Crucial areas like skill development and education, sexual harassment issues, and the scope of upward mobility reflect this gender gap.[43] In addition, the lack of economic power with these workers resulting from low wages in general, wage discrimination, and the relative importance of women’s earnings vis-à-vis men’s earnings is also a persisting problem.[44] Since men are typically considered the breadwinners in most households, the woman’s work and her earnings have little value. Kimberle Crenshaw’s theory of intersectionality states that various characteristics like race, gender, class, etc., overlap and define the experiences of individuals.[45] Just like Crenshaw used the intersection of race and gender to demonstrate the plight of black women, gender and economic discrimination faced by women BOC workers largely shape their employment experiences.
More specific to maternity benefit, an interesting observation drawn from the table in the preceding section is that in most states, male employees are not paid any monetary amount at all. In some other states, the amount paid to male employees, intended for their wives, is fairly less than that paid to female employees. Such practices further promote discriminatory practices and motivate employers not to hire women or fire them when they get pregnant. This is because employers would essentially have to pay maternity benefits to the worker and also lose the worker for a significant period of time. In the author’s opinion, the provisions adopted by Telangana (providing monetary benefit to female workers, wives of male workers, and two daughters of workers)[46] reflect the best approach in checking discrimination, ensuring equality, and providing maximum protection to workers and their kin.
From a demographic aspect, states in Western India seem to discourage the birth of a girl child, reflecting the inherent patriarchy. While in Rajasthan, the maternity benefit amount for a male child is more than that for a female, Maharashtra has a peculiar requirement of contraceptive surgery after the birth of the first girl child. This essentially eliminates the agency of the mother and allows the State to dictate something extremely personal. On the other hand, South India is often known for its matrilineal family structures and relatively better gender relations.[47] This manifests itself in the maternity benefits scenario as well. For instance, Karnataka allows a higher maternity benefit amount on the birth of a girl child. Telangana, Andhra Pradesh, and Kerala also do not provide any additional benefits for male children or impose any adverse requirements for females.
Lastly, the mode of employment or appointment of women employees is another basis on which discrimination occurs.[48] Since BOC workers are often hired on a contractual basis, as opposed to a regular long-term basis, this aspect is essential to look at. Certain benefits available to workers hired on a more permanent basis are not available to contract workers, justifying the need to explore how maternity benefits plays out in this regard. The Jharkhand High Court, in a recent case, held contractual and non-contractual workers are equally entitled to maternity benefits, basing its decision on the definition of ‘woman’ under section 3(o) and section 5 of the MBA.[49] Such judgments are the need of the hour to eliminate the varied forms of discrimination that women workers face, especially since lack of coverage under the Code’s maternity benefit provisions acts as an added detriment.
Conclusion
It has been observed that less than 1% of all the women in the Indian labour force benefit from the maternity law,[50] with the lack of awareness about such rights further alleviating the problem. The limited coverage of the law has been a problem since the very first MBA itself, and the Code reflects a missed opportunity on the part of the legislature to rectify the same. Women BOC workers face challenges in a number of spheres, the front runner being gender discrimination. While this paper specifically assessed the inaccessibility of maternity benefits in the BOC sector, other informal sectors are also equally plagued with the issue.
In e light of this, merely empowering the government to implement schemes for the unorganised sector is not sufficient. The need of the hour is to extend maternity benefits to all workers. An amendment of the Code would be the best way to do so, given that the Code is at a nascent stage, where no substantial litigation has come about yet. In addition to this, the schemes formulated by various states could also be harmonised to some extent, given the glaring differences.
Another step that could be taken is extending the monetary amount of maternity benefit to male workers for their wives, albeit on slightly stricter conditions than those provided to women workers. If this is made mandatory, employers could be more willing to employ women as well since the maternity benefit would have to be equally paid to male workers. However, as a first step, if all women are made directly eligible to avail the provisions of Chapter VI of the Code, India’s maternity benefit law could truly be a game-changer, setting an example for countries across the globe.
The author, Tawishi Beria, is an undergraduate law student at Jindal Global Law School (JGLS), Sonipat.
[1] Maternity Benefits Act, 1961 (hereinafter “MBA”)
[2] Maternity Benefit (Amendment) Act, 2017
[3] Saumya Uma & Aditya Kamath, ‘Gamechanger or a Trojan Horse? Some Reflections on the Maternity Benefit Act, 1961’ (2020) 55(20) EPW <https://www.epw.in/journal/2020/20/review-womens-studies/gamechanger-or-trojan-horse.html> accessed 20 September 2021; Jean D’Cunha, ‘India’s Bold Maternity Benefit Act Can Become a Game Changer if it Addresses Current Limitations’ (2018) 53(31) EPW <https://www.epw.in/engage/article/indias-bold-maternity-benefit-act-can> accessed 20 September 2021
[4] The Code on Social Security, 2020 (hereinafter “Code”)
[5] ibid, s 109 (1) (ii)
[6] Santosh Mehrotra, ‘Informal Employment Trends in the Indian Economy: Persistent informality, but growing positive development’ (2019) Working Paper No. 254, Employment Policy Department ILO <https://www.ilo.org/wcmsp5/groups/public/—ed_emp/—ifp_skills/documents/publication/wcms_734503.pdf> accessed 20 September 2021
[7] MBA (n 1), s 2
[8] Sarah Hafeez, ‘Maternity, Without Benefits’ (Indian Express, 2 April 2017) < https://indianexpress.com/article/lifestyle/life-style/maternity-without-benefits-for-women-working-in-unorganised-sector-labourers-4595724/> accessed 29 September 2021
[9] Dipa Sinha & Sudeshna Sengupta, ‘How Maternity Benefits Can Be Extended to Informal Women Workers’ (The Wire, 6 February 2019) < https://thewire.in/women/how-maternity-benefits-can-be-extended-to-informal-women-workers> accessed 29 September 2021
[10] Dhananjay Mahapatra, ‘SC seeks status report from Centre on grant to pregnant women’ (The Times of India, 15 July 2020) <https://timesofindia.indiatimes.com/india/sc-seeks-status-report-from-centre-on-grant-to-pregnant-women/articleshow/76970771.cms> accessed 17 January 2022
[11] Abhishek Angad, ‘Maternity Scheme in Jharkhand’ (Indian Express, 6 September 2019) < https://indianexpress.com/article/india/maternity-scheme-in-jharkhand-155-of-202-applicants-did-not-receive-benefits-says-survey-5970629/> accessed 29 September 2021
[12] Vipul Kumar Paikra, ‘In Chhattisgarh, 97% applications for maternity benefits remain stuck at the registration stage’ (Scroll.in, 18 February 2021) <https://scroll.in/article/953323/in-chhattisgarh-97-applications-for-maternity-benefits-remain-stuck-at-the-registration-stage> accessed 29 September 2021
[13] Niti Aayog, ‘Quick Evaluation Study on Indira Gandhi Matritva Sahyog Yojana (IGMSY)’ (Niti Aayog, April 2017), <https://www.niti.gov.in/writereaddata/files/document_publication/IGMSY_FinalReport.pdf> accessed 17 January 2022
[14] Code (n 4)
[15] 2000 (3) SCC 224
[16] 2019 (4) ADJ 809
[17] The Constitution of India, arts 14, 16, 21, 39(d), 39(e), 42, 46
[18] Uma & Kamath (n 3)
[19] The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996
[20] ibid
[21]Commissionerate of Labour, ‘Various Welfare Benefits for Registered Construction Workers’ (Labour Commissioner, Assam, 29 December 2021) <https://labourcommissioner.assam.gov.in/portlet-innerpage/various-welfare-benefits-for-registered-construction-workers> accessed 17 January 2022
[22] The Building and Other Construction Workers, Labour Department, ‘Maternity Scheme’ (Labour Department, Government of Uttar Pradesh, 2 November 2020) <https://www.upbocw.in/english/staticpages/maternity_benefit.aspx> accessed 17 November 2022
[23] Maharashtra Building and Other Construction Worker’s Welfare Board, ‘Welfare Schemes’ (Maharashtra Building and Other Construction Worker’s Welfare Board) <https://mahabocw.in/welfare-schemes/> accessed 17 January 2022
[24] Delhi Building and Other Construction Worker’s Welfare Board, ‘Welfare Schemes’ (Gov. of NCT of Delhi, 26 June 2020) <http://tte.delhigovt.nic.in/wps/wcm/connect/doit_dbcwwb/DBCWWB/Home/Welfare+Schemes/> accessed 17 January 2022
[25] V.V. Pandurangaraju (Welfare Commissioner), ‘Circular No. A/4318/2016’ (Andhra Pradesh Labour Welfare Board, 29 June 2017), <https://labour.ap.gov.in/ELabour/Documents/Schemes/APLWB/Schemewise_Details_and_Guidelines.pdf> accessed 17 January 2022
[26] Government of Jammu and Kashmir, ‘Scheme Information’ <https://jkbocw.gov.in/StaticPages/SchemeInformation.aspx> accessed 20 September 2021
[27] Department of Labour, ‘Schemes’ (Labour Department, Government of Rajasthan, 24 November 2021) <https://labour.rajasthan.gov.in/Schemes.aspx> accessed 17 January 2022
[28] Madhya Pradesh Building & Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2002
[29] Karnataka Building and Other Construction Worker’s Welfare Board, ‘Maternity Benefit’ (Government of Karnataka, 12 July 2021) <https://karbwwb.karnataka.gov.in/info-2/Maternity+Benefit/en> accessed 17 January 2022
[30] Kannur District ‘Kerala Building and Other Construction Worker’s Welfare Board’ (Government of Kerala, 17 January 2022) <https://kannur.nic.in/the-kerala-building-and-other-construction-workers-welfare-board/> accessed 17 January 2022
[31] Punjab Building and Other Construction Worker’s Welfare Board, ‘Welfare Schemes’ (BOCW, 2013) <https://bocw.punjab.gov.in/index.aspx?id=Welfare%20Schemes&Data=38> accessed 17 January 2022
[32] Labour Department Haryana, ‘Scheme Detail’ <https://hrylabour.gov.in/bocw/settings/schemeDetail/105> accessed 17 January 2022
[33] Nagaland Building and Other Construction Worker’s Welfare Board, ‘Schemes’ (Department of Labour, Government of Nagaland, 2 November 2020) <https://nbocw.nagaland.gov.in/schemes> accessed 17 January 2022
[34] Meghalaya Building and Other Construction Worker’s Welfare Board, ‘Maternity Benefit’ (Meghalaya Building and Other Construction Worker’s Welfare Board, 11 January 2021) <http://megbocwwb.gov.in/schemes_maternity.html> accessed 17 January 2022
[35] Manipur Building and Other Construction Worker’s Welfare Board, ‘Maternity Benefit to the Female Beneficiary’ (MBOCWWB, Government of Manipur) <http://manipurbcwb.in/SchemeDetails?title=maternity+benefit+to+the+female+beneficiary> accessed 17 January 2022
[36] Labour Directorate, Government of Odisha, ‘Odisha Building and Other Construction Worker’s Welfare Board’ <https://labdirodisha.gov.in/?q=node/15%27%3B> accessed 17 January 2022
[37] Department of Labour, Employment and Training, ‘A&N Islands Building and Other Construction Worker’s Welfare Board’ (Andaman & Nicobar Administration, 2018) <http://labour.and.nic.in/welfareboard.html> accessed 17 January 2022
[38] Telangana Building and Other Construction Worker’s Welfare Board, ‘Details of Welfare Schemes which are being implemented by the Telangana Building and Other Construction Workers’ Welfare Board, Hyderabad, for the benefit of construction workers in the state’ (TBOCWWB, 24 April 2019) <https://tbocwwb.telangana.gov.in/new_welfare_schemes.html> accessed 17 January 2022
[39] SK Das, ‘Memorandum’ (Government of Tripura, Labour Department, 29 September 2015) <https://labour.tripura.gov.in/sites/default/files/education-maternity-benefit.pdf> accessed 17 January 2022
[40] Mizoram Building and Other Construction Worker’s Welfare Board, ‘Maternity Assistance’ (Government of Mizoram, 15 January 2020) <https://bocw.mizoram.gov.in/page/maternity-assistance> accessed 17 January 2022
[41] Sinha & Sengupta, (n 9)
[42] Alexandra Olson, ‘How female construction workers fight workplace discrimination’ (The Christian Science Monitor, 9 September 2021) <https://www.csmonitor.com/USA/Society/2021/0909/How-female-construction-workers-fight-workplace-discrimination> accessed 27 October 2021
[43] Krishna Kakad, ‘Gender discrimination in the Construction Industry: The Case of Two Cities in India’ (2002) 6(3) Gender, Technology and Development 355 <https://journals.sagepub.com/doi/10.1177/097185240200600302> accessed 17 January 2022
[44] ibid
[45] Kimberle Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Colour’ (1991) 43(6) Stanford Law Review 1241, 1244 <https://www.jstor.org/stable/1229039> accessed 17 January 2022
[46] See Telangana Building and Other Construction Worker’s Welfare Board (n 38)
[47] Alice Evans, ‘Why do women in South India have more freedom than their northern sisters?’ (Scroll.in, 12 October 2020) <https://scroll.in/article/975151/why-do-women-in-south-india-have-more-freedom-than-their-northern-sisters> accessed 30 October 2021
[48] Sarita Kumari v State of Jharkhand, 2021 SCC OnLine Jhar 706
[49] ibid
[50] Shruti Rajagopalan & Alexander Tabarrok, ‘Premature Imitation and India’s Flailing State’ (2019) 24(2) Independent Review 165 <https://www.independent.org/pdf/tir/tir_24_2_01_rajagopalan.pdf> accessed 17 January 2022
The Journal of Indian Law and Society 