Author: Yashaswani Parahsar, IV year of B.A.,LL.B.(Hons.) from University of Petroleum and Energy Studies
Abstract
A Human searches perfect combination of work and leisure at their workplace, according to SHWW (Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 workplaceis defined as all the governmental and non-governmental departments, organizations, enterprises, society, trust, hospitals, sports institutions, and even the places where an employee visit was arising out of the course of employment[1]. These expectations of humans are desirable as far as their peaceful balance of employment and rights to life are concerned. This balance has to be worked out in various ways to make the ultimate standards of labour welfare accomplished. The paper contemplates the need to improve the basic necessities at work place not only in organised but also in unorganized sectors.The balance includes the right to work in a safe and healthy environment with a special concern towards the most vulnerable section of society explicitly women, children, and others working in inhumane conditions.
Introduction
Global Position of women worker
According to ILO statics 21 countries introduced protective measures against unhealthy working conditions but still, 6 out of 10 potential mothers are not covered by these measures and hence exposed to OSH risk indicating the dire need of bringing appropriate measures. Since, a worker is more than human resource carrying numerous obligations of society, family, and dignity over their shoulders, they essentially need legal recognition of their rights. With an eye on global sustainable goals, including gender equality, ironically 66 countries do not provide legal protection against the health risks of night work and leaving 4 in 10 potential mothers globally without adequate legal protection[2]. Therefore, the Right to reasonable working time, leave for prenatal examinations, and adequate maternal healthcare are pertinent for the recognition of the right to health of women workers in balance with the right to livelihood.
The core element of promoting paid maternity leave is the health and economic preservation of women workers. These two factors are fundamentally envisaged in Universal human rights treaties like UDHR (1948); the Convention for Elimination of forms of Discrimination Against Women (1979) as well as in various conventions and conferences of ILO. As far as Maternity protection in the Indian context is concerned the same got recognition long back in 1961, this entitlement of evolving rights to Indian women is associated with positive outcomes of reducing gender discrepancies. The Maternity Benefit Act of 1961 ensures paid maternity leave which equates to the average rate of daily wage of leaves.
However, the benefits are preconditioned with 80 working days during 12 months preceding the expected date of delivery. Fulfilling the conditions as stated it becomes unlawful to dismiss an employee for taking maternity leave. However, the premedical conditions in exceptional and emergencies tend to increase the relaxation period lacking somewhere in the concept of fixed periods of maternity leave. However, the maternity law in India came up with a revolutionary amendment, the Maternity Benefit (Amendment) Act, 2017 with increased maternity leaves, criminalizing the violation of the rights and extending the benefits to commissioning mothers.
Constitutional Obligation of State in India
The hon ’able Supreme Court of India has identified the maternity relief as the right to health under Art. 21 of the Indian Constitution. The constitution has kept the spirit of motherhood in its provision, the same been explained further Indian perspective of (i) holding pride in motherhood with institutional support (ii)dignified environment for motherhood.
Particularly, the landmark and recent judgement are as follows:
The three judge bench in the case of Bandua Mukti Morcha v. UOI[3] said that “Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men, and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief.” The development not only rests here but after the amendment of the Maternity Benefit Act in 2021, the judiciary has taken revolutionary steps to protect pregnant women's rights at workplace. Wherein, reproductive choice has been considered as part of personal liberty in resonance with Article 21, such inspirational observations have constantly assisted to balance the health and economic protection of women.
Recently, the Delhi High court issued a notice to the Central Government and University Grant Commission stating that a female student in her higher studies cannot be denied maternity relief on account of the shortage of attendance amounting to a violation of fundamental rights[4]. Further, The Allahabad High Court in the case of Saumya Tiwari v. State of U. P[5]took into consideration the nature of social changes outstripping the foresightedness of legislature and emphasized that legislative lethargy cannot compromise fundamental rights. Essentially the court taking into consideration the guidelines of Vishaka v. the State of Rajasthan directed the respondent University to neglect the legal instruments and provide maternity leave to the expectant students.
(i) Holding pride in motherhood with institutional support
The traditional and cultural practices of Indian society venerate progenitor ship which was beautifully proclaimed by our constitution to protect the dignity and status of motherhood. The obligations and duties of the state were formulated in turn to balance the choice of motherhood and employment without compromising one’s self-respect, dignity, and responsibilities. To ensure the same every stump of the legislature, executive and judiciary need to ensure that no action against women should be possibly taken against a woman compelled under the circumstances of taking care of her child. Conglomerating the opinion of the Kerala High Court in the case of Mini K.T. v. Senior Divisional Manager L.I.C.[6], the court threw light on the institutional support to pregnant employees in the lieu of Indian culture and civilizational values where mother is projected as goddess. However, motherhood is also recognized in a pedestalised role in every culture of the world to which India is no exception which encourages relevance of international instruments with Indian Constitution. According to Article 25(2) of United Nation Universal Declaration on Human Rights[7] “Motherhood and Childhood are entitled to special care and assistance. All children born in or out of the wedlock shall enjoy the same social protection”. Therefore, this is the reason that special protection to mother during reasonable period before and after pregnancy[8] and prevention from all sorts of discrimination against women[9] shall be avoided at the workplace or any other institution. In the case of Pratap Singh v. the State of Jharkhand[10]these scholarly discussions were also recognized.
(ii) Dignified environment for motherhood
The Dignity of a human has been declared as a Fundamental Right under Article 21 of the Indian Constitution for which ‘jurisprudence on dignity’ evolved in the case of K.S. Puttaswamy v. Union of India[11]. The court further observed that there lies significant and inseparable relationship between dignity and protection of life protected as an integral part of Indian Constitution. Therefore, in the light of dignity found against unreasonableness, freedom of choice and personal liberty is envisaged to fight against the stereotypical believes with skills and ability of women employees.
It is pertinent to understand the right of reproductive choice of women and personal intimacies with respect to the privacy, life and liberty for procreation and child-rearing. Modernization is not stacked to demand of advanced goods and services, but with regard to ice breaking towards social issues too. Even in 21st century, the remotest part of the world possibly human and gender exploitative beliefs exists. Therefore, formulation of policy is pertinent to provide every possible facility to those who constitute almost half of the segment of our society. Hence, appropriate regulation as a legal instrument to facilitate maternity benefit should be predominantly provided to create an environment to hold the dignity of motherhood all above.
Maternity Relief in Unorganized Sector
(i) What is the ‘equality’ status in unorganized sector?
Improvement in public health has been declared as a primary duty of the State by the fundamental rights. The Constituent Assembly while formulating Part IV of the constitution-imposed duty on the government to act as an agency to raise the basic nutrition levels and maintain the standard of living of people in pursuance of Article 21. As far as the golden triangle, recognized in the case of Maneka Gandhi v. UOI[12]the right to life (specifically right to health) and right to equality make headway together. Deriving the reference of this correlation with respect to Maternity relief implies that as far as the right to health of women is concerned it needs to be pedestrianized with respect to the provision of Article 42 of the Indian Constitution. This State policy gives power to the state to make such conditions favouring just and humane conditions of work and maternity relief in collaboration with Article 48 A and Article 51A(g).
Recently, the amendment in the Maternity Benefit Act (MBA) has made India stand at third place after Norway and Canada owing to increased maternity leave to 26 weeks, facilities of work-from-home and extension of benefits to adoptive and commissioning female workers. However, the plight of women working in the unorganized sector is nowhere raised under MBA as the scope of the legislation is applicable only to ‘establishment’. The actual beneficiaries are least prioritized when it comes to risky unorganized employment like agriculture, forestry, construction, mining, manufacturing, and other ancillary sectors. Unorganized workers are nowhere defined under Maternity Benefit Act, 1961 and the Payment of Gratuity Act, 1972. However, the term unorganized worker is defined under Unorganised Workers’ Social Security Act, 2008[13] as “home based or self-employed workers working in unorganised workers.” There exists no job security, social security, old age pension, health insurance or provident funds, or minimum wage rules. For instance, in textile industries, women workers generally get maternity leave of 90 days but without any remuneration. A stretched ambition for gender equality in the workplace lacking in such sectors by the virtue of exploitative working conditions, sexual harassment, inequitable wages, irregular employment, etc. Such levels of conditions overburden the women from oppressed section of the society exposed to humiliating treatment, retard them from proper living and working conditions. One of the most special phases of experiencing motherhood turn into hardships, poverty, discriminatory and cause sexual division of labour at workplace.
(ii) Do the benefits worth to beneficiaries?
Pradhan Mantri Vandana Yojana (PMMVY) notified under National Food Security Act, 2013 provides Rs. 5000 to pregnant and lactating women in three instalments. However, the implementation is critical to be analysed as far as limitation to one child and variation of policies in states is concerned. On checking out, many of these schemes are gender biased, in Rajasthan the maternity benefit is prejudiced, as the amount for male child is more than of a female child. On the other hand some states like Karnataka, Telangana, Kerala and Andhra Pradesh have no such policies. There are numerous policies and even implementation evidence data reflecting the beneficiary, however, only about 6 percent of the unorganized workers are covered under social security measures[14]. To ensure the practical implementation the hon ‘able Supreme Court has asked government of India to update reports of effective execution of NFSA[15]. Under section 109 (1) (ii) of the Code on Social Security, 2020[16], the central government has power to frame and notify welfare schemes relating to health and maternity benefits. The provision has not been utilized yet, providing not benefits and meaningful assistance to the needy women. Human right litigation has led to progressive jurisprudence continuously recognizing fundamental rights and improving the access to justice.[17] Therefore, there arise a dire need to pave a way forward to bring essential changes to the legislation.
In the context of the Maternity relief, a significant observation by the hon ‘able Supreme Court in the case of State of Punjab v. Ram Lubhaya Bagga[18] was that there lies a correlation between rights of a person and duty imposed on individual, employer, government or authority. Therefore, this duty is not restricted to public employer or governmental organization to grant maternity relief but also an obligation on private (organized or unorganized) sector to maintain the dignity of right to health of women employee. As far as the duty of government is concerned, can be traced to ‘Right to health’ under art. 21 of the constitution, widening the scope of the same, as it is the responsibility of the government to secure medical aid for every person in state[19] therein, a greater obligation is extended for the expected working women too.
(iii) Need to mark the essential questions
Therefore, Aggregating the ideas and identifying a significant connection of right to health and gender equality implies that every state action with respect to the health of employees should be welfare oriented taking into consideration distinguished conditions. The international Convention on Economic, Social and Cultural Rights (Art. 10(2))[20]states requirement of special protection to mothers during pre- and post-natal period. These special protection and needs include adequate social security and paid leaves. Therefore, with reference to constitutional and international obligations, it is very essential to highlight right of women in an institution and give access liberty to have an effective and acceptable method of family planning, and right to access to health due to economic or social restrictions throughout the period of pregnancy, childbirth and post-natal.
Relevant Case Laws
The universal truth of motherhood entitles every woman the fundamental health rights irrespective of the sector they are working, as its the choice of circumstances or opportunity. The continuous failure to avail the facilities and benefits disregards the concept of equity, right to life, and personal liberty under the constitution of India. These basic human viz. Fundamental rights under the labour laws extend their enforceability not only to the state but also to private parties. The Maternity Benefit Act, of 1961 endeavours to preserve the dignity of working women in such a manner that they may overcome the state of motherhood with honour without the fear of getting victimized by unpaid maternity leaves during and post pregnancy.
To carry on the spirit of the statute in the interpretation of its objective and aim of the constitution to create a democratic, welfare state, economic and social justice for people[21], the hon ‘able Supreme Court in the case of Municipal Corporation of Delhi v. Female Workers (muster roll)[22]reviewed the administrative action on the basis of constitutional provisions of labour welfare and basically heard the plight of daily wagers and women workers employed in construction work. The court observed the nature of duties by muster roll employees is exactly the responsibility of the regular workers. The basis of claim by the women workers derives its background from the constitutional provision of Art. 39, 42 and 43.
Conclusion
Accepting the fact that there lies unimaginable risk within the relationship between an employer and employee. In the case of women employees working in an organized sector which is majorly small and, medium enterprises may create a sense of insecurity in the mind of the employer with regard to the continuity of employees in the enterprise after availing of the maternity benefits. However, the constitutional rights and obligations on the other hand cannot be ignored or kept at stake for the sake of the employer. Underlining the challenges lying on both sides of the seesaw, it is pertinent to concern the rights and obligations of both employer and employees, particularly pregnant and lactating employees. As far as the relationship between three entities of labour law i.e., the state, employer, and employee in unorganized sectors are concerned, burdens and duties lie equitably. The Code on Social Security has been drafter but not notified by the government, which guarantees the all kinds of security to workers in unorganised sectors. However, it is pertinent to note that the code is subjected to the criticisms like dilution of power in the hand of authority. Also, the section of the code dealing with maternity benefit makes no effort to bring additional benefits to unorganised women workers. Therefore, the gap has to be fulfilled by government by emerging as catalyst to bring socio-economic reforms for women labourers.
[1]Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, sec.2(o), No. 14, Acts of Parliament, 2013 (India). [2] Laura addati, Umberto Cattoneo and EmanuelaPozzan, International Labour Organization, Care at Work: Investing in care leave and services for a more gender equal world of work, 27, 2022. [3]Bandhua Mukti Morcha v. UOI, 1984 AIR 802. [4]Feminism in India, https://feminisminindia.com/2022/06/08/maternity-leaves-for-university-students-in-india-laws-policies/ (last visited October 10, 2022). [5] Saumya Tiwari v. State of U.P., 2021 SCC OnLine All 963. [6]Mini P.R. KelamuthuMadom v. Senior Divisional Manager, LIC of India, 1994 SCC OnLine Ker 428. [7]United Nation, Universal Declaration on Human Rights, Art. 25, 10 December 1948, Ch. V Charter of United Nations. [8] UN General Assembly, International Convention on Economic and Cultural Rights, Art. 10(2), 16 December 1966, United Nations. [9]UN General Assembly, Convention on elimination of all forms of discrimination against women, Art. 1, 18 December 1979, United Nations. [10] Pratap Singh v. the State of Jharkhand, (2005) 3 SCC 551. [11] K.S. Puttaswamy v. Union of India (2017) 10 SCC 1. [12]Maneka Gandhi v. Union of India 1978 AIR 597. [13] The Unorganised Workers’ Social Security Act, 2008, §2(m),No. 33, Act of Parliament, 2008(India). [14] R G Foundation, Study on working condition and privileges of women in the organised sector in India, Ministry of Women and Child Development, https://wcd.nic.in/sites/default/files/FINAL%20DRAFT%20REPORT_0.pdf. [15] Time of India,https://timesofindia.indiatimes.com/india/sc-seeks-status-report-from-centre-on-grant-to-pregnant-women/articleshow/76970771.cms (last visited Oct 8, 2022). [16] The Code of Security,2020, sec 109(1)(ii), No. 36, Act of Parliament, 2020 (India). [17]Keshwanand Bharti v. State of Kerala, (1973) 4 SCC 225. [18] State of Punjab v. Ram Lubhaya Bagga, AIR 1998 SC 1703. [19]Pashim Banga Khet Majdoor Samity v. State of West Bengal &ors., (1996) 4 SCC 37. [20]Supra note 8. [21] Crown Aluminium Works v. Workmen, AIR 1958 SC 30. [22] Municipal corporation of Delhi v. Female Workers and another, (2000) 3 SCC 224.