Maternity leave isn't an issue of charity it is an issue of justice.
The Maternity Benefit (Amendment) Act 2017, passed by the Rajya Sabha in August 2016, has also been passed by the Lok Sabha in March 2017.
Under this new Law, maternity leave is raised from 12 weeks to 26 weeks. The prenatal leave is additionally extended from six to eight weeks. However, a lady with already two or more children is entitled to 12 weeks’ maternity leave. The prenatal leave during this case remains six weeks.
The Act also provides for adoption leave of 12 weeks for a lady who adopts a baby under the age of three months. A commissioning mother is additionally entitled to a 12-week leave from the date the kid is handed over to her. A commissioning mother is defined as “biological mother who uses her egg to form an embryo implanted in the other woman” (the woman who gives birth to the child is termed host or surrogate mother).
The Act further requires an employer to tell a lady worker of her rights under the Act at the time of her appointment. the data must run in writing and in electronic form (email).
Female civil servants are entitled to maternity leave for a period of 180 days for his or her first two live born children.
the judicature of Uttarakhand struck down as unconstitutional a state rule that denied maternity leave to a lady upon her third pregnancy. The tribunal held that the rule violated the provisions of the Maternity Benefits Act, which didn't authorize discrimination of this type. However, the state supreme court also observed that the Rule contravened the spirit of Article 42 of the Indian Constitution, which mandates the State to supply for “securing just and humane conditions of labor and for maternity relief”.
Article 42 of the Constitution belongs to the chapter handling Directive Principles of State Policy. it's not enforceable in court, serving only as an ethical guide to the govt. And indeed, the Court’s primary reliance was on the Maternity Benefits Act. However, Justice Rajiv Sharma’s invocation of Article 42 of the Constitution is notable in its title. this is often because, by linking the concept of maternity leave to “just and humane conditions of work”, it acknowledges a crucial reality that our courts have often been hesitant to confront: the gendered nature of the workplace, and of the broader society.
In the maternity benefits case, this gendered nature presents itself in two sets of social norms: first, in our society, there remains a unbroken expectation that ladies will function the first caregivers, as far because the raising of youngsters is anxious. And secondly, workplace norms prioritized instrumental efficiency, and penalize people who take break day to have interaction in activities that don't seem to be considered “work” (such as, for example, care giving and child raising).
maternity leave is visualized as a necessary evil, an efficiency burden that's caused thanks to women becoming pregnant. Consequently, women who enter the workforce are faced with an impossible choice: they have to both conform to the male standard at the workplace (or lose out on career advancement), and also handle social norms that expect them to continue shouldering family responsibilities. Thus, there are conflicts over whether and to what extent maternity leave is to be procured, how long it must be, how it'll affect promotional and career avenues, and after all — because the Uttarakhand Rules stipulated — whether it may be capped.
Justice Sharma’s invocation of Article 42 of the Constitution, within the context of maternity leave, becomes significant: it frames the talk within the contours of justice (“... just and humane conditions of labor.”). It therefore recognizes — a minimum of implicitly — that restricting maternity leave isn't an issue of charity, or pity, or kindness, but an issue of justice. And once we accept that the foundations governing labour and also the workplace are subject to the wants of justice, we will liberate ourselves from accepting them as they stand, and think from scratch about the way to design workplaces that take into consideration existing imbalances of power in society, and work towards redressing them, instead of perpetuating them. For this reason, the Uttarakhand High Court’s judgment — despite, at its base, being an easy ruling on statutory interpretation — has greater significance for the way we predict at the intersection of labour and gender equality.
In another case,
A judge from Delhi’s Tis Hazari Court surprised everyone when he quoted eminent Hollywood personalities like Oprah Winfrey and Meryl Streep while hearing a case on a woman’s maternity leave.
Judge Mohd Farrukh while hearing the 2009 case, quoted Oprah saying, “The option to become a mother is that the option to become one amongst the best spiritual teachers there is. Grant of maternity leave benefit isn't a matter of charity.”
He went on to quote other feminist actors while upholding a Rs 2.5 lakh compensation to a lady who was terminated for extending her maternity leave, as reported by the days Of India.
The case involved a girl who was working for Delhi Council for Child Welfare, an NGO, when she applied for maternity leave from December 30, 2008, to February 28, 2009.
Later on, she requested an extension till March 30, 2009, stating that she wasn’t medically suitable commence her work but when she visited resume work on April 1, 2009, she was already terminated.
A termination letter was sent to her, on April 13, in response to which she sent a legal notice to her employer, ten days later. On May 29, her employer replied to the notice with a cheque of Rs 98,271 as final settlement.
On August 20 2018, the district court convicted the employer noting that the girl should are given a show-cause notice before her termination and slapped the NGO with a fine of Rs 2.5 lakhs.
The compensation order was challenged ahead of Judge Farrukh, stating that the lady was entitled to only 12 weeks of leave under the Maternity Act of 1961, hence violating no law.
But Judge Farrukh highlighted a provision within the act that enabled the mother to avail a month’s additional leave over the granted 12 weeks, making her extension permissible under the law.
Quoting veteran actor Meryl Streep, he said, “Motherhood features a very humanizing effect. Everything gets reduced to essentials.” He even cited Catherine Zeta-Jones, who had once said, “Whether your pregnancy was meticulously planned or medically coaxed, or happened all at once, your life will never be same.”